General Terms and Conditions of VX Instruments GmbH
Rev. September 2021

§ 1 Scope of Application of These Terms and Conditions
1. The deliveries, services and quotations by VX Instruments GmbH are provided exclusively on the basis of these terms and conditions. They shall therefore apply to all future business relations, without having to be specifically agreed upon once again. These terms and conditions shall be considered accepted at the latest when goods or services are accepted. We hereby object to any terms and conditions of the Purchaser, in particular terms and conditions of purchase, i.e. we will not accept them even if we do not expressly object to them separately upon receipt.
2. Deviations from these terms and conditions shall only be valid if they have been confirmed by us in writing.

§ 2 Quotation and Conclusion of Contract
The quotations of VX Instruments GmbH are subject to change and non-binding. All declarations of acceptance and purchase orders must be confirmed by us in writing or by telex in order to become legally valid. The same shall apply to supplements, amendments or collateral agreements. In case of immediate delivery, an invoice can replace written confirmation.
2. Drawings, illustrations, dimensions, weights and other services shall constitute an approximate guide only and they do not represent guaranteed quality features, unless they are expressly declared as binding in writing.

§ 3 Prices
1. Unless otherwise specified, VX Instruments GmbH is bound by the prices stated in its quotations for 15 days after their date of issue. Only the prices stated in our order confirmation shall apply. Additional deliveries and services are invoiced separately.
2. Unless otherwise agreed, the prices shall be ex works Altdorf, or in case of direct shipment, ex German border or ex German port of entry, plus packaging, transport and freight insurance and the VAT applicable on the day of delivery.

§ 4 Delivery Period and Time of Performance
1. Unless expressly agreed otherwise in writing, the dates and terms of delivery are non-binding. The quotation of certain terms and dates of delivery by VX Instruments GmbH shall be subject to the condition that VX Instruments GmbH is punctually and correctly supplied by its suppliers and manufacturers.
2. VX Instruments shall be entitled to perform partial deliveries and render partial services. With delivery contracts, each partial delivery or partial service shall be considered an independent performance.

§ 5 Default of Acceptance
1. For the period of the default of acceptance of the Purchaser, VX Instruments GmbH shall be entitled to store the delivery items at the Purchaser’s risk and expense. For this, VX Instruments shall also be entitled to commission a forwarding agent or a warehouse keeper.
2. During the period of the default of acceptance and without any further proof being required, the Purchaser shall pay to VX Instruments GmbH a monthly fixed amount of 1% of the purchase price to reimburse VX Instruments GmbH for any and all storage costs incurred. In case of higher storage costs incurred, VX Instruments GmbH shall be entitled to claim the compensation of these costs of the Purchaser upon providing proof thereof.
3. If the Purchaser – after the expiry of a grace period – refuses to accept the delivery items or states that it does not wish to accept the goods, VX Instruments GmbH shall be entitled to refuse to fulfil the contract and to claim damages due to non-fulfilment of the contract. VX Instruments GmbH shall then be entitled to claim from the Purchaser a lump-sum of 25% of the agreed purchase price or compensation for the actual loss incurred. If VX Instruments GmbH chooses the lump-sum, the Customer shall be entitled to submit evidence that we have not incurred a loss in the amount of 25%.

§ 6 Transfer of Risk
The risk is transferred to the Purchaser as soon as the consignment has been handed over to the person undertaking the transport and has left the warehouse of VX Instruments GmbH for the purpose of shipment. If there is a delay in shipment not caused by us or if shipment becomes impossible, the risk shall be transferred to the Purchaser upon receipt of the notice of readiness for dispatch. If, in individual cases, an agreement was made under which VX Instruments GmbH shall assume transport costs, this shall not affect the transfer of risks.

§ 7 Warranty
1. The warranty period starts with the date of delivery. In case our operating and maintenance instructions are not complied with, changes are made to the goods, parts exchanged or consumables used which do not correspond to the original specification, the warranty shall become void, provided that the defect results therefrom. The same shall apply if the defect can be attributed to improper use, storage and handling of the equipment or any actions of third parties and to the opening of equipment. Immaterial deviations from colour, dimensions and/or other quality and performance characteristics of the goods shall not generate any warranty claims.
2. The Customer must notify us in writing of any defects without delay and not later than within one week after receipt of the delivery item. Defects that cannot be discovered within this period even after thorough examination are to be communicated to us in writing as soon as they are discovered.
3. In case of a defect for which we are responsible, we shall be obliged to either rectify the defect or deliver a replacement, at our discretion. We shall then bear all the labour and material costs arising from the rectification of such defect. The defective part and/or equipment must be sent or delivered to VX Instruments GmbH, Roedersteinstr. 10, DE-84034 Landshut for repair with a precise indication of the defect, indication of the model and serial number and a copy of the shipping note with which the equipment was delivered, unless on-site service was expressly agreed upon in writing. The replacement of parts, assembly groups or entire equipment shall not cause any new warranty periods to take effect. The warranty shall be limited solely to the repair and the replacement of the defective delivery items. When sending in equipment for repair, the Purchaser must ensure that any data important to it on the equipment is backed up since it may become lost during the repair process. VX Instruments GmbH does not assume any liability for lost data and for consequential damage resulting from this.
4. If the rectification of defects fails after a reasonable period of time, the Purchaser may either demand a reduction of the purchase price or withdraw from the contract, at its own discretion.
5. For equipment and/or parts in which no defect could be established, VX Instruments GmbH shall charge the inspection costs to the Purchaser.
6. Any liability for normal wear and tear is excluded. Furthermore, warranty claims for wearing parts, such as relays, and other wearing materials are also excluded.
7. Only the direct purchaser shall be entitled to make warranty claims against VX Instruments GmbH. Such claims are not assignable.
8. The above paragraphs contain the warranty for products, projects and other services and exclude all other warranty claims of any kind, unless VX Instruments GmbH acted with wilful intent or gross negligence.

§ 8 Retention of Title
1. The goods shall remain the property of VX Instruments GmbH until payment has been made in full (goods subject to retention of title). Any treatment or processing shall always be carried out for VX Instruments GmbH as the manufacturer in the sense of Section 950 BGB [German Civil Code] without any obligations resulting thereof for VX Instruments GmbH. When the goods subject to retention are processed or combined with other goods, VX Instruments GmbH shall in general acquire a co-ownership in the new item, in proportion of the value of the goods subject to retention of title to the value of the new item (in case of processing), and in proportion of the value of the goods subject to retention of title to the value of the other goods (in case of combination). If the Purchaser becomes sole owner, it shall grant us a co-ownership in the proportion of the values stated above and shall hold the item in safe custody on our behalf and at its own expense. If the goods created as a result of the processing or combination are resold, the advance assignment agreed to below shall apply only in the amount of the value of the goods subject to retention of title.
2. The Purchaser shall be entitled to process and resell the goods subject to retention of title in the normal course of business, provided that it is not in default. Pledging and transfer by way of security are, however, not permissible. Claims resulting from resale or from any another legal grounds (insurance, unlawful act) with respect to the goods subject to retention of title (including any balance claims from current accounts) shall be hereby assigned to us in full by the Purchaser by way of security. We irrevocably authorize the Purchaser to collect the receivables assigned to us in its own name and for its own account. The direct debit mandate can only be revoked if the Purchaser does not comply with its payment obligations properly.
3. If a third-party gains access to the goods subject to retention of title, the Purchaser shall indicate to such party that these are the property of VX Instruments GmbH and shall immediately notify the latter.
4. If the Purchaser is in default of payment or culpably fails to meet other material contractual obligations, VX Instruments GmbH shall be entitled to recover the goods subject to retention of title or, as the case may be, to demand that any restitution claims of the Purchaser against third parties be assigned to it. The recovery and seizure of the goods subject to retention of title shall not represent a withdrawal from the contract, unless the German Instalment Act applies.

§ 9 Payment
1. Invoices shall be payable in advance or by cash upon collection, unless agreed otherwise. The delivery shall, in principle, be carriage forward, i.e. at the Purchaser’s expense by parcel service, forwarding agent or private vehicle, unless explicitly agreed otherwise.
2. VX Instruments GmbH shall be entitled to offset payments against older debts of the Purchaser, notwithstanding conflicting provisions of the Purchaser. If costs and interests have already occurred, we shall be entitled to first offset the payment against the costs and subsequently against the interests and against the main service. The Purchaser shall be notified thereof.
3. If the Purchaser is in default of payment, we shall be entitled to charge interest in accordance with Section 288 BGB, if the Purchaser is a commercial customer. The interest rate shall be lower if the Purchaser proves a lesser loss.
4. Any outstanding claims shall become due immediately if the Purchaser is in delay of payment, culpably fails to comply with other material contractual obligations or if we become aware of circumstances that could reduce the Purchaser’s creditworthiness, in particular discontinuance of payment or pendency of settlement or insolvency proceedings. In such cases, we are entitled to withhold outstanding deliveries or to effect performance only for payment in advance or against security.
5. The Purchaser shall only be entitled to set-off or exercise a right of retention, if the counterclaims have been validly established as final and absolute or are undisputed.

§ 10 Prohibition of Assignment
The assignment of claims against us to third parties is excluded, unless we have expressly consented to the assignment. To the extent this does not involve generally non-assignable claims in accordance with §7, paragraph 7 of these general terms and conditions (warranty claims), consent is to be granted if the Purchaser is able to show material interest that outweighs our interest in maintaining the prohibition of assignment.

§ 11 Limitation of Liability
Claims for damages, irrespective of their legal grounds, against us are excluded, except in cases of wilful intent or gross negligence.

§ 12 Data Protection and Data Storage
VX Instruments GmbH shall be entitled to process data on the Purchaser obtained in the course of the business relationship or in relation thereto pursuant to the Federal Data Protection Act, regardless of whether they originate from the Purchaser or from third parties. Customer data is stored in accordance with Section 33 BDSG [Federal Data Protection Act].

§ 13 Confidentility obligation
The customer commits himself to treat as strict confidential any data that is relating to VX Instruments or its products, services and deliveries, as well ascorporate and technical information; especially not to make it accessible to competitors. This obligation applies even if a data is not declared as strictly confidential. The customer has to make sure that any data that is gathered by VX Instruments in the context of commercial transactions or technical information shall neither be reproduced nor disclosed to third parties. This confidentiality obligation does not apply to information that had been published at the time of transfer or were already known to the customer. It does not apply to information that was published without customer’s impact after it has been released to the customer. It does not apply to information that is left to the customer by a third party for free disposal.
The customer guarantees that his employees and other vicarious agents comply with this confidentiality obligation.

§ 14 Applicable Law
1. The terms and conditions and the entire legal relationships between VX Instruments GmbH and the Purchaser are subject to the law of the Federal Republic of Germany, excluding the CISG. Insofar as the Purchaser is a general merchant pursuant to the HGB [German Commercial Code], a legal person under public law or a special public fund or a public-law special fund, Landshut shall be the place of jurisdiction for any disputes arising directly or indirectly from the contractual relationship. Altdorf shall also be the place of performance.
2. Should one or several provisions of the present general terms and conditions be or become invalid or contain a regulatory gap, the contractual parties shall undertake to initiate negotiations aimed at replacing the invalid or incomplete provision with a suitable individual agreement or amendment that most closely approximates the economic purpose of the provision as originally intended. The validity of the remaining provisions shall not be affected by this.