Delivery and assembly conditions

STATUS: 01.02.2023

I. Validity and conclusion of contract

Our delivery and assembly conditions apply to all our deliveries and other services in the version current at the time the contract is concluded. In addition, our billing rates apply in the version current at the time the contract was concluded.
Our delivery and installation conditions and billing rates also apply to future transactions with the customer in the current version at the time the contract is concluded.
For the business relationship with our customers, the provisions under Section I.1 apply exclusively. enumerated regulations. Deviating conditions of the customer only apply if and to the extent that we expressly acknowledge them in writing. In particular, our silence on such deviating conditions does not count as acknowledgment or approval, not even for future contracts. Our terms of delivery and assembly apply instead of any purchasing conditions of the customer, even if according to these the acceptance of the order is intended as unconditional acceptance of the purchasing conditions, or if we pay after the customer has informed us of the validity of his general purchasing conditions, unless we have expressly waives the validity of our delivery and installation conditions.
Our offers are non-binding. A contract only comes into being through our written order confirmation. The scope of our services is finally determined by our written order confirmation together with its written attachments.
In individual cases, individual agreements made with the customer (including ancillary agreements, additions and changes) always take precedence over these delivery and installation conditions. Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.
Documents handed over by us and information provided, such as illustrations, drawings, weights and dimensions, are only binding if we expressly list them as part of the contract or expressly refer to them.
The written form can be faxed, but not the electronic form § 126a BGB or the text form according to § 126b BGB.
Our terms of delivery and installation are not intended for use by consumers in accordance with Section 13 of the German Civil Code.

II. Prices and Payment

Unless otherwise contractually agreed, our prices are net in euros plus the applicable sales tax.

Cost estimates are only binding in writing. Unless otherwise agreed, the customer must make payments as follows:

30% deposit after receipt of order confirmation,
30% after performance or notification of the start of assembly with regard to the main parts,
30% after performance or notification of readiness for delivery/acceptance, the remainder after the transfer of risk.

Assembly, repairs and other services are billed at the current rates, which can be requested from us. Surcharges are charged for work outside normal working hours. Travel and waiting times count as working time.
Payments are to be made to one of our accounts without any deductions.
The customer has a right of retention or set-off only with regard to counterclaims that are not disputed or have been legally established.
Customer payments are due upon receipt of our invoice. The customer is in default 10 days after receipt of the invoice without further reminder.
The prices of the offer only apply when ordering the full scope of the services offered.

III. Performance, transfer of risk, receipt

We reserve the right to provide reasonable partial services.
The Incoterms 2010 apply as agreed. Deliveries are made EXW, unless otherwise agreed, from the place of manufacture. All ancillary costs, such as costs for packaging, loading, freight and insurance, are not included in the price and, unless otherwise agreed, shall be borne by the customer. Likewise, the customer has to bear all kinds of taxes, duties, fees and duties.
In the case of work performance, the risk of accidental loss and accidental deterioration passes to the customer upon acceptance. If the customer takes over the transport of the item from the place of manufacture to the place of use, he has to bear the risk for the duration of the transport.
The regulations on the transfer of risk also apply if partial services are provided or additional services are to be provided by us.
If the service or acceptance is delayed or omitted as a result of circumstances for which we are not responsible, the risk passes to the customer on the day of the notification of readiness to perform or readiness for acceptance. We undertake to take out insurance requested by the customer at his expense.
The customer may not refuse to accept the service in the event of insignificant defects and quantity discrepancies, without prejudice to his rights under Section X.

IV. Obligations to cooperate

The customer will provide us with all information and documents required for the provision of the contractual services in a timely and complete manner at his own expense and, in addition, fulfill all his contractual obligations to cooperate in a timely and complete manner at his own expense.
When providing software for realistic simulation (simulation software), the customer is obliged to verify the simulation results on his real system in advance in a test environment, taking into account the applicable safety-related or other relevant regulations. In this regard, the customer must independently carry out a corresponding risk assessment of the systems or components.
The customer prepares his working environment accordingly for the use of the software and cooperates in the fulfillment of the order free of charge, in particular by making employees, IT systems, data and telecommunications facilities available.

V.Export Control

Should our performance be covered by state export regulations, it is subject to the necessary permits being granted to us.
The customer is obliged to observe the relevant national and international regulations regarding the control of the (re-)export of our services. For this purpose, the customer will neither export nor re-export nor pass on or transfer our services or components - if authorized to do so - without complying with the applicable provisions. The customer exempts us from all damages and expenses resulting from the culpable violation of the above obligations mentioned in V.2. If this is required to comply with export control regulations, the customer will immediately provide all information about the recipient, whereabouts and intended use of the service or its individual components at our request.

VI.Retention of title

Ownership of delivery items is only transferred to the customer after full payment has been made.
Insofar as the validity of the retention of title in the country of destination is linked to special requirements or special formal requirements, the customer must ensure that they are fulfilled.
The customer may not pledge, sell or assign the delivery item as security prior to the transfer of ownership. In the event of seizure, confiscation or other dispositions by third parties, the customer must indicate our property and inform us immediately.
If the customer behaves in breach of contract, in particular if the customer is in arrears with payment, we are entitled to take back all reserved goods after withdrawing from the contract. In this case, the customer is immediately obliged to surrender and bears the transport costs required for the return
If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardized by the customer's inability to pay, we are entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract. In the case of contracts for the manufacture of non-fungible items (custom-made products), we can withdraw immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
If the customer is based in the Federal Republic of Germany, the following also applies:Contrary to Section VI.1. we reserve ownership of the delivery items until all of our claims against the customer from the current business relationship have been settled.
Contrary to Section VI.2. the customer is entitled under the following conditions to resell or process delivery items subject to retention of title in the ordinary course of business. He must resell the delivery items subject to retention of title if the delivery items are not immediately paid in full by the third-party purchaser. The right to resell lapses if the customer is in default of payment. With the conclusion of the contract, the customer assigns all claims arising from a resale or any other legal reason to us. If co-ownership arises, the assignment only includes the portion of the claim corresponding to our co-ownership.
The customer remains authorized to collect the claims assigned to us even after the assignment as long as he meets his payment obligations to us in accordance with the contract. We can demand at any time that the customer informs us of the assigned claims and their debtors. In such cases, the customer must provide us with all the information required for collection, hand over the necessary documents and notify the debtor of the assignment.
The processing of reserved goods is always carried out by the customer for us. If the reserved goods are mixed, mixed, combined or processed with other items that are not our property, we acquire (co-)ownership of the new item in proportion to the invoice value of the reserved goods to the other processed items at the time of processing. If our goods are mixed, mixed, combined or processed with other movable objects to form a single object and the other object is to be regarded as the main object, it is agreed that the customer transfers ownership to us pro rata if the main object belongs to him. The customer keeps ownership or co-ownership for us. For the item resulting from mixing, blending, connection or processing is otherwise the same as for the reserved goods.
At the request of the customer, we undertake to release the securities to which we are entitled to the extent and at our discretion if their invoice value exceeds our outstanding (residual) claims by more than 10%, not just temporarily.
If our delivery items are firmly connected to the ground or inserted into a building, the connection or insertion is only for a temporary purpose.

VII.Period of performance

Compliance with an agreed performance period presupposes that all commercial and technical questions between us and the customer have been clarified and that the customer has fulfilled all his obligations. If this is not the case, the performance period is extended appropriately. This does not apply if we are responsible for the delay. If the non-compliance with agreed deadlines is due to funtimely or proper self-delivery,
Virus and other attacks by third parties on our IT system, insofar as these took place despite compliance with the usual care for protective measures,
Obstacles due to the relevant national and internationally applicable provisions of foreign trade law, or
acts of God, industrial disputes, delays in obtaining government permits or other events beyond our control the deadlines are extended appropriately. This also applies if we should be in default with the provision of our service. We will notify you of any delays that become apparent.
The performance deadline is met if the willingness to perform has been communicated by the time it expires. If an acceptance has to take place, the acceptance date is decisive, alternatively our notification of readiness for acceptance.
If the service or the acceptance of the service is delayed for reasons for which the customer is responsible, the costs incurred as a result of the delay will be charged to him. The assertion of further damages remains reserved.
We reserve the right to otherwise dispose of the service after setting and fruitless expiry of a reasonable deadline for performance or acceptance and to provide the customer with an appropriately extended deadline.

VIII. Delays in performance, impossibility

If we are in default and the customer suffers damage as a result, he is entitled to demand a flat-rate compensation for delay. From the point in time at which we received the claim in writing, this compensation for delay amounts to 0.5% for each full week of delay, but a maximum of 5% of the value of that part of the total service that was not delivered on time or not in accordance with the contract as a result of the delay can be used.
The customer is entitled to withdraw within the scope of the statutory provisions if - taking into account the statutory exceptions - a reasonable period of time for the provision of services set for us during our delay elapses without result. At our request, the customer undertakes to declare within a reasonable period of time whether he will make use of his right of withdrawal.
Further claims from default of performance are determined exclusively according to Section XI.
The customer can withdraw from the contract without setting a deadline if the entire service becomes finally impossible for us before the transfer of risk. The customer can also withdraw from the contract if it becomes impossible to perform part of the service for an order and he has a legitimate interest in refusing the partial service. If this is not the case, the customer must pay the contract price for the partial service. The same applies in the event of inability on our part.
If the impossibility or inability occurs during the delay in acceptance or if the customer is solely or largely responsible for these circumstances, he remains obliged to provide consideration.

IX. Acceptance

Our work is deemed to have been accepted 2 weeks after our notification of readiness for acceptance, unless the customer reports existing significant defects in writing within this period.
The customer is only entitled to refuse acceptance if the defect eliminates or significantly reduces the usual and/or contractually required use of the work and/or its value. If the work has defects that do not justify refusal of acceptance, acceptance must take place subject to the remedying of the defect.
Refusals of acceptance or reservations about acceptance must be made in writing without delay, stating and describing the defect complained of.
The use of the delivery item or the item relating to the service by the customer counts as acceptance.

X.Claims

In the case of material and legal defects, the customer has the following claims for defects:
1. The customer's claims for defects presuppose that he has properly complied with his obligations to examine and give notice of defects according to § 377 HGB.
2. At our discretion, we will deliver a defect-free item or remedy defects if the delivery item was already in good condition at the time of the transfer of risk in accordance with Section III. was demonstrably defective
3. The customer must notify defects immediately and report them in writing, stating and describing the defect complained of. We reserve ownership of parts replaced in the exchange process.
4. Claims for defects do not arise as a result of causes that cannot be attributed to our fault, e.g
5. Natural wear and tear, excessive stress, improper interventions or repair work by the customer or third parties, incomplete or incorrect information provided by the customer, unsuitable or improper use, incorrect operation, assembly or commissioning, incorrect or negligent treatment, improper maintenance, use of unsuitable equipment/ Substitute materials, defective construction work, unsuitable building ground, harmful environmental conditions unknown to us, chemical, electrochemical or electrical influences, changes made to the delivery without our consent.
6. Furthermore, claims for defects do not arise in the event that the software provided is connected to third-party software by the customer and such third-party software is not compatible with the software, nor if there are defects that are due to non-contractual use or improper operation of the software by the customer. Claims for defects also do not arise in the event that the customer does not use the required system configuration, in particular infrastructure, hardware, operating system and database
7. The customer must grant us the time and opportunity required for supplementary performance. If we are not given this opportunity, we shall not be liable for the resulting consequences. Only in urgent cases of endangering operational safety or to prevent disproportionately large damage, in which case we must be informed immediately, does the customer have the right to have the defect remedied himself or through a third party and to demand reimbursement of the necessary expenses from us. The right to take action ourselves does not exist if we were entitled to refuse subsequent performance in accordance with the statutory provisions.
8. In the event of supplementary performance, we shall reimburse the statutory costs to be borne by us - insofar as the complaints turn out to be justified - insofar as these are not increased by the fact that the delivery item was taken to a place other than the place of performance. Subsequent performance includes neither the dismantling of the defective items nor the re-installation if we were not originally obliged to install them.
9. In cases of culpable contributory causation of the defects by the customer, in particular due to non-compliance with his obligation to avoid damage and to reduce the damage, we are entitled to compensation for damages corresponding to the contributory causation of the customer after supplementary performance.
10. If a reasonable deadline set for us for supplementary performance due to a defect elapses without result, the customer is entitled to withdraw from the contract, taking into account the statutory exceptions. If there is only an insignificant defect, the customer only has the right to reduce the contract price. The right to reduce the contract price is otherwise excluded
11. For assemblies, repairs and other services, section applies instead X.1.g. the Section XV.9.

If the use of the delivery leads to an infringement of industrial property rights or copyrights within the periods specified in Section XIV, we shall in principle grant the customer the right to continue using it or modify the delivery in such a way that the infringement of industrial property rights or copyrights no longer exists.If this is not possible under economically reasonable conditions or within a reasonable period of time, the parties are entitled to withdraw.Within the time limit, we will indemnify the customer against undisputed or legally established claims of the relevant property right holder.
Our in Section X.1.i. The obligations mentioned are final, subject to Section XI, in the event of an infringement of industrial property rights or copyrights.
There is only a right to supplementary performance due to an infringement of industrial property rights or copyrights if:

the customer informs us immediately in writing, stating and describing the asserted infringements of industrial property rights or copyrights,
the customer supports us to a reasonable extent in defending against the asserted claims or enables us to carry out the modification measures in accordance with Section X1.i. allows
we reserve the right to take all defensive measures, including out-of-court settlements,
the infringement of industrial property rights or copyrights is not based on an instruction or specification by the customer,
the infringement of industrial property rights or copyrights was not caused by the fact that the customer arbitrarily modified the delivery or used it in a manner that was not in accordance with the contract.

All other claims for defects (in particular for compensation for damage that did not occur on the delivery itself) are determined exclusively according to Sections XI. and xv. 9.
When selling used goods, claims for defects are excluded unless liability is prescribed by law.

XI.Liability

We are only liable, also in the event of damage due to breaches of duty during contract negotiations, regardless of the legal reason (in particular for compensation for damage that did not arise in the delivery itself) in the case of:

intent;
culpable breach of essential contractual obligations; "Essential contractual obligations" are those obligations that protect the customer's essential contractual legal positions, which the contract has to grant him according to its content and purpose; Furthermore, such contractual obligations are essential, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the customer has regularly relied and may rely;
gross negligence of the organs or executives;
culpable injury to life, body, health;
defects that we have fraudulently concealed;
Breach of quality and/or durability guarantees assumed by us;
Personal injury or damage to property to the extent that privately used objects are liable under the Product Liability Act.
1. In the event of a culpable violation of essential contractual obligations, we are also liable for gross negligence on the part of non-executive employees and for slight negligence; in the latter case, liability is limited to the contractually typical, reasonably foreseeable damage.
2. The customer will carry out appropriate and regular data backups, in particular in the form of backups that are available at any time and can be played back. We are only liable for the loss of data and its restoration if such a loss could not have been avoided by appropriate data backup measures on the part of the customer. The customer bears the burden of proof for such regularly carried out data backup measures. Liability for data loss or damage for which we are responsible is limited to the effort that would be required if the customer had properly backed up the data in order to restore the data from the backed up data material
3. Compensation for pure financial losses is limited by the general principles of good faith, for example in cases of disproportionality between the amount of the order and the amount of damage
4. Any further liability - for whatever legal reason -, in particular for compensation for damage that has not occurred to the delivery item itself, is excluded.
5. We are not liable for the consequences of defects for which Section X.1.c. no claims for defects arise.

XII. Insurance contract claims

Insofar as we have direct claims against the customer's insurer with regard to our service as a co-insured person, the customer already gives us his consent to assert these claims.

XIII.Software: Scope of delivery and rights of use as well as right to information

If software is included in the scope of delivery of a system or machine, the customer is granted the following rights of use. We do not owe any training, support, maintenance or the provision of updates or upgrades. Such services can be contractually agreed separately.

The customer is granted the following rights of use:

The license conditions of these manufacturers apply to programs from third-party manufacturers. This also applies to open source licenses if a software component is subject to an open source license. If the obligation to transmit the license conditions and other mandatory information does not result from the license anyway, we will make the conditions of the third-party manufacturers available to the customer upon request.
The customer receives the simple, temporally and spatially unrestricted, non-transferable and non-exclusive right to use the software together with the documentation from the time it is made available. Unless otherwise agreed, the license type results from the contract. The respective license type includes the following scope of use:

ah. With the hardware-related license, the customer is entitled to install and use the software on the computer for which he received the license key.
bb With a user-related license, the right of use is limited to the number of full client concurrent users specified in the contract, ie the right of use may only be exercised by the maximum number of users specified at the same time.
cc With a named user license, only the persons named in the contract are entitled to use the software at the same time.
dd. With a group license, the customer can use the software in all companies that are associated with him within the meaning of §§ 15 ff. AktG ("group companies"). This includes the right for all employees of the group companies to be able to use the software without any restriction on their number. It may be determined that if there is a significant increase in headcount, Customer must purchase additional site licenses.

Copyright notices and trademarks and other legal reservations, serial numbers or other features may not be deleted, changed, made unrecognizable or suppressed and must always be included when making backup copies.

In particular, the right to use the software does not include the right to edit, translate, rent and lend or to distribute, publicly reproduce and make available online to third parties outside the customer's company; Furthermore, the right of use does not include the right to reproduce, unless this is required for the intended purpose or for the production of backup copies. The use of the software in outsourcing, service bureau, ASP operations or similar is not permitted. The transfer of the rights of use to third parties is not permitted, unless the third parties are business partners of the customer who need access to the software to fulfill their order and for the customer's operational purposes, whereby only use through screen access and is only permitted in connection with use by the customer.
The software may only be transferred to third parties as a unit and against written notification of the transfer. The customer must give up his use of the software completely and finally and also hand over all copies to the third party or destroy them. These license conditions must also be passed on to the third party.
The customer has no right to transfer and use of the source code of the software and the source code documentation. Customer shall not decompile, disassemble or otherwise reverse engineer the Software to obtain the source code; Section 69e of the copyright law remains unaffected by this
The customer will keep proper accounts of the use of the software, in particular the authorized users and installation locations as well as the hardware and software environment used, and provide us with information on this upon request. Customer agrees that we shall have the right to employ our own employees or independent third parties, each bound by a duty of confidentiality, to review (including by means of manual examination and/or electronic methods) Customer's records, systems and facilities for the purpose to confirm that the installation and use of the software by the customer takes place in accordance with the terms of valid licenses from us. The customer will provide us with all documents and information requested by us within 30 days after a corresponding request. We shall bear the costs of this review, unless a not insignificant breach of contract is determined during this review.

XIV. Statute of limitations

Customer claims for defects become time-barred 12 months after the transfer of risk.
Customer claims for defects due to defects in buildings or works whose success consists in the provision of planning or monitoring services for buildings expire 5 years after the transfer of risk.
With the exception of Section XIV.4. all other claims of the customer become time-barred- for whatever legal reason - in 12 months from the transfer of risk.
For injury to life, limb or health; grossly negligent conduct by organs or executives; intentional or fraudulent conduct; the culpable breach of essential contractual obligations; Guarantees and claims under the Product Liability Act apply instead the statutory statute of limitations.
The start of the limitation period is determined by the statutory provisions.

XV.Assemblies, repairs and other services

The following also applies to assemblies, repairs and other services:

The customer must inform our staff at his own expense about existing safety regulations and dangers and take all necessary measures to protect people and property at the workplace.
The customer must support our personnel in carrying out the work to the required extent at his own expense and provide the necessary assistance, such as preparing the construction site, providing tools and lifting gear, providing water and electricity, etc.
The customer's assistance must ensure that our work can begin immediately after the arrival of our staff and can be carried out without delay until acceptance.
If the customer does not meet his obligations, we are entitled, but not obliged, to carry out the actions incumbent on the customer in his place and at his expense.
If a service cannot be provided for reasons for which we are not responsible, the services already provided by us and the expenses incurred are to be compensated by the customer.
Parts replaced in the exchange process become our property.
If the service has been lost or deteriorated prior to acceptance through no fault of our own, the customer must reimburse us the price less saved expenses.
Only repair or assembly deadlines confirmed by us in writing are binding.
In the case of assemblies, repairs and other services, the customer is entitled to a reduction within the framework of the statutory provisions if - taking into account the statutory exceptions - a reasonable period of time set for us to provide the service during our delay elapses without result. The right to a reduction also exists in other cases of failure to remedy the defect. The customer is only entitled to withdraw if the assembly, repairs and other services are demonstrably of no interest to the customer despite the reduction.
If the devices or tools provided by us are damaged at the assembly site through no fault of our own or if they are lost through no fault of our own, the customer is obliged to compensate for this damage. Damage due to normal wear and tear is not taken into account.

XVI. Ownership of Information and Confidentiality

We reserve our property rights and copyrights to all information and documents handed over (e.g. samples, cost estimates, drawings, documentation) – also in electronic form. At our request, they must be returned to us immediately and completely.
All information originating from us, as long as and insofar as it is not demonstrably public knowledge, must be kept secret from third parties and may only be made accessible internally to those employees who need it to fulfill their obligations and who are also obliged to maintain confidentiality.
As information within the meaning of XVI. 2 applies - by way of example but not conclusively - in particular to any document, any software including the source code, any trade secret, any information and any data or other information that is not publicly accessible regarding products, processes, know-how, design, formulas, algorithms, drafts, developments , research, computer programs or parts of computer programs (including the source code), interfaces, databases and other copyrighted works or any other information relating to our business and our employees, consultants, licensors and licensors, whether in written, electronic, embodied, oral or communicated in any other form.

XVII.Applicable Law, Place of Jurisdiction

If the customer is based in the Federal Republic of Germany, the place of jurisdiction is our company headquarters. We reserve the right to bring an action at the customer's legal place of jurisdiction.
If the customer is based outside of the Federal Republic of Germany, arbitration proceedings will take place at the International Chamber of Commerce in Paris in accordance with the ICC Arbitration Rules. The decision is final. It is to be made and justified by three judges. The participation of our insurer according to the possibilities of participation in the ordinary legal process is possible. We reserve the right to bring an action at a legal place of jurisdiction.
The law of the Federal Republic of Germany applies, excluding all conflict of law rules and the United Nations Convention on the International Sale of Goods (CISG).

XVIII. Disposal of the delivered goods, general

The customer assumes the obligation to properly dispose of the delivered goods after the end of use at his own expense in accordance with the applicable statutory provisions. The customer releases us from any existing take-back and/or disposal obligations on our part and from third-party claims in connection therewith.
In the area of application of the Electrical and Electronic Equipment Act (ElektroG), the customer releases us from all obligations according to § 19 ElektroG (take-back and disposal obligations).
The customer must contractually oblige commercial third parties to whom the delivered goods are passed on to ensure that the delivered goods are properly disposed of at their own expense after the end of use in accordance with the applicable statutory provisions and that a corresponding further obligation is imposed in the event that the goods are passed on again. If the customer fails to contractually oblige third parties to whom he passes on the delivered goods to assume the disposal obligation and to further oblige, the customer is obliged to take back the delivered goods at his own expense after the end of use and to dispose of them in accordance with the applicable statutory provisions. We are to be released from any third-party claims.
The customer may under no circumstances pass on the delivered goods to private third parties due to their classification as goods used exclusively for commercial purposes.
Our entitlement to acceptance/release by the customer does not become time-barred before two years have elapsed after the final end of use of the delivered goods. The two-year suspension period begins at the earliest when we receive written notification from the customer about the end of use. The customer is obliged to send this written notification to us immediately after the end of use. We are entitled to request proper proof of disposal by the customer.
All taxes, fees and charges in connection with the service outside the Federal Republic of Germany must be borne by the customer and, if necessary, reimbursed to us.
All packaging, especially transport packaging, will not be taken back. The customer is obliged to ensure that the packaging is properly disposed of at his own expense.
The customer must obtain the permits and/or export and import documents required for its use of the products at its own expense.
We comply with the legal provisions for the protection of personal customer data.

The place of performance and fulfillment for the customer's obligations towards us is our company headquarters.

Should individual terms of these terms and conditions or the contract be or become wholly or partially invalid, the remaining terms remain unaffected.

MAKA Systems GmbH

Nersingen, February 2023

DELIVERY AND INSTALLATION CONDITIONS