General Terms and Conditions of Business and Delivery of innovatiQ GmbH + Co KG with its head office in Munich-Feldkirchen

I. General provisions

1. Our General Terms and Conditions of Business shall only apply to companies and to legal entities under public law. They shall not apply to consumers.

2. Our General Terms and Conditions of Business shall apply to all present and future delivery contracts for innovatiQ-3D printers and to all other innovatiQ systems and assemblies (henceforth “Machines”) with the Customer without reference having to be made to them in every individual case.

3. Contradictory or contrary General Terms and Conditions of Business of the Customer that are not included in these General Terms and Conditions of Business shall not apply if we do not recognise them explicitly, even if we provide deliveries or services without reservation to the customer with the knowledge of such conditions. Ancillary agreements, additions and special agreements shall require our written confirmation.

II. Quotation and contract conclusion, performance specifications

1. Our quotations are non-binding. We can accept purchase orders or sales orders within two weeks after receipt unless a specific acceptance period was agreed.

2. Performance specifications shall only be binding for us if they arise from a valid brochure or have been expressly confirmed by us. Modifications to the Machine which we consider appropriate due to technical advances or consistent product development may also be made by us after conclusion of the Contract. The same shall apply to insignificant changes in design, colour selection, dimensions and weight of the Machine.

III. Cooperation obligations of the customer

1. The Customer shall use, clean, maintain and control the functionality of the Machines in accordance with the operating instructions.

2. In the event of a fault in the Machines, the customer must immediately undertake the necessary measures to protect people and materials. The Machines must no longer be used unless it has been approved by us.

3. The Customer shall ensure the conditions for an orderly delivery of the Machines and in the case of assembly for its orderly performance. It shall in particular ensure that during the assembly and subsequent function test that qualified contact partners are present and that the necessary supply connections are available. We shall reserve the right to invoice any costs to the Customer that arise due to waiting times for which the Customer is responsible.

IV. Prices and payments

1. These prices shall apply to the services and delivery scope listed in the order confirmation. The prices for the Machines are stated in Euro net ex works (EXW as per Incoterms 2010) plus loading, packaging, shipping and insurance as well as value added tax at the respective legal amount and for export deliveries plus customs duties and fees and other public charges.

2. If the estimated delivery date is delayed by more than two months for reasons for which the Customer is responsible, we shall be entitled to amend the price if there has been a change in the relevant cost factors between the time the Contract was concluded and the delivery and service.
3. Unless otherwise agreed, our invoices shall be due for payment without deduction within 8 days from invoice date.

4. In the event of late payments and without any further reminder, we shall charge default interest in the amount of 9 percentage points over the respective base rate of interest pursuant to Section 247 (1) of the German Civil Code (BGB). The right to assert further compensation claims shall not be restricted by this. Incoming payments shall first be booked to the oldest receivables, and then in the sequence of costs, interest, principal sum. Offsetting or withholding of payments shall only be admissible due to established legal claims of the Customer which are recognised and non-disputed by us.

5. If after the acceptance purchase orders, justified doubts arise as to the Customer’s ability to pay, or if invoices due for payment are not paid or a guaranteed payment period has been exceeded, we shall be entitled to request immediate payment of the total purchase price or to demand an advance payment or a security deposit prior to delivery. If the Customer does not comply with our demand within a period of 2 weeks after our request or if the debt has not been settled, we shall be entitled to withdraw from the Contract. In the event of a withdrawal we shall be entitled to demand a standard damages compensation fee of 20% of the order amount as compensation. The Customer has the right to provide proof that damages have not occurred or at a lower level. The right to assert further damage compensation claims as well as the rights arising from Section 321 of the German Civil Code (BGB) shall hereby remain unaffected.

6. We shall not be under the obligation to accept or execute one-off orders with an order value below EUR 150 net (excluding statutory value added tax).

V. Delivery and service periods, delivery delay, partial delivery

1. Our information on delivery periods and deadlines shall be non-binding, unless a fixed-date transaction or specific binding delivery or services dates have been expressly agreed in writing. Such agreed delivery or service dates shall commence with the sending of our order confirmation, not however before the fulfilment of the commitments/obligations of the Customer. Deliveries shall be made ex works (EXW as per Incoterms 2010), whereby delivery deadlines are viewed as complied with when the delivery has left the factory or the readiness to ship has been notified. If we do not comply with the agreed delivery or service date, then default only comes into force with the expiry of an appropriate written extension of at least two weeks granted by the Customer.

2. We shall not be in default if the Customer does not comply promptly with its cooperation obligations, such as the delivery of test items, documents, plans, requisite authorisations and approvals or its payment obligations; in this case our deadlines shall be extended for the appropriate time period.

3. Agreed delivery and service dates shall be extended, also within the default at an appropriate extent in the event of force majeure or of all other unforeseen impediments that occur after the conclusion of the Contract and for which we are not responsible, and to the extent that such impediments are proven to influence the provision of the owed performance. This shall also apply if these circumstances occur with our sub-suppliers, suppliers, freight forwarders or sub-contractors. We shall notify the Customer as soon as possible of the start and end of such impediments. If the impediment lasts longer than three months or it is ascertained that it will last longer than three months, both we and the Customer can withdraw from the Contract. In this case damage compensation claims from the Customer shall be excluded.

4. If during the performance of the contractual service, modified or additional services are performed, the delivery and service periods shall be extended accordingly taking the duration of the performance of such services into consideration. Where required we will inform our Customer of this in good time.

5. We shall be entitled to make partial deliveries within the agreed delivery periods if this is reasonable for the Customer.

VI. Transfer of risk, shipment, insurance

1. The Machines shall be shipped EXW (Incoterms 2010) from our business premises in Munich-Feldkirchen, Germany.

2. Transportation will be at the risk of the customer. Risk shall be transferred to the Customer at the latest with the handover of the delivery (applicable here is the start of the loading process) to the freight forwarder, freight carrier or other third-party specified to perform the shipment. The transfer of risk shall also apply if we have also undertaken other services through a special agreement (e.g. shipment or shipping costs, insurance, etc.).

3. If the Customer does not inform us promptly, as a rule at the latest one week before the planned delivery, or if it does not provide us with adequate information about the transportation company, we shall be entitled, however not obliged, to conclude the contract of carriage at the usual conditions at our site and at the costs and risks of the Customer.

4. It is a matter for the Customer to insure the Machines from the point of transfer of risk at its expense against insurable risks and also to take care of the acquisition and settlement of any export/import and implementation permits, licences, reporting obligations, customs (declaration and payment obligations, etc.).

VII. Retention of title and other securities

1. The Machines shall remain our property until full payment of all receivables to which we are entitled from the Customer at the present time or in the future including all balance claims from our business relationship.

2. The Customer is under the obligation to handle the Machines carefully until the transfer of title and to insure them adequately at replacement value at its expense against fire and water damage and theft. The Customer shall already assign to us its claims to insurance benefits at the level of the purchase price receivable. We shall hereby accept the assignment.

3. The Customer shall not be permitted to resell, pledge or transfer the Machines as security collateral until the transfer of title. In the event of seizure of the Machines by third parties or of other third-party interventions prior to the transfer of title, the Customer must disclose that this is our property and inform us immediately of this in writing.

4. As long as there is a receivable in our favour we shall be entitled to request information from the Customer at any time about which Machines delivered under retention of title are still in its possession and where these are located. We shall be further entitled to view these Machines at any time during normal business hours.

5. On the request of the Customer, we shall release the securities established by the aforementioned provisions to the extent that their realisable value exceeds the value of our outstanding liabilities by more than 10%; we shall decide on the selection of the securities to be released.

VIII. Warranty

1. We shall provide warranty for new Machines and for new customer-specific special items for a period of one year starting with the delivery, at the latest however, with the commissioning, and for used machines for a period of three months. Warranty periods shall start, unless provided for otherwise in the above sentence 1, from the day of delivery. The preceding provisions shall not apply if longer periods are prescribed as mandatory by law.

2. Our warranty shall be restricted to design, manufacture and material faults excluding warranty for wear parts in particular relays, heating strips, fuses, seals, filters all plastification parts and other parts affected by wear.

3. Material defect rights can only ensue if the Machines manifest a material defect at the time of transfer of risk. Material defect rights do not ensue in the event of inappropriate or improper use, defective assembly or commissioning by the Customer or third parties, natural wear and tear, defective or negligent handling or use, defective maintenance, disregard of the provisions in the operating instructions, inappropriate operating materials, exchange of raw materials, non-adherence to the exclusive use of original parts, defective construction work, inappropriate construction base, chemical, electrochemical or electrical influences – provided they are not attributable to fault on our part.

4. The Customer must immediately notify us in writing of Machine defects of any type – with the exception of concealed defects – at the latest within 8 days after delivery, otherwise the Machines shall be deemed accepted, subject to the subsequent ruling on concealed defects. Concealed defects are to be notified immediately upon their discovery, at the latest within 8 days and in writing, otherwise the Machines will be deemed approved in relation to these defects. Negotiations relating to a complaint do not represent a waiver of the objection of a late, inadequate or unjustified defect notification. Section 377 of the German Commercial Code (HGB) shall remain unaffected.

5. In the event of a promptly established defect notification, we shall have the choice either to remove the defect (repair) or to deliver a defect-free item (replacement delivery). The Customer must grant us sufficient time and opportunity to perform all the repairs that appear necessary and to perform the replacement deliveries. Otherwise, we shall not be liable for any ensuing consequences. In the event of a replacement delivery, the Customer shall be under the obligation to return the defective parts. In urgent cases which may endanger operational safety or to avert disproportionately large damages, about which we must be notified immediately, the Customer shall have the right to remove the defect itself or have it removed by third parties and to demand reimbursement of the necessary costs from us. If we are not prepared to provide a repair/replacement delivery or are not in a position to do so, and this causes delays beyond reasonable deadlines for reasons for which we are responsible, or if the repair/replacement delivery fails in any other way, the Customer shall be entitled, if additional subsequent fulfilment attempts are unreasonable for it, to withdraw from the Contract or to reduce the price. The repair shall be deemed as failed at the earliest after an unsuccessful second attempt. The Customer can only withdraw from the Contract due to an insignificant defect with our consent.

6. We may choose either to perform the fault analysis and defect removal on-site or – provided that the type of defect in question does not require otherwise – in our business premises or in those of sub-contractors, in particular also using available remote diagnostic and remote maintenance equipment.

7. Repairs or replacement deliveries neither justify separate new warranty claims nor is a separate new limitation period hereby instigated.

8. If the inspection of a defect notification reveals that there is no defect or that the customer is responsible for the defect, we shall be entitled to invoice the Customer for the costs incurred due to the inspection and removal where applicable.

9. For damages due to the defectiveness of the machines or for consequential damages due to defects including downtime, we shall only be liable within the limits stated in Clause IX.

IX. Liability

1. We shall assume liability in accordance with the provisions of the Product Liability Act as well as in cases of incapacity and impossibility for which we are responsible. Furthermore, we shall assume liability in accordance with statutory provisions in cases of intent, gross negligence, the assumption of a guarantee and in the event of injury to life, limb or health where we are culpable. Furthermore, if we breach an essential contractual obligation (so-called major obligation) through slight negligence, in other words an obligation whereby its fulfilment enables the due and proper implementation of the contract and on compliance of which the Customer must be able to rely, our obligation to pay compensation shall be restricted to typical and foreseeable contractual damages. In all other cases of liability, damage compensation claims due to breach of an obligation from the contractual relationship and also due to unlawful acts shall be excluded, so that we shall not be liable for lost profit or other financial damage to the Customer.

2. To the extent our liability is excluded or limited due to the above provisions, this shall also apply to the personal liability of our executives, workers, staff members, representatives and vicarious agents.

X. Data storage

We hereby inform our Customers that personal data are stored by us using IT methods and processed by us for the purpose of the fulfilment of the Contract for as long as they are required for the business purpose and within the remit of the General Data Protection Regulation. The legal basis for the data storage is GDPR Article 6 (1) (b).

The controller pursuant to GDPR Article 4 (7) innovatiQ GmbH + Co KG, Kapellenstraße 7, 85622 Feldkirchen, Germany, Email: invor@innovatiq.com, Tel: +49 89 2488986-0.
You may contact our data protection officer at the email address: datenschutzbeauftragter@innovatiq.com.

For more information about how we process personal data, including your rights, please see www.innovatiq.com/privacy-policy.

XI. Confidentiality, intellectual property

1. Our know-how as well as all other business and operating secrets including the content of the contractual relationship with the Customer shall be treated in strict confidence by the Customer. The Customer shall undertake all appropriate and necessary precautions to protect the aforementioned information from unlawful access, unlawful disclosure, reproduction, forwarding and all other unauthorised use. The obligations stated in this Clause shall also apply beyond the termination of this Contract.

2. We reserve all intellectual property rights in relation to the Machine. This shall also apply in particular when the Machine, on the request of the Purchaser, has a special design in deviation from series production.

3. If software is included in the delivery scope, the Customer shall be granted a non-exclusive right to use the software supplied to operate the Machine contained in the delivery scope. Use of the software on more than one system is forbidden.

XII. Final provisions

1. For all legal provisions between us and the Customer the law of the Federal Republic of Germany shall apply exclusively, with the exclusion of the application of the provisions on the international sale of goods (CISG, UN Sales Convention).

2. The jurisdiction and place of fulfilment for all rights and obligations for the contractual parties for all business transactions of all types is 85622 Feldkirchen (Federal Republic of Germany). We shall however be entitled to file legal action against the Customer at its general place of jurisdiction.

3. If one of the preceding provisions is, or becomes, invalid or unenforceable, then the validity of the remaining provisions shall not be affected. In this case the invalid or unenforceable provision shall be replaced by a valid and enforceable provision which is as close as possible to the objectives of the provision with the invalid or unenforceable provision. The same shall apply to closing any contractual loopholes.