General Terms and Conditions

1. Applicability

1.1. All deliveries, services and offers of XION GmbH, Pankstr. 8 - 10 in 13127 Berlin (hereinafter referred to as "XION") are made exclusively on the basis of these General Terms and Conditions. These General Terms and Conditions are an integral part of any contract that XION concludes with its respective contract partner (hereinafter referred to as the "Customer") regarding the goods or services offered by XION. They shall also apply to all future contracts for the delivery of goods or services or to offers to the Customer, even if they are not separately agreed upon again.

1.2. General terms and conditions of the Customer or of third parties shall not apply, even if XION does not separately object to their applicability in the individual case. Even if XION refers to a letter that includes or refers to general terms and conditions of the Customer or a third party, this shall not be deemed to be a consent to the applicability of those General Terms and Conditions.

2. Offers; Conclusion of Contracts

2.1. All offers by XION are subject to confirmation and non-binding, unless they are explicitly marked as binding or contain a specific acceptance period. XION may accept orders or commissions within fourteen (14) days after receipt.

2.2. The legal relationship between XION and the Customer shall be solely governed by the contract concluded in writing, including these General Terms and Conditions. The contract (including these General Terms and Conditions) conclusively contains all agreements between the contracting parties regarding the subject matter of the contract. Any oral agreements between the parties to the contract shall be replaced by the written contract, unless the parties explicitly agreed otherwise.

2.3. Amendments and changes to the agreements made, including these General Terms and Conditions, must be made in writing in order to be valid, unless managing directors or authorized signatories (Prokuristen) in the meaning of Section 48 of the German Commercial Code (Handelsgesetzbuch) of XION orally agree otherwise. To comply with the written form, a transmission by fax or e-mail shall be sufficient, provided that a copy of the signed declaration is transmitted.

2.4. Information provided by XION on the delivered goods or services (e.g. weight, dimension, utility value, load capacity, tolerances and other technical data) as well as the representation of the same in drawings or illustrations are only approximate, unless the usability for the contractually intended purpose requires exact conformity. Such information shall not constitute any guaranteed characteristics of state, but only descriptions or descriptive characterizations of the goods or services. Deviations customary in the trade and deviations which occur due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts, are permissible, provided that they do not impair the usability for the contractually intended purpose.

2.5. XION retains the ownership and/or copyright to all offers and cost estimates submitted by it as well as to all drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Customer. Without XION's explicit consent, the Customer must not make these documents/objects accessible to third parties, disclose them or reproduce them, either as such or in terms of content. Upon XION's request, the Customer must return these items in their entirety and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

3. Prices and Payment Terms

3.1. Prices are quoted in Euro ex works plus packaging, statutory value-added tax, customs duties for export deliveries and fees and other public charges.

3.2. If agreed prices are based on XION's list prices and delivery shall take place more than four months after conclusion of the contract, unless otherwise agreed, the list prices of XION valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).

3.3. Unless explicitly agreed otherwise, invoiced amounts shall be due for payment without any deduction, once the goods are made available for delivery. If the Customer fails to make a payment when due, interest of 5% p.a. shall be charged on the outstanding amounts from the due date; the right to claim of higher interest rates and further damages in the event of a default shall remain unaffected.

3.4. Any set-off of counterclaims by the Customer or the retention of payments due to such claims is only permissible to the extent that the counterclaims are undisputed or have been finally established.

3.5. XION is entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the Customer and which jeopardize the payment of the outstanding claims of XION by the Customer from the respective contractual relationship (including from other individual orders to which the same framework contract applies).

4. Delivery

4.1. Deliveries shall be made ex works.

4.2. Periods and dates for deliveries and services stated by XION are always only approximate, unless a fixed period or date has been explicitly promised or agreed. In the case of shipment, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.

4.3. If the Customer is in default of acceptance, he shall be obligated to compensate XION for any additional expenses incurred as a result of the default of acceptance, including storage costs. In case of storage by XION, the storage costs amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. XION reserves the right to assert further claims.

4.4. XION may require the Customer to extend delivery and service periods or to postpone delivery and service dates by the period of time corresponding to the period during which the Customer fails to fulfil its contractual obligations to XION.

4.5. XION shall not be liable for the impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time the contract was concluded (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, lack of manpower, energy or raw materials, difficulties in the procurement of necessary official approvals, official measures or the lack of, incorrect or untimely delivery by suppliers) for which XION is not responsible. If such events make XION's delivery or service substantially more difficult or impossible and the hindrance is not only of a temporary nature, XION shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or service periods shall be extended or the delivery or service dates postponed, by the period of the hindrance plus a reasonable start-up period. If acceptance of the delivery or service cannot be reasonably expected of the Customer as a result of the delay, the Customer may withdraw from the contract by immediate written declaration to XION.

4.6. XION shall be entitled to make partial deliveries if the partial delivery can be used by the Customer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the Customer does not incur any substantial additional expenses or costs as a result thereof or XION assumes these costs.

5. Place of Performance, Dispatch, Packaging, Passing of Risk

5.1. Unless otherwise agreed upon, the place of performance for all obligations arising from the contractual relationship shall be the place of dispatch of the goods.

5.2. The choice of the mode of dispatch and packaging shall be at the dutiful discretion of XION.

5.3. The risk shall pass to the Customer at the latest when the delivery item is handed over to the forwarder, carrier or other third party appointed to carry out the shipment (whereby the start of the loading process shall be decisive). This shall also apply if partial deliveries are made or if XION has taken over other services (e.g. dispatch or installation). If dispatch or handover is delayed due to circumstances for which the Customer is responsible, the risk shall pass to the Customer from the day on which the delivery item is ready for dispatch and XION has notified the Customer accordingly.

5.4. XION will only insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks at the explicit request of the Customer and at the Customer's expense.

6. Warranty; Defects

6.1. The warranty period shall be one year from delivery.

6.2. The delivered items shall be carefully inspected immediately after delivery to the Customer or to a third party designated by the Customer. They shall be deemed approved by the Customer with regard to obvious defects or other defects that would have been recognizable in an immediate, careful inspection if XION does not receive a written notice of defects within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Customer if the notice of defects is not received by XION within seven working days of the time at which the defect became apparent; if – with normal use – the defect was already recognizable to the Customer at an earlier point in time, this earlier point in time shall, however, be decisive for the commencement of the notice period. At XION's request, a disapproved delivery item shall be returned to XION carriage paid. In the event of a justified notice of defects, XION shall reimburse the costs of the cheapest way of shipping; this shall not apply if the costs increase because the delivery item is located at a location other than the location of the intended use.

6.3. In the event of quality defects of the delivered goods, XION shall, at its choice to be made within a reasonable period of time, first be obliged and entitled to repair or replace the delivered goods. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement, the Customer may withdraw from the contract or reduce the purchase price appropriately.

6.4. The warranty shall lapse if the Customer changes the delivery item or has it changed by third parties without XION's consent and if this makes it impossible or unreasonably difficult to remedy the defect. In any case, Customer shall bear the additional costs of remedying the defect resulting from the change.

7. Liability

7.1. XION is not liable in the case of slight negligence of its corporate bodies, legal representatives, employees or other vicarious agents, as long as it is not a violation of essential contractual obligations. Essential to the contract are the obligation to deliver the delivery item on time, insofar as a fixed delivery date has been agreed, the absence of defects of the delivery item which more than insignificantly impair its functionality or fitness for use, as well as obligations to provide advice, protection and care, which are intended to enable the Customer to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the Customer's personnel or to protect the Customer's property from considerable damage.

7.2. To the extent XION is principally liable for damages in accordance with the above Clause 7.1, this liability shall be limited to contractually typical and foreseeable damages. Furthermore, indirect damages and consequential damages resulting from defects of the delivery item shall only be compensated if such damages can typically be expected when the delivery item is used as intended.

7.3. The above exclusions and limitations of liability shall apply to the same extent for the benefit of the corporate bodies, legal representatives, employees and/or other vicarious agents of XION.

7.4. To the extent that XION provides technical information or acts in an advisory capacity and such information or advice is not part of the contractually agreed scope of performance/services owed by XION, this shall be done free of charge and XION shall not be liable in any manner whatsoever.

7.5. The limitations of this Clause 7 do not apply to the liability of XION for intentional conduct, for guarantees given by XION, for injury to life, limb or health or under the Product Liability Act (Produkthaftungsgesetz) or similar mandatory foreign product liability law.

8. Retention of Title

8.1. XION retains legal title in the goods delivered by XION to the Customer (hereinafter referred to as "Retained Goods") until all current and future claims of XION against the Customer arising from the business relationship have been fully paid.

8.2. The Customer is entitled to dispose of the Retained Goods in the ordinary course of business. Pledges and transfers by way of security and/or the creation of other rights in rem are not permitted.

8.3. In the event that the Retained Goods are resold, the Customer hereby assigns to XION by way of security assignment the claims against the respective purchaser resulting from such sale. The same applies to other claims which take the place of the Retained Goods or otherwise arise with regard to the Retained Goods, such as insurance claims or claims arising from unlawful acts. XION revocably authorizes the Customer to collect the claims assigned to XION in the Customer's own name. XION may only revoke this authorisation in the event of a security enforcement.

8.4. If Customer becomes aware that third parties are accessing or intend to access the Retained Goods, in particular by seizure, Customer shall immediately inform them of XION's ownership and notify XION thereof.

8.5. XION will release the Retained Goods as well as the claims taking their place insofar as their value exceeds the amount of the secured claims by more than 50%. The selection of the securities to be released shall be made by XION.

8.6. If XION withdraws from the contract as a result of a Customer's conduct in breach of the contract, XION shall be entitled to demand the return of the Retained Goods.

9. Final Provisions

9.1. For all disputes arising from the business relationship between XION and the Customer, the Berlin District Court (Landgericht Berlin) shall have exclusive jurisdiction.

9.2. The relationship between XION and the Customer shall be exclusively governed by the laws of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) shall not apply.