XI-MACHINES - Terms & Conditions [en]

Scope

XI-MACHINES serves only the business sector and not consumers. Accordingly, these General Terms and Conditions address corporate customers only.
All supplies, services and offers by XI-MACHINES GmbH, Lokstedter Steindamm 35 in 22529 Hamburg (hereinafter: "Seller") are made only on the basis of these General Terms and Conditions. The General Terms and Conditions are an integral part of all contracts concluded by the Seller with its contract partners (hereinafter "Buyer") regarding the supplies or services offered by the Seller. They also apply to all future supplies, services or offers made to the Buyer, even if they are not agreed specifically again.
Terms and conditions of the Buyer or third parties do not apply, even if the Seller does not contradict their validity separately in each individual case. Even if the Buyer refers to a letter containing the terms and conditions of the Buyer or a third party or makes reference to such, this does not constitute consent to the validity of such terms and conditions.

Offer and contract

Purchase enquiries can be submitted to the Seller by e-mail or by phone. The Seller will then draw up an offer according to the purchase enquiry and send it to the Buyer. All offers made by the Seller are non-committal and non-binding, unless they have been endorsed explicitly as being binding or contain a specific acceptance deadline. If the Buyer then sends an order/purchase order, this constitutes an offer by the Buyer to conclude a purchase agreement. A purchase agreement only comes into effect when the Seller has accepted this offer. The offer is accepted by sending an order confirmation within fourteen days after receiving the order/purchase order.
The legal relationships between the Seller and the Buyer are governed solely by the purchase agreement concluded in writing pursuant to point 2.1, including these General Terms and Conditions. This represents the entirety of all other understandings between the contracting parties regarding the subject of the contract. Verbal undertakings made by the Seller before this contract is concluded are without legal obligation, and spoken agreements between the contract parties are replaced by the written contract, unless it is explicitly stated that they remain valid.
Additions and amendments to the reached agreements including these General Terms and Conditions must be made in writing in order to come into effect. With the exception of managing directors or authorised signatories, the Seller's employees are not authorised to reach any deviating spoken agreements. Confirmation by telecommunication, particularly by fax or e-mail, is sufficient to comply with the written form requirement, insofar as the copy of the signed declaration is submitted.
Details made by the Seller about the subject of the supply or service (e.g. weights, dimensions, utility values, loading capacity, tolerances and technical data) together with depictions thereof (e.g. drawings and figures) are only approximations, unless precise correspondence is prerequisite for usability for the contractually stipulated purpose. They are not guaranteed qualities but descriptions or markings of the supply or service. Customary deviations and deviations resulting from legal provisions or depicting technical improvements are permissible, the same applies to replacing components with equivalent parts, insofar as they do not impair usability for the contractually stipulated purpose.
The Seller reserves ownership or copyright to all offers and cost estimates given by the Seller together with drawings, figures, calculations, brochures, catalogues, models, tools and other information and resources made available to the Buyer. The Buyer may not make these items available to third parties as such nor in terms of content, nor disclose them, nor use or duplicate them or have them used or duplicated by third parties without the explicit consent of the Seller. On demand from the Seller, the Buyer shall return these items to the Seller in their entirety and destroy any possibly made copies if these are no longer needed by the Buyer in the course of normal business or if negotiations fail to result in the conclusion of a contract.

Prices and payment

The prices are valid for the scope of services and supply stated in the order confirmations. Additional or extra services shall be invoiced separately. The prices are stated in EURO ex works. Packaging, statutory value added tax, customs duty for export deliveries together with fees and other public charges must be added to the prices.
Advance payment is agreed as the payment term unless explicitly agreed elsewhere in writing. The Seller sends the advance payment invoice together with the order confirmation.
Invoice amounts are to be paid within thirty days without any deductions, unless agreed otherwise in writing. Receipt of payment by the Seller is the determining factor for the date of payment. Cheques are not considered as payment until they have been cashed and accepted. If the Buyer has not paid by the due date, interest shall be charged on the outstanding amounts at a rate of 9% p.a. from the due date; this does not affect the assertion of higher interest rates and further damages in the event of default.
The offsetting of counterclaims by the Buyer or the withholding of payments on account of such claims is only permissible insofar as the counterclaims are not contested or have been established in law.

Delivery and delivery time

Insofar as advance payment was agreed, the Seller shall not begin to process the purchase agreement until the advance payment invoice has been paid in full.
Deliveries are made ex works free kerb to the stated delivery address.
Periods and deadlines proposed by the Seller for supplies and services are always only approximate, unless a fixed period or fixed deadline has been explicitly promised or agreed. Insofar as dispatch was agreed, the delivery periods and delivery deadlines refer to the time of handing over to the forwarder, haulier or other third party instructed to proceed with the transport.
Without prejudice to the Seller's rights arising from default on the part of the Buyer, the Seller can demand an extension of supply and service periods or a postponement of supply and service deadlines by the period in which the Buyer fails to fulfil its contractual obligations to the Seller.
The Seller is not liable for impossibility of delivery or for delivery delays for which the Seller is not answerable, caused by force majeure or other incidents that were not foreseeable at the point in time of concluding the contract (e.g. operating disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, shortages of manpower, energy or raw materials, difficulties in obtaining necessary official approvals, official measures or non-delivery, incorrect delivery or overdue delivery on the part of suppliers). As far as such incidents make delivery or service for the Seller difficult or impossible and the obstruction is not only of temporary duration, the Seller is entitled to withdraw from the contract. In the event of impediments that are of temporary duration, the periods for supplies and services shall be extended or the deadlines postponed by the period of impediment plus an appropriate start-up period. Insofar as the Buyer cannot be reasonably expected to accept the delivery or service on account of the delay, the Buyer may withdraw from the contract by submitting immediate written notification to the Seller.
The Seller is only entitled to make partial deliveries if
- the Buyer can make use of the partial delivery within the scope of the contractually intended purpose,
- delivery of the remaining ordered items is safeguarded and
- this does not result in any significant extra expenditure or additional costs for the Buyer (unless the Seller has agreed to take on these extra costs).
If the Seller is in default of delivery or service or if a delivery or service should be impossible for the Seller for any reason whatsoever, the Seller's liability is limited to compensation pursuant to point 10 of these General Terms and Conditions.
If the transport company returns the dispatched goods to the Seller because delivery to the Buyer was not possible, the Buyer pays the cost of the unsuccessful delivery. This does not apply if the Buyer is not answerable for the circumstances that made delivery impossible or if the Buyer was temporarily prevented from accepting the offered service.

Place of fulfilment, dispatch, packaging, passing of risk, acceptance

The place of fulfilment for all obligations arising out of the contractual relationship is Hamburg, unless stipulated otherwise. If the Seller is also responsible for installation, the place of fulfilment is the place where the installation is to take place.
Shipping and packaging are subject to the due discretion of the Seller.
Risk passes to the Buyer at the latest on handing over the delivery item to the forwarder, haulier or other third party instructed to proceed with the transport (with the start of loading being the determining factor). This also applies in the event of partial deliveries or if the Seller has assumed other services as well (e.g. dispatch and installation). If dispatch or handover is delayed due to circumstances whose cause lies with the Buyer, risk passes to the Buyer on the day on which the delivery item is ready for dispatch and the Seller has notified the Buyer accordingly.
The Buyer shall pay all warehouse charges after the passing of risk. When stored by the Seller, the warehouse charges for each completed week shall amount to [0.25%] of the invoice amount of the items being stored. The right to claim additional storage costs or to request proof of lower storage costs remains reserved.
The Seller shall only take out insurance for the consignment against theft, breakage, transport, fire and water damage or other insurable risks at the explicit request and expense of the Buyer.
Insofar as acceptance has to take place, the purchased item is deemed to be accepted if
- delivery has been completed, together with installation insofar as the Seller is also responsible for installation,
- the Seller has notified the Buyer accordingly with reference to deemed acceptance pursuant to this point 5 and has called upon the Buyer to proceed with acceptance,
- [twelve] working days have passed since delivery or installation or since the Buyer began to use the purchased item (e.g. has started to operate the supplied machine) and in this case [six] working days have passed since delivery or installation and
- the Buyer has omitted to proceed with acceptance within this period for a reason other than a defect notified to the Seller that would render use of the object impossible or is a significant hindrance to its usage.

Warranty, redhibitory defects

The warranty period is twelve months from delivery or from acceptance, insofar as acceptance is necessary.
The delivered items must be examined carefully immediately after delivery to the Buyer or to the third party designated by the Buyer. They are deemed to be approved by the Buyer with regard to visible defects or other defects that would have been discernible with carefully immediate examination, unless the Seller receives a written notification of defects within seven working days after delivery. As far as other defects are concerned, the delivered items are deemed to be approved by the Buyer unless the Seller receives the notification of defects within seven working days from the point in time at which the defect became apparent; however, if the defect was apparent for the Buyer during normal use already at an earlier point in time, this earlier point in time determines the start of the notification period. Any delivery item subject to complaint shall be returned carriage paid to the Seller at the Seller's request. In case of a justified notification of defects, the Seller shall refund the costs for the least expensive shipment; this does not apply if the costs are increased because the delivery item is located elsewhere than the site of intended use.
In case of redhibitory defects in the delivered items, the Seller is obliged and entitled to choose within a reasonable period of time between rectifying or replacing the delivered items. The Seller is entitled to examine the products subject to complaint on the Buyer's site or on the Seller's site, at the Seller's option. In the framework of defect rectification/replacement delivery, the Seller shall use spare parts or components that are new or as good as new in accordance with the respective customary industrial standard. If rectification should fail, i.e. in case of impossibility, unreasonableness, refusal or undue delay of the rectification or replacement delivery, the Buyer can withdraw from the contract or make a commensurable reduction in the purchase price.
Before defect rectification work is carried out, the Buyer is obliged to remove all components and products not fitted by the Seller and to produce backup copies of files and programs. The Seller is not liable for recovering the Buyer's data unless agreed explicitly in writing.
If the Seller is responsible for a defect, the Buyer can demand compensation under the circumstances stipulated in point 10.
In case of defects in parts from other manufacturers where licensing or any other reasons do not allow the Seller to proceed with rectification, the Seller shall assert the corresponding warranty claims against the manufacturers and suppliers for the Buyer's account, or assign such claims to the Buyer, at the Seller's option. In case of such defects, warranty claims against the Seller only exist under the other prerequisites and in accordance with these General Terms and Conditions if judicial enforcement of the above-mentioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. The statute of limitations relating to the Buyer's corresponding warranty claims against the Seller shall be suspended for the duration of the legal dispute.
The warranty becomes null and void if the Buyer modifies the delivered item without the Seller's consent (e.g. by changing the configuration of the supplied product) or has such modifications implemented by a third party so that defect rectification is thus rendered impossible or unreasonable. In any case the Buyer shall pay for the additional defect rectification costs caused by the modification.
In case of defect rectification/replacement delivery, the Buyer is obliged to return any removed/replaced components/units to the Seller.
Any delivery of used items agreed with the Buyer in individual cases shall be made with the exclusion of any guarantee for redhibitory defects.

Guarantee

Over and beyond the above-mentioned liability for redhibitory defects, the Seller gives a 24-month guarantee for the proper durability and serviceability of the delivered products under the following prerequisites. The guarantee can be extended in writing to 36 months in individual cases. The guarantee begins on the day on which the purchase agreement was concluded. The date stated on the order confirmation determines the start of the guarantee period.
Only the first end user is entitled to the guarantee.
The guarantee covers the functionality of all workstations supplied by the Seller and the components installed in the workstations and refers only to defects caused by material or manufacturing faults.
The guarantee does not cover
- inappropriate use (particularly changes to the delivered product configuration)
- use of force, damage by external factors or foreign objects
- damage from failure to comply with the user manual
- normal wear
- damage caused by fire, lightning, explosion or excess mains voltage, moisture of any kind, incorrect or lacking program software and/or processing data.
The Seller only guarantees to proceed with free repair of the delivered PC system during the guarantee period free of charge for the first end user.
Under the guarantee, the Seller offers an advance component replacement service during the first 12 months (for a standard 24-month guarantee) or during the first 18 months (during an extended 36-month guarantee) in the following countries: EU, CH, USA. Advance replacement service means: in the event of component failure under a registered guarantee claim, the Seller sends the Buyer a corresponding replacement component straight away (usually on the same day) so that the Buyer can submit the defective unit for repairs without haste. The Buyer bears sole responsibility for installation and removal of the components. The component advance replacement service is restricted to the following components: hard drives, graphic cards, main memories, power supply units.
The guarantee claim only applies on presentation of the product with proof of purchase. The guarantee shall only be fulfilled after registration of the corresponding claim. The guarantee claim can be registered on our website http://xi-machines.com.

Software
When software is delivered, the special licensing and other conditions of the manufacturer apply over and beyond these General Terms and Conditions. The Buyer explicitly accepts their validity on receiving delivery of the software.

Property rights

In accordance with this point 9, the Seller vouches that the delivered item is free of industrial property rights or third-party copyrights. Each contract partner shall inform the other contract partner immediately in writing if any claims are asserted due to the violation of such rights.
If the delivered item violates an industrial property right or third-party copyright, the Seller shall modify or replace the delivered item at the Seller's option and costs so that third-party rights are no longer violated but the delivered item still fulfils the contractually agreed functions, or the Seller shall obtain the usage right for the Buyer by concluding a license agreement. If this should not be achieved within an appropriate period of time, the Buyer is entitled to withdraw from the contract or make a commensurable reduction in the purchase price. Any compensation claims made by the Buyer are subject to the restrictions in point 10 of these General Terms and Conditions.
If such rights should be violated by products of other manufacturers delivered by the Seller, the Seller shall assert the corresponding claims against the manufacturers and suppliers for the Buyer's account, or assign such claims to the Buyer, at the Seller's option. In such cases, claims against the Seller only exist in accordance with this point 9 if judicial enforcement of the above-mentioned claims against the manufacturers and suppliers was unsuccessful or is futile, for example due to insolvency.

Liability for compensation caused by fault

The Seller's liability for compensation for any reason whatsoever is restricted in accordance with this point 10, particularly for impossibility, default, faulty or incorrect delivery, breach of contract, breach of obligations during contract negotiations and unlawful acts, insofar as there is a question of fault in each case.
The Seller is not liable in cases of simple negligence on the part of its management, legal representatives, employees or other vicarious agents insofar as this does not refer to breach of cardinal contract obligations. Cardinal obligations refer to the obligation for punctual delivery and installation of the delivered item, freedom of defects in the delivered item which would impair its functionality or serviceability to a more than insignificant extent, together with advisory, protective and custodial care obligations that should allow the Buyer to proceed with contractual use of the delivered item or are intended to protect the life and limb of the Buyer's personnel or protect the Buyer's property from material damage.
Insofar as the Seller is liable for compensation on the grounds of and in accordance with point 10.2, such liability is limited to damages foreseen by the Seller on conclusion of the contract as a possible consequence of breach of contract or which the Seller should have foreseen on applying due care and attention. Furthermore, indirect damages and consequential loss resulting from defects in the delivered item are only eligible for compensation insofar as such damage can be typically expected when using the delivered item for the intended purpose.
In case of liability for simple negligence, the Seller's obligation to compensate for material damage and resulting further pecuniary loss is limited to an amount of €250,000 for each case of damage (corresponding to the current coverage amount in the Seller's product liability insurance or liability insurance), even if this refers to breach of cardinal contract obligations.
The above-mentioned liability exclusions and limitations apply to the same extent in favour of the Seller's management, legal representatives, employees and other vicarious agents.
Insofar as the Seller gives technical information or acts in an advisory capacity and such information or advice is not part of the contractually agreed scope of services owed by the Seller, this is done free of charge and to the exclusion of any liability.
The limitations of this point 10 do not apply to the Seller's liability for wilful conduct, guaranteed characteristics, for damage to life, body or health or under the product liability law.

Retention of title
Title to and ownership of the products is retained until complete payment has been made. Prior to the transfer of title, the Buyer is not entitled to pledge, assign as collateral, process or modify the reserved goods. The Buyer is no longer allowed to dispose of the reserved goods on defaulting partly or completely with one or several payments, on ceasing to make payments or if an applica-tion is filed to institute insolvency proceedings against the Buyer's assets. In this case, the Seller is entitled to withdraw from the contract with no obligation to set the customer a deadline for making the payments. Even without withdrawing from the Contract, the Seller is entitled to demand recov-ery of the reserved goods or to revoke the customer's permission to collect receivables from re-sale.

Compliance with export regulations

All products and services supplied by the Seller are subject to the export control regulations of the Federal Republic of Germany together with export and import control regulations of the countries from which or to which they are delivered or in which they are used. The Seller and Buyer under-take to comply with the regulations applicable to the contractual relationship between them. If the Buyer wants to export the supplied product from the country where it was received, the Buyer must comply with the corresponding import or re-export regulations. The Buyer alone is responsible for compliance with these regulations. The denial of export permits does not entitle the Buyer to with-draw from the contract.
The Seller bears no liability for delivery delays or the non-performance of contractual services caused by the Buyer's failure to obtain and/or present necessary export licences or export certifi-cates at all or on time. If the Buyer fails to fulfil its obligations arising from point 12.1. resulting in significant delays e.g. due to missing export licences so that the Seller can no longer be reasona-bly expected to adhere to the contract, the Seller can withdraw from the contract by submitting an immediate written declaration to the Buyer.
The Buyer shall indemnify and compensate the Seller for all third-party claims resulting from the Buyer providing incomplete or incorrect information about export licences and/or export certifi-cates or resulting from the Buyer infringing relevant export laws.

Data protection
The Buyer takes note of the fact that the Seller processes data from the contractual relationship in compliance with the stipulations made in the GDPR. Details about data processing can be found in our data protection statement.

Final provisions

If the Buyer is a businessman, a legal entity under public law or a public special fund or has no general place of jurisdiction in the Federal Republic of Germany, then the place of jurisdiction for any disputes arising from the business relationship between the Seller and the Buyer shall be Hamburg or the Buyer's place of business, at the Seller's option. However, in the event of claims against the Seller, Hamburg is the sole place of jurisdiction in these cases. This provision does not affect mandatory statutory regulations regarding sole places of jurisdiction.
The relationships between the Seller and the Buyer are governed solely by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts of International Sale of Goods (CISG) dated 11 April 1980 does not apply.
Insofar as the contract or these General Terms and Conditions contain any loopholes, the loopholes are deemed to be filled by those legally effective provisions which the contract partners would have agreed according to the commercial objectives of the contract and the purpose of these General Terms and Conditions if they had been aware of the loophole.