XI-MACHINES - Terms & Conditions [en]

Scope

The offers of XI-MACHINES GmbH are directed exclusively to business clients (entrepreneurs) and not to consumers. Accordingly, these General Terms and Conditions address corporate customers only.
All supplies, services, and offers by XI-MACHINES GmbH, Verbindungsweg 23c in 25469 Halstenbek (hereinafter: "Seller") are made exclusively on the basis of these General Terms and Conditions. These are an integral part of all -contracts concluded by the Seller with its contracting 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 upon specifically again.
Terms and conditions of the Buyer or third parties do not apply, even if the Seller does not object to their validity separately in individual cases. Even if the Seller refers to a letter containing 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 Conclusion of 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-binding and subject to change, unless they have been explicitly marked as 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 accepts this offer. Acceptance is effected by sending an order confirmation and may take place within fourteen days after receipt of the order/purchase order.
The legal relationships between the Seller and the Buyer are governed solely by the purchase agreement concluded in writing or in text form in accordance with Section 2.1, including these General Terms and Conditions. This represents the entire understanding between the contracting parties regarding the subject matter of the contract. Verbal commitments made by the Seller prior to the conclusion of this contract are legally non-binding, and verbal agreements between the contracting parties are replaced by the written contract, unless it is explicitly stated that they remain valid.
Additions and amendments to the agreements reached, including these General Terms and Conditions, must be made in text form to come into effect. With the exception of managing directors or authorized signatories, the Seller's employees are not authorized to reach any deviating verbal agreements. Transmission via telecommunication, in particular by e-mail, is sufficient to comply with the text form requirement.
Details provided by the Seller regarding the subject matter of the supply or service (e.g. weights, dimensions, utility values, load capacity, tolerances, and technical data) as well as depictions thereof (e.g. drawings and figures) are only approximations, unless exact correspondence is a prerequisite for usability for the contractually stipulated purpose. They are not guaranteed characteristics, but descriptions or designations of the supply or service. Customary deviations and deviations resulting from legal provisions or representing technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair usability for the contractually intended purpose.
The Seller reserves ownership or copyright to all offers and cost estimates provided by the Seller, as well as drawings, figures, calculations, brochures, catalogues, models, tools, and other documents and aids 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. Upon demand by the Seller, the Buyer shall return these items in their entirety to the Seller and destroy any copies made if they are no longer required by the Buyer in the ordinary course of business or if negotiations do not result in the conclusion of a contract.

Prices and Payment

Prices apply to the scope of services and supplies stated in the order confirmations. Additional or special services will be invoiced separately. Prices are quoted in EURO or the currency specified in the order confirmation ex works plus packaging, statutory value-added tax, customs duties for export deliveries as well as fees, any applicable certificate costs, and other public charges.
Advance payment is agreed as the payment method unless explicitly agreed otherwise in writing. The Seller will send the advance payment invoice together with the order confirmation.
Invoice amounts are to be paid within the payment period specified in the order confirmation or invoice without any deductions. Unless a specific payment period has been agreed upon or specified, invoice amounts are due for payment within 30 days of the invoice date without deduction. Payment shall be made electronically/cashless via the payment channels provided by the Seller in the order confirmation or invoice. The date of receipt of funds in the Seller's bank account is decisive for the payment date. If the Buyer fails to pay by the due date, interest shall be charged on the outstanding amounts from the due date at a rate of 9 percentage points p.a. above the respective base interest rate (Sec. 288 (2) of the German Civil Code - BGB) the right to assert higher interest rates and further damages in the event of default remains unaffected.
Offsetting against counterclaims by the Buyer or the withholding of payments on account of such claims is only permissible insofar as the counterclaims are uncontested or have been established by final legal judgment.

Delivery and Delivery Time

Insofar as advance payment has been agreed, the Seller will not begin processing the purchase contract until the advance payment invoice has been paid in full.
Deliveries are made as standard by shipment in accordance with CPT (Incoterms 2020) to the delivery address specified by the Buyer free kerbside, unless an explicit agreement to the contrary has been made. The incurred freight, packaging, customs, and processing costs shall be invoiced separately to the Buyer.
Periods and deadlines proposed by the Seller for supplies and services are always approximate only, unless a fixed period or fixed deadline has been explicitly promised or agreed upon. Insofar as shipment has been agreed, delivery periods and delivery dates refer to the time of handing over to the forwarder, carrier, or other third party commissioned to carry out the transport.
The Seller may – without prejudice to its rights arising from default on the part of the Buyer – demand from the Buyer an extension of supply and service periods or a postponement of supply and service deadlines by the period in which the Buyer fails to fulfill its contractual obligations towards the Seller.
The Seller is not liable for impossibility of delivery or for delivery delays insofar as these were caused by force majeure or other events unforeseeable at the time the contract was concluded (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures, or non-delivery, incorrect delivery, or late delivery by suppliers) for which the Seller is not responsible. Insofar as such events make delivery or performance significantly more difficult or impossible for the Seller and the hindrance is not merely of temporary duration, the Seller is entitled to withdraw from the contract. In the case of hindrances of temporary duration, the periods for supplies or services shall be extended or the deadlines postponed by the period of hindrance plus a reasonable start-up period. Insofar as the Buyer cannot reasonably be expected to accept the delivery or service as a result 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:
1. the partial delivery is usable for the Buyer within the scope of the contractually intended purpose,
2. delivery of the remaining ordered goods is ensured, and
3. this does not result in any significant extra expenditure or additional costs for the Buyer (unless the Seller agrees to take on these extra costs).
If the Seller is in default with a delivery or service, or if a delivery or service becomes impossible for whatever reason, the Seller's liability for damages is limited in accordance with Section 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 shall bear the costs for the unsuccessful shipment. This does not apply if the Buyer is not responsible for the circumstance that led to the impossibility of delivery or if the Buyer was temporarily prevented from accepting the offered service.

Place of Performance, Dispatch, Packaging, Transfer of Risk, Acceptance

The place of performance for all obligations arising from the contractual relationship is Halstenbek, unless specified otherwise. If the Seller is also responsible for installation, the place of performance is the location where the installation is to take place.
The mode of dispatch and packaging are subject to the due discretion of the Seller.
Fulfillment of obligations under the Packaging Act:
1. Pursuant to Sec. 15 (1) Sentence 4 of the German Packaging Act (VerpackG), it is agreed for deliveries within the Federal Republic of Germany that the obligation to take back and properly recycle non-system-participating packaging supplied by the Seller (such as transport, outer, and sales packaging) is transferred to the Buyer, who shall arrange for its recycling at their own expense. For cross-border deliveries, the Buyer as importer assumes sole responsibility for compliance with the packaging, registration, and disposal regulations applicable in the destination country. Returning packaging to the Seller requires prior written agreement and shall take place at the Buyer's expense at the Seller's place of business.
Risk passes to the Buyer at the latest upon handing over the delivery item (with the start of loading being decisive) to the forwarder, carrier, or other third party commissioned to carry out the shipment. This also applies if partial deliveries are made or if the Seller has assumed other services (e.g. shipping or installation). If shipment or handover is delayed due to a circumstance caused by the Buyer, risk passes to the Buyer from the day on which the delivery item is ready for shipment and the Seller has notified the Buyer accordingly.
Storage costs after the transfer of risk shall be borne by the Buyer. In the case of storage by the Seller, storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored for each completed week. The right to assert and prove higher or lower storage costs remains reserved.
The consignment will only be insured by the Seller 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 accepted if:
1. delivery and, insofar as the Seller is also responsible for installation, installation has been completed,
2. the Seller has notified the Buyer accordingly with reference to deemed acceptance pursuant to this Section 5.7 and requested acceptance,
3. twelve working days have passed since delivery or installation, or the Buyer has started using the purchased item (e.g. has taken the delivered system into operation) and in this case six working days have passed since delivery or installation, and
4. the Buyer has omitted to proceed with acceptance within this period for a reason other than a defect reported to the Seller that renders the use of the purchased item impossible or significantly impairs it.

Warranty, Material Defects

The warranty period is one year from delivery or, insofar as acceptance is required, from acceptance.
The delivered items must be inspected carefully immediately after delivery to the Buyer or to the third party designated by the Buyer. They are deemed approved by the Buyer with regard to obvious defects or other defects that would have been discernible upon immediate, careful inspection, unless the Seller receives a written notification of defects within seven working days after delivery. Regarding other defects, the delivery items are deemed approved by the Buyer unless the notification of defects reaches the Seller within seven working days of the time at which the defect became apparent; however, if the defect was already discernible to the Buyer at an earlier point in time during normal use, this earlier point in time is decisive for the start of the notice period. Upon request by the Seller, a rejected delivery item shall be returned carriage paid to the Seller. In the case of a justified notice of defect, the Seller shall reimburse the costs of the cheapest shipping route; this does not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
In the event of material defects in the delivered items, the Seller is obliged and entitled, at its choice to be made within a reasonable period, to repair or deliver a replacement. The Seller is entitled to inspect the rejected products at its own option on the Buyer's premises or on its own premises. Within the scope of defect rectification or replacement delivery, the Seller is entitled, at its own option, to use new, as-new, or tested used spare parts and components. If an original component is no longer available or procurable on the market, the Seller may replace it with a component of comparable function and performance. Should rectification fail, i.e. in the event of impossibility, unreasonableness, refusal, or undue delay of repair or replacement delivery, the Buyer may withdraw from the contract or reduce the purchase price accordingly.
Before defect rectification measures are carried out, the Buyer is obliged to remove all components and products not supplied or installed by the Seller and to create complete backup copies of files and programs. The Seller is liable neither for the loss or damage of unremoved third-party components nor for the restoration of Buyer data, unless explicitly agreed upon in writing.
The warranty becomes void if the Buyer modifies the delivery item without the Seller's consent (e.g. by changing the configuration of the delivered product) or has it modified by third parties, rendering defect rectification impossible or unreasonably difficult. In any case, the Buyer shall bear the additional costs of defect rectification resulting from the modification.
In the event of defect rectification, replacement delivery, or advance component replacement, the Buyer is obliged to return any removed or replaced components or devices to the Seller within 14 calendar days of receiving the replacement delivery. If the replaced parts are not received by the Seller within this period, the Seller is entitled to invoice the Buyer for the provided replacement component at the current list price.
Any delivery of used items agreed with the Buyer in individual cases is made to the exclusion of any warranty for material defects.

Guarantee

Over and above the statutory liability for material defects pursuant to Section 6, the Seller grants the first end user a voluntary manufacturer guarantee of 24 months for the proper functionality and durability of the delivered systems and the components installed therein. The guarantee begins on the date the contract is concluded (date of the order confirmation).
The guarantee applies exclusively to defects attributable to material or manufacturing faults. Excluded from the guarantee are:
1. improper application or modifications to the delivered product configuration,
2. damage caused by force, external influences, or foreign objects,
3. damage resulting from failure to observe the user manual,
4. normal wear and tear as well as damage caused by fire, lightning, overvoltage, moisture, or faulty software.
The Seller's guarantee obligation consists exclusively of the free repair of the delivered system within the guarantee period.
Advance Component Replacement Service: As a special service, an advance component replacement service is available to the Buyer during the first 12 months of the guarantee period in the regions EU, CH, Canada, and USA. In the event of a failure of a covered component (graphics cards, RAM, SSDs, power supplies, fans), the Seller will dispatch a replacement component immediately after guarantee claim registration.
1. Within the scope of guarantee services and the advance replacement service, the Seller is entitled to use new, as-new, or technically faultless used as well as refurbished components. Should a component no longer be available, replacement will be made with a functionally and technically at least comparable model.
2. The Buyer is solely responsible for the proper installation and removal of replacement components. Replacement must be carried out by technically qualified personnel in compliance with standard protective measures (in particular ESD protection). Damage caused by improper installation or removal is excluded from the guarantee.
The guarantee claim exists only upon presentation of proof of purchase. Claiming guarantee performance requires prior notification of the guarantee case to the Seller in text form (e.g. by e-mail) stating the serial number of the affected system.

Software

When software is delivered, the special licensing and other conditions of the manufacturer apply in addition to these General Terms and Conditions. By taking delivery of the software, the Buyer explicitly acknowledges their validity.

Property Rights

In accordance with this Section 9, the Seller warrants that the delivery item is free from industrial property rights or third-party copyrights. Each contracting partner shall notify the other contracting partner immediately in writing if claims are asserted against them for infringement of such rights.
In the event that the delivery item infringes an industrial property right or third-party copyright, the Seller shall, at its option and expense, modify or replace the delivery item in such a way that third-party rights are no longer infringed, but the delivery item still fulfills the contractually agreed functions, or procure the right of use for the Buyer by concluding a license agreement. If the Seller fails to do so within a reasonable period, the Buyer is entitled to withdraw from the contract or reduce the purchase price accordingly. Any claims for damages by the Buyer are subject to the limitations set forth in Section 10 of these General Terms and Conditions.
In the event of legal infringements by products of other manufacturers delivered by the Seller, the Seller shall, at its option, assert its claims against the manufacturers and sub-suppliers for the account of the Buyer or assign them to the Buyer. Claims against the Seller exist in these cases in accordance with this Section 9 only if judicial enforcement of the aforementioned claims against the manufacturers and sub-suppliers was unsuccessful or is futile, for example due to insolvency.

Liability for Damages due to Fault

The Seller's liability for damages, on whatever legal grounds, in particular due to impossibility, default, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations, and tortious acts, is limited in accordance with this Section 10 insofar as fault is relevant in each case.
The Seller is not liable in cases of simple negligence on the part of its organs, legal representatives, employees, or other vicarious agents, insofar as this does not involve a breach of cardinal contractual obligations. Cardinal obligations include the obligation for timely delivery and installation of the delivery item, its freedom from defects that impair its functionality or serviceability more than insignificantly, as well as advisory, protective, and custodial care obligations intended to enable the Buyer to use the delivery item in accordance with the contract or aimed at protecting the life or limb of the Buyer's personnel or protecting its property from significant damage.
Insofar as the Seller is liable for damages on the merits pursuant to Section 10.2, such liability is limited to damages foreseen by the Seller upon conclusion of the contract as a possible consequence of a breach of contract or which the Seller should have foreseen when applying customary care. Indirect damages and consequential losses resulting from defects in the delivery item are furthermore only eligible for compensation insofar as such damage is typically to be expected when using the delivery item as intended.
In cases of liability for simple negligence, the Seller's obligation to compensate for material damage and resulting further financial loss is limited to the damage contractually foreseeable upon conclusion of the contract, but maximally to the coverage amount of the Seller's product liability or public liability insurance.
The above liability exclusions and limitations apply to the same extent in favor of the organs, legal representatives, employees, and other vicarious agents of the Seller.
Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed, this is done free of charge and to the exclusion of any liability.
The limitations of this Section 10 do not apply to the Seller's liability for intentional conduct, for guaranteed characteristics, for injury to life, body, or health, or under the Product Liability Act.

Retention of Title

Title to the products remains reserved until complete payment has been made. Prior to the transfer of title, the Buyer is not entitled to pledge, assign as security, process, or transform the reserved goods.
If the Buyer defaults in whole or in part on one or more payments, ceases payments, or if an application is filed to open insolvency proceedings against its assets, the Buyer may no longer dispose of the reserved goods. In such a case, the Seller is entitled to withdraw from the contract without setting a grace period. Even without withdrawing from the contract, the Seller is entitled to demand recovery of the reserved goods or to revoke the Buyer's authority to collect receivables from resale.

Compliance with Export Control Regulations

All products (including hardware, software, and technology) supplied by the Seller are subject to the export, re-export, and import control regulations of the Federal Republic of Germany, the European Union, and – due to installed components and technologies – the export control regulations of the United States of America (in particular the US Export Administration Regulations – EAR) and other applicable international sanctions and embargo restrictions.
The Buyer undertakes to strictly comply with all applicable national and international export and re-export control regulations. If the Buyer intends to export, re-export, or transfer the delivered products to another country or to third parties, the Buyer is solely responsible for doing so and must obtain all necessary permits from the competent national and international authorities (e.g. BAFA, US Department of Commerce / BIS) at its own expense.
The Buyer guarantees that the delivered products will not be used directly or indirectly for prohibited purposes, transferred to persons or entities, or re-exported to countries that are prohibited or subject to embargoes under the respective applicable regulations of the EU, the USA, or other states (including sanctions and denied persons lists).
The refusal, revocation, or delay of an official export or import permit does not entitle the Buyer to withdraw from the contract or to assert claims for damages or other claims against the Seller.
Upon request, the Buyer is obliged to provide the Seller immediately with all information and documents (e.g. End User Certificates) required for compliance with export control regulations or for official applications.
The Seller assumes no liability for delivery delays or non-performance of contractual services caused by the Buyer failing to obtain and/or present necessary export licenses or export certificates at all or on time. If the Buyer fails to comply with its obligations under this Section and significant delays result, making adherence to the contract unreasonable for the Seller, the Seller may withdraw from the contract by written declaration to the Buyer.
The Buyer shall indemnify and hold harmless the Seller against all third-party claims resulting from the Buyer providing incomplete or incorrect information regarding export licenses and/or export certificates or violating applicable export laws, and shall compensate the Seller for all resulting damages.

Data Protection

The Buyer acknowledges that the Seller processes data from the contractual relationship in compliance with the provisions of the GDPR. Details on data processing can be found in the Seller's data protection policy.

Final Provisions

If the Buyer is a merchant, a legal entity under public law, or a public special fund, or has no general place of jurisdiction in the Federal Republic of Germany, 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, for claims against the Seller, Hamburg shall be the exclusive place of jurisdiction in these cases. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this regulation.
The legal relationships between the Seller and the Buyer are governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) dated April 11, 1980, does not apply.
Insofar as the contract or these General Terms and Conditions contain gaps/loopholes, those legally effective provisions shall be deemed agreed to fill these gaps which the contracting 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 gap.
These General Terms and Conditions are drafted in the German language. The English translation serves information purposes only. In the event of any discrepancies, contradictions, or conflicts of interpretation between the German and the English version, the German version shall prevail.