General Terms and Conditions of Delivery

1. General provisions

These General Terms and Conditions (“GTC”) of LXinstruments GmbH (“LX”) apply to all contracts for the delivery of goods, software and system solutions (“goods”) that a company (“client”) concludes with LX. They also apply to automated orders placed in the online shop. The Client’s General Terms and Conditions are hereby expressly rejected. They shall only apply insofar as LX has expressly agreed to them in writing. LX does not supply private end consumers. LX reserves its property rights and copyrights to cost estimates, drawings and other documents (documents) without restriction. The documents may only be made accessible to third parties with the prior consent of LX and, if the order is not placed with LX, must be returned or destroyed immediately upon request. This applies accordingly to the client’s documents; however, these may be made accessible to third parties to whom LX wishes to or has lawfully transferred (partial) deliveries or services. The client has the non-exclusive right to use standard software with the agreed performance characteristics in unmodified form on the agreed devices. The client may make backup copies without express agreement. Partial deliveries are permissible insofar as they are reasonable for the client.

2. Export control, data transfer

In order to comply with national, European or international regulations, LX may be obliged to check and keep records of where and for what purpose the ordered goods are used. This may also be necessary in order to comply with applicable export control regulations of suppliers (in particular in the USA). Depending on the security level, origin of the product and intended use, this may require, for example, an end-use certificate (EUS), such as form BIS-711, or a complete ITAR procedure. In such cases, the delivered goods must be treated in accordance with these regulations. In particular, all exclusions from or requirements for possible resale or re-export apply. According to EU Dual-Use Regulation and US export controls, forwarding may be prohibited. This is beyond our area of responsibility and does not constitute a defect. Delays due to missing or incomplete processing of such regulations by the customer regularly lead to delays in delivery. These cannot be attributed to LX. LX reserves the right to subsequently reject or cancel orders that do not meet these requirements, are assessed negatively or are processed slowly or incorrectly by the customer. The transfer of data to manufacturers is also approved in the cases described above or in comparable cases, even without explicit notification by the client, in order to enable the supplier to check compliance with local laws and regulations. In some cases, data transfer is already required at the time of a customer’s request for a quote. In these cases, LX is exempt from the obligations of the GDPR or derived national legislation regarding the processing of the enquiry or order.

3. Conclusion of contract

The terms and conditions for goods from LX are subject to change and non-binding. The presentation of goods in the online shop does not constitute a binding offer, but rather a non-binding invitation to the customer to place an order or request a written offer. The images of the products in the online shop may differ from their actual appearance (colour, size, etc.). We reserve the right to make technical changes and changes to the shape, colour and/or weight within reasonable limits. Despite all due care, typing errors or misleading wording may occur when creating descriptions in the online shop or when preparing an offer. It is therefore expressly pointed out that the manufacturer’s data sheets and descriptions in particular must be compared with the offer. These are attached to the offer or can be found on the website or in the online shop or are linked on the manufacturer’s website. Any discrepancies must be brought to the attention of LX or clarified with the manufacturer. The simple acceptance of one interpretation is excluded.

4. Prices and terms of payment

Prices are ex works and exclude packaging, shipping, insurance and the applicable statutory value added tax. If LX has undertaken installation or assembly and nothing else has been agreed, the client shall bear all necessary ancillary costs in addition to the agreed remuneration, such as travel expenses, costs for the transport of tools and personal luggage, and allowances. Payments shall be made to the LX account. The client may only offset claims that are undisputed or have been legally established. When concluding a contract via the online shop, various payment methods are suggested. When selecting a payment method, the respective terms and conditions of the payment method provider shall apply exclusively to the payment.

5. Retention of title

The items delivered (reserved goods) remain the property of LX until all claims against the client arising from the business relationship have been fulfilled. If the value of all security interests to which LX is entitled exceeds the amount of all secured claims by more than 20%, LX shall release a corresponding portion of the security interests at the client’s request. During the existence of the retention of title, the client is prohibited from pledging or transferring ownership by way of security. Resale by resellers in the ordinary course of business is only permitted on condition that the reseller secures the retention of title vis-à-vis its customers. Resale to financial institutions or leasing companies or similar is only permitted on condition that the debt-discharging payment is made directly to LX by the financial institution or leasing company. In the event of seizures, confiscations or other dispositions or interventions by third parties, the client must notify LX immediately. In the event of a culpable breach of essential contractual obligations by the client, in particular in the event of default in payment, LX shall be entitled to take back the goods after issuing a reminder; the client shall be obliged to surrender the goods. The repossession or assertion of the retention of title or the seizure of the goods subject to retention of title by LX does not constitute a withdrawal from the contract, unless LX has expressly declared this.

6. Deadlines for deliveries and default

Compliance with the agreed delivery deadlines is subject to the timely receipt of all documents to be supplied by the client, necessary approvals and releases, in particular plans, as well as compliance with the agreed terms of payment and other obligations by the client. If these conditions are not met in good time, the deadlines shall be extended accordingly; this shall not apply if LX is responsible for the delay. If the failure to meet the deadlines is due to force majeure, e.g. mobilisation, war, riots, official orders or similar events, e.g. strikes, lockouts, the deadlines shall be extended accordingly. This shall also apply in the event of corresponding events at suppliers without which delivery by LX is not possible. If LX is in default, the client may - provided it can prove that it has suffered damage as a result - demand compensation for each completed week of the delay of 0.2% each, but not more than 2% of the price for the part of the deliveries that could not be put into service due to the delay. Claims for compensation by the client that exceed the limits specified here are excluded in all cases of delayed delivery, even after the expiry of a grace period set by LX. This does not apply in cases of mandatory liability due to intent or gross negligence; this does not imply a change in the burden of proof to the detriment of the client. The client’s right to withdraw from the contract after the fruitless expiry of a grace period set by LX remains unaffected. If shipment or delivery is delayed by more than one month after notification of readiness for shipment at the request of the client, the client may be charged storage fees of 0.5% of the price of the delivery items for each month or part thereof, up to a maximum of 5% in total. The contracting parties shall remain free to provide evidence of higher or lower storage costs.

7. Transfer of risk

Even in the case of carriage paid delivery, the risk shall pass to the customer as follows: For deliveries without installation or assembly, upon provision of the goods for collection (Incoterms EXW). At the request and expense of the customer, deliveries will be shipped by LX and insured against the usual transport risks. LX will act on behalf of the customer in this regard; this does not change the transfer of risk. In the case of agreed delivery with installation or assembly, the transfer of risk shall take place at the latest on the day of acceptance at the customer’s premises. If the dispatch, delivery, commencement, execution of installation or assembly or acceptance at the customer’s premises is delayed for reasons for which the customer is responsible, or if the customer is in default of acceptance for other reasons, the risk shall pass to the customer upon occurrence of the delay.

8. Installation and assembly

Unless otherwise agreed in writing, the following provisions shall apply to installation and assembly:
1. The client shall bear the costs and provide the following in good time:
• all earthworks, construction work and other ancillary work not specific to the industry, including the necessary skilled and unskilled labour, building materials and tools,
• the items and materials required for assembly and commissioning, such as scaffolding, hoists and other equipment, etc.,
• energy, compressed air and water at the place of use, including connections, heating, lighting and telephone/internet connections,
• sufficiently large, suitable, dry and lockable rooms at the installation site for the storage of machine parts, equipment, materials, tools, etc., and appropriate work and recreation rooms for the installation personnel, including sanitary facilities appropriate to the circumstances; in addition, the client must take the same measures to protect the property of LX and the assembly personnel on the construction site as he would take to protect his own property,
• protective clothing and protective equipment required due to special circumstances at the assembly site.
2. Before the start of the assembly work, the client shall provide the necessary information about the location of concealed electricity, gas, water pipes or similar installations, as well as the necessary structural data, without being asked to do so. In particular, the client shall also provide information about necessary protective measures in good time and, if necessary, provide training.
3. Before the installation or assembly work begins, the supplies and items required for the work to be carried out must be available at the installation or assembly site, and all preparatory work must be sufficiently advanced before the start of the installation so that the installation or assembly can be started as agreed and carried out without interruption. Access routes and the installation or assembly site must be levelled and cleared.
4. If the installation, assembly or commissioning is delayed due to circumstances for which LX is not responsible, the client shall bear the reasonable costs for waiting time and any additional travel required by LX or the assembly personnel.
5. The client must immediately certify to LX the duration of the assembly personnel’s working time and the completion of the installation, assembly or commissioning.
6. If LX requests acceptance of the delivery after completion, the client must do so within two weeks. If this does not happen, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place if the delivery has been put into use, where applicable after completion of an agreed test phase.

9. Acceptance

Deliveries shall be accepted by the customer even if they have minor defects.

10. Warranty

LX shall be liable for defects, including the absence of warranted characteristics, as follows:
1. All parts or services whose usability is not only insignificantly impaired within 12 months - regardless of the operating time - from the date of transfer of risk as a result of circumstances prior to the transfer of risk shall be repaired, replaced or re-performed free of charge at the discretion of LX.
2. Warranty claims shall become time-barred 12 months after notification of the complaint; this must be reported to LX in writing without delay.
3. In the event of complaints about defects, payments by the client may be withheld to an extent that is reasonable in relation to the defects that have occurred. If the contract is part of a commercial enterprise, the client may only withhold payments if a complaint about defects is made and there is no doubt as to its justification.
4. LX shall be granted reasonable time and opportunity to remedy the defect. If this is refused, it shall be released from its warranty obligation in this respect.
5. If LX allows a reasonable grace period set for it to elapse without remedying the defect, the client may demand a reduction in payment (abatement).
6. The warranty does not cover natural wear and tear or damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, faulty construction preparation or special external influences not provided for in the contract, as well as non-reproducible software errors. If the client or third parties carry out improper modifications or repair work, no warranty shall be provided for these and the resulting consequences.
7. The warranty period for repairs, replacement deliveries or replacement services is 6 months; it shall run at least until the expiry of the original warranty period for the delivery item. Insofar as required by law, it shall be extended for those parts that cannot be operated properly due to the interruption by the duration of the interruption of operation caused by the repair, replacement delivery or replacement service.
8. The periods specified in clauses 1, 2 and 7 shall not apply if longer statutory periods that cannot be excluded apply.
9. Further warranty claims by the client against LX and its vicarious agents are excluded, unless mandatory by law; however, Art. 13 (Other liability) remains unaffected.

11. Industrial property rights and copyrights

If a third party asserts justified claims against the client due to the infringement of an industrial property right or copyright (hereinafter: property rights) by products delivered by LX and used in accordance with the contract, LX shall be liable to the client as follows: At its discretion, LX shall, at its own expense, either obtain a right of use for the product, modify the product so that the property right is not infringed, or replace the product. If this is not possible for LX under reasonable conditions, the product may be taken back against reimbursement of the purchase price. The above obligations of LX shall only apply if the client immediately notifies LX in writing of the claims asserted by the third party, does not acknowledge any infringement and LX reserves all defensive measures and settlement negotiations. If the client discontinues use of the product for reasons of damage mitigation or other important reasons, it is obliged to inform the third party that the discontinuation of use does not constitute an acknowledgement of an infringement of property rights. Claims by the client are excluded if it is responsible for the infringement of property rights. Claims by the client are also excluded if the infringement of property rights is caused by special specifications of the client, by an application that LX could not have foreseen, or by the fact that the product has been modified by the client or used in conjunction with products not supplied by LX. Further claims against LX are excluded. However, Art. 13 (Other liability) remains unaffected, as does the right to a reduction in price.

12. Reservation of self-supply, impossibility, contract adjustment

If, after conclusion of the contract, a permanent disruption occurs for which LX is not responsible, e.g. due to non-delivery by suppliers, LX shall be entitled to withdraw from the contract. This shall also apply if the cause already existed before the contract was concluded but was not known to LX. In such cases, the client shall be notified as soon as possible and any services already rendered shall be refunded. This shall not entitle the client to claim damages. If, as a result of mandatory legal regulations, the client is nevertheless entitled to claim damages, this shall be limited to a maximum of 10% of the value of that part of the delivery which cannot be put into useful operation due to the impossibility. This shall not apply in cases of mandatory liability due to intent, gross negligence or initial inability; this shall not entail a change in the burden of proof to the detriment of the client. The client’s right to withdraw from the contract remains unaffected.
If unforeseeable events within the meaning of Art. 4 No. 2 significantly change the economic significance or content of the delivery or have a significant impact on the operations of LX, the contract shall be adjusted appropriately in good faith. If this is not economically justifiable, LX shall be entitled to withdraw from the contract. If LX intends to exercise this right of withdrawal, it must notify the client immediately after becoming aware of the significance of the event, even if an extension of the delivery period had initially been agreed with the client.

13. Other liability

Claims for damages by the client, regardless of their legal basis, in particular those arising from positive breach of contract, breach of duties during contract negotiations and tort, are excluded. This shall not apply in cases of mandatory liability, e.g. under the Product Liability Act or in cases of intent, gross negligence, the absence of warranted characteristics or the breach of essential contractual obligations. However, compensation for the breach of essential contractual obligations shall be limited to the foreseeable damage typical for this type of contract, unless there is intent or gross negligence. The above provisions do not imply a change in the burden of proof to the detriment of the client.

14. Place of jurisdiction

If the client is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be, at LX’s discretion, the headquarters or branch office of LX. German law shall apply to the contractual relationships, excluding the UN Convention on Contracts for the International Sale of Goods.

15. Binding nature of the contract

Even if individual points of the contract are legally invalid, the remaining parts of the contract shall remain binding. This shall not apply if adherence to the contract would constitute an unreasonable hardship for one of the parties.