General Sales Conditions of xpuris systems GmbH, as of: April 2024
§ 1 General, Area of Applicability
(1) These General Sales Conditions (GSC) apply for all of our business relations with our customers (“Contract Partner”). The GSC apply only if the Contract Partner is an entrepreneur (§ 14 of the German Civil Code (BGB)), a public-law legal entity or a public-law special fund. In connection with contracts for services and with contracts for work done and materials supplied, the “Contract Partner” in the sense of these GSC is also the party placing the order or the principal.
(2) These GSC apply in particular for contracts concerning the sale of individual exhaust gas filter systems as well as their installation at the Contract Partner, including assembly and activation.
(3) Insofar as nothing to the contrary is agreed upon, the GSC apply in the version valid at the time when the order is placed by the Contract Partner and which is accessible on xpuris systems GmbH’s website at www.xpuris.com or viewable on-site, including for similar future contracts and addenda, without us having to make reference thereto again in every single instance. Changes to these GSC will be notified to the Contract Partner in text form. They are deemed to have been approved if the Contract Partner does not make an objection in text form within 4 weeks of being notified about the change. We will draw its attention in particular to this consequence when making the notification.
(4) These GSC apply exclusively. deviating, contrary or augmenting General Terms & Conditions of the Contract Partner only become a part of the contract if and insofar as we have expressly consented to the application of the same. This consent requirement applies in every instance, for example even if we execute the delivery to the Purchaser without reservation, in knowledge of the Contract Partner’s GPC. The Contract Partner’s general purchasing conditions remain unacknowledged even if we do not expressly object thereto once more after receipt by us.
(5) In every instance, individual agreements entered into with the Contract Partner in the individual case (including supplementary agreements, addenda and amendments) have priority over these GSC. A written contract or our written confirmation is necessary for the contents of such agreements.
(6) Legally-relevant declarations and announcements which are to be made by the Contract Partner to us after entry into contract (e.g. setting deadlines, defect complaints, declaration of rescission or reduction) are to be made in written or text form (e.g. letter, email, fax). Statutory form stipulations and further evidence, particularly in the event of doubts about the identity of the party making the declaration, remain unaffected.
§ 2 Offer, Entry into Contract
(1) Our offers are subject to change and are non-binding insofar as they are not expressly designated as binding or do not include a particular acceptance deadline. Oral agreements by our employees only become binding as a result of our written confirmation. This also applies if we have given or made accessible to the Contract Partner technical documentation (e.g. drawings, calculations, references to DIN norms), other product descriptions or documents – including in electronic form. We hereby reserve the ownership rights and copyright in such documents and data.
(2) We can accept orders within 14 days of receipt.
(3) Information provided by us with regard to the subject of the delivery or service (e.g. weight, dimensions, use values, load-bearing capacity, tolerances and technical data) as well as our descriptions of the same (e.g. drawings and diagrams) are only approximately authoritative, insofar as no exact conformity is required for usage for the contractually-intended purpose.
They are not guaranteed characteristics, but rather descriptions or indications of the delivery or service. Customary deviations, and deviations which are made due to legal stipulations or constitute technical improvements, as well as the replacement of components with equivalent parts are permissible provided that they do not detrimentally affect usability for the contractually-intended purpose.
(4) If after entry into contract the Contract Partner requests another or supplementary service, this is to be recorded in a corresponding written addendum in order to be legally valid.
§ 3 Order Processing
(1) After receipt of the order confirmation, we will contact the Contract Partner promptly and jointly draw up a schedule for the processing of the service described in the offer. Insofar as nothing to the contrary is expressly promised, this schedule is non-binding.
(2) Insofar as we have promised a binding date for the completion of the services pursuant to the offer and are unable to adhere thereto for reasons not attributable to us, we will inform the Contract Partner of the same without undue delay and simultaneously stipulate the probable new completion date. If we are also unable to render our service by the new deadline either for reasons which are not attributable to us, we are entitled to rescind the contract in whole or in part; services which have been rendered up until that point in time are to be paid for, while advance payments towards services not commenced will be refunded by us to the Contract Partner.
(3) In particular, a reason for no-fault non-adherence to a temporal commitment is lack of the timely provision of information by our Contract Partner, lack of access to the Contract Partner's system, or the lack of provision of tools, pipes, supply and disposal connections, etc. for the assembly of the exhaust gas filter system (see § 5 hereof).
(4) If we are in default with our services, the statutory provisions apply. In any event, a warning by the Contract Partner is necessary.
§ 4 Prices, Payment Terms
(1) Insofar as nothing to the contrary is agreed upon in the individual case, our prices which are named at the respective time of entry into the contract, without deduction, plus statutory VAT, apply. Subject to a different agreement, the following due dates apply within the individual performance phases: The purchase price is due and to be paid within 14 days from invoicing and delivery or acceptance of the system. Payment must be made without discount deduction in such a way that on the due date we are able to dispose of the amount. The Contract Partner bears the costs of the payment transactions.
(2) Upon the expiry of the foregoing payment deadline, the Contract Partner is in default. Interest is to be levied on the remuneration at the respectively-applicable statutory default interest rate (§ 288.2 of the BGB) during the default. We hereby reserve the right to claim more extensive default damage and loss. Our claim for commercial maturity interest (§ 353 of the German Commercial Code (HGB)) remains unaffected against businesspeople.
(3) The Contract Partner is entitled to set-off rights or rights of retention only insofar as its claim has been finally determined in a legally-binding manner or is undisputed.
(4) We are entitled only to make outstanding deliveries or render outstanding services in return for payment in advance or the rendering of security if after entry into the contract we become aware of circumstances which are likely to significantly reduce the Contract Partner’s creditworthiness, consequently jeopardising payment of our open claims by the Contract Partner arising out of the respective contract relationship (including from other individual orders to which the same framework contract applies).
§ 5 Assembly, Activation of the System
(1) For the assembly and activation of a system at the Contract Partner, the Contract Partner must ensure that we receive access to all of the requisite technical and spatial facilities which are necessary for proper and safe assembly.
(2) The Contract Partner will name a contact partner who is responsible and available for all measures necessary in the framework of assembly and activation.
(3) The Contract Partner is obliged to prepare the system’s installation location in accordance with the joint agreements. It is obliged at its own expense to arrange the requisite pipework construction to connect and operate the system and the necessary supply and disposal (power, gas, water, etc.) in accordance with our stipulations. The Contract Partner is obliged to provide necessary assembly aids for the system (forklift, crane, etc.). The Contract Partner consents to insignificant encroachments into its building material or its existing facility in order to attach the system (drilling holes or similar).
(4) If the assembly of the system is delayed for reasons attributable to the Contract Partner, then we are entitled to demand compensation for the resulting damage and loss, including additional expenditure (e.g. journey and storage costs). For this purpose we charge a flat-rate compensation amount, as defined in the personal offer, per calendar day, commencing on the agreed assembly date. The right to prove a higher amount of damage and loss and our statutory claims remain unaffected; the flat-rate amount is to be set off against other monetary claims. The Contract Partner retains the right to prove that we have not suffered any damage or loss at all or only a significantly lower amount of damage or loss than the foregoing flat-rate amount.
(5) Insofar as assembly and activation are owed by us, the Contract Partner is not permitted without our prior consent to start operating the system independently after delivery but still during the assembly phase and before activation to be carried out by us, or otherwise to intervene in the assembly phase. The Contract Partner indemnifies us in this context against all damage and loss arising as a result of such an act.
§ 6 Transfer of Risk, Acceptance
(1) The risk of accidental loss or deterioration is transferred to the Contract Partner upon acceptance of the system.
(2) The purchase item is deemed to have been accepted when
▪ the delivery and, insofar as we also owe assembly and activation, the assembly are complete and the system has been put into operation for the first time by us,
▪ we have notified the Contract Partner of this, drawing attention to the acceptance fiction pursuant to this provision and have requested acceptance from the Contract Partner,
▪ 12 working days have lapsed since delivery or assembly or the Contract Partner has started using the purchase item (e.g. has put the system delivered into operation independently where activation was not owed by us) and in such case 6 working days have lapsed since delivery or assembly, and
▪ the Contract Partner has failed to accept within that period for a reason other than a defect notified to us which makes using the purchase item impossible or has a significant detrimental impact on its use.
§ 7 Retention of Title
(1) The retention of title agreed upon in the following serves as security for all our claims respectively existing at present and in future against the Contract Partner arising out of the supply relationship in existence between the parties concerning the exhaust gas filter system (including balance claims arising out of a current-account relationship limited to this supply relationship). The goods or the exhaust gas filter system sold by us remain(s) our property until full payment of all of our current and future claims arising out of the contract and an ongoing business relationship (secured claims).
(2) The goods subject to the retention of title may not be pledged to third parties, nor be transferred by way of security, before full payment of the secured claims. The Contract Partner is obliged to notify us in writing without undue delay if an application is filed to commence insolvency proceedings or insofar as third-party encroachments (e.g. distraints) occur regarding the system or goods belonging to us. The Contract Partner bears all of the costs which must be expended in order to eliminate the encroachment or to transport back the goods subject to retention of title, insofar as they are not reimbursed by third parties.
(3) In the event of contract-breaching behaviour by the Contract Partner, particularly in the case of non-payment of the purchase price due (default in payment), we are entitled to rescind the contract and/or demand delivery of the goods or the exhaust gas filter system due to retention of title, pursuant to the statutory provisions. The demand for handover does not simultaneously include declaration of rescission; rather, we are entitled merely to demand handover of the goods and to reserve the right to rescind. If the Contract Partner does not pay the purchase price due, we may only assert these rights if we have first set the Contract Partner a reasonable period and this has expired fruitlessly, or if such setting of a period can be dispensed with pursuant to the statutory provisions. The same applies if other circumstances arise which allow the inference of a significant deterioration in the Contract Partner’s financial situation and jeopardise our payment claim.
(4) The Contract Partner is obliged sufficiently to insure, at its expense and for our benefit, the goods subject to retention of title against natural hazards as well as against theft.
(5) The Contract Partner may only sell the goods subject to retention of title in the ordinary course of business in its normal business relations and as long as it is not in default, provided that the claims arising out of the onward sale pursuant to § 7 (7) below are transferred to us. The Contract Partner is not entitled to dispose in any other manner of the goods subject to retention of title.
(6) The retention of title extends to the products arising through processing, mixing or incorporating our goods at their full value, in which regard we are deemed to be the manufacturer. If third-party ownership rights remain in existence in the case of a processing, mixing or incorporation with third-party goods, then we acquire co-ownership in the ratio of the invoice values of the processed, mixed or incorporated goods. In addition, the same applies for the product arising as for the goods supplied subject to retention of title.
(7) Insofar as the law in the area where the goods are located does not permit a retention of title, we can exercise all of the rights which we are able to reserve in the delivery item. The Contract Partner is obliged to cooperate with all of the measures which we can take in order to protect its property and/or another security right in the delivery item.
§ 8 Contract Partner’s Warranty Claims
(1) The statutory provisions apply for the Contract Partner’s rights in the event of defects in the framework of the execution of the order, insofar as nothing to the contrary is stipulated in the following.
(2) The warranty period is one year from delivery, or, insofar as acceptance is necessary, from acceptance. This period does not apply for the Contract Partner’s compensation claims arising out of the loss of life, personal injury or damage to health, or out of breaches of obligation committed intentionally or with gross negligence by us or our vicarious agents, which shall become time-barred in each instance pursuant to the statutory provisions.
(3) The basis for our defect liability is the contents of the personal offer, including any addenda. We assume no liability for public statements by the manufacturer of the filter system or another third parties (e.g. advertising statements).
(4) The goods are to be checked carefully for defects and technical properties by the Contract Partner during acceptance. After the Contract Partner has conducted an agreed process for acceptance of the system, complaining about defects which were identifiable in the course of the agreed type of acceptance process is excluded.
(5) If a defect-rectification request is unjustified, we have a claim for reimbursement of the costs which have arisen, unless the lack of defectiveness could not be recognised by the Contract Partner.
§ 9 Other Liability
(1) Insofar as nothing to the contrary arises from these GSC, including the following provisions, we are liable pursuant to the statutory provisions for a breach of contractual and non-contractual obligations.
(2) We are liable for compensation – regardless of the legal ground – in the framework of fault-based liability in connection with intentional behaviour and gross negligence. In the case of simple negligence, subject to a more lenient liability standard, we are only liable pursuant to statutory provisions (e.g. for care in our own matters)
a) for damage and loss arising out of loss of life, personal injury or damage to health,
b) for damage and loss arising out of the not insignificant breach of a fundamental contractual obligation (obligation whose fulfilment is what makes the proper execution of the contract possible at all and on whose compliance the contract partner usually relies and may usually rely); in such case, our liability is limited to the respective sale price of the system, but at least to compensation of the foreseeable damage and loss typically arising. Fundamental obligations are deemed to be obligations whose fulfilment is what makes the proper execution of the contract possible at all and on whose compliance the Contract Partner may usually rely. Thus, these are obligations whose breach would jeopardise the achievement of the contract purpose.
(3) The liability limitations arising out of § 9 (2) hereof also apply in the case of breaches of duty which are committed by or in favour of people whose fault we are liable for pursuant to statutory provisions. They do not apply insofar as we have maliciously concealed a defect or have given a guarantee regarding the quality of the goods, or for the Contract Partner’s claims pursuant to the German Product Liability Act.
(4) Otherwise liability for compensation – regardless of the legal nature of the claim made – is hereby excluded. In this context, in particular we are not liable for loss or damage which has not occurred to the goods themselves, such as lost profit or other pecuniary loss suffered by the Contract Partner, unless there has been intentional behaviour or gross negligence.
§ 10 Time-Barring
(1) In deviation from § 438.1 nr. 3 of the BGB, the general period of limitations for claims arising out of quality defects and defects in title is one year from delivery. Insofar as acceptance is agreed upon, the period of limitations starts to run upon that acceptance. Statutory special regulations regarding time-barring (particularly § 438.1 nr. 1, § 438.3, § 444 and § 445b of the BGB) remain unaffected as well.
(2) The foregoing purchase-law periods of limitations apply also for the Contract Partner’s contractual and non-contractual compensation claims which are based on a defect in the goods, unless the application of the usual statutory period of limitations (§ 195 and § 199 of the BGB) would lead in the individual case to a shorter period of limitations. The Contract Partner’s compensation claims pursuant to § 9 hereof as well as pursuant to the German Product Liability Act, however, exclusively become time-barred pursuant to the statutory periods of limitations.
§ 11 Data Protection
We exclusively process the personal data of the Contract Partner and/or of its employees in compliance with (EU) Regulation 2016/679 of the European Parliament and Council dated 27 April 2016 (General Data Protection Regulation) and the German Federal Data Protection Act. Personal data is exclusively processed for purposes of executing the order. The Contract Partner hereby undertakes to provide its employees with the necessary information from xpuris pursuant to article 13 and article 14 of the GDPR within one month but still before the first notification to us. This information is attached to the GSC and is entitled “Information Regarding the Processing of Personal Data”.
§ 12 Choice of Law, Legal Venue, Saving Clause
(1) The law of the Federal Republic of Germany applies to these GSC and the contract relationship between us and the Contract Partner, excluding the application of the provisions of the United Nations convention dated 11 April 1980 concerning the international sale of goods (CISG). Insofar as the law of the Federal Republic of Germany refers to the law of another state or to international law, then that reference is hereby expressly excluded.
(2) If the Contract Partner is a businessperson in the sense of the German Commercial Code or an entrepreneur in the sense of § 14 of the BGB, a public-law legal entity or a public-law special fund, then the exclusive legal venue – including the international legal venue – for all disputes directly or indirectly arising from the contract relationship is our place of business in Düsseldorf. However, in all cases we are also entitled to file a lawsuit at the place of performance of the contractual obligation pursuant to these GSC or an overriding individual agreement, or at the Contract Partner’s general legal venue. Prevailing statutory provisions, particularly regarding exclusive jurisdiction and powers, remain unaffected.
(3) Should a provision in these GSC or in the framework of other agreements be or become invalid, then the validity of all of the other provisions or agreements shall not be affected thereby. The parties involved hereby undertake to replace the invalid provisions with a provision which comes closest to the financial purpose striven for.