General Terms and Conditions of Sale and Delivery

§ 1 Scope, contracting parties

(1) These General Terms and Conditions of Sale and Delivery (Allgemeine Verkaufs- und Lieferbedingungen, hereinafter “AVLB”) apply to all offers, deliveries and services of DIINNO GmbH, Brunsbütteler Damm 93, 13581 Berlin, Germany (hereinafter “DIINNO”) vis-à-vis its customers (hereinafter “Customer”).

(2) These AVLB apply exclusively to entrepreneurs (Unternehmer) within the meaning of § 14 BGB (German Civil Code), legal entities under public law and special funds under public law (öffentlich-rechtliche Sondervermögen). No sales are made to consumers within the meaning of § 13 BGB.

(3) These AVLB apply exclusively. Conflicting, deviating or supplementary general terms and conditions of the Customer shall not become part of the contract unless DIINNO has expressly agreed to their validity in text form (Textform). This also applies if DIINNO carries out the delivery without reservation in the knowledge of conflicting terms and conditions of the Customer.

(4) These AVLB, in the version valid at the time of conclusion of the contract in each case, also apply to all future transactions with the same Customer without the need for them to be incorporated again.

(5) Individual agreements made in text form in an individual case take precedence over these AVLB.

§ 2 Offer and conclusion of contract

(1) Presentations of products on DIINNO’s website, in catalogues, brochures, datasheets or other advertising material do not constitute a binding offer, but a non-binding invitation to the Customer to request an offer.

(2) The Customer requests an offer via the inquiry form, by email or by telephone. DIINNO then submits an offer in text form. DIINNO is bound by this offer for 30 calendar days from the date of the offer, unless a different binding period is stated in the offer.

(3) The contract is concluded when the Customer accepts the offer in text form within the binding period (order) and DIINNO confirms the order in text form (order confirmation). DIINNO’s order confirmation is decisive for the content and scope of the contract.

(4) Orders placed without a prior offer from DIINNO are deemed to be an offer by the Customer. DIINNO may accept this offer within 14 calendar days by order confirmation or by executing the delivery.

(5) Declarations in text form within the meaning of these AVLB are in particular email and fax.

§ 3 Scope of performance, technical changes, documents

(1) The scope of delivery is conclusively determined by the order confirmation, including the specifications and datasheets referred to therein.

(2) Information in datasheets, manuals, drawings and illustrations constitutes descriptions of performance, not guarantees. DIINNO only assumes a guarantee in the legal sense if it is expressly designated as a “guarantee” in text form.

(3) DIINNO remains entitled to make technical changes to the delivery item insofar as these serve technical progress or statutory or normative requirements, do not impair the contractually agreed function, form and quality, and are reasonable for the Customer.

(4) DIINNO reserves all rights of ownership, copyrights and rights of exploitation in cost estimates, drawings, specifications, samples and other documents. Without DIINNO’s prior consent in text form, they may neither be made accessible to third parties nor reproduced nor used for purposes other than those agreed, and they must be returned or deleted without undue delay upon request.

§ 4 Prices and terms of payment

(1) All prices are in euros, net ex warehouse Berlin, excluding packaging, freight, insurance and customs duties, plus the statutory value added tax applicable at the time.

(2) Unless otherwise agreed in the order confirmation, invoices are due for payment without deduction within 14 calendar days of the invoice date.

(3) In the case of new customers, deliveries abroad and order values exceeding EUR 10,000 net, DIINNO is entitled to demand payment in advance, a down payment or the provision of security.

(4) In the event of default in payment, the Customer owes default interest at a rate of nine percentage points above the respective base interest rate (Basiszinssatz) as well as a lump sum of EUR 40 pursuant to § 288(5) BGB. DIINNO reserves the right to claim further damage caused by default.

(5) If circumstances become known after conclusion of the contract which cast considerable doubt on the Customer’s creditworthiness, DIINNO is entitled to carry out outstanding deliveries only against payment in advance or the provision of security and, after a reasonable grace period has expired without result, to withdraw from the contract.

(6) If, after conclusion of the contract and before delivery, the costs of materials, freight, energy or customs duties increase by more than 10 percent compared with the level at the time of conclusion of the contract, the parties are obliged to negotiate an appropriate price adjustment. If no agreement is reached within four weeks, each party is entitled to withdraw from the contract with respect to the quantity not yet delivered. This provision only applies to deliveries which, as agreed, are to take place later than four months after conclusion of the contract.

§ 5 Set-off, retention, assignment

(1) The Customer may only set off claims that are undisputed or have been finally and conclusively established by a court (rechtskräftig festgestellt).

(2) The Customer may only exercise a right of retention insofar as its counterclaim is based on the same contractual relationship and is undisputed or has been finally and conclusively established by a court.

(3) The assignment of claims of the Customer against DIINNO to third parties requires DIINNO’s prior consent in text form. § 354a HGB (German Commercial Code) remains unaffected.

§ 6 Delivery time, delay in delivery, force majeure

(1) Delivery dates and delivery periods are only binding if they are expressly designated as binding in the order confirmation. Otherwise, they are non-binding indications given to the best of DIINNO’s knowledge.

(2) The commencement of a delivery period requires the complete clarification of all technical questions, the receipt of the documents and approvals to be provided by the Customer, and the receipt of any agreed down payment.

(3) The delivery period has been met if, by the time it expires, the delivery item has left DIINNO’s warehouse or readiness for dispatch has been notified.

(4) DIINNO supplies the Customer from a manufacturing and supply chain with production sites in the People’s Republic of China. The delivery period is extended appropriately upon the occurrence of events of force majeure and of other impediments for which DIINNO is not responsible and which have a significant impact on manufacture or delivery. These include in particular natural disasters, epidemics and pandemics as well as official measures to combat them, war and war-like conditions, terrorist attacks, riots, industrial action, shortages of energy and raw materials, semiconductor shortages, cyber attacks on DIINNO or its suppliers, disruptions and capacity bottlenecks in international sea, air or land freight, closure or congestion of ports and waterways, customs clearance obstacles, import and export restrictions, sanctions, as well as late or improper supply to DIINNO by its own suppliers (Selbstbelieferung), provided that DIINNO has concluded a congruent covering transaction and is not responsible for the failure to supply.

(5) DIINNO will inform the Customer without undue delay of the occurrence and expected duration of an event pursuant to paragraph 4. If the event lasts longer than three months, each party is entitled to withdraw from the contract with respect to the part not yet performed. Claims for damages by the Customer on account of this delay are excluded; § 14 remains unaffected.

(6) If DIINNO is in default of delivery, compensation for the damage caused by default is limited to 0.5 percent for each completed week of default, but in total to no more than 5 percent, of the net price of that part of the delivery which cannot be used as intended because of the default. Further claims due to delay in delivery are governed exclusively by § 14.

(7) Partial deliveries are permissible insofar as they are reasonable for the Customer.

§ 7 Shipment, packaging, transfer of risk

(1) Delivery is made EXW Berlin (Incoterms 2020) unless otherwise agreed. If DIINNO ships the goods at the Customer’s request, this is done at the Customer’s expense and risk.

(2) The risk of accidental loss and accidental deterioration passes to the Customer at the latest upon handover of the delivery item to the forwarding agent, the carrier or any other person designated to carry out the shipment. This also applies in the case of carriage-paid delivery and of partial deliveries.

(3) If shipment or handover is delayed for a reason for which the Customer is responsible, the risk passes to the Customer on the day on which readiness for dispatch is notified. From this point on, DIINNO is entitled to store the goods at the Customer’s expense and risk and to charge the customary storage costs.

(4) Transport insurance is only taken out at the express request and at the expense of the Customer.

(5) Packaging is customary in the trade and appropriate to the product. Special packaging requests of the Customer are charged separately.

§ 8 Retention of title

(1) DIINNO retains title to the goods delivered until all claims arising from the ongoing business relationship with the Customer have been paid in full.

(2) The Customer is obliged to handle the goods subject to retention of title (reserved goods) with care and to insure them adequately at replacement value (Neuwert) at its own expense against damage by fire, water and theft.

(3) Pledging the reserved goods or transferring ownership of them by way of security is not permitted. In the event of attachments or other interventions by third parties, the Customer must notify DIINNO in text form without undue delay and inform the third parties of DIINNO’s ownership.

(4) The Customer is entitled to resell or process the reserved goods in the ordinary course of business. The Customer hereby assigns to DIINNO all claims arising from a resale in the amount of the invoice value of the reserved goods; DIINNO accepts the assignment. The Customer remains authorised to collect the claim as long as it duly meets its payment obligations.

(5) If the reserved goods are processed, combined or mixed with other items, DIINNO acquires co-ownership of the new item in the ratio of the invoice value of the reserved goods to the value of the other processed items at the time of processing. Processing is carried out for DIINNO without giving rise to any obligations on the part of DIINNO.

(6) At the Customer’s request, DIINNO undertakes to release the securities to which it is entitled insofar as their realisable value exceeds the claims to be secured by more than 10 percent. The selection of the securities to be released lies with DIINNO.

§ 9 Duty to inspect and give notice of defects

(1) The Customer must inspect the goods delivered for completeness, identity, transport damage and obvious defects without undue delay after delivery. § 377 HGB applies.

(2) Obvious defects must be notified to DIINNO in text form without undue delay, at the latest within seven working days of delivery. Hidden defects must be notified in text form without undue delay, at the latest within seven working days of their discovery.

(3) The notice of defects must contain the order number and article number, the serial number of the device complained about and a comprehensible description of the fault pattern.

(4) If the Customer fails to give notice in good time, the goods are deemed to have been approved, unless the defect was fraudulently concealed by DIINNO.

(5) In addition, transport damage must be reported to the carrier without undue delay and noted on the consignment note.

§ 10 Material defects

(1) The quality of the goods is determined conclusively by the order confirmation and the specifications and datasheets referred to therein. Public statements, promotional claims or advertising by third parties do not constitute a specification of quality.

(2) In the event of a justified notice of defects given in good time, DIINNO shall, at its own option, provide subsequent performance (Nacherfüllung) by remedying the defect or by delivering a replacement. If subsequent performance fails twice, the Customer may, at its option, reduce the purchase price or withdraw from the contract. Claims for damages are governed exclusively by § 14.

(2a) The Customer must give DIINNO the time and opportunity required for subsequent performance and, after prior consultation, send the device complained about to DIINNO.

(3) Claims for material defects become time-barred 12 months after delivery of the goods. This reduction does not apply to claims for damages arising from injury to life, body or health, to intentional or grossly negligent conduct, to fraudulently concealed defects, to the breach of a guarantee given, to claims under the Produkthaftungsgesetz (German Product Liability Act), to deliveries which have been used for a building in accordance with their customary use and have caused its defectiveness, or to statutory recourse claims under §§ 445a, 445b BGB.

(4) No claims for defects exist in the case of natural wear and tear, damage resulting from improper storage, installation, commissioning or operation, failure to observe the installation and operating instructions, operation outside the specified ambient and grid conditions, overvoltage, lightning or grid disturbances, use of unsuitable accessories or connection parts, chemical, electrochemical or electrical influences, or interventions or modifications not carried out by DIINNO or by a third party authorised by DIINNO.

(5) If the examination of a notice of defects shows that there is no defect, DIINNO is entitled to charge the inspection and handling costs incurred at its service rates applicable at the time.

§ 11 Software, firmware and applications

(1) If the delivery item contains software or firmware, or if an application is additionally provided, the Customer does not acquire ownership thereof, but a non-exclusive, perpetual, non-transferable right to use it as intended in connection with the device delivered.

(2) If the device is resold, the right of use may be transferred to the purchaser, provided that the Customer does not retain any copies and obliges the purchaser to comply with these terms of use.

(3) Decompilation, reverse engineering, modification or circumvention of technical protection measures are not permitted unless §§ 69d, 69e UrhG (German Copyright Act) permit otherwise.

(4) DIINNO provides security updates for the firmware for a period of at least five years from delivery, insofar as this is necessary to maintain conformity and IT security and is technically possible and economically reasonable for DIINNO. There is no entitlement to functional enhancements.

(5) The Customer is obliged to install security updates provided within a reasonable period. If it fails to do so, DIINNO is not liable for damage that would have been avoided had the update been properly installed.

(6) If the delivery item contains open-source software, the respective licence terms take precedence. The corresponding licence texts and source code notices are made available on request.

(7) Applications, cloud and data services may be subject to separate terms of use. An entitlement to permanent availability of such services exists only insofar as this has been separately agreed.

§ 12 Conformity with metrology and verification law

(1) Insofar as the delivery item is a measuring instrument within the meaning of the Mess- und Eichgesetz (MessEG – German Measures and Verification Act), it is delivered with a valid EU declaration of conformity and conformity marking in accordance with Directive 2014/32/EU (Measuring Instruments Directive, MID).

(2) As the user (Verwender) of the measuring instrument, the Customer is itself responsible for compliance with the user obligations under the MessEG and the Mess- und Eichverordnung (MessEV – German Measures and Verification Ordinance), in particular for notifying the putting into use, for observing the periods of use and verification periods, and for proper installation.

(3) Any intervention in the measuring instrument, any damage to the security seals and any modification to hardware or firmware not approved by DIINNO causes the conformity to lapse. To that extent, claims for defects and liability on the part of DIINNO do not apply.

(4) DIINNO owes conformity in accordance with the legal situation applicable at the time of delivery. Subsequent changes to metrology, verification or energy law do not constitute a defect.

§ 13 Industrial property rights, customer-specific developments, tools

(1) DIINNO warrants that, in the country of the place of delivery, the delivery item is free from third-party rights that conflict with its use in accordance with the contract.

(2) If third parties assert claims for infringement of industrial property rights, the Customer must inform DIINNO without undue delay. DIINNO is entitled, at its own option, to obtain a right of use or to modify or replace the delivery item. The conduct of the dispute lies with DIINNO.

(3) Claims of the Customer are excluded insofar as the infringement of property rights is based on requirements, drawings or specifications of the Customer, on a use not foreseeable by DIINNO or on a modification made by the Customer. In these cases, the Customer indemnifies DIINNO against claims of third parties.

(4) All rights to development work, designs, circuits, layouts, firmware and technical documentation provided by DIINNO remain with DIINNO, even if the Customer has contributed to the development costs, unless expressly agreed otherwise in text form.

(5) Tools, moulds and fixtures remain the property of DIINNO, even if the Customer has borne a share of the tooling costs, unless otherwise agreed in text form. DIINNO keeps them with the care of a prudent businessperson (ordentlicher Kaufmann); an obligation to keep them exists for no longer than three years after the last delivery.

(6) The DIINNO trademark and other DIINNO identifying marks may only be used by the Customer to advertise the products purchased from DIINNO and only in unaltered form.

§ 14 Liability

(1) DIINNO is liable without limitation in the event of intent and gross negligence, fraudulent concealment of a defect, injury to life, body or health, assumption of a guarantee or of a procurement risk, and under the Produkthaftungsgesetz.

(2) In the event of a slightly negligent breach of a material contractual obligation, DIINNO’s liability is limited in amount to the damage typical for the contract that was foreseeable at the time the contract was concluded. Material contractual obligations are those obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance the Customer may regularly rely.

(3) Otherwise, DIINNO’s liability is excluded. This applies in particular to indirect damage, loss of profit, loss of production, loss of use, loss of data, recall costs and claims of third parties against the Customer.

(4) Liability under paragraph 2 is limited per damage event to twice the net value of the order concerned, but in any event to no more than EUR 5,000,000 per damage event. By way of derogation, a maximum limit of EUR 1,000,000 per damage event applies to damage in connection with software, applications and data services. DIINNO maintains business and product liability insurance with a coverage amount of EUR 5,000,000 per insured event and will provide evidence of this on request.

(5) The above limitations of liability also apply in favour of DIINNO’s legal representatives, employees and vicarious agents (Erfüllungsgehilfen).

(6) The above provisions do not entail any change in the burden of proof to the detriment of the Customer.

§ 15 Take-back of waste equipment, batteries and packaging

(1) DIINNO is registered with the Stiftung Elektro-Altgeräte Register (Foundation for the Register of Waste Electrical Equipment) under WEEE reg. no. DE 47199100.

(2) If the Customer is a commercial end user within the meaning of the ElektroG (German Electrical and Electronic Equipment Act), it is responsible for the proper disposal of the waste equipment at its own expense, unless otherwise agreed in text form in an individual case. To that extent, the Customer indemnifies DIINNO against take-back and disposal obligations.

(3) If the Customer resells the goods, it must fulfil on its own responsibility the obligations incumbent on it under the ElektroG, the Batteriegesetz (German Batteries Act) and the Verpackungsgesetz (German Packaging Act), and must pass these obligations on to its own customers.

(4) For transport packaging placed on the market, DIINNO is registered in the LUCID packaging register under registration number DE1379452151884.

§ 16 Confidentiality

(1) The parties undertake to treat as confidential all non-public information of a technical and commercial nature obtained in the course of the business relationship, to use it only for the purpose of performing the contract and not to disclose it to third parties.

(2) This obligation does not apply to information which is generally known or becomes known without breach of this agreement, which was already known to the receiving party, which was lawfully obtained from third parties or which was developed independently. Statutory disclosure obligations remain unaffected.

(3) This obligation continues for a period of three years after the end of the business relationship.

(4) A separate non-disclosure agreement between the parties takes precedence over this provision.

§ 17 Export control and sanctions provisions

(1) Deliveries and services are subject to the proviso that performance is not prevented by any impediments arising from national or international foreign trade regulations or by any embargoes or other sanctions.

(2) The Customer will comply with the applicable export, re-export and sanctions regulations of the Federal Republic of Germany, the European Union and, where applicable, the United States of America.

(3) If the delivery item is resold or passed on to third parties, the Customer must observe the regulations applicable in each case and oblige its own customers accordingly.

(4) The Customer indemnifies DIINNO against all claims and disadvantages arising from a breach of the above obligations.

§ 18 Data protection

(1) DIINNO processes the Customer’s personal data exclusively within the framework of the applicable data protection provisions, in particular the General Data Protection Regulation (GDPR, German: DSGVO). Details can be found in the privacy policy at www.diinno.de.

(2) If personal data are processed on behalf of the Customer in the context of service, cloud or data services, the parties will conclude a separate data processing agreement pursuant to Art. 28 GDPR.

§ 19 Final provisions

(1) Amendments and supplements to these AVLB and to the contracts concluded on their basis require text form. This also applies to any waiver of this text form requirement. Individual contractual agreements within the meaning of § 305b BGB retain priority.

(2) The place of performance for all deliveries and services and for payments is Berlin.

(3) The law of the Federal Republic of Germany applies, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

(4) The exclusive place of jurisdiction for all disputes arising from and in connection with the business relationship is Berlin if the Customer is a merchant (Kaufmann), a legal entity under public law or a special fund under public law, or has no general place of jurisdiction in Germany. DIINNO is also entitled to bring an action at the Customer’s general place of jurisdiction.

(5) Should any provision of these AVLB be or become invalid in whole or in part, the validity of the remaining provisions remains unaffected. The parties will replace the invalid provision with a valid provision that comes closest to the economic purpose of the invalid provision.