I. General / Scope of Application

(1) Any delivery of Goods and/or Services including, but not limited to, the provision of Software by gfai tech GmbH (“gfai tech”) shall exclusively be governed by the terms and conditions of delivery and payment (“Terms”) set out below.

(2) Any terms or conditions proposed by the Customer which are inconsistent with these Terms shall be void and of no effect. Such terms and conditions shall not be binding upon gfai unless expressly accepted by gfai in writing.

(3) If these Terms stipulate that communications be made in writing, submission in text form (“Textform” in the meaning of Section 126b of the German Civil Code, BGB) shall be sufficient to fulfill this requirement.

(4) By placing an order the Customer confirms that he agrees with our Terms.

(5) Insofar as these Terms stipulate that order confirmations and orders be made in writing, fax submission of such documents by gfai tech without signature, shall also be sufficient to meet this requirement.

(6) Our Terms shall not apply vis à vis consumers (Verbraucher), but only vis-à-vis entrepreneurs (Unternehmer), public law entities (juristische Personen des öffentlichen Rechts), and special funds under public law (öffentlich-rechtliche Sondervermögen) within the meaning of Section 14 BGB or Section 310 BGB, respectively.

II. Offers / Offer Documents / Conclusion of Contract

(1) Our offers shall not be binding, except if limited in time. Our written order confirmations shall form the basis of any contract concluded pursuant to these Terms, and shall govern the scope of supply. This shall also apply if the Customer has requested gfai to submit a specific order. Orders placed by the Customer shall be binding upon him and will be deemed accepted by gfai upon receipt of gfai tech’s order confirmation. Any ancillary agreements and changes must be confirmed by gfai in writing to be effective.

(2) We shall be released from our obligation to deliver orders, even if already confirmed by gfai, if delivery, in whole or in part, is or becomes impossible due to unforeseen circumstances beyond our control. Such reasons include, but are not limited to, governmental action, force majeure, or failure of our suppliers to deliver properly and on time.

(3) Any documents included in our offers, such as illustrations, drawings, weights and dimensional specifications, shall be deemed approximate unless expressly declared to be binding. We shall retain ownership and copyright of any cost estimates, drawings and other documents; these must not be made accessible to any third party.

III. Delivery Periods

(1) The delivery period agreed to in the contract shall commence upon dispatch of the order confirmation. This shall however apply only if the Customer has, at that time, provided all documents, permits and releases to be procured by him, and has made the down payment agreed upon.

(2) The delivery period shall be deemed to have been adhered to if the consignment has left the factory, or the Customer been notified that the order is ready for shipment before the time for delivery has expired.

(3) The delivery period shall be extended by a reasonable period of time should any circumstances occur that constitute a force majeure event and have proven to have a significant impact on the completion or delivery of the Goods and/or Services to be supplied. Such circumstances shall include, but not be limited to, labor disputes, in particular strikes and lockouts. This shall also apply should any subcontractors be affected by unforeseen circumstances as defined above. We shall also not be held liable for the aforementioned circumstances if they arise while we are in default of the contract.

(4) If we are in default of the contract the Customer shall be entitled to rescind the contract after granting a four-week grace period, or, with any further claims being excluded, to claim compensation for losses he may have incurred due to any delay caused by our default. Said compensation shall amount to 0.5 percent for each full week of delay, but not to exceed 5 percent in the aggregate, of the value of that part of the entire delivery which, as a result of the delay, cannot be used in a timely manner or as specified in the contract. These restrictions shall only apply in case of slight negligence. If we can prove that only minor damage has occurred our liability to pay damages shall be restricted to the extent of such damage. We shall not be held liable if the damage had also occurred if delivery had been made in due time.

(5) If shipment is delayed at the Customer’s request, the Customer will be charged any costs incurred in storing the Goods, however at least 0.5 percent of the invoice amount for each month if the Goods are stored at our factory, starting one month after the Customer was notified that the Goods are ready for shipment. Furthermore we shall, after granting a reasonable grace period and if such grace period has expired without shipment being made, be entitled to dispose of the Goods ordered in another way and to make delivery to the Customer within a reasonable extended period of time.

(6) Compliance with delivery periods shall be subject to the Customer fulfilling his contractual obligations.

IV. Prices / Payment Terms

(1) Our prices are ex works or ex distribution warehouse unless otherwise stated on the order confirmation. Statutory VAT is not included in our prices; it will be included in the invoice at the rate applicable on the invoice date, and be stated separately on the invoice. Orders will be invoiced at the list prices in effect on the date of delivery unless fixed prices have been expressly agreed. We reserve the right to adjust prices to reflect changes in the factors pricing is based on. Shipping and packaging costs shall be borne by the Customer.

(2) Prices marked as “Without customs duties” (“ohne Zoll”) apply only if a declaration is furnished in due time that the Goods and/or Services concerned are exempt from duty (Zollfreierklärung), provided that such declaration is accepted by the customs authorities. Such customs exemption shall be deemed to be furnished in due time if received by gfai before the invoice is issued.

(3) The Customer shall be in default if he fails to make a payment due and payable within 30 days after receipt of the invoice, or an equivalent request for payment, at the latest. We reserve the right to put the Customer in default at an earlier point in time by issuing a reminder (Mahnung) we are entitled to when a payment is due. Notwithstanding the provisions laid down in Sentences 1 and 2, the Customer shall also be in default if it has been agreed that the purchase price be paid by a specific date and the Customer does not make payment by that date at the latest. Invoices shall be payable without any deduction. We reserve the right to make deliveries only on a CIA (cash in advance) or COD (cash on delivery) basis, in particular for Customers who place their first order or have failed to make a payment when due.

(4) Payments shall not be deemed received by gfai until we can dispose thereof. This is usually the case after the invoice amount has been credited to our account.

(5) The Customer shall not be permitted to withhold or set off payments due to any counterclaims other than those that are undisputed and expressly accepted by gfai, or recognized by a declaratory judgment. Furthermore, the Customer shall be entitled to exercise any retention right only to the extent his counterclaim is based on the same contractual relationship as the payment due from the Customer.

(6) If the Customer is in default on payment he shall pay to gfai interest in the amount of 8 percentage points above the respective prime rate of the European Central Bank, subject to our right to claim further damages.

(7) We shall be entitled to make outstanding deliveries contingent upon timely receipt of payments due. Should circumstances come to our knowledge which after the conclusion of the contract lower the Customer’s credit worthiness, we shall be entitled to rescind the contract or demand immediate payment, irrespective of the due date(s), or return of the Goods already supplied.

(8) The packaging materials used by gfai fulfill the environmental requirements for proper and harmless recycling. Insofar as packaging provided by gfai is received at the Customer’s premises, the Customer shall confirm to gfai when accepting the Goods that he is able to recycle such packaging in accordance with, and shall undertake to dispose of such packaging as provided for by the German Packaging Regulation (Verpackungsverordnung). In this case the Customer has to ensure that any packaging of the type described which is not returned to gfai be delivered to the recycling facilities provided for by the German Packaging Regulation, and shall inform us on request, at any time, about the packaging types and quantities recycled this way, as well as confirm in writing – on request, at any time – compliance with this obligation. We shall be entitled to satisfy ourselves regarding compliance with this obligation at the Customer’s premises at any time, subject to prior arrangement. If the Customer does not wish to dispose of the packaging as described above, he has to declare this vis à vis gfai in a provable manner immediately after receipt of the Goods. In this case gfai shall provide the Customer with the option, in accordance with the duties arising under the German Packaging Ordinance, to return such packaging to gfai. The Customer shall however bear the shipping costs to return the packaging.

V. Passing of Risk / Insurances

(1) The risk shall pass to the Customer at the latest upon dispatch of the parts to be delivered, even if partial deliveries are made or we accepted to provide further services, e. g. delivery costs or delivery and installation.

(2) If dispatch is delayed due to circumstances within the Customer’s control, the risk shall pass to the Customer on the day the Goods are ready for shipment.

(3) The Customer shall, without prejudice to the rights laid down in Section VII, take delivery of any items supplied even if they have insignificant defects.

(4) Partial deliveries shall be permitted unless the Customer proves that partial deliveries are unreasonable for him.

(5) The Customer shall be obliged to insure the Goods and/or Services to be supplied against fire, water, theft, and other damage at his own expense and on a value-as-new basis. If the Customer fails to produce sufficient proof of insurance we shall be entitled to take out, at the Customer’s expense, appropriate insurance cover for the Goods and/or Services to be supplied.

VI. Retention of Title

(1) We shall retain title to the Goods and/or Services supplied until all payments under the supply contract have been made. Such retention of title shall also apply to any claims we may have against the Customer due to the current business relationship until all claims we have in connection with the purchase have been settled.

(2) The enforcement by us of any retention of title claim, as well as the seizure by us of any Goods delivered shall not be deemed a rescission of contract. The enforcement of retention of title rights shall not affect any further claims we may have under the contract, including but not limited to claims for damages.

(3) The Customer shall have the right, until such approval is withdrawn, to resell within the ordinary course of business, but not to pledge, transfer to any third party by way of security, or otherwise dispose of – if this is to the detriment of the property which is subject to the above retention of title – the Goods delivered. The Customer hereby assigns to gfai all claims and ancillary rights that may arise from any such resale, in the amount of the value of the Goods that are subject to retention of title. The claims assigned shall serve to secure the claims according to para. 1. The Customer shall be authorized to collect any claims assigned until such authorization is revoked. The Customer shall be obliged to disclose to gfai upon request any claims assigned to third parties, for the purpose of payments being made to us, and to provide us with all information and documentation we may require to assert our rights.

(4) The Customer shall be permitted to process, transform, and connect with other items the Goods that are subject to retention of title. Such processing or transformation shall be done on behalf of gfai. We shall immediately acquire co-ownership of the item resulting from such processing or transformation proportionately according to the value of our delivery. The item processed or transformed shall be deemed subject to retention of title. If the Goods delivered by us are processed, transformed, or connected with other items that are third party property we shall be entitled to co-ownership of the new item proportionately according to the value of the processed, transformed, or connected Goods we delivered under retention of title in relation to the value of the new item. The claims assigned to us shall be superior to the remaining claims.

(5) We undertake to release the securities assigned to us to the extent that their value exceeds the claims to be secured, insofar as these have not yet been paid, by more than 20 %.

(6) Insofar as maintenance and inspection work is required, the Customer must carry out such work in a timely manner and at his own expense.

(7) The Customer shall not be authorized to dispose of in any other way than stated above – in particular to pledge, or transfer to any third party by way of security – the Goods that are subject to retention of title. In the event of any third party action, including but not limited to attachment and seizure, the Customer shall be obliged to notify such third party of our title in the Goods. The Customer has to immediately inform us about any derogatory action in relation to rights and interests in items that are our property.

(8) If the Customer is in breach of contract, in particular in payment default, the entire balance still owed by him shall immediately be due and payable. In any such case we shall be entitled to demand that the Goods and/or Services supplied be returned, and to collect them from the Customer. The Customer shall not have any possession rights any more. The costs incurred in connection with the Goods and/or Services being returned shall be borne by the Customer.

(9) In the event that Customer has his principal plan of business in a jurisdiction outside of Germany and such jurisdiction does not embody the principle of retention of title as means of security for the seller, the Customers shall inform gfai accordingly, and shall grant gfai a security corresponding to the principle of title in such way that it grants the creditor a right of ownership in the goods (right in rem), and support gfai in any possible way to obtain such right in rem

VII. Warranty

Subject to the provisions of Section VIII of these Terms, gfai warrants the Goods and/or Services supplied to be free from material defects and defects of title (Sach- und Rechtsmängel), any further claims being excluded; this warranty is made subject to the following terms and conditions:

(1) We shall, at our option, repair or replace free of charge all parts which are detected to be defective within 12 months after the passing of the risk due to circumstances that existed prior to the passing of the risk, including but not limited to defects in design, materials, or workmanship. Minor deviations in production, design or colors that are customary in the trade shall not constitute defects.

(2) We shall be notified, in writing, of any obvious defects immediately but not later than 10 days after the receipt of the Goods. Should any hidden defects be detected, gfai shall be notified thereof in writing immediately after discovery but not later than 10 days thereafter. If a warranty claim is justified, we shall bear the cost of the replacement part, shipping charges, as well as reasonable deinstallation and reinstallation costs out of the total direct cost – insofar as the claim proves to be justified – unless this would place an unreasonable burden on gfai. The provisions laid down above shall also apply to partial deliveries.

(3) gfai tech warrants that all Software is duplicated according to applicable rules and regulations. Software provided by gfai can be run on hardware products specified by us. Warranty claims shall be satisfied by replacement. Apart from this, we do not warrant the Software and its data structure to be free from errors unless otherwise agreed.

(4) The Customer shall grant us the time necessary and the opportunity to carry out all repairs and/or replacements that appear reasonable to be required from us, otherwise we shall be relieved from liability for defects and any consequences that may result therefrom. Only in urgent cases – where there is a danger to operational safety and to prevent extensive damage – shall the Customer be entitled to remedy, with the prior consent of gfai, a defect itself or have it remedied by a third party, and to seek reimbursement of the necessary costs from gfai. This shall also apply if we fail to remedy the defect within the period granted. gfai shall not be liable for any claims which are attributable to improper repair by the Customer or any third party.

(5) Parts replaced shall become our property.

(6) This warranty does not cover damage caused by any of the reasons listed below: Inappropriate or improper use, faulty assembly and/or commissioning by the Customer or any third party, wear and tear, improper or negligent handling, inappropriate operating supplies, replacement materials, faulty construction work, unsuitable foundation soil, chemical, electrochemical, or electrical influences, unless caused by an error or fault on our part. Furthermore, the warranty shall become void if modifications are made to the Software by the Customer or any third party without the prior written consent of gfai or any other justification (failure of gfai to remedy a defect within the period granted). Consumables, including but not limited to lamps, fuses, batteries, etc., shall also be excluded from warranty coverage. A shorter warranty period may be provided by manufacturers for special tubes and devices – due to their technical design – which shall be subject to special provisions; in any such case our liability shall be limited to such shortened warranty period or our standard warranty period, whichever is shorter.

(7) The Customer is entitled under applicable law to rescind the contract if gfai fails to remedy a material defect, by repair or replacement, within a reasonable grace period granted, or if any of the exceptional circumstances provided for by applicable law arise, i. e. if gfai refuses, or fails twice to effect supplementary performance (Nacherfüllung), or if supplementary performance would be unreasonable for the Customer. If the defect is insignificant, the Customer shall merely be entitled to reduce the purchase price. Such right may however only be exercised by the Customer if gfai has failed to remedy such material defect, by repair or replacement, within a reasonable grace period granted. Any further exercise of the right to reduce the purchase price shall be excluded.

(8) The expenses necessary to repair and/or replace defective Goods including, but not limited to, transport, travel, labor, and material costs shall be borne by gfai; we shall however be free to find the most cost-effective solution to the given situation. This shall not cover any increased expenses which may be incurred if the Goods and/or Services supplied were relocated, after delivery, to a place other than the recipient’s place of residence or business, unless such relocation complies with the intended use of such Goods and/or Services.

(9) The warranty obligation for a replacement and/or repair shall commence upon dispatch of such replacement or completion of such repair, respectively, and shall cease upon expiry of the original warranty period for the Goods and/or Services supplied. The period of liability for defects in the Goods and/or Services supplied shall be extended by the duration of the interruption of service caused by repair.

(10) If any Goods and/or Services supplied are returned to gfai during the warranty period and a defect is found, upon examination by gfai, to be caused by improper use on the Customer’s part we will submit to the Customer a quote for repair, against payment, of the defect based on these Terms. The costs incurred for detecting the defect – unless covered by warranty – shall be borne by the Customer.

(11) Should the use of the Goods and/or Services supplied result in an infringement of any industrial property rights in the Customer’s country, gfai shall procure for the Customer the right to continue to use, or shall modify said Goods and/or Services in such a way that they do not violate such rights. If this cannot be accomplished within a reasonable time and/or in an economically feasible manner, both gfai and the Customer shall be entitled to rescind the contract. Furthermore, gfai will indemnify the Customer against any claims made by owners of the respective rights which are undisputed or recognized by a declaratory judgment. Such rights and obligations shall however arise only if the Customer immediately notifies gfai of the alleged infringement of industrial property rights, and reasonably assists gfai in the defence against the claims asserted, and enables gfai – if necessary – to take remedial actions, provided that such infringement of intellectual property rights is not attributable to any unauthorized modification made by the Customer to, or use of the Goods and/or Services supplied other than as specified in the contract. The provisions laid down above shall be the final and exclusive provisions governing warranty, subject to the provisions of Section VIII.

VIII. Liability

(1) If any Goods and/or Services supplied cannot be used by the Customer as specified in the contract due to fault of gfai based on non-execution or faulty execution of the respective order, the Customer’s rights shall be governed by the provisions laid down in Section VII (Warranty) and Section VIII (Liability) of these Terms. Any further claims of the Customer shall be excluded.

(2) gfai tech shall be liable for defects other than to the Goods and/or Services supplied – for whatever legal reasons – only insofar as such damage was caused intentionally, or by gross negligence of bodies or executives.

(3) gfai tech shall be liable for slight or gross negligence of non-executive personnel insofar as essential contractual obligations are violated. In case of slight negligence liability shall be limited to contract-typical damage that can reasonably be foreseen.

(4) Furthermore, gfai shall be liable for any culpable violation of life, body, health, as well as for defects to any of the Goods and/or Services supplied the presence of which was fraudulently concealed, or their absence guaranteed by gfai. Liability under the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.

(5) The provisions laid down in Section III shall be the final and exclusive provisions governing liability for delay in delivery.

(6) Any further claims shall be excluded.

IX. Services

(1) The subject of the Service is to perform the metrological services agreed upon in the contract. The Service shall also include analysis of results. gfai tech shall not be obliged to achieve a particular result (Erfolg wird nicht geschuldet) including, but not limited to, fitness for intended use of the measurement results.

(2) The Customer shall be obliged to contribute what is required on his part to perform the Service. This shall include, but not be limited to, the granting of access to the unit under test, the provision of data – if required for measurement – in such form as can be used by the Contractor, and the creation of sufficient measurement conditions within the bounds of physical possibility and depending on local conditions.

(3) The Customer shall obtain the exclusive right of use of the analysis materials delivered to him within the scope of analysis.

(4) The Customer shall grant gfai a reasonable period of time for analysis. Unless otherwise agreed, a period of 4 weeks shall be deemed reasonable if no particular circumstances exist that would justify an extension.

(5) Analysis results will be provided in electronic form, unless otherwise agreed.

X. Software

(1) The Customer shall be granted a non-exclusive, non-transferable right to use the Software, Software components and documentations relating thereto for an unlimited period of time. The copyright and any other industrial property rights shall remain the sole property of gfai. The Customer shall not be entitled to alter or otherwise modify the Software delivered.

(2) gfai shall deliver an Installation and Operation Manual in print or electronic form, German or English, to facilitate installation and commissioning.

(3) The Software must not be passed on to any third party without our prior consent. If the Software is passed on for the purpose of resale, the Customer shall ensure that the present Terms are accepted by any third-party purchaser.

(4) A penalty equal to ten times the amount of the order value shall be imposed on the Customer for each failure to comply with these conditions. This shall not exclude any claims for damages gfai may have against the Customer; the penalty shall be credited against such claims. Furthermore, the Software and the documentation relating thereto shall be returned immediately.

XI. Export Control Regulations

Certain goods are subject to German and/or US export control regulations. The Customer shall be responsible for ensuring compliance with all applicable regulations if such goods are delivered abroad.

XII. Confidentiality

The Customer shall undertake to treat as strictly confidential all information, know-how and other trade secrets that may come to the Customer’s knowledge in connection with the execution of the respective order, and shall undertake not to pass on or make available to any third party any information, documents, documentation, drawings, sketches, or other papers without gfai tech’s express consent.

XIII. Miscellaneous

Provisions Should any provision of these Terms be or become invalid it shall be replaced by a valid provision or handling that fulfils or comes closest to the economic purpose of such invalid provision. The validity of the remaining provisions of these Terms shall not be affected.

XIV. Place of Performance / Jurisdiction / Applicable Law

(1) The place of performance for both Parties shall be the principal office of gfai tech GmbH in D-12489 Berlin, Germany.

(2) The court at our principal office in D-12489 Berlin, Germany shall have jurisdiction over any disputes that may arise in connection with the contractual relationship if the Customer is a merchant in the sense of the German Code of Commerce (HGB)(Vollkaufmann), a public law entity (juristische Person des öffentlichen Rechts), or a special fund under public law (öffentlich-rechtliches Sondervermögen).

(3) The contract is governed by the law of the Federal Republic of Germany, with exclusion of all bilateral or multilateral covenants and in particular the CISG.

(4) Should there be discrepancies between the interpretation of the German and English versions of these Terms, the German version shall prevail. In the event of any deviations resulting from the translation, the formulation set forth in the German version shall prevail. If these standards are interpreted differently, the German version shall prevail.

Status: September 1st, 2017