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General Terms and Conditions of Sale of NeoPrediX

1.     Scope of Application, General

1.1.    Any delivery of goods and provision of services (hereinafter collectively “Goods”) by NeoPrediX* to the Customer shall be subject to these General Terms and Conditions (“GTC”) set forth herein. These GTC form a constituent part of all offers, orders and agreements between NeoPrediX and the Customer.

1.2.    Deviating terms and conditions - unless agreed to in writing - do not apply. NeoPrediX and the Customer may agree to terms and conditions deviating from these GTC, such terms shall then have priority over these GTC. These GTC apply even if NeoPrediX provides the Goods with knowledge but without actual acceptance of deviating terms and conditions of the Customer.

1.3.    The Customer is responsible for any cooperative measures necessary for the agreed deliveries and services. In particular, the Customer provides NeoPrediX with all information and documents in good time and obtains any necessary public permits.

2.     Scope of Performance

2.1.    Offers by NeoPrediX shall always be non-binding. Orders shall be deemed accepted only if NeoPrediX confirms same or carries out the order.

2.2.    Offers and contracts that require an export license or approval by export control authorities (e.g. due to embargo) are subject to the condition precedent that such export license or approval is granted. The performance of a contract may be subject to the granting of export licenses by the competent export control authorities (Germany, USA, other countries).

2.3.    The offer by NeoPrediX shall govern the scope of performance. Statements as to weight and measurements in brochures and offers are according to best knowledge but are not guaranteed properties (Beschaffenheitsgarantien). The right to reasonable performance and construction modifications is reserved. The functions of software shall be limited to the description in the performance specifications.

2.4.    Technical norms serve as performance specification only, provided NeoPrediX does not expressly provide a guarantee in the form of a full guarantee for compliance with such technical norm. Guarantees as to properties (Beschaffenheitsgarantien) or shelf life (Haltbarkeitsgarantien) must be in writing.

2.5.    NeoPrediX shall retain, without limitation, any and all ownership rights, copyrights and industrial property rights in drawings, technical documents and other data, information and documentation in material or immaterial form, including in electronic form; these may not be disclosed to third parties without written consent.

2.6.    In case of resale of Goods, the Customer is responsible to comply with all applicable export rules and regulations. The Customer shall defend and indemnify NeoPrediX from all costs and claims based on the violation of export rules and regulations by the Customer.

3.     Software

3.1.    Should software be included in the scope of delivery, NeoPrediX grants to the Customer subject to the following terms a non-exclusive and, except for the provisions in number 3.8, non-transferable right of use therein.

3.2.    All rights in know-how and products that merit intellectual property right protection (e.g. inventions, copyrights) are retained by NeoPrediX. NeoPrediX may use know-how acquired in connection with the performance of its contractual obligations without limitation for its own commercial purposes.

3.3.    If software is delivered as a component of a device or intended for a specific device (firmware), the Customer may use the firmware only with the specified equipment. Use of firmware together with other equipment shall require NeoPrediX's expressly written consent, unless the Customer temporarily uses the firmware with replacement equipment of the same type due to a defect in the Goods provided by NeoPrediX.

3.4.    User documentation is provided in adequate form for the software’s intended purpose. Any further documentation, in particular firmware documentation or documentation for maintenance purposes shall require an express written agreement.

3.5.    Unless NeoPrediX expressly grants the Customer a multiple licence, the Customer shall receive a single user licence in the software, i.e. the Customer may simultaneously use the software on only one end device. However, solely for backup purposes, the Customer may make one backup copy. In the event of a multiple licence, the Customer shall comply with the installation instructions furnished by NeoPrediX and shall keep a record of the location of every installation. Such records shall be submitted to NeoPrediX upon request.

3.6.    Software shall be furnished exclusively in machine readable form as object code.

3.7.    Except in the case of §69e of the German Copyright Act (Urhebergesetz – “UrhG”), the Customer may not modify, engage in reverse engineering, translate, extract or otherwise link the software to other programs. The Customer may not remove from the data carriers alphanumerical and other labels and manufacturer information - in particular, copyright notices - and shall transfer same without modification to any backup copy.

3.8.    The Customer may not lease the software or grant sub-licences. Software acquired in conjunction with a device may only be sold to third parties together with said device. Software may be sold to third parties only if the Customer does not grant to the third party rights to use the software exceeding the license granted to the Customer by NeoPrediX. In the event of resale, the Customer may not retain any copy of the software. Multiple licences may be resold only in their entirety.

3.9.    If NeoPrediX provides third party software, such as Open Source Software, i.e. software for which NeoPrediX holds only a derivative licence, the terms and conditions of use agreed between NeoPredix and its licensor shall apply in addition and shall have priority. NeoPrediX shall submit such terms and conditions of use to the Customer upon request. Should such terms and conditions of use be violated by the Customer, both NeoPrediX and the licensor shall be entitled to assert any resultant claims and rights in their own name.

3.10.  The Customer agrees to store the software and any documentation carefully in order to preclude any abuse.

3.11.  The sale of software does not include an obligation by NeoPrediX to provide software maintenance services. This shall require a separate agreement.

4.     Prices, Payment Terms, Set-off, Right of Retention

4.1.    Prices are FCA NeoPrediX’ warehouse, Germany (INCOTERMS 2020), excluding valued added tax. Prices do not include packaging.

4.2.    Invoices shall be payable upon receipt without any deductions in the agreed currency. The Customer shall bear any costs associated with payment.

4.3.      Cheques and other means of payment shall be accepted only based on a separate agreement and then only on account of performance. In the case of such means of payment, the day on which NeoPrediX can dispose over the relevant amount shall be deemed the date of receipt of payment. The Customer shall bear any discount and collection charges.

4.4.      NeoPrediX reserves the right to demand a down payment or security equivalent to the invoice amount and to suspend the execution of its obligations, in case circumstances justify reasonable doubts to the Customer’s willingness or ability to fulfil his payment obligations.

4.5.      The Customer shall be entitled to withhold payment or offset counterclaims only to the extent such counterclaims are undisputed or confirmed in a final and binding judgment. Other rights of retention may be asserted only to the extent that they are based on the same contractual relationship. Rights of retention based on defects may be asserted subject to the requirements set forth above and only in a reasonable proportion to the defects that have occurred.

5.        Shipping, Packaging, Passing of Risk

5.1.      Deliveries within Germany are EXW (INCOTERMS 2020) warehouse NeoPrediX excluding packaging. Deliveries outside Germany are FCA warehouse NeoPrediX excluding packaging.

5.2.      The risk of accidental loss or deterioration shall pass to the Customer no later than upon shipping of the Goods.

5.3.      Should software be furnished by way of electronic communications media (e.g. via the Internet), risk shall pass when the software leaves NeoPrediX' control.

6.        Retention of Title

Goods delivered or installed by NeoPrediX ("Retained Goods") shall remain the property of NeoPrediX until full payment of any and all receivables (including future receivables) under the business relationship with the Customer, whatever their legal basis, even if payments are made on itemised receivables. In the event of a current account, the retained ownership shall be deemed security for NeoPrediX' current receivables (“Saldoforderung”).

7.     Notice of Defects, Acceptance

7.1.      The Customer shall inspect deliveries without undue delay following receipt in order to ascertain any quantitative errors and transport damage. In the event of transport damage, a damage record shall be prepared in order to secure any compensatory damage claims against the forwarder (post, rail, shipping agent, etc.). Such damage record shall be sent to NeoPrediX without undue delay.

7.2.      Defects can be asserted in writing only within ten days of receipt of the Goods, unless the relevant defect is latent. Latent defects and defective performance of other services shall be notified to NeoPrediX in writing without undue delay following discovery thereof.

8.     Liability for Defects

8.1.      Should there be a defect in any Goods provided by NeoPrediX and should notice thereof have been given in a timely manner within the meaning of Section 8.2 of the GTC, NeoPrediX shall, at its choice, remedy the defects of charge or deliver defect-free replacement Goods ("Substitute Performance"), provided the defect was already present upon the passing of risk. In the event of a defect in software, NeoPrediX may also provide a new software release in lieu of repair.

8.2.      There shall be no defect if the Goods are suitable for normal use and manifest the quality that is normal for items of the same kind and that could be expected by the Customer. In particular, the Customer is aware that given the current state of the art technology it is not possible to create software that is fully free and clear of errors. The ability to use one-off products is limited to the first use. Moreover, there shall be no quality defect in erroneous assembly instructions if assembly has been carried out free and clear of any defects. Moreover, no quality defect shall lie in the event of inappropriate or improper use, incorrect storage, erroneous assembly or start-up by the Customer or third parties, natural wear and tear, erroneous or negligent handling, improper maintenance, use of inappropriate operating resources, defective construction work, or chemical, electro-chemical or electrical influences for which NeoPrediX is not responsible, software errors that cannot be reproduced and in the event of defects that do not arise in last software release furnished to the Customer by NeoPrediX, provided the Customer can be reasonably expected to tolerate the last software release provided.

8.3.      The delivery of a marginally different item or a marginally different number of items than agreed, shall not entitle the Customer to claim damages or rescind the agreement.

8.4.      The Customer shall provide NeoPrediX with the necessary time and opportunity to perform any and all remedial measures. In particular, upon request, the Customer shall send the delivered Goods to NeoPrediX or a workshop to be specified by NeoPrediX. Otherwise NeoPrediX shall be discharged from liability for any consequences. Defects in delivered software shall be described in as much detail as possible. Only in urgent cases where safety is at risk or in order to prevent unreasonably large damage (in which case NeoPrediX must be notified immediately) may the Customer remedy the defect itself or arrange for the defect to be remedied by a third party and demand that NeoPrediX reimburse any necessary expenses.

8.5.      The Customer may rescind the agreement or demand a reduction of the price only if substitute performance is unsuccessful on two occasions or if NeoPrediX fails to initiate remedial measures within a reasonable grace period set by the Customer. In case of insignificant defects, the Customer may not rescind the agreement. Section 10 of these GTC shall apply to compensatory damages claims.

8.6.      Should the Customer or a third party perform improper repairs, NeoPrediX shall not be liable for any resulting damages. The same shall apply to any modifications to the delivered Goods performed without NeoPrediX' prior consent or to any software extension effected by the Customer or a third party over and above the interface provided by NeoPrediX.

8.7.      The Customer may not assert any claims for defect-related liability if it is aware of the defect upon execution of the agreement or is unaware thereof as a result of gross negligence, unless the defect was maliciously concealed by NeoPrediX or NeoPrediX provided a guarantee as to quality (Beschaffenheitsgarantie) and said guarantee concerns the defect.

8.8.      Notwithstanding NeoPrediX’ liability under Sections 10.1 or 10.2 of these GTC, defect-related liability shall be excluded for used goods that are not sold as good as new or that have been rendered as good as new.

8.9.      Claims on the part of the Customer for defect-related liability pursuant to this Section 8 shall become time-barred twelve (12) months following delivery of the Goods in the event of purchase and work performance contracts or – if agreed – following start-up of the delivered item or acceptance of performance.

8.10.   The foregoing limitations period shall not apply for claims based on Section 10 of these GTC, to Goods for buildings within the meaning of §§438 (1) No. 2 and 634a (1) No. 2 of the German Civil Code (Bürgerliches Gesetzbuch - “BGB”) and to any rights of recourse on the part of the Customer in the event of the purchase of consumer goods pursuant to §§478, 479 BGB. In such cases, the statutory periods shall govern.

8.11.   Any rights of recourse on the part of the Customer in the event of the purchase of consumer goods pursuant to §§478, 479 BGB shall remain unaffected, but shall vest only to the extent that the Customer has not entered into any agreements with its purchaser over and above the statutory defect-related warranty claims.

8.12.   Notwithstanding NeoPrediX’ liability under Section 10 of these GTC, any additional claims or claims other than those governed by this Section 8 on the part of the Customer against NeoPrediX or its vicarious agents based on defects shall be excluded.

9.     Industrial Property Rights, Copyrights, Defects in Title

9.1.    NeoPrediX shall supply the Goods free and clear of intellectual property rights and third party copyrights ("Intellectual Property Rights") existing at the agreed destination of the Goods. Should a third party assert legitimate claims against the Customer based on the infringement of Intellectual Property Rights by the Goods delivered by NeoPrediX and used in accordance with the agreement, NeoPrediX shall be liable towards the Customer within the period specified in Section 8.8 of the GTC in accordance with the following provisions.

9.2.    NeoPrediX shall, at its choice and at its expense, either arrange a licence for the relevant Goods, modify them such that the relevant Intellectual Property Right is not infringed, or exchange them. Section 10 of these GTC shall apply for damage claims. The foregoing obligations shall exist only if the Customer notifies NeoPrediX in writing and without undue delay of the claims asserted by the third party, does not acknowledge any infringement to the third party, and NeoPrediX retains a discretion in relation to any and all measures in mounting defence and settlement negotiations. Should the Customer cease use of the service, it shall notify the third party that cessation of use does not constitute an acknowledgement of any infringement of an Industrial Property Right.

9.3.    Claims on the part of the Customer shall be excluded if the Customer is responsible for the infringement of an Intellectual Property Right or if the infringement of the Intellectual Property Right is caused by stipulations by the Customer, by an application not foreseeable by NeoPrediX, by a modification by the Customer, or by use of the service in conjunction with products not  delivered by NeoPrediX.

9.4.    Apart from the above, section 8 of these GTC shall apply to any legal defect in title. Damage claims on the part of the Customer shall be subject to section 10 of these GTC.

9.5.    Notwithstanding NeoPrediX’ liability under Section 10 of these GTC, any additional claims or claims other than those governed by this Section 9 on the part of the Customer against NeoPrediX or its vicarious agents based on legal defect in title shall be excluded.

10.   Liability

10.1.  NeoPrediX shall be liable to the Customer in accordance with the relevant statutory provisions in the event of willful conduct, gross negligence on the part of governing bodies or executive employees, culpable injury to life, limb or health, defects maliciously concealed by NeoPrediX or the absence of which was guaranteed by NeoPrediX, as well as in the case of defects in delivered Goods to the extent that liability exists for personal and property damage for privately used items in accordance with the German Product Liability Act (Produkthaftungsgesetz).

10.2.  In the event of a breach of material contractual obligations, NeoPrediX shall also be liable in the event of gross negligence on the part of ordinary employees and for ordinary negligence. Liability for ordinary negligence shall be limited to foreseeable damage typical of this type of agreement.

10.3.  The Customer shall take any and all necessary and reasonable steps in order to prevent or limit damage. In particular, the Customer shall ensure the regular backing up of programs and data. Therefore, NeoPrediX shall be liable for the reprocurement of data subject to the requirements of Sections 10.1 and 10.2 only if the Customer has ensured that such data can be reconstructed from other data material at reasonable effort and expense.

10.4.  Damage claims against NeoPrediX or its vicarious agent other than those governed by this Section 10 – whatever the legal basis therefor – shall be excluded.

10.5.  Apart from the above the Parties are liable according to the statutory provisions.

11.   Compliance with Laws, Anti-Corruption

11.1.  The Customer warrants that he is acting in accordance with applicable laws, including antitrust laws and regulations on corruption and money laundering and other criminal law provisions.

11.2.  If there is reason to suspect that the Customer is in breach of above obligations, NeoPrediX is entitled to terminate the agreement if it would be unreasonable to NeoPrediX to continue the agreement. In the event of such termination,

                         i.  NeoPrediX is released from any obligation to execute the agreement,

                        ii.  the Customer shall indemnify and keep harmless NeoPrediX and its employees against any and all damages to the extent such damages are based on the Customer’s violation of its obligations under this section 11.

12.   Safety Provisions

The Customer shall be responsible for compliance with applicable domestic statutes, regulations and safety provisions, in particular, in relation to admission, installation, operation, maintenance and repair of the delivered Goods and agrees to comply therewith. The Customer shall indemnify NeoPrediX against any and all claims deriving from non-compliance with such provisions by the Customer.

13.   Forum and Applicable Law

13.1.  The exclusive forum is Regensburg, Germany. NeoPrediX may, at its discretion, also file suit at the competent court at the Customer's registered office.

13.2.  This Agreement, its interpretation and execution shall be governed by German substantive law, to the exclusion of the United National Convention on International Sale of Goods (CISG) and the conflict of laws rules.

* In these GTC “NeoPrediX” means NeoPrediX AG with its place of business in Regensburg (Germany) and NeoPrediX AG with its place of business in Basel (Switzerland).                                                                                                                            Valid as of January 2021