General Terms and Conditions
We are very delighted that you have shown interest in our product. The general terms and conditions (GTC) for the sale of quantum processors (merchandise) by XeedQ GmbH, represented by its Managing Director Dr. G Balasubramanian, Delizscher Str 80, 04129 Leipzig, Germany
- The offer, the order and the contractual relationship are exclusively based on our General Terms and Conditions (GTC). Deviating, conflicting or supplementary general terms and conditions shall not become part of the contract, even if they are acknowledged or delivered without reservation, unless their validity is expressly agreed.
- These terms and conditions apply to all current and future business relations with persons who, at the time of conclusion of the contract, are acting in the exercise of their commercial or independent professional activity (entrepreneurs) or legal persons under public law or a special fund under public law. The sale to consumers in the sense of § 13 BGB is excluded.
- Our offers are always subject to change and non-binding. We reserve the right to make technical changes within the scope of what is reasonable for the customer.
- Any product descriptions or illustrations, drawings, weights and dimensions enclosed with our offers or contained in catalogues, technical data sheets or product documentation or given verbally are non-binding unless expressly designated as binding. We reserve the property rights and copyrights to cost estimates, drawings and all other documents originating from us. These documents may not be made accessible to third parties.
- By ordering goods, the customer bindingly declares that he wishes to purchase or receive the ordered goods. We are entitled to accept the contractual offer contained in the order within two weeks of receipt. The acceptance can be declared either in writing or by delivery of the goods to the customer.
- Subsidiary agreements, amendments and supplements require our confirmation in text form.
- The customer is obligated to contribute to the fact that we can start with our services in time and carry them out without interruption.
- If we manufacture products according to the customer’s specifications or according to data or quality samples, the customer shall ensure, without being specifically requested to do so, that we receive all materials, aids, documents and information required for the execution of the order in good time before the agreed delivery date. The customer shall point out to us any safety risks of the materials handed over or other equipment provided by him and shall hand over to us technical data sheets or safety data sheets, if available. We take the materials, aids, documents and information provided by the customer as well as the stated facts as correct and complete.
- The customer shall establish the operating conditions and free access necessary for the agreed range of services at its own expense. We are entitled to subcontract, but remain responsible for the services to be provided. We may refuse work at the customer’s request insofar as concerns exist (e.g. with regard to safety regulations).
- Our products are used exclusively for scientific research and validation but not for resale or as components of another merchandise.
- The product, its usage and its locations need to be approved by the export control laws and regulations of the federal republic of Germany.
II Prices and terms of payment
- In the absence of a special agreement, the prices are ex works including loading at the factory, but excluding packaging and insurance, unless expressly offered otherwise. Value added tax at the respective statutory rate shall be added to the prices. Any other government levies are not included in the prices and are to be borne by the customer. We, XeedQ GmbH, are not obliged to refer to such levies.
- The current price lists at the time of conclusion of the contract shall apply. We shall be bound by the prices applicable at the time the contract is concluded or the order is placed for four months after the order is placed. If longer delivery dates or periods are agreed, the respective applicable prices shall apply subject to individual agreements.
- Unless otherwise agreed, the customer shall bear the packaging and shipping costs. Subject to written instructions from the customer, the choice of shipping method and the delivery service commissioned shall be at our discretion.
- The customer undertakes to make payment to our paying agent in cash without any deductions. Unless otherwise agreed, all our invoices are payable within 21 days of the invoice date without deductions. This also applies to invoices for partial deliveries.
- If the customer does not pay within the agreed dates or the aforementioned period, he shall be in default of payment. During the period of default, the entrepreneur shall pay interest on the debt at a rate of eight percentage points, the customer at a rate of five percentage points, above the applicable base interest rate in accordance with § 247 BGB (German Civil Code). We reserve the right to prove and claim higher damages for default from the customer.
- We expressly reserve the right to refuse bills of exchange and cheques. Their acceptance shall always be on account of performance only. Discount, cheque and bill charges shall be borne by the customer and are due immediately.
- We reserve title to all goods delivered to entrepreneurs, legal entities under public law and special funds under public law until payment of the total claim arising from the current business relationship. In this case, the entrepreneur assigns to us, by way of security, the full amount of the claim against his customer to which he is entitled from the sale or for any other legal reason, including all ancillary rights. We accept the assignment. After the assignment, the entrepreneur is authorised to collect the claim. We reserve the right to collect the claim ourselves as soon as the entrepreneur does not properly meet his payment obligations or defaults on payment. If the value of the items serving as security and delivered under reservation of title exceeds the total claim by more than 20%, we shall be obliged to release securities to this extent at the request of the entrepreneur. The processing of the goods by the entrepreneur shall always be carried out in our name and on our behalf. If the goods are processed with objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of purchase to the other processed objects. The same shall apply if the object of purchase is mixed with other objects not belonging to us.
- With respect to the consumer, we retain title to the goods until payment has been made in full.
- The customer may neither pledge nor assign by way of security the object of sale or the work before payment has been made in full. In the event of seizure or confiscation or other dispositions by third parties, the customer must notify us immediately.
- In the event of breach of contract by the customer, in particular default of payment, we shall be entitled to take back the goods after issuing a reminder and the customer shall be obliged to surrender the goods. The assertion of the reservation of title as well as the seizure of the object of sale shall not be deemed a withdrawal from the contract.
- We are entitled, without giving reasons, to make deliveries only against advance payment.
- In the event of a delay in acceptance on the part of the entrepreneur, we shall be entitled, after setting a reasonable period of grace, to charge damages in the amount of 25% of the purchase price or the remuneration for the work. The entrepreneur is expressly permitted to prove that no damage or a reduction in value has occurred at all or that it is significantly lower than the lump sum.
- The customer is obliged to notify us immediately of any access by third parties to the goods, for example in the event of seizure, as well as any damage to or destruction of the goods. The customer must also notify us immediately of any change of ownership of the goods and of his own change of residence. The customer is obliged to treat the goods with care. If maintenance and inspection work is required, the customer must carry this out regularly at his own expense.
- We shall be entitled to withdraw from the contract and demand the return of the goods in the event of breach of contract by the customer, in particular in the event of default in payment or breach of an obligation under the aforementioned clause of this provision.
- The customer shall only have a right of set-off if his counterclaims have been legally established or are undisputed.
III Delivery/Transfer of risk
- Delivery dates are only binding if they are confirmed by us in writing. The start of the delivery period requires that the customer has provided all documents, approvals, releases and parts to be provided by him. The delivery period shall be deemed to have been complied with if the delivery item has left our works by the expiry of the delivery period or the customer has been notified that the delivery item is ready for dispatch. If acceptance is to take place, the acceptance date shall be decisive, alternatively the notification of readiness for acceptance, unless the customer justifiably refuses acceptance.
- We shall not be responsible for delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for us – this includes in particular strikes, lockouts, official orders, even if they occur at our suppliers or sub-suppliers – even in the case of bindingly agreed deadlines and dates, even if they occur at a time when we are already in default. We will inform the customer immediately about the non-availability and refund counter-performances of the customer immediately. We are entitled to postpone the delivery or service for the duration of the impediment plus a reasonable start-up period or to withdraw from the contract in whole or in part due to the part not yet fulfilled. If the impediment lasts longer than three months, we are entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or if we are released from our obligation, the customer cannot derive any claims for damages from this. We may only invoke the aforementioned circumstances if we notify the customer immediately.
- In the case of contracts with companies, legal entities under public law or special assets under public law, the risk of accidental loss and accidental deterioration of the goods shall pass upon handover or acceptance, and in the case of sale by delivery to a place other than the place of performance, upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. The transfer of risk shall also take place if partial deliveries are made or if we have assumed other services, e.g. the shipping costs or delivery and installation. If and insofar as acceptance is to take place, this shall be decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively after our notification of readiness for acceptance. The customer may not refuse acceptance in the event of a non-substantial defect.
- The handing over is equal if the customer is in default of acceptance.
- If the shipment of the delivery item is delayed at the request of the customer, we shall be entitled to reimbursement of the costs incurred or to be incurred due to storage, starting one month after notification of readiness for shipment. In the event of storage in our works, we shall be entitled to at least 1% of the invoice amount per month. We are entitled to dispose otherwise of the delivery item after setting and fruitless expiry of a reasonable deadline and to supply the customer with a reasonably extended deadline.
- Partial deliveries are permissible, provided that this is reasonable for the customer.
- An application for the opening of insolvency proceedings against the customer’s assets entitles us to withdraw from the contract without prejudice to our other rights.
- We shall initially provide a warranty to the customer for defects which the goods had at the time of the transfer of risk, at our discretion by rectification or replacement delivery. Replaced parts become our property. The right of the customer to remedy defects by way of self-performance is excluded. The customer is obligated to store the goods under complaint for an appropriate period of time at his own expense.
- The customer must give us the necessary time and opportunity to carry out the rectification or subsequent delivery.
- If the supplementary performance fails or if a reasonable period set for us for the rectification or replacement delivery due to a defect expires fruitlessly, the customer may, at his discretion, only demand a reduction of the remuneration (abatement) or rescission of the contract (withdrawal). However, in the event of only a minor breach of contract, in particular in the event of only minor defects, the customer shall not be entitled to withdraw from the contract.
- Obvious defects which are recognisable upon proper inspection – insofar as such inspection is feasible in the ordinary course of business – must be reported in writing by the entrepreneur within two weeks, by the customer within two months of receipt of the goods; otherwise the assertion of the defect is excluded. Timely dispatch shall be sufficient to meet the deadline. The entrepreneur shall bear the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect. Defects which are not obvious and which are not recognisable in the course of a proper inspection must be notified in writing by the Contractor within two weeks and by the Customer within one year of discovery. Otherwise the assertion of the defect is excluded.
- If the customer chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, he shall not be entitled to any additional claim for damages due to the defect. Claims for damages due to any consequential damage caused by a defect shall remain unaffected.
- We do not assume any warranty for unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences, unless we are responsible for these.
- We shall only be liable for any product properties if we have explicitly guaranteed such properties in writing. We do not guarantee that the products delivered by us correspond to the contractual and/or usage purposes desired by the customer.
- If the customer or a third party makes improper improvements, we shall not be liable for the resulting consequences. The same applies to changes to the delivery item without our prior consent.
- If the use of the delivery item leads to the infringement of industrial property rights or copyrights in Germany, we shall, at our expense, generally procure the right for the customer to continue using the delivery item or modify the delivery item in a manner reasonable for the customer in such a way that the infringement of property rights no longer exists.
- If this is not possible under economically reasonable conditions or within a reasonable period of time, the customer shall be entitled to withdraw from the contract. Under the aforementioned conditions, we shall also be entitled to withdraw from the contract.
- In addition, we shall indemnify the customer against undisputed or legally established claims of the owners of the property rights concerned.
- The obligations mentioned in the aforementioned clause 7. in the event of infringements of industrial property rights or copyrights are conclusive and only exist if
- a) the customer informs us immediately of any asserted infringements of industrial property rights or copyrights, b) the customer supports us to a reasonable extent in defending the claims asserted or enables us to carry out modification measures, c) we reserve the right to all defensive measures, including out-of-court settlements, d) the defect of title is not based on an instruction of the customer and e) the infringement of rights was not caused by the fact that the customer modified the delivery item without authorization or used it in a manner not in accordance with the contract.
- The customer undertakes to indemnify us against all claims for damages by third parties on account of any infringement of property rights and rights of use arising from the customer’s actions.
- If we manufacture products according to templates, data or quality samples provided by the customer, the customer shall be solely responsible for checking that no third-party rights are infringed thereby. The customer undertakes to indemnify us against all possible claims for compensation which arise or are asserted as a result of the infringement of third-party rights.
- For the entrepreneur, the warranty period is one year from delivery of the goods or provision of the service. For the consumer, the warranty period is two years from delivery of the purchased item or acceptance of the work performance.
- We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents.
- In the event of gross negligence on the part of non-executive employees, our liability for property damage and financial loss shall be limited to the foreseeable damage typical of the contract.
- In the event of simple negligence, we shall only be liable for property damage and financial loss in the event of a breach of material contractual obligations. Here too, our liability is limited to the foreseeable damage typical of the contract. Essential contractual obligations are those whose fulfilment makes the proper execution of the contract possible in the first place and on which our customer generally relies and may rely. The limitation period for our liability is one year.
- Any further liability for damages than regulated in the above paragraphs is excluded – regardless of the legal nature of the asserted claim.
- Liability for culpable injury to life, limb or health remains unaffected. Any unlimited liability under the provisions of the Product Liability Act shall remain unaffected.
VI Place of performance and jurisdiction
If the contractual partner is a merchant, a legal entity or a person under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract shall be our registered office. The same shall apply if the contractual partner does not have a general place of jurisdiction in Germany or if the place of residence or habitual abode is unknown at the time the action is brought.
VII Applicable Law
- The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
- Should individual provisions of the contract with the customer, including these general terms and conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.
Design Offices, Augustusplatz 1-4
04109 Leipzig, Germany
Dr. G. Balasubramanian
Place of Jurisdiction:
District court of Leipzig
Commercial register number: HRB 39034
VAT. ID no.: DE 346783287SDF