1. Scope
   1. These General Terms and Conditions ("GTC") apply exclusively to the sale of products ("Products") and the provision of services ("Services") by Agile Robots SE ("Seller") to the respective customer (each a "Buyer"), (Buyer and Seller each individually and together the "Contractual Partner(s)").
   2. Any terms and conditions of the buyer shall not apply. They shall not become part of the contract between the contracting parties even if the seller has not expressly objected to the use of the buyer's terms and conditions. Deviations from these GTC in the order shall only apply if the seller has expressly acknowledged them in writing.
   3. These GTC apply to each and every purchase contract or service contract ("Purchase/Service Contract") between the Seller and the Buyer.
   4. These GTC, the individual purchase/service agreement and any other document attached to the purchase/service agreement together form a binding legal relationship between the contracting parties ("Agreement"). In the event of any conflict between these GTC and the Purchase/Service Agreement, the Purchase/Service Agreement shall prevail.
   5. The Seller is entitled to amend the GTC at any time. The buyer will be informed of this in writing or by e- mail and, with regard to ongoing continuing obligations, has the right to object to the amended GTC within one month of notification. If the buyer does not object within this period, ongoing continuing obligations shall continue to exist under the amended GTC. If the buyer objects in due time, such continuing obligations shall continue to exist under the original GTC; however, the seller shall be entitled to terminate the contractual relationship without notice.
2. Conclusion of contract
   1. A contract is concluded when the buyer accepts the seller's offer. Each offer shall be submitted to the Buyer by the Seller in writing (i.e. by letter, fax or e-mail) and shall be deemed to be a legally binding offer for an individual purchase/service contract. It is a prerequisite that the offer explicitly states the date of the order, the model code of the product(s), the quantity of products and/or services and the desired delivery date.

   2. The buyer must accept or reject the offer without undue delay. The buyer's acceptance can be made in particular in the following ways:

      1. Signing and returning a copy of the purchase/service contract to the seller;
      2. Transmission of a written confirmation of the purchase/service contract to the seller;
      3. Instructions to the Seller regarding the manufacture, range or delivery of the Products (including invoicing and storage instructions) after receipt of the Purchase/Service Agreement;
      4. Acceptance of delivery of all or part of the Products and/or Services;
      5. Partial or full payment for the products and/or services;
      6. Any other manner by which acceptance of the contract is declared.
          

      Prior to the acceptance of the offer, the seller may revoke his offer at any time.

   3. The Buyer is responsible for ensuring that the details and conditions in its order are correct. It is also responsible for providing the Seller with all necessary information relating to the Products or Services in good time to enable the Seller to carry out the duties of the Contract in accordance with those information and conditions.
   4. Where products are to be newly manufactured, or a particular process is to be applied to the products, or services are to be provided by the Seller in accordance with a specification given by the Buyer the Buyer shall indemnify the Seller against all losses, damages, costs and expenses incurred by the Seller in connection with any claim for infringement of any patent, copyright, design right, trade mark right or other intellectual property right of any other person arising out of the Seller's implementation of such a specification.
   5. If the Products and/or Services are to be supplied to a specification requested by the Buyer, the Seller reserves the right to make changes to the specification of the Products and/or Services if such changes are necessary to comply with applicable statutory regulations or if the change does not materially affect the quality of the Products or the Service. The provisions of sec. 13 remain unaffected.
3. Prices
   1. The product price is specified in the individual purchase contract. The remuneration for services shall be governed by para. 7.5.
   2. The Seller shall also adjust any prices agreed on the basis of this contract at its sole reasonable discretion in accordance with the development of those costs that are decisive for the price calculation. A price increase shall be considered and a price reduction shall be made if, for example, the costs for the procurement of raw materials, the electricity costs or collective wages increase or decrease or other changes in the energy industry or legal framework conditions lead to a changed cost situation. Increases in one type of cost may only be used for a price increase to the extent that they are not offset by any decreases in costs in other areas. In the event of cost reductions, the Seller shall reduce the prices insofar as these cost reductions are not fully or partially offset by increases in other areas. When exercising its reasonable discretion, the Seller shall select the respective points in time of a price change in such a way that cost reductions are not taken into account according to more unfavourable standards for the Buyer than cost increases, i.e. cost reductions shall have at least the same price effect as cost increases. The same applies accordingly to a change in delivery dates.
   3. Unless otherwise agreed in writing between the Buyer and the Seller, all prices are quoted by the Seller on an EXW (ex works) basis (Incoterms 2020). If it is agreed in the purchase/service contract that the Products are to be delivered to a place other than the Seller's premises, the Buyer shall bear the costs of transport, packaging and insurance.
4. Payment
   1. The Buyer shall pay in accordance with the payment terms set out in the purchase/service contract.
   2. Payment shall be made by bank transfer to the bank account of the Seller or a named third party specified in the purchase/service contract; a cheque or bill of exchange shall not be deemed to fulfil the payment obligation.
   3. Payment shall be deemed to have been made on the date on which it is credited to the specified bank account.
   4. If a payment is not made by the due date, the Seller shall be entitled - without prejudice to the rights otherwise available to him - at its discretion to:
      • withdraw from the contract or suspend further deliveries to the buyer;
      • and/or charge the buyer interest on the outstanding amount at a rate of nine (9) percentage points above the base rate of the Deutsche Bundesbank per annum. The right of the seller to claim further damages remains unaffected.
5. Delivery, delivery periods and transfer of risk
   1. Unless otherwise agreed in the Purchase Contract, "delivery" of the Products shall be deemed to be the time when the Seller notifies the Buyer that the Products are ready for collection ("EXW" "Ex Works" according to Incoterms 2020). At that time, the risk of deterioration or loss of the Products shall also pass to the Buyer.
   2. Compliance with delivery periods shall be conditional on the timely provision to the Seller of all documents, necessary permits and releases, and in particular drawings that are to be supplied by the Buyer. An additional condition is the compliance of the Buyer with the agreed terms of payment and any other obligations. If the buyer does not fulfil his obligations or does not fulfil them in time, the delivery periods shall be extended by a reasonable time; this shall not apply if the seller is responsible for the delay on the part of the buyer.
   3. If non-compliance with the delivery periods is due to force majeure (para. 10.4), the delivery periods shall be extended accordingly.
   4. At the Seller's request, the Buyer shall declare within a reasonable period of time whether it withdraws from the contract due to the delay in delivery or insists on delivery.
   5. If dispatch or delivery is delayed at the request of the buyer by more than one month after notification by the seller that the goods are ready for dispatch, the buyer may be charged storage costs amounting to 0.5% of the price of the delivery for each month or part thereof, but not more than a total of 5% of the price of the delivery. Statutory legal claims, in particular Section 354 (1) HGB and Section 304 BGB, and Clause 4.4 of these General Terms and Conditions shall remain unaffected.
6. Retention of title
   1. Notwithstanding delivery and the passing of risk in the Products or any other provision of these GTC, title in the Products shall not pass to the Buyer until the Buyer has paid in full for the Products purchased and any additional Products subject to the purchase agreement and for which payment is due at that time.
   2. In the event of any breach of contract by the Buyer- in particular in the event of default in payment - the Seller shall be entitled, after fruitless expiry of a reasonable period for payment, to take back, sell, otherwise realise or seize the products still owned by the Seller in whole or in part ("Retained Goods").
   3. Insofar as the seller takes back, realises, sells or disposes of the goods subject to retention of title, this shall be deemed to be a withdrawal from the contract. The buyer shall bear the transportation costs of the goods subject to retention of title that have been taken back, sold, realised or seized. The proceeds from the sale, realisation or seizure of the reserved goods shall reduce the outstanding liabilities of the buyer to the seller, whereby the Seller shall be entitled to deduct reasonable costs of the sale, realisation or seizure from the proceeds.
   4. As long as the ownership of the reserved goods has not passed to the Buyer, the Buyer shall keep the reserved goods as trustee of the Seller and properly store, protect and insure the reserved goods.
   5. As long as title to the Retained Goods has not passed to the Buyer, the Buyer shall be entitled to resell or otherwise dispose of the Retained Goods in the ordinary course of its business, provided, however, that he shall be accountable to the Seller for the proceeds of any sale or other disposition of the Retained Goods, including any insurance proceeds, and shall keep such proceeds separate from its funds or assets or any funds or assets of any third party.
   6. In the event of seizures or other interventions by third parties in the goods subject to retention of title, the Buyer shall notify the Seller immediately so that the Seller can initiate a court decision in accordance with § 771 of the German Code of Civil Procedure (ZPO). If the Buyer fails to notify the Seller in due time, the Buyer shall be liable for the damage incurred.
   7. The Seller is obliged to release the securities to which he is entitled at the Buyer's request to the extent that the value of the securities exceeds the value of the claims to be secured.
7. Special provisions for the provision of services
   1. If and to the extent agreed between the contracting parties, the Seller shall provide certain services to the Buyer, e.g. installation services at the Buyer's premises or training. The scope of the services shall be set out in the purchase/service agreement. Unless expressly stipulated otherwise, the services shall always be provided as time services; a specific success is not owed.
   2. If required and/or to the extent agreed in the Purchase/Service Agreement, Seller may provide Services remotely from one of its office locations. Corresponding (confidential) support access data are specified in the Service Agreement and/or will be communicated separately to the Buyer. If the Buyer requests that the Services be provided on-site at its location and the travel and accommodation costs are not included in the Seller's agreed scope of services, the Buyer shall reimburse the Seller's travel and accommodation costs if the Buyer has authorised the travel.
   3. Subject to Buyer's policies and necessary approvals, Seller shall be granted physical access to all necessary network and IT systems at Buyer's premises. Such access may only be used for the purposes of the Services in accordance with the contractual agreement between the parties. All information thus obtained by the Seller about the network and IT systems of the Buyer shall be strictly confidential and shall, moreover, be subject to the provisions of clause 12 of these GTC.
   4. The Seller shall be granted access to the Buyer's network and IT systems during the times specified in the Purchase/Service Agreement or during the Buyer's normal business hours. If the Seller's employees have to perform the Services on site, the Buyer shall ensure the provision of a suitable office space with telephone and unlimited internet access. International calls shall be permitted.
   5. The prices to be paid by the Buyer for the Services are based on the purchase/service contract. The Seller is entitled to change the list prices within the framework of its general pricing policy; it will send the Buyer a revised price list at least 2 weeks before the changes come into force. The clauses 3.2, 4 and 5.2 to 5.5 shall apply accordingly.
   6. Claims for non-performance or poor performance shall become statute-barred after twelve months.
   7. Unless otherwise agreed, a service contract between the contracting parties shall be deemed concluded upon acceptance of the order or offer. The service contract has no fixed term and ends with the provision of all agreed service time units by the seller. Either contracting party may terminate the service contract in writing for good cause. Good cause is deemed to be in particular:
      • circumstances in which the terminating contractual partner, taking into account all circumstances of the individual case and weighing the interests of the other contractual partners, cannot reasonably be expected to continue the contract. This is in particular the case if the other contracting party intentionally violates an essential contractual obligation and does not immediately - at the latest within 45 (forty-five) days after receipt of the warning - completely remedy this violation, and/or
      • if a substantial deterioration in the financial circumstances of the other contracting party is imminent or has occurred and the fulfilment of one of the obligations of the other contracting party is thereby jeopardised, or if the other contracting party fails to provide information on its financial circumstances within 14 days of a written request, which enables the requesting contracting party to assess whether the fulfilment of one of the obligations of the other contracting party is jeopardised, and/or
      • if significant changes occur in the legal form or ownership or changes in the composition of the management of one of the contracting parties so that it is unreasonable for the other contracting party to comply with the service contract.
8. Training services
   
   he contracting parties may separately agree that the Seller shall provide the Buyer with training (cf. clause 7.1) of the Buyer's employees or have such training services provided by third parties. The details, in particular regulations on remuneration, as well as on the number of participants and training locations, shall be regulated separately by the contracting parties.
9. Claims in the event of material defects

   1. Material defects
      
      The buyer is obliged to inspect each product delivery for defects and to notify the seller immediately in writing of any defects in accordance with the statutory provisions (§§ 377 ff. HGB) and to give notice of defects. If the Seller provides a "Checklist for Acceptance" upon delivery, the Buyer may use it. If the Buyer fails to notify the Seller of a defect, the products shall be deemed to have been accepted, unless the defect was not recognisable upon inspection. If a defect becomes apparent later, the notification must be made immediately after discovery; otherwise the products shall be deemed approved also in view of this defect.
      
      Without prejudice to the provisions of para. 10, the Seller's liability for defects is limited as follows:

      • The Seller shall not be liable for defects resulting from a design or specification commissioned by the Buyer;
      • The Seller's liability does not extend to parts, materials or to equipment manufactured by or on behalf of the Buyer unless such liability is covered by a warranty given to the Seller by the manufacturer of such parts; however, statements and descriptions made by the Seller do not constitute warranties by the Seller; warranties must be in writing and must be expressly designated as such.

      Seller's liability shall not extend to defects in or damage to the Products resulting from improper installation or maintenance, misuse, negligence or any cause other than ordinary commercial use.

   2. Claims due to material defects
      
      If the buyer asserts a claim for a defect against the seller in accordance with this section 9 a claim due to a defect, the Seller shall first be entitled to subsequent performance within a reasonable period. Within the scope of the subsequent performance, the Seller shall be entitled, at its discretion, to replace the Products free of charge (subsequent delivery) or to repair the Products (subsequent improvement). If the Seller is neither willing nor able to make a subsequent delivery and repair within a reasonable period of time, the Buyer may, at its option, demand a reduction of the purchase price (abatement) or rescission of the contract (withdrawal).
      In addition to the aforementioned rights, the Buyer shall be entitled, to claim damages in lieu of performance or reimbursement of its expenses in accordance with the following para. 10 ("Limitation of liability").
      If the Seller's supplementary performance is effected by ways of subsequent delivery, the Buyer shall return the products delivered first within 30 days. Otherwise, the Seller is entitled to charge the purchase price for the subsequently delivered products.
      The limitation period for claims for defects is twelve months and begins at the time of delivery.
10. Limitation of liability

    1. The Seller shall be liable for damages, irrespective of the legal grounds, including in the event of breach of contractual obligations or claims in tort, exclusively in the following cases:

       1. Intention;
       2. culpable injury to life, body or health;
       3. to the extent that the Seller (i) has expressly assumed a warranty and/or (ii) has expressly assumed the risk of non-availability of certain products by written agreement and/or (iii) is subject to product liability claims under the Product Liability Act;
       4. gross negligence; and/or
       5. in other cases in the event of a breach of a material contractual obligation, i.e. an obligation the fulfilment of which is a prerequisite for the proper performance of the contract and on the fulfilment of which the Buyer regularly relies and may rely and/or the breach of which jeopardises the purpose of the contract.

       Otherwise, the liability of the seller is excluded.

    2. In the cases referred to in points 10.1 d) and 10.1 e) the Seller's liability shall be limited to the typical and foreseeable damage.
    3. The exclusions or limitations of liability pursuant to clauses 10.1 to 10.2 shall also apply to the same extent to the actions of the Seller's legal representatives and vicarious agents. Furthermore, the Seller shall not be liable for the grossly negligent breach of non-essential contractual obligations by simple, non- managerial vicarious agents.
    4. The Seller shall not be liable for the non-fulfilment of its obligations if the non-fulfilment is due to force majeure. Force majeure shall be deemed to exist if there is an external influence that is extraordinary and unavoidable, such as in cases of operational disruptions, riots, war, natural disasters, political unrest, pandemics, official orders and other unavoidable events. As long as force majeure exists, the Seller's obligation to perform its duties shall be suspended. If the seller fails to perform its obligations due to force majeure for a period of more than thirty days, either party may withdraw from the contract without judicial intervention and without any obligation to pay damages.
11. Data protection
    1. The contracting parties undertake to observe the provisions of the relevant laws as amended from time to time with regard to the protection of personal data.
    2. The contracting parties shall inform each other about mandatory requirements of the applicable data protection laws and, to the extent necessary, provide the other contracting party with appropriate instructions to comply with the requirements of the applicable data protection laws. The contractual partners declare their willingness to conclude additional agreements, if necessary, which ensure compliance with the relevant data protection regulations.
12. Confidentiality
    1. "Confidential Information" means any information declared confidential under the parties' agreement, these GTC or by a party, and generally any information and data in paper, oral or electronic form, such as technical or business data, documents or knowledge, as well as prototypes exchanged by the parties in connection with their agreement.
    2. For the duration of the agreement, subject to the provisions in Clause 7.7 and Clause. 12.3, and for a period of ten (10) years thereafter, each Party agrees to use Confidential Information only for the purpose of performing the Agreement or exercising the rights granted in the Agreement. It shall not be disclosed to any third party or made available only to those employees or associates of the contractors' affiliates or to those acting on behalf of the contractors and/or its affiliated consultants who need to know it in connection with the contractors' agreement and who are required to comply with a confidentiality agreement corresponding to this clause 12, unless they are bound by a general confidentiality agreement under an employment or consultancy contract. Before disclosing confidential information to an affiliate or consulting firm, a contractor must ensure that an appropriate agreement is in place with the affiliate or consulting firm requiring that firm to treat confidential information in a manner consistent with this clause. 12.
       
       The contracting parties agree that any breach of the aforementioned obligations by a consultant or employee of one of the contracting parties or of a company affiliated with it shall be deemed equivalent to a breach by that contracting party.
       
       This duty of confidentiality does not apply to confidential information that
       • was published or otherwise generally available to the public at the time of disclosure to the receiving party; or
       • has been published or made generally available to the public after disclosure to the receiving party, unless the receiving party has breached the parties' agreement or these GTC; or
       • was already known to the receiving party at the time of disclosure by the disclosing party and was not otherwise acquired by the receiving party from the disclosing party subject to confidentiality obligations; or
       • at any time after the date of the conclusion of the agreement the contracting party was acquired by the receiving contracting party from a third party who has the right to disclose it to the receiving contracting party without that third party having breached its obligations towards the disclosing contracting party, or
       • have been developed independently of the work carried out by the receiving contractual partner within the framework of the contractual relationship.
    3. Three (3) months after the end of the term of the agreement, the entrusted contractor may, subject to the provisions of sec. 13.4, demand in writing that the receiving party immediately destroy or return all confidential information in paper and/or electronic form and all copies thereof and, if applicable, any prototypes that have been exchanged, provided this does not violate statutory regulations. The receiving contractor shall confirm the return or destruction to the entrusted contractor in writing within fourteen (14) days of receipt of the request.
    4. Press publications by the contracting parties are only permitted with the prior written consent of the other party.
    5. Reverse engineering or back engineering or any other process of deconstruction of the Seller's products by the Buyer for the purpose of analysing and disclosing functionality, design, architecture or obtaining other knowledge is not permitted, unless mandatory copyright law with regard to software regulates otherwise for individual acts of observation, examination, testing or decompilation.
13. Intellectual property rights
    1. The Buyer shall recognise and respect all intellectual property rights, in particular industrial property rights, copyrights and know-how of the Seller ("IPR") and shall not procure, distribute, market or sell any Products which are counterfeits of the Products or otherwise infringe the Seller's IPR in the Products.
    2. Any IPR in the Products and any Services of the Seller delivered and/or otherwise made available to the Buyer shall at all times remain the sole property of the Seller. The Buyer may use or exploit the IPR solely in accordance with the purpose of the Purchase/Service Agreement.
    3. The Buyer is obliged to comply with the Seller's licence terms for software products. The provisions of any end user licence agreement of the Seller ("EULA") shall take precedence over these GTC. Subject to other provisions, the Buyer shall receive a non-exclusive right of use to software components, unlimited in terms of content and time and compensated for with the agreed remuneration, upon delivery/service of the Seller. However, the Buyer shall only be entitled to reproduce the software components to the extent that this is necessary for the intended use. Furthermore, the Buyer is entitled to make copies of the software components for backup purposes.
    4. Insofar as product specifications are developed for the Buyer, all IPR in this respect shall belong to the Seller. Irrespective of the Buyer's right of use under this Clause, the Seller shall be entitled to use the product specifications. 13 and subject to the corresponding restriction of the provisions of sec. 12 The Seller shall be entitled to use corresponding specifications in particular for other customer orders and its own product developments.
    5. In all other respects, the buyer shall refrain from passing on or making any dispositions about the IPR.
14. Infringement of industrial property rights of third parties
    1. If the Buyer becomes aware from a third party that the use of the products allegedly infringes the property rights of a third party, he shall inform the Seller thereof without undue delay. To the extent possible, the Seller and the manufacturer of the Products may, at their own expense, assume the defence of claims asserted on the basis of the alleged infringement of property rights and conduct negotiations to settle the dispute. The Buyer shall assist the Seller and the manufacturer in any such proceedings to the extent reasonable and appropriate for the defence and settlement negotiations. The Seller's liability for defects of title shall remain unaffected.
15. Non-solicitation
    1. The contractual partners undertake not to actively entice away personnel of the other contractual partner for the duration of their contractual relationship and until the expiry of one (1) year after the end of the contract.
    2. In the event of any infringement, a contractual penalty in the amount of EUR 100,000 shall be forfeited and due immediately. The assertion of further damages is not excluded.
16. Applicable law and place of jurisdiction
    1. These GTC, all orders placed on the basis of these GTC and all contracts subject to these GTC shall be governed exclusively by the laws of the Federal Republic of Germany (excluding the UN Convention on Contracts for the International Sale of Goods - CISG).
    2. The exclusive place of jurisdiction for all disputes arising from or in connection with these GTC and/or a contract subject to these GTC shall be the Regional Court of Munich, Germany. However, the Seller shall also be free to invoke the court responsible for the Buyer's place of business instead.
    3. Amendments and supplements to the contractual agreements shall only be legally effective if they have been agreed in writing. This also applies to changes to the written form requirement itself.
    4. There are no oral agreements or ancillary agreements.
    5. If any provision of these GTC is or becomes invalid, the validity of the remaining provisions shall not be affected. In this case, the parties shall replace the invalid clause with a valid one that comes as close as possible to the economic purpose and intention of the invalid clause.

(as of June 2024)