Inpixon GmbH STANDARD TERMS AND
CONDITIONS [FOR THE SALE OF PRODUCTS]
I. Preamble
These Standard Terms and Conditions shall exclusively apply, save as varies by express agreement
accepted in writing by both parties. The offer, order acknowledgement, order acceptance of sale of any
products covered herein are conditioned upon the terms contained in this instrument. Any conditional
or different terms proposed by the buyer are objected to and will not be binding upon the seller unless
assented in writing by Nanotron.
These conditions shall govern any future individual contract of sale between Nanotron and the buyer to
the exclusion of any terms and conditions subject to which any such quotation is accepted or purported
to be accepted, or any such order is made or is purported to be made, by the buyer. The provisions of
these Standard Terms and Conditions extend to standard contract conditions, which are used in a
contract with the merchant in the course of business only.
II. Orders and Specifications
No order submitted by the buyer shall be deemed to be accepted by Nanotron unless and until
confirmed in writing by Nanotron within ten [10] days after submittal.
The quantity, quality and description of and any specification for the products shall be those set out in
Nanotron’s quotation (if accepted by the buyer) or the buyer’s order (if accepted by Nanotron).
The buyer shall be responsible for Nanotron for ensuring the accuracy of the terms of any order
submitted by the buyer, and for giving Nanotron any necessary information relating to the products
within a sufficient time to enable Nanotron to perform the contract in accordance with its terms.
If the goods are to be manufactured or any process is to beapplied to the products by Nanotron in
accordance with a specification submitted by the buyer, the buyer shall indemnify Nanotron against all
losses, damages, costs, expenses awarded against or incurred by Nanotron in connection with or paid
or agreed to be paid by Nanotron in settlement of any claim for infringement of any patent, copyright,
design, trade mark or other industrial or intellectual property rights or any other person which results
from Nanotron’s use of the buyer’s specification.
Nanotron reserves the right to make any changes in the specification of the products which are
required to conform with any applicable statutory requirements if they do not materially affect their
quality or performance.
III. Price of Products
The price for the goods shall be Nanotron’s quoted price or, where no price has been quoted, the price
listed in Nanotron’s published price list current at the date of acceptance of the order. Where the
products are supplied to export from Germany, Nanotron’s export price list shall apply.
Nanotron reserves the right, by giving notice to the buyer at any time before the delivery, to increase
the price of the products to reflect increase in the cost to Nanotron which is due to any factor beyond
the control of Nanotron (such as foreign exchange fluctuation, currency regulation, alteration of duties,
significant increase in the costs of materials or other costs of manufacture) or any change in delivery
dates.
Except as otherwise stated under the terms of any quotation or in any price list of Nanotron, and unless
otherwise agreed in writing between Nanotron and buyer, all prices are given by Nanotron on an ex
works basis, and where Nanotron agrees to deliver the products otherwise than at Nanotron’s premises,
the buyer shall be liable to pay Nanotron’s charges for transport, packaging and insurance.
The price is exclusive of any applicable value added tax, which the buyer shall be additional liable to
pay to Nanotron.
IV. Terms of Payment
The buyer shall pay the price of the products within 14 days of the date of Nanotron’s invoice. Payment
shall be effected by interbank payment transaction only; no cheque or bill of exchange will be considered
as fulfilment of the payment obligation. If the buyer fails to make any payment on the due date
then, without prejudice to any other right or remedy available to Nanotron, Nanotron shall at its
discretion be entitled to: (i) cancel the contract or suspend any further deliveries to the buyer; or (ii)
charge the buyer interest on the amount unpaid, at the rate of 7 % per annum above European Central
Bank reference rate from then being valid, until payment in full is made. The buyer shall be entitled to
prove that the delay of payment caused no or little damage only. Nanotron will charge return & shipping
costs with 350,- €.
V. Delivery
Delivery of the goods shall be made by the buyer collecting the goods at Nanotron’s premises at any
time after Nanotron has notified the buyer that the goods are ready for collection or, if some other place
for delivery is agreed by Nanotron, by Nanotron delivering the goods to that place. Where delivery of
the goods is to be made by Nanotron in bulk, Nanotron reserves the rights to deliver up to 3 % more or
three percent less than the quantity ordered without any adjustment in the price, and a quantity so
delivered shall be deemed to be in the quantity ordered.
If a fixed time for delivery is provided for in the contract, and Nanotron fails to deliver within such time
or any extension thereof granted, the buyer shall be entitled, on giving Nanotron within a reasonable
time notice in writing, to claim a reduction of 3 % per week of the price payable under the contract,
unless it can be reasonably concluded from the circumstances of the particular case that the buyer has
suffered no loss. This time limit shall not apply if the business had to be settled on a fixed date or if
Nanotron, its agents or representatives, caused the delay negligently or intentionally or if there is any
further breach of essential contractual obligation.
If for any reason whatever Nanotron fails within such time of effect delivery, the buyer shall be entitled
by notice in writing to Nanotron to fix a deadline after the expiry of which the buyer shall be entitled to
terminate the contract. The buyer may also recover from Nanotron any loss suffered by the buyer by
reason of the failure of Nanotron. The buyer may only claim for damages if Nanotron (or its representatives)
intentionally or negligently failed to fulfil this contract. Nanotron shall nevertheless be held
responsible for not fulfilling any further essential contractual obligations.
If the buyer fails to accept delivery on due date, he shall nevertheless make any payment conditional
on delivery as if the goods had been delivered. Nanotron shall arrange for the storage of the goods at
the risk and cost of the buyer. If required by the buyer Nanotron shall insure the products at the cost of
the buyer.
30 days prior to the requested delivery date a given order becomes non-cancellable and nonchangeable.
Buyer assumes 100% liability. Buyer may request Nanotron to change the delivery
request date of a given order once at the terms set out below. If changed once this order becomes noncancellable
and non-changeable. Buyer assumes 100% liability.
Providing buyer has not, yet, requested Nanotron to change the requested delivery date, Nanotron may
accept a cancellation of this order with the following liability assumed by the buyer: 90 to 60 days prior
to the scheduled delivery 50%, 60 to 30 days prior to the scheduled delivery 75% and less than 30
days prior to the scheduled delivery 100% of the product price times the quantity cancelled.
VI. Transfer of Risk
Risk of damage to or loss of the products shall pass to the buyer as follows: (i) in the case the products
have to be delivered otherwise than at Nanotron’s premises, at the time of delivery or, if the buyer
wrongfully fails to take delivery of the goods, the time when Nanotron has tendered delivery of the
goods; (ii) in the case the products are to be delivered at the premises of Nanotron (“ex works”,
INCOTERMS 2000) at the time when Nanotron notifies the buyer that the goods are available for
collection.
VII. Retention of Title
Notwithstanding delivery and passing of the risk in the products, or any other provision of these
conditions, the property in the products shall not pass to the buyer until Nanotron has received
payment in full of the price of the products and all other products agreed to be sold by Nanotron to the
buyer for which payment is then due. Nanotron shall have the absolute authority to retake, sell or
otherwise deal with or dispose of all or any part of the products in which the title remains vested in
Nanotron.
Until such time as the property in the products passes to the buyer, the buyer shall hold the products as
Nanotron’s fiduciary agent, and keep the products properly stored, protected and insured.
Until that time the buyer shall be entitled to resell or use the products in the ordinary course of its
business, but shall account to Nanotron for the proceeds, and shall keep all such proceeds of sale or
otherwise of the products including insurance proceeds, and shall keep all such proceeds separate
from any moneys or properties of the buyer and third parties.
If the products are processed or reshaped by the buyer and if processing is done with products that
Nanotron has no property in, Nanotron shall become co-owner of the products. The same shall apply if
Nanotron’s products are completely reshaped and mixed with other products.
If third parties take up steps to pledge to otherwise dispose of the goods, the buyer shall immediately
notify Nanotron in order to enable Nanotron to seek a court injunction in accordance with § 771 ZPO. If
the buyer fails to do so in due time he will be held liable for any damages caused.
Nanotron shall on demand of the buyer release any part of the collateral if the value of the collateral
held in favour of Nanotron exceeds the value of the claims being secured. It is to Nanotron’s decision to
release those parts of the collateral suitable for Nanotron.
VIII. Warranties and Exclusion Clauses
The buyer shall examine the products as required by German Law (§ 377 HBG) and in doing so check
every delivery in any respect.
Nanotron warrants that all items delivered under this agreement will be free from defects in material
and workmanship, conform to applicable specifications, and, to the extent that detailed designs have
been furnished by the buyer, will be free from design defects and suitable for the purposes intended by
the buyer.
Nanotron shall not be liable for the products being fit for a particular purpose unless otherwise agreed
upon, to which the buyer intends to put them.
The above warranty is given by Nanotron subject to the following conditions: (i) Nanotron shall not be
liable in respect of any defect in the products arising from any design or specification by the buyer; (ii)
Nanotron shall not be liable under the above warranty if the total price for the products has not been
paid by the due date for payment; (iii) the above warranty does not extend to parts, materials or
equipment manufactured by or on behalf of the buyer unless such warranty is given by the manufacturer
to Nanotron.
This warranty does not cover defects in or damage to the products, which are due to improper installation
or maintenance, misuse, neglect or any cause other than ordinary commercial application. Any
discharge from liability will be void if a defect results from a negligent or intentional breach of contract
on the part of Nanotron. The same applies if Nanotron may be held responsible for the breach of any
further fundamental contractual obligation.
Any claim by the buyer, which is based on a defect in the quality or condition of the products or the
failure to correspond with specification, shall be notified to Nanotron within six months from the date of
delivery.
The buyer is entitled to demand the delivery of any substitute product, or repair or reduction of the
purchase price as set forth within the terms of each individual contract of sale.
Where any valid claim in respect of any product which is based on any defect in the quality or condition
of the products or their failure to meet specification is notified to Nanotron in accordance with these
Conditions, Nanotron shall be entitled at Nanotron’s sole discretion to either replace the products free
of charge or to repair the products. If Nanotron is neither ready nor able to repair or replace the
products the buyer shall be entitled at the buyer’s sole discretion to claim for a reduction of price or the
cancellation of the contract.
IX. Miscellaneous Clauses
Nanotron reserves the right to improve or modify any of the products without prior notice, provided that
such improvement or modification shall not affect the form and the function of the product.
This agreement supersedes and invalidates all other commitment and warranties relating to the subject
matter hereof which the parties may have made either orally or in writing prior to the date hereof.
This agreement shall not be assigned or transferred by either party except with the written consent of
the other.
X. Choice of Law; Place of Jurisdiction
This agreement shall be governed by and construed in accordance with German law, and each party
agrees to submit to the jurisdiction of the courts having jurisdiction for Nanotron.
Nanotron shall have the right to bring a claim before a court at the buyer’s principal place of business
or at its discretion before any other court being competent according to any national or international
law.
MAINTENANCE TERMS AND CONDITIONS SCHEDULE
nanoLES & nanoANQ firmware
This Maintenance Terms and Conditions Schedule (“Maintenance Schedule”) is incorporated into, and forms a part of, the Master Purchase Agreement (the “Agreement”) between Company and Customer, as identified in the Agreement. Unless otherwise explicitly set forth otherwise herein, capitalized terms shall have the same meanings as set forth in the Agreement.
Article 1 – Provision of Maintenance
1.1 Maintenance. Subject to Customer’s payment of the applicable Fees, Company shall provide Maintenance with respect to the Products and Software, upon the terms and conditions herein, during the Maintenance Term set forth in a Quote.
1.2 Support Requests. In the event of a Product or Software issue causing the Product or Software not to perform as described in the Documentation or the Customer is requesting Support, Customer may notify Company of the request by email (“Incident Notification”) by emailing: nanotronsupport@inpixon.com.
The Company’s Services Desk will be available for Customer’s designated personnel between the hours of 9 a.m. and 5 p.m. (Central European Time), Monday through Friday, excluding German statutory (“Normal Service Hours”). Outside of Normal Service Hours, emails will be logged electronically and Customer will receive email confirmation thereof. Following Company’s receipt of a Support request, and in accordance with the Response Times set out below, Company will notify Customer that resolution activities have commenced and indicate whether Company requires any further information with respect to Customer’s support request.
a. For all issues/requests received during Normal Service Hours, a Support Technician shall determine if the issue/request/question can be answered or resolved immediately, the Support Technician will:
- Notify the Customer that the issue is received and in queue – see Response Times below.
1.3 Initial Response. Upon receipt of an Incident Notification, Company will make reasonable efforts and endeavor to remotely repair reported issues with the Product or Software that prevent the Product or Software from operating in conformity with the Documentation. Company’s response times and the associated resource commitment and escalation are set out in the following table:
| Customer Priority | Condition | First Response Time (business days) | Target Resolution / Resource Commitment |
|
Critical (Urgent) |
Software: Complete inability to use the software. Essential end-user components are non- functional. No convenient work-around is available.
Hardware: Faulty device firmware (hardware failure, local software failure). Security gap identified. Beyond acceptable loss of information threshold. Non-customer network related. |
1 Day |
Available workaround is investigated, and resolution prioritized to be addressed as soon as possible. May include:
|
|
Major (High) |
Software: Major components are non- functional. Core end-user or administrative components are negatively impacted by reduced functionality or performance. The software will operate but its operation is severely restricted. Temporary work-around may or may not be available.
Hardware: Faulty device firmware (hardware failure, local software failure). Beyond acceptable loss of information threshold. Non-customer network related |
2 Days |
Where available, acceptable workaround is provided, and resolution is prioritized to be addressed in next available cycle. May include:
|
|
Minor (Low/Normal) |
Software: Minor components are non-functional. Non-essential end-user or administrative components are impacted. The software will operate and is not materially impacted. Temporary work-around may or may not be available. Hardware: Faulty device firmware (hardware failure, local software failure). Within acceptable loss of information threshold. Customer network related. |
1 Week |
Where available, workaround will be provided, and resolution will be prioritized to be addressed in a future cycle. May include:
|
1.4. General Updates. During the Maintenance Term, Customer is entitled to receive the following which Company generally makes available to its customers:
- On-Premises Software. With respect to on-premises software Products that Customer purchases pursuant to a Quote, Customer is entitled to receive Maintenance Releases and Minor Revisions.
- Sensors and Other Hardware Products. With respect to sensors or other hardware Products that Customer purchases pursuant to a Quote, so long as the Product has not been deemed end of life by Company, Customer is entitled to receive firmware Maintenance Releases and Minor Revisions.
Customer shall not be entitled to any of the foregoing outside of the Maintenance Term.
1.5. Remote Maintenance. Company shall perform Maintenance remotely utilizing Customer’s personnel, whom shall reasonably be made available, for assistance.
1.6. Out of Scope Maintenance. Any services, tasks, or activities not specified in this Maintenance Schedule are out of scope and may be addressed, at Company’s discretion, by a Change Request or as otherwise mutually agreed by the parties. Such services, tasks, or activities include, but are not limited to, the following:
a. Installation and mounting of Products or Hardware Deliverables and network cabling to sensor network;
b. Implementation of custom Product or Software features;
c. Hardware or software upgrades to non-Company equipment or componentry;
d. Support or replacement of Products or Software having been altered, modified, mishandled, destroyed or damaged through no fault of Company’s;
e. Support or replacement of Products or Software having been used by Customer or a third party other than as specified in the Documentation;
f. Support to resolve issues resulting from customer’s or third-party equipment, services, or problems beyond the control of Company (which includes software defect troubleshooting); and
g. Support to resolve issues resulting from third party equipment, services, or problems beyond the control of Company (which includes software defect troubleshooting).
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