Purchase Agreement for Battery Measurement Devices

§ 1 Subject Matter of the Contract

(1) The provider (Hebatronic GmbH) supplies the customer with hardware in the form of battery measurement devices (battery testers) in a closed housing, including accessories (sensors, connectors, cabling, etc.). The provider also supplies the customer with the associated firmware (hereinafter referred to as “software”) and grants the customer usage rights to it in accordance with the terms of use specified in this contract.

(2) The firmware is delivered pre-installed on the hardware. The source code is not provided.

(3) The setup of the hardware and establishment of the technical operational readiness of the battery measurement devices (battery testers), the provision of minor adjustments to the firmware, the installation and implementation within the customer’s network, or a user briefing are only part of the contract if these services are expressly agreed upon. Additional services by the provider—such as more extensive modifications or adjustments to the firmware, custom programming, consulting, training, hardware maintenance, and software maintenance—are in no case included in this contract; such additional services may be agreed upon separately in a legally independent contract between the parties.

(4) The agreed condition of the delivered hardware and software is defined exclusively in the product description of the respective battery measurement devices (battery testers) and in the functional descriptions contained in the user documentation.

(5) The provided user documentation is intended to enable the customer to operate the hardware and software properly. The user documentation is available in digital form in German and English. The customer has no claim to any condition of the documentation beyond this.

(6) The technical data, specifications, explanations of functions and usage options, as well as other information in the supplied product descriptions and user documentation, constitute solely a description of the agreed condition within the meaning of § 434 (2) sentence 1 no. 1 BGB and do not constitute independent guarantees, warranties of condition, or durability guarantees.

(7) Statements by the provider regarding the performance item constitute independent guarantees, warranties of condition, or durability guarantees in the legal sense only if they are issued in writing by the provider’s management and are expressly and literally designated as an “independent guarantee,” “warranty of condition,” or “durability guarantee.”

§ 2 Delivery Deadlines, Force Majeure, Transfer of Risk, Transport

(1) Delivery shall take place after completion and in coordination between the parties.

(2) As long as the supplier is prevented from performing due to an unforeseeable, extraordinary event that could not be avoided even with reasonable care — in particular natural disasters, disruptions in energy supply or operations, government intervention, labor disputes, unexpectedly occurring pandemics or epidemics, or other cases of force majeure — the agreed delivery periods shall be extended by the duration of the impediment and additionally by a reasonable start-up period after the impediment has ceased. If, in such cases, performance becomes impossible for the supplier, the supplier shall be released from its contractual obligations to perform.

(3) Unless otherwise agreed, the purchased items shall be shipped at the customer’s expense. The risk shall pass to the customer once the goods have been handed over to the transport provider or have left the supplier’s manufacturing facility or dispatch warehouse for the purpose of shipment. Upon the customer’s written request, transport insurance shall be arranged at the customer’s expense.

§ 3 Grant of Rights

(1) The provider grants the customer a simple, non-exclusive, perpetual right to use the software within the customer’s network and exclusively on the provider’s hardware.

(2) The customer may use the software only for its own purposes and for handling the internal business processes of its company. Use of the software is also permitted within companies affiliated with the customer pursuant to § 15 AktG (“group companies”). The customer is not permitted to make the software publicly available, wirelessly or via cable, to rent it out, lend it, or otherwise make it temporarily accessible to third parties (in particular as part of a data center operation for third parties, Application Service Providing [ASP], or as Software as a Service [SaaS]), unless this is expressly agreed or the provider has given prior written consent. Employees of the customer who require access to the software to fulfill their contractual duties are not considered third parties.

(3) Reproduction of the software is only permitted for its intended use. The customer is entitled to create a backup copy if this is necessary to secure future use. The customer is further permitted to reproduce the software as part of proper and regular data backups in accordance with the state of the art. The provided user documentation may only be reproduced to the extent necessary for the intended use of the software.

(4) The customer is only permitted to make changes, edits, adaptations, or decompilations of the software within the meaning of § 69c no. 2 UrhG in accordance with § 69d (1) UrhG if this is necessary for the intended use of the software, including the correction of a software error. Before correcting errors itself or through a third party commissioned by it, the customer must first give the provider the opportunity to remedy the error. If the provider remedies the error by supplying an update or a new program version of the software, the provisions of this § 3 apply to such replacement. In the case of decompilation under sentence 1, § 3 (5) sentence 2 below shall apply accordingly.

(5) Reproduction or decompilation of the software for the purpose of achieving interoperability with other programs is permitted under § 69e UrhG and the conditions stated therein, provided the additional requirement is met that the provider does not supply the necessary data within a reasonable period after receiving a written request from the customer. The customer shall treat information obtained through decompilation or provided by the provider confidentially in accordance with § 9 (1) and (2).

(6) Any use beyond the contractually agreed scope is not permitted and requires an additional grant of rights by the provider.

(7) Copyright notices, serial numbers, or identifiers may not be removed or altered from the hardware or software. Copies of the software or user documentation created by the customer must be marked as such and provided with the manufacturer’s copyright notice.

(8) The firmware of Hebatronic GmbH may contain open-source components. Where required by the licenses governing these open-source components, the terms of the respective open-source licenses shall take precedence over the terms of this agreement. If the conditions of the open-source licenses prohibit certain restrictions of this agreement with respect to the open-source components, such restrictions shall not apply to those components. “Open-source components” are parts of the firmware that are subject to an open-source license. An “open-source license” is a software license recognized by the Open Source Initiative as an open-source license or a substantially similar license, including but not limited to any license requiring that the distributor make the software available in source-code form.

§ 4 Remuneration, Payment Terms, Retention of Title

(1) The customer shall pay the agreed remuneration.

(2) The customer shall bear the costs for transport as well as for any transport insurance requested by the customer (see § 2 para. 3).

(3) All prices are exclusive of statutory value-added tax.

(4) Unless otherwise agreed between the parties, the agreed remuneration is due and payable within 14 days after receipt of the invoice and delivery of the purchased items to the customer.

(5) The provider retains ownership of the delivered hardware, any data carriers provided, and any user documentation provided in printed form until full payment of the agreed remuneration has been made.

§ 5 Obligations of the Customer

(1) The customer shall comply with the instructions contained in the user documentation for the operation of the hardware and software.

(2) The customer is obligated to properly and regularly back up its data before installing the software and before commissioning the Hebabox, as well as during operation thereafter.

(3) The customer shall grant the provider unrestricted access to the purchased items for the purpose of remedying any defects. At the request of the provider or the customer, it may be agreed that defect-removal measures for the software may also be carried out by the provider via remote maintenance.

(4) The assertion of rights and claims for material defects pursuant to § 6 below requires that the customer complies with the inspection and notification obligations under § 377 HGB. The customer must report defects in writing without delay after their discovery.

§ 6 Material Defects

(1) For the customer’s rights and claims in the event of material defects, the statutory provisions shall apply unless otherwise stipulated in the following provisions of this § 6 and in § 8.

(2) A material defect exists if the hardware, the software, or the user documentation does not exhibit the agreed condition pursuant to § 1 paras. 4 and 5.

(3) In the event of defects, the provider shall, at the customer’s request, provide subsequent performance at its discretion by remedying the defect (repair) or by delivering a defect-free item (replacement). The customer may, within a reasonable period, request a form of subsequent performance other than the one chosen by the provider if the provider’s chosen method is unreasonable for the customer. The provider’s rights under §§ 439 para. 4 and 275 paras. 2 and 3 BGB remain unaffected.

(4) In the case of software defects, the provider is entitled to provide subsequent performance by delivering a patch, update, or new program version of the software. The provider is entitled to deliver a new program version of the software provided it contains the same functional scope as the contractually required version and its adoption is reasonable for the customer and does not result in significant disadvantages. When a new version is delivered, the customer is obligated to return or delete the defective software (§ 439 para. 6 BGB). §§ 439 paras. 2 and 3 BGB remain unaffected.

(5) The provider is entitled to point out temporary workarounds to the customer and to remedy the defect later by delivering the next update or new program version of the software approved by the provider, provided this is reasonable for the customer. If the provider exercises this right, this shall be taken into account when determining the reasonableness of the period for subsequent performance pursuant to § 6 para. 7 below.

(6) The customer shall follow the instructions provided by the provider—whether by telephone, in writing, or electronically—within the scope of subsequent performance. The provider may issue such instructions in particular regarding the installation of patches, updates, or new program versions supplied for the purpose of subsequent performance, as well as for the implementation of temporary workarounds.

(7) If the customer sets the provider a reasonable deadline for subsequent performance and the subsequent performance fails within this period, the customer shall be entitled to the further rights of reduction or, at the customer’s discretion, withdrawal from the contract, and—if the provider is responsible for the defect—claims for damages in lieu of performance or reimbursement of futile expenses pursuant to § 284 BGB, subject to the agreed limitations of liability. However, the customer is only entitled to withdraw from the contract and assert claims for damages in lieu of the entire performance in the case of significant defects. The setting of a deadline, the declaration of withdrawal, and the assertion of damages in lieu of performance must be made in writing to be effective. A deadline set by the customer is not required in the statutory cases of §§ 281 para. 2, 323 para. 2, and 440 BGB.

(8) If a deadline set for subsequent performance pursuant to § 6 para. 7 expires without success, the customer must, within a reasonable period, declare in writing to the provider whether the customer continues to demand subsequent performance or intends to assert the further rights specified in § 6 para. 7 sentence 1. If the customer continues to demand subsequent performance and the provider promptly announces that such subsequent performance will be provided, the customer must grant the provider another reasonable deadline during which the customer is not permitted to assert the rights specified in § 6 para. 7 sentence 1. § 6 para. 7 sentence 4 remains unaffected.

(9) If, during an error analysis in connection with defects reported by the customer, it is determined that no claims or rights due to defects exist, the provider shall be entitled to charge the customer for the expenses incurred during the investigation, provided that the expenses were reasonably necessary and appropriate under objective criteria and the customer recognized or negligently failed to recognize that no defect existed but that the cause of the reported issue originated within the customer’s own area of responsibility. Any contributory negligence or co-responsibility on the part of the customer remains unaffected.

(10) The provider shall not be liable if modifications or alterations to the purchased items have been carried out by the customer or by third parties commissioned by the customer, unless the customer proves that the defects that have occurred are not attributable to such modifications or alterations.

(11) Subject to sentences 2 and 3 below, the customer’s claims due to a defect shall become time-barred twelve (12) months after delivery. For claims for damages and reimbursement of futile expenses pursuant to § 284 BGB due to intentional or grossly negligent breaches of duty, fraudulent concealment of a defect, proprietary claims of third parties pursuant to § 438 para. 1 no. 1 BGB, personal injury, claims under the Product Liability Act, and in cases where a guarantee has been assumed (§ 444 BGB), the statutory limitation provisions apply; however, in the case of a guarantee, this only applies if the respective guarantee agreement does not stipulate otherwise. § 445b BGB remains unaffected.

(12) Claims for reimbursement of expenses under § 445a para. 1 BGB are excluded. Sentence 1 does not apply if the customer resells the purchased items and the final contract in the supply chain is a consumer goods sale pursuant to §§ 478, 474 BGB or a consumer contract for the provision of digital products pursuant to § 445c sentence 2, § 327 para. 5, § 327u BGB.

§ 7 Legal Defects

(1) For the customer’s rights and claims in the event of legal defects, the statutory provisions shall apply unless otherwise stipulated in the following provisions of this § 7 and in § 8.

(2) A legal defect exists if the customer is not effectively granted the rights necessary for the contractual use of the purchased items.

(3) If a third party asserts against the customer that the software infringes protective rights, the customer shall
(i) notify the provider of this in writing without delay,
(ii) authorize the provider to conduct the legal dispute and settlement negotiations with the third party at the provider’s own expense and as independently as possible, and undertake to perform procedural actions only with the provider’s consent, and
(iii) provide the provider with all reasonable support and furnish it with the information, documents, and authorizations available to the customer that are necessary for this purpose.

(4) In the event that the software infringes third-party rights, the provider shall, at its discretion, provide subsequent performance by
(i) modifying the software so that it no longer infringes rights while maintaining equivalent performance and preserving the contractually agreed functionality for the customer, or
(ii) acquiring for the customer a right of use sufficient for the purposes of the contract to continue using the software, or
(iii) replacing the software with other software that is equivalent in terms of the agreed condition, provides corresponding performance, and does not result in significant disadvantages for the customer, or
(iv) delivering a new program version whose contractual use does not infringe third-party rights, which contains the same functional scope as the previous version, and whose adoption is reasonable for the customer and does not result in significant disadvantages.
In the cases of items (ii) to (iv), the customer is obligated to return or delete the software affected by legal defects (§ 439 para. 6 BGB).

(5) Otherwise, the provisions on material defects in § 6 paras. 6, 7, 8, 10, and 11 apply accordingly in the case of legal defects.

§ 8 Limitations of Liability

(1) Limitations of liability may be individually agreed between the parties. If no individual agreement is made, the provider shall be liable—regardless of the legal basis—for claims for damages or claims for reimbursement of futile expenses within the meaning of § 284 BGB in accordance with the following provisions in paragraphs 2 to 7.

(2) The provider shall be liable without limitation in accordance with statutory provisions for damages resulting from injury to life, body, or health, for damages based on intent or gross negligence, and for damages covered by a guarantee of quality or durability provided by the provider, unless otherwise specified in the respective guarantee agreement.

(3) For damages other than those mentioned in paragraph 2 that result from a slightly negligent breach of essential contractual obligations (cardinal obligations), the provider shall be liable only for the typical, foreseeable damage. Essential contractual obligations within the meaning of sentence 1 are obligations whose breach endangers the achievement of the contractual purpose, whose fulfillment enables the proper performance of the contract in the first place, and on whose compliance the customer regularly relies.

(4) In all other respects, liability for damages other than those mentioned in paragraph 2 that result from a slightly negligent breach of obligations other than those referred to in paragraph 3 shall be excluded.

(5) Liability under the Product Liability Act remains unaffected.

(6) The above limitations of liability also apply to the personal liability of the provider’s employees, vicarious agents, legal representatives, and governing bodies.

(7) If the customer breaches the obligation to properly back up data pursuant to § 5 para. 3, the provider shall, within the scope of the above provisions, be liable for data losses only to the extent of such damages that would also have occurred with proper and regular data backups carried out by the customer.

§ 9 Confidentiality and Data Protection

(1) The contracting parties undertake to treat as confidential, without any time limitation, all information or items that are transmitted or made known by the other contracting party in the course of contract initiation or performance and that constitute trade secrets or are designated as confidential (“confidential information”), and to use them only for the purpose of performing the contract. It is irrelevant whether the confidential information within the meaning of sentence 1 is additionally protected as trade secrets under the German Trade Secrets Act (GeschGehG); the obligation of confidentiality applies regardless of whether appropriate protective measures pursuant to the GeschGehG have been taken. The contracting parties shall secure the confidential information in such a way that access by unauthorized third parties is excluded.

(2) Confidential information includes, in particular, the purchased items specified in § 1 para. 1. The customer shall make these purchased items accessible only to employees and other third parties who require such access to perform the duties owed to the customer, and only within the scope of the usage rights granted to the customer under this contract. The customer shall instruct employees and third parties who are legitimately granted access to the confidential information about their confidentiality obligations and shall require them in writing to maintain confidentiality and to use the information only within the aforementioned scope, unless such persons are already obligated to maintain confidentiality to this extent on another legal basis.

(3) The foregoing confidentiality obligations do not apply to confidential information of a contracting party that
(i) was already publicly known at the time it was disclosed, or
(ii) becomes publicly known after its disclosure by the disclosing party without fault of the receiving party, or
(iii) was already lawfully in the possession of the receiving party at the time of disclosure, or
(iv) is lawfully provided to the receiving party by a third party after disclosure by the disclosing party without restrictions regarding confidentiality or use, or
(v) is developed by the receiving party without the use of the confidential information, or
(vi) must be disclosed by the receiving party due to statutory requirements, provided that the receiving party—where possible and legally permissible—
notifies the disclosing party of such disclosure in writing without delay and supports the disclosing party in preventing disclosure by filing legal remedies.
§§ 3 and 5 of the GeschGehG remain unaffected.

(4) The provider shall comply with all applicable statutory data protection provisions and shall obligate its employees and other vicarious agents to likewise comply with data protection requirements before commencing their activities.

§ 10 Set-Off and Right of Retention

(1) The customer may offset claims of the provider only with counterclaims that are undisputed, have been finally determined by a court of law, or are ready for decision.

(2) The customer is entitled to exercise a right of retention only to the extent that the counterclaim on which the right of retention is based is undisputed, has been finally determined by a court of law, or is ready for decision, and arises from the same contractual relationship.

§ 11 Final Provisions

(1) All agreements between the parties are contained in this contract document and its annexes. No further agreements exist.

(2) Amendments and/or additions to this contract must be made in writing in order to be effective. The cancellation of the written form requirement must also be made in writing in order to be effective.

(3) If the customer is a merchant, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for any disputes arising out of or in connection with this contract shall be the provider’s registered office. However, the provider shall also be entitled to bring an action against the customer at the customer’s general place of jurisdiction.

(4) This contract is governed by the law of the Federal Republic of Germany, excluding the conflict-of-law provisions that refer to another legal system; the application of the UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded. The language of the contract is German. In the event of translations, only the German version shall be authoritative.

(5) Should any provision of this contract be invalid, the validity of the remainder of the contract shall not be affected, provided it can be assumed that the parties would have concluded the contract nonetheless. In place of the invalid provision, a provision shall be deemed agreed that corresponds to the statutory regulation. If the parties have overlooked a point requiring regulation in the contract, the provision shall be deemed agreed that they would have agreed upon—considering both parties’ interests—had they been aware of the contractual gap.