General Terms and Conditions

1. Scope of application
1.1 The following General Terms and Conditions of sale (hereinafter referred to as "GTC") of neoom germany GmbH (hereinafter referred to as "neoom") are valid for all our business relations between neoom and the customer (hereinafter referred to as "Customer") for all energy and charging solutions sold by neoom.
1.2 All offers made by neoom in the field of energy and charging solutions are made exclusively based on the following terms, and all contracts are concluded exclusively on the basis of these GTC.
1.3 Contradictory, deviating or supplementary terms and conditions of the Customer shall not be recognised by neoom, unless neoom has expressly agreed to their validity.
1.4 The consent requirement in clause 1.3 shall also apply if neoom carries out the delivery to the Customer without reservation in the knowledge of terms and conditions of the Customer that are contrary to or deviate from or supplement these GTC.
1.5 The GTC only apply if the Customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
1.6 Individual agreements made with the Customer in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GTC. For the content of such agreements, subject to proof to the contrary, a written contract or neoom's written confirmation is decisive.
1.7 Legally relevant declarations and notifications of the Customer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in case of doubts about the legitimacy of the declarant, shall remain unaffected.
1.8 References to the applicability of statutory provisions shall only have a clarifying significance. Therefore, even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GTC.

2. Conclusion of contract and subject matter of contract, assignment of claims
2.1 Offers made by neoom are subject to change and non-binding. This applies in particular to offers in brochures, advertisements and other advertising material. Technical changes, as well as changes in form, colour, material, weight or similar are reserved within the scope of technical progress and what is reasonable. Not binding and possibly no longer up to date in this sense are mere catalogue details or details on Internet pages.
2.2 Calculations of profitability which can be called up on neoom's Internet pages, shown in brochures and other documents of neoom, as well as possible calculations of profitability by means of software provided by neoom, if applicable, serve exclusively as an orientation on the possible profitability of a system. These calculations expressly do not offer any certainty about the actual profitability of the system to be achieved and in particular do not represent any assurance on the part of neoom. neoom expressly points out that the legal framework conditions as well as also e.g. the running operating costs, the own consumption, subsidies and similar variables can change at any time. The Customer is aware of this and has to ask for the current data in each case, as well as to advise his end customers accordingly and to point this out.
2.3 The order of the goods by the Customer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, neoom is entitled to accept this contractual offer within 4 weeks after its receipt by neoom.
2.4 The acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Customer.
2.5 Subject matter of the contract are the goods and services designated in the order confirmation. The delivery of specific components used for the manufacture of goods is expressly not guaranteed. The selection of the individual components of goods is exclusively incumbent on neoom.
2.6 neoom is in any case entitled to use subcontractors (third parties) for the fulfilment of the contract. The Customer’s consent for this is not required.
2.7 The Customer is not entitled to transfer and/or assign rights or obligations from the contractual relationships binding the parties to third parties without the prior written consent of neoom.

3. Documents handed over, industrial property rights
neoom remains the owner of all industrial property rights, copyrights and exploitation rights to the plans, construction drawings, presentations as well as all illustrations, drawings, recordings, construction and circuit diagrams and other documents, whether in written or electronic form, which have been produced by neoom or its contractual partners and which have been handed over to the Customer within the scope of the fulfilment of the order. They may not be made accessible to third parties or utilised by the Customer without the approval of neoom. Upon request of neoom they are to be returned with an affidavit that no copies have been made. The Customer is liable for any use of the information and documents in his possession caused by him and contradicting these GTC. For each case of culpable violation of the provisions of this clause by the Customer, his employees, consultants, subcontractors or other third parties engaged by him, neoom shall have a claim against the Customer for payment of an appropriate contractual penalty, the amount of which shall be determined by neoom at its reasonable discretion and the appropriateness of which may be subject to review by the competent court at the Customer ‘s instigation. The payment of the contractual penalty shall not affect the assertion of further damages by neoom. A paid contractual penalty is to be credited against any claims for damages, whereby the contractual penalty represents the minimum damage.

4. Prices, terms of payment, cancellation fees
4.1 The prices are subject to change and are net prices in Euro plus statutory VAT. Prices are EXW according to Incoterms 2020 ex neoom's works in Germany, 85661 Forstinning, Römerstraße 7 or from another location to be named by neoom, excluding packaging, disposal fees. neoom is entitled to invoice these separately.
4.2 Payments are to be made within 14 days after receipt of the invoice and delivery or acceptance of the goods. neoom is, however, also within the scope of an ongoing business relationship, entitled at any time to carry out a delivery in whole or in part only against advance payment. A corresponding reservation is declared by neoom at the latest with the order confirmation. Debt-discharging payment has to be made exclusively to the account stated in the invoice.
4.3 Upon expiry of the aforementioned payment deadline, the Customer is in default. During the period of default, the price shall be subject to interest at the respective applicable statutory default interest rate. neoom reserves the right to assert further damage caused by default. In relation to merchants, neoom's claim to the commercial due date interest (§ 353 HGB) remains unaffected.
4.4 If the performance of the goods or the model type specified in the order confirmation changes subsequently at the request of the Customer, neoom shall offer these services separately.
4.5 The Customer is only entitled to rights of set-off or retention insofar as his counterclaims are legally established or undisputed. In the event of defects in the delivery, the Customer’s counter rights shall remain unaffected, in particular pursuant to clause 9.6 of these GTC.
4.6 In the case of foreign orders, payments shall be made in euros to the specified paying agent. Domestic or foreign charges, which would burden neoom's paying agent, shall be borne by the Customer.
4.7 neoom has the right to send invoices electronically via email, downloadlink or fax. The Customer expressly agrees to the electronic transmission. A Customer request for a paper invoice shall be invoiced by neoom as additional expenditure and shall have no suspensive effect with regard to the due date of the electronic invoice.

5 Delivery time, delay in delivery and default of acceptance by the Customer
5.1 Delivery dates stated in the order are non-binding as expected delivery dates. The delivery period shall be agreed individually or stated by neoom upon acceptance of the order.
5.2 If neoom cannot meet binding delivery dates for reasons for which neoom is not responsible (non-availability of the service), neoom will inform the Customer of this without delay and at the same time inform him of the expected new delivery date. If the service is also not available within the new delivery period, neoom is entitled to withdraw from the contract in whole or in part; neoom will immediately refund any counter-performance already made by the Customer. As a case of the non-availability of the achievement in this sense is considered in particular the not punctual self-delivery by neoom's suppliers, if neoom has concluded a congruent covering transaction, neither neoom nor neoom's suppliers are to blame or neoom is not obligated in the individual case to the procurement.
5.3 With regard to the agreed delivery condition EXW (Incoterms 2020), neoom only owes the timely provision of the delivery item at the agreed location at the agreed delivery time, so that the Customer can take it over there. neoom is not responsible for delays in delivery caused by a transport person commissioned - at the request of the Customer.
5.4 The commencement of the delivery time stated by neoom presupposes in any case the timely and proper fulfilment of the Customer's obligations from the entire business relationship, in particular receipt of payment and timely fulfilment of all owed acts of cooperation. The plea of non-fulfilment of the contract is expressly reserved.
5.5 neoom is entitled to carry out partial deliveries, as far as this is reasonable for the Customer. Partial deliveries are in particular reasonable for the Customer, if the partial delivery is usable for the Customer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the Customer does not incur significant additional expenses or costs as a result.
5.6 If the Customer is in default of acceptance or culpably violates other duties to cooperate, neoom is entitled to demand compensation for the damage incurred by it as a result, including any additional expenses. Further claims or rights remain reserved.
5.7 The rights of the Customer according to clause 11 of these GTC and neoom's legal rights, in particular in case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

6. Delivery, transfer of risk
6.1 Unless otherwise stated in the order confirmation, delivery shall be EXW (Incoterms 2020) from neoom's works in Germany, 85661 Forstinning, Römerstraße 7 or from another location to be named by neoom, which shall also be the place of performance for the delivery and any subsequent performance. Any fees incurred for customs clearance outside the European customs union shall be borne by the Customer and shall be listed separately on the order confirmation.
6.2 At the request and expense of the buyer, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, neoom is entitled to determine the mode of dispatch and packaging (in particular transport company, dispatch route, packaging) itself. The costs of packaging can be charged separately by neoom to the Customer. The costs for the disposal of the packaging materials are to be borne by the Customer.
6.3 The risk of accidental loss and accidental deterioration of the goods shall pass to the purchaser at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass as soon as the goods are delivered to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. Handover or acceptance shall be deemed to have taken place if the buyer is in default of acceptance. If the dispatch or the acceptance is delayed or made impossible by a circumstance for which the customer is responsible without any fault on the part of neoom, the risk shall pass to the Customer with the dispatch of the notice of readiness. The Customer is liable for all damages and additional costs incurred and further incurred.

7. Further services of neoom
Insofar as neoom renders services or work performances for the Customer in accordance with the order confirmation, the Customer shall duly and punctually render the respective necessary acts of cooperation for the performance of the performances.

8. Creditworthiness
8.1 If it becomes apparent after conclusion of the contract (e.g. by application for opening of insolvency proceedings) that neoom's claim to the purchase price is endangered by the Customer's lack of creditworthiness, neoom is entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the production of unjustifiable items (custom-made products), neoom can declare the withdrawal immediately; the legal regulations on the dispensability of setting a deadline remain unaffected.
8.2 Furthermore, neoom is entitled to terminate the contractual relationship without notice, insofar as the Customer is in default with one of his obligations from the contractual relationships binding the parties and this condition is not remedied within the set period despite a reminder.

9. Quality of the goods, claims for defects, recourse, warranty
9.1 The statutory provisions shall apply to the Customer's rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a Consumer, even if the consumer has processed them further (supplier recourse pursuant to §§ 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the Customer or another entrepreneur, e.g. by incorporation into another product.
9.2 The parties agree on the existing and non-existing properties of the goods individually. All product descriptions and manufacturer's specifications which are the subject matter of the individual contract, or which have been made public by neoom (in particular in catalogues or on neoom's Internet homepage) at the time of the conclusion of the contract shall also be deemed to be an agreement on the quality of the goods. Excluded from this are - as stipulated in item 2.2. of these GTC - profitability calculations in brochures and other documents as well as profitability calculations possible by means of a software provided by neoom, if applicable. However, neoom shall not be liable for public statements of another link in the contractual chain or other third parties (e.g. advertising statements) to which the Customer has not pointed out to neoom as being decisive for the purchase. neoom shall in principle not be liable for defects of which the Customer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB).
9.3 The Customer's rights in respect of defects presuppose that he has fulfilled his statutory duties of examination and notification of defects (§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case take place immediately before processing. If a defect becomes apparent during delivery, inspection or at any later point in time, neoom is to be notified of this immediately in writing. If the Customer neglects the proper inspection and/or notification of defects, neoom's liability for the defect not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions.
9.4 If operating or maintenance instructions, in particular the storage conditions according to the data sheet provided (Technical data battery packages and Technical data sheet), are not followed, if changes are made to the goods, if parts are processed or replaced by the Customer or unauthorised and certified third parties, or if the Customer or an unauthorised and certified third party performs other services on the goods, the claims for rectification of defects shall be forfeited insofar as the defect was caused thereby. The same applies to defects caused by excessive use or incorrect handling deviating from the product specifications.
9.5 In the event of a defect, the defect shall be remedied or a replacement delivery shall be made at the discretion of neoom. neoom 's right to refuse subsequent performance under the legal conditions remains unaffected.
9.6 neoom is entitled to make the owed supplementary performance dependent on the Customer paying the due purchase price. However, the Customer is entitled to retain a reasonable part of the purchase price in relation to the defect.
9.7 The Customer has to give neoom the necessary time and opportunity for the owed subsequent performance, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Customer shall return the defective item to neoom in accordance with the statutory provisions. The supplementary performance includes neither the dismantling of the defective item nor the renewed installation, if neoom was not originally obliged to the installation. Accordingly, defective goods and components are to be returned to neoom by the Customer at neoom's expense and upon neoom's request and in accordance with neoom's instructions in each case. For a properly returned goods to neoom, it is essential that the Customer uses the procedure specified by neoom, in particular also transmitted return labels, and properly describes the goods / components.
9.8 If the supplementary performance has failed or a reasonable period to be set by the Customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Customer may withdraw from the purchase contract or reduce the purchase price. In the event of an insignificant defect, however, there shall be no right of withdrawal.
9.9 The performance and product warranties of the manufacturers of the components used (e.g. for inverters) are granted exclusively by the respective manufacturers. After expiry of the warranty periods, any claims of the Customer arising from these warranties must be asserted directly against the manufacturer.
9.10 The expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs as well as, if applicable, removal and installation costs shall be borne or reimbursed by neoom in accordance with the statutory provisions if there is actually a defect. Otherwise neoom can demand reimbursement from the Customer of the costs arising from the unjustified request for rectification of the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable for the Customer.
9.11 Claims of the Customer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with clause 11 and shall otherwise be excluded.

10. Retention of title
10.1 neoom retains ownership of the delivery item until full payment of all claims arising from the business relationship with the Customer.
10.2 In the event of conduct contrary to the terms of the contract, in particular in the event of default of payment on the part of the Customer, neoom shall be entitled to take back the delivery item in accordance with the statutory provisions. The taking back of the goods by neoom constitutes a withdrawal from the contract. After taking back the delivery item, neoom is authorised to realise it. The realisation proceeds are to be credited against the liabilities of the Customer (minus actual realisation costs). If the Customer does not pay the due purchase price, neoom may only assert these rights if neoom has previously unsuccessfully set the Customer a reasonable deadline for payment or if such a deadline is dispensable according to the statutory provisions.
10.3 The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Customer has to inform neoom immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties (e.g. seizures) have access to goods belonging to neoom. In case of seizure of the goods subject to retention of title by third parties or in case of other interventions by third parties, the Customer must point out neoom's ownership and must inform neoom immediately in writing so that neoom can enforce its ownership rights. Insofar as the third party is not able to reimburse neoom for the court and out-of-court costs and fees incurred in this connection, the Customer is liable for the expenses incurred by neoom.
10.4 Until revoked in accordance with (c) below, the Customer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.

(a) The retention of title extends to the products resulting from the processing, mixing or combination of neoom's goods to their full value, whereby neoom is considered the manufacturer. If in case of processing, mixing or combination with goods of third parties, their right of ownership remains, neoom acquires co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title.
(b) The claims against third parties arising from the resale of the goods or the product are already now assigned by the Customer to neoom in total or in the amount of neoom's possible co-ownership share according to the above paragraph as security. Neoom accepts the assignment. The obligations of the Customer mentioned in clause 10.2 also apply in view of the assigned claims.
(c) The Customer remains authorised to collect the claim in addition to neoom. neoom undertakes not to collect the claim as long as the Customer fulfils his payment obligations towards neoom, there is no deficiency in his ability to pay and neoom does not assert the retention of title by exercising a right according to clause 10.2. However, if this is the case, neoom can demand that the Customer informs neoom of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, neoom is entitled in this case to revoke the Customer's authorisation for further sale and processing of the goods subject to retention of title.
d) If the realisable value of the securities exceeds neoom's claims by more than 10%, neoom will release securities of neoom's choice at the Customer's request.

10.5 The Customer must treat the reserved goods with care. He must sufficiently insure them at his expense against fire, water and theft damage at replacement value. If maintenance and inspection work becomes necessary, the Customer must carry it out in time at his own expense.

11. Other liability
11.1 As far as nothing else results from these GTC including the following provisions, neoom shall be liable for a breach of contractual and non-contractual obligations according to the statutory provisions.
11.2 neoom shall be liable for damages - irrespective of the legal grounds - within the scope of fault liability in case of intent and gross negligence. In the case of simple negligence, neoom is liable, subject to legal limitations of liability (e.g. care in own affairs; insignificant breach of duty), only for

• for damages from injury to life, body or health,
• for damages resulting from the violation of an essential contractual obligation (obligation, the fulfilment of which enables the proper execution of the contract in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, neoom's liability shall be limited to the compensation of the foreseeable, typically occurring damage.

11.3 The limitations of liability resulting from clause 11.2 also apply to third parties as well as in the case of breaches of duty by persons (also in their favor) whose fault neoom is responsible for according to legal regulations. They do not apply insofar as a defect was fraudulently concealed or a guarantee for the quality of the goods was assumed and for claims of the Customer according to the product liability law.
11.4 Due to a breach of duty that does not consist of a defect, the Customer can only withdraw or terminate if neoom is responsible for the breach of duty. A free right of termination of the Customer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the legal prerequisites and legal consequences apply.

12. Limitation period
12.1 Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall begin with acceptance.
12.2 If the goods are a building or an object which has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall remain unaffected.
12.3 The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the Customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages by the Customer pursuant to section 11.2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

13. Use of software
With regard to the NTUITY software included in the scope of delivery of individual goods, the separate General Terms and Conditions for NTUITY applicable at the time of the conclusion of the contract shall apply. These are available at www.ntuity.io/agb in the current and valid version.

14. Data protection
14.1 neoom treats the data entrusted to it confidentially and handles it responsibly. The corresponding data protection declaration can be viewed at www.neoom.com/datenschutz at any time. Therein you will find information about type, extent and purpose of data collection.
14.2 neoom expressly points out that there is a separate data protection declaration for the NTUITY software, which can be viewed at www.ntuity.io/datenschutz.

15. Final provisions, place of jurisdiction and applicable law
15.1 If the Customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - including international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is neoom's place of business in Forstinning. The same applies if the Customer is an entrepreneur in the sense of § 14 BGB. However, neoom is also entitled in all cases to bring an action at the place of performance of the delivery obligation according to these GTC or a prior individual agreement or at any general place of jurisdiction of the Customer in Germany and abroad. Furthermore, neoom is entitled - nationally as well as internationally - to sue at the court of the place where a branch office of the Customer is located as well as at the factually competent court in whose district assets or an object claimed in the lawsuit are located. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
15.2 These GTC and the contractual relationship between neoom and the Customer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
15.3 Should individual provisions of these terms and conditions be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions.