Terms and Conditions

TestEquity GmbH

(hereinafter: "TestEquity GmbH")

General Terms and Conditions of Sale

1. Application scope of these GTC

TestEquity GmbH has been a successful provider in the sale of used industrial and operational equipment on the German market for decades. TestEquity GmbH has been part of the Test Equity Group since 2023. The Test Equity Group is one of the leading providers in the global market for the sale of industrial Test- and Measurement equipment.
All offers, sales and deliveries of TestEquity GmbH concerning goods (in particular used equipment), accessories, spare and conversion parts as well as ancillary services (e.g. assembly and services) are made exclusively on the basis of these General Terms and Conditions (hereinafter: "GTC").
These GTC shall also apply in their current version to all future offers, sales and deliveries in the case of an ongoing business relationship, even if this is not expressly agreed again separately.
Notwithstanding the above par. (2), TestEquity GmbH reserves the right to apply an updated version of these GTC in the context of individual contracts by way of notification. In this case, the updated version of the GTC shall become part of the contract if the customer does not object to the update within one (1) month of notification. TestEquity GmbH shall point out to the customer in the notification of the updated version that silence on the notification shall be deemed as the customer's consent to the updated GTC.
The customer's terms and conditions of purchase are rejected. The customer's terms and conditions of purchase (or parts thereof) shall only apply if TestEquity GmbH expressly agrees to them in text form. In this case, however, all other agreements remain valid. This requirement of consent shall also apply if TestEquity GmbH makes delivery to the customer without reservation in the knowledge of the customer's terms and conditions.

2. Conclusion of contract

Unless otherwise agreed, by placing an order with TestEquity GmbH the customer makes a binding offer to conclude a contract for the purchase and delivery of specific goods, usually specific machines together with their accessories and any ancillary services. A contract between TestEquity GmbH and the customer is concluded solely by and with the content of the textual order confirmation from TestEquity GmbH.
Supplementary and ancillary agreements require the text form to be effective. Any change requests shall be deemed rejected unless TestEquity GmbH expressly agrees to them.
TestEquity GmbH is entitled to reject customer orders at its own discretion. This applies in particular with reference to foreign trade law concerns (cf. in particular 14 Foreign Trade / Export Control).

3. Content of performance

The quality of the goods is determined exclusively by the agreements made between TestEquity GmbH and the customer regarding the properties, features and performance characteristics of the delivery items.
Binding assurances and guarantees (German: ”Zusicherungen/Garantien”) or guarantees of quality (German: ”Beschaffenheitsgarantien”) in the legal sense are expressly designated as such and shown separately, otherwise TestEquity GmbH does not grant any assurances, guarantees or guarantees of quality.
The offers and product presentations on the website, in catalogues or in other advertising material of TestEquity GmbH are subject to change and non-binding. Illustrations, drawings, weight, dimension, performance and consumption data, DIN standards and other descriptions from offer documents or the order confirmation do not constitute quality agreements or quality guarantees, unless this is separately and expressly stated.
We reserve the right to make technical and design deviations from descriptions and information in brochures, offers and written documents as well as changes in performance, design and materials in the course of technical progress without the customer being able to derive any rights from this.

4. Delivery modalities / Transfer of risk

The order confirmation from INSTUMEX is exclusively authoritative for the type and scope of delivery.
Unless otherwise agreed in text form, delivery shall be made by the customer at TestEquity GmbH's registered office. This means that TestEquity GmbH only owes the provision at its registered office and the notification of readiness for collection to the customer.
If TestEquity GmbH additionally takes over the shipment of the delivery items in individual cases, TestEquity GmbH shall only be responsible for the organization of the transport and the handover at TestEquity GmbH's registered office to the first carrier. In this case, the customer shall bear all costs associated with the shipment (e.g. freight, cartage, loading costs and fees, customs duties), irrespective of whether they are incurred in Germany or abroad. Insofar as TestEquity GmbH assumes additional obligations with regard to transportation in individual cases, the shipping or transportation routes and means are left to TestEquity GmbH, unless otherwise agreed. The customer's obligation to bear the costs associated with shipping or transportation remains unaffected. Particularly cost-intensive shipping or transportation routes and means will only be selected by TestEquity GmbH in consultation with the customer. This is the case for shipments within Germany and within the European Economic Area (EEA) from a total cost volume of EUR 4,000.00 (gross). Shipping or transportation to countries outside the EEA is selected in consultation with the customer. The risk of accidental loss and accidental deterioration shall pass to the customer when the goods are handed over to the first carrier. In the case of delivery by TestEquity GmbH's own employees, the risk is transferred as soon as the delivery items are made available at the location specified by the customer.
Binding delivery dates or deadlines are expressly agreed as such and marked as "binding" on the offer or order confirmation. A delivery period begins with the conclusion of the contract, but not before the complete provision of the documents, approvals, execution details, releases to be procured by the customer and, if applicable, the receipt of an agreed down payment. Compliance with the delivery period is subject to the timely and proper fulfilment of the customer's other obligations. Binding delivery dates or deadlines shall be deemed to have been met if the delivery items have been made available by their expiry and TestEquity GmbH has been notified that they are ready for collection or, in the event of a deviating arrangement, the delivery items have been handed over to the first carrier.
TestEquity GmbH shall inform the customer immediately if the delivery items cannot be delivered or are temporarily unavailable despite reasonable precautions being taken by the supplier.
TestEquity GmbH is exempt from the obligation to perform until delivery is made by its supplier, unless TestEquity GmbH is responsible for the non-delivery by the supplier. In the event of withdrawal, any amounts already paid by the customer will be refunded immediately. Claims for damages by the customer are excluded, unless TestEquity GmbH is responsible for the non-delivery or untimely delivery.
If delivery is not made on a non-binding delivery date or not within a non-binding delivery period, the customer may set a grace period of four (4) weeks with the declaration that he will withdraw from the contract if this period expires without result. Any further claims, in particular claims for damages caused by delay, are excluded, except in cases of gross negligence or intent.
If non-compliance with an agreed binding or non-binding delivery date or an agreed binding or non-binding delivery period is due to force majeure and other disruptions for which TestEquity GmbH is not responsible, e.g. war, terrorist attacks, import and export restrictions, pandemic situations (e.g. Covid-19), including those affecting suppliers, the agreed delivery periods shall be extended or the delivery date postponed by the duration of the hindrance. This also applies to industrial action affecting TestEquity GmbH and its suppliers. If the hindrance lasts longer than sixty (60) calendar days, both TestEquity GmbH and the customer have the right to withdraw from the contract.
Partial services and partial deliveries are permitted to a reasonable extent. TestEquity GmbH may invoice the customer for partial services and partial deliveries to a reasonable extent.

5. Formal acceptances (German: „Abnahmen“)

If in individual cases a formal acceptance (Germen: “Abnahme”) is required by law or has been agreed separately, this is decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively promptly after TestEquity GmbH's request. The customer may not refuse acceptance due to insignificant defects.
Acceptance shall be deemed to have been implied if the customer has used the goods as intended without prejudice to an acceptance test date and uses them in normal operation without notification of defects and no request is made by the customer to carry out an acceptance test. In particular, implied acceptance shall be assumed if the customer has already used the delivery items for a period of three (3) weeks without complaining about defects and without being requested to carry out an acceptance test.
The customer is not entitled to make unauthorized changes to the goods without the prior consent of TestEquity GmbH. This includes in particular modifications or additional attachments to machines. The customer shall be responsible for any damage caused by unauthorized modifications made prior to declared acceptance.

6. Prices

Unless otherwise agreed in text form, the prices are subject to statutory VAT and other applicable public charges. The prices are "ex works" TestEquity GmbH plus packaging, shipping costs and costs of unloading at the customer's premises. The prices do not include installation and commissioning; these additional services must be ordered separately.
If the delivery item changes after conclusion of the contract due to changes requested by the customer, a correspondingly adjusted new price must be agreed with TestEquity GmbH. If the parties fail to reach an agreement, TestEquity GmbH is entitled to set the new price at its reasonable discretion, the amount of which can be reviewed by a court (315 BGB), taking into account the material and personnel costs resulting from the change as well as an appropriate cover amount.

7. Terms of payment

TestEquity GmbH grants a payment term of thirty (30) days from the date of invoice, unless otherwise agreed in individual cases.
If the customer is in default of payment in the case of an agreement on instalment payments, TestEquity GmbH is entitled to demand immediate payment of all due and undisputed claims arising from the business relationship, unless the customer is not responsible for the circumstances of the default of payment.
Irrespective of the existence of a prior individual agreement, TestEquity GmbH is entitled to execute or provide deliveries or services only against advance payment or provision of security if, after conclusion of the contract, circumstances become known which are likely to significantly reduce the creditworthiness of the customer and by which the payment of outstanding claims of TestEquity GmbH by the customer from the respective contractual relationship is objectively and concretely jeopardized. This applies accordingly if the customer refuses or fails to pay outstanding claims of TestEquity GmbH without objective justification or if there are no undisputed or legally established objections to the claims of TestEquity GmbH. In cases in which the customer refuses to make advance payment or provide security after a corresponding request by TestEquity GmbH, TestEquity GmbH is entitled to withdraw from the contract in whole or in part, whereby in the case of partial withdrawal the invoices relating to claims for partial deliveries already made shall become due immediately.

8. Debtor default / Default of acceptance / Outsourcing

If payment deadlines specified or determinable by calendar are exceeded, the customer shall be in default without further ado, in particular without a separate reminder, unless the customer is not responsible for the delay.
TestEquity GmbH is entitled to demand the statutory interest on arrears and interest on arrears. In the event of default of payment, default interest of 9 percentage points above the respective base interest rate (p.a.) currently applies.
From the second reminder onwards, TestEquity GmbH charges a lump sum of EUR 3.00 (reminder fee) for each reminder with regard to costs and expenses for the reminder (postage costs and additional material costs).
TestEquity GmbH or the customer reserves the right to claim further damages caused by delay and further costs and expenses as well as to prove that the actual damage caused by delay is lower.
If the customer is in default of acceptance, the risk of accidental loss or accidental deterioration of the delivery items shall pass to the customer at this point in time.
In the event of default of acceptance, TestEquity GmbH may demand compensation for the additional costs and expenses arising from the default of acceptance (e.g. additional costs and expenses for storage). These costs and additional expenses will be charged at a flat rate of 0.5% of the net price volume per working day of default of acceptance, up to a maximum total of 5% of the net price volume. TestEquity GmbH and the customer reserve the right to claim actually higher and to prove actually lower costs / expenses as a result of the delay in acceptance.
In the case of outsourcing (German: “Auslagerungen”), TestEquity GmbH will, at the customer's first request and expense, arrange the insurance requested by the customer.

9. Offsetting / Rights of retention

Offsetting by the customer or the assertion of a right of retention that is not based on the same legal relationship is only permitted on the basis of undisputed, legally established and/or ready-for-decision counterclaims of the customer.

10. Retention of title (German: „Eigentumsvorberhalt“)

TestEquity GmbH retains ownership of the delivered goods until full payment of all claims arising from the contract with the customer (German: “Eigentumsvorbehalt”). TestEquity GmbH is entitled to demand the return of delivered goods if the customer is in breach of contract, in particular if the customer does not pay agreed instalments or does not pay them on time.
As long as ownership of the delivered goods has not been transferred to the customer, the customer must treat the delivered goods with the care of a prudent businessperson. The customer shall carry out any necessary maintenance and inspection work in good time at his own expense.
The customer is only exceptionally entitled to resale if the customer is a dealer and the sale of the delivery items is part of his ordinary business operations. The customer hereby assigns to TestEquity GmbH claims arising from the resale in the amount of the agreed final invoice amount (including statutory VAT), TestEquity GmbH accepts this assignment. The customer is authorized to collect the claim assigned to TestEquity GmbH if and insofar as he was entitled to resell the goods. TestEquity GmbH's authority to collect the claim assigned to TestEquity GmbH itself remains unaffected. However, TestEquity GmbH will not collect the assigned claim as long as the customer fulfils his payment obligations, is not in default of payment and no application for the opening of insolvency proceedings against the customer has been filed or payments have been suspended.
Any combination, mixing or processing of the delivered goods by the customer is always carried out in the name and on behalf of TestEquity GmbH. The expectant right of the customer continues in the transformed item. If delivered goods are combined or processed with other items not belonging to TestEquity GmbH, TestEquity GmbH acquires co-ownership of the new item in the ratio of the objective value of the delivered goods to the other items at the time of combination or processing. The same applies in the case of mixing. If the combination, processing or mixing is carried out in such a way that the customer's items are to be regarded as the main item, it is agreed that the customer shall transfer proportionate co-ownership to TestEquity GmbH, which TestEquity GmbH hereby accepts, and the customer shall hold the co-ownership thus created in safe custody for TestEquity GmbH. To secure the claims against the customer, the customer also assigns to TestEquity GmbH such claims against a third party which accrue to him through the possible connection of the delivered goods with a property. TestEquity GmbH hereby accepts this assignment.
At the customer's request, TestEquity GmbH shall release the securities to which it is entitled insofar as their value exceeds the claims to be secured by more than 20%.
The customer shall immediately notify TestEquity GmbH in text form if delivered goods or parts thereof are seized or exposed to other interventions by third parties. In the event of non-notification or non-immediate notification, the customer is obliged to reimburse TestEquity GmbH for the necessary and appropriate costs incurred for the assertion of TestEquity GmbH's rights, unless the customer is not responsible for non-compliance with the above notification obligations. Insofar as the third party is not in a position to reimburse TestEquity GmbH for the judicial and extrajudicial costs of an action pursuant to 771 ZPO, the customer shall be liable for the loss incurred.
The application for the opening of insolvency proceedings, the cessation of payments by the customer or default of payment entitles TestEquity GmbH to withdraw from the contract and to demand the immediate return of the goods affected by this retention of title.

11. Notice of defects / Warranty

Goods must be inspected for defects immediately upon receipt by the customer. Obviously recognizable defects must be reported in text form within a period of seven (7) calendar days from receipt of the goods, hidden defects immediately within the same period after their discovery. Otherwise, the goods shall be deemed approved, i.e. the customer's warranty rights shall be excluded due to the failure to give notice of defects (cf. 377 (2), (3) German Commercial Code - HGB). Timely dispatch of the notice of defects shall suffice to comply with the notice period.
In the event of duly notified defects, the customer is initially entitled to subsequent performance. If, according to the specific agreement, both rectification and new delivery are possible, TestEquity GmbH is entitled to choose the type of supplementary performance. If the supplementary performance does not take place or does not take place within a reasonable grace period and or fails within this period, the customer may, at his discretion, withdraw from the contract or reduce the purchase price appropriately. A reasonable period of grace shall be at least four (4) weeks. TestEquity GmbH is generally entitled to three (3) attempts at rectification, or a reasonable number exceeding this number in individual cases.
Subject to deviating provisions in individual cases, in particular the exclusion or agreement of a shorter warranty period for certain used goods, the warranty period shall be as follows from the transfer of risk
1. one (1) year of newly manufactured devices,
2. six (6) months for used devices.

12. General Limitation of liability

TestEquity GmbH's liability for damages due to breaches of duty, regardless of type and legal grounds (e.g. impossibility, non-performance, delay, poor performance, in particular defective or incorrect delivery, due to breach of duties during contract negotiations and due to tort), is limited or restricted as follows:
1. liability for damages under mandatory statutory law (e.g. liability under the German Product Liability Act (German: “Produkthaftungsgesetz –ProdHG”) in the external relationship) remains unaffected.
2. TestEquity GmbH shall be liable without limitation for damages resulting from injury to life, body and health in the event of simple negligence on the part of its legal representatives or vicarious agents.
3. in the event of damages resulting from the simple negligent breach of essential contractual obligations (i.e. such obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer regularly relies and may rely) by legal representatives or vicarious agents, liability is limited to compensation for foreseeable and typically occurring damages. Within this framework, the obligation to pay compensation for property damage and financial loss is limited to the amount covered by TestEquity GmbH's product liability or public liability insurance. TestEquity GmbH is prepared to provide the customer with a confirmation of cover from its insurer on request and to agree a higher amount of liability individually if the amount of cover is not sufficient to compensate the foreseeable and typically occurring damage in the customer's opinion.
4. in other cases TestEquity GmbH is only liable for damages caused by intentional or grossly negligent behaviour of its legal representatives or vicarious agents.
Insofar as TestEquity GmbH provides non-binding technical information or advice in the context of general business transactions, and this information or advice is not part of the contractually agreed scope of delivery, this is done free of charge and to the exclusion of any liability.
Claims for damages due to defects shall become statute-barred one year after acceptance of the delivery items, unless the application of the regular statutory limitation period (§195, 199 BGB) would lead to a shorter limitation period in individual cases. This does not apply if legal representatives or vicarious agents of TestEquity GmbH are guilty of malice, intent or gross negligence or if the defect has led to injury to life, body or health.

13. Product responsibility and liability / Indemnification

TestEquity GmbH assumes no responsibility, in particular no conceptual responsibility, for the possible incorporation (installation) of delivered goods into other (end) products.
TestEquity GmbH shall not be liable in cases of incorporation if defects causing damage have been caused by the design of the (end) product into which delivered goods have been incorporated as partial products, or by the instructions of the manufacturer of the product.
Notwithstanding the above provisions, the customer is otherwise obliged to indemnify TestEquity GmbH in full against claims by third parties in the event of the intended incorporation of delivered goods into (end) products, if the price of the goods delivered by TestEquity GmbH (partial product, individual item) is not in a significant proportion to the sales price of the (end) product that justifies joint liability. In any case, a significant ratio justifying joint liability cannot be assumed if the sales price of the goods supplied by TestEquity GmbH is one-thousandth (1/1000) or less of the sales price of the (end) product.

14. Foreign trade / Export control

The export of goods from the Federal Republic of Germany or the European Economic Area (EEA) may be subject to export bans and restrictions and may in particular be dependent on a separate official license. TestEquity GmbH can make the conclusion of the contract (2) dependent on a prior declaration by the customer and, if necessary, independent assurance of the final destination of the goods or the intended use and, if necessary, refuse the conclusion of the contract for reasons of foreign trade law. TestEquity GmbH can also refuse the delivery as well as the fulfilment of ancillary services and withdraw from concluded contracts without setting a deadline or terminate them extraordinarily, insofar as the delivery / fulfilment violates or is likely to violate applicable foreign trade law (in particular export control and/or customs regulations). The same applies if the contract and/or the delivery / fulfilment is prohibited by other applicable foreign trade law and/or foreign trade law relevant for TestEquity GmbH due to contractual obligations or if there are reasonable grounds to assume this. TestEquity GmbH shall inform the customer in good time of the reason for such a refusal. Claims for damages of the respective other party due to the aforementioned prohibitions or impairments are excluded, as far as these restrictions have not been caused negligently by the party refusing performance.
If the delivery or the fulfilment of ancillary obligations is delayed due to approval, confirmation or similar foreign trade law requirements or procedures, the performance period for these obligations shall be extended accordingly. Claims for damages by the customer due to such delays are excluded, unless the delay has been caused by negligence on the part of TestEquity GmbH.
The intention to export goods from the Federal Republic of Germany or from the EEA, also via third parties (indirect export), must be notified to TestEquity GmbH in text form upon request before confirmation of the customer's offer and otherwise immediately.

15. Industrial property rights / Procedure for property right warnings

TestEquity GmbH retains the ownership and copyright to drawings, cost estimates and other documents provided to the customer. Offers and documents from TestEquity GmbH may not be made accessible to third parties, in particular competing companies, and must be returned on request.
If there is a suspicion that delivered goods infringe the property rights of third parties and the customer is contacted by third parties in this regard, the customer shall inform TestEquity GmbH immediately. In particular, the customer shall inform TestEquity GmbH immediately of any warnings issued to the customer regarding industrial property rights. TestEquity GmbH reserves the right to defend or indemnify the customer against claims arising from infringements of industrial property rights and to legally enable the customer to use the goods supplied by TestEquity GmbH or, if this should be economically unreasonable, at TestEquity GmbH's discretion, to avoid an infringement of industrial property rights by modifying or replacing the goods or to take back the goods against reimbursement of the purchase price less compensation for use.
If a claim is made against TestEquity GmbH due to an infringement of property rights which is based on the fact that TestEquity GmbH has followed the customer's instructions, the customer shall indemnify TestEquity GmbH against all claims arising from the infringement and reimburse TestEquity GmbH for the expenses incurred in this connection, insofar as these were objectively necessary for the protection of the interests and rights of TestEquity GmbH and were appropriate in terms of reason and amount.

16. Severability clause

Should individual provisions of these GTC be or become void or contestable, this shall not affect the validity of the remainder of these GTC. The affected clauses shall be interpreted or supplemented in such a way that their economic content is achieved as precisely as possible in a legally permissible manner. This applies accordingly to loopholes that are contrary to plan and therefore require supplementation.

17. Choice of law / Place of jurisdiction

All legal disputes arising from or in connection with the agreements made between TestEquity GmbH and the customer, which are based on these GTC, shall be governed by the law of the Federal Republic of Germany with the exception of the UN Convention on Contracts for the International Sale of Goods (CISG) and German private international law.
The place of jurisdiction for all legal disputes arising from or in connection with the agreements made between TestEquity GmbH and the customer, which are based on these GTC, is Munich (Regional Court Munich I), provided that the customer is a merchant, a legal entity under public law or a special fund under public law. TestEquity GmbH is entitled, without prejudice to the aforementioned place of jurisdiction, to seek legal assistance from the competent court at the customer's place of business.

18. Language

These GTC are provided in German and English. Only the German-language version is authoritative for the binding interpretation of the GTC; the English-language version is for comprehension purposes only.