General Terms and Conditions of Business for the Company “DATA AHEAD AG”

Note: These General Terms and Conditions of Business apply only to companies.

The following rulings apply, where applicable, to all deliveries and services of DATA AHEAD AG (also referred to in the following as the “Contractor” or “Licensor”).

I. Contract conclusions, tenders/quotations

§ 1 Exclusivity

1. Only the General Terms and Conditions of Business of the Contractor shall apply.

2. In cases where the Customer also has his own general terms and conditions of business, the contract shall also be concluded without express agreement about the inclusion of these other general terms and conditions of business. Insofar as the different general terms and conditions of business are in agreement, they shall count as agreed. At points in which the different individual rulings are in conflict with each other, the rulings of standard German contract law shall apply. The same applies in cases where the general terms and conditions of business of the Customer contain rulings that cannot be met within the framework of these General Terms and Conditions of Business. If these General Terms and Conditions of Business contain rulings that are not contained in the general terms and conditions of business of the Customer, then the rulings in this contract shall apply.

§ 2 Free goodwill services

In cases where services are provided by the Contractor free of charge, the Customer cannot derive from this an entitlement to receive such a service free of charge again at a later point in time, unless it has been agreed that said service will be provided free of charge.

§ 3 Contract performance

The Contractor is entitled to employ the services of third parties during performance of the contracts. The contractor shall carry out the orders in accordance with the principles of proper professional practice and shall take into account the state of the art in science and technology when doing so.

§ 4 Delivery and performance time

Delivery dates or deadlines that are not expressly agreed as binding shall be treated solely as non-binding information. The stated delivery time does not start until all technical issues have been clarified. Similarly, the Customer shall also fulfill all of his obligations properly and in good time.

II. Right of use for software

§ 1 Right of use

If the subject of an order is the supply of software against a one-off payment (purchase price), then DATA AHEAD AG (referred to in the following as the “Licensor”) shall grant the Customer a single, non-exclusive, time-unlimited right to use the software that was purchased against a one-off payment.

This transfer shall take place in machine-readable form (object code).

The documentation will be made available in electronic form.

The Customer can obtain a right of use for further copies of the software from the Licensor against a payment.

No acquisition of rights to the software above and beyond this is associated with this granting of the right to use the software.

§ 2 Scope of use

1. The granted right of use is limited in terms of location to the country of destination agreed between the contracting parties. If nothing has been agreed, the usage is restricted to the country in which the Customer has his registered place of business.

2. The right of use is restricted to acts of use that fall within the scope of normal use. If the Customer creates backup copies in accordance with these rulings, then these must be labeled by the Customer as backup copies of the Customer.

§ 3 Copyrights

1. The software and user documentation are protected by copyright.

2. Without the approval of the Licensor, the Customer must not modify, translate, duplicate (e.g. create further installations of the software), rework, disseminate, reproduce or make accessible the software or the accompanying materials beyond the scope of the acts of use defined above (§ 2 Scope of use), not even in part or on a temporary basis.

3. Any violation can result in civil or criminal proceedings.

§ 4 Resale and subleasing of the software

1. The Customer is permitted to sell or gift the software permanently to third parties, provided the acquiring third party declares that he agrees to the continued application of the present contractual terms with respect to himself.

In the event of a transfer, the Customer must hand over to the new Customer all copies of the software, including any backup copies that exist, or must destroy any copies that are not handed over.
As a result of the transfer, the old Customer shall lose all rights to the software and to any backup copies or any other accompanying materials linked to the software.

The Customer is permitted to temporarily transfer the software to third parties, provided this is not done for the purpose of commercial gain, the third party agrees to the continued application of the present contractual terms with respect to himself, and the transferring Customer hands over all copies of the software, including any existing backup copies, or destroys the copies that are not handed over.

For the period in which the software is transferred to the third party, the transferring Customer shall not have the right to use the software himself. Rental or leasing are not permitted. Subleasing or sub-renting are prohibited.

The Customer must not transfer the software to third parties if there is justified cause to believe that the third party will violate the contractual terms, in particular the creation of prohibited duplications and/or unauthorized usage of the software. This also applies with regard to employees of the Customer.

In the event of transfer of the software, the Customer is obliged to notify the Licensor about the name and complete address of the acquiring party.

2. New software versions

Within the scope of liability for defects, the Customer is required to accept new software versions where applicable, unless this would lead to unreasonable difficulties for him in terms of adaptations and adjustments. If a new version of the software is supplied during the course of remedial action, the replaced version shall be destroyed or returned to the Licensor on demand.

3. Protected rights of third parties

If a third-party asserts claims against the Customer on account of the violation of protected industrial property right by the software supplied by the Licensor, and if the usage of the software is impaired or prohibited as a result of this, the Licensor shall, at his own discretion and cost, either modify or replace the software so that it no longer violates the protected property rights but still substantially meets the agreed function and performance characteristics in a reasonable manner for the Customer, or he shall release the Customer from the payment of license fees for the usage of the software during the agreed period of transfer to the owner of the property rights.
In the event of an alleged violation of property rights in relation to the software, the Customer is obliged to notify the Licensor without delay, to not recognize the alleged violation of property rights, and to either leave the handling of all disputes, including any out of court settlements, to the Licensor or to only arrive at an agreement in consultation with the Licensor. In cases where the Customer himself is responsible for the violation of property rights, claims against the Licensor shall be excluded.

§ 5 Liability for defects for software (guarantee)

1. It is pointed out that, according to the current state of science and technology, it is not possible to create a software program that is entirely free of defects.
The liability for defects (guarantee) for material damages and defects of title shall be implemented in accordance with the statutory regulations for the sale of goods.

2. Claims for defects in the event of material defects shall not apply in cases of only minor deviations from the agreed properties or in cases of only minor impairment of usability.

3. The liability for defects of title shall apply, however, only to the country of destination agreed between the parties, in which the contractual objects are to be used. If there is no express agreement in place, the guarantee shall apply in the country in which the Customer has his registered place of business.

4. Supplementary performance shall be provided at the discretion of the Licensor through transfer of a new, defect-free software version or by eliminating the defects; the requirements for remedial action shall also be deemed to have been met if the Licensor explains reasonable measures to the Customer that will avoid the impact of the defect.

The Licensor is entitled to make supplementary performance dependent on the Customer having paid at least a reasonable part of the remuneration.

If the attempt at supplementary performance fails, the Customer shall set an appropriate grace period for remedying the defect(s). In the process, he shall explicitly and in writing provide notification that he reserves the right to withdraw from the contract and/or demand the payment of damages in the event of repeat failure of the supplementary performance.

If the supplementary performance fails again during the grace period, the Customer can withdraw from the contract or reduce payment, unless the defect that is present is insignificant.

5. The period of limitation in cases of claims and rights caused by software defects is one year. However, this does not apply if the defect was fraudulently concealed, in the case of warranties (§ 444 BGB/German Civil Code), in cases of willful intent or gross negligence on the part of the Licensor, in cases of willful intent or gross negligence on the part of a representative or vicarious agent of the Licensor, in cases of damages relating to loss of life, bodily injury or damage to the health of a person, or in the event of claims arising from the German Product Liability Act, or in cases covered by § 438 paragraph 1 no. 1 BGB (defects of title for immovable objects), § 438 paragraph 1 no. 2 BGB (buildings, objects for buildings), § 479 paragraph 1 BGB (contractor’s right of recourse) or § 634 a paragraph 1 no. 2 BGB (buildings or works whose performance consists of the performance of planning or supervisory services therefor). No change in the burden of proof to the disadvantage of the Customer is associated with the above rulings.

6. Before asserting a demand for remedy of defect to the Licensor, the Customer shall carefully check – within the limits of his expertise – whether a defect is actually present, or whether another cause may be responsible for the problem.

The Customer is obliged to reimburse the cost of remedial efforts or actions if the Customer detected or negligibly failed to detect that no defect was present, or if the Licensor is not liable for this fault but the Customer still called on the Licensor to remedy the defect.

7. The Customer can only derive a claim for the payment of damages in addition to supplementary performance on account of the violation of contractual obligations for which the Licensor is responsible if he (the Customer) has complained to the Licensor in writing and has granted a grace period for remedying the defect(s). This shall not apply in cases where, based on the type of the breach of duty, remedial action is ruled out. The deadline does not need to be set if the Licensor seriously and finally refuses performance or if there are special circumstances that, taking into account the interests of both parties, justify immediate assertion of the claim for damages.

III. Purchase of hardware by the Customer

§ 1 Reservations subject to receipt of deliveries by the Contractor

The obligations of the Contractor are subject to the correct and timely receipt of its own deliveries from third parties. The Contractor shall notify the Customer immediately in the event of non-availability of the delivery object.

§ 2 Partial deliveries

The Contractor is entitled to make partial deliveries or part performances at any times provided this is reasonable for the Customer.

§ 3 Transfer of risk – shipment

1. Loading and shipment are performed uninsured at the risk of the Customer. The Contractor shall endeavor to take into account the interests of the Customer when choosing the type and route of shipment; additional costs arising from this – even when delivery is arranged carriage paid – shall be borne by the Customer.

2. At the request and expense of the Customer, the Contractor shall take out transport insurance for the shipment.

§ 4 Retention of title

1. The delivered goods (reserved goods) shall remain the property of the Contractor until all the demands the Contractor is entitled to have met by the Customer now or in the future, including all balance demands from the current account, have been satisfied. In the event of behavior by the Customer that contravenes the terms and conditions of the contract, e.g. payment delays, the Contractor has the right to take back the reserved goods provided an appropriate deadline is set first. If the Contractor takes back the reserved goods, this shall represent a withdrawal from the contract. If the Contractor seizes the reserved goods, this shall represent a withdrawal from the contract. The Contractor is entitled to make use of the reserved goods once they have been taken back. After deduction of an appropriate amount for the utilization costs, the proceeds of the utilization shall be offset against the amounts owed to the Contractor by the Customer.

2. The Customer shall treat the reserved goods with care and must insure them himself adequately against damages due to fire, water and theft based on the cost of replacement. Maintenance and inspection work that becomes necessary shall be performed in good time by the Customer at his own expense.

3. If the reserved goods are seized by third parties, particularly in the case of distraint, the Customer shall inform the third party that the goods in question are the property of the Contractor, and he shall notify the Contractor without delay so that the Contractor can enforce his property rights. If the third party is not in a position to reimburse the Contractor for the legal or extra-judicial costs arising in this connection, then the Customer shall be liable for these costs.

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IV. General terms and conditions

§ 1 Remuneration

1. The remuneration is handled in accordance with the contractual agreements.

2. Material costs and telecommunication costs are to be reimbursed to the Contractor at market-typical rates, against the submission of receipts if required.

3. Travel costs and expenses and overnight expenses shall be reimbursed to the Contractor in accordance with the price list.

4. All pricing information and reimbursements are subject to VAT at the applicable rate.

§ 2 Terms and conditions of payment

1. The remuneration is due for payment in full on delivery or acceptance, unless other terms of payment are agreed between the contracting parties.

2. In the event that defects are present, the Customer is only entitled to retention if the retained amounts are not disproportionate to the defects and the anticipated costs of supplementary performance (in particular remedying of the defect). The Customer is not entitled to assert claims and rights due to defects if he has failed to make due payments and the overdue amount (taking into account any payments made) is not disproportionate to the value of the – defective – delivery or works.

3. A deduction of discounts is only possible after agreement between the Contractor and the Customer.

§ 3 Liability for defects (guarantee)

1. Supplementary performance shall be provided at the discretion of the Contractor through transfer of a new, defect-free software version or by eliminating the defects; the requirements for remedial action shall also be deemed to have been met if the Contractor explains reasonable measures to the Customer that will avoid the impact of the defect.

The Contractor is entitled to make supplementary performance dependent on the Customer having paid at least a reasonable part of the remuneration.

If the attempt at supplementary performance fails, the Customer shall set an appropriate grace period for remedying the defect(s). In the process, he shall explicitly and in writing provide notification that he reserves the right to withdraw from the contract and/or demand the payment of damages in the event of repeat failure of the supplementary performance.

If the supplementary performance fails again during the grace period, the Customer can withdraw from the contract or reduce payment, unless the defect that is present is insignificant.

2. The period of limitation in cases of claims and rights caused by software defects is one year. However, this does not apply if the defect was fraudulently concealed, in the case of warranties (§ 444 BGB/German Civil Code), in cases of willful intent or gross negligence on the part of the Contractor, in cases of willful intent or gross negligence on the part of a representative or vicarious agent of the Contractor, in cases of damages relating to loss of life, bodily injury or damage to the health of a person, or in the event of claims arising from the German Product Liability Act, or in cases covered by § 438 paragraph 1 no. 1 BGB (defects of title for immovable objects), § 438 paragraph 1 no. 2 BGB (buildings, objects for buildings), § 479 paragraph 1 BGB (contractor’s right of recourse) or § 634 a paragraph 1 no. 2 BGB (buildings or works whose performance consists of the performance of planning or supervisory services therefor). No change in the burden of proof to the disadvantage of the Customer is associated with the above rulings.

3. Before asserting a demand for remedy of defect to the Contractor, the Customer shall carefully check – within the limits of his expertise – whether a defect is actually present, or whether another cause may be responsible for the problem.

The Customer is obliged to reimburse the cost of remedial efforts or actions if the Customer detected or negligibly failed to detect that no defect was present, or if the Contractor is not liable for this fault but the Customer still called on the Contractor to remedy the defect.

4. The Customer can only derive a claim for the payment of damages in addition to supplementary performance on account of the violation of contractual obligations for which the Contractor is responsible if he (the Customer) has complained to the Contractor in writing and has granted a grace period for remedying the defect(s). This shall not apply in cases where, based on the type of the breach of duty, remedial action is ruled out. The deadline does not need to be set if the Contractor seriously and finally refuses performance or if there are special circumstances that, taking into account the interests of both parties, justify immediate assertion of the claim for damages.

§ 4 Liability

1. In all cases of contractual and non-contractual liability, the compensation that can be paid by the Contractor is restricted to the following limits:

1.1 In cases of intent, the Contractor shall be liable in accordance with the statutory provisions. Likewise, the Contractor shall also be liable if a property guaranteed by the Contractor is missing, insofar as the guarantee promise includes the compensation of damages.

1.2 In cases of gross negligence, the Contractor shall be liable only for the damage amount that is typically foreseeable for the contract and that was to be averted by the violated obligation;

1.3 In cases of gross negligence by an ordinary vicarious agent, liability is ruled out in the event of violation of non-essential contract duties. Essential contract duties are obligations that must be met as a prerequisite for satisfying the proper performance of the contract and that the contractual partner can reasonably expect to be met.

1.4 In other cases, the Contractor shall only be liable in the event of the violation of an essential contract duty if the purpose of the contract is endangered as a result. This liability is restricted to the amount of damage that can be typically foreseen for this type of contract.

1.5 The liability according to 1.3 is limited to EUR 5,000.00 per claim.

1.6 The Contractor shall be liable above and beyond this limit, insofar as he is insured against the damages that have been incurred, within the limits of the insurance cover and under the condition precedent of payment by the insurance.

2. The limitations of liability according to § 4 section 1 do not apply in cases of liability due to loss of life, bodily injury or damage to the health of a person, or in the event of claims arising from the German Product Liability Act.

3. The reimbursement of transport costs caused by the Customer moving the delivery objects to a different location than the delivery location is ruled out.

4. No change in the burden of proof to the disadvantage of the Customer is associated with the above rulings.

§ 5 Secrecy

1. The Contractor and the Customer mutually undertake to keep all business and company secrets of the other side secret and to not disclose them to third parties or exploit them in any way. The documents and information received by either party on the basis of the business relationship must only be used within the scope of the agreed contract purpose in each case.

2. The Customer is obliged to mark all confidential information with the note “Vertraulich/Confidential”.

3. By means of suitable agreements and through implementation of technical and organizational precautions, the contracting parties shall ensure that their employees and vicarious agents are subject to the same obligation to secrecy.

4. These obligations will remain in force for a period of 5 years after the end of the contract.

5. The Contractor reserves all ownership rights, copyrights and other protected property rights for all illustrations, calculations, drawings and other documents. The Customer is only permitted to pass these on to third parties with the written authorization of the Contractor.

§ 6 Assignment of rights

The Customer can only assign rights to this contract with the approval of the Contractor.

§ 7 Offsetting against claims

Offsetting by the Customer against claims of the Contractor is only permitted with counter-claims of the Customer totaling the possibly existing costs of remedial action or completion costs and in the case of demands that are uncontested or legally established.

§ 8 Written form

All contract changes or contract additions must be made in writing. The same applies to the cancellation of this requirement for the written form.

§ 9 Place of fulfillment

The place of fulfillment for deliveries and services is the registered office of the Contractor.

§ 10 Place of jurisdiction

All disputes arising from the contractual relationship between the Customer and the Contractor shall be dealt with under the sole local responsibility of the courts in Nuremberg, Germany. The Contractor remains entitled to take legal action or initiate other legal proceedings at the general place of jurisdiction of the Customer.

§ 11 Applicable law

The contractual relationship is subject to the provisions of German law under exclusion of the CISG.

§ 12 Data protection

1. The Contractor shall comply with the data protection regulations of BDSG (German Federal Data Protection Act) and DS-GVO (German General Data Protection Regulation). Where necessary, the Contractor shall make available a contract for contract data processing.

2. The personal data collected by the Contractor serve for the creation and performance of orders and contracts, as well as for billing purposes.

3. The Customer has the right to request free of charge information about the personal data the Contractor has stored about him.

4. The Customer has the right to request, delete or block the personal data the Contractor has stored about him.

5. The collection, processing and usage of personal data for marketing purposes is subject to the consent of the Customer. The Customer has the opportunity to grant this consent before declaring his order. The Customer has the right to withdraw this consent at any time with effect for the future.

§ 13 Ineffectiveness of individual provisions

In the event that individual provisions in this contract are or should become ineffective, this shall not affect the effectiveness of the remaining provisions.

Date: July 14, 2017