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AGBs

General Terms and Conditions

(version as of July 2010)


The following GeneralTerms and Conditions (“T&Cs”) apply to all our offers and to all thecontracts we conclude (“Contract[s]”).Our performance is renderedexclusively subject to the following T&Cs. Any conflicting or divergingGeneral Terms and Conditions of the Customer shall not apply to the Contract, unlesswe have expressly agreed to their application. Our T&Cs shall apply even ifwe perform without reservation, despite being aware of the Customer’s

conflicting ordiverging General Terms and Conditions. Any

future businessrelations with the Customer shall likewise be governed by the followingT&Cs, even if these are not expressly agreed anew at that time. OurSupplementary Terms for Service Agreements, Software Maintenance Agreements andHardware Maintenance Agreements shall apply in addition to the followingT&Cs.

1.         Offer, Conclusion of the Contract

1.1.      Alloffers issued by us are without obligation and nonbinding, unless the offerconcerned has expressly been designated binding by us in writing. A Contract isonly concluded at the time we issue a written order confirmation, or at thelatest upon our rendering performance.

1.2.      Weor our own suppliers have exclusive title to and copyright in any and alldocuments and their content that are enclosed with our offer.

1.3.      The scope of our obligation to performis determined exclusivelyby ourwritten order confirmation along with any specifications of performance provided therein. Wereserve theright tomake technical alterations which do not impair the goods’ ability tofunction.

1.4.      Datesof delivery or performance are only binding if we have expressly declared thembinding in writing.

2.         Payment,Invoicing

2.1.      Unless otherwise agreed by and between theparties, invoices must be paid without deduction within 30 days of receipt ofinvoice.

2.2.      We are entitled to issue separate invoicesfor part-deliveries that the Customer can use separately.

3.         Passingof Risk, Delivery, Reporting Defects

3.1       Delivery ex works. The risk of the goods’accidental destruction or deterioration passes to the Customer when the goodsare handed over to the forwarder we have chosen.

3.2       Upon delivery, the Customer mustimmediately inspect the outer condition of the goods, report any transportdamage to the forwarder effecting delivery, secure evidence of the damage, andnotify us accordingly without undue delay both by telephone and in writing.

3.3.      In the event of the Customer reporting anydefects, the Customer must grant and ensure unhindered access to the premisesand to the equipment concerned.

4.         Customer’sObligations to Cooperate

4.1.      TheCustomer shall assist us in the rendering of the agreed performance to areasonable extent and insofar as is necessary and reasonable. The Customerundertakes in particular to provide and run the required equipment free ofcharge (e.g. hardware and software, communications facilities).

4.2.      If anyservice cannot be provided or cannot be provided in good time for reasons forwhich the Customer is responsible, in particular because the Customer hasfailed to cooperate or to cooperate in good time as specified in Section 4.1above, then the Customer shall compensate us for any losses or damage thusincurred and for any additional expenses. Moreover, in any such case all thedates and/or deadlines for performance agreed between the parties shall beextended by the duration of the delay for which the Customer is responsible. Furtherrights to which we are entitled shall remain unaffected.

4.3.      TheCustomer undertakes to comply with any and all software license terms and termsof use stipulated for the software we supply by the respective softwaremanufacturer (including the operating system installed on the hardwaresupplied).

4.4.      Being theowner of the hardware we have supplied, the Customer is itself responsible forits proper disposal when finally ceasing its use. We are in no way obliged totake back and dispose of any hardware that is discarded equipment pursuant toSect. 10 (2) Clause 1 of the German Electrical & Electronic Equipment Act [ElektroG].

5.         Warranty

5.1.      Material Defects

(a)       If anygoods supplied by us have defects that impair their contractual use more thanjust insubstantially, then first of all the Customer shall be entitled eitherto subsequent improvement or to a substitute delivery (postperformance), at ourown option. If the Customer has set a reasonable deadline for post-performance,and if we refuse post-performance or if post-performance ultimately fails, thenthe Customer shall be entitled to withdraw from the Contract or to demand anappropriate reduction of the purchase price, at its own option. Postperformanceshall not be deemed to have ultimately failed until at least two attempts tomake subsequent improvements have produced no successful results.

(b)       If an itemdiverges slightly from our confirmed specifications without its functionalitybeing affected, then the Customer may only demand a reduction of the purchaseprice.

(c)           We shall pay any expenses incurred for thepurpose of post-performance, in particular transport costs, travelling costs,labour costs and the cost of materials. Any additional time and cost incurredon us due to the Customer having taken the goods to some location other thanthe original place of delivery shall be borne by the Customer.

5.2.      Defects inTitle

(a)       If athird-party right is infringed in connection with the Customer’s use of an itemunder the normal or agreed circumstances, and if claims in this respect areasserted against the Customer by the proprietor of such rights, then theCustomer must notify us in writing without undue delay about the claims beingasserted by the third party. At our own option and at our own expense, we shalleither obtain the right to use the item for the Customer’s benefit, orre-design the item in such a manner that no rights are infringed, or take backthe item for the invoiced amount after deducting reasonable compensation forits previous use by the Customer. However, this shall only apply if, by making reasonableefforts, we are unable to find some other solution, or if we cannot reasonablybe expected to accept such other solution. We shall be released from our obligationspursuant to sentences 2 and 3 above if the Customer fails to follow ourinstructions for averting such third-party claims.

(b)       If asolution in the sense of Section 5.2 (a) sentence 3 is impossible orunacceptable to us, then the Customer shall be entitled to claim damages andreimbursement for expenses, subject to the limitation of liability set out inSection 7 below.

5.3.      Providedthat the Contract does not involve performances vis-à-vis a Consumer asCustomer, all the Customer’s warranty claims for defects shall becomestatute-barred one year after delivery of the goods.

5.4.      TheCustomer’s compensation claims for defects shall be governed by the provisionsof Section 7 below. Sect. 444 of the German Civil Code [BGB] shallremain unaffected.

5.5.      Productspecifications and/or advertising claims may only be regarded as guarantees ofcharacteristics and/or guarantees of durability if we have expressly confirmedthis in writing.

6.         Installation, Acceptance

6.1.      If weinstall the goods supplied, then the Customer must effect acceptance onlocation immediately after installation has been completed. Obvious installationdefects must be reported immediately. Once acceptance has been effected withoutreservation, claims for obvious defects are excluded.

6.2.      All theCustomer’s warranty claims for defective installation work shall becomestatute-barred one year after acceptance of installation has been effectedpursuant to Section 6.1 abov.

6.3.      Wheninstalling goods, we are under no obligation to check any preceding work doneby third parties, or to point out that such work has been done incorrectly orto poor standards.

7.         Liability

            Any obligation on our part to pay compensationto the Customer shall be governed by the following provisions of this Section7:

7.1.      If we actwith intent or gross negligence, or if we assume a guarantee forcharacteristics and/or for durability, or if we fraudulently conceal a defect,then we shall be liable in accordance with statutory regulations.

7.2.      We shallbe liable in accordance with statutory regulations for any mortal injury,physical harm and damage to health resulting from slight negligence on ourpart. In all other respects, we shall only be liable for negligent breaches ofcardinal duties, but only for predictable damage typical for the type ofcontract. A cardinal duty shall be understood to mean an essential contractualobligation, performance of which is imperative for implementing the contractand may be always relied on by the Customer.

7.3.      Liabilityfor predictable damage typical for the type of contract, which has to becompensated in the event of a breach of cardinal duty pursuant to Section 7.2above, is limited to an amount of EUR 25,000 per claim and a total of EUR 100,000for all claims within one contract year.

7.4.      We shallnot be held liable for any damages resulting from negligence, unless otherwiseprovided for in Sections 7.1 to 7.3 above.

7.5.      Liabilityin accordance with the statutory provisions of German product liability lawshall remain unaffected.

8.         Retention of Title

8.1.      We reservetitle to the goods supplied (reserved goods) until all the claims have beensatisfied to which we are entitled vis-à-vis the Customer at any present orfuture time under our business relations with the Customer.

8.2.      Untiltitle passes to the Customer, the latter is under the obligation to handle thereserved goods with care.

8.3.      TheCustomer is entitled to re-sell the reserved goods in the ordinary course ofbusiness, as long as the Customer does not default in its payment obligations.By way of security, the Customer herewith assigns to us any claims to paymentcreated on re-selling reserved goods. We hereby authorise the Customer tocollect the payment claims assigned to us in ist own name and for our account;this authority to collect receivables may be revoked at any time, but only ifthe Customer defaults in its payment obligations. At the Customer’s request, weshall be under the obligation to release the security provided by the Customerpursuant to sentence 2 above, if the value of the items of security furnishedby the Customer exceeds our total collateralised receivables by more than 20%.

8.4.      Reservedgoods may not be pledged or assigned to third parties by way of security.

8.5.      TheCustomer is under the obligation to immediately inform us about any re-locationof the reserved goods.

8.6.      If theCustomer acts in breach of contract, and in particular if it defaults inpayment, we shall be entitled to take back the reserved goods, to demandassignment of the Customer’s claims to surrender vis-à-vis any third parties,or – once a reasonable period of grace has expired without avail – to withdrawfrom the Contract. Taking back reserved goods and/or demanding their returnshall not count as withdrawal from the Contract, unless we expressly issue awritten declaration of withdrawal. For the purpose of taking back the reserved goods,the Customer is under the obligation to grant us access to the premises wherethey are located.

9.         Assignment, Setoff, Right of Retention

9.1.      Receivables,rights and/or obligations under this Agreement may only be assigned ortransferred by the Customer with our prior written permission. This does notapply to the assignment of payment claims pursuant to Sect. 354a of the GermanCommercial Code [HGB].

9.2.      Onlycounterclaims that are undisputed or have been declared res judicata maybe offset by the Customer against our own payment claims.

9.3.      TheCustomer may only assert right of retention for counterclaims created directlyunder the Contract. A Customer who is an entrepreneur, a public corporation ora government agency managing public assets is only entitled to assert a rightof retention or a right to refuse performance if its counterclaims areundisputed or have been declared res judicata.

 

 

10.       Non-Disclosure

10.1.    Each partyis under the obligation to keep secret the other party’s business and tradesecrets and any other confidential information and matters requiring protection– including the offer documents which we submit to the Customer – which becomeknown or are provided in connection with performance of the Contract (referredto in their entirety as “Confidential Information”).

10.2.    ThisSection10 shall not apply to information:

            (a)   that becomes public knowledge without anybreach of contract by the other party; or

            (b)   that was known to the party concerned priorto its communication; or

            (c)   that is imparted by a third party entitled todo so; or

            (d)   that has to be disclosed under statutory regulationsor under a government or court order.

10.3.    Thereceiving party may only use Confidential Information for the purpose ofperforming the Contract, and must treat the same confidentially for a period ofthree (3) years after termination of the Contract (indefinitely in the case ofsoftware).

10.4.    Ontermination of the Contract, the receiving party is obliged at the request ofthe disclosing party to destroy any and all Confidential Information, or tosurrender it to the party disclosing it.

11.       Restrictions on Performance Obligations: ForceMajeure, Receipt of Supplies

11.1.    Neither party shall be liable forperformance of its obligations if such performance is prevented by forcemajeure. This shall include in particular incidents that are unpredictable,uncontainable, and beyond the control of the parties, in particular storms,flooding, landslides, earthquakes, high winds, lightning, fire, epidemics, actsof terrorism, armed combat (irrespective of whether war is declared), revolts,explosions, strikes or other labour unrest, sabotage, energy cuts, and expropriationby government agencies.

11.2.    Our obligation to perform is subject to our receivingcorrect and punctual deliveries of goods or services upfront from our ownsuppliers. However, this only applies insofar as we have concluded an identicalcontract with the respective supplier to cover the transaction, and providedincorrect or unpunctual delivery is not due to our own fault.

12.       Export Restrictions

12.1.    TheCustomer’s attention is hereby drawn to the fact that in the event ofexporting, the goods we supply may be subject to export legislation or exportregulations laid down by other countries or by the European Union, and thatthey may only be used or transferred in accordance with such export legislationor export regulations. If the Customer is considering exporting goods suppliedby us, then the Customer itself must perform and meet all and any reporting andapproval obligations and requirements ensuing from such export legislation andexport regulations.

 

 

13.       Termination without Notice (of On-Going Obligations)

13.1.    Weare entitled to terminate the Contract without notice:

            -  where periodic instalments have been agreed,if the Customer defaults in payment of at least two consecutive invoicedamounts or of a not insubstantial part there of; or

                ifthe Customer defaults in payment more than once; or

            -  if a petition is filed for insolvencyproceedings to be instituted against the Customer’s assets, or if suchinsolvency proceedings are actually instituted or turned down due to lack ofassets; or

            -  if there is a risk of a deterioration of theCustomer’s financial situation.

Applicationof Sect. 321 of the German Civi Code [BGB] remains unaffected.

13.2.    Otherstatutory rights entitling the parties to give extraordinary notice forterminating the Contract shall remain unaffected.

14.       Miscellaneous

14.1.    If any oneor more provisions of these T&Cs are or become ineffective orunenforceable, this shall not affect the validity of the remaining provisions.

14.2.    Anyamendment to the Contract must be done in writing. This also applies to anywaiver of the requirement for written form.

14.3.    TheContract shall be exclusively governed by German law, excluding provisions ofGerman private international law and excluding the CISG.

14.4.        If the Customer is a trader, a publiccorporation, or a government agency managing public assets, Düsseldorf shall bethe venue for any and all disputes arising from or in connection with theContract. We are also entitled to sue at the Customer’s registered location.