General Terms and Conditions of Business for Deliveries, Services and Software Licensing

§1 Corporate purpose and scope of development conditions

The purpose of the business activities of CSP IT-Business GmbH (hereinafter referred to as: CSP) is the sale of in-house and external standard software and customer-specific individual software, including all other associated services such as consulting, installation, customer training, update preparation, etc. These services shall be performed by CSP solely on the basis of these Terms and Conditions of Business. Any contradictory conditions of the client (hereinafterreferred to as: Customer) shall not apply unless they are approved in writing by CSP. No response on the part of CSP to any contradictory conditions shall not be deemed as approval of the same. By signing the written order, the Customer shall acknowledge the General Terms and Conditions of Business of CSP.

 

§2 Contractual basis, software specification and functional specification

(1) The basis of each purchase of standard software and each development order shall be the written individual contract concluded in accordance with these General Terms and Conditions of Business (GT&CB). This contract shall set out all significant framework data of theorder, but at least the nature and scope of the contractual services, in particular which additional services beyond those of the development work are to be performed, the remuneration and, in the case of fixed business, the completion deadlines. In the event of discrepancies between these conditions and the individual contract, these conditions shall take priority unless the deviations are set out in the contract expressly as a required exception to these GT&CB.

(2) The technical basis of each development order shall be the relevant functional specification drawn up by the Customer. The functional specification shall be acknowledged with a signature by both parties and incorporated into the contract. If the parties cannot agree on the content of the functional specification, both parties shall be entitled to an extraordinary termination of contract. The assertion of claims for damages shall be excluded in this case. Any possible cooperation of CSP in the drawing up of the functional specification shall be remunerated separately.

(3) Further technical descriptions in addition to the functional specification shall also be acknowledged in terms of its content with a signature by both parties and incorporated into the contract. In the event of discrepancies between different development documents, the functional specification shall be decisive unless the deviation has been expressly approved.

(4) Each contracting party shall be obliged on signing the contract to nominate at least one responsible person with the authority to act as a representative with regard to the contractual relationship and all decisions to be made in this context. Decisions relating to significant additions/changes or other modifications of the relevant contract by persons other than those named in the contract or the legal representatives of the contracting parties shall not have any binding effect.

 

§3 Quotations

(1) Unless agreed otherwise in writing, CSP shall be bound to written quotations for two weeks.

(2) CSP reserves the right to deviate for technicalreasons from the quotation documentation to a reasonable extent also after confirmation of the order. CSP shall retain all rights to cost estimates and other documentation. The interested party shall be obliged to maintain confidentiality even in the event that the order is not awarded.

 

§4 Default

If a fixed date is agreed for the creation of the individual software or for the delivery of the standard software and this is not adhered to by CSP, the Customer shall initially send CSP a written reminder. Withdrawal from the contract by the Customer shall only be permissible if, following a reminder, it set CSP an appropriate extended period for completion and if completion was not carried out within this period. The right to a warning and withdrawal shall be excluded if the completion deadline is missed due to subsequent change requests by the Customer.

 

§5 Installation and instruction

(1) The contract on the development of the individual software in accordance with the functional specification shall not cover the installation of the software on data processing systems of the Customer. If CSP is also required to install the software at the Customer, this shallrequire a separate order and shall be remunerated separately by agreement. These services shall be billed for according to actual work (in accordance with the hourly rates valid at the time of performance as per the CSP price list) for each working hour commenced. Furthermore, the Customer shall assume the costs for travel and accommodation in accordance with the relevant valid CSP price list. The conditions of the current training catalogue shall apply to training events. CSP may bring in third parties qualified for these services after consultation with the licence holder.

(2) The Customer shall be obliged to fulfil the technical and organisational prerequisites necessary for commissioning. The preliminary work required for the commencement of the service must be concluded so that installation can be started immediately after arrival of the employees of CSP and carried out without interruption. The Customer shall make available all necessary facilities, provide support during the operation of external equipment and (if required) enable work to be carried out also outside of normal working hours. After installation of the program, CSP shall instruct theCustomer on request in the use of the software. Instruction shall also be remunerated separately by agreement.

(3) If installation or commissioning is delayed without any blame on the part of CSP, the Customer shall bear any additional costs that arise as a result.

 

§6 Changes

(1) Change requests of the Customer with regard to the functional scope, the program structure, the screen layout or other features of the contractual software shall not have to be taken into consideration by CSP if they constitute a deviation from the original contractual content, or in particular do not comply with the functional specification that forms the basis of the software or other service descriptions.

(2) CSP shall be at liberty to consider the requested changes in return for appropriate additional compensation. The basis for calculation of the additional compensation shall be the necessary additional labour in relation to time and the remuneration rate calculated by CSP for the overall production. CSP shall not be obliged to publish its calculation, but must justify the level of additional compensation in a transparent way. As a basis for calculation, the hourly/daily remuneration for instruction in accordance with § 5 of this contract may not be exceeded to any considerable extent.

 

§7 Cooperation obligations

(1) The Customer shall be obliged to cooperate to an appropriate extent during the creation of the program. The cooperation obligation shall include in particular the provision of the information relating to DP and project organisation (hardware and operating systems, standard software used, organisational plans) required for development and also the hardware on which the program is later to be used. During the required test runs and the acceptance test, the Customer shall be present in person in the form of the representative nominated in the contract in order to evaluate and decide on defects, extended functions, reduced functions and changes to the program structure. The Customer shall make available any test data also required.

(2) If CSP submits drafts, program test versions, etc. to the Customer, these shall be diligently checked by the Customer. Any identified faults and/or change requests shall be reported at this time. If the Customer neglects to carry out checking and testing and/or provide notification of a defect, the warranty obligation of CSP shall no longer apply to this defect.

(3) All documentation and material made available to one contracting party by the other party for the fulfilment of the order shall be treated with care and may only be duplicated in the context of the implementation of the contract, and may not be made accessible to third parties. It shall be returned to the other contracting party including any duplications produced as soon as it is no longer required for setting up the program.

 

§8 Acceptance

(1) After completion of the development work for individual software, the Customer shall install thesoftware within two weeks in order to enable acceptance tests to be carried out. If the Customer neglects to carry out installation within this period, the software shall be deemed to have been accepted. This shall not apply if installationis carried out by CSP.

(2) Following the installation of the program, CSP shall carry out appropriate acceptance tests to prove the existence of the promised features and the main program functions. At the request of the Customer, test data provided by it shall be used for an acceptance test and additional tests shall be carried out to an appropriate extent wherever the Customer deems such tests necessary in order to test the program in practical application.Additional test runs shall be remunerated separately by the Customer in accordance with a relevant agreement.

(3) If the software passes the acceptance tests, the Customer shall be obliged at the request of CSP to submit a written declaration of acceptance. Partial acceptance shall be possible. If necessary, any minor deficiencies identified shall be noted in the declaration of acceptance. Acceptance may not be refused on the basis of minor deficiencies. CSP may set an appropriate period for submission of the declaration of acceptance, after expiry of which the software shall be deemed to have been accepted.

 

§9 Scope of delivery and further utilisation

(1) CSP shall deliver one unit of the runnable program, including user documentation, on data carriers. If the Customer requires delivery of additional units of the program and/or the user documentation, it shall remunerate this separately in an appropriate amount.

(2) The software modules purchased shall not be transferred, but rather the Customer shall receive, in accordance with the regulations of §§ 69 a ff. UrhG [German Copyright Act] and the following conditions, until full payment of the purchase price, a non-exclusive right of use revocable at any time for the ordered workstations, and after full payment of the purchase price, the Customer shall have the unlimited, non-exclusive right of use of the software produced and/or sold by CSP. In the case of a software lease, CSP shall authorise for the duration of the lease agreement an unlimited right of use, which shall end automatically when the lease agreement expires or is terminated.

(3) Licensing shall apply to the number of workstations according to the purchase contract that work with the individual modules. The software may be used exclusively on the systems of the Customer for whom the software has been licensed, and only on the number of workstations for which a licence exists. The rights of use shallnot be transferable, even to affiliated companies. The Customer shall ensure that only clients in which the Customer holds a qualified majority are managed on the system. In the event of changes to the participation ratios, the Customer shall have a duty to notify CSP.

(4) Duplication, back-translation into source code (decompilation), changes, extensions or other intervention shall only be permitted under the prerequisites of §§ 69 d para. 2 and 3, and 69 e UrhG [German Copyright Act].

(5) The software and documentation may not be made accessible to any third parties or used for the purposes of third parties. Third parties may not in any way gain an insight into or view the documentation. All documentation supplied by CSP in the context of the software installation shall be treated as confidential. The Customer shall be liable for confidentiality even after the end of the contract.

(6) Other rights to the software shall not be transferred to the Customer.

(7) In the event of any infringement of the licenceconditions, a claim for damages estimated at a flat rate in the amount of five times the purchase price of the licensed software shall be agreed. The right to assert a higher damages claim shall remain reserved. However, the Customer shall be permitted to provide proof that CSP has not incurred any damages or that the same are considerably lower than the flat rate.

 

§10 Passing of risk

The risk (performance risk and remuneration risk) shall pass to the Customer:

a) upon dispatch: if the objects to be delivered are properly dispatched

b) upon delivery to the agreed location

c) in the event of default of acceptance on the part of the Customer if the Customer is in default

d) upon acceptance (contracts for work and services)

 

§11 Warranty

(1) CSP shall guarantee that the developer’s own software modules handed over fulfil the functions specified in the service description (the manual orthe functional specification, if available). Software deficiencies shall be deemed to be faults where the program functions deviate in a reproducible way from the functions in accordance with the service description and it can be proven that they are not due to faults in the hardware, system software or other system parts not delivered by CSP, or operating errors. For functions that are also set up at the Customer in the context of customising, CSP shall only provide a warranty if these additional functions have been fixed in writing in the context of negotiations during contract preparation.

(2) Any deficiencies established shall be reported in writing, identified in sufficient detail and described to enable the deficiency to be checked. § 377 HGB [German Commercial Code] shall also apply.

(3) Deficiencies in the context of the aforementioned regulation shall be rectified by CSP within the warranty period of twelve months from acceptance in the case of individual software or from the passing of risk in the case ofstandard software following appropriate notification by the Customer by means of improvement. The rectification of a deficiency shall be carried out within an appropriate time frame under consideration of mutual interests. If improvement fails three times in total, the Customer shall have the option to withdraw from the contract or demand a reduction in the remuneration.

(4) If the Customer makes changes to the contractual software irrespective of the nature of such changes, any warranty on the part of CSP shall no longer apply.

(5) The warranty shall exclude deficiencies resulting from a change in technical conditions, erroneous operation or unauthorised interference. Expenses that do not relate to deficiencies of the products supplied by CSP shall be remunerated by the Customer. This shall also apply insofar as the expenses required for fault rectification increase as a result of dispatch of the purchase item carried out after delivery to a location other than the place of performance. This shall also apply to fault localisation expenses and expenses arising due to the fact that no daily data backup exists.

(6) The provision of a warranty in relation to § 443 BGB [German Civil Code] shall always require a separate written agreement

(7) Manufacturer warranties for external products shall exist in addition to the warranty of CSP.

 

§12 Remuneration

(1) All prices shall be from the place of dispatch,excluding any packaging and shipping costs incurred, plus statutory VAT. Installation and service costs shall be invoiced separately.

(2) The due date for payment shall be 14 days net from receipt of invoice. In the case of a high volume of individual software, partial invoicing shall be possible if this is preceded by a partial acceptance. In the case of the purchase of standard software products, the purchase price shall be due immediately upon conclusion of the contract unless agreed otherwise.

(3) In the event of a default of acceptance, the total amount outstanding shall become due for payment immediately, irrespective of the agreed conditions.

(4) The withholding of payment and offsetting in relation to counter claims shall only be permitted insofar as the claims relate to the same contractual relationship and are undisputed or legally set out.

(5) In the event of default of payment, CSP shall be entitled to charge interest on any receivables at 8% p.a. above the relevant valid basic rate fromthe due date. The right to assert claims for further damages shall remain reserved.

(6) If the Customer is more than two months in default with payment, CSP shall be entitled to terminate the contractual relationship.

(7) Goods and licences shall remain the property of CSP until the fulfilment of all claims existing in relation to the Customer, also those to which CSP has an entitlement outside of the contract.

(8) Resale in the ordinary course of business shallbe permitted. The Customer shall hereby transfer all receivables from the resale of the goods subject to retention of title to CSP, which shall accept the same, to the extent that the goods have been processed.

 

§13 Liability

(1) CSP shall be liable in the event of intent or gross negligence, also of a representative or vicarious agent, in accordance with legal provisions. Furthermore, CSP shall only be liable in accordance with the Produkthaftungsgesetz [German Product Liability Act] in the event of lossof life, physical injury or damage to health, or culpable infringement of significant contractual obligations. Any claim for damages for infringement of significant contractual obligations shall, however, be limited to contract-typical, foreseeable damages unless another of the exceptions specified in clause 1 or 2 of this para. 1 exists. The liability of CSP shall also be limited in cases of gross negligence to contract-typical, foreseeable damages unless another of the exceptions specified in clause 2 of this para. 1 exists.

(2) The regulations of para. 1 shall apply to all claims for damages (particularly for damages in addition to performance and damages in place of performance), irrespective of the legal basis, particularly in relation to deficiencies or a breach of obligations arising from the contractual relationship or from unauthorised handling. They shall also apply to the claim for compensation of futile expenses.

(3) Any change to the burden of proof to the disadvantage of the Customer shall not be deemed to be connected with these regulations.

 

§14 Limitation

(1) The period of limitation for claims and rights relating to deficiencies – irrespective of the legal basis – shall be one year. This period of limitation shall also apply to other claims for damages in relation to CSP, irrespective of their legal basis. It shall also apply insofar as the claims are not in connection with a deficiency.

(2) The period of limitation in accordance with para. 1 shall apply with the following proviso:

a) The period of limitation shall generally not apply in the case of intent.

b) The period in accordance with para. 1 shall also not apply if CSP fraudulently concealed the deficiency or insofar as CSP has provided a warranty for the quality of the delivery item.

c) The periods of limitation shall also not apply to claims for damages in the event of loss of life, physical injury or damage to health or freedom, in the case of claims in accordance with the Produkthaftungsgesetz [German Product Liability Act], in the event of a grossly negligentbreach of duty or in the event of culpable infringement of significant contractual obligations.

(3) The period of limitation shall begin in the case of all claims for damages upon acceptance or the passing of risk.

(4) Insofar as this provision deals with claims fordamages, claims for compensation of expenses shall also be included.

(5) Unless expressly stated otherwise, the legal provisions relating to the start of limitation, thesuspension of expiry and the suspension and resumption of periods shall remain unaffected.

(6) Any change to the burden of proof to the disadvantage of the Customer shall not be deemed to be connected with these regulations.

 

§15 Applicable law, place of jurisdiction, miscellaneous

(1) All contracts and disputes relating to these Terms and Conditions of Business and the contracts concluded under them shall be subject to the law of the Federal Republic of Germany. The Hague Convention dated 01.07.1964 relating to Uniform Laws on the International Purchase of Movable Goods and the United Nations Convention dated 11.04.1980 on Contracts for the International Sale of Movable Goods shall not apply. Insofar as these regulations deviate from the legal regulations of the Federal Republic of Germany, all aforementioned contracts shall be subject exclusively to the aforementioned regulations of the General Terms and Conditions of Business of CSP.

(2) The place of performance for all obligations arising from the relevant contractual relationship shall be Großköllnbach. The place of jurisdiction for any disputes relating to these Terms and Conditions of Business and the contracts concluded under them shall be Landshut.

(3) All changes or additions to, or finalisation ofthese conditions, including this clause itself or the relevant individual contract agreements, including the technical documentation, and specific promises and agreements, shall be set out in writing.

(4) If a provision contained in these conditions becomes invalid, this shall not affect the validity of the other provisions. The invalid provision shall be replaced with a substitute provision that corresponds most closely to its economic purpose. If the parties cannot agree on such a provision, an arbitrator to be appointed by the Munich Bar Association shall decide on a provision that is binding for both sides.