General terms and conditions

Bittner+Krull Softwaresyteme GmbH General terms of delivery and payment for international transactions (as of 1 june 2011)

I. General

The clauses that follow shall apply exclusively to commercial legal relations. Bittner+Krull Softwaresysteme GmbH (referred to hereinafter as B+K) shall render performance (including sale and delivery) exclusively on the Terms of Business set forth below, which the customer hereby accepts. Contrary general terms of business are hereby expressly objected to and shall not be accepted even if B+K does not object to them again upon receipt. Agreements differing from these Terms of Business that are not made with an authorised representative shall be valid only if expressly confirmed by B+K. These Terms of Business shall not apply to the granting of licences, consultancy services or maintenance agreements.

II. Prices

Deliveries shall be made and services rendered at the prices and on the terms stated in the written agreements. The prices stated therein shall be firm.

Handling, packaging and shipping costs shall be charged separately. VAT at the rate in force on the date of invoicing shall be added on if chargeable in a particular case.

If more than four months elapse between issue of the offer or acceptance of the order and delivery/performance B+K shall be entitled to adjust the payment for its products or services to take account of cost increases occurring in the interim.

III. Terms of payment

1. Unless otherwise stipulated B+K’s invoices shall be payable immediately upon receipt of the invoice. 40% of the purchase price shall be due at acknowledgment of the order, 50% at delivery and the balance upon notification of readiness to operate. If installation of systems as of the scheduled delivery date is delayed by more than one month for reasons for which B+K is not responsible, the (balance of the) purchase price shall be due one month after notification of readiness to deliver.

2. Payment is not deemed made until B+K can dispose of the amount. When paying by cheque payment is not deemed made until the cheque has been cashed and credited. B+K expressly reserves the right to refuse to accept cheques. Cheques shall always be accepted only on account of payment or performance. In principle, bills of exchange will not be accepted. If cheques are accepted on account of payment any costs and/or expenses arising in that connection shall be charged to the customer and shall be payable immediately.

3. If the customer gets into financial difficulties (Section 321 of the German Civil Code), in particular in the case of protesting of a cheque or default in payment for deliveries already made, B+K shall be entitled to make further performances (e.g., further deliveries) conditional upon payment in advance or provision of proper security (e.g., bank guarantees) in the amount of the delivery(ies) to be made or service(s) to be rendered, or to refuse performance and repudiate the contract.

4. If counterclaims are asserted, the customer shall be entitled to set off only if the counterclaims are undisputed by B+K or have become res judicata. This shall not apply to claims for defects.

5. If a payment by the customer is not sufficient to settle all of B+K’s claims the payments shall be allocated in accordance with Section 366 II of the German Civil Code. Section 366 I of the German Civil Code (Right of Determination of Payments) is hereby excluded.

IV. Delivery and acceptance

1. Unless otherwise agreed the scope of the delivery/service shall always be determined by B+K’s written acknowledgment in conjunction with these General Terms of Business. Delivery dates and periods shall not be deemed binding unless confirmed as binding by B+K in writing. B+K shall be entitled to effect part deliveries.

2. If B+K is unable to meet an agreed delivery date for reasons not attributable to B+K, e.g., because they are beyond B+K’s control and cannot be avoided by taking reasonable precautions (for example, official interventions, operating disruptions, industrial disputes, deficiency of key resources and means of transport, adverse weather), B+K shall not be held liable and shall be entitled to postpone the (balance of the) delivery for the duration of the hindrance. The same shall apply in the event of incorrect or late deliveries by B+K’s suppliers, if B+K has concluded a proper hedging transaction.

3. In cases of impossibility of delivery for the above reasons B+K shall be entitled to be wholly or partly released from its obligation to perform without compensation. In the event of non-availability of the performance B+K shall inform the customer without delay and shall without delay refund any considerations already effected by the customer.

4. If B+K fails to meet an agreed delivery date for other than the above reasons and delivery is still not made within an appropriate additional period of time to be granted by the customer, the customer shall be entitled to withdraw from the contract or to have another contractor carry out the delayed delivery by agreement with B+K and at the latter’s expense.

5. If B+K owes customised software, acceptance shall take place upon successful completion of a trial run, if owed, at the installation site in the customer’s presence.

V. Passing of risk

1. The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at transfer of possession and, in the case of sale to destination according to buyer’s instructions, at handover of the goods to the forwarder or other person or organisation carrying out the shipping. Default of acceptance by the customer shall be equivalent to delivery of possession.

VI. Use, modification, upgrading

1. B+K shall not transfer any rights of use and exploitation to the customer other than that of non-exclusive, non-transferable use of the software package supplied and associated documentation. Any other use and exploitation, including modification, processing and reproduction and any kind of correction of defects, shall be deemed a violation of the contract and shall render the customer liable for damages.

2. Any other type of programming activity, such as further data engineering to adapt the computer program for the customer’s purposes and further development of the software, shall be carried out exclusively by B+K. The customer may use the existing functions of the computer program without restriction and adjust them to the requirements of its business. If the customer sells the software it shall delete the computer programs sold from the hardware. If the customer replaces the hardware it shall remove the computer program from the hardware previously used.

3. The provision of source texts shall require a separate written agreement. The customer shall not remove or alter copyright notices, serial numbers and other features identifying the software and the manufacturer. If copies are made for archiving, as a replacement or for troubleshooting, the above-mentioned identifying features shall also be affixed to the copies.

4. The customer shall be permitted to transfer the software to third parties temporarily, provided that the third party acknowledges the customer’s obligations towards B+K arising from the General Terms of Business. The customer shall not use the software during that time.

5. The customer shall be liable towards B+K for all losses arising from failure to remove software and other types of third party use that are not permissible under copyright law.

VII. Defects

1. Product defects arising within one year from delivery to the customer or notification by B+K of readiness to operate shall be remedied by B+K by repair or replacement, at its option.

2. If subsequent performance is unsuccessful the customer can in principle demand a reduction in the payment (diminution of purchase price due to defect) or cancellation of the contract (withdrawal), at its option. However, purely minor breaches of contract, in particular minor defects, shall not entitle the customer to any right of withdrawal.

3. The period of limitation for customer’s rights in the case of defects shall be one year from delivery of the product. This shall not apply in case of malicious non-disclosure of defects.

4. In principle, only B+K’s product specification shall be deemed to describe the quality of the product.

5. Save as expressly agreed B+K shall not give the customer any guarantees in the legal sense.

6. In view of the numerous data and operating configurations occurring in practice and having regard also to operator errors, B+K shall only guarantee freedom from defects in the juristic sense. There shall therefore be deemed to be no defect if the software is suitable according to B+K’s product specification for the intended use. Nor can loss of data be completely ruled out. The customer shall therefore back up the data at regular intervals and shall preserve the necessary storage media (CD-ROMs, disks, etc.) for reconstruction if necessary in the event of data loss.

7. The customer shall describe defects occurring in all discernible details. In that regard the customer shall follow B+K’s fault analysis instructions to enable B+K to obtain an initial idea of the situation. The customer shall make an online connection available to B+K at the latter’s expense for fault analysis and remedying of defects.

8. Within one week from reporting the fault to B+K the customer shall receive an update to remedy the defect if the defect cannot be corrected via the online connection. If a fully developed update is not yet available and still has to be developed by B+K, this deadline shall be extended by a length of time which is reasonable for both parties.

9. If the update supplied does not remedy the defect the customer can grant B+K an appropriate additional period, stating that after that time the customer will not accept remedying of the defect. After expiry of the deadline the customer shall be entitled to repudiation of the contract or diminution of the purchase price if the defect has not been  remedied within the time.

10. The customer shall not be entitled to withdraw from the contract – unless withdrawal is excluded in law – or to a diminution of the purchase price until an appropriate time set by the customer for subsequent performance has elapsed without success, unless the relevant legal provisions do not require a time to be set (i.e., B+K seriously and finally refuses to effect subsequent performance, or a firm and binding commissioning date was agreed which B+K is unable to meet and the customer made timeliness of commissioning a condition of continuation of the contract, or if there are special circumstances justifying immediate withdrawal, taking both parties’ interests into account. This shall likewise apply if the attempt at subsequent performance has failed or is unreasonable for the customer. In that regard, subsequent performance shall be deemed to have failed after the second unsuccessful attempt unless, in particular, the nature of the object or the nature of the defect, or the other circumstances, dictate otherwise).

Any customer’s claims for damages and claims for reimbursement of expenses shall be governed by the provisions of VIII below. In the event of malicious non-disclosure of a defect or if the quality of the object has been warranted at the time of passing of risk according to Section 444 of the German Civil Code (i.e., a declaration by B+K that the object of sale has a certain quality at the time of passing of risk and that B+K accepts liability for all consequences of the defect regardless of fault), the customer’s rights shall be governed exclusively by the provisions of law.

11. Remedying of defects shall not include correction of faults due to normal wear and tear, external influences, operator error or incorrect maintenance. The criterion shall be the information in the user manuals. In case of remedying of defects B+K shall assume the necessary expenses, in particular transport, travel, labour and materials. This shall not apply if the expenses are increased because the object of sale was moved after delivery to another business location of the customer’s, unless the move is in accordance with the intended use of the object. The warranty shall not apply if the customer itself modifies essential features of the software or has a third party do so. If warranty work is performed in such cases the customer shall pay compensation for expenses. This shall include material and labour costs and other out-of-pocket expenses.

VIII. Liability for damages and reimbursement of expenses

1. In the event of culpa in contrahendo, contractual and/or non-contractual breach of duty, including in case of a defective delivery, tort and manufacturer’s liability, B+K shall be liable for damages and reimbursement of expenses only in case of intent, gross negligence and in case of breach of an essential contractual obligation through ordinary negligence (a contractual obligation the breach of which jeopardises attainment of the contractual purpose). However, except in case of intent B+K’s liability shall be limited to the damage typical of the contract that was foreseeable at the time of concluding the contract. Claiming of useless expenses by the customer shall be excluded.

2. The exclusions and limitations of liability according to Clauses 1-3 shall not apply in the case of a warranted quality of the object, in the case of malicious non-disclosure of a defect, in the case of injury to life, limb or health, or in the case of a claim based on gross negligence, or in the case of mandatory liability under the German Product Liability Act.

3. All compensation claims against B+K, persons employed in the performance of its obligations and vicarious agents, irrespective of legal basis, shall become statute-barred one year at the latest after delivery of the object to the customer and, in the case of liability in tort, from the knowledge or grossly negligent ignorance of the circumstances giving rise to the claim and the person liable for compensation. In the event of liability for intent and the cases referred to in Clause 4, the provisions of this paragraph shall not apply and the provisions of law shall apply instead. Any shorter periods of limitation provided for by law shall take priority.

IX. Retention of title

1. The product supplied shall remain B+K’s property until full settlement of all claims arising from current business relations with the customer. We shall be entitled to take back the object of sale in case of contract-breaching behaviour by the customer, in particular default in payment. Taking back of the object of sale by B+K shall not constitute withdrawal from the contract unless expressly so stated in writing by B+K. Seizure of the object of sale by B+K shall always denote withdrawal from the contract. After taking back the object of sale B+K shall be authorised to realise it. The proceeds of realisation, less appropriate realisation expenses, shall be credited against the customer’s liabilities.

2. The customer shall treat the object of sale with care and in particular shall at its own expense insure it adequately at replacement value against damage by fire, water and theft. Any maintenance and servicing work necessary shall be carried out at the proper time by the customer at its own expense.

3. The customer shall inform B+K immediately in writing in the event of seizure or other third party interventions to allow B+K to raise an action according to Section 771 of the German Code of Civil Procedure. If the third party is unable to reimburse B+K for the court and out-of-court costs of an action according to Section 771 of the Code of Civil Procedure the customer shall be liable for our loss.

4. The customer shall be authorised to sell on the object of sale in the normal course of business; however, the customer shall hereby assign to B+K all claims in the amount of the final invoice amount (inclusive of VAT) of the claim accruing from resale against its customer or a third party, irrespective of whether the purchased object was sold on without or after processing. The customer shall be authorised to collect the claim even after assignment. B+K’s authority to collect the claim itself shall be unaffected. However, B+K shall not collect the claim as long as the customer meets its payment obligations from the proceeds received, is not in default of payment and, in particular, no application for commencement of insolvency proceedings has been made and suspension of payments has not occurred. However, if this is the case B+K can demand that the customer reveal to B+K details of the claims assigned and the debtors, supplies all the information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.

5. Processing or conversion of the object of sale by the customer is always deemed to be performed on B+K’s behalf. If the object of sale is processed together with other objects not belonging to us B+K shall acquire joint ownership of the new object in proportion to the value of the object of sale (final invoice amount, inclusive of VAT) to the other objects processed at the time of processing. In other respects the object created by processing shall be governed by the same provisions as the object of sale supplied with reservation of rights.

6. If the object of sale is inextricably combined with other objects not belonging to B+K, we shall acquire joint ownership of the new object in proportion to the value of the object of sale (final invoice amount, inclusive of VAT) to the other objects combined with it at the time of combination. If combination takes place in such a way that the customer’s object is to be regarded as the main object it shall be deemed agreed that the customer shall assign proportional joint ownership to B+K. The customer shall keep the sole property or joint property thus created in safe custody on behalf of B+K.

7. As security for our claims against it the customer shall also assign to B+K the claims accruing against a third party from combination of the object of sale with real property.

8. At the customer’s request B+K shall release the security it holds to the extent that the realisable value of the security exceeds the claims to be secured by more than 10%. The security to be released shall be chosen by B+K.

X. Place of venue

The exclusive place of jurisdiction for both parties shall be Munich.

XI. Final provisions

1. The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.

2. Should any of the above clauses be or become invalid this shall not affect the validity of the remaining provisions hereof. The wholly or partly inoperative provision shall be replaced by a provision coming as close as possible to the intended economic result of the inoperative provision.

3. Should any of the above clause become inoperative due to a change in judicature after conclusion of the contract it shall be replaced by a provision coming as close as possible to the intended economic result.