General Terms and Conditions

Version: 2007/2008

1. Scope of application

1.1. The Order Terms and Conditions presented here shall apply for all business relationships between Axxom Software AG or any subsidiary of Axxom Software AG (hereinafter “Axxom”), and its customers.
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1.2. These Order Terms and Conditions shall apply to all contracts and future business relationships as in the above sense. Any customer’s Terms and Conditions that deviate from these and that we do not expressly acknowledge shall not be applicable. Agreements in the following provisions shall be rescinded insofar as they correspond to other individual contractual stipulations in the written form between Axxom and the customer.
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2. Order execution

2.1. The scope and objective of the work to be performed by Axxom are determined solely according to the contract agreed upon in writing between the customer and Axxom. Subject to any written agreements that deviate herefrom, Axxom owes only the contractually agreed upon service of work, and not any specific success that is above and beyond said service.
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2.2. Axxom shall be entitled to make use of subcontractors in order to perform work to which it is obliged in as far as no other written agreement to the contrary exists between the parties.
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3. Customer’s duty to inform and cooperate

3.1. The customer acknowledges that Axxom shall depend on extensive cooperation on the part of the customer in order to carry out the work to which it is obliged successfully and in a timely manner. Notwithstanding the cooperation duties of the customer as agreed to in detail between the parties, the customer shall thus be obligated to assist Axxom in performing the respective work to the best of its abilities and to the extent required, and, within its sphere of operations, to fulfill all of the preconditions and requirements necessary for proper fulfillment of the contract.
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3.2. The customer shall be obligated to ensure that Axxom is presented with all documentation necessary for executing the order in a timely manner without having to make special requests, and that Axxom shall be informed of all procedures and circumstances that may be of importance for executing the order. This shall also apply to documentation, procedures, and circumstances that first become known to the customer during Axxom’s activities. The customer shall provide information in written form upon request by Axxom or respectively, to provide information in written form that was previously provided verbally.
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3.3. In particular, the customer is obligated to provide all space, materials, and infrastructure lines that are required in order for Axxom to perform work of a professional quality, free of charge, in their entirety and in a timely manner. The scope of this obligation includes providing employees authorized by Axxom to perform work with access to the customer’s IT equipment, where this is necessary for Axxom in order to perform work.
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3.4. The customer shall ensure that all software products and storage media that it provides have been checked for viruses or similarly hazardous programs using an anti-virus that is up-to-date at the time they are provided.
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3.5. The customer shall bear any costs arising from delays that result from the customer not fulfilling its duties to inform and cooperate completely or in a timely manner. Any completion or work deadlines shall be extended accordingly. The customer shall bear the costs of any supplemental expenses.
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3.6. As far as the customer is obliged to enter into cooperative activities involving work to be performed by Axxom, the following shall apply:

3.7. Should a cooperative activity by the customer be required as regards work to be performed by Axxom, and should the customer default by failing to act, Axxom can demand reimbursement of added costs and other damages that it incurs due to the delay. In doing so, Axxom must also credit what it saves in expenditure, acquires through other application of its workforce, or intentional or negligent fails to acquire as a result of the delay.
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3.8. Should a situation as described in the paragraph above present itself, Axxom shall be entitled to specify a reasonable deadline for the customer to redress the cooperative action and to terminate the contract if the activity is not undertaken by the deadline.
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4. Assurance of the independence of Axxom Software AG employees

4.1. The customer shall refrain from soliciting or hiring Axxom employees that work directly toward the object of the respective contract throughout the duration of the collaboration and subsequently thereafter for a period of 12 months.
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4.2. Likewise the customer is to refrain from making offers to Axxom employees as named in the above paragraph regarding work to be accepted on their own account.

4.3. For each instance of intentional or negligent violation, the customer shall be obligated to pay as contractual penalty the amount which is either to be fixed by Axxom, or in the case of legal dispute, to be reviewed by the court of competent jurisdiction.
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5. Rights to the software

5.1. The software, in particular source and object codes or programs, the associated storage media, organizational, documentational, and instructional documents shall remain the property of Axxom, as far as nothing to the contrary is expressly agreed in the software contract, and these shall be subject to copyright. The customer may utilize the software solely under the conditions specified at the signing of the contract; sharing or multiple usage by the customer is prohibited.
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5.2. The customer shall be obligated to permit no one other than persons commissioned or authorized by Axxom to have access to documentation, or to tamper with or enhance the standard software. This shall also include off-duty support by employees or former employees of Axxom.
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6. Confidentiality

6.1. Documentation provided to the other contracting party, or knowledge and experience conveyed may be used solely for the purposes of the collaboration or respectively, of the contract to be signed, and may not be made accessible to third parties, in so far as these are not to be made accessible to third parties according to contractual provisions, or are already known to third parties.
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6.2. The parties further agree to maintain confidentiality regarding the contents of the collaborative work or the underlying contract, and regarding the knowledge gained in the execution thereof.
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6.3. This duty of confidentiality and non-disclosure shall also apply beyond any termination of the contractual relationship.
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7. Data protection and security

7.1. Each contracting parties shall be obligated to comply with all relevant regulations of data protection law. Both contracting parties shall use personal data that is made available to them in connection with the contractual relationship solely for the purposes of fulfilling their respective contractual duties, and shall protect it from attempts by third parties to access or obtain it.
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8. Acceptance

8.1. In as far as Axxom performs work its services under a contract for work and services, the following shall apply:

8.2. The customer shall be obligated to accept the work results that have essentially been accomplished according to the contract, or self-contained components of the work results that have essentially been accomplished according to the contract. Should the customer not accept work results that are available to be accepted in writing and by an appropriate deadline set by Axxom, or not use the resulting services productively, this is deemed to be equal to acceptance. §641a BGB [German Civil Code] shall apply supplementally (expert’s completion certificate).
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8.3. Should Axxom perform work that the customer has promised to a third party, this work performed is deemed accepted if and insofar as the third party accepts the work or components of work performed by the customer, or the customer receives remuneration from the third party for the work or components of work performed.
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8.4. Axxom shall present completed work results to the customer for review and this action shall also simultaneously be a request for acceptance. The customer must indicate acceptance without delay if Axxom has not set an appropriate deadline for the customer’s acceptance in writing. Should it be necessary, the parties shall specify further details regarding conducting the acceptance review.
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8.5. Any defects that impede acceptance must be immediately communicated to Axxom in a written, detailed description of the defect(s) and the effect(s). Upon request by Axxom, the customer shall be obligated to provide processed test data from a failed acceptance review in electronic form.
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8.6. Axxom shall then repair significant defects and present the relevant work results once again for acceptance review.
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8.7. Should the customer accept, or delay in indicating acceptance, risk is then transferred to the customer; this shall also apply for cases of acceptance of self-contained partial work performed.
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8.8. Insofar as Axxom designs software for the customer, Sections 8.1 through 8.6 shall apply for this software.
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9. Liability for damages and reimbursement of expenses

9.1. As regards damages or compensation for futile efforts, Axxom shall be liable for all damages that result from these, regardless of whether stemming from a breach of contract action in tort, but only according to the stipulations in the following paragraphs:
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9.2. In cases of intentional wrongdoing, claims according to the Product Liability Law, provision of a warranty for the condition of work performed or purchase item (§§639, 444 BGB), fraudulent concealment of a defect in work performed or purchase item ((§§ 639, 444 BGB), as well as injury to life, health, or well-being, Axxom shall be liable in accordance with legal regulations.
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9.3. In cases of ordinary negligence, Axxom shall be liable only for breach of an essential contractual duty. In such a case, liability is limited to typical and foreseeable damages. The amount of liability is limited to €250,000 per incident and to €500,000 total for all damages from a contractual relationship. Liability is excluded for any other cases of ordinary negligence.
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9.4. In cases of liability regardless of negligence or fault for damages occurring during delay, Axxom’s liability is likewise limited to reimbursement of typical and foreseeable damages in an amount no greater than €250,000 per incident, and €500,000 total for all damages from a contractual relationship.
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9.5. Liability for software from other sources and the customer’s databases or data is excluded.
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9.6. As far as Axxom accepts liability, liability is limited to damages that are foreseeable and typical to a contract.
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10. Other claims for material defects and defects in title

10.1. Axxom shall provide the customer with software that is free from material defects and defects in title. Errors that lead solely to insignificant impairment of software usability are not to be considered. Functional impairments that result from the hardware and software environment provided by the customer, user error, faulty external data, disruptions in the computer network, or other causes stemming from the customer’s own sphere of risk are not defects.
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10.2. Axxom shall provide no warranty for software that is modified by the customer, unless the customer provides evidence that the modification is not the cause of the defect reported.
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10.3. Axxom shall provide warranty for material defects by means of subsequent fulfillment to be accomplished, at its discretion, either through elimination of the defect or by replacement. In particular, the subsequent fulfillment can occur through the surrender of a new program version, or by instructing the customer in the possibilities for avoiding the effects of the defect. The customer must accept a new program version even if this leads to adjustment expenditures but which are of acceptable scope.
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10.4. The subsequent fulfillment of defects in title is accomplished whereby Axxom provides the customer with the possibility to utilize the software free from title dispute. Should a third party assert a claim of infringement of intellectual property rights against the customer, the customer is to notify Axxom in writing immediately. Axxom shall defend against third party claims at its own expense and shall release the customer from any and all costs and damages related to defense against claims in so far as these are not based on any breach of duty or violation on the part of the customer.
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10.5. In cases of failure or subsequent fulfillment, the customer has the right to reduce or terminate the contract. The customer’s entitlement to damages is specified in §10 Liability for damages.
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11. Remuneration

11.1. In addition to entitlement to remuneration, Axxom shall also be entitled to reimbursement of expenses insofar as nothing to the contrary is specified in the contract. Value-added sales tax shall be calculated separately. Axxom can demand reasonable advances of remuneration and expense reimbursement, and can make delivery or performance of work dependent on full satisfaction of its demands. Several customers for a project or contractual relationship are liable as joint debtors. In as far as there is no express agreement for a fixed or lump-sum price, the customer has an obligation to make payments of remuneration for time and effort expended.
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11.2. The customer shall only be entitled to offset claims by Axxom in as far as its counterclaim is upheld by a court of law or is acknowledged by Axxom.
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11.3. Axxom shall present monthly invoices for its work in as far as no deviating agreement is reached.
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11.4. In as far as nothing different is expressly agreed to, the following shall apply for work performed:
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11.5. Axxom can demand installment payments for self-contained components of work that have essentially been performed according to the contract.

11.6. Should the work be available for acceptance in components and the remuneration for the individual components is specified, the remuneration for each component is due when it is accepted.
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11.7. Should the customer default on payment of remuneration, Axxom is entitled to demand a late payment interest penalty of 8 (eight) percentage points above the base rate per annum. In this case, Axxom shall additionally be entitled to cease performing work until payment of remuneration has been made in full without this being considered a default on Axxom’s part; completion or performance deadlines that have been agreed to shall also be extended by the length of the payment default.
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12. Offset

12.1. The customer can only offset claims made by Axxom with uncontested counterclaims or those upheld in a court of law.
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13. Statue of limitations

13.1. The statute of limitation for customer claims of material defects or defects in title is one year after delivery. Should a defect in title be asserted in a third party right in rem pursuant to which the surrender of the software can be demanded, the legally stipulated statute of limitations shall apply.
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13.2. For other customer claims based on the contract or a contractual obligation, a statute of limitations of one year shall apply, starting at the beginning of the legally stipulated statute of limitations. The statute of limitations for claims ends no later than the expiration of the maximum legal deadline.
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13.3. The legally stipulated statute of limitations shall apply for cases of bodily injury, intentional wrongdoing, and gross negligence.
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14. Miscellaneous

14.1. These Order Terms and Conditions are subject to German law to the exclusion of the Untied Nations Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980.
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14.2. Any and all agreements already reached at the signing of this contract that deviate from these General Terms and Conditions require the written form to be legally binding. This requirement of form can only be waived in writing.
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14.3. No party shall be liable for delays or non-fulfillment of performance arising from acts of God/force majeure, e.g. war or riots, strikes and work disputes, natural catastrophes, governmental measures, no-fault power or telephone outages, no-fault network connection outages or similarly comparable circumstances for which neither party is responsible.
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14.4. Should any provision of these Order Terms and Conditions be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected.
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14.5. The place of performance and sole place of jurisdiction for all disputes between the parties is Munich, Germany. German law shall apply.
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