General Terms and Conditions for the Acquisition of tarakos GmbH Standard Software

1. Object of the Contract

The following conditions apply to the license and usage of standard software for an unlimited period against payment of a one-time charge.

They do not apply to additional services such as installation, integration, configuration and adaptation of the standard software to the requirements of the purchaser.

2. Type and Scope of Service

2.1. The seller grants the purchaser a license for the standard software according to the stipulations in the contract.

2.2. The standard software documentation is in German and shall be provided in printed or printable form unless otherwise agreed.

2.3. The standard software was, at an appropriate time prior to delivery to the purchaser, scanned with an up to date virus program. The seller hereby declares that the scan did not detect any malicious elements in the standard software.

2.4. Proper data backup shall be the responsibility of the purchaser.

2.5. At the time of ordering the standard software, the purchaser is familiar with the functions of the programs as well as the system requirements (product data sheets, presentation on the tarakos homepage, etc.).

3. Usage Rights

3.1. The standard software is copyright-protected.

3.2. The standard software shall be licensed to the purchaser for use pursuant to the terms of the contract. The scope of use according to the aforementioned terms and the type and scope of usage rights result from the contract. Unless any other stipulations as to usage rights are made in the contract, the seller grants the purchaser the following usage rights to the standard software:

- the non-exclusive right to use the software

- the right to use the software in any system environment

- the transferable right of use with the limitation of item 3.5,

- the permanent and irredeemable right to use the product with the limitation of item 4,

- operation of the software only with a USB dongle or other activation code provided by the seller (operation without authenticated activation is prohibited)

3.3. The purchaser undertakes, through appropriate technical and organizational measures, to see to it that use of the standard software according to the terms of the contract is ensured.

3.4. The purchaser shall be entitled to make a copy of the standard software for backup purposes. Copies of the standard software for backup purposes are considered part of use pursuant to the terms of the contract.

3.5. Should the purchaser be entitled to transfer his or her usage rights to a third party and if he avails himself of this right, then s/he must impose his contractual obligations on said third party. The usage rights of the purchaser expire upon transfer. All existing copies of the standard software shall be deleted or returned to the seller. Furthermore, the seller is to be notified of the transfer in writing with the name and address of the transferee.

The purchaser may however retain a copy for testing and archiving purposes if so stipulated in the contract.

3.6. If the purchaser is only granted usage rights for one system environment defined in the contract, then use in another system environment is contingent upon the authorization of the seller. If a system environment defined in the contract is inoperable, use in another system environment is permissible until the problem is corrected.

3.7. The purchaser undertakes not to translate the standard software to another code form unless such is permissible pursuant to the copyright regulations.

3.8. The seller shall inform the purchaser of any copy protection or impediments to use so far as such are known to him.

4. Extraordinary Termination of Usage Rights

4.1. If the purchaser seriously violates the agreed upon usage rights or property rights of the holder of rights, the seller may extraordinarily terminate the purchaser's rights to use the software. This requires that a reminder by the seller with an appropriate compliance deadline has proved unsuccessful.

4.2. If the standard software is subject to export control regulations by Bureau of Export Administration, US Department of Commerce, then the seller shall inform the purchaser thereof in the contract. If the purchaser fails to comply with such export control regulations, then the seller may extraordinarily terminate the former's rights to use the standard software.

4.3. In the event of extraordinary termination, the purchaser is required to delete or return to the seller the original of the affected standard software including the documentation and all copies. At the request of the seller, the purchaser shall make a declaration regarding the deletion. The purchaser is entitled to retain a copy of the standard software for testing or archiving purposes if a corresponding arrangement was made in the contract.

4.4. The other legal regulations remain unaffected.

5. Payment

The total price stipulated in the contract is the payment for all contractual services so long as no other arrangements are made. Payment falls due immediately after delivery or performance and once the purchaser has received an auditable invoice. These regulations apply accordingly in case of agreed on partial performances.

6. Default

6.1. In case of default, the purchaser may provide the seller with a reasonable deadline. After this deadline has elapsed, the purchaser may withdraw partially or completely from the contract and demand compensation in lieu of the service.

The purchaser is required, at the request of the seller, to state whether s/he shall, as a result of the delay in performance, withdraw from the contract or insist on performance. This request shall be made within the period provided for in Item 6.1, Paragraph 1 and with a reasonable deadline. The seller remains entitled to performance until the answer is received by him or her.

Items 6.2 and 6.3 remain unaffected by the preceding.

6.2. If the purchaser requests compensation instead of performance, then the seller's payment obligation shall be limited to 8 % of the total price pursuant to the contract. Claims by the purchaser for compensation of lost profits are excluded. The total amount already paid in compensation pursuant to Item 6.3 shall be counted.

6.3. If the seller falls behind by more than seven calendar days in complying with one of the license deadlines stipulated in the contract, then the purchaser can request lump-sum compensation for each additional day in delay for delay in performance. This amount is 0.4 % of the individual price of the performance in which the seller is behind for a maximum of 8 % of this price. The total amount of compensation shall be limited to 8 % of the total price pursuant to the contract.

The seller is free to show that no or minimal damage has occurred.

6.4. The limitations on liability do not apply in case of premeditation or gross negligence or in case of injury to life, body or health.

7. Warranty

7.1. The seller shall provide the purchaser with the standard software free of defects. A negligible defect is not substantial.

7.2. Particular arrangements as to the characteristics of performance may be made in subparagraph 4 of the contract.

Such arrangements shall not represent any guarantees with regard to workmanship or product life under the terms of § 443 of the German Federal Civil Code.

7.3. Warranty claims by the purchaser do not extend to standard software which is altered by the purchaser or not used in the contractually stipulated system environment unless the purchaser can prove that this use was not the cause of the reported defect.

7.4. The prerequisite for warranty claims is the reproducibility of determinability of the defects.

7.5. The purchaser shall report defects without delay and including the information that is known to him or her and expedient for detection of these errors on a form corresponding to Template 1 - Fault Reporting Form unless another form of fault reporting is agreed upon. S/he shall, within reason, take steps to simplify the determination of the defects and their causes.

7.6. The product is warrantied for 12 months from the date of license unless other arrangements have been made. The warranty period for deficiencies in subsequent performance shall also end upon expiration of the warranty period.

If the purchaser reports a defect prior to expiration of the contract according to the process defined pursuant to Item 7.5, the period of the reported defect is delayed if the seller checks for the presence of the defect or repairs the problem with the consent of the purchaser. The guarantee period is delayed until the seller informs the purchaser of the result of his/her inspection, declares the repair to be completed or refuses to continue the repair.

7.7. If the seller's obligation to repair defects is not contractually excluded, then the seller can chose to correct the defect through immediate repair, bypass or replacement. Defect correction shall include provision of printed or printable correction instructions for the documentation as far as this is necessary.

The latest version of the standard software acquired by purchaser shall be covered by the warranty. A new version shall be accepted by purchaser if it serves to prevent or remove defects. The purchaser shall not be required to accept a new version if this cannot be expected of him/her since the new version significantly deviates from the provisions of the contract. If the purchaser does not accept a new version for this reason, then, instead of repair, his other rights pursuant to Item 7.7, Paragraph 3 remain unaffected.

If the seller does not successfully repair the defects within a reasonable time period, then the purchaser may grant him an extension. Once the extension has elapsed, the purchaser may request a reduction in price or withdrawal from the contract and - if the legal conditions are fulfilled, s/he may request, in addition to withdrawal from the contract, compensation for damages. The amount of this compensation shall be limited to 8 % of the value of the performance affected by the defect, for all compensation claims arising from defects being limited to a maximum of 8 % of the total price pursuant to the contract.

7.8. If the obligation of the seller to repair defects is contractually excluded, the other rights resulting from Item 7.7, Paragraph 3 remain unaffected.

7.9. In case a new version of the standard software is licensed, the previous version is to be destroyed or, at the latter's request, returned to the seller.

7.10. The limitations of liability in Item 7.7, Paragraph 3 shall not apply to claims arising to 7.2, in case of fraudulent concealment of a defect, premeditation, gross negligence or injury to life, body or health. Claims by the purchaser for compensation of lost profits are excluded.

7.11. The seller shall not assume any warranty for software licensed free of charge, so that claims arising from Chapter 7 for free software cannot be made.

8. Trademark Right Infringement

8.1. If a third party makes claims against the purchaser due to trademark infringement rights arising from standard software supplied by seller and if use of the standard software is negatively impacted or prohibited as a result, then the seller shall be liable as follows:

The seller shall at his/her own option and expense either alter or replace the software so that it does not infringe on the trademark right but still corresponds to the stipulated function and performance characteristics in a reasonable manner for the purchaser or release the purchaser from license fees for the use of standard software vis-à-vis the trademark right holder or third party.

If the seller fails to due this under appropriate conditions, then s/he shall inform the purchaser of this and prohibit the purchase from using the product starting from a certain date. The purchaser is required, at the option of the seller, to delete the standard software including the documentation and all copies or to return these to the seller.

The seller must refund the price paid by the purchaser minus an amount taking into account the period of use of the standard software.

8.2. The prerequisites for the seller's liability pursuant to Item 8.1 are that the purchaser: notifies the seller of third party claims without delay, s/he does not recognize the alleged trademark right infringement and leaves any conflict, including any extrajudicial settlement to the seller or pursues it only with the consent of the seller. Costs incurred by the purchaser for legal defense, necessary court and attorney's fees shall be borne by the seller.

If the purchaser suspends use of the standard software for loss mitigation or other important reasons, s/he shall be obligated to notify the third-party that suspension of use is not associated with recognition of the alleged trademark right infringement.

8.3. As far as the purchaser must defend the trademark infringement by him/herself, claims against the seller shall be excluded.

8.4. Further claims by the purchaser due to an infringement on the trademark rights of third parties shall be excluded. The limitations on liability do not apply in case of premeditation or gross negligence or in case of injury to life, body or health.

9. Other Liability

9.1. Liability is fully dealt with as regards default in Item 6, warranty in Item 7 and trademark right infringements in Item 8.

9.2. In addition, purchaser and seller shall be liable to each other for damages for which they are responsible as follows:

9.2.1. for property damages up to 500,000 EUR per loss occurrence, up to a maximum, however, of 1.0 million EUR per contract;

9.2.2. for financial loss up to a maximum of 10 % of the total price of the contract. Liability for financial losses shall be limited to 500,000 EUR per contract.

Claims for lost profits are excluded.

In case of loss of data, the seller shall only be responsible for the cost incurred by the purchaser to restore the data provided that data were properly backed up. In case of mild negligence by the seller, this liability only applies, if the purchaser performed a proper data backup immediately prior to the action leading to loss of data.

9.3. The limitations on liability pursuant to Items 9.2.1 and 9.2.2 Paragraph 1 do not apply to claims arising from Item 7.2, in case of premeditation, gross negligence, injury to life, body or health or so far as the product liability law applies.

9.4. The seller shall assume no liability for the subsequent use of results or conclusions obtained with the standard software since they may include deviations from reality and inaccuracies and therefore must be tested for causality prior to use with other, comparable programs and/or methods.

10. Limitation Period

Claims pursuant to Items 6, 8 and 9 shall expire no later than three years after acknowledgement.

11. Data Protection, Confidentiality and Security

11.1. The purchaser shall see to it that the seller is informed of all relevant ultra vires facts of which the latter must be aware for reasons of data protection and confidentiality.

11.2. Prior to giving a data storage device to the seller, the purchaser shall ensure that all content worthy of protection has been deleted unless other arrangements have been made.

11.3. The seller shall see to it that all parties entrusted by him/her with processing or fulfillment of the contract comply with the legal provisions on data protection. The obligation to comply with data secrecy required pursuant to the data protection law shall be undertaken no later than initial acceptance of activity and be proved to the purchaser upon request.

11.4. The purchaser may fully or partially withdraw from the contract if the seller culpably fails to fulfill his/her obligations under Item 11.3 taking into account the circumstances described in Item 11.1 within a reasonable time period or if the latter violates data protection requirements with premeditation or gross negligence.

11.5. The purchaser and seller shall be obliged to treat all confidential information, business and company secrets obtained within the scope of the contractual relationship confidentially and in particular not to give the aforementioned to third parties or use them in a manner inconsistent with contractual purposes. This also applies to the exchange of experiences among public authorities.

11.6. The exception to this is possibility of a publication by the seller with name and logo as a seller reference.

12. Written Form

The contract and amendments to it as well as all contract-relevant declarations, notification and documentation obligations must be in written form unless another additional form is agreed on.

13. Applicable Law

The law of the Federal Republic of Germany shall apply with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Legal venue shall be Magdeburg.

14. Severability Clause

Should individual provisions of the convention be ineffective, the effectiveness of the remaining provisions shall not be affected. The contract partners shall work together to replace ineffective provisions by provisions which correspond as closely as possible to the ineffective ones.