Terms & Conditions of Business

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General Terms and Conditions of Business

of

ViGEM GmbH

Zeppelinstr. 2, 76185 Karlsruhe, Germany

Contents

1. Scope of the General Terms and Conditions of Business 
2. Conclusion of the Contract 
3. Production and Delivery of CCA Data Loggers 
4. Creation of Customized Software or Hardware 
5. Modification of Existing Software or Existing Hardware 
6. Agreements on the Quality and Features of Products, Exemption from Liability 
7. Right to Change Products, Change Requests 
8. Use of Subcontractors 
9. Delivery 
10. Terms of delivery, Schedules and Timeframes, Execution Period, and Default of Delivery 
11. Passing of Risk 
12. Default of Acceptance by the Customer, Failure to Cooperate 
13. Acceptance of performance 
14. Prices, Fees and Compensation 
15. Terms of Payment, Default by the Customer 
16. No Set-off 
17. Retention of Title by ViGEM GmbH 
18. Warranty (Purchase Agreements and Contracts for Work and Materials) 
19. Other Liability, Exclusion of Liability 
20. Limitation Period 
21. Limitation on the Customer’s Right of Withdrawal and Right of Termination 
22. Freedom from Third Party Rights 
23. CCA Software 
24. Software Licenses 
25. Special Provisions for Contracts for Creating Software and Hardware and Related Modification Agreements 
26. Customer’s Special Obligations to Cooperate with Regard to Contracts for Creating Software and Hardware and Related Modification Agreements 
27. Special Provisions for Product Loans 
28. Special Provisions for Consulting Services, Instruction and Training 
29. Severability Clause, Choice of Law, Place of Performance and Jurisdiction 

 

1. Scope of the General Terms and Conditions of Business
(1) These General Terms and Conditions of Business (hereinafter referred to as “GTC”) apply to all of our business relationships with our customers. The GTC shall only apply if the customer is an entrepreneur (Section 14 German Civil Code), a legal entity under public law or a special fund under public law.
(2) The General Terms and Conditions of Business shall apply as a framework agreement in the version applicable at the time the customer places the order and shall also apply as a frame-work agreement to similar future contracts, without having to explicitly refer to them again in each individual case. As a minimum, the version of the GTC most recently communicated in written form to the customer shall apply as a framework agreement in the above sense.
(3) Our GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become an integral part of the contract if we have ex-pressly consented to their applicability. This requirement for consent shall apply in any event, e.g. including in cases where we have knowledge of the customer’s general terms and conditions and provide our services without reservation.
(4) Individual agreements made with the customer on a case-by-case basis shall take precedence over these GTC. Unless there is proof to the contrary, a written contract or our written confirmation shall be authoritative with regard to the content of any such agreements.
(5) References to the validity and applicability of legal regulations or statutory provisions are for clarification purposes; even without such a clarification, the legal regulations or statutory provisions shall apply, provided they have not been directly amended or expressly excluded.

2. Conclusion of the Contract
(1) Our offers are non-binding. This also applies if we have provided the customer with catalogs, technical documentation, other product descriptions or other documents.
(2) The customer’s order for a service or product shall constitute a binding contract offer. Unless otherwise specified in the order, we shall be entitled to accept this contract offer within 4 (four) weeks after we receive it.
(3) Acceptance of the order may be declared either by an order confirmation or by delivery of the goods to the customer.

3. Production and Delivery of CCA Data Loggers
(1) If we are commissioned with the production and delivery of CCA data loggers, the functional scope and performance data of the CCA data loggers will be based on the specifications provided in the individual order.
(2) The storage in our CCA data loggers and our data storage modules (memory) contains solid state disks (SSD). Due to the technology used, the lifetime of the individual memory cells is limited. In the case of heavy use of the memory and/or use at higher ambient temperatures, the maximum possible write cycle number of a single memory cell is reached sooner than under standard conditions. The contractually agreed-upon storage lifetime and durability is definitively specified in our specific offer.

4. Creation of Customized Software or Hardware
(1) If we are commissioned with the creation of customized software or hardware, this shall include the planning, development, creation, delivery and, if necessary, the installation of the custom-ized software or hardware for the customer.
(2) The type and scope of the services to be provided as well as the general conditions are specified in our offer. The technical specifications in the technical part of the offer are final. Changes and additions to the scope of the services must be made via change requests (Section 7 (2) et seq.). Changes and additions shall only be deemed valid and effective if they are made in writing.
(3) Unless otherwise agreed on, we will provide the customer with the customized software in the form of an object code.
(4) Unless otherwise expressly agreed on, we shall not supply any application documentation for the software. The documentation for hardware and, if agreed on, for software is available in the form of electronic documents in the myViGEM customer portal on the www.vigem.de website.
(5) Unless otherwise agreed on, the hardware and/or software shall be installed by the customer.
(6) The customer is responsible for providing and ensuring the system requirements (e.g. hardware, operating system) needed to use the software as specified in the requirements listed the technical part of the offer and/or in other descriptions of the software.

5. Modification of Existing Software or Existing Hardware
If we are commissioned to modify the customer’s existing software or hardware (hereafter referred to as “existing software” and “existing hardware”), then we shall only be responsible for the modification of the existing software or hardware that is associated with the adaptation of the existing software or hardware.

6. Agreements on the Quality and Features of Products, Exemption from Liability
(1) The agreed-upon quality and features of our products are definitively specified in the technical part of our offers, other product descriptions or data sheets that were provided to the customer prior to ordering or which were included in the respective contract in the same way as the GTC. Agreements on the quality and features of products do not constitute any guarantees on the quality and features of products.
(2) Our products are intended for use in laboratory and development environments for the purpose of research and development, as well as for use by specially trained persons.
(3) Insofar as products have been customized or developed based on customer requirements and specifications, such products are project-specific and prototypical new developments. Unless otherwise agreed upon, we shall not conduct compliance tests in accordance with the German Electromagnetic Compatibility Act (Gesetz über die elektromagnetische Verträglichkeit von Betriebsmitteln) implementing European Directive 2014/30/EU (EMC Directive). Therefore, the customer shall commission the product at its own risk. The electromagnetic compatibility of our products is not deemed agreed upon; in general, however, compatibility is documented during the course of the development process within the scope of measurements in line with the customary standards for high frequency devices (ISM devices) operating in license-free frequency bands. The customer exempts us from all claims brought against us as well as from any fines or penalties imposed by third parties or the authorities due to violation of the provisions of the German Electromagnetic Compatibility Act.

7. Right to Change Products, Change Requests
(1) We reserve the right to change the design, construction or form of the product to be delivered even after the contract has been concluded, provided the changes or deviations, taking into account our interests, are reasonable for the customer, especially if the product that was actu-ally supplied is similar to the contractually agreed-upon product in terms of quality and price. In particular, we reserve the right to modify the product due to technical advancements or mandatory legal requirements or regulations.
(2) As long as we have not yet delivered, and, if agreed on, installed the customized software or hardware, the customer is entitled to request that changes be made to the functional specifica-tions, software and/or hardware description, or development steps connected to those descriptions; the request has to be submitted in writing according to the following provisions.
(3) We shall decide whether to implement the change request and proposed addition. We are entitled to deny the implementation of the change or addition if it is technically impossible or necessitates a disproportionate, unreasonable degree of time and effort on our side.
(4) If any additional costs are incurred due to the realization of the change request and proposed addition and due to implementing the change and addition process, we are entitled to charge additional fees based on the respective agreed-on contractual compensation rates.

8. Use of Subcontractors
We are entitled to use subcontractors for the purpose of fulfilling the contract. We select our suppliers at our own discretion.

9. Delivery
(1) Unless otherwise specified, our delivery is ex-warehouse, which is also the place of performance for the delivery and any subsequent repair or replacement. At the request and expense of the customer, the goods can be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed on, we are entitled to select the type of shipment, particularly the shipping company and dispatch route.
(2) We shall be entitled to ship partial deliveries to a reasonable extent.
(3) Unless otherwise agreed on, the customized software shall be provided to the customer in machine-readable form by remote data transmission. Section 9 (1) shall apply mutatis mutandis.

10. Terms of delivery, Schedules and Timeframes, Execution Period, and Default of Delivery
(1) Information provided about the shipping date, delivery date, terms of delivery, schedules and timeframes, and execution periods is non-binding, unless otherwise expressly stated and confirmed in writing.
(2) All non-binding delivery and execution periods that we have stated or which have been agreed on shall commence as follows: a) for orders paid in advance, on the date we receive the full purchase price, including sales tax and shipping costs, b) or if payment by invoice has been agreed on, on the date the contract is concluded. With regard to adherence to an expressly agreed-on shipping date, the date we transfer the ordered goods to the shipping company shall be decisive in this regard.
(3) In the event that we are unable to comply with binding terms of delivery, schedules and timeframes, or execution periods for reasons beyond our responsibility (unavailability of the service or product), we will inform the customer without undue delay and at the same time will specify the anticipated new delivery date/time, schedule or timeframe. If the service or product is not available within the new delivery period, schedule or timeframe, we shall be entitled to withdraw from the contract in whole or in part; we will immediately reimburse any payment al-ready provided by the customer. In particular, such a case of unavailability of the service or product shall be our supplier's failure to supply us on time if we have concluded a congruent covering transaction, and it is neither our fault nor the fault of our supplier or, in individual cases, if we do not have a specific obligation to procure.
(4) In addition, the performance and fulfillment of our contractual obligations are subject to whether the customer complies with the required obligations to cooperate, such as, for example, by providing the item to be repaired or supplying the existing software or hardware that is to be modified.
(5) The applicable statutory regulations shall be the basis for determining whether we are in delay or default of delivery. In any case, a reminder by the customer is required.
(6) The rights of the buyer according to Section 19 of these General Terms and Conditions of Business as well as our legal rights, in particular in the case of an exclusion of the duty of performance pursuant to Section 275 of the German Civil Code, shall remain unaffected.

11. Passing of Risk
(1) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer no later than the time when the goods are handed over. However, in case of a sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass to the customer when the goods are delivered to the forwarding agent, the carrier, or to the person appointed to carry out the delivery.
(2) If an acceptance procedure has been agreed on, that shall be decisive with regard to the time the risk is passed on. In all other respects, the statutory provisions of the German law on contracts for goods and services shall apply mutatis mutandis to an agreed-on acceptance procedure. If the customer is in default of acceptance, that shall be deemed to have the same effect as the handover or inspection.

12. Default of Acceptance by the Customer, Failure to Cooperate
(1) If the customer is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to demand compensation for any loss or damages arising from this, including additional expenses (e.g. storage costs).
(2) If the customer is delayed in meeting its responsibility in terms of the obligation to cooperate, our contractual obligations shall be suspended for the duration of the delay for such product(s) and service(s) that cannot be provided without the customer’s cooperation or can only be pro-vided with a disproportionate degree of extra effort and expense on our part. In addition to the agreed-on compensation, the customer shall be required to reimburse any additional expenses arising from the customer’s failure to cooperate, based on the applicable price lists. Any statutory right to terminate which we may be entitled to shall remain unaffected.

13. Acceptance of performance
(1) Upon completion, work and services performed, such as, for example, extensive modification of existing software and/or hardware and repairs, must be inspected and accepted. In particular, however, the production and delivery of standard components and consulting services in accordance with Sections 3 and 28 are not subject to inspection and acceptance.
(2) Inspection and acceptance are governed by the following provisions:
a) We will inform the customer in writing that the respective (partial) work/product/service is ready for inspection and acceptance.
b) The parties shall conduct an acceptance inspection promptly, but no later than within a pe-riod of 5 days from receipt of the notice – if applicable, in accordance with the inspection and testing plan for the individual order.
c) After the acceptance inspection has been successfully conducted and completed, the customer must declare, promptly and in writing, the acceptance of the work/product/service. The acceptance inspection shall be deemed successful if the (partial) work meets the contractually specified requirements in all material respects.
d) The customer shall provide the prerequisites that are required for conducting the acceptance inspection and which, if applicable, are described in the inspection and testing plan.
e) The customer has to inform us promptly in writing if it becomes aware of deviations from the contractually specified requirements during the acceptance inspection.
f) Any identified defects in the (partial) work being inspected must be differentiated according to the following defect classes:
aa) Defect class 1: The defect makes the overall system or the part of the system being inspected unusable, or, in the case of customized hardware being inspected, makes the hardware unusable.
bb) Defect class 2: The defect leads to significant limitations in the use of crucial functions that cannot be circumvented by adequate measures for an appropriate time period that is reasonable for the customer.
cc) Defect class 3: All other defects (insignificant defects).
g) The customer is only entitled to refuse the acceptance due to defects in defect classes 1 and 2. Defects in defect class 3 do not impede the acceptability of the work, but have to be remedied, if necessary, within the coverage of the warranty.
h) Upon conclusion of the acceptance inspection, a written report must be prepared, and signed by both parties. The report shall include any identified defects, categorized by defect class, and the reasons for refusing acceptance, if applicable.
i) If the acceptance inspection is not successful, we shall remedy the defects impeding the acceptance within an appropriate period of time and then provide the work for a new acceptance inspection.
(3) If the customer does not promptly declare acceptance, we are entitled to stipulate, in writing, a notice of one week for submitting such a declaration. The work shall be deemed accepted if the customer does not specify, in writing, the reasons for refusing acceptance.

14. Prices, Fees and Compensation
(1) Provided that no fixed purchase price or fixed compensation has been agreed on, our fees will be based on work time and expense. In this respect, the purchase prices and hourly rates spec-ified in the price list valid at the time the contract is concluded, plus the statutory sales tax, shall be applicable and valid. Goods and services that are not included in the agreed-on range of services or which are not subjects of the contract shall be paid for separately by the customer.
(2) Within the scope of the rates permitted under tax law, the customer shall reimburse the travel expenses incurred if our employees have to travel for the purpose of performing the services at the customer’s premises.
(3) If compensation based on work time and expense has been agreed on, we shall bill the number of hours of work performed by us or our subcontractors and the travel expenses to be reim-bursed in accordance with Section 14 (2) within four (4) weeks after the end of a calendar month.
(4) Purchase prices are quoted ex warehouse. In the case of a sale by delivery to a place other than the place of performance within the meaning of Section 11 (1), the buyer shall bear the transportation costs from the warehouse as well as the costs of any transportation insurance which the purchaser may decide to purchase. Provided that we do not charge the transporta-tion costs actually incurred in the individual case, a flat fee for transportation (excluding transportation insurance) in the amount of EUR 100.00 shall be deemed to be agreed upon. Any customs, duties, fees, taxes and other public levies or charges shall be borne by the customer.

15. Terms of Payment, Default by the Customer
(1) The purchase price or fee shall become due and payable in full within 10 days from the date the invoice is issued and the delivery of the goods or the acceptance. However, we are entitled, at any time, to provide a delivery or service in whole or in part only on the condition that payment or a partial payment is made in advance; this also applies to ongoing business relation-ships. We shall indicate any such condition no later than at the time the order is confirmed.
(2) Upon expiration of the aforementioned payment period, the customer shall be in default, without a reminder being required. The purchase price or fee shall accrue interest during the period of the delay at the applicable statutory interest rate. In addition, a lump sum of EUR 40.00 shall be charged, which will be credited to any claim for damages, insofar as the damage arises from the costs of asserting our legal claim (Section 288 (5) German Civil Code). We reserve the right to assert further claims for damages arising from the default. Our claim to the com-mercial default interest (Section 353 German Commercial Code) shall remain unaffected.
(3) We are entitled to withhold work or services if the customer is in default with regard to the acceptance of (partial) goods and services or the payment for goods and services already ac-cepted.
(4) If, after the conclusion of the contract, it becomes apparent that our claim to the purchase price or fee is jeopardized by the customer’s inability to pay, we shall be entitled to refuse to render performance and – after setting a deadline, if necessary – to withdraw from the contract in ac-cordance with the statutory provisions (Section 321 German Civil Code). In the case of con-tracts concerning the production of non-fungible items (individual, customized items), we can state our withdrawal immediately; the statutory provisions on the dispensability of the deadline shall remain unaffected.

16. No Set-off
The customer shall only be entitled to set-off rights and rights of retention vis-à-vis our claims if the customer’s counterclaim is undisputed or legally established. In addition, the customer is entitled to a set-off right and/or right of retention insofar as the claims of the parties arise from the same contractual relationship and are reciprocal within the meaning of Section 320 German Civil Code.

17. Retention of Title by ViGEM GmbH
(1) We shall retain ownership of the sold goods and any reproductions or copies until we have received full payment for any and all of our current and future claims arising from the purchase contract, the contract for work and services, and an ongoing business relationship (secured claims). With respect to the goods subject to the retention of title, the customer shall treat them with care and insure them to a sufficient extent.
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as collateral until payment for the secured claims has been made in full. The customer must notify us immediately in writing if a petition to initiate insolvency proceedings has been filed or if third parties have access to the goods that are still our property (e.g. via liens or seizures).
(3) In the event of a breach of contract by the customer, particularly in the case of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with statutory provisions and/or to demand surrender of the goods based on the retention of title and our withdrawal. If the customer does not pay the purchase price due, we are only allowed to assert these rights if we have set a reasonable and appropriate deadline for payment and the customer has failed to comply with it, or if the statutory provisions do not require that such a deadline be set.
(4) Except in the case of revocation in accordance with Section 17 (7), the customer shall be entitled to resell and/or process the goods under retention of title in the ordinary course of business. In this case, the provisions of Section 17 (5) to (8) of these GTC shall apply in addition.
(5) The retention of title extends to products, at their full value, that result from processing, mixing or combining our products, whereby we shall be deemed to be the manufacturer of said prod-ucts. If the products are processed, mixed or combined with goods of third parties who still have an existing retention of title for those goods, we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. In other respects, the same applies to the resulting created product as for the goods delivered subject to retention of title.
(6) The claims for receivables vis-à-vis third parties arising from the resale of the goods or prod-ucts shall already be assigned to us now as collateral by the customer in full and/or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We shall accept the assignment. The obligations of the customer specified in Section 17 (2) also apply with respect to the assigned claims.
(7) Aside from us, the customer shall remain authorized to collect the receivables. We undertake not to collect the receivables as long as the customer meets its payment obligations towards us, there is no issue with the customer’s ability to pay, and we do not assert the right to retention of title by exercising a right pursuant to Section 17 (3). If this is the case, however, we may demand that the customer notify us of the assigned claims and their debtors, provide all the information required for collection, hand over the related documents, and inform the debtors (third parties) of the assignment. Furthermore, in this case, we shall also be entitled to revoke the customer's authorization to resell and process the goods subject to retention of title.
(8) If the realizable value of the collateral exceeds our claims by more than 10%, we shall release the collateral at our discretion upon the customer’s request.
(9) The preceding paragraphs shall apply mutatis mutandis to reproductions or copies of new software that is to be produced.

18. Warranty (Purchase Agreements and Contracts for Work and Materials)
(1) The basis for our liability for defects shall be the agreement on the quality and features of the product as specified in Section 6. 
(2) We do not assume any liability for public statements made by the manufacturer or other third parties, e.g. in advertising claims.
(3) In the case of purchase agreements and contracts for work and materials, the customer’s claims for defects shall presuppose that the customer has complied with the legal obligations to inspect the delivered goods and notify us about any defects (Sections 377 and 381 (2) German Commercial Code). If a defect is detected during the inspection or at a later time, the customer shall notify us immediately in writing. The notification shall be deemed to have been sent immediately if it is submitted within two (2) weeks, in which case promptly sending the notification shall suffice in terms of meeting the deadline. If the customer fails to properly inspect the delivered goods and/or notify us about a defect, we shall assume no liability for the unreported defect.
(4) If the goods delivered or the work results are defective, we can initially choose whether we will remedy the problem by rectifying the defect (repair) or by supplying a defect-free product or work (replacement). Our right to deny repair or replacement in line with the legal requirements remains unaffected.
(5) We are entitled to only perform a due repair or provide a due replacement on the condition that the customer pays the purchase price owed. However, the customer is entitled to retain a portion of the purchase price appropriate in relation to the defect.
(6) The customer is required to allow us the necessary time and opportunity to perform the due repair or provide the due replacement; in particular, the customer has to hand over the rejected goods for inspection and testing purposes. In the case of replacement, the buyer must return the rejected goods in accordance with the legal regulations. Repair or replacement do not include disassembling or removing the rejected product or reinstalling it if we were not obliged to install it initially.
(7) If there is an actual defect, we will bear the expenses required for the inspection, testing, repair and replacement, in particular the costs for transportation, travel, labor, and materials. Otherwise, we are entitled to demand that the customer reimburse the costs arising from an unjustified claim to remedy a defect, unless the lack of defect was not discernible for the customer.
(8) If the repair or replacement was unsuccessful, or if a reasonable and appropriate deadline for the repair or replacement set by the customer has elapsed, or if the statutory provisions do not require that such a deadline be set (Sections 323 [2], 440, 636 German Civil Code), the customer may withdraw from the contract or reduce the purchase price. The right to self-help  (Section 637 German Civil Code) is excluded. The right to withdraw is excluded if the defect is insignificant.
(9) In the case of defects as well, claims asserted by the customer for damages or reimbursement of wasted expenditures are solely governed by Section 19 and are otherwise excluded.

19. Other Liability, Exclusion of Liability
(1) We shall be held liable in accordance with the legal regulations in the case of intent or gross negligence on our part or on the part of our representatives or vicarious agents. This also applies to a culpable violation of material contractual obligations, i.e. an obligation that has to be met as a conditio sine qua non for the proper fulfillment of the contract and whose fulfillment can be relied on and can be reasonably expected to be relied on by the contractual partner; in this case, however, our liability is limited to the replacement or repair of the foreseeable damage or loss that might typically occur. In particular, the liability for loss of data is limited to the customary recovery efforts and expense that would have been required if backup copies had been regularly and properly created.
(2) Provided there is no intentional or grossly negligent breach of contract, our liability for delays in delivery shall be limited to 10% of the respective purchase price (including sales tax).
(3) Contrary to Sections 18 and 19 (1) and (2), in the case of the software provided at no charge as specified in Section 23 (1) sentence 2, we shall only be liable in accordance with the statutory provisions (Section 521 et seq. German Civil Code).
(4) The liability pursuant to the German Product Liability Act for any agreed-on warranty and for culpable injury to life, body or health, shall remain unaffected in all cases.
(5) Unless explicitly stated otherwise above, our liability is excluded.

20.  Limitation Period
(1) Contrary to Section 438 (1) no. 3 and Section 634a (1) nos. 1 and 3 of the German Civil Code, the general statutory limitation period for claims arising from material defects and defects of title shall be one year from the date of delivery. If an acceptance of performance procedure is agreed on, the limitation period shall start upon the acceptance. Special statutory provisions for limitation periods (in particular Section 438 subsection 1 nos. 1 and 2 and subsection 3 as well as Sections 444, 479, 634a (3) German Civil Code) shall remain unaffected.
(2) The preceding statutory limitation periods of the law on purchase agreements and contracts for work and services also apply to contractual and non-contractual claims for damages asserted by the customer which are based on a defect of the goods or the work results, unless the application of the regular statutory limitation periods would result in a shorter statute of limitation in the individual case. Claims for damages in accordance with Section 19 (1) sentence 1 and (4) shall become time-barred upon expiration of the statutory periods of limitation.

21. Limitation on the Customer’s Right of Withdrawal and Right of Termination
(1) In the case of a violation of an obligation which does not constitutes a defect, the customer can only withdraw from or terminate the contract if we are responsible for the violation of the obligation.
(2) An unrestricted right of termination on the part of the customer, in particular pursuant to Section 651 of the German Civil Code in conjunction with Section 649 sentence 1 German Civil Code, is excluded in the case of contracts for work and services. The right to terminate for good cause shall remain unaffected.
(3) If the customer asserts its right of termination in accordance with Section 649 sentence 1 of the German Civil Code, we can demand a flat rate of 10% of the agreed-on remuneration if the work has not started yet. If the work has already started, 50% of the agreed-on remuneration shall be paid by the customer. The customer is entitled to prove that as a result of the termination of the contract, we have saved a greater amount on expenses, or have acquired such an amount by utilizing our personnel otherwise, or have failed to do so by maliciously refraining from utilizing our personnel otherwise.

22. Freedom from Third Party Rights
(1) The customer shall guarantee that the existing software or hardware to be modified is free from intellectual property rights of third parties and, to the best of the customer’s knowledge, is not subject to any other rights that would conflict with the modification of the existing software.
(2) The customer shall indemnify us from all claims which are asserted against us by third parties due to the infringement of industrial property rights or proprietary rights as a result of processing and/or modifying the existing software or hardware.
(3) If the contractually agreed-on modification is impaired by the intellectual property rights of third parties, the customer must obtain the authorization from third parties that the hardware or soft-ware can be modified as specified in the contract, without restriction and without us incurring additional costs. If the customer is unable to eliminate such impairments arising from the third-party rights, we are entitled to withdraw from the contract for the software modification in whole or in part. The fee for the planning phase shall remain unaffected.

23. CCA Software
(1) The purchase of one of our CCA data loggers entitles the buyer to use the firmware of the data logger (hereinafter referred to as “firmware”), the C libraries, including documentation (herein-after referred to as “libraries”), and the CCA TOOLS software suite, consisting of CCA Finder, CCA Converter GUI and CCA Help (hereinafter referred to as “software tools”) in accordance with Section 24. Third parties who are not buyers of a CCA data logger may also use the libraries and/or software tools in accordance with Section 24 if they are a registered user in the myViGEM customer portal at www.myVIGEM.de and have downloaded the software there. Section 24 (5) shall remain unaffected.
(2) The quality, features and functionality of the firmware, libraries and software tools (hereinafter collectively referred to as “CCA software”), as well as the hardware and software environment within which the licensed software can be used, are based on the specifications in the respective product description. The information contained in the description does not constitute any guarantee.
(3) The customer is solely responsible for ensuring the functional operability of its Internet access, including the transmission paths, as well as its own computers.
(4) Current versions of the CCA software and the user documentation can be downloaded in the myViGEM customer portal at www.vigem.de. The customer must log in to use the customer portal. After the customer registers once for the customer portal, we will provide him/her with the access data required for the login. The customer is not permitted to disclose this access da-ta to third parties. We can also provide the customer with a current version of the CCA soft-ware and user documentation on a conventional data carrier.
(5) We are entitled, but not obligated, to make updates to the CCA software. Warranty claims by the customer pursuant to Section 18 shall remain unaffected.

24. Software Licenses
(1) We shall grant a license to the customer for the use of the CCA software as defined in Section 23, for the use of modified versions of existing software in accordance with Section 5, and for the use of customized software pursuant to Section 4 (hereinafter collectively referred to as “software”).
(2) The customer shall be granted the temporal unrestricted, non-exclusive, non-transferable and non-sublicensable right to use the software for its own business purposes within the scope covered by this contract; however, if any fees or charges are due, then these rights will only be granted upon full payment of the fees or charges. The permissible use includes installing the software, loading it into the memory, as well as the intended use by the customer.
(3) The customer is entitled to create a backup copy. The customer shall then only be entitled to decompile the software insofar that it is permitted by law (Section 69e of the German Copyright Act).
(4) Under no circumstances does the customer have the right to sublease the purchased software to third parties, to reproduce it publicly, or to make it accessible to the public through a wired or wireless connection, or to make it available to third parties for a fee or free of charge.
(5) Contrary to Section 24 (2) and (4), the customer is entitled to integrate libraries into its own software products and to publish and utilize the resultant adaptations of the libraries. The adaptation must be the customer’s own creative achievement according to German copyright law and have its own functionality which extends beyond distributing the libraries (hereinafter re-ferred to as an “adaptation” in the following). Under this condition, the customer shall additional-ly be granted the temporal unrestricted, non-exclusive, non-transferable right to pass on the libraries to third parties as an adaptation, to make them accessible to third parties, and to sublicense them. It is strictly prohibited to transfer the libraries outside of the scope of an adaptation.
(6) The customer is entitled to give a CCA data logger along with the purchased copy of the CCA software to a third party for permanent use. In such a case, the customer shall discontinue use of the CCA Software, remove all installed copies of the CCA Software from its computers, and delete all copies stored on other media or hand them over to the seller. In addition, the customer shall make an explicit agreement with the third party to ensure compliance with the provi-sions regarding the usage right pursuant to Section 24.

25. Special Provisions for Contracts for Creating Software and Hardware and Related Modification Agreements
(1) Prior to the concluding the contract, the parties should define the specifications for the customized software, with a low degree of detail, in the course of joint consultations or workshops. These specifications will be set out in the technical part of the respective offer.
(2) Based on these specifications, we can create requirement and performance specifications or a product description. The requirement and performance specifications or the product description shall be submitted to the customer for inspection and review. If the customer finds any problems, errors or faults, the customer shall notify us in writing within two (2) weeks from the sub-mission of the requirement and performance specifications or the product description.
(3) In the absence of any such notification, these requirement and performance specifications or product description shall constitute the basis for creating the customized software or customized hardware or for modifying the existing software or existing hardware as defined in Section 6. The contents of the requirement and performance specifications or product description do not represent any guarantee.

26. Customer’s Special Obligations to Cooperate with Regard to Contracts for Creating Software and Hardware and Related Modification Agreements
(1) The customer undertakes to provide us with the proper documents, paperwork, documentation and information required to provide the services and/or products; in particular, this includes documents, paperwork, documentation and information regarding existing equipment, devices, computer programs and components of computer programs which are intended to work together with the product to be provided. The customer shall also be obligated to provide the required workspaces, tools and supplies, test plans and test data; to set up and provide the test environment; to document, in an understandable and reproducible form, any problems, errors or faults related to the provided services and/or products that are identified during the testing run or in live operation, and to immediately notify us of said problems, errors or faults; to supply, at its own expense, any facilities, equipment, and suitably qualified and skilled technical staff that may be required in order to provide the services and/or products, and to continue to maintain the rest of the customer’s system environment (own hardware and software) on an ongoing basis.
(2) The customer shall be obligated to back up its data on a regular basis with the due diligence of a prudent businessperson. In particular, immediately prior to each installation and/or other work performed by us, the customer shall make a complete backup of all system and application da-ta.
(3) The customer shall grant us the right to use third-party systems, insofar as this is necessary in order to provide the services and/or products specified in this contract.
(4) If we need to use data carriers and existing software provided by the customer to fulfill our obligations, the customer shall ensure, by running a test or scan based on the latest technological standards, that the data carriers and existing software are free of computer viruses and other malware.

27. Special Provisions for Product Loans
(1) If a loan is agreed on, we shall be obligated to allow the customer to use the product specified in the individual order free of charge for the duration of the loan. The loan period starts on the day the product is handed over. Sections 9 and 10 shall apply mutatis mutandis. We are entitled to require the payment of a reasonable deposit in exchange for lending the product. The cus-tomer shall be responsible for any costs incurred for shipping and returning the product, as well as for the usual costs for maintaining the product and for its usual operating costs.
(2) The customer undertakes to treat the product with care and to sufficiently safeguard it from theft. The customer is not permitted to take the product out of the territory of the Federal Re-public of Germany. The customer may not give the product to third parties without our permis-sion. The customer is obligated, at its own expense, to take out business liability insurance against property damage to the product as well as insurance against theft and natural hazards to the extent that is customary in the industry, with sufficient coverage, and to maintain the insurance policies for the duration of the loan.
(3) We shall not be obligated to maintain and repair the product. Contrary to Section 18, we shall only be liable for defects in the product if we have fraudulently concealed the defect. Section 19 (1) sentences 2 and 3 as well as Section 19 (2) shall not apply.
(4) If a period for the loan is not specified, we are entitled to terminate the loan agreement at any time. The customer shall be obligated to return the product to us no later than the date on which the termination takes effect. The right to terminate the agreement pursuant to Section 605 of the German Civil Code and the right to terminate for good cause shall remain unaffected. After expiration of the loan period, the customer is not entitled to any claims for reimbursement of outlays. Section 601 (2) sentence 1 German Civil Code does not apply.

28. Special Provisions for Consulting Services, Instruction and Training
(1) To offer assistance and support during the commissioning of our products and software, we shall provide consulting services, if agreed upon. These consulting services include training the customer’s employees who have been designated to use the products and software in the ap-plication and handling of the products and software.
(2) Unless otherwise agreed on, consulting services and software maintenance contracts shall be charged based on our current price list and on work time and expense. A man-day comprises a working time of eight hours.
(3) Upon prior arrangement, the consulting services shall be provided at the customer’s business premises or provided via video or telephone conference. If the consulting services take place at the customer’s premises, the customer shall be responsible for supplying the necessary technical equipment, such as laptop and projector.
(4) The customer has to facilitate our consulting services by providing the necessary cooperation. In particular, the customer will supply us with the necessary information and data at its own ex-pense, and will allow our employees to access its business premises as well as contact its em-ployees during business hours as needed. If the customer does not meet these obligations to cooperate and if, for that reason, we cannot complete our consulting services in whole or in part within the agreed-upon period of time, the agreed-on time period shall be extended accordingly.
(5) We shall be entitled to cancel a training date for important reasons. We will inform the customer about the cancellation of a training date in good time and propose an alternate date.

29. Severability Clause, Choice of Law, Place of Performance and Jurisdiction
(1) The invalidity or ineffectiveness of individual provisions of a contract between the parties shall not affect the validity or effectiveness of its other provisions. An invalid or ineffective provision shall be replaced by the legally permissible provision that comes closest to the intended purpose of the parties. The same applies in the event of a gap, loophole or omission in the contract text.
(2) These General Terms and Conditions of Business and the contractual relationship between us and the customer shall be governed by the law of the Federal Republic of Germany, under the exclusion of international uniform laws, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(3) Unless otherwise agreed on, our place of business is the place of performance for all obligations arising from this contract.
(4) The exclusive place of jurisdiction for any disputes arising directly or indirectly from the contractual relationship shall be our place of business in Karlsruhe, Germany. However, we are entitled to take legal action against the customer at the place of performance of the delivery commitment in accordance with these General Terms and Conditions of Business or any individual agreement having priority, or at the customer’s general place of jurisdiction.
(5) In the event of any inconsistency between the German and the English version of this GTC the German version shall prevail.

Last revised: March 2018

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