(General Terms and Conditions, as of 15.11.2017)

These General Terms and Conditions (GTC) govern cross-cutting matters (such as liability and performance disruptions) uniformly for all services provided by ODION GmbH. The GTC always apply together with the specific contractual terms that depend on the type of service agreed upon. As a general rule, any individually agreed arrangement between the contracting parties takes precedence over the provisions of these GTC.

§1 Remuneration, Payment, Retention of Title, Deadlines

(1) Unless otherwise agreed, remuneration is calculated based on effort at the prices generally applicable to ODION GmbH (hereinafter: Provider) at the time the contract is concluded. Remuneration amounts are generally net prices plus statutory value-added tax.

The Provider may invoice on a monthly basis. If services are remunerated based on effort, the Provider shall document the type and duration of the activities and shall submit this documentation together with the invoice.

(2) All invoices are generally due for payment, free of deductions, no later than 14 calendar days after receipt at the paying office.

(3) The Customer may only set off or withhold payments due to defects insofar as it actually has payment claims arising from defects of title or quality in the service. With regard to other claims for defects, the Customer may withhold payment to an extent proportionate to the defect. §4(1) applies accordingly. The Customer has no right of retention if its claim for defects has become time-barred.

In all other respects, the Customer may only set off or exercise a right of retention with undisputed claims or claims that have been finally and legally established.

(4) The Provider reserves title to, and any rights to be granted in, the services until full payment of the remuneration owed has been made; legitimate deductions for defects pursuant to §1(3) sentence 2 shall be taken into account. The Provider further reserves title until all of its claims arising from the business relationship with the Customer have been satisfied.

The Provider is entitled to prohibit the Customer from further using the services for the duration of any payment default by the Customer. The Provider may exercise this right only for a reasonable period, generally no more than six months. This does not constitute withdrawal from the contract. §449(2) of the German Civil Code (BGB) remains unaffected.

If the Customer or its purchasers return the services, this does not constitute withdrawal by the Provider unless the Provider has expressly declared withdrawal. The same applies to the seizure of goods subject to retention of title, or of rights to such goods, by the Provider.

The Customer may neither pledge nor assign by way of security any items subject to retention of title or reserved rights. The Customer, if a reseller, is only permitted to resell such items in the ordinary course of business on the condition that the Customer has effectively assigned to the Provider its claims against its purchasers arising from such resale, and that the Customer transfers title to its purchaser subject to reservation of payment. By concluding this contract, the Customer hereby assigns to the Provider, by way of security, its future claims arising from such resales against its purchasers, and the Provider hereby accepts this assignment.

Insofar as the value of the Provider’s security rights exceeds the amount of the secured claims by more than 20%, the Provider shall, at the Customer’s request, release a corresponding portion of the security rights.

(5) In the event of any permitted transfer of usage rights to deliveries and services, the Customer is obliged to impose on the recipient the contractually agreed restrictions applicable to those rights.

(6) If the Customer fails to settle a due claim, in whole or in part, by the contractually agreed payment date, the Provider may revoke agreed payment terms for all claims. The Provider is further entitled to render further services only against advance payment or against security in the form of a performance bond from a credit institution or credit insurer licensed within the European Union. Advance payment must cover the respective billing period or, in the case of one-off services, the remuneration for such services.

(7) In the event of the Customer’s economic inability to fulfil its obligations toward the Provider, the Provider may terminate existing exchange contracts with the Customer by withdrawal, and continuing obligations by termination without notice, including in the event of the Customer filing for insolvency. §321 BGB and §112 of the German Insolvency Code (InsO) remain unaffected. The Customer shall inform the Provider in writing at an early stage of any impending inability to pay.

(8) Fixed service deadlines should only be agreed expressly and in documented form. Any agreement on a fixed service deadline is subject to the proviso that the Provider receives the services of its respective upstream suppliers in a timely and contractually compliant manner.

§2 Cooperation, Duties to Cooperate, Confidentiality

(1) The Customer and the Provider shall each designate a responsible point of contact. Unless otherwise agreed, communication between the Customer and the Provider shall take place via these points of contact. The points of contact shall promptly bring about all decisions related to the performance of the contract. Decisions shall be documented in a binding manner.

(2) The Customer is obliged to support the Provider to the extent necessary and to create, within its own operational sphere, all conditions required for the proper execution of the order. In particular, the Customer shall provide the necessary information and, where possible, enable remote access to the Customer’s system. If remote access is not possible for security or other reasons, any deadlines affected shall be extended accordingly; the contracting parties shall agree on an appropriate arrangement for any further effects. The Customer shall further ensure that qualified personnel are available to support the Provider.

Where a contract provides that services may be performed on the Customer’s premises, the Customer shall, at the Provider’s request, provide sufficient workstations and work equipment free of charge.

(3) The Customer shall report defects without undue delay, in a comprehensible and detailed manner, providing all information relevant to identifying and analysing the defect. In particular, the Customer shall state the steps that led to the occurrence of the defect, its manifestation, and its effects. Unless otherwise agreed, the Provider’s corresponding forms and procedures shall be used for this purpose.

(4) The contracting parties are obliged to maintain confidentiality regarding trade and business secrets as well as other information designated as confidential that becomes known in connection with the performance of the contract. Such information may only be disclosed to persons not involved in the conclusion, performance, or handling of the contract with the written consent of the other contracting party. Unless otherwise agreed, this obligation ends five years after the respective information becomes known, or, in the case of continuing obligations, not before their termination.

The contracting parties shall also impose these obligations on their employees and any third parties engaged.

(5) The contracting parties are aware that electronic and unencrypted communication (e.g. by email) carries security risks. In connection with this type of communication, they shall therefore not assert any claims based on the absence of encryption, unless encryption was previously agreed.

§3 Disruptions to the Provision of Services

(1) If a cause for which the Provider is not responsible, including strikes or lockouts, affects the ability to meet deadlines (“Disruption”), deadlines shall be postponed by the duration of the Disruption, including, where necessary, a reasonable ramp-up period. A contracting party shall promptly inform the other contracting party of the cause of any Disruption occurring within its sphere and the duration of the postponement.

(2) If effort increases as a result of a Disruption, the Provider may also demand remuneration for the additional effort, unless the Customer is not responsible for the Disruption and its cause lies outside the Customer’s area of responsibility.

(3) If the Customer is entitled to withdraw from the contract and/or claim damages in lieu of performance due to improper performance by the Provider, or claims to be so entitled, the Customer shall, at the Provider’s request and within a reasonable period set by the Provider, declare in writing whether it is exercising these rights or still wishes performance to be rendered. In the event of withdrawal, the Customer shall reimburse the Provider for the value of any usage benefits previously enjoyed; the same applies to any deterioration resulting from intended use.

If the Provider is in default with the provision of services, the Customer’s claim for damages or reimbursement of expenses due to the default is limited, for each completed week of default, to 0.5% of the price for the part of the contractual service that cannot be used as a result of the default. Liability for default is limited to a total of no more than 5% of the remuneration for all contractual services affected by the default; in the case of continuing obligations, this is based on the remuneration for the affected services for the full calendar year. Any percentage of the agreed remuneration agreed upon at the conclusion of the contract shall apply additionally and with priority. This does not apply insofar as the default is due to gross negligence or intent on the part of the Provider.

(4) In the event of a delay in performance, the Customer shall have a right of withdrawal within the scope of statutory provisions only if the Provider is responsible for the delay. If the Customer, due to the delay, legitimately claims damages or reimbursement of expenses in lieu of performance, the Customer is entitled to claim, for each completed week of delay, 1% of the price for the part of the contractual service that cannot be used as a result of the delay, up to a maximum of 10% of that price; in the case of continuing obligations, this is based on the remuneration for the affected services for the full calendar year. Any percentage of the agreed remuneration agreed upon at the conclusion of the contract shall apply additionally and with priority.

§4 Defects of Quality and Reimbursement of Expenses

(1) The Provider warrants the contractually owed condition of the services. No claims for defects of quality exist for any merely insignificant deviation of the Provider’s services from the contractually agreed condition.

Claims for defects also do not exist in cases of excessive or improper use, natural wear and tear, failure of components of the system environment, software errors that are not reproducible or otherwise demonstrable by the Customer, or damage arising from particular external influences not contemplated by the contract. This also applies to subsequent modifications or repairs made by the Customer or third parties, unless these do not impede the analysis and remedy of a defect of quality.

§6 applies in addition with regard to claims for damages and reimbursement of expenses.

(2) The limitation period for claims arising from defects of quality is one year from the statutory commencement of the limitation period. The statutory periods for recourse pursuant to §479 BGB remain unaffected. The same applies where the law prescribes longer periods pursuant to §438(1) no. 2 or §634a(1) no. 2 BGB, in the case of intentional or grossly negligent breach of duty by the Provider, in the case of fraudulent concealment of a defect, and in cases involving injury to life, body, or health, as well as for claims under the Product Liability Act.

The Provider’s handling of a notice of defect from the Customer shall only suspend the limitation period insofar as the statutory requirements for this are met. This does not cause the limitation period to begin anew.

Subsequent performance (replacement delivery or rectification) may only affect the limitation period for the defect that gave rise to such subsequent performance.

(3) The Provider may demand reimbursement of its expenses insofar as

it acts on the basis of a report without a defect actually being present, unless the Customer could not reasonably have recognised that no defect was present, or

a reported fault is not reproducible or otherwise demonstrable by the Customer as a defect, or

additional effort arises due to improper fulfilment of the Customer’s obligations (see also §2(2) and (3) as well as §5(2)).

§5 Defects of Title

(1) The Provider is liable for infringements of third-party rights caused by its services only insofar as the service is used in accordance with the contract and, in particular, in the contractually agreed environment or otherwise in the intended operating environment, without modification.

The Provider is liable for infringements of third-party rights only within the European Union and the European Economic Area, and at the place of contractually intended use of the service. §4(1) sentence 1 applies accordingly.

(2) If a third party asserts against the Customer that a service of the Provider infringes its rights, the Customer shall notify the Provider without undue delay. The Provider and, where applicable, its upstream suppliers, are entitled, but not obliged, to defend against the asserted claims at their own expense, insofar as legally permissible.

The Customer is not entitled to acknowledge third-party claims before giving the Provider reasonable opportunity to defend against the third-party rights in another manner.

(3) If a service of the Provider infringes third-party rights, the Provider shall, at its own discretion and expense,

grant the Customer the right to use the service, or

modify the service so that it no longer infringes such rights, or

take back the service and reimburse the remuneration paid by the Customer for it (less reasonable compensation for use), if the Provider cannot achieve any other remedy with reasonable effort.

The Customer’s interests shall be appropriately taken into account in this regard.

(4) The Customer’s claims for defects of title are time-barred in accordance with §4(2). §6 applies in addition with regard to the Customer’s claims for damages and reimbursement of expenses; §4(3) applies accordingly to additional effort on the part of the Provider.

§6 General Liability of the Provider

(1) The Provider is always liable to the Customer

for damages caused intentionally or through gross negligence by the Provider, its legal representatives, or vicarious agents,

under the Product Liability Act, and

for damages resulting from injury to life, body, or health for which the Provider, its legal representatives, or vicarious agents are responsible.

(2) The Provider is not liable in cases of slight negligence, unless it has breached a material contractual obligation, the fulfilment of which is essential for the proper performance of the contract in the first place, or the breach of which jeopardises the achievement of the purpose of the contract and on the observance of which the Customer may regularly rely.

In such cases, this liability is limited to the typical and foreseeable damage at the time the contract was concluded. This also applies to loss of profit and lost savings. Liability for other remote consequential damage is excluded.

For any individual instance of damage, liability is limited to the contract value, or, in the case of recurring remuneration, to the amount of remuneration per contract year, but in no case to less than €50,000. §4(2) applies accordingly to the limitation period. The contracting parties may agree, in writing, at the conclusion of the contract, on more extensive liability, generally in exchange for separate remuneration. An individually agreed liability amount shall take precedence. Liability pursuant to §6(1) no. 2 remains unaffected by this paragraph.

(3) The Provider is liable for damages arising from a guarantee declaration only if this was expressly assumed in the guarantee declaration. In the case of slight negligence, this liability is subject to the limitations set out in §6(2).

(4) In the event of data loss, the Provider is liable only for the effort required to restore the data that would have been necessary had the Customer carried out proper data backups. In the case of slight negligence on the part of the Provider, this liability only applies if the Customer had carried out a proper data backup, in accordance with the due diligence obligations appropriate to the type of data, prior to the measure that led to the data loss.

(5) §6(1) to (4) apply accordingly to the Customer’s claims for reimbursement of expenses and other liability claims against the Provider. §3(3) and (4) remain unaffected.

§7 Data Protection

The Customer shall conclude with the Provider any agreements necessary for possible access to personal data, and shall in doing so observe the special requirements for a data processing agreement (§11 of the German Federal Data Protection Act, BDSG).

§8 Miscellaneous

(1) The Customer shall independently observe the import and export regulations applicable to the deliveries or services, in particular those of the USA. In the case of cross-border delivery or performance, the Customer shall bear any customs duties, fees, and other charges incurred. The Customer shall independently handle any statutory or official procedures in connection with cross-border deliveries and services, unless otherwise expressly agreed.

(2) German law applies. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

(3) The Provider renders its services on the basis of its General Terms and Conditions (GTC). The Customer’s terms and conditions do not apply, even if the Provider has not expressly objected to them.

The Customer’s acceptance of the services constitutes acknowledgement of the Provider’s GTC and a waiver of the Customer’s own terms and conditions.

Other terms are only binding if the Provider has acknowledged them in writing; the Provider’s GTC then apply in addition.

(4) Amendments and supplements to this contract should only be agreed in writing. Where written form is agreed (e.g. for terminations, withdrawal), text form is not sufficient.

(5) The place of jurisdiction with respect to a merchant, a legal entity under public law, or a special fund under public law is the registered seat of the Provider. The Provider may also sue the Customer at the Customer’s registered seat.