Terms of use plc2 Design GmbH

01

The service and supply agreements of plc2 Design are concluded exclusively on the basis of the following General Terms and Conditions.

02

Any conditions of purchase or procurement and other general terms and conditions of the contractual partner shall not apply even if the contractual partner refers to them in its order and plc2 Design does not expressly contradict them.

01

plc2 Design’s offers are non-binding unless otherwise agreed in an individual contract. A contract is only concluded by the signature of both contracting parties or by a written order of the customer and its acceptance by plc2 Design through countersignature or written confirmation. Only the content of the contract confirmed in this way and these GTC are the basis for the provision of services by plc2 Design. The scope of the contractual services results from the aforementioned contractual documents and the associated annexes, such as service descriptions and milestone plans.

02

The contractual partner may commission plc2 Design to make subsequent changes to the content and scope of agreed services if that is reasonable for plc2 Design and, if other contractual provisions (e. g. prices, execution deadlines) are affected by such changes, agreement has also been reached on such changes. Until the conclusion of such an agreement, plc2 Design will continue to work under the previous agreement.

03

plc2 Design reserves the right to extend, modify and reduce the services provided if this does not significantly alter the subject matter of the contract and that this is reasonable for the contractual partner. plc2 Design is entitled to the right to change the performance in particular if this change is customary in the trade or if plc2 Design is obliged to do so by changing the legal situation or by jurisdiction.

01

The contractual partner undertakes not to misuse the services of plc2 Design. In particular
a. not to violate criminal or regulatory provisions,
b. to observe copyrights and other property rights of third parties.

02

The success or failure of a contract and its execution depends decisively on whether and to what extent the contractual partner participates in the realisation within the scope of his efficiency. As long as the contractual partner does not fulfil his obligations to cooperate or does not fulfil them properly, the agreed execution deadlines shall be extended within a reasonable framework and no default shall occur on the part of plc2 Design. If plc2 Design incurs additional expenses due to the failure of the contractual partner to cooperate, these shall be remunerated by the contractual partner in accordance with the agreed hourly rates, otherwise in accordance with the usual hourly rates.

03

Unless otherwise agreed in an individual contract, the contractual partner shall in particular be obliged to the following acts of cooperation:
a. The contractual partner shall provide plc2 Design free of charge with all information, templates and documents required by plc2 Design for the performance of a contract.
b. In the case of software developments, the contractual partner shall provide plc2 Design with a sufficient number of the required hardware components.

The contractual partner must ensure that the use of the goods, templates and information provided by him does not result in any infringements of third-party industrial property rights or laws (in particular criminal and regulatory provisions). plc2 Design is not obliged to check whether the working material it receives from the contractual partner for processing, use or forwarding contains rights of third parties or illegal or incorrect information; this check is carried out solely by the contractual partner.

01

The calculation of plc2 Design’s services shall be based on the expenditure of time in accordance with the agreed, otherwise with the usual hourly rates.

02

Exceptionally, flat rates may be agreed for certain project services. These lump-sum prices cannot be guaranteed, they have basically no legal effect beyond the understanding of a cost estimate of § 649 BGB.

03

Unless otherwise agreed, travel times and costs as well as work on Sundays and public holidays shall be invoiced separately for all types of remuneration at the agreed hourly rates otherwise at usual hourly rates. Travel times from plc2 Design to the contractual partner and back are calculated as working hours. Travel costs and expenses are reimbursed in accordance with tax principles and other expenses are reimbursed as incurred.

04

Material required for the project performance and to be procured by plc2 Design shall be charged to the contractual partner with a handling surcharge in the usual amount.

05

All prices are quoted exclusive of the applicable statutory value added tax, which shall be shown separately in the invoices.

06

The terms of payment are stated in the offer and on the invoice.

07

plc2 Design shall be entitled to suspend performance if the contractual partner is in default of payment of the agreed remuneration or a substantial part thereof on two consecutive dates. plc2 Design shall inform the contractual partner at least 48 hours before the interruption of performance. After payment of the arrears, plc2 Design will resume the service. The contractual partner shall remain obliged to pay the agreed remuneration, even for the period of interruption of performance.

08

The contractual partner may only offset undisputed or legally awarded claims and only assert a right of retention with regard to such claims.

01

Dates for the provision of services by plc2 Design shall only be binding if plc2 Design has expressly confirmed them in writing as binding and the contractual partner has fulfilled all the conditions incumbent on it for the performance of the service in good time. If plc2 Design does not comply with binding performance dates, the contractual partner must first set a reasonable period of grace with the indication that he will refuse performance of the contract after the inconclusive expiry of this period. After the unsuccessful expiry of this period of grace, the contractual partner may withdraw from the relevant contract. Other claims are excluded unless they are reserved according to “§ 11 – Scope of liability”.

02

Insofar as contractual services are owed, the contractual partner shall accept them after they have been made available. The contractual partner is obliged to carry out partial acceptance of economically separable work parts. Insignificant deviations from contractual specifications do not entitle the contractual partner to refuse acceptance.

03

Acceptance shall be effected by signing the declaration of acceptance within 10 working days of notification of completion of the (partial) work. Acceptance shall be deemed equivalent if the contractual partner uses the (partial) performance productively or does not report any significant defects within an acceptance period of 10 working days.

04

plc2 Design shall remedy all defects relevant to acceptance within a period appropriate to the severity of the defect and submit them to the other party for acceptance again. The contractual partner checks the performance result within 5 working days after notification of the removal of the defect. For the rest, passage 3. shall apply mutatis mutandis.

01

The delivered goods, services and documents shall remain the property of plc2 Design until all claims, including future claims under the contract, have been satisfied.

02

The contractual partner is entitled to pass on the reserved goods in the ordinary course of business subject to retention of title, but not to pledge them or transfer them by way of security in any form. The contractual partner is obliged to ensure that the rights of plc2 Design are taken into account by third parties. In the event of access by third parties to the reserved goods, the contractual partner must draw attention to the ownership of plc2 Design and inform plc2 Design immediately.

03

plc2 Design acquires co-ownership in the case of processing or transformation of the reserved goods with other materials and products, which is proportionate to the invoice value of the processed reserved goods in relation to the remaining goods. Processing and treatment of the reserved goods shall take place for plc2 Design as manufacturer within the meaning of § 950 BGB without obliging plc2 Design. The processed goods shall become joint property of plc2 Design in the sense of the above provisions.

04

plc2 Design retains ownership of all goods and services supplied for testing and demonstration purposes. They may only be used by the contractual partner on the basis of a separate agreement with plc2 Design.

05

plc2 Design is entitled to insure the delivery item subject to retention of title against theft, breakage, fire, water and other damage at the contractual partner’s expense, unless the contractual partner has demonstrably taken out the insurance himself.

All rights to the contractual services not expressly granted to the contractual partner under an individual contract shall remain with plc2 Design or the third party holding the rights.

01

plc2 Design warrants that the service provided is in accordance with the specifications agreed for it, so that the service does not contain any defects which would render the contractually intended use null and void or make it more difficult than insignificantly.

02

Advertising messages of plc2 Design do not represent a contractual statement of quality.

03

The contractual partner shall be entitled to the statutory rights in respect of defects.

04

Claims for defects may only be assigned in connection with the permissible transfer of rights of use.

05

plc2 Design shall not be liable for defects resulting from unauthorised modifications by the contractual partner, its personnel or vicarious agents or other third parties that do not belong to the sphere of plc2 Design. This exclusion of liability for defects applies in particular if contractual products have been improperly used, maintained or installed by the contractual partner, its personnel or vicarious agents or other third parties – e. g. if they have been operated on a system configuration not approved by plc2 Design or if they have been subjected to conditions which do not correspond to the environmental or operating conditions stated in the plc2 Design documentation or if they have been modified, extended or connected to other programs without the consent of plc2 Design.

06

Unless otherwise agreed, the limitation period for all warranty claims of the contractual partner shall be one year. In the case of services under a contract for work and services, the period shall commence upon acceptance and, in the case of other services subject to liability for defects, upon handover. In the event of intent or gross negligence, fraudulent concealment of the defect or personal injury, the statutory limitation period shall apply.

01

The parties hereby undertake to treat as confidential all information which they obtain directly or indirectly from the other party within the framework of the project. Confidential treatment means that the information received from the other party may not be made available to third parties and that this information may not be used commercially for own purposes or for third parties. The parties undertake to use the information received exclusively for the purpose specified in the contract. Any further use or disclosure to third parties requires the written consent of the provider of the information.

02

Each Party shall protect the information received from the other Party with the same care with which it protects its own business and trade secrets.

03

The obligation to maintain confidentiality does not apply to information,
a. which are already publicly known at the time of the transfer or, without the fault of the recipient of the information, subsequently become publicly known;
b. which were already known to the recipient of the information before it was made available or which are subsequently lawfully made available to the recipient by a third party without the recipient being obliged to maintain confidentiality;
c. which have been or will be developed by the recipient of the information independently of the transfer. The recipient of the information shall be responsible for proving the exceptional circumstances referred to in this passage.

04

Each party shall, at the request of the other party, immediately return to the requesting party or confirm in writing the destruction of any written or otherwise recorded information (including any copies made) received by the other party.

05

The obligation to maintain confidentiality shall continue for a period of three years after the termination of the cooperation between the parties.

06

The parties will collect, process and use data within the meaning of the Federal Data Protection Act and other relevant data protection provisions only in accordance with the relevant statutory provisions.

01

plc2 Design shall be liable for damages only if damages are attributable to the culpable breach of a material contractual obligation, namely an obligation the breach of which jeopardises the achievement of the purpose of the contract and/or the fulfilment of which is essential for the proper performance of the contract and the fulfilment of which the contractual partner may regularly rely on (Kardinalspflicht) being caused by plc2 Design, or to gross negligence or intent on the part of plc2 Design.

02

If plc2 Design is liable for the breach of a material contractual obligation in accordance with clause 1 above without gross negligence or intent, the total liability of plc2 Design shall be limited to such damage and to such extent of damage as plc2 Design could typically have foreseen at the time of conclusion of the contract on the basis of the circumstances known to it at that time. In this case, liability is limited to the maximum amount of the remuneration for the service concerned:
a. in the case of one-off remunerations on these, and
b. in the case of current remuneration on the annual remuneration.

03

If the conditions of clause 2 are met, liability for consequential damage caused by a defect and loss of profit shall also be excluded.

04

plc2 Design is liable without limitation only for gross negligence on the part of its legal representatives and/or executive employees and/or for wilful misconduct in accordance with the above clause 1. plc2 Design shall only be liable for gross negligence on the part of other vicarious agents to the extent and in accordance with the liability for simple negligence pursuant to Clauses 2 and 3.

05

The exclusion or limitation of liability for damages set out in the preceding subsections shall also apply to any claims against employees or agents of plc2 Design.

06

Claims for damages shall become statute-barred at the latest one year after the contracting party becomes aware of the damaging event, unless the damage was caused intentionally or by gross negligence.

07

plc2 Design’s possible liability for intentional acts, according to the Product Liability Act, due to the absence of warranted and/or guaranteed characteristics, guarantees in the sense of § 443 BGB and/or § 639 BGB and/or damages resulting from injury to life, body and/or health shall remain unaffected by the above.

01

Unless otherwise agreed in individual contracts, contracts shall enter into force on the date specified in the contract; in the absence of such an agreement on the date of the last signature. Contracts shall end with the agreed end date and, if this agreement is lacking, with performance and, if applicable, with acceptance.

02

Continuing obligations may be terminated in accordance with the statutory periods of notice.

03

Both parties are entitled to terminate contracts for important reasons.

04

plc2 Design may discontinue free services at any time without prior notice if plc2 Design provides such services. This shall not result in a claim for reduction, reimbursement or damages.

01

Applicable law: Contracts concluded hereunder shall be governed by German law with exclusion of any reference to foreign law. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

02

Place of execution, place of jurisdiction: Place of performance is the registered office of plc2 Design. The place of jurisdiction shall be the registered office of plc2 Design to the extent permitted by law.

03

Transfer of rights and obligations: The parties are entitled, subject to prior written notification, to transfer the rights and obligations arising from the contract in whole or in part to companies affiliated with them. Otherwise, any transfer of rights and obligations arising from the contract requires the written consent of the respective other party. The other party will not unreasonably withhold its consent. The above provisions shall not apply to the assignment of monetary claims.

04

Written form: Amendments and supplements to a contract must be made in writing. A waiver of this can only be made in writing. The written form requirement may also be met by telefax or postal correspondence. § 127 (2) S. 1 BGB does not apply in all other respects.

05

Fulfilment of a contract by third parties: plc2 Design shall be entitled to assign the obligations incumbent upon it under the contracts concluded hereunder to third parties or affiliated companies in the sense of §§15ff. of the German Stock Corporation Act (AktG).

06

Delegation to affiliated companies: plc2 Design is entitled to transfer all rights and obligations arising from the contract to affiliated companies in the sense of §§ 15ff. of the German Stock Corporation Act (AktG).

07

Severability clause: If any provision of these General Terms and Conditions or any contract entered into hereunder is found to be invalid or unenforceable in whole or in part, the validity and enforceability of the remaining provisions of these General Terms and Conditions or the relevant contract shall not be affected thereby.

08

Force majeure: With the exception of the obligation to make payments, each party shall be released from the performance of its existing contractual obligations under the contracts concluded hereunder as long as this is impossible as a result of force majeure. Force majeure is in particular strike or lawful lockout, fire, flooding, official measures, delay or non-fulfilment on the part of suppliers, earthquakes, failure of and disturbances in communication networks or other circumstances for which the party willing to perform is not responsible.