General Terms and Conditions of beas group AG

    A MATERIAL AREA OF APPLICABILITY

The following Terms and Conditions will be applicable for all offers and contractual relationships of any kind whatsoever as well as all services of beas group AG (“beas“) and its customers (which will be understood to include partners and end customers of beas as well as end customers of the partners). They will also apply to all future business relationships, even if they are not expressly agreed upon again. Contradictory terms and conditions of the customer will be binding for beas only if they have been expressly recognised in writing by beas. Furthermore, contradictory terms and conditions will be legally ineffective in dealing with beas without requiring an express contradiction against them. Counter-confirmations of the contracting partner with a reference to its general terms and conditions are hereby rejected.In the case of non-recognition of these Terms and Conditions by the customer, the latter will be obliged to send all goods already received back to beas within 10 days after their delivery at its own costs and its own risk. It will also be obliged to confirm deletion in writing in case the installation has already taken place on its system.Depending on the scope and contents of the services from beas specified in the individual contracts, the conditions in the individual sections for B Software Licenses, C Software Maintenance and Hotline Services, and D Services will also be applicable as appropriate. Section E Common Conditions will also be valid in general.

    B SOFTWARE LICENSES

1. Object of the Contract

beas will transfer standard software and/or individual software prepared especially for the customer in accordance with a separate order from the customer including the related documentation (together “Software”) to the customer for use. In exchange, the customer commits itself to the payment of a once-only license fee or the payment of regular periodic license fees. Related services such as installation, training, consulting, software maintenance, etc., are to be regulated in separate contracts.

2. Right of Use

beas grants the customer a non-exclusive and non-transferable right to use the software for the system platforms and the number of users specified in the software license contracts or released by beas in writing. These conditions will also apply to changes, reworks and new deliveries of software which will be transferred for use by beas in accordance with the Software Maintenance conditions.beas will not be committed to the improvement and further development of the software within the limits of the transfer of the software for use. These will be the object of a separate Software Maintenance Contract. In connection with the contractual use, the customer will be entitled to prepare a backup copy of the software provided that the corresponding data carriers are furnished with a beas copyright note. Furthermore, the customer will not be entitled to:

- change, decompile or in any other way modify the software itself or to have it modified by third parties except with the written agreement of beas.

- to transmit, to transfer for use or in any other way to make available the software to third parties in whole or in part.

With the exception of the right of use described above, all rights to the software including the documentation will remain with beas or the licensors of beas (to the extent that “third party products” are involved). In particular, the customer knows that the software is subject to the protection of the Copyright Law as well as international Treaties on Copyrights.

3. Duration of the Transfer for Use

The right of use will begin after the payment of the license fees to beas. beas will be entitled, after prior written warning, to withdraw the right of use and to dissolve the contracts if the customer does not comply with the restrictions of use in accordance with prior Number 2. There will be no reimbursement of license fees already paid. In the event that the Software License Contract is terminated, the customer commits itself to delete any and all computer programs and to destroy or delete the user documentation. The customer will be obliged to confirm the deletion of all copies to the licensor (beas or partner) in writing.

4. Delivery, Introduction

beas will deliver the software on commonly available data carriers or by download. The scope of supply will also comprise a manual in electronic form. The delivery will be considered as completed on arrival at the customer. Any introduction to the software beyond this will be provided only after the conclusion of an appropriate Services Contract. An acceptance of the software will be conducted only if individual software is involved and the acceptance has been agreed upon contractually. The customer itself will be responsible for the deployment of the software, in particular, for the provision of hardware, the use of the software and data security. If beas does not comply with a delivery deadline confirmed as binding in writing, the customer will be entitled, after setting an appropriate later deadline in writing, to withdraw from the contract. No other legal remedies will be available to the customer in case of delay.

5. License Fees

The customer commits itself to the payment of a once-only license fee or the payment of regular periodic license fees in accordance with the License Contract. The amount for the software licenses, unless agreed separately, will be based on the beas list price applicable at the time of the order. The invoice will be issued on the beas side with the delivery in accordance with Number 4. If the remuneration has been agreed upon at periodical intervals, the invoices will be issued in advance at the beginning of the period in each case.

6. Warranty

beas warrants that the software will correspond essentially to the functions described in the white paper and will be free of faults which cancel or substantially impede the value or the usability of the program under the contractual conditions or for its usual purpose. Insignificant deviations or restrictions (which are present if the customer uses the software productively) will remain out of consideration. In the case of justified complaints of faults, the customer will initially have only the right to demand cure of breach. The warranty will be fulfilled through the delivery of fault-free software which corresponds to the description of services and the contractual purpose agreed upon between the parties. In place of supplementary delivery, beas will also be entitled to make a rectification at its own choice. The customer will have the right to demand a reduction (lowering of the remuneration) or to withdraw from the contract after setting an appropriate deadline in the case that the fault cannot be eliminated through the warranty or if the measures are unreasonable. No other warranty rights will be established. The warranty period will amount to 12 months and will begin with the delivery in accordance with Number 4. Any faults which appear are to be claimed immediately after their observation by the customer and in a traceable manner with the forms or electronic reporting systems foreseen by beas for this purpose. This warranty will not extend to any faults which are to be attributed to changes in the software and/or the agreed hardware requirements by the customer or to the use of system platforms other than those which have been agreed upon contractually or released by beas in writing. beas will also provide no warranty for any mistakes which are based on faults in the handling and operation of the software by the customer, especially if the instructions of the accompanying materials delivered or other instructions from beas have not been followed. The same will also apply in the case of attempted changes or work on the software transferred by persons who are not authorized by beas to do so. The customer will be obliged, within reasonable limits, to take measures which make the identification of reported faults and their causes easier. The customer will execute test programs provided by beas, report the faults diagnosed and perform any changes to the software on instruction from beas or will permit beas to perform the identification or elimination of faults by itself through remote maintenance. beas will provide no warranty for outside products identified by beas as “third party products” in the License Contract. In this respect, beas is authorized to assign any and all of its warranty claims against the suppliers of third party products to the customer for the purpose of the warranty. If applicable, beas will support the customer to enforce these claims and help the customer with their implementation.

    C SOFTWARE MAINTENANCE AND HOTLINE SERVICES

1. Object of the Contract

beas will perform the services described as follows in connection with the software transferred to the customer for use in accordance with the Software License Contract. In return, the customer commits itself to the payment of regular periodic maintenance and service fees. The use by the customer of the current version of the software released by beas will be a condition for the performance by beas of the services agreed upon. Additional services can be agreed in a separate Hotline and Support Contract.

2. Standby/Contact Time for the Hotline and Services

The telephone support will be available on workdays (Monday to Fridays, except for “Public Holidays”) during normal working hours from 8.00 to 17.00 hrs. (“Contact time“). Outside of the contact time, incoming customer messages will be considered to arrive at the beginning of the next contact time. The handling of a customer message will take place within the four working hours following its arrival.

3. Software Maintenance and Elimination of Faults

beas will make patches or updates available to the customer at irregular intervals in the limits of the Software Maintenance.beas will analyze reproducible software faults which become known to it and eliminate them in accordance with their urgency through the delivery of patches (bug fixes), updates, workarounds or other adaptations of the customer’s operating procedures which are reasonable for the customer. The elimination of faults by beas will, as a rule, be performed through access to the customer’s system by remote access. In exceptional cases, beas will be entitled to perform the elimination of the faults on location. Section B Software Licenses, Number 4. will apply correspondingly for delivery and introduction of patches and updates as a part of the Maintenance Services.

4. Service and Maintenance Fee

The service and maintenance fee will be due for payment from the first day of that month in which the handover of the software for use takes place. The official beas list price applicable at the time of the handover of the software will form the basis. The amount and the periodicity of the due dates can be defined in an additional Hotline and Support Contract (among other services). If there is no separate Hotline and Support Contract defined/agreed the conditions of the official beas price list are valid and the maintenance period is 1 year. The invoice will be issued proportionally for the first period begun and at the beginning of each period in advance for the following periods.

5. Warranty

beas will provide a warranty for the fault-free performance of the services agreed upon contractually. For the delivery of patches and updates, Section B Software Licenses, Number 6 will apply correspondingly.

6. Contract Duration

The contract and the services by beas will begin with the signature by both parties. The minimum duration will amount to 1 year, calculated from the first day of the following month. This Agreement will be extended implicitly by a further 12 months in each case if it is not terminated in writing at the end of a contractual year with prior notice of 3 months by one of the parties.

    D SERVICES

1. Object of the Contract

If beas commits itself to provide services such as- Software development and software adaptation (“Manufacturing services“) or- Consulting, technical EDP support and the training of the customer (“Consulting services”)in a separate agreement (Services Contract), the conditions of this Section will be applicable. Manufacturing and consulting services will be identified together as “Services”.

2. Deadlines

Binding deadlines will be defined in the Services Contract and identified as such. All other deadlines not especially identified as binding or confirmed will represent approximate deadlines for information only. All deadlines can be adapted to the progress of the project through mutual agreement. If beas does not comply with a binding deadline and if this delay is caused through the fault of beas, the customer will be entitled, after setting an appropriate later deadline in writing, to withdraw from the contract. Other legal remedies will not be available to the customer.

3. Acceptance

An acceptance of the results will be performed on the side of the customer for manufacturing services. If no specific acceptance is defined in the Services Contract for the particular services, the following will apply:

• Acceptance of the detailed specification: beas will report the readiness of the detailed specification for acceptance. It will also include the results, testing and acceptance points as well as any applicable manufacturing costs of the service. The customer will be obliged to perform the acceptance of the detailed specification and to confirm this to beas in writing within 14 days.

• Acceptance of the results: beas will report the readiness of the manufacturing services for operation. The customer will be obliged to test the manufacturing services within 30 days and to confirm the acceptance to beas in writing.The acceptance will be considered as complete if the customer does not contradict the acceptance in writing within 30 days after the notification of readiness for acceptance/operation.Faults which do not prevent the use of the results in accordance with the specification (“minor faults”) will not interfere with the acceptance. In particular, a minor fault is present if the customer uses the results productively.

4. Prices/Costs of Services

Invoicing will be made on the basis of expenses actually incurred in the form of hourly or daily rates plus travel costs. Unless agreed separately, their amount will be based on the beas list price applicable at the time of the order. Unless agreed otherwise, beas will issue invoices monthly. The quotation of a price for the entire services by beas will serve only for the customer’s orientation and, without an express assurance, will not represent a binding cost ceiling.

5. Warranty

beas will provide a warranty for the fault-free performance of the services agreed upon contractually. The warranty period will amount to 12 months. It will begin with the conclusion of the consulting for consulting services and with the acceptance for manufacturing services in accordance with Number 3. Any faults which appear are to be claimed immediately after their observation by the customer and in a traceable manner with the forms or electronic reporting systems foreseen by beas for this purpose. The customer will have the right to demand a reduction (lowering of the remuneration) or to withdraw from the contract after setting an appropriate deadline in the case that the fault cannot be eliminated through the warranty or if the measures are unreasonable. No other warranty rights will be established. If the results of the Manufacturing Services involve software, the conditions under Section B Software Licenses, Number 6. Warranty, will apply in addition.

6. Rights to the Results of the Work

Unless agreed otherwise, any and all rights to the results produced in accordance with the Services Contract will remain with beas. The customer will receive a non-exclusive, non-transferable right of use to them. If the results of the manufacturing services involve software, the conditions under Section B for Software Licenses and, if not agreed otherwise, the conditions of C for Software Maintenance and Hotline Services will be applicable.

E COMMON CONDITIONS

1. Prices, Invoicing, Due Dates

beas will be entitled to adapt the value of the service rates and recurring fees to changed cost factors at the beginning of a new calendar year in each case. Such adjustments will be notified in writing two months before they enter into force at the latest. The customer will reimburse beas for all expenses such as travel, subsistence and overnight accommodation expenses. Travel time will be considered as working time and will be invoiced to the customer within the limits of the ordinary service rates. All prices are understood as net prices without value-added-tax (VAT), other contributions or taxes and shipping costs. All prices and cost information are quoted in €. Invoices will be due for payment within 14 days after being issued. In case of payment arrears, beas will be entitled to demand interest on arrears at the rate of 1% per month. beas will be entitled to stop the performance of its services under all contracts if the customer is found in arrears with payments.

2. Obligation of the Customer to Cooperate

The customer commits itself to deliver in good time all necessary information about its objectives and organizational circumstances to beas as well as to establish all technical and operational requirements which are necessary for the performance of services by beas. In particular, the obligations of the customer to cooperate comprise:

• Provision and operation of the technical system environment (hardware, operating systems, network and a data backup system), which can also be used by beas for the elimination of faults;
• Provision of the necessary personnel resources from the technical departments participating in the project as well as the identification and release of a competent project manager to the necessary extent, implementation of the decisions by the project management
• Immediate reporting of faults/errors and a traceable description of the problem with the forms or the electronic reporting systems foreseen by beas for this purpose
• Provision of a communications connection and a service–client in accordance with the requirements of beas, which will enable remote access to the system environment of the customer by authorized and specially trained beas employees
• Granting of access by beas to the software at the customer in a usual working environment
• Implementation of recommendations from beas for circumventing faults
• Implementation of recommendations from beas with respect to the installation of new versions
• Use of the latest versions released by beas in accordance with the operational or technical conditions of use specified by beas.

3. Warranty of Rights

beas will defend the customer against all claims of third parties raised in connection with proper contractual use of the products acquired from beas because of the violation of a protected right, such as a copyright, patent or trademark right, provided that:

• beas is informed within 30 days of a violation of the protected right or the supposed violation of a protected right in writing by the customer
• the customer transmits all information necessary to eliminate the matter under dispute to beas and provides all reasonable cooperation and support
• the customer entrusts beas with the exclusive management of any proceedings to be held and all negotiations for the elimination of the legal disputes in court or out of court.

Under these conditions, beas will conduct the legal dispute at its own costs. If protected rights of third parties have been violated or if this is probable in the judgement of beas, beas will have the choice to acquire the rights for the further use of the services affected for the customer, to replace them or to change them in such a way that the violation of protected rights no longer exists or to withdraw these services and to reimburse the customer for the remuneration paid by it. The customer will not be entitled to any other claims against beas.

4. Data Protection

All data and information, such as files, studies, offers, business documentation, concepts or records which are exchanged between the parties may only be used by their receiver for the fulfilment of the contract and may not be made accessible to third parties which are not involved in the fulfilment of the contract. The customer is aware that the software delivered by beas contains information, ideas, concepts and procedures which represent the operational secrets of beas. Both parties commit themselves to apply these obligations to preserve secrecy to their own employees also beyond the duration of their employment contracts as well as to any third parties involved. Is the customer authorized by beas to have extended access to beas information e.g. such as software sources, then for every employee who has availability to this access a specific additional agreement is mandatory. The customer agrees that beas will store the customer’s data made known to it within the context of the contractual relationship and transmit the necessary data from the customer to the insurer in the case of the conclusion of a loan insurance policy. The conditions of data protection will also apply beyond the termination of this Agreement.

5. Liability

Claims to compensation for damages because of the violation of obligations and illegal actions will be excluded against beas as well as the agents and servants of beas. This exclusion of liability will not apply

1. to damages resulting from physical injuries or hazards to life and health,

2. to damages which are based on an intentional or grossly negligent violation of its obligations by beas or the agents and servants of beas,

3. in the area of applicability of the Product Liability Law,

4. in case of culpable violation of an important contractual obligation,

5. if beas has reached an agreement on characteristics, which is to be evaluated as a strict promise of a warranty without blame, whereby consequential damages from faults are to be reimbursed in this case only if the agreement on characteristics was supposed to secure the customer against the risk of consequential damages. In the case of the established liability of beas or its employees, the liability will be limited to direct damages. The liability for consequential damages from faults will be excluded with the exception of the liability in accordance with Number 5.5.Claims to compensation for damages will be limited per damage occurrence to the insured values under the third party liability insurance policy existing at beas for EDP service operations, namely to € 1,500,000.00 for personal injuries, € 500,000.00 for material damages (also the costs of restoring data) as well as € 25,000.00 for financial damages. The liability for data loss will be excluded if the data have not been backed up properly. If beas employees work in relation to services which are not connected with beas software, any and all liability of beas will be excluded. Without written permission, beas employees are not authorized to perform work in connection with software which has not been delivered by beas.beas will provide no warranty for outside products identified by beas as “third party products” in the License Contract. In this respect, beas is authorized to assign any and all of its warranty claims against the suppliers of third party products to the customer for the purpose of the warranty. If applicable, beas will support the customer to enforce these claims and help the customer with their implementation.

6. Prohibition of Recruiting

The hiring of employees, freelancers or subcontractors from beas and the direct or indirect use of the services of these employees, freelancers or subcontractors may take place only with the written agreement of beas throughout the duration of the contract and within one year after its termination.The customer commits itself to pay beas a contractual penalty to the amount of € 50.000,00 for every violation of this condition. The payment of this contractual penalty will not release the customer from compliance with this prohibition of recruiting. Furthermore, beas will be entitled to enforce additional claims for damages beyond this.

7. Place of Fulfilment

The place of fulfilment will be either the location of the customer or the headquarters of beas at the choice of beas.

8. Final Conditions

These contractual conditions as well as the Attachments making reference to them contain any and all agreements reached on the object of the contract. Changes and additions to the contractual conditions will require the written form (Addenda) and signature by both parties to be valid.The customer will be entitled to assign rights and obligations under this contractual relationship to third parties only with the written agreement of beas. beas retains the right to transfer services under agreements between beas and the customer to third parties, whereby beas will warrant the proper fulfilment of the contractual obligations to the customer. Should regulations of these General Terms and Conditions or the regulations in special conditions (on the transfer of the software for use, the software maintenance and hotline services or the performance of services) or regulations of beas in contracts concluded otherwise, be or become legally ineffective or impracticable in whole or in part, the validity of the other conditions of the contractual relationship between beas and the customer will not be affected. The same will apply if it becomes apparent that the contractual relationship contains gaps. Instead of the ineffective or impracticable conditions or for the filling of the gap, an appropriate agreement which, to the extent legally possible, comes as close as possible to what the contracting parties wanted in accordance with economic criteria or would have wanted in accordance with the intention and purpose of the contract if they had thought of the point when concluding the contract shall be applicable.

The contractual relationship between the parties, including these general terms and conditions, shall be entirely governed by the law of Switzerland to the exclusion of the Swiss international private law and the international treaties, in particular the UN Convention on Contracts for the International Sale of Goods (Vienna convention). For any dispute the courts at the domicile of beas shall have exclusive jurisdiction.

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