General Terms and Conditions of PROFI Engineering Systems AG

Scope of the General Terms and Conditions

1. These General Terms and Conditions (hereinafter referred to as “GTC”) apply to individual contracts (hereinafter referred to as “individual contracts”) for the services described herein, which are concluded between PROFI Engineering Systems AG, Otto-Röhm-Str. 18, 64293 Darmstadt (hereinafter referred to as “PROFI AG,” “we,” “us,” “our”), and the respective contractual partner of PROFI AG (hereinafter referred to as “Customer”) and only if our Customer is acting in the exercise of its commercial or independent professional activity (and is therefore an entrepreneur within the meaning of § 14 BGB) or is a legal entity under public law or a special fund under public law.
2. These General Terms and Conditions (hereinafter referred to as “GTC”) apply to individual contracts (hereinafter referred to as “individual contracts”) for the services described herein, which are concluded between PROFI Engineering Systems AG, Otto-Röhm-Str. 18, 64293 Darmstadt (hereinafter referred to as “PROFI AG,” “we,” “us,” “our”), and the respective contractual partner of PROFI AG (hereinafter referred to as “Customer”) and only if our Customer is acting in the exercise of its commercial or independent professional activity (and is therefore an entrepreneur within the meaning of § 14 BGB) or is a legal entity under public law or a special fund under public law.
3. Each individual contract constitutes an independent contract that has no legal effect on any other individual contracts concluded between PROFI AG and the customer. Termination or cancellation of an individual contract shall not affect the term and validity of the other individual contracts and other agreements existing between the customer and PROFI AG.
4. Any provisions, amendments, or additions that deviate from these General Terms and Conditions or an individual contract must be made in writing.

Part A: General Terms and Conditions

I. Scope of application

1. These General Terms and Conditions Part A apply to all individual contracts between our customer and us within the personal scope of application defined above.
2. The cases in which the special conditions in Part B, Part C, and/or Part E apply in addition to this Part A are specified under the heading “Scope of Application” in each respective part. If a provision in these special conditions contradicts one of the provisions in these General Terms and Conditions Part A, the provision in the special conditions shall take precedence over the provision in these General Terms and Conditions Part A as a more specific provision.

II. Scope of services; data backup by the customer; subcontractors

1. The scope of services owed by us is determined, depending on the service requested, by the special conditions in Parts B, C, D, and/or E, as well as the respective individual contract. Insofar as the provisions of the individual contract contradict these General Terms and Conditions, the provisions of the individual contract shall take precedence.
2. Without a separate order, we are not obliged to check the completeness and accuracy of the customer’s task specifications and service descriptions or any other data, information, or services provided by the customer, unless there is a justified reason to do so. It is the customer’s responsibility to back up the data stored on their computers in a suitable form before installing software on them or working on them. Furthermore, it is the customer’s responsibility to make regular backup copies of their data.
3. When we make recommendations for the use of hardware components and peripheral devices, the adaptation of peripheral devices provided by the customer or used at their request that are not covered by this recommendation is not included in the scope of services. Adaptation can be very time-consuming and costly in individual cases. If adaptation is commissioned without a simultaneous remuneration agreement, remuneration shall be based on the time spent in accordance with our current price list.

III. Customer cooperation

III. Customer cooperation

1. The fulfillment of essential obligations to cooperate by the customer is a prerequisite for the scheduled provision of services by us. If the customer defaults on the fulfillment of an essential obligation to cooperate, our project costs will increase and the subsequent deadlines will be postponed. The customer acknowledges and agrees that this postponement of deadlines does not necessarily have to be linear to the delay caused, but may also be shorter or longer. In this case, the length of the postponement shall be determined in accordance with Section 315 (3) of the German Civil Code (BGB) at our reasonable, legally verifiable discretion. Any additional expenses incurred by us as a result shall be reimbursed by our customer (see Section III. (2)).
2. Downtime during which we or our vicarious agents are unable to work productively because the customer has not fulfilled their obligations to cooperate properly, completely, or in a timely manner may be invoiced additionally according to time and effort at the applicable hourly rates. The customer reserves the right to prove that the damage was less than this. Downtime subject to remuneration may arise, for example, due to:
   a) Unavailability of the customer’s contact person, insofar as this results in downtime;
   b) Unavailability or failure of communication networks within the customer’s area of responsibility, insofar as these are required for technical reasons for development, testing, or integration purposes;
   c) Unavailability or malfunction of interfaces or interface programs, insofar as these are to be provided by the customer; and/or
   d) Delayed provision of test data by the customer.
3. The customer shall designate a person with decision-making authority as an authorized contact person to clarify all questions relating to the individual contract throughout the term of the individual contract. In particular, this contact person shall ensure that the customer’s decisions are made in good time so that there is no delay in the execution of the individual contract due to the customer’s failure to make decisions or failure to make them in good time. If this contact person is absent due to vacation or illness, the customer shall ensure that a suitably authorized representative is available.

IV. Delivery dates, impediments to performance, reservation of self-supply

1. Delivery dates or dates for the provision of our services are only binding if they have been expressly agreed with the customer as binding.
2. In the absence of a binding provision governing the delivery and/or service period, we shall determine the delivery and/or service period at our reasonable discretion, subject to judicial review.
3. If, despite concluding a congruent hedging transaction with a supplier known to be reliable, we ourselves are not supplied on time, the applicable deadlines for the provision of our services shall be extended by a reasonable period to be determined by us at our reasonable discretion, which shall be subject to judicial review.
4. Public holidays are January 1, Good Friday, Easter Monday, May 1, Ascension Day, Whit Monday, Corpus Christi, October 3, December 24, Christmas Day, Boxing Day, and December 31.

V. Remuneration, surcharges, expenses, late payment

1. The remuneration to be paid by the customer for the services provided by us is specified in the respective individual contract. Unless otherwise agreed, all agreed remuneration is in euros and excludes sales tax and any costs for transport and packaging. With regard to the billing of downtime, the provisions in Section III. Paragraph 2.
2. All payments must be made by the customer within 14 days of receipt of our respective invoice by bank transfer to the bank account specified in the invoice.

VI. Counterclaims, assignment

Our customer may only offset our claims with undisputed or legally established counterclaims. He is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

VII. Acceptance

1. Insofar as we are required to perform work within the meaning of Sections 631 et seq. of the German Civil Code (BGB) in accordance with an individual contract, such work shall be subject to acceptance. This shall not apply to services to be provided in parallel, in particular consulting and other support services.
2. If partial acceptance has been agreed and/or partial deliveries and/or services have been accepted, we shall be entitled to withhold further partial deliveries and/or services as long as the customer is in default with the acceptance of partial deliveries and/or services or the payment of accepted partial deliveries and/or services.
3. Acceptance may not be refused on the grounds of minor defects. Defects are considered significant if they render the intended, i.e., economic use of the work impossible or unreasonably restricted or impeded.

VIII. Liability for defects

1. If, in the event of the conclusion of a purchase contract or contract for work and services, the customer is entitled to claims for liability for defects against us due to defects in the item or work, the limitation period for warranty claims in the case of a purchase contract for a new item is one (1) year from delivery of the item, and in the case of a contract for work and services, one (1) year from acceptance. However, the statutory limitation periods remain unaffected in the event of fraudulent concealment of a defect, the assumption of a quality guarantee, injury to life, limb, or health, and in the event of
   intent or gross negligence.
2. If a used item is sold in an individual case, the warranty is excluded. Section VIII, paragraph 1, sentence 2 applies accordingly.
3. If we are required to provide a warranty for a material defect in a purchase contract, we are entitled to choose between repairing the defect or delivering a defect-free item, as specified in Section 439 (1) of the German Civil Code (BGB).
4. Unless expressly agreed otherwise in the respective individual contract, we do not provide any guarantee of durability or quality within the meaning of § 443 BGB (German Civil Code) for items sold by us.
5. In the case of purchase contracts, § 377 HGB (German Commercial Code) stipulates that the customer has a duty to inspect and give notice of defects if the customer is a merchant within the meaning of the HGB. This also applies to contracts for work and services in accordance with the relevant provisions.
6. It is expressly clarified that warranty claims of the customer arising from an individual contract (e.g. due to defects in the delivered hardware) do not extend to any other individual contracts concluded in connection therewith (e.g. for the licensing of standard software or the provision of services), unless expressly agreed otherwise in the respective individual contract.
7. If software is defective, the customer shall, as part of the replacement delivery of a defect-free item, accept a new version of the software if necessary, unless this leads to unreasonable impairments.
8. A warranty for material defects does not apply to defects resulting from software or hardware being used in a hardware and software environment that does not meet the requirements specified in the individual contract, or to changes and modifications made by the customer to software or hardware supplied by PROFI AG without being entitled to do so by law, these General Terms and Conditions, or prior written consent from PROFI AG.
9. Kosten, die uns durch eine unberechtigte Mängelrüge unseres Kunden entstehen, sind vom Kunden zu erstatten, wenn der Kunde bei Anwendung der im Verkehr üblichen Sorgfalt hätte erkennen können, dass die Mängelrüge unberechtigt ist.
10. The customer’s warranty rights for software, hardware, or other goods or items provided free of charge are governed exclusively by statutory regulations.

IX. Exclusion of Liability

1. PROFI AG shall be liable for damages resulting from injury to life, body, or health caused by a breach of duty by PROFI AG, its legal representative, or vicarious agent, as well as for damages caused by the absence of a quality guaranteed by PROFI AG.
2. PROFI AG shall be liable for damages caused intentionally or by gross negligence by PROFI AG or one of its legal representatives or vicarious agents.
3. In the event of a slightly negligent breach of essential contractual obligations, PROFI AG shall be liable, except in the cases of Section IX. Paragraph 1 or Paragraph 4, for damages limited in amount to the foreseeable damage typical for the contract. Essential contractual obligations are, in abstract terms, those obligations whose fulfillment is essential for the proper execution of a contract and on whose observance the contracting parties may regularly rely.
4. Liability under the Product Liability Act remains unaffected.
5. The limitation period for claims for damages against PROFI AG is one (1) year, except in the cases of Section IX. Paragraph 1, Paragraph 2, or Paragraph. 4.
6. Notwithstanding the provisions of this Section IX, PROFI AG shall be liable for software, hardware, or other goods or items provided free of charge exclusively in accordance with the statutory provisions.

X. Confidentiality

1. Both the customer and PROFI AG are obligated, until the expiration of five (5) years after the expiry of the respective individual contract, not to make the confidential information transmitted or disclosed to the other party (in each case the “receiving party”) available to third parties, either directly or indirectly, and not to use it for purposes other than the performance of the respective individual contract under which the receiving party became aware of the confidential information. Confidential information includes all information (i) about the details of the relevant individual contract (including the content of the respective offer), (ii) all technical information and know-how of the other party made available to the receiving party within the scope of the individual contract, (iii) other information designated as confidential by this other party, and (iv) trade and business secrets of the other party, if and to the extent that these are not covered by (i) to (iii).
2. The confidentiality obligations pursuant to Section X. Paragraph 1 shall not apply to confidential information which (i) was demonstrably known prior to disclosure to or prior to becoming known to the receiving party and was not disclosed by a third party in breach of a confidentiality obligation, (ii) was known to the public or generally accessible prior to disclosure, (iii) became known or generally accessible to the public after disclosure without the involvement or fault of the receiving party, and/or (iv) must be disclosed in the context of administrative, judicial, or arbitration proceedings.

XI. Intellectual property / Property rights

1. Unless expressly agreed otherwise in the respective individual contract or these GTC, we and our suppliers retain all property rights in relation to the customer to our registered trademarks, the standard software (as defined below in Part B), the associated documentation, all updates (as defined below in Part E), all services or deliverables (as defined in Part C below) and other work results, as well as all intellectual property rights contained in or associated with the foregoing elements. All rights, in particular copyrights, that are not expressly licensed or granted in accordance with an individual contract or these GTC are reserved.
2. In relation to us, the customer retains all ownership rights to all confidential information belonging to the customer and all existing intellectual property rights belonging to the customer.

XII. Written form, applicable law, and place of jurisdiction

1. Terminations and other declarations of intent must be made in writing.
2. These General Terms and Conditions and all individual contracts are subject to the laws of the Federal Republic of Germany, with the exception of the UN Convention on Contracts for the International Sale of Goods (CISG, United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980) and the provisions of international private law.
3. The place of performance for all obligations arising from the contractual relationship with the customer and the exclusive place of jurisdiction is the registered office of PROFI AG.

Part B: Special conditions for the permanent transfer of standard software (purchase)

I. Scope of application

These special conditions for standard software license agreements, Part B, apply in addition to the provisions in the General Terms and Conditions, Part A, insofar as the subject matter of an individual agreement is (also) the sale, delivery, and licensing of standard software from PROFI AG to the customer, regardless of whether the standard software was created by us or by a third party.

II. Scope of services, content, and scope of rights of use for software

1. The scope of services may include the delivery, licensing, and permanent transfer of standard software that was either created by us as standard software or produced and distributed by third parties as standard software (hereinafter referred to as “standard software”).
2. Unless otherwise agreed, the standard software comprises:
   a) the machine-readable object code, and
   b) the documentation created either by us or by a third-party manufacturer and/or, alternatively, the functional description.
3. We grant the customer the non-exclusive (simple), non-sublicensable right to use the standard software produced by us for the purposes specified in the individual contract at the installation locations specified therein for an unlimited period of time.
4. The right of use granted to the customer in accordance with Section II. Paragraph 3 is limited to the maximum number of licenses agreed in the individual contract and is restricted to the use of computer systems in the customer’s direct possession and serving the purpose of use.
5. It is hereby clarified that, unless expressly agreed otherwise in the underlying individual contract, a license is limited to one (1) computer belonging to the customer. The customer is not entitled to transfer the standard software installed on one of their computers to other computers without purchasing additional licenses. This does not include cases where a computer has to be replaced for technical reasons. In this case, however, the customer is obliged to completely delete the installed standard software from the previous computer as soon as it has been transferred to the new computer.
6. Insofar as the subject matter of the contract is the delivery of standard software produced by a third party, the customer undertakes in addition to the obligations under this provision, to comply with the license terms and conditions set by the respective manufacturer for this standard software, in particular that this standard software is not reproduced contrary to the provisions of the respective third-party manufacturer and that a sufficient number of licenses is always available for the intended use, even in the event of a subsequent extension of use by the customer.
7. If the customer uses the standard software to an extent that exceeds the acquired rights of use in terms of quality (with regard to the type of permitted use) or quantity (with regard to the number of licenses acquired), they shall immediately acquire the rights of use necessary for permitted use.

III. Handover

1. The customer shall receive the number of copies of the standard software in machine-readable form required to exercise the respective license granted, either stored on data carriers or made available for retrieval via remote data transmission, at our discretion.
2. The customer shall also receive one copy of the user documentation created by us or by a third-party manufacturer and made available to us for transfer to the customer for each copy of the standard software. We may also fulfill this obligation by setting up an electronic help system integrated into the standard software or by providing the option of accessing the user documentation directly from the standard software.

IV. Accruals

Unless otherwise agreed in individual cases, the following services provided by us in particular are not covered by the licensing of standard software under these supplementary terms and conditions, Part B, and are therefore not included in the remuneration agreed for this in the individual contract:

a) Installation of the standard software at the customer’s premises;
b) Individual adjustment of variable parameters of the standard software in accordance with the customer’s requirements (customizing);
c) Individual extension of the standard software for the customer (individual modifications);
d) Adaptation of interfaces of the standard software to the customer’s needs;
e) Instruction and training of the customer’s program users; or
f) Maintenance and support of the standard software, in particular the delivery of new program versions.

Part C: Special conditions for contracts for the provision of services

I. Scope of application

These special terms and conditions for contracts for the provision of services, Part C, apply in addition to the provisions in the General Terms and Conditions, Part A, insofar as the subject matter of an individual contract is (also) the provision of services, i.e., in particular (i) the installation, individual configuration/parameterization, and commissioning of standard software and/or hardware sold by us, (ii) the customization and/or extension of standard software and/or the creation of independent software specifically for the customer (hereinafter collectively referred to as “creation of customized software”), (iii) the training or other support of the customer’s employees, (iv) the migration of data or other software components, and (v) the provision of other consulting services. These special terms and conditions do not apply to services provided under a software maintenance agreement or a support agreement.

II. Scope of services / Rights of use

1. The type and scope of the services to be provided, in particular the planned time frame for this, the individual services to be provided by us (hereinafter referred to as “Deliverables”) and any payment targets/milestones shall be specified in the respective individual contract.
2. The customer shall be entitled to the same rights of use for the deliverables and all other work results created by us within the scope of our services and provided to the customer as for the standard software produced by us to which the work results relate. Insofar as the work results do not relate to standard software produced by us, we grant the customer a non-exclusive (simple), non-sublicensable right to use the work results created by us for the purposes specified in the respective individual contract without any restrictions in terms of time or territory.
3. Insofar as the customer has acquired an exclusive right of use to work results provided by us under an individual contract on the basis of deviating individual agreements, we remain entitled to use our own knowledge or the knowledge of our employees related to the creation of the work results, as well as tools and processes used that are intended or suitable for reuse in other service relationships, for the purposes of our business operations. This does not apply to knowledge that relates exclusively to the specific features of the customer’s business operations.
4. The delivery of the source code is not included in the scope of delivery when creating custom software.

III. Due date for payment

1. If remuneration on a “time and material” basis is agreed, the respective remuneration shall be due on a monthly basis and invoiced by us.
2. If a fixed remuneration is agreed, its due date shall be based on the payment terms specified in the individual contract.

Part D: Special conditions for the sale of hardware

I. Scope of application

These special terms and conditions for the sale of hardware, Part D, apply in addition to the provisions in the General Terms and Conditions, Part A, insofar as the subject matter of an individual contract is (also) the delivery of hardware components.

II. Scope of services for the sale of hardware

1. Our business activities do not include the manufacture of hardware. Therefore, if hardware components are included in the scope of services under an individual contract, we expressly state that these are not manufactured by us.
2. The scope of services is based exclusively on the contractual agreements. If it becomes apparent during delivery and/or installation that additional hardware components are required, these must be ordered and paid for separately or procured by the customer themselves.
3. The customer undertakes to use the system software supplied with the hardware components, i.e.
   a) supplied system software that must be installed on the hardware after setup and/or installation of the hardware, and
   b) software components already permanently integrated into the hardware, only in accordance with the respective license terms of the respective manufacturer of this software.

III. Retention of title, current account reservation

1. The delivered hardware remains our property until the purchase price for the hardware has been paid in full.
2. Furthermore, the delivered hardware remains our property until all our claims arising from the transaction associated with the purchase of the hardware (purchase and licensing of standard software and/or licensing and adaptation of standard software) have been paid in full.
3. The customer may not sell, pledge, or transfer ownership of the goods subject to retention of title, which are our sole or joint property, to third parties as security. Pledging, transfer of ownership by way of security, or assignment by way of security are not permitted.
4. If the cooperation of the customer is required for the retention of title to be effective, for example in the case of registrations required under the law of the buyer’s country, the customer must perform such actions.
5. If the customer meets the objective requirements for filing for insolvency, they must refrain from disposing of the goods subject to retention of title in any way whatsoever, without being required to do so. In this case, we are also entitled to withdraw from the contract and demand the return of the goods subject to retention of title.

Part E: Special conditions for the temporary transfer of hardware (rental)

I. Scope of application

These special terms and conditions for the temporary transfer of hardware for use in return for payment, Part E, apply in addition to the provisions in the General Terms and Conditions, Part A, insofar as the subject matter of an individual contract is (also) the temporary transfer of hardware for use in return for payment.

II. Scope of services

1. Our business activities do not include the manufacture of hardware. Therefore, if hardware components are included in the scope of services under an individual contract, we expressly state that these are not manufactured by us.
2. The scope of services is based exclusively on the contractual agreements. If, during the transfer of use and/or installation, it becomes apparent that additional hardware components are required, these must be ordered and paid for separately or procured by the customer themselves.
3. The customer undertakes to use the hardware components provided only at the location specified in the respective individual contract.
4. The transfer of use of the hardware takes place when we hand over the hardware to the customer.
5. The customer is not entitled to make any changes to the hardware provided without our prior written consent, nor to remove any markings affixed by us or our suppliers.
6. Should a third party assert rights to the hardware provided by us to our customer through seizure, attachment, or similar measures, the customer is obligated to notify us immediately in writing.

III. Term, termination, return

1. The term of each individual contract shall commence on the date specified in the individual contract as the commencement date and shall have an initial term of one (1) year (“Initial Term”).
2. At the end of the initial term, the individual contract may be terminated by either party with three months’ notice. If the individual contract is not terminated, it shall be tacitly renewed for a further period of one (1) year. Each party shall be entitled to terminate the individually renewed contract at the end of each renewal period, subject to a notice period of three months.
3. The right to terminate an individual contract for good cause and in accordance with Section 543 of the German Civil Code (BGB) remains unaffected.
4. After termination of the respective individual contract, the customer must return the provided hardware to us. The return takes place by the customer delivering the provided hardware back to our company headquarters in Darmstadt.
5. The customer is obliged to notify us in writing or by fax of the intended return of the provided hardware 14 calendar days prior to the return, unless a temporary deployment has been agreed upon from the outset. If the notification is made verbally or by telephone, the customer must confirm it in writing or by fax within three calendar days.
6. If the customer does not return the provided hardware to us after the termination of the respective individual contract, we are entitled, but not obliged, to collect it from our customer and, for this purpose, to enter the storage or deployment location of the provided hardware. The customer waives any claims that might arise from unlawful interference.

IV. Liability for Defects

1. PROFI AG undertakes to maintain the provided hardware in a condition suitable for contractual use for the duration of the term and to carry out the necessary maintenance and repair work. This obligation refers only to the contractual condition of the hardware as specified in the respective individual contract.
2. If the customer is entitled to claims for liability for defects against us due to defects in the rented item, the limitation period for warranty claims amounts to one (1) year from the statutory commencement of the limitation period. In contrast, the statutory limitation periods remain unaffected in cases of fraudulent concealment of a defect, assumption of a quality guarantee, injury to life, body or health, as well as in cases of intent or gross negligence. Sentence 1 of this Section IV Para. 2 leaves § 548 Para. 2 BGB unaffected.
3. Customer claims due to defects in the rented item are excluded insofar as the suitability of the rented item for contractual use is only insignificantly impaired by these defects.
4. The no-fault liability of PROFI AG for initial defects according to § 536a Para. 1 BGB is excluded. PROFI AG is liable in this respect only in cases of gross negligence or intent.
5. It is expressly clarified that warranty claims of the customer arising from an individual contract (e.g., due to defects in the delivered hardware) do not extend to any other individual contracts concluded in connection therewith (e.g., concerning the purchase of standard software), unless expressly agreed otherwise in the respective individual contract.
6. A warranty for material defects does not apply to defects insofar as these are based on the hardware being used in a hardware or software environment that does not meet the requirements specified in the individual contract, or for changes and modifications made by the customer to hardware supplied by PROFI AG without being entitled to do so by law, these General Terms and Conditions, or a prior written consent from PROFI AG.
7. Defects occurring during the term must be reported by the customer to PROFI AG immediately in writing or by fax.
8. Costs incurred by PROFI AG due to an unjustified notice of defect from the customer shall be reimbursed by the customer if the customer, by exercising due care customary in business, could have recognized that the notice of defect was unjustified.

As of: August 23, 2021