General Terms and Conditions

Preface

1.    The following business conditions apply to all contracts and to the total business relationship between the company iSYMED GmbH, Gebrüder-Freitag-Straße 1, 35510 Butzbach,

- referred to as “iSYMED” -

and the customer/client.

2.    Business conditions of the customer which conflict with these conditions, even if they are not contradicted, do not form part of the contract. This applies even if delivery has already taken place.

3.    Divergences from and/or additions to these business conditions and also changes and additions to finalized contracts and to the business conditions applying to them must be made in writing.

Proposals and contract closure

1.    Proposals from iSYMED – in particular in regard to prices, quantities, delivery periods, modes of delivery and subsidiary services – are not binding. A contract is only concluded when the order is confirmed in writing and its content is exclusively defined by this confirmation.

2.    If the order is fulfilled immediately then written confirmation of the order is replaced by the invoice.

3.    iSYMED is not obliged to accept the order.

4.    The explicit confirmation of attributes must be endorsed in writing by iSYMED. Proposal descriptions are not confirmation of attributes unless the contrary is explicitly agreed in writing.

5.    The scope of the services to be delivered by iSYMED is defined by the written contracts alone. Where they are concluded the Cooperation Agreement, the Individual License Conditions for iSYMED Software, the Software Support Contract and in addition these Standard Business Conditions apply in this sequence.

6.    iSYMED reserves the right to diverge from the proposal or order confirmation documentation in order to fulfill mandatory legal or technical standards.

7.    Where the contract partners communicate via electronic mail (e-mail) they acknowledge the unlimited validity of statements of intention conveyed by this means, as long as the following conditions are fulfilled:

The usual information in the e-mail must not be suppressed nor be avoided by means of anonymization; i.e. it must contain the name and e-mail address of the sender, the point in time when sent (date and time) and also again the name of the sender at the end of the communication.

An e-mail that has been received and fulfils these conditions is regarded as coming from the other partner unless evidence to the contrary is provided. The confidentiality of unencrypted information sent in the Internet cannot be guaranteed.

Blanket orders

1.    The ordering of primary material (sub-assemblies, components, machines etc.) takes place promptly after receipt of the order by iSYMED. Where problems of delivery of primary materials will delay delivery to the customer the customer will be informed (see ‘Delivery deadlines’.

2.    The cancellation of blanket orders specific to the customer after primary materials have been ordered is not possible.

3.    The latest date for delivery acceptance for blanket orders is

Date ordered + 15 months + 3 months goodwill = 18 months.

At the end of this period, after notification of/consultation with the customer, iSYMED  will deliver and invoice the remaining, i.e. not yet called up amount of the blanket order.

Installation, training and consultation

1.    The customer himself/herself is responsible for the correct installation of the software delivered. Installation by iSYMED, training and instruction of the customer or his/her operating personnel in the operation of the software delivered are not within the scope of services. These services  are performed only on the basis of a corresponding agreement and are separately chargeable.

2.    Where iSYMED performs training, consultation or installation services the customer is responsible to ensure that necessary prerequisites on the customer side are fulfilled, in particular that the necessary rooms, infrastructure, documentation and personnel are available. If the customer does not correctly fulfill his/her responsibility for involvement according to point 1, then the time period agreed in the contract for fulfillment by iSYMED  is correspondingly lengthened. iSYMED may charge for additional costs caused by the delay, especially for the extended provision of own personnel or materials.

3.    Information provided is to be confirmed in writing.

Scope of services

1.    iSYMED has the right to use third party personnel to fulfill the services which it is  obliged to provide.

2.    Products (hardware, software, data storage media, documentation etc.) provided for test purposes remain the property of iSYMED. iSYMED reserves the right to modify the software, so that programs are no longer fully useable after the end of the agreed test period.

No demands or entitlement to damages may be derived by the customer from this situation.

Delivery deadlines

1.    As iSYMED is not itself the manufacturer of the components processed or the machines offered, binding delivery deadlines can only be given for goods already in stock. Unless delivery deadlines are explicitly described as binding, then they are prospective delivery dates which are not binding in the sense of service delivery on a calendar basis. However iSYMED is obliged to communicate probable delivery delays to the customer in writing.

2.    The delivery dates given by iSYMED are not binding. If iSYMED ‘s prospective delivery date  is exceeded by more than 4 weeks, then the customer has the right to set iSYMED an appropriate extension period for the delivery.

3.    In cases of force majeure or of obstacles outside the responsibility of iSYMED having significant impact on the delivery or the service, especially strikes or lock-outs of iSYMED, its suppliers or their sub-suppliers, then delivery and service deadlines are extended appropriately.

4.    Changes in the order result in the annulment of agreed dates and deadlines unless there is an agreement to the contrary.

5.    All further demands based on delays of delivery, especially any entitlement to compensation, are excluded.

Cancellation of delivery, incorrect orders

1.    If the customer cancels orders in whole or in part and does not fulfill his/her obligation to accept delivery, without this being the total or partial responsibility of iSYMED, then iSYMED has the right, after setting an appropriate extension period of a maximum of 14 days, to withdraw from the contract and to claim compensation. If iSYMED claims compensation, then the amount is 30% of the contract price unless the customer can prove that the damage is less or iSYMED can prove that it is higher.

2.    Unaffected by this, iSYMED has the right to claim compensation for failure to fulfill obligations if the customer does not pay for partial deliveries in accordance with the contract and as a result outstanding deliveries are refused by iSYMED.

3.    If the customer orders incorrectly and returns goods, iSYMED is entitled to charge the customer for the costs of returning the goods into stock. The charge for returning the goods into stock is 10% of the value of the goods, but not less than 20 Euro. In addition the goods must be returned to iSYMED carriage paid and in the original packaging.

Prices

1.    Prices are net excluding packaging and freight charges. Prices are those of the current price list plus the current legal value-added tax. Other deliveries and services for which no price was agreed at the time of ordering will be charged according to the price list valid on the day the delivery was made or the service provided.

2.    Training, installation and other supplies of services will be charged according to the price list valid on the day of ordering, unless a fixed price was agreed.

3.    iSYMED is not bound by the stated prices if a delivery period is agreed longer than four months from the written confirmation of order. In this case the prices valid at the time of delivery will be charged.

4.    Possible refunds to the customer, e.g. because of overpayment or double payment  etc., will be credited to the customer’s billing and – as far as possible – offset against the next amount due for payment.

5.    All taxes and duties owed arising from the contractual relationship, such as legal transaction fees or taxes deducted at source, will be born by the customer. Where SYMED   is called upon for such payments, then the customer will reimburse iSYMED in full.

Conditions of payment

1.    Unless otherwise agreed deliveries of goods are to be paid net without deduction after 30 days. If the customer delays payment iSYMED is entitled to demand interest on arrears at a rate of 8 percent above the current base lending rate, unless the customer can prove that the damage is less or iSYMED can prove that it is higher.

2.    If the customer fails without legal cause to fulfill his/her payment responsibilities and/or other responsibilities according to the Standard Business Conditions, if he/she stops his/her payments or if an application is made for commencement of insolvency proceedings concerning his/her estate or the estate of his/her legal representative, then all remaining debts become due for immediate payment. In this case iSYMED is entitled to withdraw from all contracts, to retrieve all delivered goods for which retention of title applies and is entitled to claim recompense of all costs caused by the withdrawal (e.g. return transport, decrease in value, etc.)

3.    iSYMED can refuse to deliver as long as the purchaser is in arrears with the payment for  earlier deliveries or services from iSYMED.

4.    In the case of repair work or other assignments for which payment to iSYMED is only due after approval, the date on which payment is due is brought forward to the point in time of the  handover or delivery.  In this case iSYMED can demand to match payment versus handover/delivery.

5.    The customer may only offset undisputed or legally determined claims against claims from iSYMED.  The customer may only exercise his right of retention when his/her counterclaim is undisputed or legally determined.

6.    If the customer owes several payments simultaneously then among the several debts the older one or ones will be settled first, unless the customer has specified another sequence of settlement.

Shipment und transfer of risks

1.    Shipment takes place at the cost and risk of the customer. Unless explicitly refused by the customer in writing iSYMED will take out insurance cover to the extent of the purchase price for transport to the handover destination and will charge the customer for this.

2.    iSYMED  is entitled to make partial deliveries.

Guarantee and cancellation

1.    The period of guarantee is 12 months commencing from the handover of the goods to the customer.

2.    Transport damage or delivery of less than the contractually agreed quantity must be communicated within 8 days of receipt of the goods. The customer is obliged to inspect the goods without delay after delivery by iSYMED, to notify iSYMED immediately in writing of any deficiencies or discrepancies found and to return faulty goods with a precise description of the asserted deficiencies. If the purchaser omits to make a notification then the goods are held to be accepted unless the deficiency was not noticeable despite careful inspection. A claim concerning such a deficiency must be made immediately after discovery otherwise the goods are held to be accepted in consideration of this deficiency.

3.    Products installed by iSYMED according to contract will be tested by the customer together with an iSYMED employee without delay. If the products perform essentially in conformance with the contract then the customer must confirm acceptance in writing without delay. If the customer refuses acceptance, he/she must notify iSYMED of precise errors with their exact description in an error protocol. This must be done without delay, at the latest within 10 working days of the installation. If within this period of time neither a declaration of acceptance nor an error notification is received by iSYMED then the work is held as accepted. The customer may not refuse acceptance on the basis of inessential deficiencies.

4.    Unless other specific provisions are made iSYMED is liable for deficiencies in its software, hardware, provisions of service and deliverables to the extent of the specific regulations applying to them.

5.    In the case of culpable infringement of contact obligations the customer must in the first instance apply to iSYMED for correction and/or substitute delivery free of charge.

6.    If any original, technical identification mark is manipulated or changes are made to purchased goods, other than those for which the goods are intended, then the burden of proof of the presence of a deficiency at the possible expense of iSYMED is reversed.

7.    If used hardware is sold, then, with the exclusion of the malicious concealment of errors or the assurance of characteristics, guarantee of any kind is excluded.

8.    The customer is not allowed to cancel a contract because of a breach of duty by iSYMED, except when iSYMED is to blame or when deficiencies in the purchased goods result in the right to withdraw from the contact.

Retention of title

1.    iSYMED retains title to the program delivery media and to the right to use of the software contained on them until the purchase price has been paid in full. If the customer is a qualified businessman (‘Kaufmann’) then the previously mentioned provisos apply until full payment for all claims which have arisen or will arise from this business relationship. This applies also when one or all of  iSYMED’s claims are included in a current invoice and a balance has been struck and agreed. With the full purchase of the title to the program delivery media the customer obtains the usage rights specified in the product license.

2.    As long as iSYMED retains title to the goods, the customer must look after them for  iSYMED with the diligence of a prudent businessman (‘Kaufmann’) and, at his own cost, insure them against fire, water damage, theft and other categories of damage. With the acceptance of this agreement the customer transfers the title to insurance benefits to iSYMED.  iSYMED accepts this transfer of title.

3.    The customer transfers to iSYMED with immediate effect the title to all claims from the resale of goods or the sublicensing of the software. He/she is entitled to collect payment on these claims until this entitlement is revoked. On the request of iSYMED he/she must make known the claims for which title is transferred and the debtors of these claims. iSYMED is entitled to inform the customer’s debtor about this transfer of title.

4.    If the customer behaves contrary to the contract, especially if payment is in arrears or if stoppage of payment is to be expected, then iSYMED is entitled to recover conditionally sold goods from the customer at the customer’s expense or to demand transfer of title to the customer’s right to recover the goods from a third party. This entitlement applies even when the secured claims fall under the statute of limitations. iSYMED is entitled to make use of the goods commercially and to offset the proceeds against open claims in order to fulfill these claims.

5.    In the case of iSYMED’s right of recovery according to the previous paragraph, iSYMED is entitled to collect at the customer’s expense conditionally sold goods still in the possession of the customer. The customer must allow the iSYMED personnel who are authorized to collect the conditionally sold goods access to the business premises during office hours even if no warning has been given.

6.    The exercise of rights resulting from retention of title or the demand to return goods do not constitute a cancellation of the contract.

Extent of assignment of rights

1.    For Software delivered, iSYMED retains intellectual and industrial property rights and also the right of exploitation. The notifications about these protected rights on the program delivery media or on the packaging must be observed, also by third parties. Unless explicitly agreed otherwise the customer acquires simply the right to use the software. The customer’s remaining usage rights for the software are regulated by the license conditions for iSYMED  software for the corresponding product.

Liability

1.    iSYMED has unlimited liability only in cases of intent or gross negligence by iSYMED, its legal representative or its agents and in cases of claims concerning bodily harm or damage to health based on breach of duty in the responsibility of  iSYMED, its legal representative or its agents.

2.    iSYMED is basically liable for the culpable breach of significant responsibilities under the contract regardless of the cause in law. The contractual partner’s legal right of cancellation of the contract is untouched, but iSYMED can only be held liable up to the level of the typical, predictable damage or the typical, predictable expenditure.

3.    Any further liability is excluded.

4.    As far as iSYMED is liable according to point 2, this liability is limited to the amount of coverage of iSYMED’s  company liability insurance.

5.    iSYMED  is not liable for damage which the customer could have avoided by taking reasonable precautions, especially by making program and data backups.

6.    The regulations under the point ‘Liability’ are valid also in favor of employees and other agents of iSYMED.

7.    The provisions of the Product Liability Act remain unaffected.

Export and Re-export

1.    All deliveries by iSYMED are subject to export permission under German federal foreign trade legislation. It is the customer’s own responsibility to be informed about the legislation.

Property rights of third parties

1.    The customer commits him-/herself to inform iSYMED without delay about property rights issues affecting third parties and concerning the delivered iSYMED software and to turn over the legal defense to iSYMED at iSYMED’s expense. iSYMED is entitled at its own expense to make software changes necessary on the basis of property rights claims of third parties. This applies also for goods that have already been delivered or paid for.

Transfer of rights on receivables

1.    The customer is not entitled to transfer contacts made with iSYMED as a whole or to transfer individual rights or responsibilities from within a contract or other rights or responsibilities resulting from contracts made with iSYMED to third parties in whole or in part without the agreement of iSYMED.

Place of jurisdiction

1.    The court at the location where the company iSYMED has its registered office is responsible for all disputes resulting from the contractual relationship, if the customer is a qualified businessman (‘Kaufmann’), a statutory legal body or is in possession of  separate assets under public law.

2.    The legal relations between both parties are subject only to the laws of the Federal Republic of Germany. EU sales law is excluded.

Severability clause

1.    In case of uncertainty the remaining conditions remain binding even in the case of the invalidity of one or of several conditions. If conditions are or become invalid as a whole or in part, then they should be replaced by a condition which comes closest to the commercial purpose of the invalid condition and which is itself valid.

August 2008

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