General Terms and Conditions of Business

 

I. General

 

1. Contract content

1.1 These contract terms and conditions shall apply for all offers and contracts for goods and services between PLANTA and its business customers (hereinafter: customers). The customer’s terms and conditions will not form part of the contract even if PLANTA performs the contract without objecting to the inclusion of the customer’s terms and conditions. Additions and amendments to the contract must always be made in writing.

 

1.2 Information contained in brochures and advertising material as well as PLANTA project descriptions constitutes neither an offer nor a warranty in the legal sense. The customer itself shall review whether the specifications for the subject matter of the contract meet the customer’s needs. Where applicable, it will seek advice from PLANTA or third parties prior to signing the contract.

 

1.3 Offers from the customer are binding upon the customer for 3 weeks.

 

1.4 Offers from PLANTA are non-binding. A contract shall not come into being until confirmed in writing by PLANTA or until PLANTA performs services or furnishes goods.

 

2. Confidentiality and safekeeping

2.1 For the period before, during and after the termination or performance of the contract, the parties undertake to keep confidential, not to disclose to third parties, and not to use in ways other than contractually agreed, all information (such as documents, data) that contains business or trade secrets, that is identified as confidential or is inherently confidential by nature, and that my come to the parties’ knowledge while the contract goods or services are being provided. The parties shall transfer such information only to the person responsible for it, and shall particularly call attention to the confidentiality obligation at that time. The parties shall correctly destroy or return information that is no longer needed.

 

2.2 If PLANTA provides additional security measures at the request of the customer, PLANTA shall bill the added expense.

 

3. Cooperation by the customer

3.1 The customer shall support PLANTA at no charge in performing the contract, and shall furnish in a timely manner all information, as well as the equipment or facilities (e.g. computers, telecommunications, rooms) and personnel, needed for the purpose.

 

3.2 The customer shall appoint a knowledgeable contact person who is authorized to furnish and receive binding declarations needed for the performance of the contract.

 

3.3 If the software supplied fails to work correctly, as a whole or in part, the customer shall take due precautions by backing up data, diagnosing faults, performing ongoing checks, etc.

 

3.4 If the customer does not duly comply with its obligation to cooperate, PLANTA may bill the customer for the additional expense incurred because of the failure to comply with that obligation. This shall not affect PLANTA’s other legal rights.

 

4. Delivery

4.1 Times indicated for delivery or performance are nonbinding unless PLANTA has consented to them in writing as binding. Partial deliveries are permitted, if the customer can make reasonable use of the delivered parts in isolation.

 

4.2 If PLANTA cannot comply with a binding delivery date because suppliers fail to deliver for reasons for which PLANTA is not at fault, or because of non-cooperation by the customer, employee illness, labor disputes, force majeure or other unforeseen events, the agreed deadline shall be postponed by the length of the disruption plus a fair and reasonable period for resumption of business after the disruption ends.

 

4.3 All warning notices and notifications of deadlines from the customer must be in writing in order to take effect. Except in justified emergencies, grace periods shall not be less than 10 working days.

 

4.4 If a delivery is performed by shipment, risk shall be transferred to the customer at the time of consignment to the carrier, and in no case later than the time at which the item to be delivered leaves PLANTA’s plant or warehouse.

 

4.5 The customer will receive software in machine-readable form. In the absence of any agreement to the contrary, deliveries will be made by having the customer download the software or by sending data media, or by installation by PLANTA, at PLANTA’s discretion. In the first two cases, the customer shall perform installation itself, in accordance with the descriptions in the manual.

 

4.6 Ownership of the delivered items, as well as the rights therein (clauses II.1 and II.3) shall not be transferred to the customer until the remuneration due has been paid in full. However, the customer is entitled under the law of obligations to use the materials within the limits set by the contract for the period from their delivery until two weeks after the due date for the payment obligation.

 

5. Payment

5.1 The agreed remuneration is payable in full within 14 days from the invoice date. In the absence of any agreement to the contrary, PLANTA cannot issue bills for standard software until the software has been received, or bills for customized software until the software has been accepted.

 

5.2 PLANTA’s prices are understood not to include shipping costs, travel or expenses. PLANTA’s current price list applies for these, and all other additional goods and services requested by the customer. Value-added tax will always be added to these.

 

5.3 If the customer is in arrears with payment, PLANTA shall be entitled to charge late interest of 8% above the base interest rate as a minimum penalty. The preceding provision shall not affect PLANTA’s right to charge higher interest for other legal reasons or because of additional losses sustained.

 

5.4 The customer may offset payments only against uncontested claims or claims that are final and absolute. Any right of retention may be based only on claims arising from this contract.

 

6. Commitment to the contract; termination of the contract

6.1 A termination of any further exchange of performances (for example, in the event of withdrawal, price reduction, damages to be paid in place of performance, or cancellation for good cause) must always be preceded by a warning, stating reasons and setting a fair grace period to remedy the problem. A grace period may be omitted in the cases cited under § 323 clause 2 of the German Civil Code.

 

6.2 The party that is wholly or primarily at fault for the problem cannot demand a rescission of the contract.

 

6.3 If the customer may, at its option, assert claims for delivery or remedy, or else claims directed to prematurely terminating the exchange of goods and services, PLANTA may demand that the customer exercise its rights within a fair and reasonable period. If the customer fails to exercise its rights within that period, it can no longer assert claims directed to a premature termination of the exchange of goods and services.

 

7. Defects of quality and title

7.1 The customer shall immediately inspect every PLANTA delivery for completeness and freedom from defects. It shall report any defects without delay, in writing, including a precise description. In the event of failure to comply with this obligation, it cannot derive rights from such defects.

 

7.2 PLANTA warrants that the software and other results of its work are free from third-party intellectual property rights, and shall hold the customer harmless from third-party claims in the event that PLANTA has infringed intellectual property rights.

 

7.3 The agreed functions of the software and other results of PLANTA’s work will be executable without quality defects under the conditions defined in the manual. Quality defects in this sense shall refer solely to reproducible errors that result in more than an inconsequential impairment of functions, and that are caused by deficiencies in the quality of the software or results of other work. Consequently, impaired functioning caused by hardware deficiencies, environmental conditions, improper operation, defective data, etc. shall not be a defect.

 

7.4 If errors occur solely on the customer’s computer, the customer shall, at its discretion, either make its original data inventories available to PLANTA, or grant PLANTA access via modem or ISDN to its computer, or request on-site support from PLANTA. PLANTA shall bill for the added expense in the last case.

 

7.5 If a response time is agreed for a remedy (clause I.7.6), PLANTA shall start processing the error report within that time. The time required to solve the problem will depend on the complexity of the problem and the urgency finding a solution.

 

7.6 PLANTA may satisfy its warranty for defects of quality and title by providing a remedy. At PLANTA’S discretion, this may be done by correcting the defect, delivering a new release that is free from the defect, or presenting work-arounds to avoid the effects of the defect. In other words, it may not be possible to fully correct the defect in every case. The customer must accept a new release even when it entails adjustment or conversion problems, so long as these are of such a nature that the customer may reasonably be expected to tolerate.

 

7.7 If a remedy is definitively refused or fails, or if the customer cannot reasonably be expected to tolerate it, the customer shall be entitled at its discretion to reduce the remuneration or to withdraw from the contract. The customer may claim damages, or reimbursement of wasted expenditures caused by defects, only under the conditions prescribed by law, and only in compliance with the exclusions and limitations provided under clause I. 8. No other claims resulting from defects are possible. Claims directed to a termination of the further exchange of goods and services may be asserted only under the further conditions governed by clause I. 6.

 

7.8 At the customer’s request, PLANTA will assist the customer in diagnosing problem, and also support the customer in correcting such problems, even if PLANTA is under no obligation to do so. PLANTA shall bill for the associated expenses.

 

7.9 Liability for defects shall lapse if the subject matter of the contract has been modified, unless the customer can prove that the defect has nothing to do with such modifications.

 

7.10 The customer’s claims for defects shall expire one year after the beginning of the statutory time bar period, unless agreed otherwise below. The customer’s claims for reimbursement of remuneration, after a withdrawal from the contract or a price reduction, shall have a time bar period of at least three month from the effective date of the declaration of withdrawal or reduction. If a legal defect is founded in a third-party right in rem under which that third party is entitled to demand that the customer surrender a delivered item, the statute of limitations shall apply. In all cases, the time bar shall intervene no later than the expiration of the maximum terms specified in § 199 of the German Civil Code (BGB). Clause I. 8. shall apply for the expiration of customer claims for damages or reimbursement of wasted expenditures incurred because of defects.

 

8. Liability

8.1 PLANTA will pay damages or reimburse wasted expenditures, irrespective of the legal basis, only within the following limits:

 

a)      In the case of willful misconduct or absence of a warranted characteristic, PLANTA’s liability shall be unlimited.

b)      In the case of gross negligence, PLANTA shall be liable up to the typical amount of loss foreseeable at the time when the contract was entered into.

c)      In the case of negligent breach of a duty material to the accomplishment of the purpose of the contract (cardinal duty), PLANTA shall be liable up to the amount of loss typically foreseeable at the time when the contract was entered into, but not more than the total remuneration under the contract.

 

8.2 PLANTA will restore lost data from data inventories maintained by the customer in machine-readable form only if restoration is possible at a reasonable expense. A prerequisite for data restoration is full data backup for the past 20 working days and the past 3 months. In other cases, the customer shall assume the consequences for any loss of data.

 

8.3 Customer claims for damages or reimbursement of wasted expenditures shall expire one year after the statutorily established commencement of the time bar period. The time bar shall intervene no later than the expiration of the maximum terms specified in § 199 of the German Civil Code (BGB). In cases of willful misconduct, gross negligence, absence of a warranted characteristic, or fraudulent intent, the time bar on claims for damages or reimbursement of wasted expenditures shall be governed by the terms of law.

 

8.4 Subsections 1 through 3 shall not affect the customer’s legal rights under the German Product Liability Act, or in the event of bodily injury, illness or death.

 

II. Software licensing

 

1. Subject matter of contracts for PLANTA software

1.1 The subject matter of the contract shall be the delivery and transfer of PLANTA software (program and manual). The software is eligible for copyright.

 

1.2 The customer shall receive a non-exclusive, non-time-limited authorization to use PLANTA software in the customer’s place of business for the customer’s own purposes. To this end, the customer may install the PLANTA database on only one server at the customer’s place of business; this server may be accessed by the customer or customer-authorized third parties from any number of computers via PLANTA software clients. The customer may make backup copies in accordance with the state of the art.

 

1.3 If the customer uses PLANTA software in association with other software (e.g. a database management system from another maker), the customer itself shall bear the responsibility for the optimum administration and settings of this software.

 

1.4 The customer may make copies of the PLANTA manual only for purposes of use in accordance with the contract. Software copies (server and database) made for testing or training purposes shall be deemed uses in accordance with the contract. Software clients may be copied as often as desired.

 

1.5 PLANTA retains all other rights in the software. For that reason, the customer is prohibited from exercising any other forms or possibilities of use (e.g. revisions other than the copies mentioned under 1.2 and 1.4). The customer may pass on the software to third parties only by written permission from PLANTA; PLANTA shall grant such permission:

 

·         if the customer surrenders to the third party the data support media transferred to the customer

·         if the customer deletes all other copies in existence at the customer’s premises

·         if the customer definitively abandons its own use and sends PLANTA written confirmation that it has met the above conditions

·         if, in addition, the third party declares in writing to PLANTA that the third party will abide by the terms and conditions of the contract with the customer

·         and if there is no good cause for opposing the further transfer

 

Branch offices and subsidiaries or parent companies shall also be third parties within the meaning of this provision.

 

1.6 These obligations shall survive the termination of the contractual relationship. For each culpable breach, PLANTA shall be entitled to demand a contractual penalty of 150 % of the agreed contractual remuneration, and in no case less than EUR 10,000.

 

2. Customizing of the PLANTA software

2.1 Customized versions prepared by PLANTA for the customer may deviate on a customer-specific basis from the standard PLANTA software in their user interface, the administered data, and the processing and methods they employ.

 

2.2. The customer shall provide test data and target test results for the customized version, in the form requested by PLANTA.

 

2.3. If factory acceptance takes place prior to delivery, the customer shall review the customized versions on the basis of the work description. If the customization of the PLANTA software is part of a larger system, factory acceptance shall take place at the customer’s premises, if PLANTA so requests.

 

2.4. A 10-day acceptance period shall commence upon the declaration of delivery. Acceptance shall take place if the customer has not given notice of any substantive defect under the procedures established in the contract.

 

3. Third-party software

3.1 In the case of third-party software resold by PLANTA, the scope of delivery shall be limited to the program and the manuals.

 

3.2 PLANTA shall transfer to the customer only those rights of use that the supplier grants consistently with customary market practices. These rights shall be listed in the license agreement from the supplier or maker of the third-party software. PLANTA shall further that license agreement to the customer on request.

 

3.3 In the event of defects in third-party software, the customer must first choose by written declaration whether it intends to assert claims against PLANTA under the terms of clause I. 7., or whether it will accept assignment by PLANTA of PLANTA’s warranty claims against the prior supplier. This choice shall be binding.

 

III. PLANTA software maintenance

 

1. Software maintenance shall be furnished for the latest authorized release of the software and the manuals. Maintenance shall include servicing.

 

2. Servicing shall mean the correction of defects of title as defined under clause I. 7. Clauses I. 7. and I. 8. shall apply for disruptions in performance. Any right to a price reduction shall apply only for the period in which the disruption occurs, commencing with the defect report.

 

3. The customer’s obligations to cooperate under clause I. 3. shall also apply in the case of maintenance. The contact person must be knowledgeable in the specific field concerned. Otherwise PLANTA bill for the added expense.

 

4. Once a new PLANTA release has been put into productive operation, the right of use for the prior release shall expire.

 

5. The starting date for software maintenance is the date on which the PLANTA standard software is delivered. The software maintenance contract is valid for 2 years and mutually agreed. The software maintenance contract shall subsequently be automatically extended by one year unless cancelled 3 months prior to expiry of the contract. Cancellation must be made in writing.

 

6. If further software modules are added during the life of the agreement, or if the quantity schedule is increased, such changes shall be incorporated into the current software maintenance agreement as of their delivery. The price of the agreement shall be adjusted accordingly.

 

7. PLANTA is obliged to issue at least one relevant release each year.

 

IV. Concluding provisions

 

1. Except in cases under § 354 a of the German Commercial Code, the customer may assign claims against PLANTA only with PLANTA’s written consent.

 

2. The place of jurisdiction and venue for all disputes in connection with this contractual relationship shall be Karlsruhe if the customer is a merchant, a legal entity under public law, or a segregated fund under public law, or if the customer has no general place of jurisdiction and venue of its own in Germany.

 

3. The laws of the Federal Republic of Germany alone shall apply, to the exclusion of the UNCITRAL laws on purchases and sales.

 

4. The German version of these General Terms and Conditions shall be the controlling version for their interpretation.

 

Date: December 2006