General Terms and Conditions of Delivery and Service of d.u.h.Group GmbH for use vis-à-vis entrepreneurs

I. Validity

1. all deliveries, services and offers of d.u.h.Group GmbH (hereinafter referred to as “Supplier”) are made exclusively on the basis of these General Terms and Conditions of Delivery and Service. These are an integral part of all contracts that the Supplier concludes with its contractual partners (hereinafter also referred to as “Customer”) for the deliveries or services offered by it. They shall also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed again.

2. these General Terms and Conditions of Delivery and Service shall only apply if the Client is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.

3. terms and conditions of the customer or third parties shall not apply, even if the supplier does not separately object to their validity in individual cases. Even if the Supplier refers to a letter that contains or refers to the terms and conditions of the Customer or a third party, this shall not constitute consent to the validity of those terms and conditions.

II Offer and conclusion of contract

1. all offers of the supplier are subject to change and non-binding, unless they are expressly labelled as binding or contain a specific acceptance period. This shall also apply if the Supplier has provided catalogues, technical documentation, test software, other product descriptions or documents – also in electronic form – to which it reserves all property rights and copyrights. The Supplier may accept orders or commissions within 14 days of receipt by confirming the order in writing or text form.

(2) The legal relationship between the Supplier and the Customer shall be governed solely by the contract concluded, including these General Terms and Conditions of Delivery and Service. This fully reflects all agreements between the contracting parties on the subject matter of the contract. Verbal promises made by the Supplier prior to the conclusion of this contract shall not be legally binding and verbal agreements between the contracting parties shall be replaced by the written contract, unless it is expressly stated in each case that they shall continue to be binding.

3. supplements and amendments to the agreements made, including these General Terms and Conditions of Delivery and Service, must be made in writing to be effective. With the exception of managing directors or authorised signatories, the supplier’s employees are not entitled to make verbal agreements that deviate from the written agreement. Telecommunication by e-mail is sufficient to fulfil the written form requirement, provided that a copy of the signed declaration is transmitted.

4. information provided by the supplier on the subject matter of the delivery or service (e.g. performance characteristics, utility values and technical data) as well as their representations (e.g. test or sample versions or illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or labelling of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements are permissible, provided they do not impair the usability for the contractually intended purpose.

III Delivery, dispatch, transfer of risk

1. deliveries are made ex works, which is also the place of fulfilment for the delivery and any subsequent fulfilment. At the request and expense of the Customer, delivery shall be made to another destination. Software shall be delivered at the Supplier’s discretion in physical form on a data carrier ex works or in non-physical form as an online download.

2. the risk of accidental loss and accidental deterioration shall pass to the Customer at the latest upon acceptance of the delivery and service by the Customer. If the client is in default of acceptance, this shall be deemed equivalent to acceptance. If no acceptance is owed or agreed, the risk shall already pass upon handover.

3. if the customer is in default of acceptance or fails to cooperate or if the supplier’s performance is delayed for other reasons for which the customer is responsible, the supplier shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs, waiting times, etc.).

4. a delivery period shall only be deemed to have been agreed as binding if it has been expressly assured by the supplier in writing or text form as binding. If the supplier is unable to meet binding delivery deadlines for reasons for which he is not responsible (non-availability of the service), he shall inform the customer of this immediately and at the same time inform the customer of the expected new delivery deadline. If the service is also not available within the new delivery period, the Supplier shall be entitled to withdraw from the contract in whole or in part; any consideration already paid by the Customer shall be reimbursed to the Customer without delay. A case of non-availability of the service in this sense shall be deemed to be in particular the failure of the supplier’s own suppliers to deliver on time if the supplier has concluded a congruent hedging transaction, neither the supplier nor the supplier is at fault or the supplier is not obliged to procure in the individual case.

5. compliance with binding delivery deadlines presupposes that the customer performs the acts of co-operation incumbent on him (e.g. provision of necessary information, provision of the necessary hardware) in good time. If the customer does not fulfil its obligations to cooperate in good time, the delivery period shall be extended accordingly, provided the supplier is not responsible for this delay.

6. the customer has no claim to delivery or utilisation of the source code.

IV. Prices and payment

1. the prices apply to the scope of service and delivery listed in the order confirmation. Additional or special services shall be invoiced separately. The prices are quoted in euros plus the applicable statutory value added tax, packaging, delivery costs, customs duties in the case of export deliveries, as well as fees and other public charges.

2. invoice amounts are due for payment within fourteen days of invoicing and delivery or acceptance of the delivery or service, unless otherwise agreed in individual contracts. However, the supplier shall be entitled, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. The supplier shall declare a corresponding reservation at the latest with the order confirmation.

3. upon expiry of the above payment deadline, the customer shall be in default. Interest shall be charged on the outstanding payment during the period of default at the applicable statutory default interest rate. The supplier reserves the right to claim further damages for default.

4. the customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery or service or counterclaims arising from the same contractual relationship, the Client’s counterclaims shall remain unaffected.

5. if it becomes apparent after conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that the Supplier’s claim for remuneration is jeopardised by the Client’s inability to pay, the Supplier shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary, after setting a grace period – to withdraw from the contract (§ 321 BGB).

V. Obligations of the Customer

1. the Client is obliged to inspect all deliveries and services of the Supplier for which no acceptance is owed or agreed immediately upon delivery or upon receipt in accordance with the provisions of commercial law (§ 377 HGB) and to give notice of any defects recognised in writing with a precise description of the defect.

2. the client shall thoroughly test the delivered software and the service (e.g. software installation) for usability in the specific situation before commencing productive use. This also applies to services that the client receives within the scope of the warranty or any software maintenance.

3. in the case of the installation of software owed, the client must allow the supplier access to its computer systems, in particular servers, and provide information about them, insofar as this is necessary for the installation to be carried out. The Client shall ensure that an employee who is familiar with the computer systems, in particular servers, and who is able to operate the computer systems and servers professionally is permanently available during the performance of the installation work.

4. the client shall take appropriate precautions in the event that the software does not work properly in whole or in part (e.g. through data backup, documentation of software use, fault diagnosis, regular testing of results, emergency planning). It is the responsibility of the client to ensure the functionality of the working environment of the software.

VI Rights of the client to software

1. delivered software (programme and user manual) is legally protected. Copyrights, patent rights, trademark rights and all other property rights to the software as well as to other objects which the Supplier provides or makes accessible to the Customer in the context of the initiation and execution of the contract shall be the exclusive property of the Supplier in the relationship between the contracting parties. Insofar as third parties are entitled to the rights, the Supplier shall have the corresponding rights of exploitation.

2. the Supplier shall grant the Customer a non-exclusive, non-transferable licence, limited in accordance with the provisions of the individual contract, to install the software, to access it and to use it for its own internal business purposes in the country in which the Customer first acquires and installs the software. Further contractual usage rules (e.g. the restriction to a number of workstations or persons) must be set up technically and complied with in practice.

The client does not acquire any ownership rights to the software. All rights to the software and all relevant copyrights, trade secrets or other industrial property rights to the software shall remain with the Supplier or third parties from whom the Supplier has acquired the right to licence the software.

3. unless mandatory statutory provisions to the contrary exist, the Customer is prohibited from translating or disassembling the software or attempting to extract the source code of the software. The Customer may not otherwise modify, alter, adapt or merge the software, unless this is contrary to mandatory statutory provisions.

The Customer may only decompile the interface information of the software within the limits of § 69e UrhG (German Copyright Act) and only after it has informed the Supplier in writing of its intention and requested the provision of the necessary interface information within a period of at least two weeks. Section XV shall apply to all knowledge and information that the Customer obtains about the software in the course of decompiling. Prior to any involvement of third parties, the Customer shall provide the Supplier with a written declaration from the third party that the third party undertakes directly to the Supplier to comply with the rules set out in this Section VI and Section XV.

4. all other acts of exploitation, in particular the leasing, lending and distribution of physical or non-physical form, the use of the software by and for third parties (e.g. through outsourcing, computer centre activities, application service providing) are not permitted without the prior written consent of the Supplier.
5. the supplier reserves all rights to the software that have not been expressly granted. The Supplier reserves the right to incorporate an appropriate security mechanism into the Software to monitor the use of the Software and to check whether the Customer is complying with the obligations assumed in relation to the use of the Software. The Supplier reserves the right to use licence management software and/or an authorisation key for the licence in order to control access to the software. The Customer is not authorised to take steps to circumvent or suppress these measures. The use of software without an authorisation key is prohibited.

VII Retention of title and rights

1. until full payment of all present and future claims of the supplier against the customer arising from the current business relationship, the supplier reserves all rights of ownership and utilisation of the deliveries or services.

2. deliveries and services of the supplier may not be pledged to third parties, assigned as security or transferred for use in any other way before full payment of the secured claims. In the event of seizures or other impairments by third parties, the Customer is obliged to inform the Supplier of this immediately and to inform the third party of the Supplier’s ownership or right of use.

3. in the event of breach of contract by the customer (in particular in the event of non-payment of the remuneration due), the supplier shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods delivered on the basis of the retention of title and the withdrawal and to withdraw the rights of use to software granted to the supplier.

VIII. Acceptance

1. completed work services must be accepted. In the case of delivery of software, the subject of acceptance is the contractually owed performance of the software.

2 Acceptance shall take place in accordance with the following provisions:

a)The Client shall provide all systems and data required for the performance of the acceptance test. The Supplier is authorised and, at the request of the Client, obliged to participate in the acceptance test against separate remuneration.

b)The Supplier shall notify the Client in writing that the respective service or partial service is ready for acceptance (request for acceptance). Partial services/partial deliveries shall be accepted separately.

c)Thereupon the Client shall commence with the inspection of acceptability within 12 working days of receipt of the request for acceptance.

d)If acceptance fails, the Client shall provide the Supplier with a list of all defects preventing acceptance. After expiry of a reasonable period of time, the Supplier shall provide a defect-free version of the contractual software or other work results that is ready for acceptance. Within the scope of the subsequent tests, only the recorded defects shall be tested, insofar as their function can be the subject of an isolated test. After successful testing, the client must declare acceptance of the work results in writing within 12 working days.

e)The client may not refuse acceptance due to insignificant defects.

3) Insofar as acceptance is to take place or the client has started to use the service (e.g. has put the software into productive operation and not just for trial or test operation), the service shall also be deemed to have been accepted if

– the delivery and, if the Supplier is also responsible for the installation, the installation has been completed,

– the Supplier has notified the Client of this and requested acceptance (request for acceptance),

– 12 working days have elapsed since delivery and installation or the client has started using the service (e.g. has put the software into productive operation and not just for trial or test operation) and in this case 6 working days have elapsed since delivery and installation, and

– the Client has failed to accept the service within this period for a reason other than a defect notified to the Supplier which makes the use of the service impossible or significantly impairs it.

Pursuant to Section 640 (2) BGB, the Client can only prevent the fiction of acceptance if it indicates the existence of significant defects or a number of insignificant defects that exceeds the usual level.

4. in the event of a renewed acceptance with regard to the justified previous notices of defects, the above provisions shall apply accordingly.

IX. Material defects

1. the supplier warrants the contractually owed quality of the service.
Delivered software has the agreed quality at the time of transfer of risk and is suitable for the contractually stipulated use or, in the absence of an agreement, for normal use. It fulfils the criterion of practical suitability and has the usual quality for software of this type; however, it is not free of defects.

2. in the event of material defects, the supplier may initially provide subsequent fulfilment. Subsequent fulfilment shall be effected at the supplier’s discretion by remedying the defect, by supplying software that does not have the defect or by the supplier demonstrating ways of avoiding the effects of the defect. At least three attempts to rectify a defect shall be accepted. An equivalent new programme version or the equivalent previous programme version without the defect shall be accepted by the customer if this is reasonable for him.

3. the customer shall support the supplier in analysing the error and rectifying the defect, in particular by specifically describing any problems that occur, providing the supplier with comprehensive information and granting the supplier the time and opportunity required to rectify the defect. The Supplier may, at its discretion, remedy the defect on the Client’s premises or at its own business premises, in particular also by means of remote maintenance. The Client shall grant the Supplier (electronic) access to the software after prior notification.

4 The contracting parties agree the following error classes and response times for delivered software:

a)Error class 1: Defects preventing operation

The error prevents the Client’s business operations; there is no workaround solution: The Supplier shall begin to rectify the error immediately, at the latest within 24 hours of the error being reported, and shall continue to do so with vigour until the error is rectified, including outside normal working hours (08:00 to 17:00 on working days) where this is reasonable.

b)Error class 2: Defects hindering operation

The error significantly impedes the Client’s business operations; however, the use of the software is possible with workaround solutions or with temporarily acceptable restrictions or difficulties: In the event of an error message before 10:00 a.m., the Supplier shall begin to rectify the error on the same day, in the event of a later error message at the beginning of the next working day and shall continue to do so within normal working hours until the error has been rectified. The supplier may initially demonstrate a workaround solution and eliminate the error later if this is reasonable for the client.

c)Defect class 3: Other defects

The supplier shall begin to rectify the error within one week or shall only rectify the error with the next programme version if this is reasonable for the client.

5) In the event of differences of opinion regarding the categorisation of a defect in the classes according to para. 4, the client may demand classification in a higher defect class. He shall reimburse the Supplier for the additional costs incurred as a result if he cannot prove that his categorisation was correct.

6 The Supplier may demand compensation for additional expenses resulting from the fact that the software has been modified, used outside the specified environment or operated incorrectly.

7. claims for defects on the part of the customer shall not exist in the event of improper use or errors in the system environment provided by the customer or in the event of non-reproducible software errors or subsequent modification of the software by the customer or third parties, unless this does not make it more difficult to locate and remedy the defect.

8 Liability in accordance with section XI. paragraph 7 remains unaffected.

X. Defects of title

1. the supplier warrants that the contractual use of the software by the customer does not conflict with any third-party rights. In the event of defects of title, the Supplier warrants at its own expense that it will, at its discretion, provide the Customer with a legally unobjectionable utilisation option for the software or equivalent software.

2. the customer shall inform the supplier immediately in writing if third parties assert industrial property rights (e.g. copyrights or patent rights) to the software.

3. the liability according to section XI para. 7 remains unaffected.

XI. Liability for damages due to fault

1. the Supplier’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and unauthorised action, shall be limited in accordance with this Clause XI, insofar as fault is involved in each case.

2. the supplier shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the subject matter of the contract on time, its freedom from defects of title and such material defects that impair its functionality or usability more than insignificantly, as well as obligations to provide advice, protection and care that are intended to enable the customer to use the subject matter of the contract in accordance with the contract or are intended to protect the life, limb or health of the customer’s personnel or to protect the customer’s property from significant damage.

3. insofar as the Supplier is liable for damages on the merits pursuant to para. 2, this liability shall be limited to damages which the Supplier foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen if it had exercised due care. Indirect damage and consequential damage resulting from defects in the subject matter of the contract shall also only be eligible for compensation if such damage is typically to be expected when the subject matter of the contract is used as intended.

4. in the event of liability for simple negligence, the supplier’s obligation to pay compensation for property damage and resulting further financial losses shall be limited to an amount of EUR 5,000,000 per claim, but no more than EUR 10,000,000 per insurance year.

5. the above exclusions and limitations of liability shall apply to the same extent in favour of the supplier’s executive bodies, legal representatives, employees and other vicarious agents.

6. insofar as the supplier provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by the supplier, this shall be provided free of charge and to the exclusion of any liability.

7. the limitations of this Clause XI shall not apply to the liability of the Supplier and the liability of the persons named in Clause 5 for intentional behaviour, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.

XII. Statute of limitations

1. the limitation period shall commence upon acceptance – or if no acceptance has been agreed or is owed upon delivery – and shall be

a)one year from delivery in the case of claims arising from material defects;

b)two years for claims arising from defects of title, if the defect of title does not lie in a right of a third party, on the basis of which the third party can demand the return of the software or demand the cessation of its use;

c)two years in the case of claims for damages or compensation for futile expenditure not based on material defects or defects of title; the period shall commence at the time at which the client became aware of the circumstances giving rise to the claim or should have become aware of them without gross negligence.

2. the limitation period shall commence at the latest upon expiry of the maximum periods specified in § 199 BGB. Paragraph 1 shall not apply to damages and reimbursement of expenses arising from wilful conduct, gross negligence, warranty, injury to life, limb and health and claims under the Product Liability Act.

XIII Special provisions for training courses

1. the supplier shall provide training services as online seminars or face-to-face events in the field of information technology on the basis of a separate order. The Supplier’s services are services pursuant to §§ 611 et seq. BGB. Successful training is not owed.

2. the training fee includes participation in the event, the training or seminar documents and – if announced – the conference drinks, lunch or, if applicable, evening snacks. A certificate of attendance is also included. Each participant shall be provided with their own workstation at the supplier’s training centre for the duration of the training.
Unless otherwise stipulated in individual contracts, special conditions such as early booking discounts, promotional discounts or other benefits cannot be combined with other discounts or other benefits such as those from framework agreements concluded with the customer.

3. registration for training shall be deemed to have been accepted when the Supplier issues the confirmation of registration. The Supplier may accept registrations within 14 days of receipt.

4. confirmed registrations can be cancelled in writing free of charge up to 14 days before the start of the training course – the date of receipt of the cancellation by the Supplier shall be decisive – after which the Supplier shall charge a fee of 50% of the training costs. If no written cancellation is made at least 7 days before the start of the training, the Supplier shall invoice the Customer for the full training fee. It is possible to register a replacement participant up to before the start of the event. If the customer was granted special conditions such as early booking discounts, promotional discounts or other benefits for the cancelled training course, these shall no longer be valid for new registrations for other training courses by the customer and are therefore not transferable in the event of cancellation by the customer. The same shall also apply in the event of cancellation of the training course by the Supplier pursuant to Section XIII (5).

5. a training course may be cancelled for good cause, e.g. if the number of participants is too low, if a speaker is unable to attend or falls ill, or in the event of force majeure. If the number of participants is too low, the cancellation shall be made no later than two weeks before the start of the event. In all other cases of cancellation for good cause and in cases of necessary changes to the programme, in particular a change of lecturer, the supplier shall inform the participants as early as possible. If, in exceptional cases, a training course has to be cancelled or postponed, the Supplier shall immediately refund the participation fee paid. Further claims are excluded. Liability in accordance with Clause XI (7) shall remain unaffected by this.

6. the supplier’s training documents – in whatever form – are protected by copyright and may not be reproduced or distributed – even in part – without the supplier’s consent. The Supplier reserves all rights in this respect. The training documents are exclusively available to the participants.

7. the supplier shall be free to choose the persons it deploys for the training courses. It shall ensure that the persons it deploys are sufficiently qualified to provide the service. If and insofar as the Supplier has named persons whom it intends to deploy for the provision of services, this shall correspond to the planning status at the time of naming. There is no entitlement to the deployment of the named persons. The persons deployed by the Supplier to provide the service are not subject to the Client’s authority to issue instructions. This applies in particular insofar as persons deployed by the Supplier provide the services on the Client’s premises.

XIV Beginning and end of the Client’s rights

1. ownership of delivered items and rights in accordance with Section VI. shall only pass to the client upon full payment of the contractual remuneration. Prior to this, he only has a provisional right of use, which is only subject to the law of obligations and can be revoked in accordance with paragraph 2.

(2) The Supplier may terminate the rights under Section VI for good cause. Good cause shall be deemed to exist if, taking into account all circumstances of the individual case and weighing the interests of both parties, the Supplier cannot reasonably be expected to continue to use the software on the Customer’s premises, in particular if the Customer is in material breach of Clause VI.

In the event of termination in accordance with this Section XIV.2, all licences granted shall expire immediately.

3. if the rights under clause VI. do not arise or if they end, the Supplier may demand the return of the items provided or written assurance that they have been destroyed, as well as the deletion or destruction of all copies of the items and written assurance that this has been done.

XV Confidentiality and data protection

1. the contracting parties undertake to treat as confidential all confidential information (e.g. software, documents, information) which they receive or become aware of from the other contracting party before or during the execution of the contract, which is legally protected or contains business or trade secrets or is designated as confidential, even after the end of the contract. Exempt from the duty of confidentiality is information that is demonstrably

– are in the public domain or become so without any action on the part of a contracting party;

– is disclosed to a contracting party from a source that is not obliged to maintain confidentiality vis-à-vis the other contracting party;

– must be disclosed due to mandatory legal provisions and/or court or official orders.

2. the contracting parties shall store and secure this Confidential Information in such a way that access by third parties is excluded.

3. the contracting parties shall make the Confidential Information accessible only to those employees and other third parties who require access in order to fulfil their official duties. They shall instruct these persons about the confidentiality of the Confidential Information.

4. the Supplier shall process the Client’s data required for business transactions in compliance with data protection regulations. The Supplier may name the Client as a reference customer after successful completion of the services.

XVI Final provisions

1. the exclusive place of jurisdiction for all disputes arising from the business relationship between the Supplier and the Customer shall be Hamburg. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.

2 The relations between the Supplier and the Customer shall be governed exclusively by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) and the conflict of laws rules of private international law shall not apply and their applicability is excluded.

3. to the extent that the contract or these General Terms and Conditions of Delivery and Service contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery and Service if they had been aware of the loophole.

Bielefeld August 2021