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General Terms and Conditions for Planning Services of Ingenics AG

1. General, area of application

(1) The present General Terms and Conditions for Planning Services (in German: Allgemeinen Geschäftsbedingungen für Planungsleistungen – hereinafter "Terms and Conditions") shall apply for all planning services (hereinafter "Services") carried out by Ingenics AG, Schillerstrasse 1/15, 89077 Ulm or by any legal successor to that company (hereinafter "Ingenics") in business transactions with companies in the sense of section 14 BGB (German Civil Code), legal persons under public law and public-law special funds (hereinafter "the Customer") in the context of special contracts. Ingenics and the Customer are hereinafter also referred to as the "Parties".
(2) Agreements between the Customer and Ingenics and individual orders relating to Services shall be regulated exclusively by these Terms and Conditions and any other agreements concluded in writing. The Terms and Conditions shall also apply with regard to ongoing business relations between Ingenics and the Customer even if they have not been expressly agreed between the Parties.
(3) Any general terms and conditions of the Customer conflicting with the scope of this applicability or that deviate from the Terms and Conditions are hereby cancelled, unless Ingenics has given its express consent to their applicability in writing. The Terms and Conditions shall also apply if Ingenics has provided some performance without objection in awareness of any conflicting General Terms and Conditions of the Customer or that deviate from these Terms and Conditions.
 

2. Concluding the agreement
(1) All offers by Ingenics are non-binding and subject to alteration unless expressly indicated as being binding.
(2) With its order, the Customer makes a binding declaration that it wishes to commission the ordered Services or deliveries. Ingenics is entitled to accept the contract offer contained in the order within two weeks of receipt. Acceptance can be declared in writing or in electronic form.
 

3. Scope of performance, performance periods, default
(1) The scope of the contractually owed performance is determined by the Ingenics order confirmation, if issued, including these General Terms and Conditions. Any oral undertakings or agreements prior to the order confirmation are not binding and are considered supplanted by the order confirmation, unless it is unequivocally indicated therein that they are binding.
(2) Ingenics shall provide its performance according to the generally recognised rules of technology, with the normal care exercised in the sector and in compliance with the statutory regulations that are mandatory at the time the agreement is concluded. Compliance by Ingenics with its contractual obligations shall require punctual and proper cooperation by the Customer.
(3) Performance deadlines and timetables are binding only if they have been agreed as binding in the agreement and if the Customer has communicated or made available to Ingenics all information and documents necessary for rendering the service. Ingenics' obligations to provide performance shall be suspended for as long as the Customer is in delay with fulfilling its obligations towards Ingenics. In the case of culpable infringement of cooperation obligations on the part of the Customer, Ingenics shall be entitled to compensation for the resulting loss, including any additional expenses. The above does not prejudice the right to make further claims.
(4) If binding performance timetables and deadlines cannot be met for reasons for which Ingenics is not responsible (non-availability of the performance), Ingenics shall notify the Customer thereof without, while at the same time indicating the probable, new performance timetable. Performance periods and deadlines shall be prolonged or extended by the duration of the non-availability of the performance. Cases of non-availability of the performance in this sense shall be in particular unforeseeable, unavoidable circumstances that are outside the influence of Ingenics as well as events such as force majeure, war, natural disasters or labour disputes; these shall release Ingenics from its obligation to provide punctual performance as long as they continue. The Customer shall be notified in some suitable way of any occurrence of such a hindrance. If the end of the hindrance cannot be foreseen or if it lasts longer than two months, each party shall be entitled to withdraw from or to cancel the agreement. There can be no claims for damages unless Ingenics is guilty malice aforethought or gross negligence.
(5) Otherwise default on the part of Ingenics shall be regulated according to statutory provisions; a written reminder must, however, in each case be first issued by the Customer.
 

4. Cooperation obligations
(1) The Customer is obliged to support Ingenics in rendering its Services to the required extent and to carry out in full and in good time all practical measures to this end.
(2) This includes in particular the Customer's obligation to provide to Ingenics the required information and documents and, when necessary for rendering of the performance due, to allow access to its property, plants or other premises of the Customer.
(3) If the Customer fails to provide its cooperation obligation, Ingenics can demand the required cooperation while setting a suitable grace period. If the Customer nevertheless continue to be in default of its cooperation obligations, Ingenics shall be entitled to withdraw from the agreement and to demand compensation for all expenses incurred up to that time.
 

5. Remuneration, payment
(1) Unless expressly agreed otherwise in some specific case, the prices according to the current Ingenics price list at the time the contract is concluded shall apply for all services and deliveries indicated therein.
(2) The remuneration for the performance rendered by Ingenics shall, unless otherwise agreed between the Parties, be invoiced after acceptance and is due for payment without deduction 14 days from the invoice date. The date of payment shall be the date payment is received by Ingenics.
(3) If the Customer is in default of payment, Ingenics shall be entitled to charge default interest at the currently applicable statutory rate. Ingenics expressly reserves the right to provide evidence of and claim compensation for higher damages due to this Customer default. The above shall not prejudice the statutory claim for commercial maturity interest (section 353 HGB – German Civil Code) against merchants.
(4) The Customer is entitled to set off claims only if the Customer's counterclaim is undisputed or has been legally established.
(5) If it becomes evident after the agreement is concluded that the claim for remuneration is at risk by a lack of solvency on the part of the Customer, Ingenics shall be entitled to provide any outstanding performance only against payment in advance or against collateral. If the advance payments or collateral have not yet been provided after a suitable additional period for fulfilment has expired, Ingenics shall be entitled to withdraw from the agreement in part or in full. The above shall not prejudice the right to make further claims.
 

6. Acceptance
(1) Immaterial defects or non-substantial incompleteness, in particular when these impair the contractually agreed or assumed use of the performance only to an insignificant extent or that remain below the agreed or the composition assumed or characteristics expected by the Customer only to an insignificant extent, shall not be considered obstacles to acceptance.
(2) If the Customer fails to accept the performance even if it fulfils the contractual requirements, Ingenics shall be entitled to demand acceptance by the Customer within a suitable additional period set by Ingenics. If the Customer fails to accept the performance within this additional period, the performance shall nevertheless be considered accepted.
 

7. Rights of use
(1) Ingenics grants the Customer a non-exclusive, non-transferrable right of use, without any restrictions in terms of time or territory, to any and all copyrights and other intellectual property rights arising in relation to the results of the performance, unless and insofar as is not otherwise agreed between the Parties.
(2) The Customer is not entitled to issue sub-licenses, to publish, duplicate, distribute or present the performance provided by Ingenics.
(3) Insofar as employees and/or third Parties are employed by Ingenics when rendering its performance, Ingenics shall acquire any rights of use they may have and transfer these to the Customer within the scope of paragraph (1).
(4) Remuneration for the grant of rights of use is considered covered by the agreed fee.
 

8. Warranty; liability
(1) Unless otherwise contractually agreed, the performance is considered free of defects when it is suitable for normal use and shows characteristics that are normal for performance of the same kind and that the Customer can expect. Ingenics guarantees in this regard merely that the recognised rules of technology and the normal duty of care for the sector are observed and that the agreed performance is provided with qualified personnel; but not that the work provided is suitable for a certain purpose or for further processing or utilisation of the performance by the Customer, unless this has been expressly agreed.
(2) Unconditional acceptance of the performance precludes all rights and claims of the Customer in connection with regard to defects that were already evident at the time the performance was accepted. There can be no claims in relation to defects that were not evident at the time the performance was accepted if the Customer failed to notify Ingenics of the defect in writing without delay after it is discovered.
(3) Warranty claims of the Customer shall expire in cases pursuant to section 634a (21) number 2 BGB in five years; in all other cases one year after the performance has been accepted.
(4) Otherwise Ingenics has unlimited liability for cases of damage to life, limb or health, in the case of claims pursuant to Produkthaftungsgesetz (ProdHG – German Product Liability Act) and of other breaches of obligations due to malice aforethought or gross negligence.
(5) In the case of material and financial damage caused by simple negligence, Ingenics shall be liable only if certain essential contractual obligations have been breached. Essential contractual obligations in this sense are such obligations that have to be fulfilled if the agreement is to be correctly executed, in particular therefore the obligation to provide a service free of defects and that is suitable for use.
(6) In the case of breach of essential contractual obligations, Ingenics' liability is limited to a total amount of EUR 1,000,000.00, but at most to the foreseeable damage typical for such an agreement.
 

9. Cancellation
(1) Ordinary cancellation of the agreement can be served when the agreed notice period is observed.
(2) Both Parties can cancel the agreement for an important reason. An important reason for cancellation by Ingenics shall apply especially when the Customer is repeatedly in arrears of payment. Another important reason for Ingenics in this sense is if the Customer discontinues payments or if insolvency proceedings are commenced against the Customer's assets.
(3) Every cancellation must be in writing.

10. Concluding provisions
(1) The agreement and all associated non-contractual claims are subject to the law of the Federal Republic of Germany; conflict of laws shall not apply.
(2) The legal venue for all disputes arising from or in connection with the agreement is, if legally admissible, Ulm.
 

Version: 08/2017