General terms and conditions of business

General Part

§ 1 Scope of Application

1. These general terms and conditions apply to all contractual relationships entered into by COM.Create GmbH, Körberheide 101, 48157 Münster (hereinafter referred to as "Provider") with its customers.

2. The Provider offers various services in connection with its own software and the software of certain third parties, including but not limited to the distribution of software, custom programming and customization of software, installation, porting, and conversion of software, as well as software support.

3. The scope of services is determined in each case by these GTC and the respective offer of the Provider. In the event of contradictions, the offer takes precedence over these GTC.

4. If the customer is a merchant, a legal entity under public law, or a special fund under public law, these GTC shall also apply to future business relations with the customer, without the Provider having to refer to them in each individual case. The same applies if the customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code).

5. These general terms and conditions apply exclusively. Deviating, conflicting or supplementary conditions of the customer shall only become part of the contract to the extent that the Provider has expressly agreed to their validity. This requirement for consent applies in all cases, for example, even if the Provider performs the services unconditionally in the knowledge of the customer's conditions.

§ 2 Conclusion of Contract

1. The Provider's offers are – unless expressly marked otherwise – non-binding and without obligation.

2. The contract is concluded upon acceptance of the offer by the customer, as soon as the Provider expressly confirms the order or starts executing the order in a manner evident to the customer.

§ 3 Order Processing

Insofar as the Provider is commissioned by the customer to process personal data, the Provider's data processing agreement applies. This can be accessed at Data Processing Agreement.pdf .

§ 4 Consulting Services of the Provider

1. Insofar as the Provider renders consulting services and/or supports the customer's development projects in an advisory capacity, the responsibility for the success of the supported project remains with the customer.

2. The consulting services of the Provider are services according to §§ 611 ff. BGB (German Civil Code).

3. Consulting services do not require acceptance by the customer.

§ 5 Subcontractors

1. The Provider may use third parties (\"Subcontractors\") to perform its services.

2. The Provider will structure the agreements with its Subcontractors in such a way that they are in compliance with the provisions of this contract. The Provider also ensures that the Subcontractors used are sufficiently qualified to perform the services.

3. The Provider is liable for the actions of a Subcontractor as for its own actions.

§ 6 Confidentiality

1. The parties agree to maintain confidentiality regarding confidential information.

2. \"Confidential Information\" refers to all information and documents of the respective other party, which are marked as confidential or are to be regarded as confidential due to the circumstances, in particular information about the respective party's products, including object codes, documentation, and other materials, operational processes, business relationships, and know-how, as well as all work results.

3. The obligation to maintain confidentiality of confidential information shall continue for a period of three years after the termination of the contract.

4. Excluded from this obligation are such confidential information,

   1. which were already known to the recipient at the conclusion of the contract or which are subsequently made known by a third party without thereby violating a confidentiality agreement, legal regulations, or regulatory orders;

   2. which are publicly known at the time of the conclusion of the contract or are subsequently made public, provided that this is not based on a violation of this contract;

   3. which must be disclosed due to legal obligations or by order of a court or an authority. To the extent permissible and possible, the party obliged to disclose shall inform the other party in advance and give it the opportunity to contest the disclosure.

5. The parties will only grant access to confidential information to those persons who have previously been imposed with obligations corresponding to the confidentiality obligations of this contract. Furthermore, the parties will only disclose confidential information to those persons who need to know it for the execution of the contract.

§ 7 Reservation of Modification

1. The Provider is entitled to modify the GTC during the term of the contract. Changes will only be made for valid reasons, particularly due to changes in the legal situation.

2. The Provider will provide the customer with the modified GTC in text form and specifically point out the changes. At the same time, the Provider grants the customer a reasonable period to declare whether they accept the modified GTC for further use of the services. If no declaration is made within this period, the modified GTC are deemed as agreed upon. The Provider will explicitly inform the customer of this legal consequence at the beginning of the period. If the customer objects to the modification of the GTC within the period, the Provider is entitled to terminate the contract extraordinarily at the end of the period.

§ 8 Liability

1. The Provider is liable without limitation:

   • in case of deceit, intent, or gross negligence;

   • within the scope of a guarantee expressly assumed by him;

   • for damages resulting from injury to life, body, or health;

   • for the breach of a fundamental contractual obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the observance of which the customer regularly relies and may rely ("cardinal obligation"), however, limited to the damage reasonably foreseeable at the time of the conclusion of the contract;

   • according to the provisions of the Product Liability Act.

2. Otherwise, the liability of the Provider is excluded.

3. The above liability rules apply accordingly for the behavior of and claims against employees, legal representatives, and agents of the Provider.

§ 9 Miscellaneous

1. The law of the Federal Republic of Germany shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

2. Offsetting is only permissible against undisputed or legally established claims of the Provider.

3. The parties may transfer this contract as well as rights and obligations from it only with the prior consent of the other party.

4. If the customer is a merchant, legal entity under public law, or a public-law special fund, the exclusive place of jurisdiction shall be the Provider's place of business.

5. Should individual provisions of the contract be or become wholly or partly invalid or unenforceable, this shall not affect the validity of the remaining provisions of this contract. The parties will replace the invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible legally and economically to the provision that they would have reasonably agreed upon, had they considered the invalidity or unenforceability of the respective provision at the time of the conclusion of this contract. The same applies in the event of a gap in the regulation.

Special Provisions for the Distribution of Software

§ 1 Scope of Application

These special provisions apply to contracts for the provision of pre-existing software on a permanent or temporary basis.

§ 2 Subject of the Contract

1. The subject of the contract is the temporary provision of the software or the provision of the software on a permanent basis for a fee, combined with the granting of usage rights to it.

2. The software is provided in object code only. Provision of the source code is not owed.

3. The nature of the software is conclusively determined by the service description.

4. Except where the offer or service description expressly designates a guarantee as such, the provider does not grant any guarantees.

§ 3 Requirements

Insofar as the provided software is a plugin for a software system of the provider or a third party, the use of the software necessarily requires the installation of this software system with an appropriate license.

§ 4 Provision for a Limited Period; Maintenance

1. Insofar as the provider provides the software for a limited period corresponding to the contract term, he is obliged to maintain the software's agreed-upon characteristics during the contract term.

2. The provider is only obliged to change or adapt the software if such a change or adaptation is necessary for maintenance. Otherwise, the provider is only obliged to change, adapt, and further develop the software if the parties have separately agreed on this. Without such a separate agreement, the provider is particularly not obliged to further develop the software.

3. The customer is obliged to take appropriate measures to ensure that unauthorized third parties do not have access to the software, any backup copies, the

documentation, and other accompanying materials provided.

§ 5 Granting of Rights

1. If the provider provides the software for a limited period corresponding to the contract term, he grants the customer, upon full payment of the agreed license fee, the non-exclusive, non-transferable and non-sub-licensable right, limited to the contract term, to use the software for its own business purposes.

2. If the provider provides the software on a permanent basis, he grants the customer, upon full payment of the agreed purchase price, the non-exclusive, non-transferable and non-sub-licensable, unlimited right to use the software for its own business purposes.

3. If the software is provided for the limited duration of the contract term, the customer is not entitled to sell the software to third parties or to provide it to third parties in any other way (especially by renting or lending). Excluded from the prohibition of resale and provision of the software to third parties is the provision of the software to such third parties who are not granted an independent right of use and who are subject to the customer's instructions regarding the use of the software.

4. The customer is not entitled to modify or edit the software, unless the modification or editing is necessary for the contract-compliant use of the software and is to remedy a defect for which the provider is in delay.

§ 6 Contract Term, Termination

1. Unless otherwise agreed, the contract for the temporary provision of the software has an initial fixed term of 12 months. Thereafter, the contract term automatically extends for another 12 months, unless the contract is terminated by one of the parties with a notice period of 3 months at the end of the respective contract term.

2. The right of both parties to extraordinary termination for important reasons remains unaffected.

   Termination must be in text form.

3. Upon termination of the contract, the customer is obliged to cease using the software and to completely and permanently delete all installed copies of the program and any stored documentation from all his servers.

4. Any use of the software after the end of the contract is prohibited.

§ 7 License Fee

1. If the provider provides the software for a limited period corresponding to the contract term, the customer is obliged to pay a monthly fee in the agreed amount plus the applicable value-added tax for the provision of the software.

2. The license fee owed by the customer is – unless otherwise agreed - to be paid in advance and becomes due for payment on the 1st working day of each month.

3. The amount of the fee and the payment modalities are determined by the offer underlying the provision of the software by the provider.

4. All prices are net plus legally applicable value-added tax.

Special Provisions for Custom Programming

§ 1 Scope of Application, Subject of the Contract

1. The following special provisions apply to contracts for custom programming by the provider for customers, especially software creation and customization.

2. The subject of the contract is the creation and customization (Customizing) of software according to customer specifications (hereinafter referred to as “Project”).

3. Without express agreement, the provider is not obligated to install, set up, maintain, or further develop the development result.

§ 2 Service Description

1. The provider will create an initial service description for each project regarding the development goal and document it as an implementation proposal in text form.

2. The project and the resulting development result are created individually for the customer. The provider is permitted to integrate third-party and open source software components into the development result, as long as this does not restrict the customer's ability to contractually exploit the development result.

3. The contractual software as part of the development result is to be provided to the customer entirely in object code. Provision of the source code occurs only if and to the extent expressly agreed upon.

§ 3 Cooperation Services

1. The customer must adequately support the successful creation of the development result in every phase through active cooperation actions.

2. The customer will especially provide the provider with the information and data from his sphere necessary for the proper production of the development result in a timely manner and, if necessary, allow the provider's employees reasonable access to his business premises during business hours.

3. If the customer does not provide agreed cooperation services on time or properly, agreed performance dates may be extended accordingly.

4. The customer's cooperation services are genuine contractual obligations, not just duties.

§ 4 Handover and Acceptance

1. The provider will make the development result available for acceptance testing on the scheduled date.

2. The customer accepts the development result if it has been fully provided for acceptance testing and is free from material and legal defects, in particular, fulfills the agreed acceptance criteria.

3. Insignificant defects do not entitle refusal of acceptance. Defects identified during the acceptance test should be documented by the parties.

4. The customer may declare acceptance expressly or through conclusive action. The development result is considered accepted if the customer

   1. uses the contract software productively or with real data, unless the use is exclusively for the purpose of acceptance testing; or

   2. does not refuse acceptance within two weeks of the full provision of the development result for acceptance testing due to not only insignificant defects or does not declare justified reservations against the acceptability of the contract services.

5. If acceptance fails, the customer provides the provider with a detailed list of all defects preventing acceptance. After a reasonable period, the provider must provide a defect-free and acceptable version of the development result. During the subsequent examination, only the documented defects will be checked, as far as they can be the subject of an isolated examination in terms of their function.

6. Upon acceptance, the risk of accidental loss and accidental destruction of the development result transfers to the customer.

§ 5 Granting of Rights

1. Unless expressly agreed otherwise, the following regulations apply to the granting of rights by the provider to the customer.

2. Upon acceptance and full payment of the agreed license fee, the provider transfers to the customer the non-exclusive, non-sub-licensable, unlimited in time and space right to use the contractual software for its own business purposes.

3. The customer is not entitled to modify or edit the contractual software without the express consent of the provider, unless the modification or editing is necessary for the contractual use of the software to remedy a defect for which the provider is in delay.

4. If the development result contains open source components, only the respective relevant open source license terms apply.

§ 6 Change Requests

1. Until acceptance, the customer can at any time in writing request changes to the requirements for the development result. The provider may propose changes.

2. The provider will examine the customer's change requests within a reasonable period. If the examination of the change request requires effort by the provider, the provider is entitled to reasonable compensation for expenses.

3. During the examination, the provider continues the work, unless the customer expressly requests an interruption. Agreed deadlines (schedule of activities and deadlines) are extended by the duration of the requested interruption and a reasonable restart time.

4. The provider will communicate the result of the examination of a change request within a reasonable period, at the latest within ten working days from the receipt of the change request. If the change request is reasonable and feasible for him, the provider will offer its implementation under reasonable conditions.

5. If the customer maintains the change request after receiving the provider's offer, its implementation is thus agreed upon.

6. Agreed changes in services are to be documented by the parties as contract amendments in a suitable form.

§ 7 Remuneration and Payment Terms

1. Unless otherwise agreed, the provider receives from the customer a fixed price compensation for the defect-free production and provision of the complete development result. The amount of the compensation is determined by the provider's offer.

2. The fixed price compensation is due in several installment payments. The details are specified in the respective offer of the provider.

3. If the parties agree on billing based on actual effort, the provider will send the customer a statement of expenses for the previous billing period by the third working day of a billing period. The individual items are to be assigned to a service from the

   service description, as far as it has already been created.

4. The customer reimburses the provider for reasonable and proven travel and accommodation expenses, incurred in the course of performing services under the contract. Details, if applicable, can be found in the provider's offer.

5. Invoices are exclusively provided as online invoices in a common electronic format. The customer enters into default of payment – unless otherwise agreed - 14 days after receiving the invoice.

6. Unless otherwise indicated, all prices are net plus legally applicable value-added tax.

Special Provisions for Installation, Porting, Conversion

§ 1 Scope of Application

The following special provisions apply to contracts for services regarding the installation, setup, porting, or conversion of software for customers by the provider.

§ 2 Service Description

The provider will create an initial service description regarding the agreed services and document it as an implementation proposal in the offer.

§ 3 Cooperation Services

1. The customer must support the implementation of the services owed by the provider through active and reasonable cooperation actions.

2. The customer will especially provide the provider with the necessary information, documents, data, and other means required for proper execution and, if necessary, allow the provider's employees access to his business premises during business hours, as far as it is necessary for fulfilling the contract purpose.

3. The customer is aware that there may be unavoidable outages due to the provider's work depending on the case. The provider will inform the customer in advance of such outages.

4. The customer must independently ensure proper data backup (Backup).

5. If the customer does not fulfill his cooperation obligations and thus the provider cannot complete its services wholly or partly within the agreed time, the agreed period will be appropriately extended.

6. The customer's cooperation represents genuine contractual obligations, not just duties.

§ 4 Acceptance

1. The provider will inform the customer when the contractually owed services have been performed. He thus makes them available for acceptance testing on the scheduled date.

2. The customer accepts these services if they are complete and free of material and legal defects.

3. Insignificant defects do not entitle refusal of acceptance. Defects identified during the acceptance test should be documented by the parties.

4. The customer may declare acceptance expressly or through conclusive action. Acceptance is considered given if the customer

   1. Uses the affected software productively or with real data after completion of the contractual services, unless the use is exclusively for the purpose of acceptance testing; or

   2. does not refuse acceptance within two weeks of provision for acceptance testing due to not only insignificant defects or declares justified reservations against the acceptability of the contractual services.

5. If acceptance fails, the customer provides the provider with a detailed list of all defects preventing acceptance. After a reasonable period, the provider must provide a defect-free and acceptable version. Only the documented defects will be checked during the subsequent examination, as far as they can be the subject of an isolated examination in terms of their function.

6. Upon acceptance, the risk of accidental loss and accidental destruction transfers to the customer.

§ 5 Remuneration and Payment Terms

1. Unless otherwise agreed, the provider receives from the customer a fixed price compensation for the defect-free provision of installation, setup, porting, or conversion services. The amount of the compensation is determined by the provider's offer.

2. The fixed price compensation is due in several installment payments. The details are specified in the respective offer of the provider.

3. If the parties agree on billing based on actual effort, the provider will send the customer a statement of expenses for the previous billing period by the fifth working day of a billing period. The individual items are to be assigned to a service from the service description, as far as it has already been created.

4. The customer reimburses the provider for reasonable and proven travel and accommodation expenses incurred in the course of performing services under the contract. Details, if applicable, can be found in the provider's offer.

5. Invoices are exclusively provided as online invoices in a common electronic format. The customer enters into default of payment – unless otherwise agreed - 14 days after receiving the invoice.

6. Unless otherwise indicated, all prices are net plus legally applicable value-added tax.