T&C

General Terms and Conditions

... of Business of webix solutions GmbH

NOTE: This translation is for information purposes only. The relationship between the parties will be determined solely by the German version.

§ 1 Validity of the terms and conditions

1. The webix solutions GmbH (referred to in the following as "webix") provides its services exclusively on the basis of these General Terms and Conditions of Business. These also apply for all future business relationships, even if they are not expressly agreed upon. Any deviating purchase conditions or other conditions of the contract partner are expressly not recognized.

2. Subsidiary agreements, assurances and any other agreements or modifications or supplements to these terms and conditions of business can only come into effect if they are in written form.

§ 2 Offering, contractual relationship

1. Our offerings are conditional and not binding.

2. With orders or service and manufacturing contracts which exceed a sum of 10,000.—Euro, webix is authorised to demand appropriate partial payments.

3. For the scope of the delivery our order confirmation is definitive, or the jointly drafted specification, or the webix offer, without modification, which was accepted by the contract partner.

4. The prices apply in accordance with the offer or order confirmation by webix. Additional services outside the scope of the offer which are ordered subsequently shall be charged at the currently applicable webix hourly rates.

5. All templates required for creating HTML pages, flash films, Java scripts, databases and programs (figures, graphics, existing buttons, scripts, logos, data etc.) shall be provided by the contract partner in electronic form. Unless otherwise agreed, the TIF format (format IBM-PC) shall be used for graphics. Any resulting additional costs shall be charged according to outlay. The current webix hourly rates shall apply here.

6. If a binding completion deadline is specified but is exceeded, the contract partner can twice set an appropriate grace period in writing by means of registered mail/note of delivery (see § 11) and withdraw from the agreement if these grace periods elapse without effect.

7. Agreements for Web hosting are concluded for a period of one year. If the agreement is not cancelled by the contract partner or webix three months before the end of its validity period or of an extension period, it shall be extended by a further year.

8. Cancellations must be made in writing.

§ 3 Liabilities and obligations of the contract partner, management of domain names

1. The contract partner shall support webix in providing the services required in the agreement to the required extent and to the best of his/her ability, in particular - providing the required information and materials to satisfy the requirements for the work products to be created in good time and as required and in the appropriate form, - implementing and providing information on decisions relating to design proposals made by webix promptly and by the required deadline, - transferring necessary materials and documents (texts, figures, graphics etc.) requested by webix promptly and by the required deadline in the form required, - releasing the employees named for coordination of the requirements for the work products and for other coordination functions from other tasks for the period required.

2. If a cooperative action which is the duty of the contract partner is delayed, regardless of the reason, any execution dates and deadlines that are to be met by webix and depend on the related cooperative action shall be deferred accordingly.

3. If the contract partner defaults on a cooperative action for which he/she is responsible, webix shall be authorised to charge any extra costs resulting from this on the basis of the current rates for extras services. In this case webix shall also be authorized to cancel the agreement, having given notice in writing, after an appropriate period for an important reason. The agreement must be cancelled in writing. In the event of cancellation, webix retains its claim to the payment agreed for the cancelled services minus the expenses which webix saves through the cancellation.

4. The contract partner is obliged to use the services of webix in an appropriate manner. In particular, he/she is obliged - to notify webix immediately of any changes to the fundamental aspects of the agreement; - not to misuse the access options to the webix services and to refrain from illicit and/or unlawful activities. In particular, this covers refraining from attempting * to distribute licensed application software for individual applications via the webix services without authorisation, * to interrupt or block communication services, for example by means of overloading, insofar as the customer is responsible for this, * to distribute or make accessible criminal content of any kind via the webix services. This applies in particular for pornographic content, content that promotes violence, or content that is contrary to basic democratic freedoms or the idea of international understanding, as well as to propaganda and symbols of anti-constitutional parties and organisations and their substitute organizations, * to obtain pornographic content, either for the purposes of the user or third parties, which deals with the sexual abuse of children; - to notify webix immediately of recognisable defects or damage (fault reports) and to take all measures which enable the defects or damage to be detected or which facilitate and expedite correction of the fault; - to compensate webix for the expenses entailed in checking its facilities after a fault report has been issued if and insofar as an examination shows that the fault is the responsibility of the contract partner; - to repay webix for any material or personnel-related outlay and expenses in the event of the agreement being infringed.

5. webix fundamentally only supplies non-binding information about the availability of a domain. Assignment to a third party by DENIC or another organisation can occur between information being provided and registration without webix having any influence on or any knowledge of this. webix accepts no liability and provides no guarantee for the assignment of the domain names ordered or for its assignment to another party.

6. The contract partner expressly agrees that for the duration of the hosting agreement webix shall be entered as Tech-C at the registration centre responsible (for example DENIC or Inter-NIC). The contract partner is the sole domain owner. No KK carryforward to other providers by webix or a change of user is possible for any domains (with the exception of the .de domains). Deletion at the registration centre responsible is called for here after the hosting agreement has terminated.

§ 4 Trademark protection of the domain name

1. The contract partner assures that to the best of his/her knowledge no rights of third parties will be violated and no unlawful aims be pursued by registering or connecting the domain name and loading his/her pages onto the internet. The contract partner acknowledges that he/she alone is responsible for the selection of the domain name and declares that he/she is prepared to release webix from all claims for damages by third parties in conjunction with domain name registration or connection. Should third parties lay claim to rights for the domain name, webix reserves the right to block the domain name in question until there has been legal clarification.

§ 5 Liability and limitation of liability

1. webix bears no liability for delivery delays and service interruptions caused by company-internal strikes or lockouts.

2. In the event of failures resulting from faults that are outside the area of responsibility of webix, expenses shall only be reimbursed if the failure period lasts more than 3 weeks.

3. Claims for damages because the service cannot be provided or resulting from positive requirement transgression, negligence when the agreement is signed and inadmissible action cannot be lodged against webix or in relation to webix’s vicarious or transaction agents insofar as no intentional or grossly negligent action is involved.

4. webix is not liable for damage resulting from webix services not being provided owing to force majeure or industrial disputes. webix is not liable for lost profit or indirect damage, whether incurred by the customer or third parties.

5. webix bears no liability for information transferred by way of its services, nor for its completeness, correctness or currency, nor that it is exempt from the rights of third parties or that the sender acts unlawfully by transferring the information.

6. In the event of webix being liable for damages owing to damage caused by gross negligence on the part of webix and in cases of liability owing to a promised feature not being provided or transgression of a major obligation, the sum of webix’s liability is limited in accordance with the order value.

7. The contract partner is liable for all consequences or losses incurred by webix or third parties through abuse or unlawful use of the webix services or that result from the contract partner not fulfilling his/her obligations.

8. Neither the contract partner nor webix is liable for failure to perform or delay insofar as this is entirely or partly the result of force majeure, for example war or similar situations, disruptions of operation, lack of staff, energy or raw material, strikes, lockouts, transport holdups and instructions from the legislative power. For the durations of these disturbances and their effects, webix is released from any delivery obligation and, when normal conditions once more apply, is authorised to decide whether to supply the agreed quantity or withdraw from the agreement. If the disturbance lasts more than 8 weeks, this also authorises the contract partner to withdraw from the agreement insofar as no delivery has taken place.

§ 6 Warranty and liability for software

1. If the service provided by webix in accordance with the agreement has a material defect which impairs proper use of the service by the contract partner to more than an inconsiderable degree and the cause lies in webix’s area of responsibility, webix shall correct this defect within an appropriate time after the defect has been described in a form that is understandable for webix.

2. If the attempt to correct the defect in accordance with item 1. remains unsuccessful after three tries and webix fails to respond to the request to correct the defect three times within an appropriate time, the contract partner is entitled to cancel the agreement with immediate effect after an appropriate grace period has elapsed which the contract partner has specified in writing by registered mail/note of delivery (see § 11), and to reduce the agreed payment by the amount corresponding to the degree to which the defect causes usage to be impaired.

3. It is expressly agreed that in the event of a justified conversion of the service provided, the hardware supplied by webix cannot be converted, but only the service in question (HTML pages, flash films, Java scripts, databases and programs).

4. webix is liable to the contract partner for ensuring that the work products to be supplied to the contract partner in accordance with the agreement are free of rights of third parties which preclude proper use of the work products by the contract partner. If third parties lay claim to such rights, the contract partner shall notify webix of this immediately. webix shall then either eliminate the third party’s contrary rights or modify the work products transferred in such a way that proper use of them can be made without violating the rights claimed. If this is not achieved within an appropriate time, the contract partner can make use of his/her lawful claims.

5. Other warranty claims are not admissible. § 5 item 6 remains unaffected by this.

§ 7 Warranty and liability for hardware

1. webix provides a 24-month warranty for all products supplied.

2. In the event of a defect or promised feature not being provided, webix reserves the right to repair the supplied product or to provide a new product. The contract partner is entitled to cancel the sales contract or reduce the purchase price only if at least 3 repair attempt by webix have failed. Webix must be notified in writing of defects in supplied goods immediately, and at most 1 week after acceptance. §§ 377, 378 of the German Commercial Code remains unaffected by this.

3. It is expressly agreed that in the event of a justified conversion of the supplied hardware, any HTML pages, flash films, Java scripts, databases and programs created by webix cannot be converted, but only the hardware in question.

4. The warranty is invalidated if operation and service recommendations from webix or which are included in the manufacturer’s instructions are not followed or consumable materials are used which do not correspond to the original specifications.

5. If the goods supplied are resold, the contract partner is not allowed to cede the warranty claims with respect to webix.

6. webix is not liable for any loss of data located on the objects handed over. webix is expressly not liable for defects and damage (also consequential damage) resulting from computer viruses (errored software which modifies or destroys other software or deletes stored data or renders it unusable). This does not apply if webix is can be shown to have acted with intent or in a grossly negligent manner.

7. webix is not liable for defects and damage to software and documentation after the packaging has been opened or the licence seal has been broken. When used goods are purchased no warranty applies. When software is supplied, both the terms and conditions of webix apply and also those of the manufacturer concerned. The contract partner expressly recognizes their validity by opening the sealed data carrier.

8. If a defect is reported in equipment both during the warranty period and after the warranty period has elapsed and it is determined that the defect is not repairable, a flat-rate charge of € 150.00 in favour of webix is taken as agreed. Any higher outlay on the part of webix remains unaffected by this.

§ 8 Licences

1. Unless otherwise agreed, the contract partner receives a single licence for the software or graphical draft which he/she has purchased or which was developed for him/her.

§ 9 Payment

1. Payments must be made within 10 days, net, unless expressly agreed otherwise. In the case of partial deliveries, too, the entire invoice amount must be paid net for the partial delivery within 10 days.

2. For a first-time order, prepayment can be requested, as is also the case if the credit limit granted is exceeded.

3. If the payment deadline is exceeded, webix is entitled, from the first payment reminder, to charge reminder payments and in addition to these interest on arrears of 3 % above the current discount rate of the Deutsche Bundesbank and to hold back further deliveries until payment is received.

4. Bills of exchange and cheques are accepted only if there is a special agreement and then only in accepting payment and at no additional expense for webix.

5. Should the contract partner’s credit rating change (for example if in the event of a credit reform the credit rating index worsens by 30 points) and webix learn of this after the agreement has been signed, or if the payment conditions are not met, webix is entitled, even if special payment targets have been agreed, to demand immediate payment of all open bills, to withdraw from the agreement either completely or partially and/or to make delivery dependent on prepayments and to require the return of products already supplied without prejudicing further claims for compensation.

6. Enforcement of rights of retention or counterbalancing with any counter claims of the contract partner is expressly excluded unless webix has recognized the contract partner’s claims in writing or the contract partner’s claims have been legally recognised.

§ 10 Right of ownership

1. webix retains the right of ownership to the goods supplied until payment has been made for all debts from the parties’ business connection, also if debts from earlier deliveries or services are concerned. The contract partner may not make use of the objects covered by the right of ownership unless these were supplied on the condition that they may be processed, integrated or resold in the proper course of business.

2. If the goods covered by the right of ownership are seized as a security or some other disposition is effected by a third party, the contract partner must inform webix in detail immediately and notify the third party of webix’s rights. Costs arising from webix’s intervention must be borne by the contract partner.

3. Handling or processing of conditional goods takes place without any obligation on the part of webix.

4. In the event of the goods being resold, the contract partner transfers to webix his/her claims with respect to his/her customer up to the volume of claims resulting from this agreement. webix is entitled and the contract partner obliged, if requested by webix, to notify the customer of this transfer in writing. In the context of extended right of ownership, the contract partner may also need to retain ownership of the objects for webix via his/her customer.

§ 11 Confidentiality, data protection

1. In accordance with § 33 para.1 of the German Data Protection Act and § 3 para.5 of the Teleservices Data Protection Act, the contract partner is instructed herewith that webix shall process his/her address automatically in machine-readable form and for tasks resulting from the agreement.

2. Insofar as webix employs third parties to provide the services offered, webix is entitled to reveal the contract partner’s data if this is required to ensure correct operation.

3. webix guarantees that all persons commissioned by webix to handle the agreement know and observe the current version of the relevant data protection regulations. The contract partner is not entitled to use the webix services to obtain for himself/herself or a third party data or information which are not intended for these people.

§ 12 Form of declarations

1. If the contract partner is a full business person in the sense of the German Commercial Code, then legally binding declarations of the contract partner, in particular withdrawal from the agreement (for whatever legal reason) and the declaration for cancelling the agreement, are only legally valid if webix receives them by registered mail and note of delivery. If the declaration is sent to webix in any other form it is disregarded.

§ 13 Concluding provisions

1. The place of performance for all contractual services is, insofar as this is legally permissible, the headquarters of the company webix in Stuttgart, Federal Republic of Germany.

2. The place of jurisdiction for all claims from and on the basis of agreements based on these General Terms and Conditions of Business, including non-payment of cheques and bills of exchange and all disputes arising between the parties with regard to the implementation of the agreement, is the headquarters of webix.

3. The law of the Federal Republic of Germany always applies for agreements signed on the basis of these General Terms and Conditions of Business.

4. All national and international legal provisions, including international agreements and EU guidelines, do not apply.

5. For contract partners who are full business persons the headquarters of webix is the place of jurisdiction for all disputes arising from this contractual relationship. This also applies for legal persons of public law or separate estate under public law. However, webix is also entitled to take legal action at the contract partner’s location.

6. In technical and contractual matters involved in the business transactions, the contract partner is obliged to contact the address given below insofar as no other or no additional contact point for technical questions is specified in the agreement. webix solutions GmbH Kronenstrasse 40 70174 Stuttgart.

7. If a provision of this agreement is or becomes completely or partially invalid or innefective, this does not affect the validity of the other provisions. Rather, the invalid provision is replaced by a replacement provision which is tailored to or at least approaches the purpose of the agreement which the parties would have signed to achieve the same business result if they had been aware of the invalidity of the provisions. The same applies analagously when provisions are incomplete.

Status March 25th, 2003