General terms and conditions of business

2 Deliveries and services
2.1 The offers of PROKODA GmbH are non-binding and subject to change. A contract is only concluded with the written order confirmation from PROKODA GmbH, but at the latest when the customer accepts the delivery.
2.2 PROKODA GmbH is entitled to deliver modified and adapted contract products that deviate from the customer's order, provided that their functionality is not impaired.
2.3 PROKODA GmbH expressly reserves the right to make partial deliveries and to invoice them.
2.4 Agreed delivery dates are deemed to have been met if the contract product was handed over to the carrier on the agreed delivery date, unless another express written agreement was made.
2.5 If the dispatch of goods ready for dispatch is delayed for reasons for which PROKODA GmbH is not responsible, the contract products can be stored at the customer's expense and risk.
2.6 The delivery date is agreed based on the expected performance capacity of PROKODA GmbH and is subject to unforeseen circumstances and obstacles, regardless of whether these occur at PROKODA GmbH or at the manufacturer, such as force majeure, government measures, failure to issue official permits, industrial disputes of any kind, sabotage, shortage of raw materials, delayed material deliveries through no fault of our own. Such events extend the delivery date accordingly, even if they occur during a delay that has already occurred. If PROKODA GmbH is more than four weeks late with a delivery, the customer can withdraw from the contract after a reasonable grace period set in writing, excluding further claims. If the delivery delays last longer than six weeks, PROKODA GmbH is also entitled to withdraw from the contract in whole or in part.
2.7 Unless otherwise agreed, PROKODA GmbH is entitled, but not obliged, to insure the goods to be shipped against all types of transport risks at the customer's expense. This, as well as any assumption of transport costs, has no influence on the transfer of risk.

3 Cancellation and postponement of delivery dates
3.1 If the customer cancels confirmed orders in whole or in part or agrees to postpone delivery dates with PROKODA GmbH for which he is responsible, PROKODA GmbH can claim damages in accordance with the list price of the order without separate proof.
3.2 The agreement to postpone delivery dates must be in writing. In the event of delay in acceptance, PROKODA GmbH has the right, in addition to the right to payment, to either set a new delivery date or withdraw from the contract. Orders can no longer be canceled after delivery.

4 Acceptance and transfer of risk
4.1 The customer must check the goods immediately after receipt for completeness and compliance with the invoice. If no complaint is made within 8 days of receipt of the delivery, acceptance is deemed to have taken place.
4.2 Minor defects that do not affect the functionality of the delivery item do not entitle the customer to refuse acceptance.
4.3 The risk is transferred to the customer when the contract product is handed over to the carrier, its agent or other persons named by PROKODA GmbH, but at the latest when the contract product is handed over to the customer or its agent. If shipping is delayed or becomes impossible through no fault of PROKODA GmbH, the risk is transferred to the customer when the readiness for shipping is reported. The provisions of 4.3 also apply to returns after defects have been rectified or after a paid service has been provided.

5 Prices and payment terms
5.1 The prices resulting from the currently valid price list are FOB delivery warehouse Cologne, VAT and other statutory duties in the country of delivery as well as packaging, transport costs and transport insurance are additionally charged to the customer in accordance with the specialist trade price list.
5.2 Payments are due 14 days after the invoice is issued without any deductions. Invoices are issued upon delivery. Bills of exchange and cheques are only accepted as part of performance.
5.3 If the payment deadlines are exceeded, PROKODA GmbH is entitled to claim default interest of 5% above the current discount rate of the Deutsche Bundesbank without further reminder. The right to assert further damages for default remains unaffected.
5.4 PROKODA GmbH is entitled, despite any contrary provisions of the customer, to initially offset payments against the customer's older debts. If costs and interest have already been incurred due to default, PROKODA GmbH is entitled to offset the payment first against the costs, then against the interest and finally against the main services.
5.5 Set-off or the assertion of a right of retention due to counterclaims that are not recognized or not legally established is excluded.
5.6 If the above payment conditions are deviated from without justifiable reason, PROKODA GmbH can at any time demand delivery against cash payment, advance payment or security. All outstanding claims, including those for which PROKODA GmbH has accepted bills of exchange or for which payment by instalments has been agreed, will be processed immediately.

6 Retention of title
6.1 The contractual product remains the property of PROKODA GmbH until all claims, including future claims, from this contract and from the entire business relationship with the customer have been fulfilled.
6.2 The customer is revocably entitled to pass on the reserved goods in the ordinary course of business subject to retention of title, but not to pledge them or transfer them as security in any form. If third parties access the reserved goods, the customer must point out that they are the property of PROKODA GmbH and inform PROKODA GmbH immediately. If the goods are resold to third parties, the customer is responsible for ensuring that the third party takes PROKODA GmbH's rights into account.
6.3 In the event of default in payment, including for other and future deliveries or services from PROKODA GmbH to customers, or in the event of the customer's financial collapse, PROKODA GmbH may enter the customer's business premises and take possession of the reserved goods in order to assert the retention of title to the reserved goods.
6.4 The assertion of the retention of title or the seizure of the delivery item by PROKODA GmbH does not constitute a withdrawal from the contract if the customer is a merchant.
6.5 The customer assigns his claims from the transfer of the reserved goods in the respective invoice value of the reserved goods to PROKODA GmbH in advance at the time of the order. PROKODA GmbH is entitled and obliged to collect within the scope of the proper course of business. At the request of PROKODA GmbH, the customer will name the assigned claim. PROKODA GmbH may disclose this assignment at any time to secure its payment claims.
6.6 If the value of the securities exceeds the payment claims of PROKODA GmbH by more than 20 %, PROKODA GmbH will release the excess part of the securities at the customer's request.
6.7 Items delivered for test and demonstration purposes remain the property of PROKODA GmbH. They may only be used by the customer based on a separate agreement with PROKODA GmbH.

7 Software provision
7.1 The software includes the programs and the associated operating instructions. The scope of delivery includes the program package in the latest version. 7.2 Deliveries or services that go beyond section 7.1
, namely changes and additions to the programs delivered or to be delivered as well as any type of special programming, are the subject of separate agreements. 7.3 If the user has changes to the aforementioned software carried out by persons who are not employees of PROKODA GmbH, he can be excluded from program maintenance and subsequent deliveries, without prejudice to payment and other obligations under this contract. 7.4 Programs that are damaged, destroyed or lost by the user will, if possible, be supplemented or replaced by PROKODA GmbH against appropriate cost accounting. 7.5 The provision contract is fulfilled by PROKODA GmbH with the notification of the provision of the program. All further services, namely instruction, training and advice for the user's personnel, are not the subject of this contract and require a separate agreement. They are calculated according to the hourly or daily rates currently valid at PROKODA GmbH. PROKODA GmbH refers to its currently valid price list. 7.6 The software supplied by PROKODA GmbH can only be used on hardware (computer) to which it is tailored. This applies to the initial installation as well as to later configuration changes through conversion and/or upgrading. The configuration intended for use must therefore be coordinated with PROKODA GmbH before the order is placed with the hardware supplier. PROKODA GmbH cannot be held responsible for any disadvantages resulting from failure to coordinate and the recommendation made by PROKODA GmbH regarding type, nature, capacity, configuration, etc. 7.7 The user's right of use is not exclusive. PROKODA GmbH also grants it to third parties in the same or similar manner. 7.8 The user is prohibited from passing on the software without the written consent of PROKODA GmbH. The software is used exclusively within the framework of the software licensing agreement in the user's company. The user undertakes to instruct all of his employees who have access to the software, even after their employment with the user, to refrain from any measures that would enable an unauthorized third party to use the software, including the manuals and other documents, directly or indirectly. 7.9






The user's right of use is granted to him for an unlimited period of time. However, it ends a) when the user ceases business operations; b) when the user switches to another hardware or operating system or operating system version not approved by PROKODA GmbH; c) when this contract is terminated - regardless of the legal reason - in particular if PROKODA GmbH exercises its right to withdraw from this contract in the event of the user's default in payment; d) when the user or his employees violate other obligations incumbent upon the user under this contract, in particular in the event of violations of the copyright to which PROKODA GmbH is entitled.
7.10 In the event of termination of the right of use, the user is obliged to return all documents relating to the software provided to him by PROKODA GmbH at his own expense, waiving any right of retention. Fees paid will not be reimbursed, regardless of the period of use. PROKODA GmbH is entitled to remove operating systems supplied by it from the hardware and to demand their return.
7.11 If the user fails to meet his obligation to return the documents relating to the software or the delivered product to PROKODA GmbH, the user is obliged to pay 1/12 of the transfer fee to PROKODA GmbH as a contractual penalty for each month or part thereof in which the user is in default of return. The amount of the contractual penalty is limited to 24 months.
7.12 If the termination of the contract is due to the fault of the user or his employees, the user is obliged to pay compensation. This amount shall comprise at least the full fee not yet paid.

8 Warranty
8.1 PROKODA GmbH guarantees that the contractual products are free from defects, including the lack of guaranteed properties. The contractual products are manufactured with due care. The parties agree, however, that given the current state of technology, it is not possible to exclude software errors under all application conditions. Reproducible (documented) program errors, but not errors that arise from incorrect operation or application of the systems or programs, will be corrected by PROKODA GmbH free of charge during the warranty period.
8.2 The user is responsible for immediately notifying PROKODA GmbH in writing of program errors and their identified causes during and after the warranty period and for supporting PROKODA GmbH in correcting the errors.
8.3 The warranty obligation for software services covers only the functionality of the programs supplied, but not the successful application or the degree of effectiveness in the user's operation. PROKODA GmbH's warranty obligation requires the user to provide evidence that he a) has adapted to all organizational and other suggestions made by PROKODA GmbH; b) has complied with all operating instructions and other regulations; c) has employed suitable operating personnel; d) has made sufficient use of the separately offered instructions, training and advice and e) has not made any program changes, interventions or extensions himself or had them made by third parties.
8.4 The warranty claim requires that the user is not in arrears with the payment of the license fee or other obligations.
8.5 PROKODA GmbH guarantees that the contractual products are generally correctly described in the production information and are basically usable within this framework. The technical data and descriptions in the product information alone do not constitute a guarantee of specific properties. A guarantee of properties in the legal sense is only given if the respective information has been confirmed in writing by PROKODA GmbH.
8.6 PROKODA GmbH does not guarantee that the program functions meet the customer's requirements or work together in the selection made by the customer, unless the hardware and program environment have been determined in advance.
8.7The warranty does not cover defects or damage that are attributable to: operational wear and tear and normal wear and tear / improper use, operating errors and negligent behavior on the part of the customer / operation with the wrong type of current or voltage and connection to unsuitable power sources / fire, lightning, explosion or power surges / moisture of any kind / incorrect or faulty program software and/or processing data and any consumables, unless the customer proves that these circumstances are not the cause of the defect complained of.
8.8 The warranty also does not apply if the serial number, type designation or similar markings are removed or made illegible and the devices have been opened/worked on by persons not authorized by PROKODA GmbH.
8.9 Warranty claims against PROKODA GmbH begin with delivery to the customer and expire six months after delivery. They are not transferable.
8.10 Irrespective of this, PROKODA GmbH passes on any further guarantees and warranty promises of the manufacturer to the customer in full, without assuming liability for them itself.
8.11 In the event of a warranty claim, PROKODA GmbH will choose to repair or replace the goods. Replaced parts become the property of PROKODA GmbH. If PROKODA GmbH does not remedy defects within a reasonable grace period set in writing, the customer is entitled to demand either cancellation of the contract or a reasonable reduction in the purchase price.
8.12 If an inspection of a notification of defects shows that there is no warranty claim, PROKODA GmbH is entitled to demand reimbursement of all expenses. The costs of inspection and repair are calculated at the applicable service prices of PROKODA GmbH.
8.13 All further or other claims of the customer other than those provided for in these provisions, regardless of the legal basis, are excluded unless these provisions state otherwise.
8.14 When making a claim under the warranty / guarantee as well as for chargeable repair orders and returns of any kind, the customer must observe the customer service processing guidelines in the currently valid version or the corresponding procedures in the currently valid PROKODA GmbH price list.

9 Industrial property rights and copyrights of third parties
9.1 PROKODA GmbH accepts no liability for the contractual products not infringing industrial property rights or copyrights of third parties. The customer must immediately inform PROKODA GmbH of all claims made against him for this reason. 9.2 If the products delivered were manufactured according to designs or instructions from the customer, the customer must indemnify PROKODA GmbH against all claims asserted by third parties due to the infringement of industrial property rights and copyrights. Any legal costs must be paid in advance in an appropriate amount.

10 Liability
10.1 The liability of PROKODA GmbH is limited to such damages that could reasonably be expected to occur at the time of conclusion of the contract based on the circumstances known at the time. PROKODA GmbH is not liable for indirect damages, consequential damages or lost profits.
10.2 The liability of PROKODA GmbH for intentional and grossly negligent behavior, for guaranteed properties and in accordance with the provisions of the Product Liability Act remains unaffected by the aforementioned liability limitations. The personal liability of PROKODA GmbH members who have acted as vicarious agents of PROKODA GmbH is excluded.
10.3 Claims for damages expire six months after delivery or provision of the service.

11 Export and import permits
11.1 Products and technical know-how supplied by PROKODA GmbH are intended for use and to remain in the delivery country agreed with the customer. The re-export of contract products - individually or in system-integrated form - is subject to approval by the customer and is fundamentally subject to the foreign trade regulations of the Federal Republic of Germany or the other delivery countries agreed with the customer. The customer must independently enquire about these regulations according to German regulations at the Federal Office of Economics and Export Control, Eschborn, and according to US regulations at the US Department of Commerce, Office of Export, Administration, Washington DC 20230. Regardless of whether the customer specifies the final destination of the contract products supplied, it is the customer's own responsibility to obtain any necessary approval from the relevant foreign trade authority before exporting such products.
11.2 Any further delivery of contract products by customers to third parties, with or without the knowledge of PROKODA GmbH, requires the export permit conditions to be transferred at the same time. The customer is liable to PROKODA GmbH for proper compliance with these conditions.

12 General Terms and Conditions
12.1 The customer is not entitled to assign his claims from the contract.
12.2 The place of performance and jurisdiction for contractual partners within the meaning of Section 24 AGBG is Cologne. PROKODA GmbH is, however, entitled to sue the sales partner at any other legal place of jurisdiction.
12.3 The statutory provisions applicable in the Federal Republic of Germany apply to the General Terms and Conditions. The Uniform Sales Act (EKG), the Uniform Contract Formation Act (EAG) and the Vienna UN Convention on the International Sale of Goods (UNCITRAL) are excluded.
12.4 Orders are processed within PROKODA GmbH using automatic data processing. The customer hereby gives his express consent to the processing of data that has become known to PROKODA GmbH within the framework of contractual relationships and is necessary for order processing. The customer also agrees that PROKODA GmbH may use the data obtained from the business relationship with him within the meaning of the Data Protection Act for business purposes of PROKODA GmbH, including within companies affiliated with PROKODA GmbH.
12.5 Should one or more provisions of these General Terms and Conditions be invalid, or should this contract text contain a regulatory gap, the contracting parties shall replace or supplement the invalid or incomplete provision with appropriate provisions that correspond as closely as possible to the economic purpose of the intended regulation. The validity of the remaining provisions shall remain unaffected.

Status: July 1, 2004