Language and Translation

This translation serves to improve the use of these General Terms and Conditions. The German version of Cost Xpert´s General Terms and Conditions is obligatory.

 

1. Field of Application

 

Regarding all deliveries, products, maintenance and support, consulting and training by the Cost Xpert AG, in the following named “Cost Xpert,” the following General Terms and Conditions apply. Divergent General Terms and Conditions of the customer are not applicable, even if Cost Xpert does not object to them in written form. Other agreements or changes are only binding if Cost Xpert confirms them in writing. They apply in each case only to the order for which they have been confirmed. Further orders apply again to the General Terms and Conditions of Cost Xpert.

 

2. Conclusion of Contract

 

If the customer orders any deliveries of products or services, Cost Xpert will send a confirmation. A contract regarding deliveries or services between Cost Xpert and the customer is closed if Cost Xpert confirms an order in written form or if implied by delivery or servicing.

 

3. Master Agreement

 

Cost Xpert offers a master agreement if the total amount of revenue is higher than 50,000 €. This master agreement may contain regulations that deviate from these General Terms and

Conditions.

 

4. Terms of Payment, Compensation

 

a) Terms of Payment, Delay

 

Depending on financial reliability and/or credit rating, new customers of Cost Xpert may receive software and services only by prepayment. Remuneration for licenses and consulting services are due within 10 days, remuneration for maintenance and support within 14 days after invoice is issued. If payment is not received within the above stated period, invoices become past due. The remuneration for trainings and services is due before the training or the service. The amount is due immediately at the receipt of the invoice. After the expiration of these terms, the customer is in a state of past due. Cost Xpert raises a dunning fee with the first reminder at a rate of two percent per month of the invoice amount – or at a minimum of 225 €. In addition, Cost Xpert charges an interest on arrears at a value of two percent of the invoice amount. Instead of a second reminder, a court order may be issued. Taking a cash discount and deduction of bank charges by the customer is not authorized. In the international exchange Cost Xpert can charge a wire fee for bank charges at a value of 28 €.

 

b) Withdrawal

 

If the customer discharges his payment obligations or a bank does not cash a check or a debit, Cost Xpert is authorized to withdraw from the contract without special previous announcement. Furthermore, Cost Xpert reserves the right to impose an appropriate cancellation fee. In these cases, all demands of Cost Xpert become due without special requirements. If the customer withdraws from a contract, Cost Xpert is authorized to require a part of the agreed fee as a cancellation fee. The same terms apply if Cost Xpert becomes ware of circumstances, which question the credit-worthiness of the customer.

 

c) Assignment of Claim, Right of Lien

 

If the customer changes the previously agreed-upon conditions of the project or terminates the project with the result that the project plan cannot be carried out as designed, the customer will accept all related costs. The customer releases Cost Xpert from all obligations involving third parties. Unless such a contractual agreement is in place, all incurred expenses are calculated and billed for monthly in part or of the total sum.

 

d) Partial Payments

 

Unless a contractual agreement defines different terms, billings for services rendered by Cost Xpert as well as associated costs and incurred expenses are billed for monthly and/or for individual portions of the projects.

 

5. Obligations to Cooperate

 

Cost Xpert provides exclusively for the support of the customer within its business procedures. Cost Xpert does not take responsibility for a determined result. In order to make the service agreed upon possible for Cost Xpert, the client will answer all relevant questions in connection with his enterprise completely and in a timely manner. The client provides Cost Xpert with the work force, services, equipment, and other materials required as agreed in the contract. Cost Xpert regards all information received from the customer as confidential. The same applies to any knowledge of enterprise-internal procedures, which Cost Xpert obtains during the project. These confidential obligations exist also upon completion of the contract.

 

6. Services

 

The contractor furnishes the service in accordance to the agreements in the contract. The client is responsible for the project and its success. Cost Xpert is not responsible for the project and its success.

 

The contractor grants the non-exclusive, durable, irrevocable and not transferable right to the client to use service results, as far as these results from the purpose and area of application of the contract. These rights include the agreed upon intermediate results, training documents and indirect material.

 

In the context of trainings, Cost Xpert furnishes its services only for participants announced by the client, whom the client designates in advance with names and email addresses. Not-designated participants are not entitled to participate in a training by Cost Xpert or its subsidiaries.

 

Deviations from these regulations require a written and individual agreement.

 

7. Set-off

 

The customer is entitled to set-off rights if its counterclaims are validly determined, undisputed, or determined by Cost Xpert. The customer can only exercise a right of set-off if its counterclaim is based on the same contractual relation. Because of denied counterclaims, the customer is not entitled to a right of lien.

 

8. Retention of Title

 

Cost Xpert reserves for itself retention of title until the receipt of payment. With behavior contrary to the contract, above all with default, Cost Xpert is authorized to demand the return of any contract goods.

 

9. Intellectual Property

 

As far as Cost Xpert develops patented services or partial solutions during its consulting services for the customer, Cost Xpert is entitled to the copyright. Cost Xpert is authorized to attach a trademark logo in usual form and design. Cost Xpert also is entitled to the copyright for training documentation, which may not be reproduced without written agreement of Cost Xpert. The customer is not authorized to reproduce, to multiply, to spread, to translate and/or to use training documentation for internal instruction - also not in part. Furthermore, the German and European copyright regulations apply.

 

10. Warranty and liability

 

Software: As far as warranty is concerned we refer to our license agreement. If not contested elsewhere in writing, Cost Xpert warrants to the individual or entity that first purchases the software, for the data medium for use pursuant to the terms of that the data medium will perform in accordance with the documentation when used on the recommended operating system and hardware configuration. Non-substantial variation of performance from the documentation does not establish a warranty right. If the software does not perform substantially in accordance with the documentation, the entire liability of Cost Xpert, its subsidiaries, and the customer’s exclusive remedy will be limited to either, at Cost Xpert´s option, replacement of the software or refund of the license fee the customer paid for the software. The customer has to claim a defect within a period of two weeks. Otherwise, the claim is precluded.

 

Consulting: Cost Xpert furnishes services with care. As far as consulting errors and/or possible errors are based on the fact that the client did not fulfill his obligations to cooperate under term 5, completely or in time, Cost Xpert is not liable. Cost Xpert is not responsible for economic success due to advisory activities and recommended measures. Cost Xpert is liable for damages with slight negligence of its board or employees, if and as far as the damage is based on the injury of such obligations, whose fulfillment for reaching the contract purpose are necessary. The adhesion of the contractor is limited to such damage, which the contractor must expect at the time the training contract was signed. The adhesion is limited and not to exceed half of the order value per case of damage/loss.

 

Training: Cost Xpert is only responsible for damage which is based on intention or gross negligence of Cost Xpert or their legal representatives. In case of minor negligence, which directly leads to death, bodily injury, or serious health related illnesses, Cost Xpert’s liability is unlimited. If Cost Xpert gets behind schedule with the delivery of its service through slight negligence, or if the delivery of such service becomes impossible, or if Cost Xpert violates a major delivery obligation, Cost Xpert becomes liable for damages based on described slight negligence limited to a maximum amount of EUR 3,000.

 

Maintenance: Software maintenance contracts deal with the safety device of programming, the continuing support and the updates of programming, and not with technical changes, necessary adjustments, special adjustments and the customer’s supplemental requests. These are separately completed and computed based on expenditure. Cost Xpert will maintain the software to the best of its knowledge and with great care in order to ensure the satisfaction of the users. Claims for damages are excluded, except in cases of gross negligence or intention. Otherwise, the liability for consequential damages is excluded. An obligation to pay compensation is limited in each case by the amount of the agreed maintenance fee per contract, per year and single license.

 

11. Impairment of Service

 

If impairment of service regarding software or maintenance appears, then the legal regulations apply. Regarding consulting and training, Cost Xpert is justified to defer the fulfillment of its obligations for the duration of the impairment of service. This also applies according to force majeure or to other unforeseeable events at the time of the contract, so that Cost Xpert cannot fulfil the agreement temporarily, totally or partly.

 

12. Notice to Quit, Changes of Consulting, Training and Service Contracts

 

As long as nothing else is agreed in the contract, consulting may be terminated within a period of 14 days to the end of the month. The right for cancellation without notice for important reason remains unaffected. For the achievements of the contractor furnished up to the entrance of a premature notice, the client pays the agreed fee and the agreed displays of the contractor. The notice is required in written form. Servicing contracts can be cancelled 3 months in advance to the end of the contract. If the customer does not cancel the servicing contract within this time period, the contract extends automatically. The customer can cancel contracts regarding training up to 14 days prior to its starting date. The customer is allowed to replace 7 days before the beginning of training a named participant for training with another as long as he/she meets the same requirements for participation in the training. Notification of Cost Xpert of the replacement is necessary to avoid any additional charges. Cancellation of a scheduled engagement within 4 weeks of its starting date results in fifty percent of the remuneration for the engagement becoming due from the client. For cancellation within two weeks of its starting date, one hundred percent of the remuneration for the engagement becomes due. Cancellation and change requests are to be submitted in written form. Should the number of participants for any given event exceed the previously agreed upon number and/or maximum, Cost Xpert reserves the right to charge the associated higher rates.

 

13. Collection of Personal Data

 

The parties will not pass any documents, knowledge, and/or the information received from the customer in each case – independent from the data medium - without written agreement. This data is to be secured against unauthorized review, use or application.

 

14. References

 

Cost Xpert is allowed to name the customer in any kind of documents. For naming projects, persons or other information Cost Xpert needs a written approval by the customer.

 

15. Applicable Right

 

All contracts between Cost Xpert and its customer will be governed and construed in accordance with the substantive laws in force in the Federal Republic of Germany. The court of jurisdiction, as far as legally permitted, is Augsburg, Germany. The use of the UN-convention to contracts to the international goods purchase of 11.4.1980 is not applicable.

 

Cost Xpert AG

Werner-von-Siemens-Str. 6

86159 Augsburg

 

Version No.3.2:

01.04.2010