Of calladium^® Software Engines´ Supplies and Services

calladium Software Engines
Alexander Friedl Software
Hochstr. 68
64285 Darmstadt
Germany

mentioned below.

§ 1 The Scope of General Terms

The general terms apply to all supplies and services provided by calladium^® Software Engines, especially to the delivery of standard software and modulation, as well as software development, project management and technical services. Other termss, especially those made by the Customer, are not applicable to the contents of the contract, even if these terms have not been explicitly contradicted by calladium^® Software Engines. The Manufacturer´s business terms and conditions apply for hardware delivery.

§ 2 Offers

2.1 All calladium^® Software Engine offers are are subject to change, provided that no written contract has been made. A contract takes place with a written order confirmation from calladium^® Software Engines.
2.2 The order confirmation from calladium^® Software Engines is decisive for the range of delivery.
2.3 Due to technical factors, calladium^® Software Engines reserves the right to make changes, at any time, in the original offer. Cost proposals, provisional drafts as well as any other supporting documents are sole property of calladium^® Software Engines with all rights reserved, they are not to be made accesible to any third party. All documents are to be returned immediately, if the customer does not make an order with calladium^® Software Engines.

§ 3 Prices and Terms of Payment

3.1 All prices are to be understood from and to Darmstadt. Postage and handling as well as value added tax are not included.
3.2 The following payment conditions apply, when no other written agreement has been explicitly made:
For software, software modulations and software development:
50% of the order sum, upon receiving the order confirmation
40% of the order sum, upon delivery
10% of the order sum, after completion of acceptance.
Services and travel costs are to be paid in full immediately after a service has been rendered. Product payments, such as hardware or software from other companies, are due immediately after delivery. Afterwards, without further warning, the due payment will be considered delayed. Should default be made by the buyer in reception (§4 num. 4.3), the rest of the sum, including the value added tax, is to be paid in full immediately. Afterwards, the due payment will be considered delayed.
3.3 Discounts are only given by calladium^® Software Engines, when a written agreement has been made.
3.4 Refusal of payment due to counter claims made by the customer, which have not been accepted by calladium^® Software Engines, is not permissible. The customer can only charge for claims that are indisputable and have been found to be final in a court of law.
3.5 If late payments occur, the due payment will be set (from the due date) on a 5% yearly interest rate over the applicable bank rate of the Deutsche Bundesbank (German National Bank). calladium^® Software Engines reserves the right to claim for any other damages caused by the delay in payment.

§ 4 Delivery period

4.1 The delivery period begins on the date of written order confirmation from calladium^® Software Engines. The customer is obliged to send all pertaining documents, make accessible hardware and/or software, obtain all of the necessary permits and releases, have a clear concept of his/her plans and their permits on time, keep the payment terms, as well as other obligations made in the contract, before calladium^® Software Engines can meet the delivery deadline. The delivery deadline becomes invalid and must be rearranged, taking into account the needs of calladium^® Software Engines, when these conditions are not fulfilled by the customer.
4.2 The delivery of software services of any kind, development or other services, is considered to have taken place with the handing over of data carriers, as well as the developed system. The source codes are not a part of the due delivery.
4.3 In case of a default in reception made by the customer, a written statement of the ability to deliver from calladium^® Software Engines is sufficient to claim a default in reception.
4.4 Part-delivery is allowed.
4.5 The delivery deadline will be extended accordingly, if the delivery deadline cannot be upheld, due to force majeure (such as war, strikes or lock-outs), or damages caused by the postal agency, such as delivery delays or irreparable damage to one of the primary working pieces of the product, or any circumstances legally not associated to calladium^® Software Engines.
4.6 calladium^® Software Engines´failure to meet the deadline, due to reasons other than those written in § 4 num. 4.5 gives the customer the right, after the lapse of a reasonable extention in written form granted by the customer, to claim for damages of 1/2 % to no more than a maximum of 5% of the price agreed upon for each completed week of delay, for those production parts that, due to the delay in production, could not be used, if proven that damages were caused by the failure to meet the written agreement of an extended deadline date. Damages that exceed the 5% maximum of the total sum agreed upon, in all cases of delayed delivery, also after lapse of the extended deadline are excluded. The customer´s right to claim for extended damages that occur by gross negligence on behalf of calladium^® Software Engines, as well as his right to cancel the agreement, after failure to meet an extended deadline by calladium^® Software Engines remains unaffected.

§ 5 Passing of the risk

The risk of accidental loss, destruction or deterioration of the product(s) passes to the customer by:
5.1 delivery of the product to customer designated place
5.2 a default of acceptance as written in §4 num. 4.3
5.3 transit, when the products to be delivered have been properly shipped.

§ 6 Installation, Training and other Services

6.1 All services, such as installation, set-up, tests, concept development, computer advice, training and software presentation will be charged, when no other agreement has been made, according to the exact hours that have been worked (according to the valid hour rates made by calladium^® Software Engines at the time). Further, the customer takes over the traveling costs of the calladium^® Software agents from and to Darmstadt. Travelling time will be charged as work time. Travelling costs and accommodations according to the individual expenditures of calladium^® Software Engines´agents or a flat kilometer rate will be charged to the customer according to the calladium^® Software Engines price list for over-night stays according to the flat rate of the valid income tax directives. A flat rate for additional food costs will be added to the bill. Customers shall pay all applicable taxes relating to the products and services rendered by calladium^® Software Engines.
6.2 The customer must fullfill the following conditions before installation can begin: The necessary preparations for the begin of the installation work must be done by the customer, before arrival of the calladium^® Software Engines agent or subcontractor, so that the installation process can immediately start without interruptions. The customer is responsible for making all necessary equipment available to the agent or subcontractor, be helpful in the use of foreign equipment, as well as, if necessary, make possible that the service can be finished outside the normal working hours.
6.3 If there is a delay in installation or set-up, which is not caused by calladium^® Software Engines´ agents or subcontractors, then the customer is responsible for all waiting costs and further necessary travel costs for the agent(s) or subcontractor(s).
6.4 Training and presentations can be cancelled free of charge for up to 15 days before the course begins. The cancellation must be in writing. When the course is cancelled up to 8 days before the course begins, there will be a charge of 50% of the originally agreed upon fee, and a 100% charge for courses that have been cancelled in a time span of less than 8 days before the course begins.

§ 7 Inspection and approval

7.1 Inspection and approval of software modulation and software development principally occurs immediately or upon agreement at the latest 14 days after the delivery with routine function tests from calladium^® Software Engines or test runs with agreed upon test methods.
7.2 A protocol will be drawn up about the inspection and approval, which is to be signed by the customer as well as by calladium^® Software Engines.
7.3 If the delivery is free from defects, or if defects have been eliminated, the customer is obliged to accept the goods and/or services of the contract. If the customer refuses to accept, calladium^® Software Engines will set the customer on a 14 day time limit for acception and will give the customer a written notice stating that the goods and/or services will be considered as accepted after lapse of the deadline. If the customer does not declare the goods and/or services within the deadline as accepted, then the goods will be considered accepted "as is" after lapse of the deadline.
7.4 Existing defects, which have been recorded in the inspection protocol, will be eliminated free of charge within the fulfillment of the obligations stated in the contract.

§ 8 Software licence

8.1 Software, including following updates, are to be acknowledged by the customer as principally copyrighted with all rights reserved. The customer receives the right of unlimited usage of the software (in cases of demo versions or test installations a limited right of three months), which is non-transferable and non-exclusive, under the following conditions:
8.2 The software, whether it be whole or in parts, is only allowed to be run on the central unit or, in case of network versions, on the network upon which it has been first installed. Changes, upgrades or other encroachments of any kind are strictly prohibited. Duplication of the software and/or the supporting documents is only permitted for back-up reasons. calladium^® Software Engines does not assume liability for duplicated software.
8.3 The customer does not have the permission of making the software and/or the supporting documents accessible to a third party, nor to use the software or parts of it for the purposes of a third party nor let a third party have any insight into the documents..
8.4 Further rights on the software will not be transferred to the customer
8.5 For each infringement of the licence conditions, the customer will be charged double the software price for stipulated damages(according to the calladium^® Software Engines´price list for standard software).

§ 9 Development contracts

The following conditions apply for the completed software development in the scope of the development contracts from calladium^® Software Engines:
9.1 The obligations book, which is by mutual agreement incorporated in the contract, is essential for the rendering of a service, in some exceptions the concept of the service to be renderred is essential as well. Changes or additions of the obligations book need to be agreed upon in writing, through a document that has been signed by both parties, in which the financial effects of the changes and/or additions are to have been agreed upon.
9.2 If through complexity of the development appointments should overlap, the extended time period to be made by the customer must also take into consideration the technical problems and/or the difficulties in delivery. If changes and additions suggested by the customer are to be considered, then the appointments that have been made, will be rearranged in accordance to the additional expenditures.
9.3 After delivery of the developed software, there will be an inspection and/or an elimination of errors in accordance with § 7. All other claims, especially claims for damages due to a setup delay and/or lost period of time are excluded. Exceptions are claims due to proven gross negligence on the part of calladium^® Software Engines.

§ 10 Guarantee

10.1 The customer is aware, that it is impossible with the technology of today to produce computer programs that are completely free from errors. calladium^® Software Engines will warrant that the software fulfils most of its functions. Software defects are only defects when the program functions repeatedly deviate from the intended performance or function and it can be proven that these defects are not a result of the hardware, software systems or other system parts that have not been delivered by calladium^® Software Engines.
10.2 calladium^® Software Engines will choose to eliminate the defect either through the installation of an improved version of the software, or through by-passing the effects of the defect. The customer must make all necessary data regarding the error detection accessible as well as make the computer (network) and the user time accessible free of charge.
10.3 calladium^® Software Engines does not warrant for naturally worn and torn parts, faulty operation, or unauthorized repairs and servicing or adjustments of parts. If, due to a notice of defects sent to calladium^® Software Engines for defects not associated with the delivered products shipped by calladium^® Software Engines, additional expenditures emerge, the customer will be charged for the additional expenditures, especially the additional expenditures for locating the defect.
10.4 There is a 6 month warranty, which begins on the date of acceptance.
10.5 calladium^® Software Engines only warrants to the extent of the supplier´s warranty for delivered hardware as well as for software that has not been produced by calladium^® Software Engines.
10.6 Should repeatedly subsequent improvements remain unsuccessful or if calladium^® Software Engines cannot provide a newer program version, which is free from errors, the customer has the right to a refund and the cancellation of the contract after due notice and setting of a reasonable extendion of time.
10.7 The warranty becomes null and void, when the customer alters the program delivered by calladium^® Software Engines.
10.8 No further guarantees- calladium^® Software Engines does not warrant for further guarantees regarding software and/ or handbooks or other written materials, that were sent with the shippment.

§ 11 Liability

11.1 calladium^® Software Engines is only liable for damages caused by gross or deliberate negligence of its co-workers or its vicarious agents up to the sum paid for the delivered goods. By loss or damage of data or data carrying materials, the liability to compensation does not cover the replacement of lost data. Otherwise, claims for damages against calladium^® Software Engines are excluded for whatever reasons, as far as admissible by the law. This especially regards indirect loss or consequential damages of lost profits, business interruptions, loss of business information or other financial losses.
11.2 All claims for damages against calladium^® Software Engines, calladium^® Software Engines´ co-workers or other vicarious agents expire 12 Months after the date of occurrence. Exceptions are delictual claims, for these, the statutes of limitation are in force.
11.3 If damages occur due to the result of a culpable contribution on the part of the customer, then it will be decided in a court of law, after the principles of contributory negligence § 234 BGB) to what extent calladium^® Software Engines and the customer will have to pay for the damages.
11.4 calladium^® Software Engines is not liable for damages caused by higher powers, such as riots, war, natural catastrophies or other occurrences (i.e. strikes, lock-outs, traffic disturbances.

§ 12 Reservation of title

12.1 All goods and supplies remain the sole property of calladium^® Software Engines until all demands by calladium^® Software Engines on the customer are fulfilled, including those outside of the contract.
12.2 Resale is permitted, if done through usual business channels.
12.3 The customer does not acquire, while processing the goods, ownership of the complete or partly produced goods. Processing is done free of charge only for the seller. If for any reason the reservation of title should be declared null, then the customer and calladium^® Software Engines are in agreement, that the ownership of the goods, with the processing, transfers to calladium^® Software Engines. The customer remains the safekeeper free of charge.
12.4 By processing with goods that are still in foreign ownership, calladium^® Software Engines acquires co-ownership of the new goods. The scope of this co-ownership arises from the proportion of the invoice value of the goods delivered by calladium^® Software Engines with the invoice value of the rest of the goods.
12.5 The customer transfers hereto the claim out of the resale of the reserved goods on calladium^® Software Engines, to be precise, also to the extent of processing. If the transferred claims exceed the claims of calladium^® Software Engines to the customer, then Calladium Software Engines will not make use of the transfer for the exceeded part.
12.6 calladium^® Software Engines accepts this transfer of claim

§ 13 Concluding conditions

13.1 The contract remains in effect as a whole, when parts of the contract have been nullified in a court of law. Some ineffective conditions are to be replaced by new ones, that come closest to the economic results strived for.
13.2 Conditions that deviate from the conditions mentioned above or additional agreements are only valid in form of an additional written agreement of the general terms and conditions.
13.3 calladium^® Software Engines head office is to be agreed upon as exclusively the place of jurisdiction and performance, as long as it goes in accordance with the § 38 ZPO (Zivil Prozess Ordnung- similar to the Federal Rules of Civil Procedure). This applies as long as both partners are businessmen.
13.4 Agreements made with calladium^® Software Engines are, and shall be governed by and construed in accordance with the laws of the Federal Republic of Germany (BGB).