GTC

THE GENERAL TERMS AND CONDITIONS OF TYCOM DIGITAL SERVICES GMBH

§ 1 Scope and validity of the contract

The following terms and conditions apply to all services (in particular consulting services) and deliveries of Tycom. The client's terms and conditions of purchase are hereby excluded for the legal transaction in question and the entire business relationship.

These General Terms and Conditions shall also apply to future contractual relationships between Tycom and the customer.

All (consulting) orders and other agreements are only legally binding if they are confirmed and signed by Tycom and are mutually binding only to the extent specified in the written contractual agreement.

Offers are always subject to change.

§ 2 Scope of deliveries and (consulting) services

1. The scope of deliveries and services of Tycom is contractually agreed. The product and service description, documentation as well as the price and conditions lists for Tycom products and services submitted by Tycom shall apply. Tycom does not owe any further characteristics of deliveries and (consulting) services.
   
   
2. Deadlines are non-binding unless they have been expressly agreed in writing as binding. Tycom endeavours to adhere to the agreed fulfilment dates as closely as possible. Force majeure, labour disputes, natural disasters and transport blockages as well as other circumstances beyond Tycom's control release Tycom from agreed deadlines or allow Tycom to reschedule the agreed delivery time. If Tycom waits for co-operation or information from the customer or is otherwise hindered in the execution of the order through no fault of its own, delivery and performance deadlines are deemed to be extended by the duration of the hindrance and by a reasonable start-up time after the end of the hindrance. Tycom will inform the customer of the hindrance.
   
   
3. Software shall be delivered by handing over the machine-runnable programme and the user documentation on data carriers or by making them available via the Internet.

§ 3 Duties of the client to provide information and cooperate/declaration of completeness

1. Deliveries and services of Tycom are specified according to the specifications and information of the customer about his needs and requirements, as far as they have been communicated to Tycom. The customer is aware of the essential functional characteristics of the software delivered by Tycom or other services to be provided by Tycom; he bears the risk whether the software or the services fulfil his wishes and requirements.
   
   
2. The client shall ensure that all documents necessary for the fulfilment and execution of the consulting assignment are submitted to Tycom in a timely manner, even without its special request, and that Tycom is informed of all processes and circumstances that are of importance for the execution of the assignment. This also applies to all documents, processes and circumstances that only become known during Tycom's activities.
   
   
3. A prerequisite for the proper provision of services by Tycom is the fulfilment by the customer of the agreed obligations to cooperate and those usually assumed for comparable services. The customer cooperates in the fulfilment of the order to the necessary extent free of charge and undertakes to take all measures necessary for the fulfilment of the contract by Tycom, insofar as they are not covered by Tycom's scope of services, e.g. by providing employees, work rooms, hardware and software, data and telecommunication facilities in the form requested by Tycom and by granting Tycom access to the hardware and software directly or by means of remote data transmission. In addition, the customer shall co-operate in necessary tests (functional, integration, migration tests) to the extent required and shall carry out the data preparation and collection necessary for the processing of the order. The customer's obligations to co-operate also include the adaptation of interfaces required for the functioning of the system, unless this is explicitly part of the contract, as well as the provision of the working environment of the supplied software (e.g. hardware and operating system) in accordance with Tycom's specifications, whereby the specifications in the user documentation must be observed. Furthermore, the client shall ensure that the organisational framework conditions at its place of business allow for the most undisturbed work possible during the fulfilment of the consulting assignment, which is conducive to the rapid progress of the consulting process.

§ 4 Safeguarding independence

1. The contracting parties undertake to be mutually loyal.
   
   
2. The contracting parties mutually undertake to take all precautions that are suitable to prevent the independence of the co-operation partners and employees of Tycom from being jeopardised. This applies in particular to offers of employment by the client or the acceptance of orders on own account.

§ 5 Protection of Tycom's intellectual property/copyright/utilisation

1. The client is obliged to ensure that the offers, reports, analyses, expert opinions, organisational plans, programmes, service descriptions, drafts, calculations, drawings, data carriers and the like ("work results") prepared by Tycom, its employees and cooperation partners in the course of the consultancy assignment are only used for the purposes of the assignment. In particular, the passing on of work results and professional statements of any kind of Tycom to third parties against payment or free of charge requires the written consent of Tycom. This shall not establish any liability on the part of Tycom towards third parties.
   
   
2. The use of Tycom's professional statements for advertising purposes by the customer is not permitted. A violation entitles Tycom to terminate without notice all orders not yet executed.
   
   
3. Tycom retains a copyright to its consulting services. The client is entitled to the non-exclusive, otherwise completely unrestricted right of use.
   
   
4. All rights to software supplied by Tycom, in particular the comprehensive copyright including exploitation rights, the rights to inventions and technical property rights, with all authorisations to all programmes, documents and information provided within the framework of the initiation and execution of the contract including warranty, support and maintenance are - unless otherwise provided for in these GTC or Tycom's list of prices and conditions - the exclusive property of Tycom or its licensors in relation to the customer, even if these objects have been created by specifications and cooperation of the customer. The customer is granted a simple licence to use the software supplied. He may only use the software to the extent expressly stipulated in the contract - if applicable with reference to the criteria stated in the price and conditions lists. The authorisation of use is limited to the software products specified in the contract, even if the client has technical access to other software products. In the case of the purchase type of contract, the client receives the licence for use for an unlimited period of time; in the case of the rental type of contract, for the contractually agreed duration. Only a licence to use the work is acquired through this contract. Distribution by the client is excluded. The client's co-operation in the production of the software shall not result in the acquisition of any rights beyond the use specified in the present contract. Any infringement of Tycom's copyrights shall result in claims for damages.
   
   
5. Software supplied by Tycom may only be installed for the purpose of processing internal business transactions and the business transactions of companies with which the customer is affiliated in accordance with §15 of the German Stock Corporation Act ("group companies"). This also applies to test installations which the client may set up within the framework of the provisions of the list of prices and conditions. Unless otherwise expressly agreed in writing, data centre operation is not permitted. Data centre operation shall be deemed to occur if the client permits third parties to use the programs, regardless of the technical means, or uses the programs for third parties.
   
   
6. In case of violation of essential contractual conditions, Tycom may withdraw the authorisation to use the delivered software from the customer at any time. The customer is not entitled to any claims whatsoever against Tycom due to the withdrawal of the right of use.

§ 6 Remedy of defects and warranty

1. In the case of consulting services, Tycom is entitled to rectify any inaccuracies and defects in its consulting services that subsequently become known. It is obliged to inform the client of this immediately.
   
   
2. In the case of consultancy services, the client is entitled to the rectification of defects free of charge within 4 weeks of Tycom providing the service complained about (reporting). For other deliveries and services, the warranty period is 12 (twelve) months.
   
   
3. With regard to all deliveries and services of Tycom, the customer shall be obliged to inspect and give notice of defects in accordance with §§ 377, 378 UGB, whereby the reasonable period within the meaning of § 377 para. 1 UGB may not exceed a maximum period of 5 working days.
   
   
4. Tycom warrants that its deliveries and services have the agreed quality at the time of the respective delivery or service and that the granting of the authorisation of use to the customer does not conflict with any rights of third parties. No warranty claims can be derived from information in catalogues, brochures, product descriptions, advertising material and other written or verbal statements that have not been expressly included in the contract. Minor defects shall not be considered. The burden of proof that the defects existed at the time of delivery/service provision lies with the client, the presumption of § 924 ABGB is excluded
   
   
5. In case of material defects, Tycom primarily warrants by improvement. The improvement is carried out at Tycom's discretion by eliminating the defect, in case of delivery of software by providing a new programme version or by Tycom showing reasonable possibilities to avoid the effects of the defect. In case of proven defects of title, Tycom provides warranty by subsequent fulfilment by providing the customer with a legally unobjectionable possibility to use the delivered software or, at its discretion, with replaced or modified equivalent software. The customer may only demand cancellation of the contract or a price reduction if the (possibly multiple) rectification of the defect finally fails despite a grace period of at least 30 days set in writing. Any reimbursement of expenses for the rectification of defects by the client itself or by third parties (substitute performance) is excluded. Cancellation of the contract shall only be considered in the case of defects that are not merely minor.
   
   
6. If Tycom provides troubleshooting services without being obliged to do so, Tycom may demand reasonable compensation. This applies in particular if a reported material defect is not reproducible and/or verifiable or cannot be attributed to Tycom; in this respect, the customer has the burden of proof that restrictions of use or errors are not (partly) caused by improper operation, by an intervention of the customer or by the system environment. Also to be remunerated is the additional expenditure for the elimination of defects incurred by Tycom due to the fact that the customer does not properly fulfil his obligations to cooperate.
   
   
7. Tycom shall, at its own expense, defend against claims asserted by third parties against the customer for infringement of property rights due to the deliveries and services of Tycom, insofar as such claims are not based on the behaviour of the customer. The customer shall contact Tycom before not recognising such claims against him. As far as this is legally possible, he authorises Tycom to take over the dispute with the third party in and out of court alone, but will provide Tycom with the necessary support to defend against the claims as far as necessary and useful. The customer shall inform Tycom immediately, in writing and comprehensively of any claims asserted by third parties.
   
   
8. Tycom does not provide any warranty for errors, malfunctions or damage caused by improper operation, changed operating system components, interfaces and parameters, use of unsuitable organisational means and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) as well as transport damage. For software that is subsequently modified by the customer or third parties, any warranty by Tycom is void. Insofar as the subject of the order is the modification or supplementation of existing software, the warranty refers solely to the modification or supplementation. This does not revive the warranty for the original programme.

§ 7 Liability

1. Tycom and its employees act in accordance with the generally recognised principles of professional practice when providing consulting services. Tycom is generally liable for damages only in the event that intent or gross negligence can be proven, within the framework of the statutory provisions. Liability for slight negligence is excluded in any case. This also applies to breaches of obligations by colleagues called in. The liability of Tycom for all claims of the customer is, irrespective of the legal grounds, as far as legally permissible, limited to the amount of the remuneration agreed in the respective contract. In the case of periodically due fees for continuous services, Tycom is liable up to a maximum amount of three monthly fees; in the case of the provision of services in definable individual projects, which are carried out on the basis of a uniform framework agreement, up to the maximum limit of that part of the total fee for the framework agreement which corresponds to the share of the definable individual project in all individual projects carried out under the framework agreement. In no case does Tycom assume liability for loss of profit, expected but not realised savings, damages from claims of third parties against the customer, indirect damages and consequential damages as well as for damages to recorded data.
   
   
2. The claim for damages can only be asserted in court within six months of the claimant(s) becoming aware of the damage, but no later than three years after the event giving rise to the claim.
   
   
3. If the work is carried out with the involvement of a third party, e.g. a data processing company, a public accountant or a lawyer, and the client is notified of this, any warranty and liability claims against the third party arising under the law and the terms and conditions of the third party shall be deemed to have been assigned to the client.

§ 8 Obligation to maintain confidentiality

1. Tycom, its employees and the colleagues called in undertake to maintain confidentiality about all matters that become known to them in connection with their work for the client. This confidentiality obligation applies both to the client and to the client's business relations.
   
   
2. Only the customer itself, but not its vicarious agents, can release Tycom from this confidentiality obligation in writing.
   
   
3. Tycom may only hand over reports, expert opinions and other written statements on the results of its activities to third parties with the consent of the client.
   
   
4. The duty of confidentiality on the part of Tycom, its employees and the colleagues called in shall also apply for the period after completion of the order. Exceptions to this are cases in which there is a legal obligation to provide information.
   
   
5. Tycom is authorised to process personal data entrusted to it within the scope of the purpose of the consultancy assignment or to have it processed by third parties. In accordance with the provisions of the Data Protection Act, Tycom guarantees the obligation to maintain data secrecy. Material provided to Tycom (data carriers, data, control figures, analyses, programs, etc.) as well as all results from the performance of the work shall be returned to the client.

§ 9 Fee claim, offsetting, retention of title

1. In the absence of an express agreement, Tycom shall be entitled to payment by the customer for its deliveries and services in accordance with its respective price and conditions list. All prices are exclusive of VAT. In the absence of an express agreement, the amount of the fee for consulting services shall be based on the fee guidelines for management consultants issued by the German Association of Management Consultants and Data Processing (Fachverband Unternehmensberatung und Datenverarbeitung) valid at the time the fee note is issued.
   
   
2. Insofar as the remuneration for software maintenance is fixed as a percentage of the purchase price for the software, Tycom may increase the percentage with two months' written notice to the end of the calendar year in accordance with the change in the Consumer Price Index (CPI) 2005 published by Statistics Austria or, if this is no longer published, a successor index. If, in this case, the client does not terminate the agreement on maintenance within two weeks of receipt of the notification at the end of the calendar year, the new remuneration is deemed to have been agreed. Tycom shall point this out in the announcement.
   
   
3. Travelling times of employees or vicarious agents of Tycom are considered working time. Travelling time shall be remunerated at the agreed hourly rate. In addition, travelling expenses and any accommodation costs shall be reimbursed by the customer according to actual expenditure and on presentation of receipts.
   
   
4. Invoices shall be issued with each individual delivery or service. Payments are due within 14 days of the invoice date.
   
   
5. If the execution of the order is prevented by the client after the contract has been signed (e.g. due to cancellation), Tycom shall nevertheless be entitled to the agreed fee.
   
   
6. If the execution of the order is cancelled due to circumstances that constitute an important reason on the part of Tycom, Tycom shall only be entitled to the part of the fee corresponding to its previous services. This applies in particular if, despite cancellation, the client is able to utilise its previous services.
   
   
7. The client may only offset undisputed and expressly recognised or legally established claims.
   
   
8. Tycom reserves all rights, in particular ownership, to items to be delivered (e.g. data carriers and user documentation) until complete fulfilment of its claims arising from the contract. The customer shall immediately notify Tycom in writing of any access by third parties to the goods subject to retention of title and inform the third party of Tycom's rights.
   
   
9. All fees, charges or taxes arising from the establishment of a software licence or service agreement subject to these terms and conditions shall be borne by the client. This applies in particular if the conclusion of a software licence or service contract subject to these terms and conditions triggers legal fees according to the Fees Act. In this case, the customer undertakes to make a proper notification of fees and shall indemnify and hold Tycom harmless in this respect. The customer is aware that fixed-term or open-ended software leases, as well as software transfer agreements that provide for a cancellation option for the licensor, are deemed to be subject to fees under applicable law.

§ 10 Reference, press release

1. Tycom is authorised to publish the conclusion of the contract in a press release. After fulfilment of the services of the order, Tycom is entitled to name the customer as a reference for future orders, as well as to publish a success report on its website, in social media or in the form of a press release and to use it for its own advertising purposes.

§ 11 Vicarious agents, assumption of contract

1. Tycom is authorised to have services owed performed (in whole or in part) by employees or commercial/freelance cooperation partners.
2. All or individual rights from this contract, as well as the entire contract, may be transferred by Tycom to its affiliated companies; the customer hereby agrees to this. The customer is not permitted to transfer this contract, to assign claims arising from it or to grant sub-licences etc. without the express prior written consent of Tycom.

§ 12 General

1. In the event that individual provisions of these General Terms and Conditions are or become invalid, this shall not affect the validity of the remaining provisions. In this case, the invalid provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision.
2. In the absence of a separate agreement, the place of fulfilment is the registered office of Tycom.
3. Unless otherwise agreed, only Austrian law shall apply to the order, its execution and the resulting claims, to the exclusion of the UN Convention on Contracts for the International Sale of Goods and Austrian private international law.