General Terms and Conditions of the bit-control GmbH

Preamble

The following conditions of delivery and payment are an expansion of current law, and form the basis for our delivery and performance contracts. Our general conditions and terms of sale are applicable only vis-a-vis other corporate entities within the parameters of the German Civil Code, §310 par.1 BGB.

§1.   Formation of Contract

1.1   We consider ourselves bound to any offers made for a period of 30 days.
1.2   A contract comes about only when an order is confirmed by us in writing. The contents of the contract are determined solely by the contents of the order confirmation, and by these general conditions of sale, the parties recognise these terms by issuing an order, respectively by acceptance of the delivered goods by the purchasing party. This also applies if we do not expressly contradict any conditions that are worded differently. Other conditions imposed by the ordering party are only binding on us if we have expressly confirmed these in writing.
1.3   In variance with para. 1 above, in the case of the delivery of moveable goods that do not require planning or installation we will consider ourselves to be bound to our offer for a period of 14 days. In this case a valid contract also comes about when the customer accepts our written offer. In this case a separate order confirmation is not required.
1.4   Follow-up orders are independent in technique, pricing and processing and don't interfere the preceding order in terms of warranty.

§2.   Pricing

2.1   A binding determination of prices takes place only in the form of our written order confirmation, and with the proviso that the data underlying the order confirmation remain unchanged. Prices are stated net ex works Sontra in Euros, to which must be added the rate of value added tax applicable at the time of delivery.
2.2   Packaging, postage or freight, insurances and other costs related to dispatch are not included, and will be invoiced separately.
2.3   Any alterations made to the item in question at the request of the customer after the order has been confirmed will be invoiced to the customer.

§3.   Delivery quantities, delivery period

3.1   Any production related short or oversupplies up to a maximum variance of 10% of the ordered quantity are permissible, and will be reflected accordingly in the invoiced amount.
3.2   We are entitled to effect part deliveries.
3.3   The delivery periods stated by us refer to the date when the goods will be dispatched. We will be considered to have adhered to the agreed terms if at the agreed time the goods have left the factory, or if the customer has been informed that the goods are ready for delivery.
3.4   The agreed period of delivery applies in all cases only once all technical and commercial details have been clarified. In this sense, all delivery periods are non-binding. Delivery periods are only binding if and when the delivery date has been confirmed as binding to the customer in writing.
3.5   If any action is required by the customer in order to execute the delivery or to produce the works, the delivery period begins only once the customer has completed the necessary action.
3.6   In case the delivery period is exceeded, the purchaser must grant a suitable extension period, which may not be less than three weeks.
3.7   If the agreed delivery period, including an appropriate extension, is not adhered to, we shall be liable in cases of straightforward negligence only to the extent of the invoice value of the number of items not delivered on time, up to a maximum of the amount of negative interest.
3.8   Force majeure, disruptions of our operations and similar unforeseeable circumstances which do not fall within the responsibility of the supplier will serve to put out of force any delivery periods for as long as the disruption continues. In these cases, the customer is not entitled to cancel the contract nor to demand payment of damages.
3.9   Goods are supplied EX WORKS (Incoterms 2000).

§4.   Warranties

4.1   The warranty period is one year, beginning with the delivery of the goods. Warranty periods as per § 438 para. 1 No 2 and 634 a para. 1 § 2 BGB are not affected by this statement.
4.2   The customer is obliged to check the goods immediately after delivery to see whether they are free of faults. Evident faults must be communicated to us immediately in writing, no later than one week after receipt of the goods. If evident faults are not reported timeously or in the required form, the warranty does not apply.
4.3   Any other faults must be reported to us immediately, within one week of the fault being noticed.
4.4   Minor faults that do not significantly affect the value of the goods, nor their suitability for use are excluded from the warranty.
4.5   We are entitled to decide which form restitution should take. This means that we will decide whether to correct the fault, or to deliver a replacement product. If our first attempt to correct the fault fails, we are entitled to attempt once more to correct the fault. In this case, too, we are entitled to decide as to whether to correct the fault or to supply a replacement product.
4.6   The customer is only entitled to rescind the contract, or to demand compensatory damages if we have twice failed to correct the fault.

§5.   Infringement of duties and obligations

5.1   We are only liable for infringements of our duties in as far as we or our legal representatives or other intermediaries instructed by us have intentionally or grossly negligent. This limitation of liability does not apply in case of damage to life, body or health by us, our legal representatives of other intermediaries instructed by us.
5.2   We are specifically not liable for infringements of duties that result from performance by ourselves in accordance with drawings, print samples or other templates or samples approved by the customer and released as documentation on which production is based. No liability is accepted for the design and correct execution of any reproduced material. However we are obliged, in as far as this is evident, to immediately inform the customer if it is technically impossible to execute the designs or material.
5.3   Liability for the infringement of the rights of third parties is specifically excluded with respect to work performed in accordance with instructions by the customer. We are not required to investigate whether the rights of any third parties are being infringed.

§6.   Payment terms

6.1   Unless otherwise agreed, all invoices are due for immediate net payment.
6.2   If payment is delayed beyond the agreed date, we are entitled to calculate interest at a rate of 8 percentage points above the base interest rate of the European Central Bank. We are entitled at any time to prove a greater amount of damage caused by the delay in payment.
6.3   Bank drafts are not accepted, and cheques are accepted only provisionally and subject to their being honoured by the bank.
6.4   If the customer is late with payments to us from previous or current contracts, we shall be entitled to refuse to fulfill any further parts of the contract.
6.5   If there is a significant likelihood that payment will not be forthcoming, we shall be entitled to demand prepayment or the provision of adequate securities.
6.6   If the customer refuses prepayment or the provision of securities, we shall be entitled to rescind the contract, and to claim damages.
6.7   Irrespective of other directions given by the customer, any payments received will be applied first to pay for costs, afterwards interest, and the main claim last, in the case of several claims, the oldest claim will be deemed to have been paid first.
6.8   In satisfying our claims, offset or partial withholding of payment may only be applied with respect to claims that have already been found to be justified, or that are not in dispute.

§7.   Ownership

7.1   Goods supplied remain the property of the seller until all our claims against the customer due at the date of invoice have been paid in full.
7.2   In case the goods in dispute have been further processed or altered, we retain co-ownership in the final product, to the extent of the value of our claim in the disputed goods prior to alteration or processing.
7.3   The customer is only entitled to sell the disputed goods within the framework of his normal business transactions. If the customer sells the disputed goods onward, then he cedes his claim for payment against his customer at the time of the onward sale. The customer must oblige his customer to effect payment directly to us to the extent of his payment obligations resulting from the onward sale. Exceptions to this rule must first be agreed to in writing between us and our customer.
7.4   Other than that, the customer is not permitted to dispose of the disputed goods, in particular he is not permitted to cede ownership of the goods in the process of providing sureties or guarantees.
7.5   If a court order seizes the assets of the customer, and if the disputed goods are affected by this, this must immediately be reported to us in writing, stating all required details (body issuing the order, file reference, where applicable copy of the documents related to the seizure.
7.6   Any items provided by us to the customer, and which are not part of our work performance as such (e.g. designs, construction drawings, tools, etc.), remain our property. We are entitled to demand return of these at any time. The right of partial withholding in response to our demand may only be claimed with respect to such claims that have already been found to be justified, or that are not in dispute.

§8.   Software Usage, Rights, Sourcecode

8.1   In case software included as a part of the delivery, the customer has a not exclusive right to use the delivered software including the documentation.
8.2   The bit control GmbH remains the owner of all copyrights and rights of the software ceeded to the customer including the correspondent documentation material, even if the customer changes it or connects it with his own programmes and / or those of third parties. By such changes or connections as well as by the production of copies the customer attaches a suitable originator's note.
8.3   The rights resulting from the copyright are entitled to the manufacturer of the software. The software contains copyright material as well as trade secrets to whose protection the customer commits himself.
8.4   The copyright encloses in particular the program code, the documentation, the appearance, the structure and organisation of the program files, the program names, logos and other representation forms within the software. Every not expressly approved duplication, use, passing on, change or reproduction of the contents of the software is prohibited.
8.5   It is forbidden to convert the sourcecode, to decompile, to reassemble or to convert it in other manner into generally readable form, as well as to change software or parts of the software or derived products, to adapt, to translate, to rent, to lend or to produce.
8.6   On software there's no claim for the publication of the source code, with exception of Open Source passes software whose licence regulations have precedence with regard to passing on compared with these conditions. In this case the sourcecode is made available against cost allowance. A publication of the sourcecode needs an explicit written arrangement about kind and extent of the publication as well as an additional reimbursement.
8.7   The software will be left for the use on the object of delivery stated for it. A use of the software on more than one system is prohibited.
8.8   The customer may multiplicate the software only in the legally allowed extent (§69a and following UrhG) and rework. The customer is commited not to remove manufacturer's data - in particular copyright notes - without the explicit approval of the supplier.
8.9   All other rights in the software and the documentations including the copies remain with the supplier or with the software supplier. The placing of sublicences is not allowed.

§9.   Place of fulfilment and responsible court

9.1   The place of fulfilment is Sontra/Germany.
9.2   The court at Eschwege/Germany shall be responsible for any actions or disputes. We are however also entitled to sue our customer at his general registered location and legal domicile.
9.3   Exclusively German law shall apply, excluding specifically the law on the international sale of moveable goods.

§10.   Final matters

10.1   This Agreement has been prepared in German and English. When in doubt, the German text shall prevail.
10.2   Notice according §33 clause 1 BDatSchG: For the purpose of data storage we are using an EDP machine.
10.3   If any item is not valid, this shall not affect the validity of the other items. Any invalid term shall be considered to be replaced by a valid term of equal commercial effect. All declarations affecting the effect of the contractual relationship must be executed in writing. Any alteration of this requirement must itself be in a written form.

The General Terms and Conditions of the bit-control GmbH contain §1 to §10.

Sontra, January 2008