§ 1 Scope and purpose

§ 2 Performance of the contract

§ 3 Amendments to the contract

§ 4 Confidentiality, data protection, use of e-mail and fax, loyalty

§ 5 Prices and payment terms

§ 6 Customer’s duty of cooperation

§ 7 Warranty for defects

§ 8 Liability limitations

§ 9 Use of products of work, industrial property rights, indemnification

§ 10 Termination

§ 11 General

 

General Terms and Conditions (GTC)

of THIMM Consulting GmbH + Co. KG, Königsberger Strasse 8, 37154 Northeim, Germany
- hereinafter ‘THIMM Consulting’ -

§ 1 Scope and purpose

1.1

These Terms and Conditions apply to all proposals, goods and services provided by THIMM Consulting. Any deviating, contradictory or supplementary terms and conditions issued by the client shall not be binding on THIMM Consulting, even if they have not been expressly rejected by THIMM Consulting.

1.2

These Terms and Conditions cover the provision of contracted services by THIMM Consulting.

1.3

The aim of services provided by THIMM Consulting is to advise and support the customer. In providing its services, THIMM Consulting is not subject to the instructions of the customer. THIMM Consulting reserves the right to select staff members.

1.4

Proposals on the conclusion of a contract by THIMM Consulting are subject to change and are non-binding. A contract comes into effect only when THIMM Consulting has confirmed the order in writing.

§ 2 Performance of the contract

2.1

THIMM Consulting will provide the contractual services using suitably qualified staff members or third parties and will do so appropriately given the purpose of the contract, applying the due care and attention required for professional advisory activities, either at the premises of the client, at an agreed location or at THIMM Consulting’s own offices.

2.2

Both contracting parties shall appoint a project manager to be responsible for contract performance.

2.3

To the extent that THIMM Consulting is required to set out the results of contractual services in writing, only written accounts will be decisive in this respect.
Unless expressly agreed otherwise, any reports, expert opinions or investigative findings will be submitted in writing.
Any deviating verbal explanations and information provided by THIMM Consulting, its staff members or duly appointed third parties will, in contrast, be non-binding.
Fulfilment of the contract will be considered complete once the written account has been handed over by THIMM Consulting.

§ 3 Amendments to the contract

3.1

Both contracting parties may amend, in writing, the scope of services to be provided with the consent of the other contracting party.
After an appropriate amendment request has been received, the other contracting party is required to communicate its approval or rejection in writing, specifying its reasons for doing so, within two weeks.

3.2

If the contracting parties agree to a contractual amendment, the content of the change and the fee agreed shall be set out in writing in particular, in keeping with the provisions of these General Terms and Conditions and observing Section 1.4.

3.3

If an amendment requested by the customer requires considerable services to be provided by THIMM Consulting, a separate fee agreement between the contracting parties shall be concluded in writing in this respect.

§ 4 Confidentiality, data protection, use of e-mail and fax, loyalty

4.1

For the purposes of fulfilling the contract, THIMM Consulting is entitled to collect, save and process personal data entrusted to it using data processing systems, while observing the data protection provisions in force.
THIMM Consulting will process personal data pertaining to the client in keeping with the client’s instructions as per Section 11 of Germany’s Federal Data Protection Act.

4.2

The contracting parties will indefinitely treat as confidential any information or information material made known to them directly or indirectly in the context of the contractual relationship, whether communicated verbally, in writing or in any other way, which is marked as confidential or would normally be regarded as confidential given the nature of its subject matter and will use the same only for the purposes of the services covered by this contract. Information or  information material regarded as confidential may not be used by or passed to a third party without the prior written consent of the party concerned. These obligations persist for both contracting parties even after the contract has ended.
THIMM Consulting is permitted to use data in anonymised form for presentation and illustration purposes outside the specific framework of the project.

4.3

If the customer gives THIMM Consulting a fax number, the customer thereby consents to receiving customer-related information from THIMM Consulting via this fax connection, without restriction. The customer must inform THIMM Consulting immediately if any restrictions apply in this respect, for example if faxes should be sent only if the customer has been informed thereof and agrees beforehand.

4.4

If the customer gives THIMM Consulting an e-mail address, the customer consents to receiving customer-related information from THIMM Consulting by e-mail, without restriction. The customer is aware that unencrypted e-mails offer only limited confidentiality. In particular, situations cannot be ruled out where a third party gains access to the data, learns of the data and modifies it or where data reaching the recipient has been falsified, is incomplete or is delayed or
even fails to reach the recipient at all. Furthermore, electronic messages may contain viruses and other elements that disrupt or cause harm to another computer system.
THIMM Consulting accepts no liability for any damage or loss that may be incurred by the customer or a third party as a result of such communications, unless the damage or loss is attributable to a wilful or grossly negligent breach of the obligations arising from this contractual relationship.

4.5

The signing parties agree to refrain from any head-hunting of staff members. During THIMM Consulting’s activities, and after they have ended, no staff member of either contracting party will be recruited or otherwise engaged by the other contracting party, without the express written consent of the other contracting party. In the event of any breach by a contracting party in this respect, a transfer payment of EUR 100,000 will be charged by the other contracting party and will be payable immediately.

§ 5 Prices and payment terms

5.1

Payment shall be effected in accordance with the payment terms set out in the proposal. Payments shall encompass net prices plus VAT at the statutory rate.

5.2

Unless alternative arrangements have been made, invoices will be issued on a monthly basis at the end of each calendar month. Invoices are payable immediately upon receipt without any deductions or discounts.

5.3

Once the agreed deadline for payment has passed, the customer will be in default. During the period of default, the customer will incur interest on arrears of 8% over the base interest rate in accordance with Section 247 of Germany’s Civil Code. THIMM Consulting reserves the right to charge a higher rate of interest on arrears.

5.4

If the customer defaults on payment, THIMM Consulting
a) is not obligated to provide further services under any contract until the invoice amounts due, including interest on arrears, have been settled
a n d
b) is entitled, at its discretion, to withdraw from any contracts already concluded or to assert a claim for compensation in lieu of payment, if the customer fails to effect payment within 10 days of receiving a legitimate reminder.

5.5

The customer may exercise a right of retention only if its counterclaim
relates to the same contract.
Claims may be offset with counterclaims only if these counterclaims have been acknowledged by THIMM Consulting in writing, are definitively established in law or a judicial decision in this respect is ready to be taken.

§ 6 Customer’s duty of cooperation

6.1

In order to provide services, THIMM Consulting relies on the support and cooperation of the client. The client will therefore make available to THIMM Consulting, in good time, in full and free of charge, any resources, information and documentation that THIMM Consulting deems to be necessary for providing the services covered by this contract. THIMM Consulting may assume that any resources, information and documentation is complete, accurate and up-to-date, except in circumstances where it is clearly apparent to THIMM Consulting that they are incomplete, inaccurate or no longer up-todate. The customer shall be liable to THIMM Consulting for ensuring that the data  communicated and the results attainable with THIMM Consulting are accurate.  The customer shall relieve THIMM Consulting in this respect of any need to check the accuracy of data communicated. THIMM Consulting accepts no liability for items given over to THIMM Consulting by the customer for test purposes in the context of fulfilling the contract.

6.2

In addition, THIMM Consulting staff members will be given access, free of charge, to data processing systems and any computer time, test data and data collection capacity to the extent required. If and to the extent required, the client will make available its own staff members, who will be adequately qualified in the view of THIMM Consulting, as required for cooperation purposes.

6.3

The customer will appoint a responsible project manager to be the point of contact for THIMM Consulting for the entire duration of the consulting assignment. In the event that the project manager ceases his employment with the customer during the course of the consulting assignment, the customer is entitled and required to appoint a new project manager; in doing so, the customer will take care to ensure that the new project manager is fully informed as to the assignment and its current status when he takes up his duties. The same applies in the event that the project manager is on long-term sick leave or is not available to take part in the project for some other good reason for an extended period.

6.4

When implementing the individual advice of THIMM Consulting, the customer is required to check carefully whether such advice is indeed to be implemented or whether such implementation may have a damaging impact on its own production and operations.
Unless a separate written agreement is in place, THIMM Consulting is not contracted or required to supervise and monitor the customer’s implementation of recommendations.

6.5

If the customer fails to cooperate as required on time or fails to do so in the agreed manner, the resulting consequences (e.g. delays, additional costs, damage/losses) must be borne by the customer. Similarly, THIMM Consulting may demand changes to the agreed deadlines and fees, without prejudice to other rights enjoyed by law.

§ 7 Warranty for defects

7.1

The customer is required to examine services provided by THIMM Consulting for defects and report any defects to THIMM Consulting in writing.
Reports of obvious defects shall be deemed made on time, if they are received by THIMM Consulting in writing within 7 calendar days of the service being delivered or received. Reports of concealed defects will be deemed made on time if they are received by THIMM Consulting within 7 calendar days of their discovery.

7.2

Where the customer fails to fulfil its obligation to examine services and report defects, the service will be deemed to have been approved with regard to the defect in question.

7.3

THIMM Consulting shall be given an opportunity to rectify the defect within an appropriate timeframe. If THIMM Consulting is unable to rectify the defect in question in an appropriate period of grace, the customer can, as it sees fit, demand that the price be reduced or that the contract be rescinded. Withdrawal from the contract is not permitted in the case of immaterial errors.

7.4

Warranty claims for defects are excluded in the event of immaterial deviation from the agreed qualities or in the event of damage/losses incurred following receipt of the service as a result of defective or improper  implementation or implementation other than that agreed by contract, unsuitable operating resources or as a result of particular factors that are not provided for in the contract. Claims for compensation under the following conditions due to a defect, can only be asserted by the customer if subsequent performance has failed or THIMM Consulting refuses subsequent performance. The right of the customer to assert further claims for compensation under the conditions set out below in Section 8 remains unaffected.

7.5

The warranty period for defects is 12 months from receipt of the service or, if performance of work is expressly agreed, 12 months from acceptance of the work.

§ 8 Liability limitations

8.1

THIMM Consulting shall accept liability in accordance with the liability limitations set out above and below in the event of damage to life, body and health attributable to a wilful or grossly negligent breach of an obligation on the part of THIMM Consulting, its legal representatives or vicarious agents, in the event of damage covered by liability under Germany’s Product Liability Act, in the event of damage attributable to wilful or grossly negligent breaches of duty and to fraudulent intent or acceptance of a guarantee on the part of THIMM Consulting.

8.2

THIMM Consulting shall also accept liability in the event of damage caused by ordinary negligence, if this negligence involves the breach of contractual obligations, where compliance with these obligations is essential for achieving the purpose of the contract (cardinal obligations). However, THIMM Consulting shall accept liability only if the damage is typically associated with the contract, is foreseeable and limited to the total covered by existing product liability insurance with current coverage of EUR 250,000 per damage event or a maximum of EUR 500,000 per year. In the event of breaches to noncardinal secondary obligations caused by ordinary negligence, THIMM Consulting shall accept no liability.

8.3

The liability limitations set out in the previous paragraphs also apply as far as the liability of legal representatives, executives and other vicarious agents of THIMM Consulting is concerned. Any further liability is excluded, irrespective of the legal nature of the asserted claim. To the extent that liability on the part of THIMM Consulting is excluded or limited, this also applies to the personal liability of its executives, workers, staff members, representatives and other vicarious agents.

§ 9 Use of products of work, industrial property rights,
indemnification

9.1

All property rights and copyrights in drawings, plans, cost estimates, quotes and other documents provided to the customer are reserved by THIMM Consulting. Such documentation and/or information may be used only as specified by contract in connection with the goods delivered by THIMM Consulting and must not be made available to third parties without the express written consent of THIMM Consulting. Programs and associated documentation are intended only for the customer’s own use in its business operations.

9.2

THIMM Consulting shall grant the customer a non-exclusive, indefinite, irrevocable and non-transferable right to use the products of services provided in the context of the contract, to the extent that such products arise given the purpose and scope of the contract. The customer undertakes to use the products of work completed in the context of the THIMM Consulting project such as expert opinions, organisational plans, programs/software, drafts, drawings, lists, calculations or similar products of work only for its own internal purposes; any other use requires express written agreement between the contracting
parties.

9.3

If and to the extent that copyrights or other property rights to the products of work arise, these are reserved by THIMM Consulting.
In this respect, a right to use these rights shall be afforded to the other contracting party, which is not to be charged separately, is indefinite, is non-exclusive and can only be transferred to a third party with the consent of the other contracting party. The same applies without exception, if THIMM Consulting uses its own methods, results, programs/software or similarly protectable know-how, with regard to any industrial property rights enjoyed by THIMM Consulting. Any transfer of use to a third party requires the written consent of all property right holders.

9.4

To the extent that THIMM Consulting provides services on the basis of specifications or documents from the customer, the customer is required to ensure that no third-party rights are infringed in relation with THIMM Consulting providing this service. The customer shall relieve THIMM Consulting of any need to examine the legal situation. If claims are asserted against THIMM Consulting by a third party due to the infringement of property rights, the customer is required to indemnify THIMM Consulting against such claims and any associated
expenses when first requested to do so in writing.

§ 10 Termination

10.1

THIMM Consulting and the customer may duly terminate the respective contract at any time giving notice of one month to the month-end.
In the event of termination, the customer will pay the contractually agreed fee, minus any costs for the part of the agreed service that are not incurred due to the termination.

10.2

THIMM Consulting and the customer may terminate the contract without notice in accordance with Section 314 of Germany’s Civil Code if the other contracting party.
fails to fulfil its contractual obligations, even after being granted an appropriate period of grace. This does not apply in the case of immaterial breaches.

§ 11 General

11.1

THIMM Consulting is entitled to contract third parties to provide the agreed services or parts thereof.

11.2

Amendments or additions to a contract must be made in writing. This also applies if the requirement for the written form is to be waived.

11.3

These Terms and Conditions are governed exclusively by the law of the Federal Republic of Germany as it stands at any given time. The use of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) is excluded.

11.4

Should a condition or part of this contract be ineffective, this has no effect on the validity of the remaining conditions.

11.5

The place of performance and place of jurisdiction for any disputes arising from the contractual relationship shall be the place of business of THIMM Consulting in Northeim, Germany, if the customer is a businessman or a legal entity under public law.

11.6

The customer is permitted to assign the rights arising from this contract only with the prior written consent of THIMM Consulting. THIMM Consulting may withhold consent only where good reason for doing so exists.

Status: September 28^th, 2011