Axians

General Terms Governing Full-Service Maintenance Contracts

of NK Networks & Services GmbH (hereafter NK). The present Terms are an integral component of the Contract together with any supplementary or subsequent agreements. The Client hereby waives the use of his own terms of purchase and sale. By way of precaution, these are hereby explicitly voided.

1 General Definitions
Contract conclusion: a binding contract is created only after the signed confirmation of the maintenance contract by NK. The scope of the contract is defined exclusively by the service description given in the maintenance contract and the present General Terms. Pamphlets, literature, flowcharts, tender documentation or records used in preparation of the Contract are part of the scope of supply only when explicitly included.

2 Deliveries and Services of NK
2.1 The type and scope of services due under the Maintenance Contract are laid down in the Contract and the present General Contract Terms.
2.2 Any changes to the scope of services require at all times a written agreement quoting the type of service and the cost.
2.3 Possible technical malfunctions must be promptly notified by the Client to NK. Malfunctions are remedied at the times quoted in the Contract. If a problem is reported, NK will respond promptly. NK guarantees that troubleshooting and repair work will begin within the response time quoted in the Contract (telephone/remote support). NK will ensure the dispatch to the site of a service technician within a response time to be separately contracted.
2.4 The service fee includes the shipment and installation of any spare parts required, the replacement and repair of replaceable parts and modules as well as their shipping charges.
The supply and replacement of consumables and accessories such as ink ribbons, printer drums, toner cassettes or removable data media like magnetic disks, magnetic tapes or batteries, however, are excluded from the above. NK will bill the purchase of parts subject to wear, consumables, data media or accessories of all kinds as an additional service. Installation of parts subject to wear is part of repair or maintenance. 2.5 In lieu of repair, NK may at its discretion supply an equivalent replacement unit to the Client. In the latter case, the replacement unit becomes the property of the Client and the replaced unit the property of NK.
2.6 When repairs in a service center are not required, the work shall be carried out on the Client's premises at the installation site of the products. Where NK Remote Support is possible for approved products, NK shall provide it in the interest of the Client in the place of or in addition to services on the premises. Its use is at the discretion of NK.
2.7 NK is entitled to appoint a sufficiently qualified subcontractor with the supply of services in whole or in part and vouch for the latter's performance.
2.8 If the Client asserts a product liability claim vis-a-vis NK under a different agreement, the performance of the maintenance contract rests to that extent.

3 Spare Parts
3.1 Parts delivered in replacement must be in a flawless and functionally integral state.
3.2 With the disassembly, NK acquires ownership of the replaced parts and the Client ownership of delivered parts. The Client warrants that no rights of a third party are infringed thereby. NK undertakes to properly dispose of the parts.

4 Exclusion of Maintenance Services
4.1 The following services are not included in the scope of the Maintenance Contract and are subject to a separate repair order by the Client to NK:
- installation work beyond those in Item 2, installation of additional devices or upgrading of contract objects;
- network overhaul;
- general overhaul when required;
- system maintenance, modifications of system software and other technical service calls or the installation of accessories;
- premeditated or grossly negligent damage;
- consequences of operating errors and improper system use; operating errors and improper use are defined in the pertaining documentation and installation instructions of the manufacturer;
- repair of defects resulting from unforeseeable external events, e.g. due to third-party acts, sabotage, lightning strike, malfunction of energy supply or improper use;
- repair of damage that may be covered by insurance policies, in particular EDP object insurance (electronics, insurance, data protection insurance) and cost overrun or operation interruption coverage;
- work for the repair of the defects resulting from the use of system software not supplied by NK or excluded by NK; use of defective programs, results of faulty program use or the use of unsuitable accessories not recommended by NK;
- delivery, installation and testing of software updates, except when explicitly agreed;
- repair and maintenance work outside agreed maintenance intervals.
4.2 Major technical changes and expansions of the system not reported by the Client to NK and which cause additional maintenance work are not covered by the Maintenance Contract.
4.3 The maintenance of systems which contain components not covered by the Maintenance Contract ends at the interfaces of the component covered by the Maintenance Contract.
4.4 External work, e.g. work on electrical building lines, air conditioning units or wiring cabinets are not covered by the Maintenance Contract.

5 Service Delays
5.1 If NK is prevented by force majeure or delivery problems of the manufacturer from the contractual supply of products or service by the due date, the date for the supply or service shall be reasonably extended.
Force majeure in the sense of this Contract is any unforeseeable event or those beyond the control of NK even when foreseeable. This applies regardless of whether the event occurs with NK itself, the Client or an NK manufacturer, supplier or subcontractor. Cases of force major are in particular events such as war, riots, labor unrest, fire, storm, earthquake, lightning strike, floods, energy shortages, transport bottlenecks, power cuts etc.
5.2 The due date for delivery or service shall also be adequately extended when a delay in cooperation or an obstruction is attributable to the Client.
5.3 If contract performance becomes impossible for NK in whole or in part due to reasons quoted in Item 5.1, NK shall be exempt from its obligations to make delivery and the Client from his obligation to make payment.v 5.4 NK shall inform the Client promptly of any obstacles or infeasibility.
5.5 The Client is entitled to withdraw from the Contract if NK is in default and only after the Client has granted NK an adequate grace period in writing with the threat of withdrawal. Withdrawal from the Contract must be declared in writing. It may be declared only if NK has failed to perform within the grace period granted.

6 Retention and Setoff
6.1 The Client may invoke a right of retention only for claims arising from this Contract.
6.2 If the Client is in delay with the payment of a delivery or with his contractual performance, NK is entitled to withhold deliveries or services without the obligation to compensate any possibly resulting damage.

7 Reservation of Ownership
Goods remain the property of NK up to the settlement of all claims arising from the present Contract.

8 Payment and Remuneration
8.1 The remuneration payable by the Client is a function of the rates agreed in the Contract. Premiums for separate options (e.g. extended maintenance hours) or premiums for additional services must be paid in a full amount. Payments are due in advance net without deduction.
8.2 NK is entitled to revise the rates at the end of every contract year to match economic conditions. Revisions will be notified to the Client in writing at a notice period of six weeks effective to the end of a quarter. An increase may not exceed 10 % of the contract amount per contract year. The ceiling limit shall be the price quoted in the current pricelist of NK. If the increase exceeds 5 %, the Client is entitled to extraordinary termination within four weeks from receipt of the notice.
8.3 All prices are exclusive of the statutory value added tax in force at the time the service is supplied.

9 Default by Client
If the Client is in default of payment, NK is entitled to charge interest at an amount of eight percentage points above the current basic interest rate of the German Federal Bank.

10 Contract Term
The length of the Contract is a function of the contract term quoted in the Contract. The minimum term is one year. It shall be extended thereafter by one year each time except when a notice of termination was given in writing with a notice period of three months prior to expiration. The right of the parties to termination for major cause remains unaffected.

11 Cooperation Duty of Client
11.1 Contractual performance of NK by the due date is conditional on the Client meeting his cooperation duties in good time. In addition to submitting specifications or making acceptance where applicable, the Client shall supply promptly any information to NK required for contractual performance by the latter.
The Client shall in particular
- observe the installation and operating instructions of NK;
- use only accessories and materials supplied or approved by NK;
- when NK Remote Support is used, ensure access to technical installations near a central unit in line with NK instructions and the free use of a link;
- appoint in good time a contact person responsible for issuing binding information;
- supply professional personnel qualified to run the test programs and operate serviced components;
- sign the bill of quantities drafted on the basis of Client information;
- make available his EDP system for testing purposes when required;
- inform NK of major changes to the system or installation site; this also applies to major new equipment purchases;
- dispatch an employee of the Client to all on-site work qualified to deal with all organizational questions;
- observe the operating instructions and manual for operation of the system. These determine whether an operating error was committed or if maintenance services after unauthorized use are excluded under this contract.
11.2 Possible extra costs incurred by NK from late, incomplete or incorrect supply of information by the Client shall be for account of the latter.
11.3 If the Client has failed in his cooperation duty, NK may set an adequate grace period. After its fruitless expiration, NK is entitled to withdraw from the Contract. All services supplied by NK up to such time shall be duly remunerated.
11.4 NK's employees are not employed by the Client, including when performing their duties on the Client's premises. Instructions with effect both for and against NK must be given by the Client exclusively to the designated NK representative.

12 NK Product Liabilities
12.1 The product liability provisions of the BGB Work and Services Contract Law, in particular of Secs. 633 to 639 BGB, shall apply. The warranty period is 12 months.
12.2 Maintenance, repair or upkeep measures are designed to maintain operational readiness. NK is not liable for lack of performance by the system, lost profits, unrealized savings nor for direct or consequential damage.
12.3 NK is not liable for damage resulting from defects in the Specifications, faulty information, documentation or materials of the Client. 12.4 NK is not liable for the reconstitution of data. A contrary provision shall apply only if the Client has acted to limit the damage and when the data can be reconstituted from PC-readable media at a reasonable cost.
12.5 The limitations of liability do not apply to damage resulting from premeditation or gross negligence. They likewise do not apply to maliciously concealed vices and procurement undertakings of NK, neither do they restrict the legal liability for defective products.
12.6 The presence of a defect duly determined and notified entitles the Client to the following rights: In the case of a defect, the Client has initially the right to demand supplementary performance. The option whether this takes the form of supplying a new product or the repair of the defect is at the discretion of NK. If supplementary performance fails, NK is entitled at its discretion to renewed supplementary performance. Only if renewed supplementary performance fails, the Client is entitled to withdraw from the Contract or demand a reduction in the price. The Client may demand compensation or the reimbursement of futile expenses only in the case of premeditation or gross negligence in the supply of a flawless product. Proof of the cause and amount of the damage suffered must be submitted. The same applies to any futile expenses.

13 Liability for Other Forms of Default
13.1 Irrespective of the provisions on product liability and other specific requirements agreed hereunder, the following applies to a default by NK:
13.2 The Client must give NK an adequate period for supplementary performance in the event of a default. Only after the fruitless expiration of the grace period, the Client is entitled to withdraw from the contract or demand compensation.
13.3 The Client may demand compensation only in the case of premeditation or gross negligence on part of NK. Compensation in the place of performance (for non-performance, Sec. 280 III in connection with Sec. 281 BGB) as well as damage from delay (Sec. 280 II in connection with Sec. 286 BGB) is limited to the debit interest incurred. Compensation of damage from services not or non-contractually supplied (Sec. 282 BGB) is limited to 50 % of the annual total. Compensation in the place of performance in the absence of a performance obligation (infeasibility) is excluded.
13.4 Compulsory liability for injury to life and limb remains unaffected.
13.5 If the Client is solely or chiefly responsible for the circumstances that entitle him to contract withdrawal or if the circumstances entitling to withdrawal have arisen during a period of delayed acceptance by the Client, withdrawal from the contract is likewise excluded.

14 Confidentiality
14.1 The Contract parties undertake to keep confidential for an indefinite period all information on the opposite contract party acquired in connection with this Contract. In addition to operational flows, this applies in particular to all information designated confidential or which clearly constitutes operational or business secrets. Except when required for purposes of the Contract, the parties shall not transfer any records or reports to a third party. Transfer to a third party or any kind of disclosure requires the written consent of the Client except where required for purposes of the Contract.
14.2 All business and operational records of the Client shall be stored by NK in such a way that access to them by a third party is prevented.
14.3 The contract parties agree to instruct possibly appointed third parties to comply with the above two requirements.

15 Data Protection
All personal data of the Client acquired during the business relationship shall be processed by NK or its associates in full compliance of applicable legal provisions.

16 Export Clause
The export of products is subject to German export law.

17 Invalidity
If individual provisions of the Maintenance Contract or of these General Contract Terms should be or become invalid irrespective of the reason, the validity of the remaining provisions shall not be affected. The place of the ineffective provision shall be taken by one that comes as close as possible to the spirit and purpose of the invalid provision as far as legally possible.

18 Miscellaneous Provisions
18.1 The assignment by the Client of his rights under this Contract requires the written consent of NK.
18.2 Setoff may be declared by the Client only when the claims are undisputed of determined in the court of law.
18.3 This Contract contains all agreements concluded between the parties. No subsidiary written or verbal agreements have been entered into. Amendments or supplements must be given in writing.

19 Place of Jurisdiction
The place of jurisdiction for all disputes arising out this Contract is Cologne, Germany. NK is entitled, however, to take out proceedings at the court competent for the Client. The laws of the Federal Republic of Germany shall apply.

Stand: 2006 / 1