for the use and maintenance of SAP software

1. Conclusion of contract

1.1 ANG shall be bound by its offers for three months. For the contract to be valid, it must be signed by the customer and countersigned by ANG.

1.2 Delivery items, documents, proposals, test programs, etc. are the intellectual property of ANG and/or contain business secrets of ANG; they may not be made accessible to third parties. If no contract is concluded, they must be returned or deleted or destroyed and may not be used. Section 16.1 also applies to programs.

2. Terms of contract

2.1 The rules in the Price and Conditions List for SAP Business One (including any Add’Ons) and these General Terms and Conditions of ANG apply exclusively. For software and data of third parties that ANG co-distributes, special conditions apply in some cases. Other terms and conditions shall not become part of the contract, even if ANG does not expressly object to them.

3. Software selection

3.1 The Customer is aware of the essential functional features of the Software; he bears the risk as to whether the Software meets his wishes and requirements. In case of doubt, the customer shall seek advice from ANG employees or competent third parties before concluding the contract. Section 13 applies to any liability of ANG.

4. Delivery item

4.1 ANG delivers the Software (executable machine program, user documentation) in accordance with the product description and the P/K list. The customer is entitled to delivery of the programs and the user documentation (SAP standard documentation).

4.2 The technical possibilities and conditions of use of the programs (e.g. with regard to database, operating system and hardware) are set out in the applicable P/K list or will be communicated by ANG to the Customer on request. Unless otherwise agreed, the Customer shall receive standard software in the version current at the time of delivery.

5. Rights to software

5.1 The rights to the software, in particular the copyright with all rights to the programs, documents and information provided in the context of the initiation and execution of the contract, including warranty and maintenance as well as the provision of services, are exclusively owned by ANG in relation to the customer, even if these items were created by specifications or with the cooperation of the customer. The customer only has the non-exclusive, perpetual rights of use to these items in accordance with clause 6.

5.2 In particular, the copying of the programs without express permission, the transfer of the software without express permission and the development of similar software using the SAP software as a template are prohibited by law and contract.

6. Rights of use of the customer

6.1 The customer may only use the program components or function blocks specified in the contract, even if he can also technically access others.

The software may only be used for the customer’s own purposes or for the purposes of its group companies. Clients may only be created for the customer’s own purposes and for the purposes of group companies. Group companies are companies in which the customer holds more than 50% of the capital.

Data center operations (with the exception of those for group companies) are not permitted. Data center operation is deemed to be when the customer permits third parties to use the programs by whatever technical means or uses the programs for third parties.

6.2 All data processing devices (e.g. hard disks and central processing units) to which the software is copied in whole or in part, temporarily or permanently, must be located on the customer’s premises and be in the customer’s direct possession.

6.3 The customer may make the necessary backup copies of the programs for data backup purposes. A backup copy on a movable data carrier must be labeled as such and provided with the copyright notice of the original data carrier. The user documentation may be copied on paper for internal purposes. The customer may neither change nor remove copyright notices of ANG.

6.4 Before decompiling the programs, the customer must request ANG in writing within a reasonable period of time to provide the information and documents necessary to establish interoperability. Only if this request remains unsuccessful despite a written deadline being set is the customer entitled to decompile within the limits of Art. 21 of the Copyright Act and Art. 17 of the Copyright Ordinance. Before engaging third parties for this purpose, the customer shall provide ANG with a written declaration from the third party that the latter undertakes directly to ANG to comply with the rules set out in Clauses 5 and 6.

6.5 The Customer may only pass on the Software to third parties by selling it, but not by renting it, and only by giving up its own use. Such transfer is subject to ANG’s written consent, which ANG will not unreasonably withhold. Together with the request for consent, the customer shall submit a written declaration from his customer according to which the customer binds himself vis-à-vis ANG to the rules of use and transfer as they correspond to the ANG standard contracts existing at that time. The customer is not entitled to exercise the contractual rights of use until the customer has confirmed to ANG in writing that it has passed on all original program copies to the customer and deleted all copies it has made itself. Clause 16 applies accordingly. Section 6.8 below and the corresponding provisions in the P/K List apply to the transfer of modifications and enhancements to the SAP Business One Software.

6.6 If the software is delivered on the basis of the customer’s order, the customer’s authorizations shall commence upon receipt of the software by the customer. For software which he does not receive on the basis of his first order, but e.g. in the context of subsequent improvement or maintenance, these authorizations begin as soon as he saves the programs on a hard disk or processes them in a CPU. As soon as he uses the new programs, his authorizations under clauses 5 and 6 expire with regard to the programs previously provided and now replaced. However, he may use the new programs as a test system for three months in accordance with the rules of the P/K list alongside the old, productively used programs. Clause 16 sentences 4 and 5 shall apply accordingly to the return.

6.7 Any use of the Programs that goes beyond the provisions in these Terms and Conditions or in the P/K List requires the prior written consent of ANG. If use is made without such consent, ANG may demand immediate cessation of further use and charge a fee commensurate with the duration of the unauthorized use or, if use is subsequently permitted, charge an additional fee in accordance with the applicable P/K List. ANG reserves the right to assert claims for damages in any case.

6.8 The customer allows ANG to measure each installation once per quarter, i.e. to determine the conformity of the actual use of the Software by the customer with the usage authorizations previously paid for by the customer and the contractual agreements, to calculate the value according to the then applicable P/K list and to demand any difference in value for usage authorizations not yet paid for by the customer.

The customer may make the changes and extensions to the software described as permitted in the P/K list. The rights to the modifications/extensions are governed by the provisions therein. ANG points out that even minor changes to the software can lead to significant, unforeseeable disruptions in the operation of the modified or other programs. The customer is therefore warned against unauthorized changes to the programs; the customer alone bears the risk.

6.9 For software from other manufacturers, special terms of use apply in some cases. Unless otherwise agreed, ANG provides only those rights of use for this software that are necessary to use the third-party software together with SAP software. A right to modify/extend or to pass on the third-party software is not included therein, unless expressly agreed otherwise.

7. Cooperation of the customer

7.1 The Customer is responsible for the working environment of the Software (e.g. hardware and operating system) in accordance with ANG’s specifications. When using the Software, the Customer shall observe the specifications in the user documentation.

7.2 The customer shall support ANG in the performance of the contract to the extent necessary and free of charge, e.g. by providing employees, work rooms, hardware and software as well as telecommunications facilities (e.g. LANS, Telepac connections, leased or dial-up lines) and the data, documents and information required by ANG in full and in good time. It shall grant ANG the necessary access and authorizations and enable access to the software by means of remote data transmission; in doing so, ANG shall observe data protection. If technically simple access by means of telecommunication facilities is not possible or permitted, the customer shall bear the resulting consequences, in particular the additional costs incurred by ANG.

7.3 The customer shall thoroughly test each program for freedom from errors and for usability in the specific situation before commencing productive use of the program. This also applies to programs and program parts that he receives within the scope of the warranty and maintenance. The customer shall take appropriate precautions in the event that the software does not work properly in whole or in part, namely through alternative procedures, data backup, fault diagnosis, regular checking of results, etc.

8. Contact person

8.1 The customer appoints a contact person who, in addition to the management, is ANG’s contact person and who makes or prepares the relevant decisions on the customer’s side. The contact person shall ensure good cooperation between the customer and ANG’s account manager.

8.2 For its part, ANG appoints an account manager who, in addition to the management, is the customer’s contact person, in particular the customer’s contact person.

9. Delivery

9.1 Delivery of the Software is effected by handing over the machine-runnable program to the Customer by handing over the data carrier, by reading it into the computer or by remote data transmission and by handing over the user documentation. ANG may make partial deliveries. Unless otherwise agreed in writing, it is the customer’s responsibility to put the software into operation. If ANG supports the customer in this, its services (preparation for use, installation, instruction, training, consulting, etc.) shall be remunerated. In the absence of a special agreement, Clause 18 shall apply.

9.2 ANG shall deliver the Software, if possible, on the date specified in the Contract. This date is binding if it is expressly agreed in writing. In any case, obstacles to delivery beyond ANG’s control such as natural disasters, mobilization, war, riots, epidemics, accidents, significant operational disruptions, industrial disputes and official measures are reserved.

9.3 In the event of delivery delays of more than 180 days beyond the non-binding delivery date stipulated in the contract for which the customer is not responsible, the customer shall be free to withdraw from the contract by registered letter.

9.4 If a deadline expressly agreed as binding cannot be met by ANG for reasons for which it is responsible, the customer shall set ANG a reasonable grace period appropriate to the circumstances. If ANG does not comply with this grace period, the customer has the right to withdraw from the contract in whole or in part after a second reasonable grace period has expired to no avail. Reminders and grace periods set by the customer must be in writing to be effective. Deadlines must be appropriate to the circumstances, but must be at least 12 working days.

9.5 If ANG is waiting for cooperation or information from the customer or is otherwise hindered in the performance of the contract (Clause 9.2), the delivery date shall be deemed to be postponed by the duration of the hindrance and by a reasonable start-up period after the end of the hindrance. ANG shall notify the customer of the impediment.

10. Prices and payment methods

10.1 The prices for the transfer of use and maintenance of the Software as well as the rates for ANG’s services valid at the time of conclusion of the contract (Clause 18) include costs for data carriers, packaging and transportation. Other ancillary costs incurred by ANG, such as machine costs, costs for materials, insurance, taxes, customs duties, fees, etc. will be invoiced separately.

10.2 Unless otherwise agreed in writing in the contract, invoicing for the provision of use shall take place upon delivery of the software, for maintenance for the first time upon expiry of the guarantee period (clause 12.5) pro rata temporis for the remuneration period specified in the P/K list and subsequently periodically in advance, and for services at the end of each calendar month. Payments are due within 30 days of the invoice date. No discount is granted. From 14 days after the due date, ANG may charge default interest of 3% above the discount rate of the Swiss National Bank without issuing a reminder.

10.3 Payments shall be made by the customer even if warranty services are still to be provided after delivery of the software. Differences of opinion between the parties regarding the interpretation or fulfillment of the contract entitle the customer neither to defer payments nor to change payment terms. The customer may only set off ANG’s claims against its own claims if ANG expressly agrees to this in writing or if the claim has been legally established. The customer may not assign its claims against ANG to third parties.

11. Retention of title

11.1 Until full payment of the agreed remuneration for the transfer of use of the Software, including default interest, ANG retains title to the data carriers and the user documentation in accordance with Art. 715 et seq. of the Swiss Civil Code. ANG may have the retention of title entered in the relevant register and inform any landlord of the customer’s business premises thereof. The customer must inform ANG immediately in writing of any enforcement attempts or other impairments of the software products or data carriers and user documentation encumbered with the retention of title by third parties.

12. Guarantee

12.1 ANG warrants to the Customer that the computer programs correspond to the description in the user documentation supplied. ANG cannot guarantee that the computer programs can be used without interruption or error and under any conditions of use.

12.2 Upon complaint by the Customer, ANG shall endeavor to rectify appropriately documented, reproducible program errors. The urgency of the rectification depends on the degree of operational hindrance. The rectification shall be carried out by eliminating the error, by providing instructions on how to avoid the effects of the error or by providing a new program version. The customer shall support ANG in accordance with clause 7. The customer shall accept a new program version, unless this would lead to unreasonable adaptation and conversion problems for the customer.

12.3 The customer shall declare complaints in writing with a precise description of the problem. Only the contact person according to clause 8.1 is authorized to give notice of defects. Delayed, insufficient or unfounded complaints shall release ANG from its warranty obligations.

12.4 If, despite repeated efforts, ANG does not succeed in rectifying a defect duly notified by the customer, and if the usability of the programs is thereby significantly reduced or excluded compared to the description in the user documentation, the customer must set a reasonable grace period twice in writing and may withdraw from the contract for the affected program component or function block after its unsuccessful expiry. In the event of other defects, the customer has the right to a reduction or partial reimbursement of the remuneration for the program component or function block concerned in proportion to the reduced value. Any further warranty by ANG is hereby expressly excluded, in particular also new delivery and reimbursement of expenses in the event of rectification of defects by third parties.

12.5 ANG’s warranty period is 6 months from delivery.

12.6 ANG shall support the Customer in the search for the cause of the error. If the error is not demonstrably attributable to ANG, but could lie in the operation or use by the customer contrary to the specifications (in particular contrary to clause 6), in the modification of the programs, the system environment or in items not supplied by ANG, ANG shall be remunerated by the customer for its research and troubleshooting work at the fee rates according to the applicable P/K list.

13. Liability

13.1 ANG is liable to the customer for damages arising in connection with the contract in the event of gross negligence. Liability for culpably caused personal injury is excluded from this limitation. To the extent permitted by law, ANG excludes liability for indirect and consequential damages, such as loss of profit, third-party claims or loss of data.

14. Third party rights

14.1 ANG warrants that the transfer of rights of use to the customer in accordance with clause 6 does not conflict with any rights of third parties. ANG shall, at its own expense, defend against claims asserted by third parties against the customer for infringement of intellectual property rights based on the goods and services supplied by ANG. The customer may not recognize such claims on its own initiative. ANG shall assume the costs and compensation obligations imposed on the customer in court or by way of settlement, provided that the customer informs ANG in writing in good time of the claim made and authorizes ANG to conduct and settle the legal dispute, in particular by means of a settlement.

14.2 If third-party property rights have been infringed, ANG has the choice of either granting the customer the right to continue using the software, replacing the software components or function blocks concerned or modifying them in such a way that the property rights are no longer infringed, or, if the foregoing is not reasonably possible, taking back the software component or function block concerned and repaying the customer the remuneration paid by the customer less reasonable compensation for the use made.

15. Secrecy

15.1 ANG undertakes to treat as confidential any appropriately marked data provided by the Customer in the course of the performance of the contract which relate to the Customer’s business and to delete, destroy or return the data provided by the Customer at the Customer’s written request. ANG may process the customer’s data automatically.

The customer undertakes to keep ANG’s business secrets contained in the delivery items secret from third parties. The customer shall oblige his employees and agents, to whom he may only grant access to the delivery items to the extent necessary for their use in accordance with the contract, to respect ANG’s copyrights and the duty of confidentiality. The customer shall store the delivery items carefully in order to prevent misuse.

The confidentiality obligation continues even after termination of the contract.

15.2 ANG may include the Customer in its reference and installation list.

16. End of the right of use

16.1 ANG may terminate the Contract and withdraw the Customer’s rights of use under Clauses 5.1 and 6 without notice if the Customer repeatedly or grossly breaches the Contract, in particular against Clauses 6 and 15.1 above or if the Customer is in default of payment. The customer is not entitled to a refund of payments already made. ANG reserves the right to assert claims for damages. Upon termination of the right of use, the customer shall return all delivery items and copies and delete stored programs, unless he is legally obliged to retain them for a longer period. The customer shall confirm the complete return or deletion to ANG in writing.

17. Software maintenance

17.1 ANG shall provide software maintenance for the most recent and the immediately preceding software version. Each software version is identified in the designation of the software version by a number after the dot. Software maintenance includes the following maintenance services, which are subject to a charge in accordance with the P/K list:

a) Further development of the software: SAP continues to develop the software in terms of quality and modernity, adapts it to changed circumstances, eliminates errors and provides the customer with new program versions resulting from this. This includes minor functional enhancements.

b) Troubleshooting: ANG shall support the customer by telephone during normal business hours after error reports (Clause 12.3) by providing information on troubleshooting, fault avoidance or workarounds and, if necessary, by sending appropriate instructions or correction codes. The support requires the functionality of a remote data transmission system in accordance with ANG’s technical specifications.

c) Information: The customer receives information on planned new program versions and program enhancements.

d) Online Service System(SAPNet): The customer may access the OSS database, which contains information on the software and enables communication with ANG. Error messages submitted via OSS are treated with the same priority as error messages according to b). OSS also contains information from third parties that has not been approved by ANG. The customer must therefore check the plausibility of all third-party information before using it productively. For third-party software (e.g. databases), ANG can only provide its efforts, but cannot promise any services.

17.2 Further support services, such as in particular on-site fault assistance, shall be remunerated at the fee rates of the applicable P/K list. Clause 18 shall apply accordingly.

17.3 ANG begins with the troubleshooting assistance:

a) in the case of errors that prevent operations: if they are reported by 12.00 noon, on the next working day at the latest; if they are reported after 12.00 noon, on the working day after next at the latest;

b) in the event of faults that hinder operation: within a reasonable period of time from the error message, depending on the severity of the impairment;

c) other errors are corrected in the next program version.

17.4 The customer shall inform ANG immediately of any changes in the hardware and/or software environment of its installation(s).

17.5 The remuneration for software maintenance is based on the P/K list valid at the time of invoicing. ANG may increase the remuneration for a calendar year by a maximum of 5% plus the increase in consumer prices for the previous year. If the customer does not terminate the agreement on maintenance in the event of an increase in the remuneration within two weeks of receipt of the notification to the end of the calendar year, the new remuneration shall be deemed to have been agreed. ANG shall point this out in the announcement of the increase.

17.6 If software maintenance was not agreed with the customer from delivery of the software, but only from a later date, the customer must pay the remuneration for the software maintenance that it would have had to pay if it had been agreed from delivery.

17.7 The agreement on software maintenance is legally independent of the purchase of the software and can be terminated with three months’ notice to the end of a calendar year, at the earliest at the end of two full calendar years. The right to terminate without notice for good cause remains reserved. Any termination must be in writing to be effective.

17.8 The provisions of Sections 12.2 to 12.4 shall apply analogously to disruptions in performance within the scope of software maintenance. Withdrawal from the contract (clause 12.4) shall be replaced by termination.

17.9 In all other respects, the modalities according to the P/K list apply to software maintenance.

18. Services

18.1 The provisions of this Clause 18 shall apply if no specific service contract is concluded between the Customer and ANG.

18.2 Services that are not expressly covered by the service description of the contract for the use and maintenance of software shall be remunerated at the fee rates of the currently valid P/K list on a time and material basis.

18.3 The Customer defines the task. The fulfillment of the task is planned and determined by ANG. Even if ANG employees work for the customer, ANG alone gives them instructions and has the organizational authority and the right to issue instructions. The customer cannot co-determine the number and selection of employees. ANG may appoint third parties as subcontractors.

18.4 The customer may change or extend the terms of reference. This must be done in writing. ANG shall advise the Customer in this respect in return for payment. ANG will point out changes to the schedule and remuneration and may refuse to make changes or extensions as long as its other projects require this. ANG may prepare minutes of the discussions to clarify or change the service order. The minutes shall be binding on both parties if ANG provides them to the customer and the customer does not object in writing within ten days of receipt.

18.5 ANG may carry out the Services in whole or in part on the Customer’s premises if this appears expedient. The customer warrants that the work can be carried out there without hindrance. ANG employees shall comply with the customer’s house rules and customs in order to avoid disruptions, provided that they have been made aware of them and provided that this does not hinder the professional and timely performance of the Services to be provided by ANG. In all other respects, clause 7 applies accordingly.

19. Final provisions

19.1 These General Terms and Conditions, in conjunction with the Agreement on the Use and Maintenance of Software and the P/K List for SAP Business One, conclusively govern the rights and obligations between ANG and the Customer. There are no verbal agreements. Amendments or additions to the contract, these General Terms and Conditions and the applicable P/K List must be made in writing, must refer to the provision to be amended, must be signed by the customer and countersigned by ANG.

19.2 Should any provision of the Agreement, these General Terms and Conditions or the P/K List for SAP Business One be or become invalid or legally ineffective, the remaining provisions shall continue to apply. In this case, the void or legally invalid provision shall be replaced by a valid provision that comes as close as legally possible to the economic effect of the invalid provision.

19.3 The contracting parties agree to seek an amicable settlement in the event of differences of opinion before recourse to the courts. If a court ruling cannot be avoided, they agree that the place of jurisdiction shall be EXCLUSIVE PLACE OF JURISDICTION DIELSDORF. ANG may sue the customer at its registered office. Swiss law shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.