AGB

1.1 Our General Terms and Conditions (T&Cs) set out below shall apply exclusively. Any deviating or supplementary terms, in particular any penalty provisions of the Customer, will not become part of the contract, unless their validity has explicitly been confirmed by MIDITEC in writing. Our T&Cs shall also apply in their currently valid version to any future agreements made with the Customer. We reserve the right to amend the T&Cs at any time.

1.2 These T&Cs shall only apply if the contract partner is a merchant, a legal entity under public law or a special public fund within the meaning of Section 310 Para. 1 BGB [Bürgerliches Gesetzbuch – Civil Code].

2.1 Any orders placed with us are an offer on the part of the Customer. MIDITEC may accept such an offer within four (4) weeks.

2.2 The contractual performance is owed as stated in the written confirmation of order issued by MIDITEC and / or in the respective contract. Unless otherwise explicitly agreed upon, the Customer shall bear sole responsibility for the selection and suitability of the delivery and the service.

2.3 Our offers are subject to change. A contract shall become valid once we confirm the order in writing. If we do not confirm the order in writing, the contract shall take effect no later than upon performance of the delivery and service; in this case, the delivery note shall be deemed to be the confirmation of order. Our written order confirmation shall be the exclusively relevant factor for the type and scope of delivery or service.

2.4 Any and all agreements and any possible additional or deviating supplementary agreements subsequently made shall be made in writing in order to take effect. This shall also apply to the waiver of this written form requirement.

2.5 All information provided in our price lists as well as information and advertising materials regarding measurements, weights, dimensions and other technical data or product characteristics are merely general descriptions and are in particular not guarantees for quality.

2.6 MIDITEC shall reserve the right to deviate from the contractually agreed upon, as long as any deviations are in compliance with commercial practice or unavoidable for technical reasons, i.e. if such deviations are due to any adjustment to technical change and in the event of any series changes made by our suppliers. This shall apply insofar as the Customer is hereby not subject to any unreasonable changes.

3.1 Our prices are excluding any delivery, transportation and packaging costs incurred and excluding the currently applicable value arising tax (VAT). Any payments for services rendered by MIDITEC shall be due immediately and without deduction. Any terms of payment shown in the invoices shall not be deemed to be regulations setting the due date.

3.2 In the event of a default in payment, we shall be entitled to demand a default interest of 8 % above the base interest rate of the European Central Bank. The right to assert any further damage shall not be excluded. In particular, a default in payment arises if the Customer fails to pay within ten (10) working days following the service performed by MIDITEC.

3.3 We shall be entitled to refuse any and all services incumbent upon us on the basis of the business relationship or to only perform them against advance payment, as long as the Customer is in default with their payment obligations. The Customer shall only be entitled to a set-off or retention if their counter-claim is undisputed or has been legally established.

3.4 If MIDITEC is obliged to an advance performance, the service – without any default arising – may be refused insofar as, following the conclusion of the contract, circumstances become known from which it can be concluded that the Customer is unable to fulfil their consideration, in particular their payment obligations. In this case, MIDITEC shall be entitled to specify a reasonable period within which the Customer shall make the payment or provide a collateral pari passu with the performance of the service. After the futile expiration of the period of grace, MIDITEC may withdraw from the contract and demand compensation for any damage incurred or for futile efforts and expenses.

3.5 The basis shall be the prices agreed upon at the conclusion of the contract, based on the cost factors applicable at that date. Should these cost factors – particularly in terms of material, wages, energy, charges, freight, etc. – change between the conclusion of the contract and the delivery / performance date agreed upon, MIDITEC shall be entitled to adjust the price accordingly, unless the period between the conclusion of the contract and the delivery / performance date agreed upon is less than four (4) months.

3.6 The work performances and services rendered by MIDITEC shall be invoiced according to the time required or per unit, unless a flat rate has explicitly been agreed upon.

3.7 The Customer shall confirm the working hours and work performed by our staff on the form submitted to them. Any travel time required and any possible waiting periods for which we are not responsible shall be part of the working hours.

3.8 The travel costs incurred by the staff, i.e. for accomodation, meals and transportation, will be invoiced to the Customer.

4.1 Delivery shall be unpaid ex works, meaning that delivery occurs at the expense and risk of the Customer. In the event of a corresponding agreement, MIDITEC will take out transport insurance at the expense of the Customer.

4.2 The delivery and performance dates result from the confirmation of order issued by MIDITEC and / or from the contract form in the event of an immediate conclusion of contract. Unless otherwise agreed upon, the dates indicated are „approximate deadlines“ in each case. If it is foreseeable that the indicated dates will be postponed, MIDITEC will announce the final dates giving reasonable notice. MIDITEC shall be entitled to make partial deliveries and performances; any possible claims of the Customer arising out of any default in performance shall remain unaffected.

4.3 All performance obligations of MIDITEC shall be subject to timely and accurate delivery to us on the part of our suppliers. In the event of any late or inaccurate deliveries to MIDITEC on the part of our suppliers for which MIDITEC is not responsible or in the event of any other obstacles for which the company is not responsible, MIDITEC shall be entitled to postpone the delivery or performance – without any default arising – by the duration of the delay caused hereby.

4.4 Where agreed, MIDITEC will connect the hardware in a state ready for operation and / or install the software in a fully operational state. Operational readiness and / or functionality may be evidenced by way of a smooth operation of test programs and / or a trial run. Subsequently, the Customer shall confirm operational readiness and / or functionality by signing a handover protocol.

4.5 Subsequent change or supplementary requests of the Customer shall extend the period for delivery or performance accordingly. The same shall apply if unforeseeable obstacles occur for which MIDITEC is not responsible, such as force majeure, industrial action, strike, lockout, delay in the supply of relevant commodities, materials or parts. The same shall apply if the circumstances stated occur with sub-suppliers / subcontractors of MIDITEC in a way which is unforeseeable for MIDITEC.

4.6 MIDITEC makes every effort to comply with periods of delivery and performance agreed upon. Should MIDITEC nevertheless be in default with a delivery or a performance, the Customer – provided they prove that they suffered a loss herefrom – shall be entitled to demand a flat rate compensation for default for each week of default completed amounting to 0.5 % of the order value in relation to the defaulting part, but overall not more than 5 % of the order value. Any further claims for compensation of the Customer due to delay in delivery or performance shall be excluded. This shall not apply insofar as the delay is caused by the violation of a relevant contractual duty or insofar as MIDITEC is subject to strict liability due to intent or gross negligence and / or with regard to an injury to life, body or health; this shall not reverse the burden of proof to the Customer‘s disadvantage.

4.7 MIDITEC shall dispatch any goods at the risk of the Customer. The risk of loss of the goods shall pass to the Customer no later than following the dispatch of the delivery items; this applies as well if MIDITEC has also taken charge of other services, e.g. installation. This shall also apply in the event of partial deliveries.

4.8 If the dispatch is delayed as a consequence of circumstances for which the Customer is responsible, the risk shall pass to the Customer as from the day on which the Customer was notified of the goods being ready for dispatch.

5.1 If MIDITEC is obliged to render work performances, the acceptance shall take place following the provision of the service agreed upon. Unless otherwise agreed upon, the work performances to be rendered by MIDITEC shall be made regardless of any possible obligation to transfer and / or provide hardware and / or software.

5.2 The Customer shall be obliged to accept the work performances as soon as they are notified of their completion. Evidence for the acceptance shall be provided in an acceptance protocol to be signed by both parties.

5.3 The acceptance must not be refused due to irrelevant defects. Should the Customer make use of the service without giving any notice of defects or should they remain silent upon the request of MIDITEC to declare the acceptance, the service shall be deemed to have been accepted following the expiry of a reasonable period.

5.4 If the Customer fails to accept the subject matter of the contract in due time, MIDITEC shall be entitled to demand a 10 % flat rate of the agreed price plus VAT as a compensation for the loss suffered due to the Customer‘s default in acceptance. Any further claims for compensation shall remain unaffected.

6.1 MIDITEC shall retain title to the subject matter of the contract until any and all claims of MIDITEC arising from the business relationship have been paid in full. 6.2 Any acquisition of title on the part of the Customer to the goods being subject to retention of title shall be excluded in the event of the goods subject to retention of title being processed pursuant to Section 950 BGB. Should the goods be combined or mixed with other goods which are not the property of the Customer, MIDITEC shall be entitled to a co-ownership share at the ratio of the invoice value of our goods to these other goods at the time of processing, combining or mixing.

6.3 The Customer shall be entitled to sell the goods subject to retention of title in the ordinary course of business, unless they are in default with payment. Any claims of the Customer with regard to the purchase price or compensation for wages which arise from reselling our goods subject to retention of title shall hereby be assigned to us in the amount of our invoice values until all our claims have been satisfied. The Customer is given the revocable right to collect these sums due.

6.4 The Customer may request that the collaterals be released insofar as the realisable value of such collaterals exceeds the yet outstanding claims by more than 20 %. MIDITEC shall be entitled to select the collaterals to be released..

6.5 The Customer shall be obliged to handle any goods subject to retention of title with care. In particular, this includes the obligation to insure such goods at the original value against theft, damage and destruction at their own expense and to perform any servicing work required on a regular basis. The Customer shall hereby assign any and all claims arising from the insurance policy to MIDITEC. MIDITEC shall be entitled to request that documentary evidence be submitted regarding the existence of the insurance cover.

6.6 In the event of any default in payment and any payment difficulties due to a significant deterioration in financial circumstances, MIDITEC shall furthermore be entitled to revoke with immediate effect the Customer‘s authority to resell the goods subject to retention of title and to collect the claims assigned to MIDITEC.

6.7 The Customer shall promptly inform MIDITEC in writing of any delivery items being seized or otherwise affected by third parties. In the event of any item, which is the property of MIDITEC, being seized, the Customer shall bear any and all replacement costs, including the costs of bringing an action, unless these costs may be recovered from the third party.

7.1 Within their sphere of responsibility, the Customer shall ensure that MIDITEC, on the indicated dates, is able to deliver and connect the contractually owed service, particularly any hardware and / or software to be provided, in a state ready for operation and / or install them in a fully operational state in the designated rooms and is able to render the services without any restriction. MIDITEC shall be informed of any identifiable obstacles to render the services (holiday shutdown, sickness, etc.) in writing and in advance with reasonable notice.

7.2 To maintain any claims to performance and claims based on defects, the following terms shall be incumbent upon the Customer in particular: The Customer shall name and provide the staff required to support the connection / installation work. They shall perform a regular data back-up, in particular prior to any service work being carried out. The Customer shall enable a trial run and / or the running of test programs at the normal operating conditions and shall ensure the computing times required for this purpose. In the event of any services agreed upon, they shall make a prompt notification and provide a detailed description of the faults occurred by means of relevant documentation as well as name the contact person.

7.3 MIDITEC shall be notified of any changes in the system prerequisites on the Customer‘s premises in good time prior to completion of the service provision. Any delays and additional costs which arise due to changes with regard to the performance of the service shall be at the expense of the Customer. The same shall apply to any changes in the system prerequisites following the service provision by MIDITEC for the duration of the warranty.

7.4 If the Customer fails to meet their duties pursuant to Section 7 of these T&Cs or if they fail to meet them in good time, MIDITEC shall be entitled – following an announcement – to perform the actions incumbent upon the Customer on their behalf and at their expense. In all other respects, the statutory rights and claims shall remain unaffected.

8.1 The Customer shall be obliged to take into account the works created with regard to the goods supplied or as part of the service provision, in particular any existing copyrights and other industrial property rights to the software. Should software of a third-party manufacturer (third-party software) be supplied, the Customer shall be obliged to observe the respective terms for licence.

8.2 If MIDITEC supplies software of third-party manufacturers (third-party software), the Customer undertakes to only use the software supplied in compliance with the respective manufacturer‘s terms for licence and, in the event of them being resold – provided this is admissible –, to impose the same obligations upon the buyer and to entirely discontinue the use.

8.3 With regard to the use of standard software by MIDITEC, our Terms for Licence of Software set out in B. shall also apply unless otherwise agreed upon.

8.4 If customised software is programmed / manufactured for the Customer, they shall be granted an ordinary, non-exclusive right of use to the respective performance result unless otherwise agreed upon. The Customer shall not be entitled to the source codes and development documentation being made available to them. Incidentally, our Terms for Licence of Software set out in B. shall also apply to the use of such customised software.

9.1 With regard to any work performance or delivery ordered, the general system description provided by MIDITEC shall be deemed to be the basis for the quality agreement, unless an individual functional specification or any other written service specification has been agreed upon.

9.2 The duty to examine and the requirement to give notice of defects shall be incumbent upon the Customer with regard to ordered goods. MIDITEC only checks goods supplied in this respect for obvious defects. The notice of defects shall be deemed to have been given in good time if it is received by MIDITEC within a period of seven (7) working days, calculated as from the delivery or, with regard to hidden defects, as from the date when the defect is discovered. Any notice for defects shall be made in writing.

9.3 In the event of any defects for which a notice of defects has been given in good time, in the event of any work performances not accepted or only accepted with reservation and in the event of any defects unknown at the time of acceptance, the Customer shall initially be entitled to either subsequent improvement or substitute delivery / performance at our discretion. We will only bear the expenses to the extent required.

9.4 Insofar as MIDITEC is unable to remedy a defect within a reasonable period to be set by the Customer and in the event of a failure of the subsequent improvement or the substitute delivery / performance, the Customer may – without prejudice to any possible claims for compensation or reimbursement of expenses – at their discretion request that the remuneration be reduced (reduction) or – provided our violation of duty is significant – withdraw from the contract. In the event of a withdrawal, the Customer owes a reasonable compensation for use for the period of use. The remuneration of use is calculated on the basis of a straightline depreciation over a four-year period.

9.5 The liability for defects of quality shall expire if the Customer has changed the delivery or service items without being authorised to do so, in particular by installing third-party parts, with regard to the software by way of subsequent / additional programming. In urgent cases, such as where operational safety is jeopardised or to prevent unreasonably high damage, the Customer shall be entitled to remedy a defect themself or to have it remedied by third parties and to demand from MIDITEC reimbursement of the necessary expenses. The same shall apply if MIDITEC is in default with remedying a defect. MIDITEC shall promptly be notified of the measure.

9.6 The warranty period is 12 months. Any claims based on defects – including any claims for compensation and reimbursement of expenses due to defects – shall become statue barred within twelve months either as from the handover (with regard to deliveries) or as from the acceptance (with regard to work performances). This shall not apply insofar as the claims based on defects are caused by intent or gross negligence on the part of MIDITEC. With regard to spare parts and / or subsequent improvement, MIDITEC shall be liable until the period of limitation applicable to the original delivery or service item has expired.

9.7 In the event of a notice of defects being given, payments of the Customer may only be withheld to an extent which is proportional to the defects occurred, if their claims are undisputed or have been legally established. In the event of any notice of defects being unjustified, MIDITEC shall be entitled to request that the expenses incurred be reimbursed by the Customer.

10.1 The subject matter of a warranty for a software shall be the information provided in the respective program documentation. This documentation and any other program descriptions shall not be deemed to be a guarantee for quality.

10.2 A defect of quality exists if the software fails to meet the functions set out in the program documentation; e.g. if it provides incorrect results, if it aborts running in an uncontrolled manner or otherwise fails to work in a proper functional manner so that the use of the software is prevented or considerably affected. Any shortcomings of the software which do not obstruct or significantly impair its intended purpose shall not be included in the warranty obligation.

10.3 The warranty does not cover such defects of the software which have been caused by application errors of the Customer. This shall also apply with regard to non-existent or insufficient back-up measures; and in the event of a virus attack or any other external impact for which MIDITEC is not responsible and which is caused by errors of the hardware, the operating system or the software of other manufacturers or which is caused by the fact that the software, the hardware or the system environment with which the software has been configured was changed by the Customer or by third parties.

10.4 Should an error exist within the meaning of subparagraph 10.2, the Customer shall be obliged to make available to MIDITEC any information required to analyse the error and to perform subsequent improvement and to grant MIDITEC and / or the persons commissioned unrestricted access to the software and the Customer‘s system on which this software is installed. An error message has to encompass information about the type of error, the application with regard to which the error has occurred and the works which were performed to eliminate the error. The error has to be described in a way that it can be reproduced. Should the error result from the interaction with a database, the Customer shall be obliged to grant MIDITEC access to the database and the data contained therein for the purpose of troubleshooting and elimination of error. Should, with regard to an error analysis requested by the Customer, it turn out that there is no error which MIDITEC has to eliminate, the Customer may be invoiced for the expenditure incurred.

10.5 MIDITEC shall eliminate the error in the currently published release status of the software. Therefore, the prerequisite for debugging is that the Customer has either installed the updates published during the warranty period or that these updates can still be installed. The Customer shall bear the costs for the elimination of error which takes place by installing the updates should the Customer have failed to install them following the publication.

10.6 The provisions in Section 9 of these T&Cs shall also apply.

11.1 Should, despite an existing assurance of MIDITEC that the items supplied and the services rendered are free from third-party rights, any third parties assert such rights, the Customer shall promptly inform MIDITEC about any such rights being asserted and shall give MIDITEC any and all powers of attorney and grant the authorities which are required to defend the Customer against the third-party rights asserted.

11.2If it is certain that defects of title exist, MIDITEC shall be entitled at its own discretion to either remove the third-party rights or their assertion which affect the contractual use of the delivery item or performance result by way of adequate measures, or to amend or replace the delivery item or performance result in a way that it no longer violates third-party rights, if and insofar as this does not affect the guaranteed functionality.

11.3 Insofar as MIDITEC fails to remedy the defect of title within the reasonable period to be set by the Customer, the Customer may – without prejudice to any possible claims for compensation or reimbursement of expenses – at their discretion request reduction (the remuneration and / or purchase price agreed upon will be reduced) or – provided the defect of title is significant – withdraw from the contract.

11.4 Sub-paragraph 9.6 shall apply accordingly with regard to the period of limitation of claims due to defects of title.

12.1 MIDITEC shall hold training sessions in the in-house training centre or, upon consultation with the Customer, on their premises. The participants are shown how to operate MIDITEC products or are instructed on key topics.

12.2 Training is subject to a charge. A commissioned training session may be cancelled free of charge, if it is cancelled with MIDITEC in writing no later than 14 days before the training begins. MIDITEC will reimburse any advance payments already made by the Customer within 30 days.

12.3 The Customer undertakes to pay the remuneration agreed upon if they fail to participate in the training or fail to cancel their participation in due time pursuant to Sub-paragraph 12.2.

13.1 Subject to the provisions set out in Sub-paragraph 13.2, MIDITEC shall be liable according to the statutory provisions if the Customer asserts any claims for compensation or reimbursement of expenses which are based on intent or gross negligence or if MIDITEC has culpably violated a relevant contractual duty (material obligation) and in cases of injury to life, body or health.

13.2 In cases of only slight negligence, the claims for compensation or reimbursement of expenses shall become statute barred within a (1) year as from the date on which the claim arose or the Customer became aware of the circumstances which constitute the claim or had to become aware without any gross negligence; if this knowledge or lack of knowledge is not taken into account, the claims shall become statute barred within three (3) years as from the occurrence of the claim.

13.3 In these cases, liability for compensation shall – in terms of the amount – furthermore be limited to the foreseeable typically occurring damage, but to no more than € 250,000 for each claim.

13.4 Liability for data loss shall be limited to the recovery expense which would have arisen with regard to a regular, risk-compliant data back-up.

13.5 Further liability for compensation or reimbursement of expenses than provided for in these T&Cs shall be excluded regardless of the legal nature of the asserted claim, particularly if no separate agreement is available with regard to the extent of damage. There is also no liability for indirect damage, consequential damage caused by a defect and loss of profit.

13.6 Insofar as the liability of MIDITEC is excluded according to these T&Cs, this shall also apply to the liability of its bodies as well as parties employed in performing a contractual obligation [Erfüllungsgehilfen] and vicarious agents, in particular its employees.

14.1 JBoth contracting parties will treat as confidential without any restriction any and all business and trade secrets of the other party which become known to them as part of the business relationship and will only use them for the purposes of the respective contract and will – unless necessary to attain the purpose of the contract – not pass them on to third parties or otherwise exploit them. Employees and third parties involved shall be obliged to observe the provision set out above. The above obligation shall not apply to such technical or commercial information of which the recipient was already aware before receiving it from the other party or for information which becomes common knowledge without this obligation being violated, or which was released for publication by the other party in writing.

14.2 The non-disclosure obligation shall continue to apply following the end of the respective contract.

14.3 To protect personal data, MIDITEC will comply with the data protection provisions; in particular the persons employed by MIDITEC for the performance of the contract will be obliged to observe data secrecy within the meaning of Section 5 BDSG [Bundesdatenschutzgesetz – Federal Data Protection Act] in the event of any data being processed.

15.1 The Customer assumes the obligation to properly dispose of the goods supplied following the termination of use at their own expense and according to the statutory regulations

15.2 The Customer shall exempt MIDITEC as the manufacturer from any statutory obligations arising from Section 10 Para. 2 ElektroG [Elektro- und Elektronikgerätegesetz – Electrical and Electronic Equipment Act] („Manufacturer‘s obligation to take the equipment back“) and thus from any associated third-party claims.

15.3 In the event of the Customer intending from the outset to resell the commercial products acquired from MIDITEC (B2B equipment) to third parties, they shall hereby assume the obligation to agree with their customers and all subsequent users on behalf of MIDITEC that the respective buyer shall assume the manufacturer‘s obligation to dispose of the equipment pursuant to Section 10 Para. 2 ElektroG to the full extent. MIDITEC hereby agrees that the obligation is passed on in this respect and hereby authorises the Customer to agree with their buyers to pass the above obligation agreed upon pursuant to Section 10 Para. 2 Sentence 3 ElektroG on to their buyers in the name of MIDITEC.

15.4 If, contrary to the above Sub-paragraph 15.3, the Customer fails to contractually bind their customers, the Customer continues to be obliged to take the goods supplied back following the termination of use at their own expense and to properly dispose of them according to the statutory provisions.

16.1 With regard to any payment claims of MIDITEC, the Customer shall only be authorised to offset counterclaims or entitled to retain any payment if the claim is undisputed or has been legally established.

17.1 The laws of the Federal Republic of Germany shall apply..

17.2 The place of jurisdiction for all disputes arising from the business relationship shall be Bremen. MIDITEC shall be entitled to also assert claims against the Customer at their general place of jurisdiction.

17.3 Should individual parts of these T&Cs be ineffective, the effectiveness of the contracts concluded on the basis of these T&Cs and of the remaining parts of these T&Cs shall not be affected.