Deutsche Telekom, EB Standard Software, Version: August

Transcription

1 The German version shall apply Terms and Conditions of the Deutsche Telekom Group for Purchasing Standard Software (EB Standardsoftware) 1. Area of Application (1) The terms and conditions set forth below shall apply to the licensing of Standard Software (hereinafter referred to as Software ) including associated documentation and if contractually agreed the achievement of the operativeness of these Software on certain EDP systems and devices as well as other stipulated Services. (hereinafter referred to as Services ) They shall not apply to the development of individual Software. (2) These Terms and Conditions and any other contractual conditions indicated in the Order shall apply exclusively. Any conflicting or deviating terms and conditions of the Contractor shall not apply, even if the services provided by the Contractor are unconditionally accepted despite knowledge of such conditions. (3) Only orders, calls, contracts, etc. (hereinafter referred to as Order ) and other declarations of intent which are placed in writing by a procurement unit of Deutsche Telekom AG or a company of its group within the meaning of section 1, subsection 3 (hereinafter referred to as Customer ) shall be legally valid. The requirement of written form in the sense stated above is also satisfied by communication methods provided electronically, by fax or or electronic communication methods provided by the Customer for handling purchasing transactions, including full integration, webbased applications or declarations transmitted via the Order Management Tool. An electronic declaration of intent is received on the day on which it is available for retrieval by the recipient under its electronic address during normal business hours; otherwise, it is received on the next business day. In the event that a special electronic communications method provided by the Customer to handle purchasing transactions is used, the relevant terms and conditions of use of the Deutsche Telekom Group shall apply to such electronic communications methods provided by it ( NB e- commerce published on under Terms and Conditions ). (4) If the Customer has entered into a Frame Agreement, Deutsche Telekom AG and all companies affiliated with it worldwide in accordance with sections 15 and following of the German Stock Corporation Act [Aktiengesetz] shall be beneficiaries and thus shall be entitled to place orders under such Frame Agreement as well as all companies worldwide in which Deutsche Telekom AG, directly or indirectly, has ownership of at least 25 % of the shares and/or has management control. 2. Parts of the Agreement The following documents shall be integral part of the agreement in the order set forth below: a. the Order, b. the specifications; service description), c) these EB Standardsoftware, d) the Supplier Code of Conduct in its most current version (hereinafter referred to as Code of Conduct ; under 3. Rights of Use (1) Unless provided otherwise, the Contractor shall grant Customer the non-exclusive, irrevocable, unrestricted, worldwide and transferable right covered by the agreed remuneration to fully use of the Software included to perform the functions included in its scope of service. (2) The Customer shall be entitled to reproduce the Software stipulated hereunder to the extent that such reproduction is necessary for the intended use. The Customer shall be entitled to make copies of the Software stipulated hereunder as back-up. Any reproductions of the Software stipulated hereunder, which serve the purpose of proper data protection, shall constitute part of the intended use. (3) The Contractor shall undertake to inform the Customer prior to the placement of an order in writing if Open Source Software is to be used in the provision of the products or service. (4) These provisions shall also apply for the benefit of any companies associated with the Customer or with the Deutsche Telekom AG. 4. Term,Termination (1) The license term and the term of any other Service Provision shall be set forth in the agreement either as being limited in time or unlimited in time. It shall commence on the date when the Customer has declared the acceptance of the Software. If a limited license term of limited term of Service Provision has been stipulated, such term shall be contractually determined in the respective Order. Any Order may be terminated by the Customer by giving three (3) months notice to the end of a calendar month. Shorter or longer termination periods may be agreed in the respective Order. (2) Any termination including any termination prior to the expiration of the stipulated minimum term of perfor- Deutsche Telekom, EB Standard Software, Version: August

2 mance shall be permissible with a notice period of one month, effective from the end of a calendar month in respect of such Software, the use of which is affected by the fact that any existing devices or Software, which are necessary for the use of such Software, are terminated or are put out of operation for more than six months. It is a precondition for the above, that such termination or putting out of operation of devices or Software could not be foreseen at the time of the conclusion of the agreement and that the continued use of the licensed Software is not possible or economically unjustifiable. (3) In the event of a termination pursuant to section 4, subsection 2 prior to the expiration of any stipulated minimum time of performance, the Customer shall pay the redemption amounts stipulated in the agreement. 5. Remuneration and Invoicing (1) The license fee (monthly license fee or one-off license fee for use for a limited or for an unlimited period of time) shall constitute remuneration for the licensing of the Software and for Services, which are detailed in the terms and conditions set forth below and in respect of which no stipulation of a separate fee has been provided. The license fee shall be detailed for the individual Software in the service description. (2) To the extent that a separate fee has been provided for, this shall also be set forth in the agreement. (3) If the payment obligation either commences or ends within the course of any calendar month, the license fee shall amount to 1/30 of the monthly license fee per calendar day. (4) In principle, such fee shall also include the costs for data carriers and shipment. Anything in deviation from the above shall be stipulated in the agreement; in such case, any costs shall be shown separately. (5) Unless explicitly agreed otherwise the delivery clause DDP excl. import VAT named place of destination (Incoterms 2010) shall apply, so that import VAT will be borne by the Customer. (6) The stipulated monthly license fee and the fee for other Services shall apply for the term of the agreement. (7) The Contractor shall invoice the monthly license fee (a) (b) on a quarterly basis on the first day of the second month in the quarter and the one-off license fee and the remuneration for other services after delivery or acceptance if applicable. (8) Unless otherwise set forth in the Order the agreed remuneration covers all expenses incurred in connection with the provision of the Software and/or Services, in particular services of any subcontractors, all incidental expenses, travel expenses, travel times and waiting times. The item prices of the original Order shall apply for subsequent additions to the deliveries. (9) Unless otherwise agreed, the price includes the costs of any installation, integration and transference work which may become necessary and which shall be performed by the Contractor without disturbing current operations, if necessary outside normal working hours. (10) The relevant instructions for the operation, handling, use and service and other documents shall be delivered in the language customary in the country of Customer s contracting unit. The instructions and documents are included in the price. (11) Every consignment shall be accompanied by a delivery or proof of performance note. Delivery notes, proofs of performances and, if specifically agreed, dispatch notes, must contain: - number, reference number and date of the Order, - number of any partial consignment / partial performance - number and date of the delivery note / proof of performance - date of dispatch, - any information on the type and size of the consignment / performance along with materials numbers and item numbers specified in the Order and - mode of dispatch. (12) The Contractor shall offer Deutsche Telekom AG and all companies of its group within the meaning of section 1, subsection 3, its products, work and/or services at the most favourable terms, conditions and prices which the Contractor grants to Deutsche Telekom AG itself and/or any company of its group worldwide with regard to quantity, quality and market conditions for comparable products, work and/or services. Deutsche Telekom AG and its group companies reserve the right to exchange the respective information. 6. Terms of Delivery, Scope of Services (1) The agreed time for delivery of Software and for the provision of Services shall be binding. The Contractor shall deliver the Software ready for installation on the stipulated data carriers. To the extent stipulated in the service description upon the conclusion of the agreement, Contractor shall install the Software on the EDP systems and devices set forth in the service description and shall notify the Customer about the completion of the installation. If the Contractor has used test cases, Contractor shall make the above available to the Customer. Deutsche Telekom, EB Standard Software, Version: August

3 (2) The commencement of installation works and the point of time at which the above must have been completed at the latest, shall be set forth in the service description. (3) If the installation is carried out by the Contractor, the Customer s cooperation in the installation shall be set forth in the service description (e.g. support through personnel). (4) Unless otherwise agreed, the installation of the Software shall be paid for with the license fee. 7. Achieving Operativeness (1) If contractually agreed, the Contractor shall achieve operativeness in accordance with the stipulations in the service description, on the EDP systems and devices set forth in the above and shall inform the Customer, when the Software are operative. (2) The commencement of the works and the point of time at which the above must have been completed at the latest, shall be set forth in the service description. (3) The Customer s participation in the achievement of the operativeness of the Software shall be set forth in the service description (e.g. support through personnel). 8. Default (1) In the event of default( Verzug ) the statutory provisions shall apply,unless otherwise provided for below. (2) In the event the Contractor is in default with the provision of contractually agreed services he shall pay per calendar day in default 0.3% of the contractually owed remuneration for the respective performance. However in total not more than 5% of the contractually owed consideration. The contractual penalty can be asserted until the final payment has been made. (3) The consequences of a default pursuant to section 8, subsection 2 shall also occur, if the Contractor has undertaken in a purchase or lease agreement to deliver systems or devices together with the Software, including basic Software and if he defaults with the delivery of such systems or devices, including basic Software. (4) If the Contractor defaults with the delivery or installation of one or several Software products, which pursuant to the stipulation made in the service description are designated for co action and if the Customer considers the use of the remaining Software economically meaningful, then the consequences of the default shall only occur in respect of the Software which have been not delivered or not installed or which are not operative. If the Customer invokes that the use of the delivered or installed Software is not economically meaningful for him, he shall inform the Contractor about the reasons and return the Software. In such case, the consequences of the default pursuant to section 8, subsection 1 shall also occur in respect of the returned Software. (5) In the event that the Contractor fails to render any due performance or if he renders such performance not in accordance with the agreement, the Costumer may give the Contractor a reasonable time limit for the performance of the obligation or for a subsequent performance. After the unsuccessful expiration of such time limit, the Customer can according to the legal requirements require within the borders of section 20, subsection 2 compensation instead of the performance or can withdraw from the agreement. Further legal claims remain unaffected. A forfeit contractual penalty is taken into account on such a claim for compensation in damages. (6) If the Contractor has effected a partial performance, the Customer may demand compensation for damages instead of the entire performance and rescind the entire agreement only, if he is not interested in the partial performance. (7) Customer s default also with regard to payment requires a reminder of no avail. 9. Acceptance (1) After conclusion of the implementation pursuant to section 7 or achievement of the operativeness pursuant section 8 or if contractually agreed, the Customer shall declare without delay after a successful function test the acceptance. (2) The function test has been conducted successfully, when it has been established that the Software comply with the specifications set forth in the service description and are suitable for the intended purpose of use. The duration of the function test shall be set forth in the service description. An extension may be stipulated. Also, additional acceptance criteria may be set forth in the service description. (3) If during the function test deviations from the details provided in the service description have been determined, but if the Software are accepted in spite of this, then such deviations shall be set forth in the acceptance certificate as defects. (4) If due to the function test the Customer considers the Software to be not suitable, he shall have the exclusive right to rescind the agreement within 2 weeks after the expiration of the period of time agreed for the function test. Any use during the statement period shall be not permissible. If the Customer fails to rescind the agreement, the acceptance shall be deemed declared. (5) If different deadlines for the completion of the works for the achievement of operativeness have been stipulated for several Software products, which in accordance Deutsche Telekom, EB Standard Software, Version: August

4 with the agreement are intended for co action, then the respective function test shall be limited to the Software subject to the delivery by successive installments. To the extent necessary, upon the acceptance of the final delivery by successive installments, it shall be confirmed by way of a function test, which shall cover all Software, if the Software co act properly. 10. Program Documentation, User Support, Personnel Training, Program Use (1) At the point of time stipulated in the service description, the Contractor shall provide the program documentation, e.g. DP manual (specification for installation and test, specification for operation), user manual and any other program-related literature in reasonable numbers and in German language; in case of translation, he shall by request also provide the original text. The provision of any additional documents (e.g. program flow charts, assembly lists, Source Code documents) shall be stipulated in the services description, if applicable. In case of a relevant request by the Customer, the Contractor shall give the source program in escrow with an independent third party. The relevant interests of the Parties shall be taken into consideration within the framework of an appropriate agreement. (2) Unless stipulated otherwise in the service description, the Contractor shall to the extent necessary and in due time for the use and utilization of the Software identify the Customer s personnel designated for the use of the program. (3) To the extent stipulated in the service description, the Contractor shall train the Customer s personnel designated for the use of the program to the extent necessary and in due time for the application or the use of the Software. (4) To the extent stipulated in the service description, the Contractor shall support the Customer through suitably qualified personnel in the use of the Software and in the removal of any defects, which are not subject to the warranty of quality. (5) Any compensation for the Services pursuant to this section 11, subsections 1 to 4 may be stipulated in the service description. (6) The Customer shall use, reproduce and store the Software and program documents in such a way, that the above are secured against any use, reproduction or transfer not in accordance with the agreement. Any details may be stipulated in the service description. 11. Program Modifications (1) In the event, that the Contractor modifies any products, which are used by the Customer, then the Contractor shall notify the Customer about such modifications. (2) The Customer may demand that the Contractor provides him with the new program versions, including any program documentation pursuant to section 10, subsection 1 at rates to be stipulated in the individual case. (3) The Customer shall be entitled to carry out modifications of the Software. Any modifications by third parties shall require the Contractor s approval. He shall grant such approval in case of an adaptation to modified systems and devices, if he does not carry out such modifications himself against compensation. The rights of use of such modifications shall be due to the Customer. Upon request, the Contractor may be granted rights of use of such modifications; the above shall require a separate agreement. Any additional rights on the part of the Customer under Section 69e of the German Copyright Law [UrhG] shall remain unaffected. (4) Unless stipulations have been made pursuant to section 10, subsection 1 in respect of a license of the Source Code, the Contractor shall provide the Customer with the Source Code of the Software for the modifications, including any existing explanatory material. If in justified exceptional cases the above is not possible, the Contractor shall be obligated within reason to carry out such modification upon the Customer s request against compensation. Any details shall be stipulated separately. (5) Depending on the program version, the Contractor s obligations under this section shall end five years after the delivery thereof, however, upon the expiration of the warranty of quality at the earliest. If the Customer wishes to use a Software version beyond the end of the said period, he may request prior to the expiration of such period that the Contractor, at his option, either continues to hold the Source Code in escrow or transfers it to the Customer. In respect of such delivery of the Source Code, terms and conditions may be set which exclude any use not accordance with the Agreement. 12. Data Carriers The Contractor shall be responsible for the procurement of the data carriers necessary for the recording of the Software. Any data carriers used by the Contractor shall comply with the specifications set forth by the manufacturer of the system or of the devices. 13. Treatment of Software after the Expiration of the Right of Use After the expiration of the right of use, the Customer shall be entitled to retain one copy of the Software as well as one copy of the complete Software documentation for test and archiving purposes. The Contractor shall be notified about the above. Deutsche Telekom, EB Standard Software, Version: August

5 14. Program Maintenance after the Expiration of the Warrenty of Quality Upon the Customer s request, after the expiration of the warranty of quality, the Contractor shall assume the program maintenance in respect of the Software for which use for an unlimited period of time has been stipulated upon payment of a one-off license fee. Any details shall be stipulated separately. 15. Subsequent Granting of Unlimited Use (1) In the service description, the Customer may be granted the right to demand use for an unlimited instead of for a limited period of time. (2) The following may be stipulated in the service description: a. the amount of the license fee in case of use for an unlimited period of time. b. if and to what extent any license fee paid prior to the exercise of the right of assembly will be credited against any license fee payable under a. 16. Application Protection, Freedom from Viruses (1) The Software shall not contain any copy or application protection. (2) Prior to the delivery to the Customer, the Software was checked by the Contractor, using a current virus detection program. The Contractor shall guarantee that such check did not show any damaging functions in the Software. 17. Confidentiality, Data Protection (1) Both parties hereto shall treat in confidence all information from the business of the other party which they become aware of through the business relation and which is not generally available. Such information shall not be used for their own or third parties purposes. The aforementioned confidentiality obligations shall not apply within Deutsche Telekom Group. (2) The Contractor undertakes to comply with secrecy of telecommunications and data protection provisions and in particular the protection of personal data. (3) The Contractor is responsible for requiring a written commitment to act accordingly on the part of all people the Contractor involves in the provision of the contractual Services. (4) The Contractor may only pass on to third parties or publish work results from this agreement and any information about them after obtaining the prior written consent of the Customer. (5) All documents made available to the Contractor by the Customer shall remain the Customer s property. Upon the Customer s request Contractor. Upon Customer s request or following the termination of the agreement the Contractor shall return to the Customer all documentation created and worked on in the performance of this agreement, including all copies and duplicates. Duplicates of documents in electronic media and on data media that cannot be returned shall be deleted or rendered permanently unusable by the Contractor. This shall also apply in the event of termination of the agreement. The Contractor shall not have a right of retention, irrespective of the legal grounds. (6) The Contractor undertakes to explicitly and demonstrably inform its employees, vicarious agents and subcontractors that the Customer collects and processes the following personal data on them for the purposes of guaranteeing statutory regulations and its legitimate business interests: title, surname, first name, date of birth, street, zip code, town and country. The following information shall also be collected on employees, vicarious agents and subcontractors to be deployed who require a work or residence permit as per applicable German and European law in order to take up work in Germany: validity period of the work or residence permit, restriction of weekly working hours as per the work permit, restriction of place of deployment as per the work permit, restriction of duties/position as per the work permit. (7) Any mention of the Customer as a reference requires the prior and explicit authorization in writing. The authorisation is valid until its revocation by the Customer which may happen at any time without observation of a time limit and without giving reasons. (8) If personal data are transfered from the Customer to the Contractor and processed by the Contractor within the Scope of its services, the Contractor agrees to accept the Customer s standard Agreement on the processing of personal data under contract. (9) These obligations shall continue the expiry of the agreement. 18. Third Party Rights (1) The Contractor guarantees that no industrial rights of third parties exist which conflict with the intended use of the Software and associated Services by the Customer and that no further licenses, approvals, consent or payments are required in association with the industrial property rights of third parties so that Customer can use the contractual Software and Services as stipulated in this Agreement or in the relevant Order. (2) Each Party shall immediately notify the other Party of any claim related to said third party rights made or threatened against the other Party and/or if it becomes aware of any infringement or alleged infringement of Deutsche Telekom, EB Standard Software, Version: August

6 any third party rights in connection with the contractual Software and/or Services. (3) On the first written request, the Contractor must fully indemnify the Customer from any and all legal actions, demands, costs, charges, losses, claims and expenses suffered by the Customer as a result of the infringement or alleged infringement of any third party industrial property rights. In addition to these duties, the Contractor may, at its own discretion and at its own expense either (a) modify or replace the Software and/or Services in a way that prevents third party rights from being infringed or allegedly infringed, however which ensures that the services continue to comply with the contractually agreed requirements in all respects; or (b) obtain the right for the Customer to (further) use of the Software and/or Services in accordance with this Agreement. (4) If the Contractor fails to cease the infringement of third party rights, the Customer shall, at its own discretion, be entitled to withdraw from the relevant Order and to assert claims for compensation or for a corresponding reduction of the purchase price and/or the licensing fee. (5) The limitations on liability under section 20 shall not apply to this section Liability of Defects (1) The Contractor shall be liable for defects during the periods prescribed by statute, commencing on the date of transfer of risk or, if acceptance has been provided for, upon acceptance by the Customer, and guaranteeing the contractual and defect-free condition and defect-free functioning of the products or services for which the Contractor is responsible. The period of liability is extended by the time the products or services cannot be used correctly. (2) The Contractor is obliged to bear the cost of all expenses arising in connection with the liability for defects. Other statutory claims available to the Customer shall remain unaffected. (3) In case of an epidemic failure (frequency of errors significantly above the error frequency rate specified or to be expected normally), the Customer shall be entitled to demand that all delivery items in the series concerned be replaced free-of-charge, regardless of whether the defect has already become apparent or not with regard to an individual item of that series. In addition, the Contractor shall compensate the Customer for any additional costs and expenses that it may have incurred as a result of the epidemic failure (such as, but not limited to, the costs and expenses for inspections of incoming goods, logistics, etc.). Other claims available to the Customer shall remain unaffected. (4) The warranty period shall be interrupted by the number of days, on which the Customer could not use the Software and/or Services because of the defect. The Contractor shall eliminate the defect immediately by subsequent performance (replacement, repair or recreation). If the defect cannot be removed in a short time, the Contractor shall so far as possible and appropriate regarding to the effects of the defect provide a provisional solution. (5) If the defect is not removed, even within an adequate time given to the Contractor for subsequent performance, the Customer shall be entitled to reduce the price or to withdraw from the agreement. Additionally Customer is entitled to claim for damages. (6) If the Contractor has undertaken by way of a purchase or a lease agreement to deliver systems or devices, together with the Software, then the payment of license fee shall not be applicable, if the Software cannot be used, because the systems set forth in the service description cannot be used due to defects. If a one-off license fee has been stipulated, then the Customer shall be entitled to the reimbursement of 1/30 of the one-off overall fee, prorated for one month, for each day of failure. As basis for the conversion from the one-off license fee to a monthly license fee a period of 36 months shall be used. (7) Unless longer limitation periods are provided by law, the Customer's claims due to warranty of title are subject to a limitation period of two years from the time a third party alleges infringement of intellectual property rights or any other rights or the Customer becomes aware of the defect of title otherwise. 20. Liability (1) The parties shall be liable without limitation in case of willful intent or gross negligence, personal injuries, acceptance of a guarantee or if an unlimited liability is obligatorily regulated by law. (2) Without prejudice in respect of liabilities to which sub-section (1) applies, in all other cases, the parties liability shall be capped per event or series of connected events at the higher of 150% of the contract value or five million Euro (5,000,000 ). 21. Invoices,Terms of Payment, Taxes (1) The Contractor shall submit a verifiable invoice. For each Order a separate invoice is required. Collective invoices which refer to various Orders are not permitted, invoice line items must match the order items. As a rule upfront and partial invoices are not allowed. If in an Order partial settlement is agreed he upfront, partial, partial final invoice are to be Deutsche Telekom, EB Standard Software, Version: August

7 marked as such and listed individually in numbered sequence. The invoice shall contain the unit placing the Order, the Order number and the place of receipt and in in case of services the proof of performance.. The invoice shall be in accordance with Section 14 UStG [German Value Added Tax Act]. In case an invoice does not comply with the aforementioned requirements, the Customer reserves the right to return such outstanding invoice in order for the Contractor to complete and/or correct it. In such a case the payment period starts not until the receipt of the completed and/or corrected invoice. Even if the Customer does not make use of the aforementioned proviso, any default in payment due to an invoice which does not comply with the aforementioned requirements is not the fault of the Customer. The invoice with the address given in the Order shall not be issued before the day of performance in accordance with the agreement. Amendments and supplements to the agreement ate to be clearly indicated on the invoice and shall only be paid for if agreed upon in writing before being carried out. (2) The prices agreed are net prices. If applicable, valueadded tax to the statutory amount shall be added. (3) The invoice shall not be paid before performance. The payment period shall be thirty (30) calendar days. The payment period shall commence on the first day after receipt of the verifiable invoice which meets the requirements of this section, but not before delivery/acceptance of the service. The date on which the Customer submits the remittance order shall be authoritative for compliance with the payment period, whereby the period between the end of the payment period and the specific Payment Date shall not be taken into account. (4) Unconditional payment of the invoiced amount by the Customer does not constitute recognition of the Contractor s performance as being in accordance with the agreement. (5) If a credit note procedure has been agreed, the following provisions shall apply in deviation from respectively in addition to the provisions of this section: The Customer effects payments without the Contractor submitting invoices. The payment period shall commence when the Customer has finished entering the data, but not later than three working days after submission of the delivery note/ certificate of performance, but not before provision/acceptance of the goods and services. The Software and/or Services shall be billed on the basis of the delivery note/certificate of performance. The Contractor shall receive a credit note from the Customer on a monthly basis by the third working day of the following month as proof of the provided goods and services recorded electronically by the Customer. The credit note shall show the goods and services per delivery note/certificate of performance according to type, quantity, net price, value-added tax, value-added tax rate and total amount. (6) The liability for value-added tax shall pass to the Customer if the Contractor is not a German company and the services ( Dienstleistungen ) or sales performed under a contract for work and materials ( Werklieferungen ) by the Contractor are taxable in Germany (Section 13b UStG (German Value-Added Tax Act). In such a case, the Contractor shall not itemize German value-added tax in the invoice. If the Contractor brings items from a third country to Germany in order to provide the aforementioned services or work and if in this connection turnover taxes on imports are levied, these taxes shall be borne by the Contractor. (7) The Customer may deduct any withholding taxes which may possibly accrue from the price to be paid and pay them to the fiscal authorities for account of the Contractor unless a valid certificate of exemption is provided by the Contractor. 22. Rescission or Termination for Good Cause Either party may in particular rescind or terminate the agreement for good cause, if with respect to the other party s assets insolvency proceedings have been initiated or a petition for such proceedings has been filed with the court, the institution of such proceedings has been rejected for lack of sufficient insolvency assets to cover the costs of the proceedings, the other party has suspended payments on a not merely temporary basis, ceased its business operations or the part thereof relevant for the contractual performance, or if a similar event occurs under the laws applicable at the registered office of the affected party. The Customer is further entitled to extraordinary terminate the agreement in case the Contractor or its subcontractors do not comply with the regulations of the minimum wage legislation. 23. Product Liability (1) Insofar as the Contractor is accountable for a damage on the basis of product liability, the Contractor undertakes to indemnify the Customer against any claims for damages by third parties upon first written request. Same applies in cases of joint and several liability in accordance with the product liability law. (2) In addition, the Customer shall be entitled to reimbursement of all costs and expenses incurred in this context, in particular those incurred by product recalls. The Customer shall notify the Contractor of the type Deutsche Telekom, EB Standard Software, Version: August

8 and scope of recall actions, if this is possible and can be reasonably expected. (3) The Customer shall immediately inform the Contractor of the assertion of claims based on product liability and not make any payments or recognise any claims without consultation with the Contractor. (4) Other statutory claims shall remain unaffected. 24. Independent Service Provision/work and residence Permit (1) The Contractor shall provide the contractual services independently and on his own responsibility. (2) In principle, the Contractor is free to choose the place of performance in providing its services. However, if the project requires the services to be provided, in part, on the Customer s premises, the Contractor shall be prepared to provide the services to this extent in the relevant facilities. The parties shall agree on the relevant place of performance, taking the project requirements into account. (3) The Contractor is solely responsible for providing instructions to its employees and those of the subcontractors it engages. The Contractor is free to organize the provision of his services and to schedule his activities. If required by the project, however, the Contractor shall cooperate with other parties involved in the project to coordinate the working time and to observe agreed deadlines. (4) Where employees, vicarious agents or subcontractors without German citizenship are deployed, the Contractor hereby assures that all necessary official approvals have been obtained. Under no circumstances may employees, vicarious agents or subcontractors who are not in possession of a valid work permit and a valid residence permit be deployed. The Contractor shall indemnify the Customer from any legal consequences resulting from failure to comply with these requirements. (5) As an independent contractor, the Contractor shall undertake to properly submit any value-added tax received to the tax office and to independently and properly pay tax on any remuneration received from the Customer. 25. Deployment Bans (1) Contractor s attention is expressly drawn to the fact that it is strictly forbidden for civil servants who left the Deutsche Telekom Group by taking early retirement to perform any further work for the Deutsche Telekom Group, either directly or indirectly. This shall also apply, in principle, to former employees of the Deutsche Telekom Group for a period of 15 months from the termination of their employment, if they have received severance payment in connection with termination of employment. If the Customer s specialist unit affected thereby has not already issued an written exclusion in advance in the specific instance, a general deployment ban shall exist in addition regardless of the type of employment on which this is based for employees of the Deutsche Telekom Group working directly or indirectly for the Contractor, who are borrowed or were otherwise taken over or are employed by the Contractor or a third party (e.g., by dispatch, assignment or granting leave, etc.) exclusively or essentially with the goal of using these persons to provide services for the Deutsche Telekom Group. (2) Against this background, the Contractor, in turn, shall undertake to ensure that in providing its service to the Customer, the retired civil servants stated in subsection 1 or personnel as defined by subsection 1, sentence 3, shall not be deployed as employees or temporary workers or as subcontracted work or service providers or in any other way, and none of the former employees specified in subsection 1 are deployed as subcontracted work or service providers or as temporary workers lent to units of the Deutsche Telekom Group. (3) If the Contractor violates the provisions of section 18, the Customer shall be entitled to terminate the agreement for good cause. The Customer also expressly reserves the right to assert damage claims due to such violation. 26. Contractual Performance by Third Parties (1) The deployment of third parties as subcontractors shall require the prior written consent of the Customer. (2) If the Customer gives its consent, the Contractor shall ensure that all subcontracts awarded under the relevant Order are drawn up in such a manner that the Contractor is fully able to meet its obligations to the Customer. (3) The Contractor s liability shall remain unaffected by the subcontracting, by the information on the structure of the subcontracting relationship, or by the consent to this by the Customer. 27. Foreign Trade Regulations (1) The Contractor shall be accountable for the compliance with all applicable foreign trade regulations in connection with any delivery and, in particular, for obtaining all authorizations or any other permissions required under foreign trade regulations or export laws on his own responsibility and at his own expense. (2) For any delivery of Software the Contractor shall, in particular, provide the Customer with the following information: Deutsche Telekom, EB Standard Software, Version: August

9 a. the Statistical Commodity Code of the goods in accordance with the Harmonized System of the World Customs Organization (WCO), b. the country of origin of the goods (where applicable, in accordance with EU Preferential Agreements), and c. any foreign trade information and documents relevant for shipment (weight of the goods, customs number, value-added tax identification number). The information defined above under a. and b. must unsolicited be provided as separate information prior to the shipment or latest as separate annotation on the Contractor s respective invoices. (3) If the Contractor delivers Software with US origin or goods with predominat US origin, the Contractor shall be obliged to provide the Customer with the Export Classification Number (ECCN) and to identify any applicable license regulations and license exeptions according to the US-Re-Export-Regulations. (4) To the extent that the Contractor has obtained Software and /or Services either wholly or in part from third parties, Contractor shall guarantee that that these goods have been procured from secure sources and that they have been exported or imported or introduced in compliance with the export regulations of the country of manufacture/ dispatch. 27. Integrity and Cooperation (1) DTAG has designed core principles and values which demonstrate the Customer`s willingness to share its business ethics, the social and environmental commitments with its suppliers. Such principles and values are outlined in the Documents DTAG Code of Conduct and DTAG Social Charter. The Contractor further agrees to take all necessary measures to prevent and to sanction any case of active or passive corruption. Details are set forth in the Supplier Code of Conduct (published on which shall constitute an integral part of the agreement. (2) The Contractor shall immediately inform the Customer in writing as soon as he becomes aware of indications suggesting that there might be problems regarding compliance with the Supplier Code of Conduct within his area of responsibility, and in particular to avoid anything which might harm Telekom s brand image and/or endanger its security of supply. (3) The Contractor is obligated to comply with the security provisions of the Deutsche Telekom Group (all published on which apply to contractors and their vicarious agents and to inform all persons and/or subcontractors deployed to provide the products or services and to obligate them to do the same. (4) If work is to be performed at the Customer's securitysensitive sites, the Contractor shall ensure that only staff who have passed the security check are employed in accordance with the Security Clearance Check Act)(Sicherheitsüberprüfungsgesetz) in Germany or a comparable security clearance check elsewhere. (5) The Contractor ensures to comply with all the obligations regarding the Mindestlohngesetz( minimum wage legislation ) for himself and its subcontractors. In this sense and upon request by the Customer, he is among others - obliged to document respective minimum wage payments. The Contractor shall indemnify the Customer from any legal consequences (including fines) resulting from failure to comply with minimum wage requirements. Contractor shall further immediately inform the Customer as soon as any suspicion arises in case any of its subcontractors does not comply accordingly. 28. Written Form (1) Amendments and alterations of the agreement shall be made in writing. The above must be clearly identified as such. The abolishment of this writing requirement requires written form too. (2) Any oral agreements shall require a subsequent written confirmation by the contracting body of the Customer in order to become valid. 29. Assignment of claims (1) The Contractor s claims against the Customer may only be assigned with the express written consent of Customer s contracting procurement unit. Section 354a HGB [German Commercial Code] shall apply if the transaction is a commercial transaction for both parties. (2) The Customer shall be entitled to assign his rights and obligations arising from the agreement individually or in whole to any company of the Telekom group within the meaning of section 1, subsection 4. Such an assignment shall not require Contractor s consent. 30. Set-off (1) The Contractor has no rights of retention insofar as they are based on counterclaims resulting from other legal transactions with the Customer. (2) The Contractor may only offset such claims which are undisputed or recognized by final and binding judgment. 31. Final Provisions (1) The place of performance shall be the place of destination indicated by the Customer. Deutsche Telekom, EB Standard Software, Version: August

10 (2) The laws of the Federal Republic of Germany shall apply, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and provisions referring to foreign law. (3) The venue shall be at the court with jurisdiction at the Customer's principal place of business. However, the Customer shall also be entitled to have recourse to the court with jurisdiction at the Contractor's principal place of business. (4) Notwithstanding the legal invalidity of individual items, the remainder of the agreement shall remain binding. This shall not apply if adherence to the agreement would constitute an unreasonable hardship for one party. Deutsche Telekom, EB Standard Software, Version: August