General terms of trade · profi.com AG

I. Territorial Range

The terms and conditions apply to all business dealings, contracts, deliveries, services and proposals (including consulting and rendering of services) in all of profi.com AG, profi.com products GmbH and profi.com services GmbH’s („profi.com“) course of business with third parties in which a consumer is not involved. These terms and conditions also apply to all future businesses between profi.com and a client, even if not specifically restated. Other terms and conditions will not be subject to the terms of the contract, even if profi.com does not specifically object to them.

II. GENERAL REGULATIONS

1. Conclusion of Contract, Content and Written Form
Our goods offered remain subject to change without notice and to prior sale. Business with us is only legally binding when both parties have signed the contract, we have issued a written confirmation of the order or when profi.com begins with the contractual service provisions. The content of the contract or our written order confirmation is applicable to our liability and business transactions. Subsidiary agreements, promises and other understandings which are met before or during the appointment of a contract or before or during the conclusion of a contract, as well as all contractual changes and appendices, especially changes and decisions established during project meetings, are to be in writing. Only authorized personnel from profi.com can confirm the written changes or appendices.

2. Deadlines for Service Output
Deadlines for service output are only binding once they have been confirmed in writing by profi.com and the client has provided, in a timely manner, all required information and documentation for the realization of services to profi.com and all permits, approvals as well as the required assistance have been provided. The client is obligated to inform profi.com of any possible deadline postponements in a timely manner so that profi.com can plan ahead. Profi.com is obligated to inform the client without delay if service provisions are delayed or are impossible to carry out due to circumstances beyond profi.com’s sphere of influence. Should the client be unable to entirely fulfill his obligations, and the contractual services are therefore delayed, the agreed deadline will automatically be appropriately extended, at least, however, within the timeframe of the delay. Furthermore, profi.com is entitled to payment adjustments if additional expenditures arise.

3. Provision of Services
Unforeseeable, unavoidable and incidents outside of profi.com`s sphere of influence (such as a force majeure, war, natural catastrophes or labor disputes) which handicap the services of profi.com and those acting on their behalf, absolve profi.com from the service obligation for their duration. We will inform our clients without delay at the start of such disturbances. If the end of the disturbance is unforeseeable or it lasts longer than one month, each party is eligible to withdraw from the contract. Services already rendered will be reimbursed without delay. This applies if the aforementioned circumstances affect our suppliers or sub-contractors as well. In case profi.com`s services are dependant on services of third parties, profi.com is eligible to withdraw from the contract if profi.com does not receive its goods from suppliers or they do not substitute these goods or if through all reasonable efforts the provision of services is in defiance of or can only be supplied with a significant increase in cost. Profi.com will inform the client without delay of the unavailability of services and will reimburse the client for any possible service in return.

4. Right to Reserve Propriety
profi.com reserves ownership of delivered goods until payment of all dues have been received within the business relationship with the client. The withheld property is considered as security for balance claims in case of an outstanding account. Invoking the right to reserve propriety does not signify a withdrawal from the contract. A resale of any goods under the right to reserve propriety or their connection with objects of third parties is only allowed if the client adheres to regulated business stipulations so that the receivables from the resale or in connection with the client’s buyer is done through profi.com. The client does not have the right to pawn the reserved goods or the property of profi.com elsewhere, to transfer them to safety or otherwise. Effective immediately, the client resigns the receivables from resale or similar as well as possible balances due to loss or damage to the rights to reserve propriety with all ancillary right to profi.com; profi.com accepts this transfer effective immediately. In case of resale on credit, the client is obligated to secure our rights or to deal under the right to reserve propriety themselves accordingly. Does the client realize the conditional goods in combination with or in addition to other goods, the release of covenant is valid only in the amount agreed on: the gross sum as agreed between profi.com and the client plus a safety margin of 10%. The client has revocable power to collect the outstanding balances fiduciary in the name of profi.com. Profi.com can revoke this authorization as well as the entitlement to resale or incorporation should the client fail to fulfill to his obligations, especially payment obligations. If the client fails to fulfill his obligations, he is obligated, on demand of profi.com, to provide information for collection and the necessary documentation, particularly name, address, telephone number of the buyer and a list of goods sold to the buyer, so that profi.com can show the buyer the assignment of debt and collect it themselves. In case of seizure or other interference of the right to reserve propriety or the ceded receivables through a third party, the client is obligated to indicate without delay the right to reserve propriety and the property of profi.com as well as the cession of receivables. The client is obligated to immediately inform profi.com via telephone, and on demand, in writing the facts of the case and the necessary details that put profi.com, in keeping with their rights, in the place of the third party and to hand over all relevant documents. The costs of a defense of such interference will be the responsibility of the client. Profi.com is obligated to release the accorded security on demand of the client if the value of outstanding balances to be secured exceeds 10%. As soon as all receivables from our business relationship have been received in full, all goods become the property of the client.

5. Contractual Lien
Profi.com has the right to a contractual lien to clients’ items that became their property because of it’s remuneration of accounts receivables for its services. The lien also secures all open balances from previously completed work, deliveries and other services for the client.

6. Compensation
The client can only effectively offset a bank lien or the right to refuse services against profi.com with undisputable or legally binding established outstanding debts.

7. Retention of Goods
The client may claim the retention of goods insofar as this is not based on the same contractual relationship.

8. Transference of Rights and Obligations
Profi.com is entitled to assign the contractual rights and obligations to a third party. This transference of obligations to a third party is effective without the client’s consent.

III. Fees and Payment

As long as no other agreement has been reached, all fees for goods delivered and our services are valid according to the profi.com’s price list on the date the contract was signed. Expenditures (particularly travel expenses, allowances, equipment, mailing and insurance costs) as well as additional services are to be payable according to time and effort involved and profi.com’s current price list. Sales tax, as far as applicable by law, will be added. All products originating from outside of the European Union (EU) are delivered duty unpaid. With the delivery of goods delivered duty unpaid as well as with commercial transactions within the EU (Art. 28c, A, (a) of the VI. EU-Regulations) no sales tax may be billed on the invoices to profi.com. The sales tax number (USt-Id-Nr.) of profi.com is located underneath the billing address on the order form. The valid USt-Id-Nr. of both profi.com and the supplier must be visible on all invoices for commercial transactions within the EU. With each order, our USt-Id-Nr. is made available to our suppliers on the order form. All invoices from profi.com are due in full within 14 calendar days of the issue date. The client is in arrears within 30 days of the date of issue of the invoice without receiving a special warning. If the client is in arrears, late charges are applied.

IV. Delivery and Assurance

Our deliveries originate either from our factory or warehouse. We reserve the right for partial deliveries, as long as these are acceptable for the client. The client assumes the risk of accidental deterioration or accidental destruction of the loading of goods or giving them up for shipping, even when shipping and delivery have been agree on. Should the shipping or receiving of goods be delayed by means we have no influence over, the client assumes the risk as soon as the notice of shipment has been sent. If delivery or shipment is agreed on (including through profi.com), this is done at the cost and risk of the client. Profi.com is not obligated to have a transportation insurance policy for completed goods. Transportation insurance policies are only bought on the special request and at the cost of the client. The client is responsible for replacing all damaged or delayed goods.

V. Examination Obligations and Guarantee

1. Possible legal warranties or other warranties must be in writing and be formally indentified as such. Product descriptions and diagrams are service descriptions and do not constitute a guarantee. Technical instructions do not result in a guarantee.

2. The client must inspect all delivered and received goods immediately. We must be notified, without delay but at the latest within 10 calendar days, in writing of any obvious defects, incomplete orders or delivery errors. Otherwise the goods are considered sound and accepted by the client. The client must leave us ample time to investigate the indicated complaint.

3. Warranty claims are void if the client makes or has made changes or adjustments to the delivered goods.

4. We reserve the right to chose between repair or replacement of a defective item, insofar as a legitimate and timely indication of such a defect is available. In this case, the client is granted the necessary support and input. Should we not be willing to either repair or replace the defective item, or we do not have the ability (we are entitled to two attempts to rectify the situation), or there is an unjustifiable delay from our side, the client has the right to claim for damages according to his choice, to withdraw from the contract or to receive an according discount on the retail price. The right to withdrawal from the contract is excluded in the case of insignificant defects.

5. The client must, comprehensively and in writing, provide information of a defect and for the repair of the defect and inform profi.com in a timely manner of all defects which occur through regular contractual use.

6. Errors which are a result of circumstances over which profi.com has no influence over but stem from the client’s area of responsibility (hardware defects, unsuitable materials, changes in the software environment, faulty operation, not observing the installation instructions, other foreign influences, normal usage) are not considered defects and do not warrant a claim against profi.com.

7. Profi.com has a choice to repair defects in its offices, through remote maintenance or on-site.

8. Profi.com is not responsible for defects should the client obtains updates or upgrades of standard software from a third party (for example, by downloading off the internet). It rests with the client to provide evidence that an error is not the result of such an update or upgrade.

9. Warranty claims against profi.com fall under the statute of limitations within one year of the legal start of limitation. The legal limitation deadlines deviate for indemnity claims due to deliberate or neglectful handling, due to breach of contract or life, bodily or health infringements, due to warranty as well as from Product Liability Act claims.

10. Warranty claims against profi.com are only available directly to the buyer and are, with the exception of case § 354a HGB, non-transferable.

11. If profi.com acted on a notification of error from a client, without an obligation for a warranty claim, profi.com can reclaim the costs for its services according to the current price list from the client.

VI. Commercial Property Rights

1. Only profi.com, in relationship to the client, is entitled to the property rights or corresponding exploitation rights which concern shipment or services rendered by profi.com. These include software, concepts or feasibility, commercial property rights (particularly copyright, patent rights, trademark rights and other ancillary copyrights). Profi.com points out that the commercial property rights for their or their assistants’ consultation and development (particularly software development) services rendered, remain, on principle, with profi.com.

2. The client has may use the delivered software or other shipments or services as outlined in the contractual agreement. The client will adhere to the commercial property rights of profi.com and third parties. The client will inform profi.com in writing in case third parties claim commercial property rights against them. The client empowers profi.com to resolve conflicts with third parties as they chose, and will support profi.com within their power by providing the necessary information and documentation.

3. Copies or reproductions of delivered items, particularly software including manuals, as well as client upgrades, are only allowed through written consent by profi.com.

VII. Specific Agreements regarding Service Provisions

Essential Re-Calculation
The client is obligated to inform profi.com in full about all circumstances that affect the implementation of services mutually agreed on. In calculating service fees, profi.com relies on the accuracy of the information supplied by the client. If this information is not accurate or incomplete, and profi.com experiences additional expenditures, profi.com may re-calculate or change its quotation and/or request an appropriate amendment to the contact.

Client Co-operation Obligation
Profi.com requires that the client, in the realm of his business sphere, provide all requirements needed for the employees of profi.com to do their work in the data processing environment and supplies all the necessary technical requirements, which are essential to properly fulfill the service provisions, available. The information required to perform the job are to be made available in a timely manner. The client will transfer and make available free-of-charge all necessary support and co-operation (such as information, tangible means, calculation times, work space and communication means) to profi.com.

Remuneration
Services will be billed by profi.com, unless otherwise agreed, according to time expenditure based on the current hourly rates on the price list. Travel expenses are billed on a rate per km. The accrued travel, accommodation and equipment costs will be invoiced according to the current price list of profi.com.

Acceptance and Transfer of Services
A service record will be created for all services rendered by profi.com during the acceptance of services. The client confirms, with his signature, that all services in the frame of the contact have been completed and handed over and that the job is concluded. These rules also apply for partial services which have been agreed on. Any additional services rendered by profi.com after the completion of a contract will be charged separately according to profi.com’s current price list, unless otherwise agreed.

Loss of Data
It is imperative for the client to have functional data securing capabilities available at all times, as required by profi.com. It is the sole responsibility of the client to verify and secure all data according to regulations, unless profi.com has expressed otherwise in writing. Otherwise profi.com will not be held responsible for any lost data; a client’s damage replacement claim for lost data against profi.com is ineffective if the damage could have been avoided had the client followed data security regulations.

VIII. CONFIDENTIALITY

1. The contractual partners obligate themselves to handle all information, documents or objects pertinent to executing the contract and beyond with confidentiality, unless otherwise agreed. The client may pass on information, documents or objects to co-workers or third parties only for specific use and will ensure that these will be dealt with confidentially.

2. The client agrees that profi.com save, work with or pass on the data necessary to the execution of the contract to manufacturers of items to be delivered, particularly software. This may only be done according to regulations and, if necessary, for the work at hand.

IX. LIMITATION OF LIABILITY

Demands of the client for damage replacements of any legal foundation are excluded. This is not valid for damage replacement claims according to the Product Liability Act, due to a contractual infringement as well as those that result from a deliberate act or negligible act of breach of duty through us or a guarantee. We adhere to a reckless breach of duty in case of loss of life, bodily harm or health infringements as. We will take upon ourselves a breach of duty by a legally acknowledged representative or assistant. Our liability is limited to contractually typical, foreseeable damage, insofar as a deliberate act or a negligible act, or loss of life, bodily harm or health infringements are evident in the case of a significant breach of contract. This rule is not connected to changes in the burden of proof.

X. BREACH OF DUTY

profi.com’s Rights in case of Late Payment

1. Profi.com can, aside from its usual rights, demand that the delivered items be returned as security for outstanding balances if the client is behind in payment and has been notified of these measures and given a reasonable payment deadline by profi.com. The same rules apply to usage rights of delivered goods, in particular software.

2. Profi.com can cancel the execution of all contracts with a client should the client be in payment arrears or when concrete issues are present which prevent the client from paying. In this case, profi.com may demand payment for its services concurrently, even if the contract states an agreement to pay in advance. Additionally, profi.com has the right to demand collateral for not-yet-due invoices for services rendered. If the client does not provide the demanded security adequately or in full, profi.com may hold back its services.

3. Other rights of profi.com remain intact.

profi.com’s Rights in case of Refusal of Acceptance

1. If the client does not accept the contractual services offered according to agreement, profi.com has the right, irrespectively of its other rights, to use the items ready to be shipped for other purposes if an unsuccessful course of action has been taken and whose time limit has expired. Profi.com is not obligated to make a replacement delivery, despite all efforts having been made if the sold items can only be obtained for a higher price. Once profi.com has notified the client of the impossibility or significant difficulty, the delivery expectations of the client expire. The client may, however, agree upon an alternative delivery option as suggested by profi.com.

2. If the client does not accept the contractual offered services according to agreement, and finds himself in default of acceptance, profi.com can without proof charge 15% of the agreed on gross price for the offered service as compensation. Profi.com retains the right to claim higher damage. The client is at liberty to prove that profi.com suffered a lesser damage or no damage at all.

3. If the client wishes for shipment of goods to be delayed, profi.com has the right to charge the client storage fees, at minimum 0.03% of the gross invoice amount per month commenced. Profi.com is entitled to make this claim after one month from notice of readiness for shipment.

4. Other rights of profi.com remain intact.

XI. FINAL STIPPULATIONS

Our contracts are solely subject to German law according to the UN Convention on Contracts for the International Sale of Goods. The contractual language is German. The jurisdiction as far as legally possible is Dresden. Profi.com has the right to file a claim at the registered office of the client. Place of fulfillment for deliveries and services from profi.com as well as the place of payment for the client is Dresden.

XII. SEVERABILITY CLAUSE

If any individual regulations in our contracts with clients or our General Terms and Conditions are wholly or partially ineffective or should a gap arise, the validity of the remaining regulations doesn’t change herewith. In place of the ineffective regulations or to fill the void, a befitting arrangement which comes closest to what the contractual parties wanted or would have wanted, had they considered the issue, should be made insofar as legally permissible.

General Terms and Conditions as of May 2009