General terms and conditions

§ 1 Territories covered / scope of services / guarantees

(1) The following general terms and conditions apply to legal transactions carried out by CALACON GmbH Strategie & Service & Beratung, hereafter known as “CALACON”, with its contractual partner, hereafter known as “client”, for CALACON services in the areas of business management consultancy in all business areas, EDP consultancy, carrying out of payroll services, account coding and recording of accounts, taking over of trusteeships and other undertakings and trust administration as well as other associated services of consultancy and services in the area of electronic data processing especially with regard to computer software and associated services. General terms and conditions that pertain to or are issued on behalf of the client and which deviate from the above are invalid unless agreed in writing by CALACON. These general terms and conditions also apply to legal transactions in the areas of personnel sourcing, personnel consultancy, personnel supervision as well as the assuming of responsibility for personnel tasks and personnel functions, and all other personnel services arising herewith and also the carrying out of data processing contracts as well as consultancy pertaining to the introduction and implementation of automatic data processing.

(2) General terms and conditions issued on the part of the client are not valid unless the these have been definitely agreed to in writing by CALACON.

(3) The type and scope of services provided by CALACON as well as relevant conditions shall be determined under a separate agreement between the client and CALACON.

(4) Declarations by the client relating to the present contract do not in cases of doubt constitute acceptance of guarantee. In cases of doubt only explicit written declarations by CALACON with respect to acceptance of guarantee remain binding.


§ 2 Terms of payment, delayed fulfilment by client

(1) The type and amount of compensation shall be set out in each contract. In as much as no other explicit agreements are contained in each contract CALACON shall also invoice over and above agreed remuneration for its services other incidental expenses to include travel expenses, accommodation expenses and communication expenses as well as out-of-pocket expenses. It is understood that the appropriate rate of Value Added Tax shall be applied to all such amounts to be paid.

(2) CALACON is also entitled to invoice separately partial performance of services.

(3) Payments shall be made immediately after receipt of invoice without deductions. In cases of default of payment arising ten days after receipt of invoice CALACON is entitled to charge interest in the amount of 8 per cent points above the then current base interest rate of the European Central Bank. In the case of deficiencies the client has no right of retention unless the client is obviously entitled to right of refusal of acceptance. In such a case the client is only entitled to retention in as much as the amount withheld is in an appropriate relation either to the deficiencies or the predicted costs arising from correction of deficiencies or both. Where the client has not met payments due and amounts due are in a reasonable relation to services provided the client is not entitled to make good claims and rights arising from such deficiencies.

(4) Acts of God that affect performance drastically or make performance difficult or render performance temporarily impossible as well as other handicaps arising from lack of co-operation on the part of the client shall allow CALACON to defer delivery of services for the period of such handicaps to include a start-up period. Under Acts of God is understood industrial action and similar situations in as much as these are either serious or not predictable or both. Both parties shall inform each other of the occurrence of such situations.

(5) The right to offset on the part of the client is only possible in undisputed or legally valid counterclaims. The client only has a right of retention where it arises from the same contractual relationship. The assignment of receivables on the part of the client is not allowed. CALACON may refuse to deliver contracted services without being held to be in delay in as much as the client is in delay.


§ 3 Obligations of the client

(1) The client shall ensure that CALACON is provided promptly and in the necessary quality and quantity support and involvement necessary to include but not limited to specifications, tests and acceptance hereby meeting all necessary or relevant provision of materials to include but not limited to information, documents and supporting materials.

(2) Infrastructure, especially systems, hardware, software, data media and other technical materials that the client makes available shall with regard to content and technical state be maintained for use during the agreed period.

(3) In as much as CALACON employees are engaged on the premises of the client for fulfilment of the contract for the period agreed the client shall provide CALACON with enough suitable office space to include but not limited to work and telecommunication materials.

(4) In cases involving computer programming the client shall make available promptly all necessary computer resources, test data and data acquisition capacities.

(5) The client shall also provide promptly enough skilled personnel in order that all tasks arising within the necessary co-operation be fulfilled within a reasonable period by the specialised and technical departments involved.

(6) If contrary to terms contracted CALACON personnel can not be deployed due to default of duties on the part of the client, CALACON shall also be reimbursed by the client for all relevant periods cancelled. In cases where default of duties on the part of the client makes necessary deployment of personnel outside the period contractually agreed, CALACON shall only be responsible for such deployment in as much as this does not conflict with other CALACON duties.


§ 4 Rectification of deficiencies

(1) The right to rectification of deficiencies does not arise where only insignificant nonconformity with quality agreed or where only insignificant impairment of usefulness occur.

(2) In cases of rectification the right to favour either emendation of deficiencies or provision of new services shall always remain with CALACON. If rectification fails the client shall have the right either to reduce reimbursement or withdraw from the contract. The right of the client to demand damages in accordance with the law and its provisions shall remain unaffected.

(3) If the client demands damages instead of new services or intends to carry out rectification internally, the rectification shall be deemed to have failed only after an unnecessful second attempt. Indispensable rights pertaining to statutory periods of limitation shall remain unaffected.


§ 5 Limitation period

The limitation period for claims and rights arising for whatever legal reason from deficiencies of services is one year reckoned from the beginning of the limitation period regardless of any statutory provisions. This shall also apply to all claims for damages that arise in connection with above deficiencies independently of the legal foundation of the claim. The above shortening of statutory periods of limitation shall not apply to all other claims for damages. In these cases the statutory periods of limitation shall be applied.

§ 6 Delayed performance by CALACON

(1) If CALACON realises that the dates and periods agreed in the contract in question can not be fulfilled due to reasons that are within its own responsibility, CALACON shall by way of explanation inform the client in the meantime about the reasons for the delay and provide an estimate of the probable duration of the delay. CALACON shall not be deemed to be in breach of contract if CALACON refuses to provide services due to default on the part of the client.

(2) Should CALACON default unreasonably, the client, in as much as the same can prove that damages have arisen, shall be allowed to claim for such damages but only up to a total of 5% of the price for the partial services that pertain to the default itself.

(3) CALACON insures against delays of its services and consulting in cases of intent or gross negligence by the same or by such delays by one of its agents or vicarious agents in accordance with legal provisions. The coverage by CALACON in cases of gross negligence is however limited to contractually typical and foreseeable limited liability. These limitations do not pertain to liability arising from loss of life, physical injury or damage to health. In general, the liability of CALACON pertaining to the delay of services shall be limited to damages to 5% of the value of the particular service) Further claims on the part of the client are hereby denied, also in cases where a deadline set by CALACON has passed.

§ 7 Impossibility of performance

In cases of intent or gross negligence where impossibility of fulfilment of services and consulting by CALACON or by an agent or other parties acting on behalf of CALACON arises the same shall be deemed to be liable according to the provisions of the law. The liability by CALACON in cases of gross negligence is however limited to contractually typical and foreseeable liability. These limitations do not pertain to liability arising from loss of life, physical injury or damage to health. The right of the client to withdraw from the contract shall remain unaffected. In general the liability of CALACON due to impossibility shall be limited to damages and compensation for wasted expenditure to the amount of 5% of the value of the consultancy and service. Further claims on the part of the client due to impossibility arising out of services rendered and consultancy are ruled out.

§ 8 Liability

(1) In cases of intent or gross negligence CALACON or an agent or other parties acting on behalf of CALACON shall be held liable according to the provisions of the law. Claims for damages in cases of violation of significant contractual obligations are however limited to contractually typical and foreseeable liability.

(2) Liability for damages arising from services pertaining to objects of legal protection of the client, to include but not be limited to damages to other goods, is however ruled out. This is not the case where liability arises from loss of life, physical injury or damage to health.

(3) The provisions of the above paragraphs (1) and (2) pertain to damages along with the service and damages instead of the service regardless of the legal grounds and especially pertaining to deficiencies, the non-fulfilment of obligations arising from obligatory relations or from unlawful acts. These are also valid for claims for reimbursement of wasted expenditure. The liability for default shall be determined by paragraph 6, the liability for impossibility by paragraph 7 of these general terms and conditions.


§ 9 Secrecy and data protection

(1) The client is hereby obliged to treat as confidential all documents, information and knowledge made accessible by CALACON and which the client obtained during the said co-operation with CALACON to include but not limited to technical, business or organisational matters. Revealing the above to third parties without consent of the other contractual partner is hereby ruled out.

(2) This obligation of secrecy does not pertain to information that the client can prove was or will be obtained from third parties in a lawful manner or which was already generally known upon conclusion of the contract or which without let or violation of the general conditions outlined in the present text subsequently became well known. The same shall be deemed to be true in cases pertaining to the provisions of public law as relating to obligation of disclosure.

(3) The client shall inform in this regard its personnel and other parties acting on behalf of the client.

(4) The above obligations remain valid for the client also after the contract has ceased its validity.

(5) Both parties hereby agree that they adhere in full to the provisions of the Data Protection Act.

§ 10 Prohibition of recruitment and employment

Up to the termination of the last of the present general conditions the client hereby agrees not to employ or hire any CALACON personnel. The client also agrees that within a period of 24 months calculated from the cessation of the present contact no persons currently or previously employed by CALACON and who were directly involved with the fulfilment of the said contract shall be hired or employed by the client. Contravention of the present provisions outlined in this paragraph by the client shall render the same liable to pay immediately to CALACON for each and every such violation a contract penalty to 50,000 Euros (Fifty Thousand Euros) and shall further lead to the renouncement of the objection of a continued violation. Other claims for damages remain unaffected.


§ 11 Final provisions

(1) Changes and additions to these General Terms and Conditions shall be made in writing between the parties. No ancillary oral agreements exist.

(2) Should one or a number of provisions of the present General Terms and Conditions be or become invalid the validity of the contract as a whole shall remain unaffected. In such a case the parties shall agree to terms of financial implication that replace the said provision or provisions in the most amenable way possible. The same is true in cases where provisions of the present General Terms and Conditions are deemed to be missing, the parties hereby agreeing in such cases to draw up new terms that would be the most apposite had the said missing terms been drawn up during negotiation of the General Terms and Conditions.

(3) In cases in which the client is a businessman or legal representative under public law the exclusive place of jurisdiction for all disputes arising between the parties shall be the CALACON premises.

(4) In case of legal dispute the law of the Federal Republic of Germany shall be upheld.

(5) The original German text "Allgemeine Geschäftsbedingungen" published by CALACON at www.calacon.com and attached as appendix A consitutes a part of the present contract and shall be used as the sole basis should cases of legal dispute arise.