Hypnocode GmbH, General Terms & Conditions for businesses 1. Area of validity 1.1 These General Terms & Conditions (GTC) shall apply to all business relations between Hypnocode GmbH, Königsbrücker Str. 58, 01099 Dresden, (hereafter, the “Provider”) and the Customer where the Customer is a business person within the meaning of Section 14 of the Civil Code (BGB) or an entity under public law. 1.2 The Provider does not recognise GTC that are contrary to or deviate from these Terms & Conditions, unless the validity of such GTC is expressly approved. This shall also apply where the Customer’s submission or acceptance of a proposal is made with reference to the validity precedent of their own General Terms & Conditions. 1.3 These Terms & Conditions shall apply in the present form to all future business with the Customer. The up-to-date version of the Terms & Conditions is available at all times on the internet at http://www.hypnocode.de/agb_en.html. 1.4 The Provider expressly reserves the right to change these GTC at any time without notice. The altered General Terms & Conditions shall be delivered to the Customer by email 1 month before they come into effect. If the Customer does not object to the altered GTC within one month of receiving them, the altered GTC shall be considered accepted by the Customer. The Provider undertakes, in the email that contains the altered GTC, to refer separately and clearly to the significance of the period for making an objection and to the consequences of making no objection. 2. Offers, conclusion of contract, form 2.1 A contract is concluded following offer confirmation by the Customer or order confirmation by the Provider. 2.2. Oral, written, fax or electronic requests and orders to the Provider shall only be considered received once they have been confirmed by the Provider in writing, by fax or electronically. 2.3 The Provider shall be bound to fixed offers for two (2) weeks in the absence of any other provision; the date of delivery is definitive. 2.4 There may be technical and creative deviations from the descriptions and information in brochures, catalogues and written documents because of technical development; no claims may be asserted against the Provider for such deviations. 2.5 The Customer is granted no ownership or rights of use to drawings, drafts, layouts, software or other materials and documents that are delivered as part of offers and contract negotiations. Disclosure to third parties requires express agreement from the Provider. 3. Collaboration 3.1 The parties to the contract name contact persons who shall bindingly agree all questions regarding implementation of the contract. In case of absence due to vacation, sickness etc., replacement contact persons must be named. The parties must give notice of changes to the named persons immediately. Until such notice is received, the contact persons already named shall be authorised to give and receive statements within the limits the authority they have been granted. 3.2 The contact persons shall communicate at regular intervals and whenever necessary regarding advances and hindrances to contract implementation. 3.3 The Provider shall give written confirmation of the exchange of information and the discussions between contact persons. This shall be sent to he Customer. The confirmation shall be binding for the discussions between the parties if the Customer does not raise objection immediately after receipt. 4. Services 4.1 The details of the services provided by the Provider for the Customer shall be stated in the performance description. 4.2 Unless there is a separate agreement to the contrary, the Provider shall not be obliged to submit interim results, drafts, layouts, source files etc. that precede contract performance. 4.3 The Provider shall be entitled to partial payments where these are reasonable from the Customer. 4.4. Unless there is a separate agreement to the contrary, it shall not be obligatory that the ideas, suggestions, conceptions, drafts and other services provided as part of the contract can be protected and registered as patents and models, or under copyright and trademark protection. 5. Obligation to cooperate 5.1 The Customer shall support the Provider in the fulfilment of the services the Provider is to perform under contract. This shall include, in particular, the timely provision of information, materials and data (“content”), as well as of hardware and software, to the extent that Customer has an obligation to cooperate. 5.2. If the Customer is aware that his data, requirements or content contain errors, are incomplete, ambiguous or cannot be implemented, he must inform the Provider immediately of this and of the consequences of which he is aware. 5.3. If data for publication or processing of the contract or service is edited by the Provider, the Customer shall be given the opportunity to check the data via email or web preview before publication. If there are objections to the data edited by the Provider, the Customer must inform the Provider of this immediately in writing. 5.4 The delivery of data, documents and manuscripts needed for processing or implementing the contract may be sent to the Provider electronically, by post or by courier. The costs and liabilities for sending shall be borne by the Customer. 5.5 The duty to preserve the data given to the Provider shall end three months after the termination of the contract/service relationship. 5.6 The Customer’s obligation to cooperate under the contract shall be without remuneration, unless there is express agreement to that effect. 5.7 The Provider shall support the Customer in preparing a customer requirement specification. The customer requirement specification shall be the basis for the services to be performed by the Provider. The Provider shall not be obliged to provide services or functionalities not described in the customer requirement specification. The Customer shall check the customer requirement specification at his own responsibility and shall confirm the services described in the customer requirement specification in writing to the Provider/shall approve the customer requirement specification. Changes by the Customer after approval of the customer requirement specification shall be considered changes to performance in accordance with Clause 6. 5.8 The Customer shall inform the Provider immediately of any disruptions during use of the servers provided by the Provider. The Customer undertakes to keep secret from third parties the access data for server administration. In particular, user name and password should be kept in such a way that such data cannot be accessed by unauthorised third parties, thereby preventing abuse of access by third parties. The Customer undertakes to inform the Provider as soon as he becomes aware that unauthorised third parties have knowledge of the password. 5.9 If the Provider provides data storage for the Customer, the Customer guarantees that he shall not save content on the contractual data storage or make data available on the internet, the provision, publication or use of which contravenes criminal law, intellectual property rights, trademark, other labelling or personal rights. Any breach by the Customer of such obligations shall entitle the Provider to extraordinary termination. 5.10 If the Customer contravenes this obligation, he shall be obliged to ensure no further breach is committed, to compensate the Provider for any damages in this regard that have arisen or arise in future and to release the Provider from all claims for damages or expenses by third parties arising from the breach. This claims indemnification also includes the obligation to release the Provider in full from legal defence costs (court and legal costs, etc.). The Provider’s other rights, in particular regarding blocking of content and extraordinary termination, shall remain unaffected. 6. Changes to services 6.1 If the Customer would like to change the scope of contracted services, he shall inform the Provider of this in writing. The Provider shall review the Customer’s request for changes and their affect on the existing agreement. The review of the request shall be charged at the Provider’s standard hourly rate. 6.2 The Provider shall inform the Customer of the result of the review. This shall include either a detailed proposal for implementation of the desired changes, or an explanation of why the request for changes cannot be implemented. 6.3 If the alteration can be implemented, following the results of the review, the parties to the contract shall agree on the actual means of implementing the request for changes. If agreement is reached, the contract shall be changed accordingly. If no agreement is reached, the original scope of performance shall be retained. 6.4 If they are affected by the alteration process and to the extent that they are affected, agreed deadlines shall be changed taking into account the length of the review process, of the alteration negotiations and of the request for changes if necessary; an additional, appropriate period for initiating the changes shall also be taken into account. The Provider shall inform the Customer of the new deadlines. 6.5 If the Provider would like to change the scope of contracted services, he shall inform the Customer of this in writing and shall provide an implementation proposal in accordance with Clause 6.2. Further action shall adhere to Clauses 6.3 and 6.4. The Provider shall bear the expenses associated with development of the proposal for changes. 7. Approval/acceptance 7.1 On request by the Provider, the Customer shall be obliged to approve drafts and interim results where these can be meaningfully assessed in themselves. 7.2 Requests for changes subsequent to approval shall be considered alteration of performance (see Clause 6). 8. Deadlines 8.1 The completion and/or delivery deadlines specified in correspondence, offers and contracts are non-binding, unless they are made binding explicitly in a given case in writing. 8.2 The Provider shall not be liable for delays to performance due to circumstances for which the Customer is responsible (e.g., late delivery of cooperation activities) or due to force majeur (e.g., strikes, lockout, general disruptions of telecommunications). Such delays shall entitle the Provider to delay performance of the affected services to the extent of the disruption with an additional appropriate start-up time. The Provider shall inform the Customer of delays to performance caused by force majeur. 8.3 If the assertion of rights by the Customer requires a suitable extension period, that period shall be at least two (2) weeks. 9. Rights 9.1 Without other agreement, under the condition precedent of full payment of the agreed remuneration for services rendered, the Provider grants the Customer the right to use the services for the contractual purposes and to the extent agreed under contract. Without other agreement, use and exploitation is limited to a simple, non-exclusive and non-transferable right of use on the territory of the Federal Republic of Germany. 9.2 If the Customer exploits the work carried out or the products produced by the Provider in whole or in part above and beyond the originally agreed purpose or scope, compensation for the rights of use shall require a separate fee arrangement that should be concluded in advance. 9.3 The Customer shall not be entitled to alter or adapt services rendered without separate permission. Changes and adaptations that are necessary for contract fulfilment remain unaffected by this provision. 9.4 The Customer is obliged to make reference to the Provider on the finished product and all copies of the product. 9.5 Suggestions by the Customer or other assistance provided by him shall have no influence on the sum of remuneration. 10. Shipping 10.1 If, at the request of the Customer, the product is delivered to a location other than the place of execution, liability for accidental destruction or accidental damage shall transfer to the Customer on surrender of the item to the carrier or haulier, at the latest when the item leaves the factory or storage, irrespective of whether shipping takes place from the place of execution. 10.2 If dispatch method and mode of transport are not individually agreed, the Provider may choose a dispatch method and a mode of transport that are most advantageous for him. When making this choice, the Provider shall, naturally, take into account the Customer’s obvious requirements. 10.3 If the Customer requests special packaging, he must bear the additional costs that arise as a result. 11. Outside services 11.1 As a rule, the Provider shall order outside services necessary for order completion in the name and for the account of the Customer. 11.2 The Customer shall be obliged to grant the Provider the necessary authorisation on request and to provide authorisation certificates. 12. Remuneration 12.1 If fixed remuneration is agreed, the Provider shall be entitled to request partial payments for parts of the agreed performance that are complete and usable in themselves. 12.2 If remuneration is based on time expended, the Provider’s applicable rates shall apply where there is no other agreement to the contrary. 12.3 All contractually agreed remuneration is exclusive of packaging and shipment and ex. statutory VAT as applicable at the time. 12.4 If remuneration is based on time expenditure, business and travel expenses that arise to the Provider under the contract must be borne by the Customer and shall be passed on at cost price. 12.5 The Provider’s cost estimates are not binding where there is no agreement to the contrary. Where it is foreseeable that the actual costs will exceed the Provider’s cost estimate (made in writing) by more than fifteen (15) percent, the Provider shall bring the higher costs to the attention of the Customer immediately. 13. Payment conditions, right of retention, offsetting 13.1 Where there is no express agreement to the contrary, all payments must be made within ten (10) days of the invoice date without discount. Statutory regulations apply to the preconditions and the consequences of delay. 13.2 Offsetting via counterclaims is only permissible if such claims are undisputed or legally established. In addition, the Customer can offset via a counterclaim that has arisen in place of a right of retention in his favour from this contractual relationship. 13.3 A right of retention to the Customer shall exist solely for the same contractual relationship and, in case of defects, only to a total of three times the cost required to remedy the defects. The Customer may, however, exert his right of retention for undisputed or legally established claims. 13.4 If the Customer is late in making payment, the Provider may stop services. 13.5 In case of payment delay, the Provider shall be entitled to processing fees of € 10.00 for every unjustified returned debit. The burden of proof is on the Customer to show that damages have not arisen or are significantly lower. 14. Claims for defects 14.1 In case of defects in a delivery, the Customer shall be entitled to supplementary performance. The Provider shall be obliged to carry out supplementary performance, either by remedying defects or delivering/producing a new, faultless product. In case of replacement delivery, the Customer shall be obliged to return the defective product. 14.2 If supplementary performance fails, the Customer, at his own choice, can either reduce the price or withdraw from the contract irrespective of the contractual term. This shall also apply if the Provider refuses to carry out supplementary performance or if supplementary performance is unacceptable to the Customer. 14.3 The period of limitation for claims for defects is one (1) year from delivery or receipt. 15. Liability 15.1 The Provider shall be liable without limitation for damage that is caused by the Provider’s legal representatives or executives either intentionally or through gross negligence. 15.2 The Provider shall only be liable to a limited extent for damage that is typical and foreseeable at conclusion of contract and that is caused by the Provider’s vicarious agents, either intentionally or through gross negligence. Clause 15.4 remains unaffected. 15.3. In case of inadvertently negligent breach of a substantial contractual obligation (cardinal obligation), liability for damage shall also be restricted to typical, foreseeable damage. In addition, liability for damage caused by inadvertent negligence is excluded. Clause 15.4 remains unaffected. 15.4. Liability for personal damages, e.g., injury to life, body or health, is unlimited. 15.5 The Customer shall be liable in accordance with the statutory regulations. 15.6. In case of loss or destruction of data, the Provider shall only be liable if he has caused the destruction intentionally, through gross negligence or due to a breach of a substantial contractual obligation and, at the same time, the Customer has guaranteed that the destroyed data can be reconstructed at justifiable expense from data material that is available in machine-readable format. 16. Third-party content, domain names 16.1 The Provider shall not be responsible for material and content provided by the Customer. The Provider shall not be obliged to check the material or content for possible infringements of the law; nonetheless, he shall inform the Customer of obvious, significant risks that are immediately apparent to him. 16.2 If the Customer provides domain names to the Provider for registration, the Customer shall be responsible for ensuring third-party labelling and naming rights are not infringed. 16.3 The Customer, on his own responsibility, shall ensure that advertising campaigns commissioned by him are legally permissible, and shall guarantee their permissibility. The Provider shall not be obliged to carry out a legal review of the advertising campaign. The Customer shall also ensure that all holders of email addresses made available by the Customer have given legally valid permission to receive mailing, newsletters etc. 16.4 If proceedings are initiated against the Provider due to material, content, addresses, email addresses etc. provided by the Customer, the Customer shall indemnify the Provider and hold him harmless. 17. Retention of title 17.1 All delivered physical services shall remain the property of the Provider (goods subject to retention of title) until full satisfaction of all the Provider’s monetary claims from his business relationship with the Customer, even if payments for the actual performance have been made. 17.2 The Customer must inform the Provider immediately of recovery actions regarding the product. 17.3 The Customer may sell and process the goods subject to retention of title as part of normal business, as long as he is not in arrears. 17.4 The Customer’s claims arising from sale of the goods subject to retention of title are hereby assigned to the Provider in full as security. The Customer is authorised to collect the assigned claims as long as he does not fall into arrears in his payment obligations to the Provider and no application for insolvency or composition proceedings has been made against him and no such proceedings have been initiated against him. 17.5 If the realisable value for the securities for the Provider exceed his claims other than temporarily by a total of more than 10 percent, the Provider shall relinquish securities in a corresponding amount at his own discretion on request by the Customer. 18. Non-disclosure, referencing 18.1 The parties to the contract agree to keep secret the content and conditions of this contract and the information disclosed during its execution. 18.2 This confidentiality shall continue to apply after the termination of the contractual relationship. 18.3 If a party to the contract requests, the documents provided by that party must be surrendered on termination of the contractual relationship to that party where the other party to the contract is not able to assert a legitimate interest in those documents. 18.4 Press releases, information etc. in which one party to the contract refers to the other are only permissible following prior, written agreement (that may be made by email). Nonetheless, the Provider may name the Customer and the services rendered on the Provider’s website or in other media as a reference as part of own publicity and make them public for demonstration purposes and refer to them, unless the Customer is able to assert a contrary and justified interest. 18.5 The Customer is reminded that email and internet are open media. The Provider accepts no liability for the confidentiality of emails or the internet. Email communication can be carried out via other media at the request of the Customer. 18.6 The Provider and the Customer shall oblige third parties to maintain secrecy, in particular subcontractors, freelancers etc. 19. Data protection 19.1. The Provider shall be entitled to save the data regarding the specific order and to process and use these data for business purposes in accordance with statutory provisions. The Customer is hereby informed that the Provider saves the Customer’s full address and other data made available to the Provider during the course of the contractual relationship in machine-readable format and processes data that arise from the contract automatically. Other data that the Provider collects, saves and uses as part of the contract for other purposes are not personal data. 19.2. Disclosure to third parties is permissible if and insofar as this is fundamental to the contract - e.g., when registering a domain or similar. 20. Final provisions 20.1 Place of execution is the Provider’s registered address unless there is an agreement to the contrary. 20.2 Sole place of jurisdiction for all legal disputes arising from this contractual relationship directly or indirectly, including disputes on the contract’s creation and validity, is Dresden. This shall also apply to disputes arising from deeds, exchanges and cheques relating to the contractual relationship. The Provider, however, shall have the right to initiate proceedings against the Customer at the court at the Customer’s place of residence or business address. 20.3 German law, excluding the UN Convention on Contracts for the International Sale of Goods, shall apply to all legal issues arising from this contract and its implementation. 20.4 If, for any reason, one or several single provisions of these GTC be invalid, the validity of the remaining provisions shall remain unaffected. If these GTC contain omissions, these should be filled by a provision that meets the economic aim of the contract. 20.5 If deviating provisions are agreed between the parties in individual contracts subject to these General Terms & Conditions (GTC), such provisions shall take precedence over these GTC for the relevant individual contract. As of September 2008