General Terms and Conditions of Business / Supply of Hardware and Software

1. Scope of the T&C

1.1    These General Terms and Conditions of Business (T&C) apply to all contracts with Customers concerning the supply of Membrain hardware and/or Membrain software ("Products") unless alterna-tive provisions have been agreed upon in writing. In addition to these T&C, the end customer licensing conditions shall also ap-ply to the use of Membrain software. These T&C shall also ap-ply to all future business relations between the Customer and Membrain, irrespective of whether specific reference was made to them again prior to the conclusion of the respective contract.
1.2    Any conflicting Conditions of Purchase, Order or General Terms and Conditions of Business of the Customer shall also not ap-ply, even if the Customer makes reference to them and Mem-brain does not expressly object to them.
1.3    For repairs that do not fall under the warranty, service and maintenance contracts or any other services, specific conditions of contract shall apply. Unless otherwise agreed, the prices for these services shall be based on the respective Membrain price list.

2. Conclusion of contract / scope of services

2.1    A contract with the Customer shall only have been concluded once acceptance of a written quotation from Membrain has been confirmed in writing by the Customer, whereby this confirmation has the same content as the quotation. If the confirmation of the Customer does not have the same content as the quotation provided by Membrain, or if the Customer makes an offer ver-bally, e.g. by telephone, a contract shall only have been con-cluded once Membrain has sent a written order confirmation. Should such an order confirmation not be provided, the contract shall be concluded on delivery of the Product by Membrain.
2.2    The scope of services shall be determined solely on the basis of the written quotation or the order confirmation of Membrain. Fur-ther documents shall only be referred to in order to determine the content of the service if specific reference is made to them in the Membrain quotation or order confirmation. Any other ser-vices above and beyond this require a separate written agree-ment.
2.3    All Membrain price lists and other advertising documentation are always subject to change and are non-binding. Information re-garding technical details in brochures or advertising materials are only ever approximate values. Details contained in such documentation, e.g. regarding the application of Products, are only non-binding examples and are not an assurance of proper-ties.
2.4    Additions, modifications and supplementary agreements to these T&C require the written confirmation of Membrain to be ef-fective. This shall also apply to the waiver of the requirement for the written form.

3. Compensation

3.1    Unless otherwise agreed, all prices are stated net in Euro, ex-clusive of the respective statutory VAT. The prices do not in-clude customs duties, taxes, transportation, packaging or insur-ance. Unless an individual agreement has been concluded, the prices are based on the respective Membrain price lists for the agreed supplies and services.
3.2    The compensation for the delivered Products must be paid with-in 14 calendar days from the date on the invoice. All payments must be paid into the Membrain account indicated on the invoice without any bank charges or other deductions. In the event of non-payment by the Customer, Membrain shall be entitled to charge interest amounting to 4% above the respective Euro In-terbank Offered Rate (EURIBOR), unless the Customer can prove costs incurred are lower. Further rights of Membrain re-main unaffected.
3.3    The Customer may only withhold payments or offset payments against claims by Membrain if such counterclaims are deter-mined to be undisputed or legally binding.

4. Delivery and inspection of the Products

4.1    The delivery deadlines agreed upon by Membrain and the Cus-tomer are not fixed deadlines. Subject to timely delivery by our supplier, Membrain shall make every effort to keep to the speci-fied delivery deadlines. However, Membrain cannot guarantee this. The specified delivery times shall commence from the dis-patch of the respective written declaration. Delivery and perfor-mance deadlines shall be extended accordingly in the event of force majeure and other impediments for which Membrain is not responsible. Membrain is entitled to make partial deliveries. The Customer shall bear the shipping costs.
4.2    If the Products are not delivered on time, the Customer must issue Membrain with a reminder specifying a period of grace, and in the event that this expires without result, default shall be deemed to have occurred. This period must be a minimum of four weeks. The Customer is only permitted to withdraw from the contract following the unsuccessful reminder of Membrain by the Customer specifying a period of grace and refusal to oth-erwise accept performance.
4.3    In the event of default in delivery or impossibility due to circum-stances for which Membrain is not responsible, the Customer does not have any rights against Membrain, in particular not to damages, apart from the right to withdraw.
4.4    The Products must be inspected by the Customer immediately on receipt and handled with the due care and diligence of a pru-dent businessman. The Customer is obligated to report any shortcomings in the supplied Products immediately in writing, at the latest within two weeks following delivery. If notice of de-fects is not provided in the event of any obvious shortcomings, the Products shall be deemed to have been approved. Sections 377 and 378 HGB (German Commercial Code), in particular the obligation of the Customer to immediately provide notification of any concealed shortcomings on their discovery, shall apply in full.
4.5    The Customer shall bear the costs of dispatching any software. On dispatch of the software, the risk shall be transferred to the Customer as soon as Membrain transfers the software to the individual specified to receive the delivery.

5. Retention of title

5.1     Membrain reserves the right of title to the supplied Products until all of the existing claims by Membrain against the Custom-er have been fulfilled, even if these have only come into exist-ence following conclusion of this contract. If the value of the securities together with other securities granted to Membrain by the Customer exceeds the claim by more than 20% in the long term, Membrain shall release the securities accordingly.
5.2       If the Customer defaults on the payment, Membrain is entitled, irrespective of its other rights, to take back the supplied Prod-ucts immediately at the cost of the Customer. Reclaiming the reserved goods does not constitute withdrawal from the con-tract.
This shall also apply if insolvency proceedings are initiated against the Customer's assets or the commencement is reject-ed due to a lack of assets.
5.3    The Customer is obligated to report immediately to Membrain any seizures of or reported claims by third parties to reserved products. The Customer shall likewise immediately notify the third party of the retention of title in favour of Membrain.

6. Warranty

6.1    Membrain warranties that the Products it supplies fulfil the spec-ifications of the respective manufacturer stated in the product documentation of the respective manufacturer.
    Membrain is not liable for the warranty claims of the Customer that exceed the warranty of the respective manufacturer for Products supplied by Membrain.
    Membrain is not liable for ensuring that the Products are suitable for the specific purposes of the Customer. The Customer alone bears the responsibility for the selection, installation and use of the Products.
6.2    Following appropriate written notification by the Customer, Membrain shall notify the respective manufacturer about any shortcomings with the Product, including manuals, with the in-struction for immediate rectification.
6.3    In the event of a shortcoming with supplied software that has been programmed by Membrain, Membrain can also supply the Customer with an update to the software as replacement. As an update constitutes a further development of the software, Mem-brain reserves the right to modify or remove individual features of the update in comparison with the software originally supplied to the Customer. Returns performed by Membrain shall be sent to the delivery address specified by the Customer on the order confirmation. After two failed attempts at rectification or re-placement delivery, the Customer shall be entitled to cancel the contract or reduce the amount of compensation. The warranty period is twelve months from delivery of the Products.
6.4    The right of the Customer to rectify the shortcoming itself and to compensation for the necessary expenses is expressly prohibited in accordance with Section 637 BGB (German Civil Code).
6.5    Membrain shall accept no warranty for shortcomings that can be traced back to incorrect operation or interference by the Cus-tomer with the Products. Compensation for such repairs shall be based on the respective Membrain price lists. Membrain shall retain the right in the event of any unjustified notice of defects to charge the Customer for any resulting costs.
6.6    Only the direct Customer shall be entitled to warranty claims against Membrain, and these shall not be transferable.

7. Liability

7.1    Membrain is liable in full for the wilful intent and gross negli-gence of its legal representatives and vicarious agents.
7.2    In the event of a negligent breach of its contractual obligations, Membrain is only liable if an obligation has been breached that must be complied with as a matter of vital importance for achieving the purpose of the contract (cardinal obligation). In the event of a cardinal obligation being breached, Membrain is only liable for losses that typically have to be expected in connection with the provision of the Products.     
7.3    Liability for consequential losses, e.g. loss of profit, loss of pro-duction, expected savings, loss of data, missed business oppor-tunities or higher costs for replacements is excluded. The limita-tion of liability for consequential losses encompasses all claims for damages, irrespective of whichever legal basis they may have. However, it does not encompass consequential losses arising from the absence of promised features, against which the warranty is designed to provide assurance. It also does not encompass the liability of Membrain for initial incapacity and de-fect of title. The liability of Membrain according to the German Product Liability Act (Produkthaftungsgesetz) likewise remains unaffected.

8. Confidentiality

8.1    The Customer is obligated to keep confidential all information about Membrain Products and written and verbal information about the commercial dealings of Membrain that the Customer obtains during the performance of the contract, and to take all reasonable precautions to protect confidential information and documents against unauthorised forwarding, reproduction or use.
Confidential information and documents do not include infor-mation generally known to third parties, information that has been received by third parties in a legitimate manner, infor-mation that has been made generally accessible to third parties without the violation of non-disclosure agreements, information that was verifiably already known or information that was devel-oped independently by one party prior to receipt of the other par-ty's confidential documents.

9. Transfer

9.1    The Customer may not transfer its claims and rights against Membrain without the prior written consent of Membrain
This consent may only be refused due to good reason.

10. Miscellaneous

10.1    These T&C are subject to German law. Application of the UN Sales Convention is excluded. The exclusive place of jurisdiction for all disputes arising from these T&C and their performance shall be Munich, Germany. Membrain also has the right, at its discretion, to take legal action against the Customer at the loca-tion of the Customer's registered office.
10.2    Unless other written agreements exist between the parties, these T&C – in addition to the end Customer licensing condi-tions, the licence certificates of the respective software manu-facturer and the agreements specified in the order confirmation – constitute the entire contractual arrangements between Mem-brain and the Customer.
10.3    The current or future ineffectiveness of individual provisions within these T&C shall not affect the effectiveness of the other provisions.
10.4    These T&C shall replace the currently applicable T&Cs of Mem-brain.
10.5    The contractual language of the agreement is German. If there is any doubt in connection with translations of this text, the German version shall take precedence.            

Date: November 2019