AGB xplace GmbH

1.1 Scope

(1) Unless expressly agreed otherwise in writing, these General Terms and Conditions (hereinafter "GTC") shall apply to all business relations between us, xplace GmbH, Tuchmacherweg 12, 37079 Göttingen, Germany (registered in the Commercial Register of the Local Court of Göttingen under commercial register number HRB 3649) and our customers in connection with the sale or rental of the physical digital signage solutions offered by us (hereinafter "Hardware"), the rental of software offered by us (hereinafter collectively "Goods") and the provision of the services listed in these GTC. The GTC shall also apply if no separate reference is made to them in the event of adjustments to our offers, in whatever form. These GTC apply exclusively to companies, legal entities under public law or special funds under public law within the meaning of Sections 14 and 310 of the German Civil Code (BGB). The version of these GTC applicable at the time of conclusion of the contract shall be authoritative.

(2) The customer's general terms and conditions of business shall not apply in principle unless we expressly agree to their validity in writing. Terms and conditions that deviate from our GTC shall not become part of the contract even if the order is accepted and executed without reservation.

(3) The general provisions of Section 1 ("General Provisions") and Section 3 ("Final Provisions") shall apply to all business relationships within the meaning of Paragraph 1. The special provisions in Section 2 ("Special Provisions") shall also apply with priority to the rental of software, contractual services in connection with assembly/installation and other services including on-site services.

1.2 Conclusion of Contract/ Acceptance of Order

(1) Our offers are subject to change unless and insofar as we have given express written assurances. Contracts shall in principle only come into existence through a written order confirmation or through the dispatch of the goods or the performance of the service owed.

(2) Due to the continuous technical development and improvement of our goods and services, we reserve the right to make changes in design and execution compared to the information provided in our offers, provided that these changes are only insignificant and ensure at least the same quality of our goods and services; this applies in particular to the extent that such changes serve to maintain the ability to deliver.

(3) We reserve the right to transfer the provision of our own services or parts thereof to third party service providers or vicarious agents for independent performance.

1.3 Delivery

(1) Delivery periods and dates communicated by us shall only be deemed to have been agreed as binding if they have been expressly confirmed by us in writing. Otherwise, the notified periods and dates shall only be deemed to be approximate delivery dates. The delivery period begins at the earliest with our order confirmation, but not before the customer has provided the necessary information and handed over the required documents. In the event of a bindingly agreed delivery deadline, the deadline shall be deemed to have been met if the delivery item is dispatched before the deadline expires or the customer is notified of readiness for dispatch in accordance with prior agreement.

(2) All agreed delivery periods are subject to correct and timely self-delivery, insofar as and to the extent that we are not responsible for the non-delivery. In the event of non-availability or only partial availability, we shall inform the customer immediately. In the event of delays in delivery due to force majeure or other operational disruptions for which we are not responsible, the respectively agreed delivery period shall be extended to a reasonable extent. We shall notify the customer immediately of the occurrence of such events which result in considerable delays in delivery. In cases where we are demonstrably responsible for non-compliance with agreed delivery periods, the customer shall be entitled, after setting a grace period of at least four [4] weeks, to withdraw from the contract in respect of all deliveries which have not yet been dispatched at the expiry of the grace period or about whose respective readiness for dispatch the customer has not yet been informed.

(3) Partial deliveries are permissible to an extent that is reasonable for the customer, unless expressly agreed otherwise in writing.

1.4 Shipping and transfer of risk

(1) Deliveries by us are always made ex works or ex warehouse to the location specified by the customer in the order. The customer shall bear the costs for packaging and dispatch. Unless otherwise agreed, we shall determine the type of dispatch, the dispatch route and the company commissioned with the dispatch at our reasonable discretion. For cross-border goods traffic, we shall only make the deliveries available for collection "EXW Göttingen" (Incoterms® 2010), unless otherwise agreed in individual cases.

(2) Unless otherwise agreed, the risk shall pass to the customer upon conclusion of a contract of sale or a contract for work and materials at the time the goods are handed over to the forwarder or carrier, but no later than when they leave the factory or the warehouse. This shall also apply in the event that we bear the shipping costs in deviation from paragraph 1. The handover shall be deemed to have taken place if the customer is in default of acceptance of the goods. If the dispatch of the goods is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer as soon as the goods are ready for dispatch. Partial deliveries shall be deemed to be independent deliveries for the purposes of the passing of risk. In the event of default in acceptance, the customer shall bear the associated costs, in particular any return and storage costs.

1.5 Prices / Terms of payment

(1) Unless otherwise agreed, the prices notified by us shall apply ex works or ex warehouse plus the statutory value added tax (VAT). Invoices are generally due immediately without any deduction. The credit entry on our account is decisive. A discount may only be deducted with our express written consent. Order changes or additions after order confirmation, in particular changes to our goods and services in construction and design at the customer's request, entitle us to adjust the price. Any additional costs shall be borne by the customer. Licence fees, in particular for software solutions and content, shall be invoiced annually in advance in the absence of any agreement to the contrary. If the parties agree on a service contract for services to be provided, these shall be settled by the customer paying a monthly fee in advance, unless otherwise agreed. Technician assignments within the scope of an on-site service shall be invoiced to the customer separately for each individual case, unless these are explicitly agreed as a service obligation in the service contract.

(2) In the event of default in payment, rebates, discounts and other benefits agreed in individual cases shall become invalid. We reserve the right to demand advance payment in the event of default in payment and/or to assert a right of retention with regard to further performance. If, after conclusion of the contract, we become aware of circumstances which are likely to reduce the creditworthiness of the customer and to jeopardise our claims against the customer, all claims shall become due for payment immediately, irrespective of any payment terms granted. Such circumstances also entitle us to carry out outstanding deliveries or services only against securities or to withdraw from the contract. In the event of a delay in payment, we shall be entitled to charge the customer interest on arrears in the amount of currently 9 % points above the base interest rate (§ 288 BGB). Further claims for damages remain unaffected.

(3) The customer shall only be entitled to a right of retention as well as the right of set-off insofar as its counterclaims against our payment claim are undisputed or have been legally established.

(4) If the agreed delivery time is more than four [4] months, we reserve the right to change our prices appropriately if, after conclusion of the contract, there are demonstrably significant cost reductions or increases, for example due to collective wage agreements or changes in the price of materials. If the price increases by more than 20 %, the customer shall be entitled to withdraw from the contract.

1.6 Retention of title

(1) All goods delivered by us in the course of the conclusion of a purchase contract shall remain our property ("reserved goods") until full payment of all claims arising from the business relationship with the customer, including all ancillary claims. In the event of breach of contract by the customer, in particular default of payment, we shall be entitled to demand the return of the reserved goods and to revoke rights of use granted to hardware and software provided on a rental basis or content provided on a rental basis. The assertion of the claim for return shall only constitute a cancellation of the contract if we expressly declare this in writing.

(2) Until the transfer of ownership of purchased goods, the customer is obliged to treat them with care and to store them free of charge. The customer is also obliged to insure the goods adequately at replacement value against fire, water and theft damage at his own expense.

1.7 Notice of defects, warranty and liability

(1) The warranty period under purchase law is generally one [1] year and begins on the day of handover. If repairs or subsequent delivery are carried out within the framework of a guarantee voluntarily granted by us, this shall not trigger a new start of the warranty period. The buyer must inspect the delivered goods immediately after handover for defects, condition and, if applicable, warranted characteristics. Obvious defects must be notified to us in writing within ten [10] calendar days of handover; otherwise the goods received shall be deemed to have been approved. If a non-obvious defect becomes apparent at a later date, the customer shall be entitled to notify us in writing of the defect within ten [10] calendar days of discovery; otherwise the goods shall be deemed to have been approved also in view of this defect. § Section 377 of the German Commercial Code (HGB) shall remain unaffected in each case. The defective delivery items shall be returned to us in the condition in which they are at the time of the discovery of the defect or shall be kept available for inspection at our discretion. Only the delivery note shall be authoritative for the scope and object of the delivery. If the actual delivery according to the delivery note does not correspond to the offer previously accepted by the customer, the delivered goods shall be deemed to have been approved by the customer if he accepts them without reservation and does not object in writing within the above-mentioned period.

(2) In the event of a justified complaint, we shall decide at our reasonable discretion whether to rectify the defective goods or to make a replacement delivery. Multiple rectifications are permissible. We shall bear the expenses necessary for the rectification of defects, unless this is associated with disproportionately high costs (Section 439 (3) BGB). The customer is obliged to grant us a reasonable period of time for the required subsequent performance (rectification or replacement delivery). If the subsequent performance has finally failed, the customer is entitled to withdraw from the contract or to demand a reduction at his discretion.

(3) The warranty is excluded for such damage that is not attributable to our performance, for example as a result of normal wear and tear or defective installation and assembly work carried out by the customer or its vicarious agents, defective commissioning, defective and/or negligent handling or maintenance as well as improper stress.

(4) We shall be liable without limitation in the event of intent, gross negligence, culpable injury to life, limb or health as well as within the scope of guarantees assumed in writing and mandatory liability under the Product Liability Act (ProdHaftG). In addition, we shall be liable in the event of a breach of essential contractual obligations, i.e. obligations the fulfilment of which is essential for the proper performance of the contract and on the fulfilment of which the customer regularly relies and may rely, as well as in the absence of warranted characteristics. Liability is in each case limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract. Notwithstanding the aforementioned cases, our liability - in particular for damages in addition to or in lieu of performance, for tort, for compensation for other direct or indirect damage, including incidental or consequential damage, and for compensation for futile expenses - is excluded. The aforementioned limitations of liability also apply to the personal liability of our legal representatives, employees and when using vicarious agents.

(5) If the customer does not accept the delivered goods although he would be obliged to do so, or if we voluntarily take back the goods at the customer's request ("goodwill return"), we shall be entitled, at our discretion, to demand liquidated damages in the amount of 20 % of the total price originally owed in accordance with the order confirmation instead of a specific calculation of damages. The same shall apply if we take back goods in exercise of our rights arising from the retention of title (Clause 6). The customer reserves the right to provide evidence of any lesser damage. We, on the other hand, reserve the right to demand demonstrably higher damages. The customer shall bear the shipping costs for the return.

(6) Insofar as the customer has been granted a warranty by us, all warranty claims in respect of the goods provided shall lapse if the customer or a third party carries out modification or repair work on the goods without our approval. Statutory warranty claims shall remain unaffected in accordance with the conditions of these GTC.

1.8 Intellectual Property Rights/ Intellectual Property

(1) All intellectual property rights (in particular copyrights, trademark rights, design rights and other industrial property rights) to the delivered goods including individual components and spare parts, the software including the source code and its components, the content, the work results and other components of our services belong to us or third parties. Likewise, the designs, samples, drawings, etc. produced by us remain our intellectual property.

(2) Any rights of the customer to the third-party content and technologies provided by him remain unaffected. The customer shall indemnify us against any claims of third parties based on the unlawful use of technologies provided by the customer or specified by the customer (e.g. software, hardware components) and/or third-party content provided and, if applicable, installed or integrated in our goods, software or services on the customer's instruction or request. This also includes the reimbursement of costs of necessary legal representation.

(3) Unless otherwise agreed, we shall be exclusively entitled to all copyrights and other industrial property rights or other rights to the performance and work results of whatever kind (including the right to register as a patent, design or trademark) achieved by us within the scope of the business relationship. However, we shall subsequently transfer to the customer a revocable, simple, non-exclusive right of use to the respective performance or work result for the duration of the business relationship. The transfer shall be free of charge, as it is compensated by the customer's payment of the prices stated in the order confirmation.

1.9 Exemption

(1) The customer shall indemnify us against claims of third parties which are based on an unlawful use of the goods provided by us, including the software provided, or which result from data protection law, copyright law or other legal disputes caused by the customer which is associated with a corresponding use. This also includes the reimbursement of costs of necessary legal representation.

(2) We have no influence on content that the customer himself enters into the systems provided by us and, if applicable, broadcasts via these. The customer therefore bears full responsibility for their legal admissibility. For the broadcasting of various contents, such as a pay-TV offer, a separate contract must be concluded with the respective third-party provider. Insofar as contractually agreed, we provide services for the goods provided by us, but not for the services agreed between the third-party provider and the customer. The customer hereby indemnifies us against any claims - in particular from infringements of copyright or competition law - asserted against us by a third party on the basis of an unlawful use by the customer of the goods distributed by us. This also includes the reimbursement of costs of necessary legal representation.

2.1 Software and content

(1) If we provide the customer with software and/or content (text, graphic, photo, audio, video and other media files) (hereinafter collectively referred to as "software") on a rental basis together with hardware provided by us or separately, the customer must recognise the corresponding licence terms. Software from third parties is subject to the licence terms of the respective manufacturer. If the software is provided by download, the risk shall pass to the customer with the transfer of the last data package belonging to the software files from our gateway. In the case of delivery of a data carrier, the risk shall pass to the customer in accordance with Clause 1.4. upon handover of the data carrier.

(2) We grant the customer a paid, simple, revocable, non-exclusive, non-sublicensable and non-transferable right of use for a minimum term of twelve [12] months ("licence term") from the time the software is made available. The Licence Term shall be extended by a further twelve [12] months in each case unless the Customer gives three [3] months' prior written notice of termination to the end of the respective term. The customer is prohibited from copying (with the exception of backup copies), modifying or altering the software without our express written consent. In particular, the customer is not permitted to reverse engineer, decompile, disassemble ("reverse engineering"), decrypt or extract the software. If we provide the customer with the software for use with the goods supplied by us, the right of use granted shall be limited to the goods supplied by us in the corresponding number.

(3) The customer shall pay an annual licence fee in advance for the use of the software supplied. Costs for hosting, system administration, monitoring as well as remote maintenance and the installation of software updates are covered by the payment of the monthly licence fee, unless and insofar as the parties agree otherwise. We shall endeavour to implement remote maintenance, including fault clearance, for the software offered by us via remote access via the Internet, insofar as this is technically possible. This may require the cooperation of the customer. In this context, the customer shall in particular guarantee a stable Internet connection with sufficient bandwidth. Corresponding remote access for our self-developed software is explicitly reserved for us and the third-party service providers commissioned by us.

(4) If we are dependent on the customer providing us with text, graphic, photo, audio, video and other media files ("third-party content") at his own expense for the conception and/or design of the software and for the creation of a content database, these must be made available to us in good time and in a common, directly usable digital format. The customer shall bear the costs of any necessary data conversion. The customer guarantees that the third-party content provided to us does not infringe any third-party rights (in particular industrial property rights, copyrights and personal rights) or violate existing laws. If claims are asserted against us by third parties due to an infringement of such rights, the customer shall indemnify us against such claims. This also includes the reimbursement of the costs of necessary legal representation.

(5) We shall not be liable for damage to peripheral devices (e.g. TV sets, monitors, other displays) and systems (including third-party software) caused by the negligent use of software provided by us. In particular, the customer acts negligently if it does not use the software provided (including I-TV content) with the necessary care and if it fails to take any appropriate protective measures (e.g. use of a screen saver or automated line offset). We are not obliged to point out to the customer corresponding dangers arising from the use of the software; this applies in particular in the case of conception/development in accordance with customer-specific requirements or specifications.

(6) After the end of the contract, the customer is obliged to return the software provided by us, including any backup copies, to us or, in cases where this is not possible, to delete it in accordance with the current state of the art.

2.2 Assembly/ Installation

(1) Insofar as we owe the assembly/installation of the offered goods in accordance with the order and insofar as the law on contracts for work and services applies to the corresponding service components, the risk shall pass to the customer upon acceptance by the customer after the installation or assembly work has been completed. If the customer fails to accept the goods although he would be obliged to do so, he shall be in default of acceptance and the risk shall pass to the customer in the same way. The warranty period within the meaning of Clause 1.7. para. 1 sentence 1 begins with the acceptance. If acceptance takes place despite obvious defects, the goods shall be deemed to have been approved and corresponding warranty claims of the customer with regard to these defects shall be excluded, unless the customer has explicitly reserved the right to assert corresponding claims.

(2) If the completion of installation or assembly work owed is delayed for reasons for which the customer is responsible and if, as a result, acceptance is not carried out on time, the costs incurred due to the delay shall be borne by the customer. Such reasons include, in particular, breaches by the customer of his obligations to cooperate, for example the failure to carry out the necessary preparatory work or the failure to provide an Internet connection with sufficient bandwidth.

(3) The parties agree that in the event of installation or assembly work over a longer period of time, the partial services rendered in the meantime and the goods/materials temporarily stored at the customer's premises shall remain in the customer's custody even before acceptance has taken place. In such a case, the customer shall bear the costs and the risk for the safekeeping and undertakes to fulfil its duties of care. In particular, the customer shall ensure the provision of sufficient storage space if required and shall take appropriate measures to protect against loss and destruction (e.g. switching on an alarm system, video surveillance, use of a security service).

2.3 Other services/ on-site service

(1) At the customer's request and subject to our acceptance, we shall provide further services after the contractually owed delivery or assembly/installation in return for a separately agreed monthly fee ("service fee") as part of a service contract. The service fee is to be paid by the customer monthly in advance. An essential component of the services is the provision of a telephone service hotline and bring-in support (option to send in goods in need of repair). The customer must have a return authorisation number ("RMA") provided by us in advance in order to return goods in need of repair. Material costs may be charged separately to the customer.

(2) Technician deployments as part of an on-site service for fault clearance shall be invoiced to the customer separately for each individual case ("service deployment fee"), unless these are explicitly agreed as a service obligation in the service contract and covered by payment of the monthly service fee. In principle, the flat-rate service fee agreed in accordance with the order confirmation covers the costs for travelling to and from the site as well as the working hours performed, insofar as these are absolutely necessary in the course of restoring operational readiness. Material costs are charged separately to the customer.

(3) Unless the parties have expressly agreed otherwise, response times for technician assignments are deemed to be approximate and may vary in individual cases (e.g. if the location of the systems is difficult to reach or due to a lack of availability of components). If "Next Business Day (NBD)" has been explicitly agreed as the response time, in the event of a malfunction preventing operation and unsuccessful fault clearance by remote maintenance (by telephone or via the Internet) etc., we shall be obliged to deploy a technician on site no later than 12:00 noon on the following working day (Monday to Friday, excluding local public holidays; no Sundays open for business or similar) after receipt of the customer's fault report; in the event of fault reports after 12:00 noon, we shall be obliged to deploy a technician on the next but one working day after receipt of the fault report. Otherwise, we shall always endeavour to provide the contractually agreed on-site service to restore operational readiness within the scope of our technical and operational capabilities ("best effort"). Technician call-outs generally take place during normal business hours.

(4) Notwithstanding any deviating agreements, all technician deployments in the amount of the agreed service deployment flat rate shall be at the expense of the customer, which are initiated due to erroneous fault reports as well as faults which have been caused intentionally or negligently by the customer or a third party (with the exception of third-party service providers commissioned by us in the course of their order performance) (e.g. due to vandalism or application errors; obviously faulty plug-in, network and HDMI connections). If a restoration of operational readiness is delayed due to reasons for which the customer is responsible, the agreed response time, if any, shall generally be deemed to have been complied with. No fault clearance can be provided for hardware and software of third parties which are used in combination with the goods delivered by us or our own software provided by us. The customer is requested to contact the respective manufacturer if necessary. The same applies to internet, telephone or mobile phone connections provided by third parties.

(5) Should it become apparent in the course of the performance of the service that the respective services and costs are already covered by the payment of the licence fee for the software provided (cf. section 2.1. para. 3 sentence 2) or are to be provided within the scope of the warranty or guarantees owed, the customer shall not be charged a separate fee. If, at the customer's request, we voluntarily agree to a technician's visit instead of the customer sending in defective goods, the customer shall bear the costs of travel to and from the site, irrespective of any warranty claims. Services and technician assignments are carried out by us or by third-party service providers commissioned by us.

3.1 End of contract/termination for cause

(1) Both parties are entitled to terminate existing contractual relationships immediately for good cause. Good cause shall be deemed to exist if facts exist which make the continuation of a contractual relationship unreasonable for the party terminating the contract. Any termination must be in writing.

(2) We shall be entitled to terminate the contract without notice in particular if the customer is at least four [4] weeks in arrears with a payment despite having been granted a grace period or if the customer breaches its contractual obligations to indemnify us against liability and to protect our intellectual property. In addition, we are entitled to terminate the contract for good cause if the customer breaches any other material contractual obligation and does not remedy this breach after setting a reasonable grace period.

(3) Termination for good cause by the customer due to
technical problems beyond our control in the provision of the service, in particular due to an insufficient internet connection, is excluded.

3.2 Force majeure

If a party is prevented from fulfilling this agreement due to force majeure, the contractual obligations shall be suspended for the duration of the disruption and to the extent of its effect. To this extent, liability of the parties is also excluded in particular. Force majeure is an extraordinary, unforeseeable event beyond the control of the parties which affects the operation and which cannot be prevented or overcome even if the parties exercise the due care required in business transactions, taking into account economically reasonable standards. Force majeure shall in particular include natural disasters, severe weather, fire, earthquakes, flooding, nuclear/reactor accidents, wars, riots and insurrections, terrorist attacks, unavailability or disruption of communication services and infrastructure, means of transport, energy or fuel. If the delivery period is extended by more than three [3] months as a result of force majeure in accordance with Clause 1.3. para. 2 sentence 2, or if delivery becomes definitively impossible, both parties shall have the right to withdraw from the contract in writing without claiming damages. Notwithstanding the foregoing, cases of force majeure shall not give rise to a claim for termination for good cause.

3.3 Secrecy and anti-corruption

(1) The customer shall treat as confidential all confidential information made accessible to him by us or becoming known to him in the course of the business relationship, irrespective of whether this information has been disclosed orally, in writing or in any other form. He shall treat confidential information made accessible by us in the same way as he would treat his own confidential information, i.e. he shall in particular take suitable measures to prevent third parties from obtaining knowledge and using confidential information.

(2) The parties undertake not to commit any criminal offences and/or violate applicable law and standards relating to the contract in question in connection with the initiation and performance of a contract, neither themselves nor through their executive body members, employees or third parties commissioned by them. The Parties further undertake to take all necessary and reasonable measures to avoid corruption in their area of business and responsibility. In particular, neither party shall commit criminal acts with an economic background, such as fraud, betrayal of secrets, falsification of documents or data, offering, promising or granting advantages to a member of a body or employee of the contractual partner, in accordance with the respectively applicable and valid law. In the event of a violation of this anti-corruption clause by one of the parties, the other party shall be entitled to extraordinary termination of this contract without notice after prior unsuccessful written warning. In the event of a serious violation, a warning shall not be required. Claims for damages remain reserved.

3.4 Other

(1) We reserve the right to adapt these GTC for valid reasons, also for existing business relationships, to conditions that have changed after the conclusion of the contract with effect for the future, in particular due to an expansion of our services, new technical developments, changes in case law or other comparable reasons. We undertake to give due consideration to the interests of the customer in the respective amendment of the GTC. We will inform the customer of changes to our GTC in writing by post or by e-mail at least four [4] weeks before they come into force. If a customer does not object to the changes within four [4] weeks after receipt of the information, the changes shall be deemed approved by the customer. If the customer objects to the amendments to the GTC in due time, they shall oblige the parties to negotiate a solution in the individual case.

(2) The customer is not entitled to assign or transfer any rights arising from the debt relationship with us to third parties without our written consent. § Section 354a HGB remains unaffected.

(3) The law of the Federal Republic of Germany shall apply to all claims arising from or in connection with these GTC, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Unless otherwise stated in our order confirmation, the place of performance shall be our registered office. If we are responsible for the installation/assembly of the goods or services and if the law on contracts for work and services applies to the corresponding service components, the place of performance shall be the place where the service is to be provided in accordance with the contract. The exclusive place of jurisdiction is Göttingen.

(4) All ancillary agreements, amendments or supplements to these GTC must be made in writing in order to be legally effective. This also applies to the waiver of the aforementioned written form requirement.

(5) Should individual provisions of these GTC be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions.

Stand: October 2019