TERMS OF SERVICE

Terms of Delivery, Payment and Software Utilisation of BeEnergy SG GmbH

1. General
These terms and conditions of sale shall only apply vis á vis merchants, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code).

2. Services
All deliveries and services from BeEnergy SG & Co, including the sale of software, are subject to the following terms and conditions of sale. Any conditions in any order given by any customer which are inconsistent with these conditions are expressly revoked. Such conditions shall not be legally binding for BeEnergy SG unless they have been agreed to in writing by BeEnergy SG.
The use of BeEnergy SG software and customised software is subject to separate software user conditions.
The placing of an order and acceptance of goods delivered by BeEnergy SG shall constitute the customer's agreement to our conditions.

3. Quotation and delivery
All quotations unless limited in time are subject to confirmation; our written order confirmations shall form the basis of the contract and the definitive factor for the scope of the delivery. This also applies if the customer has requested a specific tender. Orders given by the customer are binding for the customer and shall be deemed to have been accepted upon presentation of the order confirmation by BeEnergy SG. This shall be deemed to have been presented in due time in the case of catalogue components if presented together with the issued invoice and the delivery. In the case of quotations with a time limit and a time stated for acceptance, the quotation shall be binding, if an order confirmation is not submitted in time. Subsidiary agreements and changes must be confirmed in writing by BeEnergy SG.
We reserve the right to vary the design and make changes to technical data and performance characteristics insofar as these are for the purpose of technical progress.
Any documentation submitted with the request for tender or an order, such as drawings, specifications, material, samples, tools, models or similar and made available to BeEnergy SG, shall remain the property of the customer. These are binding for the preparation and issue of the BeEnergy SG quotation. Any subsequent variations relating to the initial request for tender and the BeEnergy SG quotation must be specified in writing when ordering.
Any documentation added by BeEnergy SG to a quotation in a manner similar to that mentioned above shall remain the property of BeEnergy SG. The customer undertakes not to use this documentation for the purpose of any other contracts or to reproduce or make it available to third parties. Any apparent mistakes, printing, computational, spelling or calculation errors shall not be binding for BeEnergy SG and do not give the customer the right to claim for damages.

4. Prices and payment
Prices apply ex BeEnergy SG distribution warehouse or BeEnergy SG factory store. Value added tax is not included.
The despatch and packaging costs shall be met by the customer. The packaging used by BeEnergy SG fulfils the ecological requirements for correct recycling without burden to the environment. If BeEnergy SG packaging accumulates at the premises of the ordering party, he shall by accepting the goods in question be deemed to have confirmed that he is able to recycle this packaging in accordance with the Packaging Act and to have undertaken to dispose of this packaging in accordance with the requirements of the Packaging Act. In cases of this kind, the ordering party shall forward non-returned packaging of the specified kind for recycling in accordance with the Packaging Act, shall on request at any time provide us with details of the type and quantity of packaging materials forwarded for recycling in this way and shall confirm to us - in writing and at any time when requested - that this recycling obligation has been met. We shall be entitled at any time - subject to advance notice - to visit the ordering party"s premises to verify that this recycling obligation has been met.

If the ordering party does not wishes to carry out disposal of packaging materials himself in accordance with the above-mentioned Packaging Act, he shall declare this to BeEnergy SG immediately after acceptance of the goods in question in a form which provides a traceable record. In cases of this kind, BeEnergy SG shall offer the ordering party the opportunity, in conformity with the obligations defined by the Packaging Act, to return this packaging to BeEnergy SG. Any such return transport shall be at the expense of the ordering party.

The invoice amount is payable within 14 days from the date of the invoice net cash and without any other discount.
If the period of payment has been exceeded, we reserve the right to claim the damages caused by delayed performance to the level of the bank credit claimed.
Assembly and repair costs and product information costs are payable net.
In the case of orders with a net goods value of less than € 25, we will add a small-order supplement to the invoice to bring ist value up to this amount.
The withholding of payments or offsetting of potential counterclaims is not permissible other than in the case of recognised or legally determined counterclaims.

5. Delivery period
The date specified in the order confirmation is binding only if all the technical and commercial details have been clarified by that time. The customer undertakes to provide the materials essential for the order to be executed on time. The delivery date is deemed to have been adhered to, if the object of delivery has left the BeEnergy SG works by the said date or if the customer has been advised of ist readiness for shipment.
The delivery times documented by means of a classification system as standard delivery times (standard delivery time classes) and quoted in all our sales and communications media (such as product catalogues, price catalogues, quotations, etc.) are merely empirical values drawn from everyday practice. The standard delivery times quoted for the individual classes are not guaranteed or warranted delivery times. Non-adherence to these delivery times in individual cases shall not result in us being automatically considered to be in breach of contract and shall not entitle customers to raise complaints or claims for damages of any kind.
Partial and early deliveries by BeEnergy SG are permissible.
The delivery date increases proportionately in the event of difficulties attributable to vis major. This includes actions as part of industrial disputes, in particular strikes and lockouts. It also applies in the event of unforeseen difficulties or circumstances arising with subcontractors.
Moreover, BeEnergy SG will not be responsible in the above described circumstances, if these occur during an already existing delay.
If despatch is delayed at the request of the customer, we shall after a reasonable period of time be entitled to dispose otherwise of the delivery item or to supply the customer to a correspondingly extended time limit and to charge the customer storage costs.

6. Transfer of risk
All deliveries shall be effected at the risk of the customer. Partial and early deliveries shall also be at the risk of the customer upon despatch or upon communication of readiness for shipment. This also applies if the consignment is transported by BeEnergy SG and even if BeEnergy SG uses ist own vehicles and effects the installation.
At the request of the customer, BeEnergy SG shall arrange at the customer's expense insurance of the consignment against theft, breakage, transport, fire and water damage and any other insurable risks.

7. Retention of ownership
The goods supplied shall remain the property of BeEnergy SG until all debts owed by the customer are settled in full including any balances existing from the business relationship with the customer irrespective of statutory source.

The enforcement of our right to retain ownership should not be regarded as a withdrawal from contract. On the contrary, it ensures our rights from the contract of sale in addition to our entitlement to the return of our property, in particular to the reimbursement of damages and lost profits.
The customer is authorised to resell the supplied goods revocably as part of a proper business activity. The customer assigns at this stage all claims with subsidiary rights to the value of the conditional commodity due to him from the resale. The customer retains the authority to collect the assigned claims as long as he meets his payment obligations towards BeEnergy SG. Upon our request, the customer is under obligation to notify BeEnergy SG of any assignment to a third party for the purpose of payment and to provide us with the information and documentation necessary to assert our rights.
The customer is allowed to process, transform and combine the conditional commodity with other items. The processing or transformation is effected for BeEnergy SG. We shall immediately become the owner of any goods made as a result of processing or transformation, namely corresponding to the value of the delivery. The processed or transformed items shall be deemed to be a conditional commodity.
In the event of any processing, transformation or combination with other items not belonging to BeEnergy SG, we have the right to joint ownership of the new item to the value of the share which represents the proportion of the value of the new item resulting from the processed, transformed or combined conditional commodity. The share of claim assigned to us has priority over any other claims.
If our conditional commodity is combined with real estate or movable property by the customer, the customer shall by way of security also assign to BeEnergy SG his claim due to him as remuneration for the said combination, including all subsidiary rights without the need for any further particular explanation.
The above paragraph correspondingly applies to the level of the assigned claim.
We undertake to release the securities due to us insofar as their value exceeds the claims to be secured by more than 20%, and insofar far as these have not yet been settled.
The customer does not have the right to any other dispositions regarding the conditional commodity other than those mentioned above, in particular the customer does not have the right to pledge or transfer the property by way of security. In the event of pledges, attachments or other dispositions by third parties, the customer undertakes to draw attention to the fact that it is BeEnergy SG property and to inform us of the situation immediately.
In the event of the customer not conforming to the contract, in particular in the case of a delay in payment, the total balance due shall become payable immediately. In such cases, we have the right to recover possession of the goods following a demand for payment and to collect these from the customer's premises. In such an event, the customer shall not have any right to ownership.

8. Use of software
In return for remuneration, the customer shall receive non-exclusive, non-transferrable and perpetual utilisation rights for BeEnergy SG software of all kinds and any associated documentation. This software may be used on one hardware product or in some cases a specially agreed hardware product. BeEnergy SG shall remain the owner of copyrights and all other industrial property rights. No part of this software must be duplicated other than for the purpose of data backup. Copyright notices must not be removed.
BeEnergy SG will supply installation and commissioning instructions containing relevant safety instructions for ist software in printed form. All other documentation will be supplied only in digital form with on-line help. When new software releases are supplied, these will also be sent in digital form.

The transfer of software to third parties requires the permission of BeEnergy SG in every case. If the software is provided for the purpose of resale, the third party must agree to these conditions. Modifications are not permissible.

In the event of a violation of these conditions, the purchaser shall pay in each and every case a contractual penalty amounting to ten times the order value. This contractual penalty shall not be set off against any potential claims for compensation. The software and associated documentation must be returned immediately on request.

The conditions described above do not apply to exclusive customer-specific software developed on the basis of specifications provided by the customer. This software is developed and customised by BeEnergy SG as part of a contractually produced complete control system making use of modular software modules (standard software modules) from BeEnergy SG suitable for a wide range of applications and adapted to the contractual performance requirements. The above conditions shall also not apply to customised training software.
Upon full payment of the purchase price of the customised application program BeEnergy SG shall transfer the exclusive, spatially unlimited and perpetual rights of utilisation to the customer, without the customer having any lawful entitlement to the individual basic standard software modules forming the basis of the customised version. BeEnergy SG has the right, irrespective of these conditions, to use the basis of this development to create and offer similar software solutions customised for applications required by other customers. BeEnergy SG shall retain basic utilisation rights for internal purposes.

9. Warranty claims
Subject to the provisions in item 10 of the terms and conditions herein and excluding any further claims, BeEnergy SG shall be liable for defects of quality and legality of title and warrants as follows:

Defects of quality:
All parts found to be defective as a result of circumstances prior to the transfer of risk shall, at the discretion of BeEnergy SG, either be repaired or replaced by delivery of a faultless part. Excluded from this warranty shall be parts subject to wear.

We shall warrant that BeEnergy SG software has been duplicated properly. BeEnergy SG software is designed to run on hardware products specified by BeEnergy SG. Warranty claims shall be satisfied by means of a replacement. Unless otherwise agreed in writing, we shall not warrant that the software and data structure are free of defects.
In case of customised software, BeEnergy SG shall warrant compliance with the functions and features stipulated in the specifications, the order acknowledgement, documentation or the work/procedure descriptions worked out together between BeEnergy SG and the customer. BeEnergy SG shall not warrant that such programs are free of defects in relation to the use of said programs in all applications intended by the customer, in particular, not such applications of which BeEnergy SG was not aware or did not test at the time of development/acceptance.
Readily evident defects shall be notified to us immediately in writing, however, at the latest within 8 days after receipt of goods. Hidden defects which are not readily evident must be notified to BeEnergy SG in writing as soon as they become apparent or at the latest within 8 days of this time. Hidden defects which are not readily evident must also be notified to BeEnergy SG in writing at the latest within 8 days after the customer ought to have detected the defects in question but failed to do so due to his/her gross negligence. If the defect complaint is justified, we shall bear of the immediate costs - insofar as the complaint proves to be founded - the cost of the replacement part, shipping thereof as well as reasonable costs related to uninstallation and reinstallation, insofar as such procedure does not result in unreasonable demands made on BeEnergy SG.

The customer shall allow us time and opportunity to effect the repair or replacement delivery, otherwise BeEnergy SG shall not be held liable for the ensuing consequences. The customer, with BeEnergy SG's prior consent, shall have the right to rectify defects itself or have them rectified by a third party in such urgent cases where there is a danger to operational safety and to prevent extensive damage, and to claim reimbursement of necessary costs from BeEnergy SG. This shall also apply in the cases where we are causing undue delay in remedying the defect. Should the customer or a third party carry out unqualified repairs, BeEnergy SG shall not be held liable for any consequences thereof.

The customer shall be entitled to withdraw from the contract within the scope of the statutory provisions if BeEnergy SG, taking into account exceptional cases provided in the law, allows to let pass a reasonable period for repair or replacement delivery as a result of quality defects without remedying the situation. The aforesaid exceptional cases are for instance if BeEnergy SG refuses to rectify the delivery, the rectification has failed or rectification is unreasonable for the customer. If the defect is insignificant, the customer shall merely have the right of reduction of the purchase price, provided also that BeEnergy SG allows to let pass a reasonable period for repair or replacement delivery due to quality defects without remedying the situation. Otherwise, the right of reduction of the purchase price shall be excluded.

Other claims shall be determined as stipulated in item 10 of the terms and conditions herein.

In addition, we shall not be held liable for any damage on foot of the following grounds: unsuitable or improper use or storage, faulty installation by the customer or a third party, unauthorised repair attempts and modifications, natural wear, erroneous or negligent handling, chemical effects and electrical effects etc. outside our power, as well as in case of non-intended use and non-compliance with our user manuals and catalogue sheets. In addition, the warranty shall be voided if the customer or third parties modify the control/software without BeEnergy SG's prior consent and without any other justification (BeEnergy SG's undue delay in remedying defects), even if the error occurs in an unchanged component.

Defects of title:
If the use of the delivery item infringes domestic industrial property rights or copyrights, BeEnergy SG shall, at ist cost, obtain the right to principally enable the customer to continue to use the delivery item or to modify the delivery item in a manner acceptable to the customer so that the copyright infringement no longer exists.
Should this not be achievable in an economically reasonable manner or within a reasonable period of time, the customer shall be entitled to withdraw from the contract. Given the stipulated conditions, BeEnergy SG also shall have the right to withdraw from the contract.
In addition, BeEnergy SG shall indemnify the customer in relation to any non-disputed claim or legally asserted claim raised by the relevant copyright owners.
Subject to the provisions of item 10 of the terms and conditions herein, the above stated obligations of BeEnergy SG shall be final in relation to cases of infringement of property rights or copyrights. The aforesaid obligations shall be applicable only if the customer advises any property or copyright infringement claims raised immediately to BeEnergy SG, the customer reasonably supports BeEnergy SG in the defence of such claims or enables BeEnergy SG to carry out modifications, BeEnergy SG has at ist disposal all defence actions including out-of-court settlements, the defect of title is not based on an instruction issued by the customer and the infringement is not caused by non-authorised modifications of the delivery item by the customer or non-authorised use of the delivery item by the customer.

10. Impossibility of performance, default
The customer may withdraw from the agreement should performance by us become impossible before the risk is passed. The customer shall also be entitled to withdraw from the agreement should, in the case of an order for similar goods, execution of part of the delivery become impossible and the customer has a legitimate interest in refusal of a partial delivery. Should this not be the case, the customer may reduce the consideration accordingly.
In the event of a delay of performance by us as defined by item 4, where the customer guarantees us a reasonable extension, the customer shall be entitled to withdraw from the agreement, within the scope of the statutory provisions, should the extension not be complied with. Should there be a delay of acceptance through the fault of the customer, the customer shall remain obliged to render a return service.
Should the customer incur damage caused by a delay for which we are responsible, the customer shall be entitled to claim compensation for default.
This compensation shall amount to, for each full week of the delay and to the exclusion of further claims, 0.5 % and no more than 5 % of the value of the part of the total delivery that cannot be used in good time or as agreed upon due to the delay.
Further claims as a result of late delivery shall be determined exclusively as stipulated in item 10 of the terms and conditions here in.

11. Liability
Should the delivery item not be fit to be used by the customer as stipulated in the contract due to the fault of BeEnergy SG following omitted or defective execution of proposals and discussions prior to and after the conclusion of the contract or as a result of violation of other contractual obligations, in particular the instructions for operation and maintenance of the delivery item, the provisions in items 8 and 10, sections 2 and 3 of the terms and conditions herein shall apply accordingly excluding any other claims.

BeEnergy SG shall be liable for defects other than to the delivery item, for whatever legal reasons, only in case of intent, gross negligence of bodies or executives, culpable violation of life, body, health, defects whose presence was disclosed by BeEnergy SG maliciously or their absence guaranteed by BeEnergy SG, as well as in case of delivery item defects to the extent as liability is provided under the product liability law for personal injury and property damage in relation to privately used items.

In case of culpable violation of essential contractual obligations, BeEnergy SG shall be liable also in case of gross negligence of non-executive personnel and cases of ordinary negligence; in the latter case liability shall be limited to contract-typical, reasonably foreseeable damage.

Any further claims shall be excluded.

12. Time limitation
All claims by customers - for whatever legal reason - shall become statute bared after 24 months from the time of delivery of the contractual object. Statutory time limitations shall be excepted from this.

13. Confidentiality
The customer undertakes to treat all information, know-how and other industrial secrets in connection with the execution of the respective order in strict confidence and not to pass on or make available any information, documents, documentation, drawings, sketches or other papers to third parties without the express permission of BeEnergy SG. BeEnergy SG shall also treat all customer documentation in confidence.

14. Place of jurisdiction
The court of our business headquarters in 35415 Pohlheim shall be the competent court of jurisdiction for all disputes arising from the contractual relationship, if the customer is an accredited merchant, a legal entity of public law or a public special fund, or has ist residence or business headquarters outside the Federal Republic of Germany. BeEnergy SG is also authorised to institute proceedings at the customer's business headquarters.

15. Applicable law
The law of the Federal Republic of Germany shall apply to the contractual relationship between BeEnergy SG and the customer to the exclusion of all bi- and/or multilateral agreements concerning the purchase of movables, in particular to the exclusion of the UN agreement relating to contracts regarding the international purchase of goods of 11.04.1980 (CISG).