General Business Terms
and Conditions Axess Americas (GTC)
1.
General Terms
1.a. These General Business Terms and Conditions (“GTC”) of Axess
Americas, Inc. (“Axess”) govern all contractual relationships entered into
between the customer (“Customer”) and Axess, and shall govern all additional and future deliveries of any goods or services, including without
limitation work performed under any contract entered into with Axess (“Axess
Products”) of any kind whatsoever to Customer. Any terms and conditions
that differ from the GTC must be agreed to in writing by both an authorized
representative of Axess and Customer in order to preempt a particular GTC.
Otherwise, these GTC shall control, even if reference to a differing term or
condition is made in the proposal to the Customer. Email is an acceptableform of writing as referenced in these GTC. SMS, text message and electronicchats are not acceptable forms of writing hereunder.
1.b. All agreements that contain differing terms than those set forth hereinor supplemental agreements between Customer and Axess, shall be in writing
and signed by both Customer and an authorized representative of Axess.
Axess employees do not have authority to amend or restate these GTC, andCustomer shall not rely on any changes to the GTC, except as agreed to inwriting by Axess.
1.c. Axess, in its sole and absolute discretion, reserves the right to amend
and/or revise the GTC. Changes will be communicated to Customer in writing
so that the Customer can, if applicable, file an objection to said changes. If the
Customer does not file a written objection within thirty (30) calendar days of
Axess’s notification of amendment or revision, such amendment or revision
shall be deemed approved by the Customer. Axess will use its best efforts toaddress objections from Customers with respect to any amendments and/or
revisions to the GTC, but it shall be within Axess’s sole and absolute discretionas to whether to institute such amendment or revision to these GTC.
2.
Proposals and Acceptance of Proposals
Proposals (“Proposals”) are prepared by an Axess specialist and shall betailored, to the best of Axess’s ability, to meet the Customer’s requirements
as discussed in prior meetings and conversations between Customer andAxess representatives, or in response to a formal tender from Customer, as
the case may be, and are exclusively to be understood as a request of Axessfor the order by the Customer. All Proposals are nonbinding and remain valid
for thirty (30) calendar days from presentation to Customer. The Proposal will
be deemed accepted upon Customer and an authorized Axess representative
signing the Proposal, at which time the Proposal becomes an order (“Order”).
Any details contained in brochures or similar documents, such as diagrams,
drawings, descriptions, measurements, weight, performance, and consumption
data, are approximations and reference values only and are not binding,unless an authorized Axess representative has specifically described andassured that a particular detail is binding. Axess reserves the right to maketechnical and design changes to Axess Products at any time. Customer Orders
shall require a written order confirmation signed by Axess by means of post,
fax, or email prior to processing of the same.
3.
Delivery Deadlines and Dates
3.a. Delivery dates and deadlines set forth in accepted Orders are estimates
only and are nonbinding on Axess. Axess will use its best efforts to deliveron the dates set forth in any Order. Once the Customer prepares the location
for installation of any Axess Products (see 4(c) below) and Order is defined indetail, the deadline for Axess to deliver shall commence. If subsequent changes
or additions to the Order are made, delivery deadlines will be adjusted accordingly. If Customer requests additional delivery locations and addresses,
such additional locations/addresses shall be agreed to in writing, signed byboth Customer and an authorized Axess representative. If a delivery on a
specific date is requested this needs to be explicitly agreed to in writing
signed by both Customer and an authorized Axess representative.
3.b. Axess’s adherence to the proposed delivery and installation dates areconditioned upon timely receipt of agreed upon installment payments from
Customer, Customer’s preparation of the location as required by 4(c) below,
the completion of the individual steps over the course of the project
according to the time schedule stipulated by Axess and the execution ofagreed partial acceptances (location acceptance, software acceptance, if
applicable work acceptance, initial training), if any.
3.c. Except in the case of flat rate price agreements, Axess charges for actual deliveries and services provided, and such charges are invoiced at Axess’s
hourly rates. All services will be provided during customary business hours forthe industry; if services are required outside of such customary business hours,
additional costs may be incurred by Customer and invoiced by Axess. Axess
reserves the right to use third parties to provide certain services.
3.d. Customer may change an Order and such changes will only be binding if
such change is agreed to in writing signed by both Customer and an authorized
Axess representative. The existing contract shall apply accordingly to theextended scope. Any change to systems and system requirements will bebilled on a pro-rata basis. The written order confirmation (or supplementation)
shall be binding for the scope of the delivery and service.
3.e. If costs of materials of a single item increase more than five percent (5%)
during the term of an Order (from the time the Order is accepted to the timeof actual delivery to Customer), Axess shall adjust the cost and bill for the fullamount of the cost increase so long as Axess does not cause such increase.
3.f. Axess shall have the sole and exclusive right to make changes to all
Axess Products in order to comply with changes in material and design due totechnical progress.

3.g. Based on the site inspection, any fifteen percent (15%) increase or
decrease in quantity of Axess Products needed shall be permitted and added
to the final invoice to the Customer.
3.h. If any Order is financed through a lease, the lessor of that lease shallbe named on and bound by the Order; however, the Customer remains
primarily liable for the Order and payment for the same. Axess maintains theright to assert all claims it may have for breach directly against the Customer.
If permits are required in order to execute the Order, Customer grants Axessa power of attorney to obtain such necessary permits on its behalf. Customer
must inform Axess about possible conditions that could impair the executionof the Order as soon as such conditions are known to Customer. If suchinformation is not provided to Axess in a timely manner, Axess shall havethe right to invoice Customer for any incurred additional expense due to theimpairment.
3.i.
Customer may cancel its Order if Axess is in default of these GTC, but
only after providing Axess with a registered letter, notifying Axess of suchdefault and only after allowing Axess sixty (60) calendar days to remedy suchdefault. Claims for damages owing to occurred default are excluded except in
the event of gross fault.
3.j.
Customer may cancel the order as set forth in 3(i), or make a claim fordamages as set forth in 10 below, only if Axess is responsible for any delay in
the Order. Axess is not liable if a delay in the Order is caused by the Customer
for lack of payment of any installment due as set forth in 3(b), any lack of
preparation of the location as set forth in 4(c), or any force majeure event,including but not limited to, strike, lock-out, mobilization, war, civilcommotion, or natural disaster.
3.k. If providing any Axess Products (whether goods or service) is renderedpartially or fully impossible and such impossibility is not caused by Axess or
Customer, Axess shall invoice Customer for the actual costs incurred to date,
the Axess Products provided to date, and all cash expenses incurred to date.
If the provision of Axess Products is not carried out due to a default of
Customer, Axess shall invoice Customer for total actual costs to date, theAxess Products provided to date, and thirty percent (30%) of the cost set
forth in the Order for the total project but not yet provided.
3.l.
If delivery of Axess Products is not possible due to Customer’s default
in payment or failure to prepare the location, Axess reserves the right toinvoice Customer for storage fees for the Axess Products.
4.
Delivery and Commissioning
4.a. Customer bears the risk of loss: (1) as of the date that any Axess
Product leaves the Axess plant in Innsbruck, Austria; (2) as of the date any
shipment is made within scope of assembly of any Axess Product; and (3) asof the date the transport is prepared, if the transport is prepared by Axess. In
absence of a written agreement to the contrary, the place of performance of
the Order is the plant in Innsbruck, Austria. Partial deliveries of the Order are
permitted. All delivery shall be carried out by a third party, with costs borne
by Customer. The use of subcontractors for delivery is permitted.
4.b. Customer shall be deemed to have accepted the delivered Axess
Products thirty (30) calendar days after installation. The existence of
insignificant defects does not entitle Customer to refuse delivery of theOrder or acceptance of the Axess Products. Customer shall accept the Orderand Axess Products and within three (3) calendar days of receipt of the same,
Customer shall create a list of any defects and provide the same to Axess inwriting. Axess shall have sixty (60) calendar days within which to remedy thelist of defects provided by Customer. The repair of any defects caused by the
Customer shall be invoiced directly to Customer.
4.c. Customer is solely responsible for on-time preparation of the location for
installation of the Axess Products according to Axess specifications, including
without limitation, prepping the foundation by installing provided assembly
aids, establishing power supply according to all governmental standards andspecifications, establishing network connections between locations andindividual devices. The assembly of devices which are necessary for the
preparation of the location, at the envisaged location, is the task of the
Customer.
4.d. Axess shall install the Axess Products by connecting the pre-mounted
assembly units at the locations specified in the Order and the software
installation and program connections as agreed to in the Order. Work forwhich Axess does not have a valid concession are excluded (e.g. electrician
concessions – installations with more than 120 volt) Axess is not liable for any
installation work performed by any third-party.
4.e. If installation is delayed for any reason not caused by Axess (e.g. if
preliminary preparations for which Customer or a third party are responsible
have not been completed), Axess shall be released from its obligation to
install any Axess Products for the duration of the delay, without Customer
being entitled to cancel the Order, or seek damages of any kind against
Axess. Axess shall invoice Customer for any additional expenses incurred
due to such delay.
4.f. If Customer delays in the acceptance of any Axess Products when
they are delivered, Customer shall pay all storage fees incurred by Axess. If
Customer refuses acceptance of any Axess Products when they are delivered,Axess may charge Customer an additional fifteen percent (15%) on the total
Order amount as a penalty for such delay.
4.g. Axess shall use best efforts to deliver all brand name and typedesignations of standard hardware but such information is nonbinding andsubject to change. Axess shall deliver the Axess Products of its choice thatare available at the time of execution of the Order. Axess shall charge for theGeneral Business Terms
and Conditions Axess Americas (GTC)
actual work for installing software programs on computers provided by Axess.
4.h. Axess shall provide “one-off” initial training of Customer’s personnel
regarding operation, troubleshooting and maintenance as agreed to in theOrder. Follow-up, repeat and new employee training will be invoiced to theCustomer separately.
5.
Usage Licenses for Software Programs
5.a. Axess is the owner and/or licensee and distributor of software
programs and associated documents (together, “Software”). Upon Customer’s
full payment of periodic license fees, Axess grants to Customer a simple, nonexclusive and non-transferable license for the internal use of the delivered
Software for the specified purpose and for the duration set forth in the Order.
Axess and its suppliers retain all rights (including copyrights) to the Software.
Payment of the license fees by Customer gives Customer the right to use theSoftware for its agreed upon and intended purpose during the license period.
5.b. Customer shall not change, edit, copy, reproduce in any form, decode,
decompile, or transfer to any other computer, the licensed Software.
5.c. The right to use the Software granted by Axess that is required forthe operation of the hardware (firmware or operating system software), istransferable to third parties only with the prior written consent of an
authorized Axess representative. Software licenses for application softwareare not transferable. Customer shall not grant sub-licenses, shall not forward
software to third
parties, or otherwise use the software other than as licensed to Customer.
5.d. Copies of the Software may only be produced for backup, archiving
purposes, or for error searches. All copies must include the property rightnotice of the original Software and all copies must be destroyed after
fulfillment of their purpose. Customer shall ensure that the programs anddocuments as well as copies of all Software are not accessible by third parties.
5.e. For licensing of third-party programs included in the scope of the Order,
the third-party licensing conditions and restrictions regarding use shall apply.
5.f. For individual Software created for Customer by Axess, the scope ofservice shall be determined by the specifications agreed to in writing, signedby both Customer and an authorized Axess representative. Non-specified
but necessary features may be created by Axess in Axess’s sole and absolute
discretion. Axess shall retain ownership of all source programs and any rights
attached thereto.
6.
Maintenance of Software
Upon conclusion of installation and training on Software, Axess shall provide
support and maintenance of the Software pursuant to an agreement for suchsupport and maintenance entered into by Customer and an authorized
representative of Axess. Axess shall make updates available to Customer
by download, CD, or other means, and Customer shall be responsible for
installation of all updates. If Customer wants Axess to install updates, Axessshall invoice the costs of installation of updates to Customer, separate fromthe agreed upon support and maintenance agreement. Maintenance ofSoftware shall be performed at the flat rate for such services set forth in the
support and maintenance agreement. Axess insures that support services are
performed properly by qualified personnel, with reasonable care andattention. All support and maintenance shall be performed during Axess’s
regular business hours by remote maintenance. Axess can, at its discretion,
perform support and maintenance services, at Customer’s business premises.
6.a. Troubleshooting (“Bug-Fix” Service)
6.a.i. An error or “bug” in the Software exists if the installed Software
produces a reproducible error that deviates from the corresponding service
specifications in the respective valid Software version. Remedies including
installing a “Bug-fix”, a software update, or an appropriate workaround.
6.a.ii. Axess shall use best efforts to resolve recognized bugs for which Axessis responsible within a reasonable time after discovery. Axess is not liable andis not obligated to fix any issues that are impeded by defects caused by andnot remedied by Customer.
6.a.iii. Axess may hire subcontractors to provide support services without
requiring the consent of Customer.
6.b. Helpdesk
6.b.i. Axess shall provide a central e-mail address and telephone number
to Customer for support questions and services during certain time periods as
set forth in the service and maintenance agreement with Customer depending
upon Customer’s operations (i.e., summer season, winter season, event
operation, or whole-year operation).
6.b.ii. Axess shall use its best efforts to respond to Customer inquiries withina reasonable time after receipt. Axess’s business hours are listed at
www.teamaxess.com.
6.b.iii. Support services shall include application advice per telephone ore-mail, and assistance with interference arising from the use of Software andAxess Products. Support services may only be used by trained personnel.
6.b.iv. The support in the execution of tasks for daily operations (e.g. creationof new tariffs, re-configuration of an access control system, etc.) is notincluded in this service and will be charged separately.
6.c. Software Update Service
6.c.i. Within the scope of Axess’ services, new releases for software
programs will be issued. Update Services include the provision of new
releases in the originally agreed scope of functions.
6.c.ii. Axess is not obliged to provide software-upgrades (new versions,releases or inline-releases) unless the delivery of upgrades and the paymentof upgrades fees have been agreed upon in a separate agreement(e.g. contract including software maintenance)
6.d. Server availability
6.d.i. Axess guarantees the availability of a server, its network, and interfaces
used for connection to the Internet at the rate of 99% on an annual average.
Downtime caused by scheduled maintenance work is not included in thisaverage.
6.e. Obligations of Customer to Provide Assistance
6.e.i. For the quick and successful processing of error messages, Customer
will forward such messages to Axess and reference its contract number as well
as a full description of the error.
6.e.ii. Customer shall comply with Axess’s instructions and shall makereasonable effort to enable Axess to perform any service and/or maintenancerequired, which may include supplying Axess with information, support,materials and access to operating means that are necessary to install all
Service Packs and Hotfixes and to procure, install or maintain all operatingmeans, telephone lines, Internet accesses, communication interfaces andhardware necessary for use with Axess Products and Software.
6.e.iii.Customer shall use qualified and trained personnel for use of Axess
Products and Software licensed to Customer.
6.e.iv. Customer shall comply with all provisions under applicable federal,state and local data protection laws. If a claim is asserted against Axess by athird party for Customer’s violation of any federal, state or local data protection
law, Customer shall indemnify Axess and hold Axess harmless therefrom.
6.e.v. Customer shall make available its computer systems, software
programs, protocols, diagnosis documents, data used by Customer, online
connection for remote diagnosis and remote maintenance, free of charge to
Axess, and Customer shall support Axess in this respect.
6.f. Liability
6.f.i. Axess is not liable for interferences to the ability to retrieve data stored
on the agreed upon storage space on the Internet or other access to theserver, which may include interfaces to the Internet, and interference owing to
failure of lines or networks of other operators, the causes of which are not on
the server or Axess network.
6.f.ii. Axess is not liable for interruption to service owning to force majeure.
For other interruption to service, Axess is only responsible to the extent suchinterference substantially exceeds permissible downtimes set forth in 6(d).
6.f.iii. Axess is not liable for interference, interruption to service, anddamages resulting therefrom, that are the result of improper use or misuseof the Software or Axess Products by Customer.
6.f.iv. Axess is not liable for loss or deletion of data stored on the agreed
upon storage space, unless such loss is caused by the willful misconduct orgross negligence of Axess.
6.g. Term and Settlement For Software License Agreement
6.g.i. The initial term of any agreement, which includes software services, forlicense and maintenance, is five (5) years. After five (5) years, the term will be
automatically renewed for one (1) year periods if Customer does not provide
written notice of termination within three (3) months before the expirationof the current term. The maximum term of any license agreement is nine (9)years. Any license agreement beyond nine (9) years shall be renegotiated andset forth in a new written agreement.
6.g.ii. The parties shall have the right to terminate a license agreement whengood cause is shown. “Good cause” shall mean:>	Bankruptcy proceedings are commenced by either Axess or the Customer;>	
Judicial proceedings against the Customer are commenced that would
impede its ability to pay Axess or against Axess that would impede
its ability to provide Axess Products and Software as set forth in theagreement(s) between Customer and Axess;>	A party breaches its contractual obligations and this breach is not
resolved within a reasonable time at the written request of the
non-breaching party or;>	
The agreed payments have not been made within thirty (30) calendar
days after the due date and notice has been provided.
6.g.iii. All service and maintenance will be invoiced by Axess at the
beginning of each accounting year.
6.h. Price Adjustments For Support and Maintenance Service
6.h.i. Axess may adjust agreed upon flat rate fee(s) on an annual basis bycomparing actual expenses to costs that exceed ten percent (10%) of theprices set forth in the support/maintenance agreement.
6.h.ii. On an annual basis, the prices for support services will be subject toany increase or decrease in the Consumer Price Index (CPI) based on theConsumer Index for Urban Wage Earners and Clerical Workers (Base Period
1982-1984 = 100) published by the U.S. Department of Labor for thepreceding year (the “Index”). If the Index no longer exists, then any increaseor decrease shall be carried out according to the index which replaces theIndex and that results in approximately the same financial effect.
6.h.iii.Costs of travel, accommodation and travel time for the person(s) hired
to perform support and maintenance service will be charged to Customer asfollows: Hotel category is 3 star rates; railway class is 2; official mileage
allowance posted by IRS for travel by car; rental of auto is economy car;airline flight is economy; overseas is premium economy.
6.h.iv. Not included in any flat rate fee(s) are services provided due to operating
system changes, hardware changes, and/or changes to non-contractual
reciprocal program-based software programs and interfaces, individual
program adjustments or new programming and program changes owning tochanges to statutory regulations requiring changes to program logic, remedyof errors caused by improper treatment by Customer, failure to Customer toGeneral Business Terms
and Conditions Axess Americas (GTC)
perform stipulated measures such as backups, or by third parties and data
conversion, restoration of data stocks and interface adjustments.
6.h.v. Axess is and shall be released from all support and maintenance obligations if program changes are attempted or performed on the Software and/or Axess Products by Customer’s employees or third parties, without the priorwritten consent of an authorized Axess representative, or if the Software is not
used properly.
7.
Ticket and Accessory Delivery
7.a. All materials produced by Axess for printing, such as typesets, printing
plates, lithographs, photographically produced films and plates, cutting diesand other work aids used in the production process shall remain the soleand exclusive property of Axess, even if Customer has provided partial or full
payment for the same. All work aids provided by another company hired by
Axess shall remain the sole and exclusive owner of such property.
7.b. Axess guarantees that the delivered tickets will function correctly on
its output devices and readers so long as Customer complies with all Axessprovisions concerning storage and recommended useful life of the products.
Tickets and chip cards are subject to the effects of ageing with storage anduse. Axess recommends the careful examination of all tickets prior to
distribution. The following list details the useful life of tickets and cards:
Barcode tickets: 		
3 daysOneway cards: 		
30 days
SmartCard lite: 		
6 months
Reusable SmartCards:
24 months
Deviations in color on tickets and cards may occur due to production andmaterial availability with one, or between various deliveries to Customer.
Proofs and sample tickets are approximations of actual colors of the delivered
tickets. Tickets made of plastic are mostly break- and tear-proof within an
ambient temperature range of -20°C to +50°C. Instructions regarding storage
deadlines and storage conditions are printed on ticket/card packaging.
7.c. Customer will absorb excess or shortfall of up to fifteen percent(15%) of ordered printed products. Axess reserves the right to make partial
deliveries. Axess shall not be held liable for printing and design errors when
Customer has proofed copies described by Customer as “ready to print”.
Set changes ordered by telephone or other non-written communication will
be made by Axess without any liability for accuracy. Contract orders that are
produced as customer-specific production, cannot be changed from the orderconfirmation and must be accepted by Customer in the full quantity ordered.
7.d. The warranty period for tickets is limited by the storage deadline
marked on the packaging. In no event is the warranty period longer thantwo (2) years for any tickets or cards. The sole remedy of Customer within
the warranty period shall be repair or replacement of goods, at Axess’s sole
discretion. Customer shall report all defects in writing to Axess immediately
after such defect occurs, describing the defect, and by enclosing samplesof the defective goods. Replaced and/or returned goods shall become thesole property of Axess. If tickets delivered by Axess are specified for use on
non-Axess systems, and such tickets feature a comparably more than averagefrequency of function errors with the output on output devices, or with theuse of reading devices, and these faults are clearly a result of deficient qualityof the delivered tickets, Axess shall have no liability for such tickets so longas Axess provides proof to Customer within a reasonable time period, thatpossible function errors are not the result of deficient quality of the delivered
tickets.
7.e. Customer shall make written complaints regarding printing errors
or delivered quantities in writing to Axess within eight (8) calendar days ofreceipt of the goods. The goods for which the complaint is made are to be
stored until settlement of the complaint and shall be sent to Axess or adesignated third party in the original packaging upon request, at the cost of
and risk to Customer.
7.f. Axess shall be the sole owner of all copyrights and the right toreproduction of any products. Customer warrants that it is the sole ownerof the reproduction rights to all printing templates, provided by Customer,
or ordered printed images, lettering, fonts, etc. Since Axess is the holder
and owner of all copyrights and rights of use under ancillary copyrights todelivered printed products, or parts thereof, Customer shall only acquire theright, with the acceptance of the delivery, to distribute the delivered products;
incidentally, the rights of use (and in particular, the right of reproduction),shall remain unaffected and solely owned by Axess. Axess holds the exclusive
right to use reproduction means (set, films, etc.) produced by it, and printed
products for the production of reproduction pieces. Axess is not requiredor obligated to examined whether the Customer is entitled to the right toreproduce printing templates provided by Customer, or otherwise to use suchtemplates in the specified manner, but Axess is entitled to assume Customer
is entitled to all of those rights that are necessary for the execution of theorder. Customer shall indemnify Axess and hold Axess harmless against
all claims that are asserted by third parties for infringement of copyrights,
ancillary copyrights, other intellectual property rights, or personal protection
rights. Axess shall report such claims to Customer as soon as possible and will
use best efforts to give third parties notice in case of the assertion of such aclaim in court. If Customer does not join the proceedings as a joint litigant of
Axess following notice to a third party, Axess is entitled to defend against any
claim and to hold itself harmless therefrom notwithstanding the legality of theclaim asserted.
7.g. Axess is entitled to print its corporate name and/or its trademark
designation on all printed products without Customer’s approval.

8.
Data Protection
8.a. The Customer and Axess agree to comply with all provisions underapplicable federal, state and local data protection laws.
8.b. Axess processes personal data on behalf of the Customer based on thecontract needs of the individual Customer, and whereby the subject matter,scope, type, categories of the processed data, purpose of the processing andcategories of persons concerned (customer data) result from the respective
contract entered into between the contracting parties.
8.c. Axess has implemented technical and organizational measures toensure that the processing of data is carried out in line with the requirementsof local, state and federal law. A claim of whatever kind can only be brought if
a breach has occurred.
8.d. Changes to Axess’s technical and organizational measures that guarantee consistent standards of protection for the processed personal data or that
improve this standard, shall be deemed to be approved and will be provided
to Customer upon written request for the same.
8.e. Axess undertakes to only process personal data within the scope ofexisting contracts and according to individual instructions from the Customer.
If it is obligated to disclose such data to third parties by local, state or federallaw, Axess shall inform Customer of these legal requirements beforehand if
the relevant law does not forbid such notification. Processing of data for
Axess’s own purposes requires the written consent of the Customer.
8.f. Axess may use sub-processors in the processing of personal data. If
Axess changes or intends to change sub-processors, Customer shall be
notified in advance in writing so that it can file an objection. If notification ofsuch change is not possible (such as in the case of imminent danger) Axess may
enter into a written contract with the subcontractor so long as the subcontractor
agrees to be bound by all relevant local, state and federal data protection laws.
8.g. Before any personal data is shared and before working with such data,
Axess shall ensure that all Axess personnel who deal with data processing havesigned a confidentiality agreement that addresses processing of personal
data. The confidentiality agreement shall extend beyond termination of such
Axess personnel. Information shall not be shared unless required by local,
state or federal law.
8.h. Axess shall take all technical and organizational measures to aid
Customer in satisfying the rights of data subjects according to local, state andfederal law with respect to data protection.
8.i.
Axess shall aid Customer by providing data that complies with all local,
state and federal law concerning data protection.
8.j.
Axess shall make all necessary information (i.e., existing certifications,
technical and organizational measures, etc.) available to Customer upon
written request.
8.k. Axess shall inform Customer if there is a breach of personal data or if
Axess is of the opinion that an instruction of the Customer violates the dataprotection provisions of applicable local, state and/or federal law.
8.l.
Upon termination of the agreement between Customer and Axess,
Axess shall use best efforts to return all persona data to Customer in a form
that is customary for data processing, or to delete this data, if there is no
obligation to store the personal data according to local, state or federal law.
9.
Warranty
9.a. Axess provides a warranty for defects in its products that exist uponhand-over to Customer. Customer must prove the existence of any defect at
the time of hand-over.
9.b. The warranty commences upon delivery of the products, or, if
commissioning is part of the contract, with the declaration of operational
readiness by Axess.
9.c. For defects in immovable objects, the warranty period is one (1) year.
9.d. The warranty period is six (6) months for defects in movable objects.
Axess shall honor warranties by subsequent improvement or replacement of
the goods. Onsite repairs are not included in the scope of warranty, unlesssuch service is expressly included in the contract with Customer. For replacedparts, the aforementioned warranty applies.
9.e. In its absolute sole discretion, Axess shall remedy defects that a
Customer properly notifies Axess of and within the warranty period, by
substitute delivery (exchange of goods) or improvement (subsequent
improvement and/or replacement of the missing part). A customer claim forrefund or price reduction shall only exist if, after Axess’s review of the defect,
improvement or substitute delivery cannot be performed, are impossible, will
be associated with a disproportionately high amount of work for Axess, or the
improvement or substitute delivery have failed, whereby a claim for refund
further presumes that the defect/failure is not a slight defect. In the case ofslight defects, Axess will decide whether the resolution will be an
improvement or price reduction.
9.f.
Defects to hardware: Unless otherwise agreed to in writing in the contract,
Customer bears the costs and risk for the transport of hardware to Axess forwarranty inspection as well as the such costs and risk for the transport whenreturning hardware to the Customer.
9.g. Defects to software programs: As soon as possible (which may dependon the release of improved software versions), Axess will fix defects toprograms within the agreed upon warranty period that existed at hand-overto Customer. Defects in customer-specific program developments will be
fixed within the scope of that program’s warranty and warranty period.
9.h. Customer acknowledges, agrees, and understands that according to
the current technical development status, errors cannot be fully excluded insoftware production. Such errors shall not be deemed “defects”. In the case

General Business Terms
and Conditions Axess Americas (GTC)of defects that substantially impair the use of software programs, theprovisions set forth in 9(g) shall apply, with the condition that the installationof an improved software version or instruction for the remedy or bypass ofthe cause of the defect are also to be seen as a sufficient subsequent
improvement, so long as customary use is made possible by such
improvement. EXCEPT AS SPECIFICALLY PROVIDED IN THESE GTC, NO
WARRANTIES, OTHER THAN THE STATED PRODUCT WARRANTIES, ARE
EXPRESSED OR IMPLIED WITH RESPECT TO THE PRODUCTS, INCLUDINGANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
9.i.
Limitation on warranty: The devices and their associated software may
only be operated by Customer according to the instructions for use, operating
instructions and license provisions set forth by Axess. In case of improper use,
improper storage, care, maintenance, or repair by anyone other than authorized
contractual dealers of Axess, any warranty claim shall be void and Axess shallhave no liability for resulting damages. Axess does not and shall not assume
any warranty for defects and interferences owing to improper use or use ofnon-certified materials by Customer or third parties, deficient or faulty
operation or maintenance, or natural wear and tear.
9.j.
Slight deviations, in particular with regard to the surface condition,
shades, construction, or software, shall not be deemed a defect within thescope of customary trade practices, and do not entitle Customer to assert
warranty claims for the same.
9.k. Interferences and defects caused by deficient and/or unstable preliminary
services, in particular, energy supplies, networks, etc., are excluded fromwarranty claims and/or claims for damages. The warranty shall lapse in thecase of non-authorized changes to the services set forth in the contract with
Customer.
9.l.
Services such as the operation of servers, computer performance, andweb services will be performed with customary care and attention, reliability
and availability. Axess shall not and does not warrant the services areaccessible without interruption, that the requested connections can always
be established, or that stored data shall be retained under all conditions.
Customer shall not be entitled to any claims whatsoever as a result of
downtime or impairments over the course of interferences, maintenance,
installation work or online problems.
9.m. Deadlines to report a complaint: Customer must inspect the goods
upon receipt and report obvious defects including damage during transport,
incompleteness, deviations from the order, and deliveries in error, by stating
the exact nature of the complaint in writing to Axess within three (3) calendar
days from receipt of the goods. If Customer does not satisfy this obligation
to inspect and report within this deadline, Customer forfeits the warranty
on the goods and the right to damages. In the case of obvious defects, thisdeadline will begin on the day of commissioning, and with hidden defects, on
the day on which the defect is discovered or remained undiscovered owing to
negligence. Hidden defects are to be reported within the same deadline fromtheir occurrence (three (3) calendar days), in a complete and written mannerby stating the exact defect, or warranty claims of Customer shall lapse.
10. Damages
10.a. Customer waives any and all claims for damages of any kind whatsoever
against Axess and/or its employees as a result of negligence, as such waiver
may be permitted by law. This liability exclusion applies to damages due toa defect and also to all damages caused by faulty condition(s). Additionally,
Axess shall not be liable to Customer for consequential damages and indirect
damages such as lost or missed profit, business interruptions, lost orders,interest loss, damages payments, etc. Claims for damages as a result of willful
misconduct or gross negligence are not excluded.
10.b. If damages were not caused by the willful misconduct or grossnegligence of Axess, Customer’s claims for damages are limited to fifty
percent (50%) of the net order value, with a maximum recovery of
US$100,000. If Axess does not provide deliveries or services in time and such
fault causes device configurations to not operate the equipment, Customer
may seek damages up to the amount of one half percent (0.5%) of the valueof outstanding goods for each week of delay, with a total maximum recovery
of five percent (5%) of the total order purchase price. Customer waives all
claims against Axess beyond those set forth in this Section 10.
10.c. If the Order or other contract calls for customer-specific programs
developments, the first eight (8) weeks after commissioning shall be deemeda “trial period”. During the trial period, Customer shall have no right to bringany damage claims against Axess unless Axess caused such damage by willful
misconduct or gross negligence.
11. Payments
11.a. Prices and terms of payment are set forth in Customer’s specific Orderconfirmation and are deemed net, duty unpaid and untaxed ex works. Axessmay request a bank guaranty to secure payments. Unless otherwise agreed toin writing, payments are to be made in United States dollars.
11.b. Unless otherwise agreed upon in writing, the following shall apply
as payment dates: thirty percent (30%) of the Order value due with theplacement of the Order; sixty percent (60%) of the Order value due withreadiness for delivery (prior to shipment); and ten percent (10%) of theOrder value due thirty (30) days after delivery.
11.c. Invoices issued by Axess are due within ten (10) calendar days after the
invoice date without any deduction and free of any service charge. Payment
instructions, checks and bills of exchange will only be accepted if set forth ina written agreement that is agreed to and signed by both parties. Warranty
claims made by Customer, claims for damages or claims for non-fulfillment do
not entitle Customer to retain or to offset payments due under the Order or
per an Axess invoice.
11.d. Default of payment: If Customer does not make an agreed upon
payment within thirty (30) calendar days from the signing of the Order orother agreement, Axess is entitled to cancel the Order or other agreement
immediately. In the case of such cancellation, Customer shall have no claim
for damages. Axess shall be entitled to charge and collect from Customer, ten
percent (10%) of the gross Order amount, in addition to any other claims andrights Axess may have against Customer.
11.e. In the event of default of payment(s), interest shall accrue on allamounts payable and outstanding at the rate of ten percent (10%) per year
as well as dunning fee of USD 15.00 for each reminder. Any claims of thecustomer for retention and offsetting are excluded. Customer shall be solely
liable for all costs incurred by Axess to collect any amounts due under theOrder and/or other agreement(s), including without limitation, out-of-court
and in-court collection of claims and attorney’s fees.
11.f. If Customer is in default with a payment for longer than thirty (30)days, Axess shall not be required to perform or provide any further services,delivery obligations, or warranty obligations for the duration of the delay.
11.g. Payments are deemed to be made if the amount due has been
received into one of the accounts cited on Axess’s invoice forms.
12. Reservation of Title
12.a. Axess retains ownership rights in the form of a secured interest in
the goods and software delivered to Customer until Customer has satisfied
all payments and other contractual obligations. In the event payment is notmade as set forth in the Order and/or other written agreement between theparties, Customer grants Axess the right to separate and remove the goods
and software, even if firmly connected to the ground or a building and to takethem into its safekeeping. Axess shall only hand over the goods and software
after the outstanding claims and the cost of disassembly, storage andexpected costs of reassembly are paid to and received by Axess. Axess shallbe entitled to file the necessary secured interests in the state in which thegoods and software are located to protect its security interest therein.
12.b. Customer shall mark all goods and software as the property of Axess
until Customer satisfies all contractual obligations including payments.
12.c. Customer shall defend the good and software against third party
claims and shall inform Axess of such claims immediately.
12.d. In case of Customer’s default in payment, Customer shall immediately
hand over all goods and licensed software products to Axess. A request for
the return of goods and software by Axess shall be deemed a cancellation of
the Order and/or other written agreement(s) if Axess expressly states suchcancellation in writing. Axess may sell the recaptured property (including
goods and software) on the free market and the proceeds of such sale(s)shall offset its claims against Customer. In the event of default of payment by
Customer, Axess may require advance payment or additional security in orderfulfill future deliveries and services.
13. General Provisions
13.a. These GTC and all schedules, annexes and exhibits attached hereto: (a)constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof;(b) are not intended to confer upon any other person, entity, or other third
party any rights or remedies hereunder, unless expressly provided otherwise;and (c) shall not be assigned by operation of law or otherwise except asotherwise specifically provided.
13.b. Any general business terms and conditions set forth by the Customer
are not binding. Axess’s failure to reply to any deviating business terms andconditions shall not be deemed consent to such terms.
13.c. In the event that any provision of these GTC or the application thereof,
becomes or is declared by a court of competent jurisdiction to be illegal, void,or unenforceable, the remainder of these GTC will continue in full force andeffect and the application of such provision to other persons or circumstances
will be interpreted to reasonably give effect to the intent of the of parties
hereto. The parties further agree to replace such void or unenforceable
provision of these GTC with a valid and enforceable provision that willachieve, to the greatest extent possible, the economic, business and otherpurposes of such void or unenforceable provision.
13.d. The Customer will comply with statutory export bans and export
restrictions.
13.e. The parties shall hold all operating secrets disclosed between themconfidential for an unlimited period of time. In the event of a breach of the
Customer or persons to be attributed to it, the customer shall pay liquidated
damages to Axess of twenty percent (20%) of the gross order amount,
without any requirement to apportion fault. This provision shall survive
termination of these GTC.
13.f. Customer and Axess agree, that for a period of one year after terminationof any contract between the parties, they shall not (i) induce or attempt to
induce employee or officer of Axess or the Customer, to leave the employ of,or terminate its affiliation with Axess or the Customer, or in any way interferewith the relationship between Axess or the Customer, or any of theirrespective affiliates and any such person, or (ii) induce or attempt to induce
any customer, supplier, licensee or other business relation of Axess or theGeneral Business Terms
and Conditions Axess Americas (GTC)
Customer, or any of their respective affiliates to cease doing business with
Axess or the Customer, or their respective affiliates or in any way interferewith the relationship between any such customer, supplier, licensee orbusiness relation and Axess or the Customer or any of their respective
affiliates. The party that breaches this nonsolicitation provision shall be liable
to the nonbreaching party in the amount of the annual salary of the employee
who was so induced by the breaching party.
13.g. All of the terms and conditions set forth herein shall be binding uponand shall inure to the benefits of the parties hereto and their respective heirs,
legal representative, successors and assigns.
13.h. Any claim or dispute arising out of or related to this Agreement shall be
subject to mediation as a condition precedent to the institution of legal or equitable proceedings by either party. The parties shall use good faith to resolve theirclaims and disputes through mediation, which, unless the parties mutually agree
otherwise, shall be in accordance with mediation laws and rules established in
the Utah Code and/or by the Utah District Courts currently in effect. The party
with a claim or dispute shall send a request for mediation to the other party. The
parties agree that once a request for mediation has been made in writing andsent to the other party, any legal or equitable proceedings shall be stayed for
sixty (60) days from receipt of such mediation request so that mediation can bescheduled and take place. Each party shall submit the name(s) of at least one (1)mediator who specializes in construction law to the other party. From the list ofnames, the parties shall mutually agree upon a mediator. If the parties cannot
agree upon a mediator, the parties shall agree upon a neutral third party to selecta construction law mediator for the parties. The parties agree to equally share thecost of mediation, including the mediator’s fee, any filing fees, and any facility
costs. The parties shall be responsible for their own attorney’s fees incurred in
preparation for and during mediation. The mediation shall be held in a neutral
location, such as the mediator’s office. Complete and fully signed agreements
reached in mediation shall be enforceable as settlement agreements in any court
having jurisdiction over the claim and/or dispute.

13.i. If litigation is commenced between the parties hereto to enforce orinterpret any terms or provisions of this Agreement, the prevailing party in theaction shall be entitled, in addition to all other relief and sums, to its reasonable costs and expenses incurred in litigation, including costs, expert witness
fees, and reasonable attorney fees, both at trial and on appeal.
13.j. All notices that are required or desired to be given by either party shallbe in writing and shall be personally delivered to the other party, mailed tothe other party by United States certified or registered mail, postage prepaid,or faxed to the other party, addressed as stated in this Agreement, or sent
via electronic communication to the addresses provided by party. Any such
notice not personally served shall be deemed received forty-eight (48) hours
after faxed or deposited in the mail to the address designated above andafter twenty-four (24) hours after sent via electronic communication to the addresses provided by each party. A party may change its address for service ofnotice by providing written notice of the change to the other party.
13.k. These GTC shall be governed by and construed in accordance with thelaws of the State of Utah, regardless of the laws that might otherwise govern
under applicable principles of conflict of laws thereof. The application of
the UN-convention on contracts for the International Sale of Goods (CISG) is
explicitly excluded.
13.l. For purposes of any action or proceeding involving these GTC or anyof the obligations of the parties, the parties hereby irrevocably submit to thejurisdiction of the courts of Summit County, State of Utah, or the United States
District Court for the District of Utah (as the case may be), and agree not toraise and waives any objection to or defense based upon the jurisdiction orvenue of any such court or based upon forum non conveniens. The parties
agree not to bring any action or other proceeding with respect to these GTC
or with respect to any obligations set forth herein in any other court unlesssuch courts of the State of Utah and of the United States determine that they
do not have jurisdiction in the matter.