AWEK

§ 1 Part of contract

1.1
These terms of business shall apply to any and all business transactions between the customer and AWEK C-POS GmbH (hereinafter referred to as AWEK), including any future business. Any deviating terms of business on the part of the customer shall not apply even if reference is being made to such terms of if such terms are completely or partially included in the customer's documents. AWEK shall not be obliged to contradict the customer's terms of business.

1.2
Any quotations made by AWEK shall be without obligation with regard to pricing and delivery time.

1.3
Contracts are subject to written confirmation by AWEK. No other document shall become pat of the contract unless AWEK has expressly agreed to the contents of such documents and reference to such documents has expressly been made in the contract in writing.

§ 2 Delivery

2.1
Delivery and transport shall be for the account and risk of the customer ex AWEK store.

2.2
In case of default in the delivery or the execution of an order AWEK shall be entitled to deliver/perform by instalments. Each part delivery/performance shall be deemed as a self-contained transaction the completion of which does not have any impact on the performance/delivery of the other parts.

2.3
In case of substantial non-compliance with the agreed time limits for the entire delivery/performance due to a fault of AWEK the buyer shall only be entitled to withdraw from the contract if he has previously granted AWEK a reasonable extension of time and declared in writing his refusal to accept delivery/performance after such deadline. The buyer shall only be entitled to claim damage for the default if the delay is due to gross negligence or wilful failure on the part of AWEK. Any further claims due to failure to deliver/perform in good time shall hereby be excluded.

2.4
By request of AWEK the customer shall declare within a reasonable period of time if he withdraws from the contract due to AWEK's default and/or if he claims damage instead of delivery or if he insists on the delivery.

2.5
In case of a default which is due to Act of God AWEK shall be entitled to postpone delivery or performance by the period of such event plus a reasonable lead time of at least one week, or to withdraw from the contract in whole or in part due to failure to fulfil the corresponding part of the contract. Strike, lockout, governmental operations, disaster and any other circumstances which are beyond the range of influence of AWEK or its suppliers or subcontractors shall be regarded in the same way as Act of God.

2.6
Any agreed dates of delivery and fulfilment shall always be considered as an approximation and shall in no case be deemed as fixed dates.

2.7
In case of delayed acceptance the customer shall bear any costs resulting from his failure.

§ 3 Retention of title

3.1
The title to the goods supplied by AWEK shall only be passed to the customer on complete payment of any and all debts arising from all business transactions (settlement of account). If the amount of securities deposited exceeds the total of the customer's debts payable to AWEK by more than 20% AWEK shall release such securities by request of the customer at its own discretion.

3.2
The buyer shall not be authorised to pledge, turn over as security or resell any retained goods before having acquired ownership thereof. In the event that AWEK should agree in writing to an individual resale the buyer shall hereby assign to AWEK the debts resulting from such resale, including all additional rights, the amount of such assignment equalling the value of the retained goods. AWEK hereby accepts the assignment. The customer undertakes to inform AWEK about any case of resale and to submit the corresponding documents by request.

3.3
In individual cases where spare parts supplied by AWEK are combined with third-party goods according to § 947 section 1 BGB (German Civil Code) AWEK shall become a joint owner. If the customer acquires the exclusive ownership (§ 947 section 2 BGB), he shall hereby assign to AWEK the joint ownership in proportion to the value of the retained goods compared with the entire value of the subject matter at the time of joining.

3.4
In case of § 5.4 AWEK shall have the right to claim back the retained goods whereby the customer shall not have a lien on these goods and whereby AWEK shall not withdraw from the contract.

§ 4 Obligation to inspect

The customer shall be obliged to inspect the products delivered immediately on receipt and to file a specified complaint in writing within 10 days from supply of the goods or the date of performance, stating any visible defects, delivery of wrong items or incorrect quantities, absence of guaranteed qualities and defective compliance. On expiration of this time the goods supplied shall be deemed as accepted.

§ 5 Terms of payment

5.1
For products delivered on the basis of an order the purchase price including VAT shall be due within 10 days without deduction.

5.2
For spare parts and accessories as well as for services (repair, programming) the invoiced amount is payable at once without deduction.

5.3
If the customer defaults in payment or if AWEK becomes aware of any circumstances affecting the customer's creditworthiness all debts resulting from the business with AWEK shall becom due with immediate effect. In this case AWEK shall only be obliged to supply further goods if the customer pays in advance or if each delivery is paid immediately on a case-by-case basis. Otherwise AWEK shall have the right - without notice - to claim damage due to non-compliance or to withdraw from the contracts with regard to any deliveries and services which have not yet been effected.

5.4
In case of default of payment interest shall be charged amounting to the actual credit costs incurred, at least at the legal rate of past-due interest.

5.5
Any setoff of claims of AWEK by litigious or pending counterclaims shall hereby be excluded. The same shall apply to the use of the rights to refuse performance and to retain goods.

§ 6 Warranty, rescission

6.1
The quality of the products and/or the extent of performance are described at the end of the contract.

6.2
In case of delivery of defective or wrong goods as well as defective compliance AWEK shall provide a remedy or replacement delivery, at its discretion. If such remedy or replacement delivery fails the buyer shall have the right of abatement (reduction of the purchase price) or rescission (cancellation of the purchase contract). Any exceeding warranty claims shall hereby be excluded, independent of the legal cause, including §§ 823 ff. BGB, unless § 7 of these Terms contains another provision or mandatory legal provisions are conflicting with this.

6.3
Warranty claims are subject to a period of limitation of 12 months from the date of transfer unless AWEK has wilfully hidden the defect and the customer is an entrepreneur.

6.4
Any and all warranty claims shall become forfeited if the customer changes the programs himself, or if he has remedial work, mounting of accessories or replacement of parts done by third parties which have not been authorised by AWEK. The same shall apply to any modifications done by unauthorised persons, even if this happens as part of a criminal act.

6.5
The warranty period shall start at the moment of receipt of the goods at the customer's site.

§ 7 Liability

7.1
AWEK accepts full liability with regard to wilful action or neglect and gross negligence. Liability on the part of AWEK shall be excluded for cases of slight negligence.

7.2
If AWEK is liable to pay damages such amount shall be limited to the speculative damage, not exceeding however the net amount of order of the individual contract or the corresponding part delivery/part performance. In no case shall AWEK be held liable for direct or indirect consequential losses, loss of profit, loss of data or information, or damages due to interruption of business with regard to the customer or to third parties.

7.3
Any claims arising from the product liability law, claims due to deficiency with regard to warranted product qualities or claims in case of wilfully hidden defects as well as claims for damages to life, body or health shall remain unaffected by the above limitations of liability.

7.4
Unless otherwise agreed AWEK shall only connect the devices supplied at cost. The removal/disposal of any old devices shall be the customer's responsibility. If the customer instructs AWEK's employees to assist in the disassembly and disposal of old devices AWEK shall in no case be held liable for any potential damages resulting thereof.

7.5
Any personal liability of legal representatives, agents and employees of AWEK for damages caused by slight negligence shall be excluded.

§ 8 Rescission

Both parties shall have the right to rescind the contract without notice if the other party is in breach of substantial contractual obligations, becomes insolvent or if insolvency proceedings are instituted against the assets of the other party or a petition in bankruptcy is filed.

§ 9 Software, programming

9.1
The user software made available to the customer must not be passed on to third parties. In case of a group/company licence all companies belonging to the customer's corporation in accordance with § 15 AktG (German Companies Act) shall have the right to use the software. If new companies are acquired the right of use and the corresponding remuneration shall be renegotiated.

9.2
Any software which is supplied by AWEK but not produced by AWEK itself shall be subject to the conditions of the respective licence agreement. AWEK shall supply the necessary licences with the products. The customer agrees to accept the provisions of the licence agreement. In the event that the customer should be in breach of these provisions he hereby agrees to hold AWEK harmless of any damage claims or other claims that may be raised by the licenser. AWEK does not accept liability for the remedy of defects or for the maintenance of third-party software.

9.3
In case of customised programming the specification provided by the customer shall be the binding basis for programming.

9.4
If a lump-sum maintenance fee has been agreed upon this shall become due from the start of productive usage.

§ 10 Installation guidelines

10.1
The customer shall respect the installation guidelines stated by AWEK. This obligation shall include the specific requirements of any suppliers of POS products, accessories and any other components which are used.

10.2
Any damage resulting from failure to comply with the installation guidelines and/or manufacturer's requirements shall exclusively be borne by the customer. If the damage has seemingly been caused by an operating error on the part of the customer, he shall have to prove that the damage is not due to an operating error or misuse but to a product defect.

§ 11 Confidentiality

11.1
The parties to this agreement undertake to keep confidential for an indefinite period of time any knowledge of operational and business secrets and of information marked as confidential which they obtain in the course of their business relationship.

11.2
This obligation to keep information confidential shall not apply to any ideas, concepts, know-how and techniques relating to or resulting from the generation of programs nor to any data which was already known to AWEK or which was or may become public domain.

§ 12 Venue, written form, severability

12.1
The venue for any disputes arising from the business relationship between the customer and AWEK shall exclusively be the place of business of AWEK, provided that the customer is a registered trader.

12.2
Any modifications and supplements to this agreement are subject to written form, including the waiver of this written form requirement.

12.3
The contract is subject to German law. For foreign customers the UN purchase laws which have been taken over in German legislation shall be excluded.

12.4
Should any provision of this agreement be invalid or unenforceable, in whole or in part, the validity and enforceability of the other provisions of this agreement shall remain unaffected. The same shall apply in the event that this agreement should be incomplete. The invalid, unenforceable or missing provision shall be regarded as having been replaced or supplemented by the valid and enforceable provision which comes as close as possible to the economic purpose which was intended by the parties when stating the invalid or unenforceable provision.