GTC

General Terms and Conditions (GTC’s)

SimCog Technologies GmbH

(English translation*)

Date: May 2020

I. Scope of Application

1. These General Terms and Conditions (hereinafter also referred to as „GTC’s“) shall apply to business relations of SimCog GmbH (SimCog) with its Customers. SimCog is a software developing company specialized on individual AI based solutions.

2. The content of the contract shall always be based on the offer documents prepared by SimCog and accepted by the Customer. In case of contradictions between the offer documents and the GTC’s, the offer shall take precedence.

3. Our GTC’s shall also apply if counter-confirmations of the contractual partner are made with reference to his own general terms and conditions. Such counter-confirmations are hereby expressly contradicted. The Customer’s general terms and conditions shall only become part of the contract instead of these or in addition to these GTC’s if the parties expressly agree to this in writing during the conclusion of the contract.

4. Deviations from these GTC’s, supplementary agreements and subsidiary agreements shall only be effective if they have been agreed in writing or confirmed by us in writing. The text form shall be excluded in these cases.

5. SimCog shall be bound by a binding offer for four (4) weeks from the date of submission of the offer, unless another period is specified in the offer documents.

6. Amendments to the GTC’s will be communicated to the customer by email or postal mail at least four (4) weeks before they come into effect. Should such changes not be objected to within one (1) month after delivery, they shall be deemed accepted

II. Scope of Services

1. SimCog provides its services in accordance with the contractually agreed service description and in accordance with the recognized state of the art

2.The provision of source code shall only be owed by SimCog to the extent expressly agreed in the contract documents.

3. For the provision of services, SimCog uses carefully selected own employees or third parties as subcontractors with the required qualifications.

4. SimCog organizes the agreed services itself and on its own responsibility. SimCog independently determines the type, location, sequence and time division of the work, in particular also the number of employees to be deployed

III. Third Party Providers

1. If the fulfilment of the contract requires access to third party services SimCog shall inform the customer of this fact.

2. Third Party Providers within the meaning of these GTC’s are, in particular, the purchase of data, hardware and software, the assignment of service and work contracts.

IV. Obligations of the Customer

1. The Customer acknowledges his obligation to cooperate as a prerequisite for the provision of services by SimCog and thus as his contractual obligation to cooperate. In particular, the Customer shall immediately make any decisions incumbent upon him regarding project implementation and project content and inform SimCog thereof as well as examine any suggestions for changes made by SimCog without undue delay.

2. The Customer shall designate at least one sufficiently qualified technical contact person as „Single Point of Contact“ (SPOC) for the technical communication with SimCog. Within the framework of projects, the Customer will appoint a project manager for this purpose. This project manager will be available for regular coordination meetings and project planning by telephone or e-mail. In case of absence of the SPOC, the Customer will appoint a deputy to SimCog. The project manager or his deputy must be able to provide professional feedback on SimCog’s requirements and answer SimCog’s questions at short notice (within five working days at the latest).

3. The Customer shall take all necessary measures to prevent and minimize damage caused by SimCog within the framework of the provision of services. Before the provision of services, the Customer shall protect all data used by him against loss in the form of backup copies under his own responsibility. SimCog does not warrant that existing computer configurations will remain in the form previously set up by the Customer.

4. The Customer shall provide the infrastructure of the target solution required for the project (hardware and software including necessary licenses, authorizations,

5. If SimCog operates at the Customer’s site, the Customer shall provide the employees of SimCog with suitable project rooms, project infrastructure and workstations, including any necessary system and remote access, free of charge and shall inform the deployed employees in an appropriate manner about the safety instructions applicable at the respective site.

V. Prices and Terms of Payment / Default of Payment

1. All prices are quoted net. They do not contain statutory value added tax. Unless otherwise agreed, fixed prices shall be invoiced as follows:

a) 1/2 directly after placing the order,

b) 1/2 on acceptance, but no later than two weeks after delivery respectively termination of service

2. If the compensation is based on FTE-days, one such „day“ corresponds to eight (8) hours per calendar day of an employee. Over-  and underruns are charged pro rata.

3. Costs for the purchase of data, hardware components or external services shall be charged directly to the Customer days and shall be compensated in due time.

4. Travel costs, expenses and other ancillary costs as well as expenses incurred by SimCog for the performance of the services owed under the contract shall be invoiced additionally and on a time and material basis.

5. Invoices are due for payment 14 days after receipt; cash discounts are excluded. In case of any doubt, invoices shall be deemed to have been received three working days after the invoice date.

6. If SimCog incurs additional expenses due to gaps or ambiguities in the documents provided by the Customer, SimCog is entitled to invoice these additional expenses at the agreed rates. This also applies to additional expenses which are attributable to contradictory or incorrect information on the part of the Customer.

7. The rectification of faults caused by improper intervention shall not be included in any fixed prices and shall be invoiced on a time and material basis.

8. A delay in payment shall occur when the payment periods are exceeded.

9.  If a Customer falls into default with a payment, SimCog can refuse the further execution of the order after prior notice. Costs incurred up to that point will be invoiced. SimCog shall be entitled to charge interest on arrears at a rate of 9% above the base interest rate of the German Central Bank from the date on which default occurs. The assertion of further claims shall remain unaffected by this.

VI. Rights of Use

1. SimCog grants the Customer a temporally and geographically unlimited, simple, non-transferable right of use for his internal business purposes for the trades and service results created for him (hereinafter jointly referred to as „Work Results“). SimCog grants this right to the Customer subject to full payment and, in the case of trades, acceptance. A transferability of the right of use to affiliated companies of the Customer (§§ 15 et.seq. German Stock Corporation Act – Aktiengesetz – AktG) is expressly excluded.

2. Until full payment and, in the case of trades, until acceptance of the Work Results, the Customer has the right to test the Work Results as agreed. This right expires if the Customer is more than 30 days in arrears with the payment of the remuneration. A separate reminder by SimCog is not necessary for this.

3. Clause VI.1. does not apply to standard products that are part of the Work Results. Standard products are products or solutions of SimCog or third parties, which are subject to their own license conditions. The Customer’s rights to these standard products are determined exclusively by their license terms.

4. To the extent that SimCog-software products pursuant to Clause VI.1 for which no separate license conditions exist, the following provisions shall apply:

4.1 The Customer is entitled to the non-exclusive right to use the SimCog-Software, limited in time to the term of the contract.

4.2 The Customer may not rent, lease, loan, sell, sublicense, assign or transfer the SimCog Software itself or the rights related to the SimCog Software to third parties for use, nor may the Customer copy the SimCog Software or authorize the copying of the SimCog Software in whole or in part, except in the cases expressly permitted herein.

4.3 The Customer may not edit, decompile or disassemble the SimCog Software, remove program parts, perform reverse engineering or otherwise attempt to derive the source code, except to the extent that the Customer may perform any editing, reverse engineering or decompilation under mandatory law.

4.4 If the SimCog Software is left to the Customer for testing purposes, his rights of use shall be limited to such actions that serve to determine the condition of the SimCog Software and its suitability for operation by the Customer. In particular, productive operation of the software or preparation for productive operation is not permitted.

4.5 The Customer shall not make the SimCog Software accessible to third parties without the prior written consent of SimCog. There is no entitlement to the granting of consent to third parties to make the SimCog software accessible. The Customer shall not remove alphanumeric identifiers, trademarks and copyright notices.

4.6 Any supplementary program code (e.g. patch, update) which is made available to the Customer for the purpose of troubleshooting or within the scope of maintenance or other contractual services shall be regarded as a component of the SimCog Software provided in each case and shall be subject to the conditions of these GTC’s, unless otherwise agreed.

4.7 In all cases in which the Customer’s rights of use end, existing copies of the SimCog Software must either be destroyed by the Customer on proof or returned to SimCog. In the event of a permitted transfer of the software to affiliated companies or third parties, the Customer shall assure SimCog in writing that all parties involved will comply with these obligations. Legal retention obligations remain unaffected by this.

5. Notwithstanding Clause VI.1., the Customer shall receive rights of use for work results that contain „Open Source Software“ or adaptations of this software in accordance with the relevant license terms for this software. Both parties agree to comply with these license terms.

6. The granting of rights according to Clause VI.1. does not apply to materials or solutions pre-existing with SimCog (hereinafter referred to as „SimCog IP“), including the changes and additions made to them. SimCog retains all rights to SimCog IP at all times. The rights of use granted to the Customer for the SimCog IP included in the Work Results are determined by the contractual purpose on which both parties are based. The isolated use of SimCog IP shall be excluded.

7. SimCog shall in any case and without restriction be entitled to use the Work Results, including the know-how acquired during the execution of the project, in particular the concepts, procedures, methods and intermediate results on which the Work Results are based, without restriction and in compliance with its obligation to maintain secrecy.

8. To the extent that SimCog produces Work Results which are patentable or utility model-capable within the scope of the performance of SimCog, SimCog may file a corresponding application for intellectual property rights in its own name and for its own account. SimCog shall grant the Customer the right to use the intellectual property right together with the Work Results to the extent necessary. A separate fee for this license is not payable.

9. The Customer grants SimCog the simple right to use his existing intellectual property free of charge, insofar as SimCog considers this to be necessary for its own performance.

VII. Confidentiality and Data Protection

1. The data provided to SimCog by the customer are generally used for the specific customer project only. Without the express consent of the customer, the use for benchmark purposes takes place only in aggregate form.

2. The parties shall keep secret all confidential information of the other party that comes to their knowledge within the scope of the cooperation, i.e. protect it with due care against unauthorized access. The parties undertake to include only those employees or third parties in the cooperation who have previously committed themselves to confidentiality in a comparable form.

3. All information of a party – irrespective of its form – which is marked as confidential in writing or the confidentiality of which clearly results from its nature, in particular trade and business secrets, is confidential. This also includes SimCog IP and proprietary source codes that the Customer receives from SimCog.

4. Non-confidential information is information which the receiving party can prove to be either (i) publicly accessible or has been, (ii) already in the possession of the party without obligation of confidentiality, (iii) independently developed without use of confidential information by another Party, or (iv) lawfully acquired the Information from a third party who was not obligated to confidentiality.

5. If, within the framework of the contractual relationship, data is copied and archived as a backup copy at SimCog and possibly stored beyond the end of the contract, SimCog shall keep unpublished data confidential and inaccessible to third parties.

6. The dispatch of data, documents and templates of any kind whatsoever in digital or printed form or on storage media shall be at the risk of the Customer. The Customer shall prevent any loss of data by making backup copies beforehand.

7. If work is carried out on IT systems (both hardware and software) and/or on peripheral devices of the Customer within the scope of an order, the Customer shall back up the data before rendering the service. SimCog shall not assume any liability in this respect.

8. SimCog is entitled to keep a copy of the Work Results and project documents for purely internal purposes, even if they contain confidential information. However, this entitlement does not imply any obligation, i.e. SimCog cannot reserve any storage capacity beyond the period of project processing. The Customer is solely responsible for keeping his project information and results.

9. The confidentiality obligations shall continue to apply for five (5) years after the end of the respective contract.

10. The parties shall comply with the applicable regulations on the protection of personal data. If SimCog processes personal data of the Customer as an order processor (e.g. within the scope of support or development with access to real data of the Customer), the parties enter into a Data Processing Agreement in accordance with customary market standards. In the case of external services, SimCog will make appropriate agreements with third parties if necessary.

VIII.  Term and Termination

1. Unless otherwise stated in the offer, the commencement of the contract shall be the day of acceptance of the offer by the Customer or, if SimCog has previously commenced performance, the day of commencement of performance.

2. Contracts may be terminated by either party at any time by giving four (4) weeks‘ notice to the end of the month, unless otherwise stipulated in the contract documents. Services rendered to date are compensated on a pro rata basis. In the event that SimCog incurs costs (e.g. costs for the demobilization and rescheduling of resources) due to a premature cancellation by the Customer, the Customer shall indemnify SimCog for these costs. § 648 German Civil Code (Bürgerliches Gesetzbuch – BGB) shall not be applicable.

3. The mutual right to terminate the contract in writing for good cause remains reserved. If the cause for termination consists in a breach of an obligation under this contract, the terminating party shall set a reasonable deadline for remedying the reason for termination prior to termination by the other party. All circumstances which make further cooperation with the other party unreasonable shall be deemed to be good cause for termination, in particular also default in payment with substantial amounts or repeated or persistent serious defects in the provision of services or cooperation.

4. All notices of termination under this contract must be given in writing; text form shall not be permitted. The letter of termination may be sent by fax or (as a scan) by e-mail.

IX. Acceptance

1. Work performed by SimCog of a tangible and intangible nature (hereinafter referred to as „Works“ – Gewerke) shall be subject to acceptance. Service results are not subject to acceptance

2. SimCog shall make the Works available to the Customer for acceptance after completion. Unless otherwise agreed, the Customer shall declare acceptance of the Works within two (2) weeks after provision if the trades created do not have any defects preventing acceptance within the meaning of the following provisions.

3. In the case of Works involving software, the parties may agree on the course and scope of the acceptance test at the beginning of the performance of the contract. For the performance of the acceptance test, the Customer shall provide test data and the test results expected by him in good time before the provision of the Works in the form specified by SimCog in the offer documents. SimCog shall be entitled to participate in the acceptance test and to inspect the test results.

4. Defects preventing acceptance are defects of Classes 1 and 2 as defined below:

a) “Class 1” defects are deviations that result in the Works or a central part of it being unusable for the Customer (example: frequent unavoidable system crashes).

b) “Class 2” defects are deviations which result in considerable restrictions of use in the case of important core functions of the Works and which cannot be circumvented for an appropriate period of time reasonable for the Customer (example: Incorrect application results in terms of content; error when saving data records).

c) “Class 3” defects shall mean all other deviations.

5. The parties shall assign the deviations found during the acceptance test to the defect classes by mutual agreement. The result of the acceptance test including the defects that have occurred and their classification shall be fully documented by the Customer in an acceptance protocol within the acceptance period. If the Customer has refused acceptance rightly, SimCog will remedy the documented defects preventing acceptance. Then the necessary parts of the acceptance test shall be repeated.

6. Works shall be deemed accepted as soon as they are used productively by the Customer or if the Customer has not handed over a list of defects within 14 days of handing over the Works in which at least one defect preventing acceptance is listed.

X. Warranty

1. SimCog warrants the contractual and careful execution of the contractually agreed services in accordance with the standards customary in the industry, taking into account its special knowledge and experience. The application of the other provisions of this Clause X. for services shall be excluded.

2. Works which do not meet the agreed requirements or the quality customary in the industry shall be objected to in writing by the Customer after acceptance in accordance with Clause IX; the text form shall be excluded. The communication may be sent by fax or as a scan by e-mail.

3. Claims for material defects of the Customer shall become statute-barred within 24 months after acceptance, unless SimCog has fraudulently concealed the material defect; the statutory limitation period for claims for damages of the Customer due to material defects shall remain unaffected. Legal obligations of the Customer to give notice of defects remain unaffected. SimCog can determine the type of supplementary performance according to its own choice.

4. The Customer shall support SimCog in the analysis and remedy of the defects to the extent necessary free of charge. This includes in particular the free provision of documents and information to SimCog to a reasonable extent.

5. SimCog shall not be responsible for material defects based on faulty or incomplete performance descriptions and requirements specified by the Customer or approved by the Customer (e.g. in the form of specifications), concepts, considerable operating errors, improper or deliberate influence on hardware, computer or network configuration or other defective services of the Customer or third parties used by him. SimCog shall also not be responsible for material defects insofar as trades were changed after their acceptance, unless the Customer can prove that the defect is not a consequence of the change.

6. To the extent that malfunctions and damages are the responsibility of the Customer, the Customer shall reimburse SimCog for all expenses incurred in connection with the investigation of the cause of the malfunction and the rectification of the malfunction or damage.

7. SimCog warrants that no rights of third parties will be infringed by the Work Results provided when used by the Customer in accordance with the contract. This warranty assumes that the Customer immediately informs SimCog in writing of the rights of third parties asserted against him and leaves legal defense and settlement negotiations to SimCog. The Customer shall support SimCog free of charge to a reasonable extent, in particular providing the necessary information. The Customer’s statutory obligations to give notice of defects shall remain unaffected. Rights in this sense are only those to which the third party is entitled in the Federal Republic of Germany and possibly in other countries in which the Customer uses the Work Results as intended. Clauses X.3. and X.5. shall apply mutatis mutandis to defects of title.

XI. Liability

1. SimCog shall be liable without limitation for damages caused by gross negligence or intent by SimCog, its legal representatives or vicarious agents. SimCog shall also be liable without limitation for damages resulting from culpable injury to life, limb or health.

2. In cases of simple negligence, SimCog shall only be liable in cases of breach of essential contractual obligations, the breach of which endangers the purpose of the contract and on the fulfilment of which the Customer could rely to a special extent (so-called cardinal obligations – Kardinalpflichten). This liability shall be limited to compensation for damages that were typically foreseeable when the contract was concluded. In any case, the liability for all cases of slight negligence is limited to the respective project volume.

3. The aforementioned limitations of liability shall also apply in favor of the legal representatives and employees of SimCog and shall also apply in the event of pre-contractual or tortious liability.

4. SimCog is not liable for force majeure. This includes in particular official orders, failures and malfunctions of communication networks, traffic and operational disruptions, strikes and lockouts.

XII. Agreement on Employment Agency Services

1. If an employee of SimCog changes from SimCog to the Customer during the term of a contractual relationship or within a period of twelve (12) months after its termination, this shall be an employment relationship mediated by the activity of SimCog for which the Customer is obliged to pay a commission. The acceptance of SimCog’s agency activity is irrefutably presumed if the Customer has directly or indirectly approached the employee concerned. The commission consists of a fixed component of EUR 50.000 (net) plus a variable component of one half gross yearly salary of the employee.

2. An agency commission according to Clause XII.1. shall also be owed if the Customer commissions a former employee of SimCog during the term of a contractual relationship or within a period of twelve (12) months after its termination directly or via third parties. In this case, the commission is charged at a flat rate of EUR 50.000 (net).

XIII General Provisions

1. The parties may publicly use each other’s companies and trademarks as a reference.

2. If the written form is required according to these General Terms and Conditions, the text form shall be sufficient for compliance with the written form, unless this is  regulated in deviating individual cases.

3.  German law shall apply. The place of jurisdiction for all possible legal disputes shall be Hamburg.

4. Deviations from these General Terms and Conditions can only be agreed in writing; the text form is not permitted.

*This translation of the GTC’s is provided for the Customer’s convenience only. The German language version, not the translation, of these GTC’s shall be legally binding on the Parties. The German language version of these GTC’s and not ist translation(s) will govern in the event of a conflict between the German language version and a translation.