1.

General

The following General Terms and Conditions of Business (hereinafter referred to as "General Terms and Conditions") shall apply to any and all purchase orders placed with and contracts awarded to Viscovery Software GmbH (hereinafter referred to as "Viscovery"). Any oral agreements or deviating terms and conditions shall be binding only if expressly acknowledged by Viscovery in writing. This shall apply in particular if a customer makes reference to its own purchase conditions or to other sets of rules.

2.

Offers

2.1

The scope of supplies to be provided and services to be rendered by Viscovery shall be defined exclusively by the offers of Viscovery and by written agreements with the customer; oral agreements, as well as written orders or specifications of the customer shall only be binding if confirmed by Viscovery in writing. If the parties have executed written agreements, the relevant documents shall apply in the following order: offer, individual license conditions (license agreement, cf. Section 8.1) and, on a supplemental basis, these General Terms and Conditions.

2.2

Unless otherwise expressly provided therein, all offers of Viscovery are without engagement and shall not be binding.

3.

Delivery

3.1

Viscovery will take efforts to observe agreed delivery dates. Time for delivery or for performance shall be prolonged by adequate periods in case of force majeure or other events for which Viscovery is not responsible. This shall apply in particular in case of disruptions in operations, shortage of materials, strikes, troubles with telecommunications, and comparable circumstances. Unless Viscovery is proven to have defaulted intentionally or through gross negligence, claims for damages or the rescission of the contract on grounds of late delivery is excluded.

3.2

Products (software, data carriers, documents, etc.) supplied to the customer shall remain the property of Viscovery until all liabilities under the contractual relationship have been paid in full, the earlier passing of the risk notwithstanding.

3.3

Products (software, data carriers, documents, etc.) supplied for testing purposes shall remain the property of Viscovery. Viscovery reserves the right to equip software with a function which prevents the programs from being used after expiration of the agreed test period, or to restrict the use of such software by means of passwords. The customer cannot derive any claims therefrom.

3.4

Unless otherwise agreed in writing, all deliveries shall be made at the customer's expense and risk.

4.

Prices

4.1

The applicable prices shall be the prices stipulated in the Viscovery list of prices and products, as amended from time to time. All prices are exclusive of Value-added Tax. Supplies and services for which fixed prices have not been expressly agreed shall be invoiced at list prices.

4.2

Any extra supplies or services ordered or caused by customers, which exceed the supplies/services ordered, shall be invoiced according to the price list.

5.

Time allowed for payment, terms of payment; rescission

5.1

Unless otherwise expressly agreed, payments shall be due promptly upon receipt of the invoice, net of any handling charges for Viscovery. If payment is not made on the due date, default interest in the amount of 4% above the reference rate of the European Central Bank valid at the time shall be charged.

5.2

The customer may not set off any amounts whatsoever due to it from Viscovery against amounts due to Viscovery. In case of justified complaints, the customer may retain not the entire invoiced amount but only an adequate portion thereof. Consumer rights pursuant to sec. 6 para. 1 sub-paragraphs 6 and 8 of the Austrian Consumer Protection Act (“Konsumentenschutzgesetz”) shall not be affected.

5.3

If Viscovery becomes aware of a material deterioration of the customer's financial situation or if the customer defaults for more than 20 working days on any payment due to Viscovery, Viscovery is entitled to demand advance payment or other security for any deliveries yet to be made. If the said demand is not met, Viscovery will have the right to rescind the contract; the right of Viscovery to raise claims for damages on such grounds shall not be affected thereby.

6.

Warranty

6.1

In case of services, including consultancy services, Viscovery warrants execution of such services in conformity with the contract (in accordance with and subject to the provisions set forth below) for a period of 24 months as from the date of rendering the service.

6.2

In case of supplies, including software, the warranty period shall be 24 months as from delivery.

6.3

Viscovery warrants that the software supplied by Viscovery will comply with the performance specifications set forth in the operating manual supplied with the software and that such software will be delivered on tested data carriers that are free from defects; compliance with information given in brochures and other advertising materials is not warranted. Any properties/features deviating from or exceeding the aforesaid scope are deemed warranted only if agreed to in writing. The customer is responsible for checking whether the software is suited for a particular application. Viscovery assumes no liability for information given in brochures or advertising materials of third parties.

6.4

The customer acknowledges that, in view of the variety of possible applications and due to the extremely complex nature of such software, it is not possible to supply state-of-the-art software which is completely free from defects. No claims for damages or warranty claims vis-à-vis Viscovery can be derived therefrom.

6.5

If the software delivered or the services rendered by Viscovery are found to be defective, the customer shall promptly report such defects to Viscovery in writing, detailing the defects detected. If the customer is an entrepreneur, it is obligated to examine any software and services immediately after delivery or rendering and to notify Viscovery immediately in writing of identifiable defects; in case of a breach of such obligation, the supplies/services are deemed accepted, with the legal consequence that, subsequently, warranty and damage claims, complaints because of incomplete performance as well as the avoidance of the contract on the grounds of error shall be excluded.

6.6

It will fall under the exclusive responsibility of Viscovery to determine whether or not a defect exists, which determination will be made within a reasonable period. At the request of Viscovery, but at the customer's expense and risk, the customer shall convey defective products to Viscovery or make them available for examination in a place to be designated by Viscovery. Viscovery reserves the right to remedy defects at its option by repairing the defects, by providing a replacement, or by modifying the services rendered.

6.7

The customer may claim a price reduction or the rescission of the contract only after the remedying of defects has finally failed. In case of a merely minor decrease of the value of the supplies/services, rescission shall be excluded.

6.8

If the products or services, in particular the software, are modified by the customer or by third parties, the warranty claim shall expire unless the customer proves that the defect does not result from the modification concerned. Viscovery cannot be held liable for any defects resulting from improper installation, operation or use, unsuitable computer systems or data carriers, abnormal operating conditions, errors in the operating system or in the network system, or otherwise from the user's computer system.

6.9

Viscovery does not warrant the quality of data analyses if the customer data used for such purpose are defective. This exclusion of liability shall apply in particular to defective models made on the basis of defective data or to the erroneous interpretation of models.

6.10

The customer is not entitled to remedy defects directly or have them remedied by third parties, and to demand reimbursement of the expenses incurred in doing so.

6.11

Except in cases of intention or gross negligence, any further compensation of damage is expressly excluded. The restriction of liability set forth in Section 7 shall apply.

6.12

In case of business transactions with entrepreneurs, the burden of proof concerning the defectiveness of the supplies/services shall rest with the entrepreneur; sec. 924 of the Austrian General Civil Code (“ABGB”) is expressly excluded.

6.13

The right of recourse pursuant to sec. 933 b of the Austrian General Civil Code vis-à-vis Viscovery is excluded.

7.

Liability

7.1

Viscovery will be liable solely for intention and gross negligence as well as for the lack of warranted properties/features, but not for the breach of other contractual duties through slight or ordinary negligence. Any liability for lost profit is excluded.

7.2

Except in case of intention, the liability of Viscovery will be limited to the order value. In case of a culpable breach of material contractual duties, Viscovery will be liable as to amount only for damage which is typical under such type of contract, i.e., foreseeable (irrespective of the legal grounds underlying the claim).

7.3

The provisions of this Section 7 shall also apply for the benefit of the employees and other persons employed by Viscovery in the performance of its obligations ("Erfüllungsgehilfen" pursuant to sec. 1313 a of the Austrian General Civil Code).

7.4

Viscovery cannot be held liable for damage which could have been prevented by the customer taking measures that could be reasonably expected of the customer including, without limitation, program and data backup).

7.5

Recourse claims against Viscovery under product liability within the meaning of the Austrian Product Liability Act “Produkthaftungsgesetz” or under other provisions of product liability law are excluded unless the person entitled to recourse proves that the defect was caused in the sphere of Viscovery and is at least due to gross negligence.

8.

Industrial property rights and copyright

8.1

Any and all industrial property rights in, and rights of exploitation of, software supplied by Viscovery as well as the pertaining documentation are, and shall remain, the property of Viscovery. Unless expressly agreed otherwise, the customer shall acquire only a right of use pursuant to the individual license conditions (license agreement) concerning the respective product.

8.2

Furthermore, any and all industrial property rights, rights of use and rights of exploitation in and to documentation, models or analyses prepared by Viscovery are the exclusive property of Viscovery even if all the data used for such purpose have been made available by the customer. The customer shall acquire a non-transferable and non-exclusive right to use the documentation, models and analyses for an unlimited period of time.

9.

References

9.1

The customer herewith authorizes Viscovery to cite the fact that Viscovery has rendered services for the customer as reference for advertising purposes in any kind of publications; such reference shall be made in a general manner, although the name of the customer may be stated and the customer's logo may be used.

9.2

Furthermore, the customer authorizes Viscovery to present the results of the consultancy services rendered by Viscovery, such as models, analyses, or project success stories, to third parties for advertising purposes, provided that such information is presented in anonymized form; any results that include or imply confidential information of the customer shall however not be presented without prior approval by the customer.

10.

Final provisions

10.1

If any part of these General Terms and Conditions is or becomes legally invalid or ineffective, the validity of the other provisions shall not be affected thereby. If any provision is or becomes invalid or ineffective, in full or in part, such invalid or ineffective provision shall be replaced by a provision which comes as close as possible to the economic purpose of the invalid or ineffective provision.

10.2

The place of performance regarding delivery and payment shall exclusively be Vienna, Austria. If the customer is a consumer, sec. 14 of the Austrian Consumer Protection Act shall apply.

10.3

These General Terms and Conditions shall be governed by Austrian law. The application of the UN Sales Convention (UN Convention on Contracts for the International Sale of Goods of April 11, 1980) is expressly excluded. The official language of the contract shall be German. The place of jurisdiction shall be the court having subject-matter jurisdiction in Vienna, Austria.

10.4

Mandatory consumer rights under the Austrian Consumer Protection Act shall not be restricted by the foregoing provisions.