General Terms and Conditions
1.1 These General Terms and Conditions apply to all deliveries of goods, works or services by Prime One Contracting (the “Supplier”). In case of software -
deliveries and of installations, specific Supplier Conditions for Software and Conditions for Installation and Commissioning will be applicable.
1.2 Unless Supplier expressly agrees in writing, Supplier shall not be bound by any terms or conditions, whether written, oral or otherwise, that are
different, or vary from or are in addition to these General Terms and Conditions and any such terms or conditions shall be null and void and of no effect
2. Offer and Acceptance
2.1 Offers by the Supplier are made without obligation and any sales contract shall become effective and binding on Supplier only when Supplier delivers
to Customer its written Order Confirmation Form and Customer countersigns and delivers to Supplier the return portion of Supplier’s Order Confirmation
Form, or if Supplier, at its election effectively delivers the goods to Customer.
2.2 Specifications and quotes in catalogues, brochures etc., are only binding if expressly referred to in the Order Confirmation Form.
2.3 Supplier’s offer and project documentation must not be reproduced nor disclosed to third parties without the Supplier's written consent. The
documentation remains the Supplier's property and must be returned to Supplier upon Supplier’s request.
3.1 Prices are quoted ex Supplier's works or warehouse, excluding packaging, dispatch and VAT. All expenses, duties, tariffs, and taxes related to the
delivery are paid by Customer.
3.2 If a Customer’s order should differ from the offer, the Supplier reserves the right to change prices accordingly.
3.3 Prices are based on the material and labor costs valid at the time of the first offer. Any changes to these costs prior to the date of delivery entitle e the
Supplier to change prices accordingly.
4. Delivery and Dispatch
4.1 Delivery periods do not start to run before the date of the Order Confirmation Form and are deemed to be fulfilled when the goods are dispatched
from the Supplier's factory or warehouse.
4.2 If not explicitly agreed to otherwise by Supplier, any governmental or other permits required for delivery in the Customer’s country may delay, unless
received in time, delivery dates. Such governmental or other permits must be obtained in the Customer’s country by Customer.
4.3 Terms and obligations of delivery may at the election of Supplier be suspended during any period in which Customer’s payments are in arrears.
4.4 Supplier, at its election, may ship all or part of its goods and immediately invoice Customer for such partial or preliminary shipments.
4.5 The agreed delivery periods are subject to events of force of nature, or unforeseen events or events beyond the control of the Supplier, such as war ,
terrorism, Acts of God, governmental interventions and bans, energy and raw material shortages or outages, strikes, transport damages or delays. These
events entitle the Supplier to extend the time of delivery, also if they affect any of its sub-suppliers.
4.6 In case delivery of the goods ready for dispatch is not possible or not desired by Customer, the goods will be stored at the Customer's cost and risk.
The delivery shall then be considered as performed and Supplier may, at its election, invoice for such delivery.
4.7 Compensation for commercially unreasonable delays in delivery by Supplier shall be payable only upon separate agreement, and shall be limited to an
eventual monetary penalty in an amount to be agreed to by the parties, even if delays are caused by the Supplier's negligence.
5. Performance of Contract and Transfer of Risk
5.1 Costs and all risks of loss are transferred to the Customer at the time of dispatch of the goods from the Supplier's factory or warehouse, in default of
the agreed delivery terms. This also applies in case of installations at the Customer’s premises and transport by the Supplier.
5.2 If delivery is delayed by Customer, transfer of costs and risk of loss shall become effective when the goods are ready for dispatch.
5.3 All periods depending on the Supplier's performance of contract begin on and run from the dates specified in this section, irrespective of any quality
tests or trial runs.
6.1 Unless otherwise agreed in writing, one third of the contract price shall be paid by Customer upon receipt of the Order Confirmation, one third after
half of the delivery period and the remaining third at the time of delivery. All invoices of the Supplier shall be due and payable within 30 days from the
date of invoice.
6.2 Partial invoices are due immediately upon receipt. This also applies to payments which have to be made for additional performances, beyond the
initial terms of contract, regardless of the conditions of payment applicable to the main performance.
6.3 Payment shall be made without any deduction in the agreed currency to the Supplier's bank. Checks or bills of exchange shall be accepted on account
only, and all connected expenses shall be charged to the Customer’s account.
6.4 Customer shall not be entitled to any right of set off or to withhold or reduce any payments due because of warranty or compensation claims.
6.5 In case of delayed payment the Supplier is entitled at its election to do any of the following:
a) postpone performance of its own obligations until receipt of the payments due
b) accelerate and fix a due date for all outstanding payments (cancellation of periods for payment by Customer)
c) charge to Customer from such due date or maturity interest at the current discount rate (main refinancing operations) of the European Central Bank
plus 8 percent per year or rescind and cancel the contract if the Customer fails to pay within a reasonable period of grace.
6.6 Until Customer has fulfilled all financial obligations, the goods supplied shall remain the Supplier’s property. Customer shall be obliged to meet all
legal requirements in order to safeguard Supplier’s property or security interest. In case of attachment or other kinds of seizure Customer shall evidence
Supplier's title and notify the latter immediately. By signing and returning to Supplier the Customer Order Form or by accepting delivery of goods
Customer hereby agrees that it has granted Supplier a secured interest in the goods until such time as Supplier is paid in full.
7.1 Unless otherwise agreed to in writing the warranty period shall be six months from the date of transfer of risk as stated in 5.1, regardless of the legal
qualification of goods delivered or works performed. Claims will be accepted only if Supplier is immediately notified of the defect in writing. S upplie r’ s
obligations for such claims are restricted to the repair or replacement of the defective goods. All other costs are to be borne by Customer.
7.2 Defects which are due to abuse, misapplication, failure to follow the instructions for use, warnings, safety or other regulations provided by Supplier ,
improper or prolonged storage or other mistakes on the part of the Customer, are excluded from the warranty. In case of products which have been
produced at the order of or according to the Customer's instructions or formulae, warranty will only cover the proper production of the goods . Normal
wear will not be covered under warranty.
7.3 Supplier's warranty obligations cease if any changes or repairs are caused by Customer or a third person without Supplier's prior written consent. The
performance of a warranty obligation does not prolong the original warranty period.
8.1 The Supplier's liability and obligations according to the Product Liability Act or any other products liability acts or laws in any jurisdiction is excluded if
specific provisions regarding the handling of the products, instructions for their use and/or warning and safety regulations as specified by the Supplier
have not been observed.
8.2 Outside the scope of the Product Liability Act or other products liability acts or laws in any jurisdiction, damages shall be compensated only if the
Supplier is held responsible for willful intent or gross negligence. In this case, however, Supplier’s obligations for such claims are limited to personal injury
and material damage resulting directly from a defect in the products. All other claims, such as consequential loss of property or profit are explicitly
excluded. Claims must be made in writing to Supplier within a period of six months from the date of occurrence of the damage, but not later than two
years from the date of delivery, otherwise they are forfeited.
8.3 Customer is liable to subject its customers to the limitations of liability contained in this paragraph.
9. Rescission of Contract
Customer’s financial situation has worsened notably after ordering the products, and Customer is not prepared to pay in advance, or to provide sufficient
security. Such rescission of contract shall also be permissible if only parts of the delivery or performance, which are still to be fulfilled.
9.1 Customer at its election may rescind the contract if delivery is delayed more than 60 days because of gross negligence of the Supplier and despite
reasonable period of grace granted in writing.
9.2 Apart from the case of delayed payment according to Para 6.5 d) the Supplier can rescind the contract if
a) delivery or performance becomes impossible for reasons attributable to the Customer, or is delayed beyond a reasonable period of grace established
b) the Customers financial situation has worsened notably after ordering the products, and Customer is not prepared to pay in advance, or to provide
9.3 In case that, due to events indicated in Para 4.5, the agreed delivery times are delayed by more than one half of the period, but at least six months,
either party shall be entitled to rescind the contract with respect to those parts of the delivery or performance which have still to be fulfilled.
9.4 If bankruptcy proceedings are instituted against either party's assets, or these proceedings are not instituted because of insufficient assets, the other
party may rescind the contract with immediate effect.
9.5 In case of rescission of contract for other reasons than the one stated in 9.1 all performances or parts thereof which have already been fulfilled by
Supplier, shall be settled and paid according to the contractual provisions, notwithstanding and in addition to Supplier’s claims for damages. This also
applies to deliveries and performances not yet accepted by Customer as well as to any preparatory work undertaken by the Supplier. Alternatively,
Supplier is entitled to claim the restitution of products already delivered. Any other consequences resulting from a rescission of contract are excluded.
10. Patent Rights, Copyright
10.1 If a product is produced according to the Customer’s construction, drawings or specifications, Customer agrees to indemnify and hold the Supplier
harmless for any infringement of patent rights of third parties.
10.2 All technical documents, in particular plans, drawings, technical descriptions, as well as catalogues, brochures, pictures or models etc. are the
Supplier's exclusive property and are subject to legal and statutory restrictions on copy, reproduction, competitive use etc. Para 2.3 also applies to such
11. Place of Jurisdiction, Applicable Law
11.1 In case of controversies arising from the contract the venue of legal proceedings shall be the US tribunal at the Supplier's registered place of business.
The Supplier shall, however, also be entitled to take action before a competent tribunal at the Customer’s place of business.
11.2 The parties may also agree to have controversies settled by arbitration.
11.3 The contract shall be construed and interpreted according to US law. It is mutually agreed that the UNCITRAL Agreement of the United Nat ions on
the law of international sales of goods does not apply.
12.1 Supplier in its sole discretion may assign or delegate any of its duties or rights under the order or contract at any time without prior notice to or
consent of Customer. The order or contract may not be assigned by Customer without Supplier’s prior written consent, and in any event shall be binding
on Customer’s successors and assigns. No covenant, term or condition of this order or contract can be waived by Supplier except by its written consent.
This order or contract may be amended or modified only by a written instrument signed by Supplier and Customer.
General Terms and Conditions for Installation and Commissioning
These General Terms and Conditions shall apply to all contracts for erection, i.e. electrical installation and commissioning, of a device or plant.
2. Co-Operation by Buyer
2.1 The buyer shall undertake at his own cost all that is deemed necessary to ensure that the installation work is started on time and performed without
hindrance or interruption. In particular, the products to be erected shall be stored in such a way that they are properly protected against any damage or
deterioration, and if so agreed upon, these products shall be pre-assembled as stipulated. In addition, the buyer shall provide that all parts necessary for
starting and executing the installation work are available in time on the place of installation. The buyer shall ensure that the access facilities to the site are
in a usable state and the place of installation is in such a condition that installation work may be started at any time. If installation work shall take place in
closed rooms, the building must be in a condition that allows work under normal working conditions. Prior to starting installation, the buyer shall inform
the supplier on all hidden power plants, gas fittings, water supply lines or similar, as well as deliver the required static data.
2.2 At his own cost and in accordance with the instructions specified in the supplier's installation program the buyer shall do the following in due time:
a) Provide appropriate staff, non-skilled and skilled (masons, carpenters, locksmiths, crane drivers, etc.), in the number required and provided with the
necessary tools and equipment.
b) Perform all necessary earthmoving, construction, bedding, mortising, scaffolding and paint work and procure the required construction materials.
c) Provide requisite jigs and mounting materials for installation and commissioning, such as scaffolding, wedges, base supports, cement, cleaning and
sealing materials, lubricants, fuels, etc., as well as lifting gears, cranes, and other facilities.
d) Provide the necessary operating media and electrical power as well as compressed air and water, heating and lighting, including the required
connections to the place of installation; everything in the quality and quantity required.
e) Arrange for the provision of suitable, dry, lockable rooms in the immediate vicinity of the place of installation for the storage of machine parts,
instruments, devices, materials, tools etc. For the supplier's personnel the buyer shall provide appropriate work and amenity rooms equipped with
adequate sanitary installations. In order to protect the supplier's personnel and property on site, the buyer shall make all arrangements he himself
would make to protect his own personnel and property.
f) Provide for protective clothing and safety devices if this is required due to special conditions on site which are unusual in the supplier's branch of
3. Charges and Payment
The installation work shall be charged at lump-sum prices or on a time and material basis. Unless otherwise stipulated, the work shall be charged on a
time and material basis. The installation work performed shall be charged as follows:
a) Charging and payment are effected as contemplated in the contract. Unless stipulated otherwise, commissioning of the plant will be charged
b) If the installation work, commissioning or final acceptance in the buyer's works are delayed owing to circumstances beyond the supplier's control, the
buyer shall be charged with all additional costs caused by this delay.
c) Payments effected by the buyer to the supplier's installation personnel shall not release the buyer from his obligation to make payment to the supplier,
save as stipulated by express agreement.
d) Mutual material supplies on the installation site are subject to receipts to be signed by the site manager and the buyer or a person authorized by him.
The same regulation shall be applied for services and performances.
e) If, due to reduction in working hours on the buyer's place or for other reasons beyond the supplier's control, except strike by his own personnel , the
mounting personnel does not reach the daily working hours provided by tariff, the differential hours will be charged as normal working hours at the
rates stipulated or generally used by supplier on a time and material basis.
f) If the supplier performs activities on the buyer's request which are not stipulated in the contract, these activities shall be charged on a time and
g) If the supplier, for reasons beyond his control, has to perform activities at times or conditions other than stipulated in the contract and if these
activities cause additional costs, the buyer shall have to pay the additional costs if the supplier notifies him in time of the altered working conditions.
3.2 Work Charged on a Time and Material Basis
a) For installation work performed on a time and material basis the following shall be charged:
aa) the working time according to the supplier's applicable schedule of rates, waiting times shall he considered as working times. Travelling times as
well as preparatory periods shall be regarded also as working times;
ab) daily allowances paid by the supplier;
ac) expenses on fares, transportation of luggage, tools and incidentals etc.;
ad) installation and erection materials supplied by the supplier, in accordance with the supplier's schedule of rates;
ae) compensation for the provision of special tools, test and measuring devices, in accordance with the supplier's schedule of rates;
af) the costs for suitable accommodation of the supplier's personnel in the town of the site.
b) Daily allowances and expenses shall be charged including taxes.
c) In the event of work demanded by the buyer at times or under conditions causing additional costs, the supplier shall be entitled to make a surcharge on
the normal rates in accordance with tariff.
d) The buyer shall verify the working hours performed by the supplier's personnel with his signature at least once a week. These written verifications shall
be taken as a basis for calculation.
3.3 Installation Work Performed on a Lump-Sum Basis
a) The lump-sum price shall cover the agreed extent of work to be performed by the supplier under the specified working conditions and circumstances .
Unless stipulated otherwise the lump-sum price shall be based upon the weekly working hours according to tariff applicable to supplier.
b) If the supplier so requires, the buyer shall deliver, to the best of his knowledge, a weekly, non-committal verification of the working hours per formed
by the supplier's personnel.
3.4. Overtime, Night-Work, Work on Sundays and Holidays
Any hours worked in excess of the normal daily working hours or on Saturdays shall be regarded as overtime. These additional working hours shall be
charged according to the overtime rate. The night hours (between 7 p.m. and 6 a.m.) shall be charged in accordance with the respective night rate
Sunday work and work on public holidays shall be charged according to the relative schedule of rates in accordance with tariff. Holidays, which are not
public holidays, shall be considered as workdays and shall be charged as such even if the personnel do not work by order of the buyer or for reasons
beyond the supplier's control. If the installation work is charged on a lump-sum basis and if late work, night-work, Sunday work or work on public holidays
is performed by the supplier’s personnel, then the difference between the normal hourly rates and the overtime, night or Sunday work or work on public
holidays shall be charged separately.
4. Mounting of Objects and Materials Provided by Buyer
4.1 The supplier agrees to perform the installation work as stipulated in the Contract. He will not accept any liability, however, for the suitability and
quality of the objects and materials provided. If the supplier doubts the quality and suitability of the objects and materials provided, he has to inform the
buyer immediately. If the buyer does not react to the supplier’s objections, the supplier shall be entitled in serious cases to refuse to perform the work in
4.2 The buyer shall bear the risk for the accidental loss or deterioration of the tools, equipment and material provided by him.
5. Acceptance of Work
5.1 The buyer shall be obligated to accept the work performed as soon as notification of completion is received, or as soon as a trial run of the equipment
supplied and erected has taken place if called for under the Contract. If the work performed turns out to not meet the provisions of contract, the supplier
shall be under the obligation of correcting the deficiency at his own expense and within a reasonable period of time, unless the deficiency must be
considered to be immaterial to the buyer's interests, or if the deficiency is due to circumstances for which the buyer bears responsibility. If the deficiency
is of minor importance, the buyer shall not be entitled to refuse acceptance of the work involved if the supplier expressly recognizes his obligation of
correcting the deficiency at his expense.
5.2 In the event acceptance by the buyer is delayed for reasons beyond the supplier's control, acceptance shall be considered to have taken place two
weeks after the supplier passes to buyer notification of completion of work.
5.3 After acceptance the supplier shall no longer be liable for disclosed deficiencies, unless the buyer has expressly reserved the right to claim a particular
6. Installation Work by Buyer or Third Parties
If the contract provides that the installation work shall be performed by the buyer or third parties entrusted by the buyer and that the supplier only
provides for the commissioning of the plant or facility, the following terms shall be applied:
6.1 The installation work must have been completed as specified in the contract.
6.2 Additional costs caused by deficient or uncomplete installation work shall be charged on a time and material basis, in particular if for commissioning a
lump-sum price has been provided in the contract.
6.3 If commissioning of the erected plant or device is delayed owing to deficient or uncomplete installation work, the buyer is charged separately with all
additional costs on a time and material basis.
6.4 If the contract provides for an inspection of the installation work effected by the buyer, and if deficiencies are found on this occasion, the buyer shall
remedy these deficiencies prior to commissioning of the plant or device.
The buyer shall be liable for all defects or damages caused by deficient installation work with respect to the plant or device supplied by the supplier.
General Terms and Conditions for Software
These General Terms and Conditions, (“Software Terms”) are special terms and conditions that shall apply to all deliveries of software by Prime One
Contracting, (the “Supplier”). The term “delivery” also includes the downloading of software by Customer. Unless stipulated otherwise in these Software
Terms, Supplier’s General Terms and Conditions for deliveries of goods, works or services, (“Supplier’s General Terms”) shall apply. In the event of a
conflict between these Software Terms and Supplier’s General Terms relating to these transaction(s) these Software Terms will control with respect to
the transaction(s). If, by way of exception, software is delivered to consumers as specified by section 1 (relevant official federal law bullet in), then the
Supplier’s General Terms shall apply to the extent they do not contradict the regulations specified by section 1 of the aforementioned law.
2. Subject of Contract
For purposes of these Software Terms, software includes software programs sold to Customer for utilization on and operation or control of electro
technical, electromechanical and/or electronical systems and devices, plus the accompanying operating instructions. Customer is authorized to use the
software only after obtaining a special software license from Supplier. If, for technical reasons, the data media delivered to Customer contain software
that is not covered by the software license granted to Customer, such software may only be utilized after Customer obtains a separate written license.
The delivered software may include technical measures or safeguards to prevent unauthorized access to such unlicensed software.
2.2 Software Used on Hardware Delivered by Supplier.
If the software is sold for the purpose of operating plants or devices (“hardware”) delivered by Supplier, then Customer is granted a non-transferable and
non-exclusive right to utilize the software, only: (i) on the specified hardware; (ii) at the place of installation; and (iii) in accordance with the provisions of
the subject contract. Supplier reserves all rights not expressly granted to Customer. In particular, Customer may not, without prior written consent by
Supplier, copy, modify or distribute the software to third parties or use the software on hardware other than the hardware specified in the contract.
2.3 Independent Software
Software which is sold to Customer but not in connection with specific hardware (“Independent Software”), shall be utilized by Customer only on those
plants and devices specified in the applicable software license contract by type, number and place of installation. In all other respects, section 2.2 of these
Software Terms shall apply to the Independent Software.
2.4 Additional performances
Additional services or performances by Supplier shall be charged to Customer on separate accounts. Additional performances include, without limitation,
(i) Copying, translating or generating of the software, as well as performances as described by section 5.3;
(ii) data media supplied by Supplier, unless the data media are part of hardware delivered by Supplier;
(iii) analyzing and correcting deficiencies caused by improper handling, operating mistakes, or other circumstances not caused by Supplier;
(iv) introduction and training, unless included in the contract; and
(v) improvements, (i.e. updated versions of the software) offered to Customer, which facilitate operations, shorten hardware occupancy times or
improve specifications and applications of the software.
3. Modifications, Updates, Copies
3.1 If necessary for operation on the licensed plant, Customer may modify the software in machine readable form or merge it into other programs . Even
when adapted in such a manner, the software shall remain subject to these Software Terms and Supplier’s General Terms.
3.2 A software license granted by Supplier entitles Customer to utilize the licensed software version only. Acquisition and utilization of updated versions
by Customer are subject to Customer obtaining a separate written software license agreement from Supplier, or to the specifications in a software
maintenance contract, if any entered into by and between Supplier and Customer.
3.3 If Customer is granted a written software license without data media, Customer shall be entitled to copy, for operational purposes only, the software
version already sold and licensed to Customer for utilization in another plant that has not been licensed up to that date. For this purpose, Supplier will
issue an additional software license contract in which the newly licensed hardware is specified.
4. Protection of Industrial Property Rights and Trade Secrets
4.1 Customer, its agents, employees and assigns are responsible for protecting and ensuring the continued proprietary nature of the software del ivered
by Supplier, in particular with respect to intellectual property rights, industrial property rights, copyrights and the right of copyright notice. Customer
shall provide all software copies, complete or partial, as well as all modified or transferred software versions with Supplier’s copyright notice, as we ll as
with all other notice of industrial property rights in the same way as they are affixed on the original, licensed software version.
4.2 Customer, its agents, employees and assigns are obligated to ensure the continued confidential nature of the software and of the techniques and
methods involved in the software’s development and use. These obligations continue to apply if the software is modified or merged into other programs.
4.3 Customer is not entitled to reproduce source code by any method, in whole or in part, from the binary software, or to gain knowledge of the structure
and conception of the software or hardware or firmware implemented. Such prohibition shall extend to all of Customer’s employees, agents and assig n s
and continues even if the software is modified or merged into other programs.
4.4 Customer shall maintain detailed records regarding the licensed software including the respective software version, updates, licenses, serial number
of the licensed plant, the location of the licensed software, as well as the number of copies made. Customer shall make such records immediately
available to Supplier upon Supplier’s request.
4.5 Upon termination of the software license contract Customer shall return all software certificates and licenses to Supplier and destroy all copies of the
software, including modified and merged copies, and shall certify its action in writing to Supplier.
4.6 The obligation to observe secrecy and to protect and ensure proprietary and confidential information as proprietary as described in this section 4
continues after termination of the software license contract.
5. Delivery, Assumption of Risk, Acceptance of Software
5.1 Supplier will deliver to or make available for downloading by Customer the software version which is valid at the time of delivery.
5.2 Unless stipulated otherwise, the software and the data media shall be dispatched and delivered or made available for downloading at Customer's cost
5.3 If Customer destroys or damages or accidentally deletes the software, Supplier shall provide replacement for the damaged software if available
subject to payment by Customer of reasonable prices for order processing, data media and delivery costs.
5.4 The software is considered accepted by Customer upon the earlier to occur of the following:
(i) Customer confirms that the software corresponds with the contractual specifications; or
(ii) Customer fails to notify in writing of gross deficiencies within a trial period of two weeks; or
(iii) Customer uses the software after the trial period has expired; or
(iv) the software cannot be installed and made ready for operation within a reasonable period of time determined by Supplier for reasons beyond
5.5 In all other instances, the date of acceptance by Customer shall be deemed to be the date of delivery or downloading of the software by Customer.
6. Warranty, Maintenance, Modifications
6.1 For software not excluded from warranty, Supplier warrants that such software will conform with the specifications of the software license contract ,
provided that the software is installed properly and used in accordance with the conditions specified in the software license contract. Unless s t ipulated
otherwise, the warranty period is three months from the date of acceptance as specified under sections 5.4 and 5.5.
6.2 The warranty includes error diagnosis and error correction during the duration of the warranty period. In the event of
a warranty claim for the correction of errors, (i.e. deviations from the valid specifications which impair the functioning of the software), correction shal l
take place first by Supplier through telephone support and instructions for troubleshooting, and then via data connection with Customer (modem, postal
services). If such error continues, Supplier will, to the extent reasonably possible, deliver new, improved software. If this is not possible or the error
persists, Supplier shall attempt troubleshooting (modification of software) at Customer's place of business.
6.3 To institute a claim for the correction of a software error Customer must demonstrate to Supplier’s satisfaction that:
(i) the error impairs the functioning of the program;
(ii) that the error is reproducible;
(iii) that Customer has installed the new software versions, if any;
(iv) that Customer provides all information and material necessary for error correction; and
(v) that Supplier has access to the hardware and software during normal working hours.
Customer agrees to support Supplier in error correction by providing an expert at Customer’s expense, whose qualifications meet the requirements of
the system and who actively assists in the removal of the error.
6.4 Supplier makes no warranties with respect to software which has been modified, in whole or in part, by Customer or by third parties without
Supplier’s prior written consent, even if the error occurs in a part not modified. If during error analysis Supplier concludes that the error is not subject to
warranty or that the error was not caused by the delivered software, Customer shall reimburse Supplier for all of Supplier’s resulting cos ts and expenses.
6.5 Supplier makes no warranties that the software functionality will meet all requirements of Customer, that the program will run with other sof tware
used by Customer; that the software will run without interruptions or errors; or that all software errors can be corrected.
6.6 Should Supplier determine that during the warranty period, the software does not meet the software license contract’s minimum specification s an d
that as a direct result Customer is not able to use the software, each party has the right to rescind the software license contract with immediate effect. In
the event of such rescission, Customer will return the original software and all copies including all written materials, updates and modifications to
Supplier and Supplier will reimburse Customer for the original price paid by the Customer for the software less any depreciation and any other
outstanding amounts owed from Customer to Supplier.
6.7 The presence of deficiencies in an individual program does not entitle Customer to rescind the contract with respect
to any other programs.
6.8 Supplier expressly disclaims and makes no other warranties or representations, whether express or implied concerning the software. The war ranty
excludes any other claim and the liability for any damages arising out of the use of the software.
7. Limitation of Liability
Customer has exclusive control over the use of the licensed software, and therefore shall assume sole responsibility for the usefulness and safety of the
results of this utilization. Supplier excludes any liability for negligence in contract or contractual performance. Customer’s sole and exclusive remedy
against Supplier shall be limited to the warranty, maintenance and modification claims expressly detailed in section 6 of these Software Terms.
7.2 Supplier does not assume liability for general faultlessness of the software or for a specific capacity or performance of the software, unles s this has
been explicitly contracted for a specified field of application.
7.3 For all other respects, liability is limited as specified by section 8 of the Supplier’s General Terms. Customer expressly agrees to indemnify and will hold
Supplier harmless, from all claims enforced by third parties, which go beyond the liability limits specified by these Software Terms and Supplier’s Gener al
8. Third Parties' Rights
8.1 Supplier shall reasonably assist the Customer with appropriate information and expertise in defending all claims by third parties alleging that the use
of the software as provided violates industrial or intellectual property rights or copyrights held by third parties. Customer shall immediately notify
Supplier of an alleged violation of such rights and of any law suits to that effect.
8.2. Should a court of competent jurisdiction find such claim by a third party to be valid and enforceable, Supplier may at its own discretion either modify,
exchange or replace the software or acquire a software license from a third party.
8.3 If Supplier chooses not to undertake a section 8.2 remedy, Customer shall immediately return the original software and all copies including all written
materials, updates and modifications to Supplier. Upon receipt of the software and other materials and documents, Supplier will refund the purchase
price paid by Customer less any depreciation charges, a reasonable fee for utilization prior to such date and any amounts then owing to Supplier from
Customer. Supplier expressly excludes and will not reimburse or pay any and all other claims submitted by Customer with respect to the violation of
industrial or intellectual property rights or copyrights held by third parties.
Prime ONE Contracting maintains a policy of continuous improvement in our products and service and as such, technical changes may be made in the
product described in this proposal to improve performance or service ability. We reserve the right to make these changes without notice. Customer shall
also agree that it shall not hire as an employee or contract with as an independent contractor any of the employees of POC during the performance of
this agreement and for period of (12) months following the date of substantial completion of Work on this agreement.