General Terms & Conditions of Vollcom Digital GmbH

1. Remuneration, Payment, Service Protection, Deadlines

1.1 Unless otherwise agreed, remuneration shall be calculated on a time and material basis at Vollcom Digital’s generally applicable prices at the time the contract is concluded. Remuneration is always net prices plus statutory VAT.

Vollcom Digital may invoice every month. If services are remunerated on a time and material basis, Vollcom Digital shall document the type and duration of the activities and send this documentation with the invoice.

1.2 All invoices must be paid without deduction within 14 calendar days of receipt, free paying agent.

1.3 The customer may only offset or withhold payments due to defects if it is entitled to payment claims due to material defects or defects of title in the service. The customer may withhold payments due to other claims for defects only to a proportionate extent, taking into account the defect. Clause 4.1 shall apply accordingly. The customer has no right to retention if his claim for defects is time-barred. Otherwise, the customer may only offset or exercise a right of retention against undisputed or legally established claims.

1.4 Vollcom Digital reserves title and rights to be granted to the services until the remuneration owed has been paid in full; justified retentions of defects according to Section 1.3. sentence 2 shall be taken into account. Furthermore, Vollcom Digital shall retain title until all of its claims arising from the business relationship with the customer have been satisfied.

Vollcom Digital shall be entitled to prohibit the customer from further use of the services for the duration of the customer’s default in payment. Vollcom Digital may only assert this right for a reasonable period, generally no longer than 6 months. This does not constitute a withdrawal from the contract. § Section 499 (2) BGB remains unaffected.

If the customer or its buyer returns the services, the acceptance of the services shall not constitute a withdrawal from the contract by Vollcom Digital, unless the customer expressly declares its withdrawal. The same shall apply to the seizure of the goods subject to retention of title or rights to the goods subject to retention of title by Vollcom Digital.

The customer may neither pledge nor assign by way of security items subject to retention of title or reservation of rights. The customer is only permitted to resell the goods in the ordinary course of business as a reseller under the condition that Vollcom Digital transfers title to the customer’s claims against its purchasers subject to payment. By concluding this contract, the customer assigns its future claims in connection with such sales against its customers to Vollcom Digital as security, which hereby accepts this assignment.

If the value of Vollcom Digital’s security interests exceeds the amount of the secured claims by more than 20%, Vollcom Digital shall release a corresponding portion of the security interests at the customer’s request.

1.5 In the event of a permissible transfer of rights of use to deliveries and services, the customer is obliged to impose the contractually agreed restrictions on the recipient.

1.6 If the customer fails to settle a due claim in full or in part by the contractually agreed payment date, Vollcom Digital may revoke agreed payment terms for all claims. Vollcom Digital is also entitled to provide further services only against advance payment or against security in the form of a performance bond issued by a credit institution or credit insurer authorized in the European Union. The advance payment must cover the respective billing period or – in the case of one-off services – their remuneration.

1.7 In the event of the customer’s financial inability to fulfill its obligations to the provider, Vollcom Digital may terminate existing exchange contracts with the customer by rescission, and continuing obligations by termination without notice, even if the customer files for insolvency. §321 BGB and §112 InsO remain unaffected. The customer shall inform Vollcom Digital in writing at an early stage of any impending insolvency.

1.8 Fixed performance dates shall be agreed upon exclusively and expressly in a documented form. The agreement of a fixed performance date is subject to the proviso that Vollcom Digital receives the services of its respective upstream suppliers on time and following the contract.

2. Cooperation, Obligations to Cooperate, Confidentiality

2.1. the customer and Vollcom Digital shall each appoint a responsible contact person. Unless otherwise agreed, communication between the customer and Vollcom Digital shall take place via these contact persons. The contact persons must bring about all decisions related to the execution of the contract without delay. The decisions shall be documented in a binding manner.

2.2. the customer shall be obliged to support Vollcom Digital as far as necessary and to create all the conditions necessary for the proper execution of the order in its sphere of operation. In particular, the customer shall provide the necessary information and, where possible, enable remote access to the customer system. If remote access is not possible for security or other reasons, the affected deadlines shall be extended appropriately; the contracting parties shall agree on an appropriate arrangement for further effects. The customer shall also ensure that expert personnel are available to support Vollcom Digital.

Insofar as it is agreed in the contract that services can be provided on the customer’s premises, the customer shall provide sufficient workstations and work equipment free of charge at Vollcom Digital’s request.

2.3 Unless otherwise agreed, the customer shall ensure proper data backup and failure precautions for data and components (such as hardware, and software) that are appropriate to their type and importance.

2.4. the customer shall immediately report defects in writing in a comprehensible and detailed form, stating all information useful for the detection and analysis of defects. In particular, the work steps that led to the occurrence of the defect, the manifestations, and the effects of the defect must be stated. Unless otherwise agreed, the relevant forms and procedures of Vollcom Digital shall be used for this purpose.

2.5. the customer shall provide Vollcom Digital with reasonable support upon request in the examination and assertion of claims against other parties in connection with the provision of services. This applies in particular to recourse claims of Vollcom Digital against upstream suppliers.

2.6. the contracting parties are obliged to maintain confidentiality regarding business secrets and other information designated as confidential (e.g. records, documents, databases) that become known in connection with the performance of the contract and not to use or disclose them to other contracting parties beyond the purpose of the contract without written consent.

The respective receiving contractual partner is obliged to take appropriate confidentiality measures for business secrets and for information designated as confidential. The contracting parties are not entitled to disclose the business secrets of the other contracting party by observing, examining, dismantling, or testing the subject matter of the contract. The same applies to other information or objects obtained during the performance of the contract.

The disclosure of business secrets and other information designated as confidential to persons who are not involved in the conclusion, performance, or execution of the contract may only take place with the written consent of the other contracting party.

Unless otherwise agreed, the obligation to maintain confidentiality for other information designated as confidential shall end five years after the respective information becomes known, but in the case of continuing obligations not before their termination. Business secrets must be kept secret for an unlimited period.

The contracting parties shall also impose these obligations on their employees and any third parties engaged.

2.7. the contracting parties are aware that electronic and unencrypted communication (e.g. by e-mail) is subject to security risks.

In the case of this type of communication, they shall therefore not assert any claims based on the lack of encryption, unless encryption has been agreed in advance.

3. Disruptions in the provision of services

3.1. if a cause for which Vollcom Digital is not responsible, including strike or lockout, impairs compliance with the deadline (“disruption”), the deadlines shall be postponed by the duration of the disruption, if necessary including a reasonable restart phase. A contractual partner must inform the other contractual partner immediately of the cause of a disruption occurring in its area for the duration of the postponement.

3.(2) If the expense increases due to a disruption, Vollcom Digital may also demand compensation for the additional expense, unless the customer is not responsible for the disruption and its cause lies outside its area of responsibility.

3.3. if the customer can withdraw from the contract due to improper performance by Vollcom Digital and/or demand compensation instead of performance or claims such, the customer shall, at the request of Vollcom Digital, declare in writing within a reasonable period whether it wishes to assert these rights or continue to request performance. In the event of rescission, the customer shall reimburse Vollcom Digital for the value of previously existing possibilities of use; the same shall apply to deterioration due to intended use.

If Vollcom Digital is in default with the provision of the service, the customer’s damages and reimbursement of expenses due to default shall be limited to 0.5% of the price for the part of the contractual service that cannot be used due to the default for each full week of default. The liability for default shall be limited to a maximum of 5% of the remuneration for all contractual services affected by the default; in the case of continuing obligations, about the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed at the time of conclusion of the contract shall apply. This shall not apply if a delay is due to gross negligence or intent on the part of Vollcom Digital.

3.4. in the event of a delay in performance, the customer shall only be entitled to withdraw from the contract within the framework of the statutory provisions if Vollcom Digital is responsible for the delay. If the customer justifiably claims damages or reimbursement of expenses instead of performance due to the delay, it shall be entitled to demand 1% of the price for the part of the contractual service that cannot be used due to the delay for each full week of the delay, but no more than 10% of this price in total; in the case of continuing obligations, this shall relate to the remuneration for the respective services concerned for the full calendar year. In addition and with priority, a percentage of the remuneration agreed at the time of conclusion of the contract shall apply.

4. Material defects and reimbursement of expenses

4.1 Vollcom Digital warrants the contractually owed quality of the services. There shall be no claims for material defects if Vollcom Digital’s performance deviates only insignificantly from the contractual quality.

Claims for defects shall also not exist in the event of excessive or improper use, natural wear and tear, or failure of components of the system environment. The same applies to software errors that cannot be reproduced or otherwise proven by the customer. This also applies to damage due to special external influences that are not assumed under the contract. Claims for defects also do not exist in the event of subsequent modification or repair by the customer or third parties, unless this does not make the analysis and elimination of a material defect more difficult.

Clause 6 shall apply additionally to claims for damages and reimbursement of expenses.

4.2. the limitation period for claims for material defects shall be one year from the start of the statutory limitation period. The statutory periods for recourse according to §478 BGB remain unaffected.

The same shall apply insofar as the law prescribes longer periods according to § 438 para. 1 no. 2 or § 634a para. 1 no. 2 BGB, in the event of an intentional or grossly negligent breach of duty by Vollcom Digital, in the event of fraudulent concealment of a defect, and cases of injury to life, body, or health as well as for claims under the Product Liability Act.

The processing of a notice of material defect by the customer by Vollcom Digital shall only lead to a suspension of the limitation period if the statutory requirements for this are met. This shall not result in a recommencement of the limitation period.

Subsequent performance (new delivery or rectification) can only influence on the limitation period of the defect triggering the subsequent performance.

4.3. recourse claims for contracts for digital products following §327u BGB remain unaffected by clauses 4.1 and 4.2.

If a purchaser asserts a possible claim against the customer that may lead to a right of recourse, the customer shall immediately inform the provider of the asserted claim and the further information necessary and useful for its assessment. The customer shall provide the provider with the opportunity to satisfy the claim asserted by the customer’s buyer unless this is unreasonable for the customer. The customer and Vollcom Digital shall coordinate and cooperate to satisfy a justified claim of the customer’s customer in the most cost- and effort-efficient manner.

4.4. Vollcom Digital may demand compensation for its expenses if

a) it takes action based on a report without a defect being present, unless the customer was unable to recognize with reasonable effort that there was no defect, or

b) A reported fault cannot be reproduced or otherwise proven to be a defect by the customer, or

c) Additional expenses are incurred due to improper fulfillment of the customer’s obligations (see also Sections 2.2, 2.3, 2.4, and 5.2).

5. Defects of title

5.1 Vollcom Digital shall only be liable for infringements of third-party rights by its service if the service is used by the contract and, in particular, in the contractually agreed environment, otherwise in the intended environment without any changes.

Vollcom Digital shall only be liable for infringements of third-party rights within the European Union and the European Economic Area and at the place where the service is used by the contract. Section 4.1 sentence 1 shall apply accordingly.

5.2. if a third party claims against the customer that a service of the provider infringes its rights, the customer shall notify Vollcom Digital immediately. Vollcom Digital and, if applicable, its upstream suppliers are entitled, but not obliged, to defend against the asserted claims at their own expense to the extent permissible.

The customer is not entitled to recognize third-party claims before it has given Vollcom Digital a reasonable opportunity to defend the rights of third parties in another manner.

5.3. if the rights of third parties are infringed by a service provided by Vollcom Digital, Vollcom Digital shall, at its discretion and its own expense

a) procure the right to use the service for the customer or

b) Provide the service without infringing rights or

c) take back the service and reimburse the remuneration paid by the customer (less reasonable compensation for use) if Vollcom Digital cannot achieve any other remedy with reasonable effort.

The interests of the customer shall be taken into account appropriately.

5.4. claims of the customer due to defects of title shall become time-barred following section 4.2. section 6 shall apply additionally to claims for damages and reimbursement of expenses of the customer; section 4.3 shall apply accordingly to additional expenses of the provider.

6. General liability of Vollcom Digital

6.1 Vollcom Digital shall always be liable to the customer

a) For damages caused by it and its legal representatives or vicarious agents intentionally or through gross negligence,

b) Following the Product Liability Act and

6.3 Vollcom Digital shall only be liable for damages under a guarantee if this has been expressly assumed in the guarantee. In the event of slight negligence, this liability is subject to the limitations set out in 6.2.

6.4. in the event of necessary restoration of data or components (e.g. hardware, software), the provider shall only be liable for the expenditure required for the restoration in the event of proper data backup and failure precautions by the customer. In the event of slight negligence on the part of Vollcom Digital, this liability shall only apply if the customer has carried out data backups and failure precautions appropriate to the type of data and components before the incident. This shall not apply if this has been agreed as a service of Vollcom Digital.

6.5 Sections 6.1 to 6.4 shall apply accordingly to claims for reimbursement of expenses and other liability claims of the customer against Vollcom Digital. Sections 3.3 and 3.4 remain unaffected.

7. Data protection

The customer shall conclude agreements with Vollcom Digital regarding the handling of personal data as required by data protection law.

8. Miscellaneous

8.1. the customer shall observe the import and export regulations applicable to the deliveries or services on its responsibility, in particular those of the USA. In the case of cross-border deliveries or services, the customer shall bear any customs duties, fees, and other charges incurred. The customer shall handle legal or official procedures in connection with cross-border deliveries or services on its responsibility unless expressly agreed otherwise. 2.

8.2 German law shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.

8.3 Vollcom Digital provides its services based on its General Terms and Conditions (GTC). The customer’s GTC shall not apply, even if Vollcom Digital has not expressly objected to them.

Acceptance of the services by the customer shall be deemed acceptance of Vollcom Digital’s GTC, waiving the customer’s GTC.

Other terms and conditions shall only be binding if Vollcom Digital has recognized them in writing; Vollcom Digital’s GTC shall then apply in addition.

8.4. amendments and supplements to this contract shall only be agreed in writing. Insofar as the written form has been agreed (e.g. for terminations, withdrawal), text form shall not be sufficient.

8.5. the place of jurisdiction vis-à-vis a merchant, a legal entity under public law, or a special fund under public law is the registered office of Vollcom Digital. Vollcom Digital may also sue the customer at its registered office.

Version 3.0, 01.03.2024