AGB

General Terms and Conditions of Octopus GmbH, Arndtstraße 25, 22085 Hamburg, Germany
(hereinafter referred to as "Octopus") for transactions with entrepreneurs

§ 1 Validity of the terms and conditions
1. The following General Terms and Conditions of Octopus apply exclusively to all contracts with entrepreneurs. Conflicting or deviating terms and conditions of the contractual partner do not apply, unless Octopus has expressly agreed to their validity in writing. These terms and conditions also apply exclusively if Octopus provides services without reservation in the knowledge of deviating clauses of the contractual partner.
2. These terms and conditions also apply to all future transactions with the contractual partner.

§ 2 Offer, price, placing of order, conclusion of contract
1. Unless otherwise agreed, offers from Octopus are non-binding. A contract is only concluded with order confirmation or delivery by Octopus . Unless otherwise agreed, the customer is bound to orders for 30 days.
2. Unless otherwise agreed, Octopus invoices its deliveries and services on the basis of the currently valid hourly rates. The hourly rates can be requested from Octopus at any time. The hourly rate list can also be sent to the customer on request.
3. The amounts stated in the hourly rate list apply to work on working days between 9 am and 6 pm. Work outside these times shall be charged at a surcharge of 25 %, work on Saturdays, Sundays and public holidays at a surcharge of 50 %.
4. If Octopus commissions third parties to provide deliveries and services to customers, this shall be done in the name and for the account of the customer.
5Material costs, in particular layout scans, b/w and color printouts for coordination and presentation purposes, data backup, archiving on CD-ROM, telephone, fax, e-mail, postage, fees for data transmission (FTP, ISDN etc.) shall be invoiced by Octopus at a flat rate of 5% of the order amount or in accordance with a separate agreement.
6Third-party costs such as litho, printing and processing, lettershop, packaging, illustrations, image and music rights, editing and translations will be invoiced separately plus an agency handling fee of 14.5%.
7. Courier and freight costs will be charged 1:1 according to receipt.
8If, after conclusion of the contract, the customer changes a service specification compared to the original specifications (briefing) and this causes additional work or if Octopus has to provide additional services or services outside the standard working time (see section 3) in order to meet the customer's deadlines, Octopus shall be entitled to demand additional remuneration in accordance with the price list.

§ 3 Delivery time, partial delivery, transfer of risk
1. Delivery dates are only binding if Octopus has expressly guaranteed in writing that a specific date will be met. The mere indication of a date is not a guarantee, but a non-binding indication of the expected delivery date.
2. Compliance with firmly agreed delivery dates also presupposes that all necessary approvals, documents to be supplied by the customer, releases, services to be rendered and other obligations of the customer are available or fulfilled in good time.
3. Fixed-date transactions are generally not concluded unless expressly agreed otherwise.
4.The delivery period shall be deemed to have been met if the goods and services have left Octopus or readiness for dispatch has been notified by the time it expires.
5. If non-compliance with an agreed delivery period is due to force majeure, labor disputes, fire, machine breakdown, unforeseen obstacles or other circumstances for which Octopus is not responsible, the delivery period shall be extended for the duration of these events. This also applies accordingly if Octopus is in default of delivery when one of these events occurs.
6. If the delay in performance within the meaning of clause 5 lasts for more than 3 months, Octopus and the customer, or if the delivery date is not met for reasons other than those stated in clause 5, only the customer, are entitled to withdraw from the contract with regard to the delayed delivery. The prerequisite for withdrawal by the customer is that he has set Octopus a reasonable (at least three weeks long) grace period in writing. The assertion of damages instead of performance also requires that the customer has expressly announced in the grace period that he will assert claims for damages.
7. Octopus is entitled to early delivery, as well as to make partial deliveries. Partial deliveries can be invoiced immediately by Octopus .
8. Octopus reserves the right to ensure correct and timely delivery in any case.
9. The customer is obliged to accept the delivery or service within eight days of receipt of the notification of readiness at the agreed place of acceptance.
10. The handover takes place at the registered office of Octopus. If the customer requests delivery to a different location, this shall be at the risk and for the account of the customer. The same applies to any returns. Octopus shall determine the carrier, excluding liability for the choice of the cheapest and fastest mode of shipment.
11. The risk shall pass to the customer upon acceptance of the product, at the latest upon handover to the carrier, even if partial deliveries are made or Octopus has assumed additional services, e.g. transport costs or delivery.
12.If the customer is in default of acceptance or if the delivery is delayed due to other circumstances for which the customer is responsible, the risk shall pass to the customer from the date of notification of readiness. In this case, the purchase price shall also become due on the date of notification of readiness for dispatch. The customer shall bear the costs of storage at Octopus or with third parties. The assertion of further claims for damages against the customer remains unaffected.
13. Octopus will only take out transport insurance for the account of the customer on special written instruction.

§ 4 Warranty, inspection and complaint obligations
1. Deliveries and services must be checked immediately by commercial customers for completeness and freedom from defects. Shortages, incorrect deliveries and externally recognizable damaged goods or services are to be noted on the receipt. All complaints must be reported immediately in writing to Octopus . If the customer does not comply with these obligations, the goods shall be deemed to have been approved, unless the defect was not recognizable during the inspection. If an unrecognizable defect only becomes apparent later, the customer must notify immediately after discovery. If he does not comply with this obligation, the goods shall be deemed to have been approved, even with regard to such a defect.
2. Warranty claims shall not exist if the defect that has occurred is causally related to the fact that previously occurring defects were not reported immediately or the customer has not complied with the regulations on installation, hardware and software environment and use and operating conditions.
3.Insofar as Octopus merely passes on the services of third parties (e.g. photographers, illustrators, service providers, database developers, etc.) to the customer, the liability of Octopus is limited to the fault of selection.
4Insofar as hardware and/or software is sold by Octopus in connection with the actual service, the liability of Octopus is limited to that of the manufacturer and supplier of Octopus. Octopus undertakes, if necessary, to assign the claims to which Octopus is entitled in this respect to the customer.
5If Octopus provides hardware for temporary use in connection with the actual service, this is at the risk and peril of the customer. Octopus is only responsible for intent and gross negligence in this respect.
6. If there is a defect in the delivery or service for which Octopus is responsible, Octopus is initially entitled to remedy the defect or make a replacement delivery at its own discretion. If the customer does not make the defective delivery or service available to Octopus upon request or if he sells or uses the product, all warranty claims shall lapse.
7. If Octopus is not prepared or not in a position to remedy the defect/replacement delivery, if this is delayed beyond a reasonable period of time or if the remedy of the defect/replacement delivery fails in any other way, the customer is entitled to withdraw from the contract or to demand a reduction of the remuneration (reduction) at his discretion. Claims for damages exist only under the restrictions of § 8.

§ 5 Termination
1. If it has been contractually agreed that Octopus is to provide a continuous service, the first usage period shall commence on the date the service is first made available. It extends for at least 6 months to the end of the month.
2. The continuous service can be terminated by the customer at the earliest at the end of the first usage period. Unless otherwise specified in the contract, notice of termination must be sent to Octopus in writing by registered letter at least one month before the end of the usage period.
3. If no notice of termination is given at least one month before the end of the usage period, the contract is automatically extended by a further six months in each case.
4. Octopus is entitled, without prejudice to further statutory rights of termination, in particular to extraordinary termination if the customer is more than four weeks in arrears with due payments in whole or in part or if the customer breaches an essential provision of this contract and - despite a written reminder - repeats the breach of contract or, if the breach persists, does not cease it within ten working days or if insolvency proceedings are opened against the customer's assets or the opening is rejected for lack of assets.
5. The termination must be made in writing.

§ 6 Payment, default of payment
1. Unless otherwise agreed, invoices are payable immediately without deduction. Payment in installments may be agreed for project costs. In this case, the total amount is due for payment as follows: one half upon acceptance of the order, one quarter upon submission of the storyboard or upon completion of the concept phase, one quarter upon handover of the delivery or service.
2. Payments must be made free of costs and charges to the Forte bank account specified on the invoice.
3Bills of exchange and checks are only accepted on account of performance and on the basis of a separate agreement.
4. All prices are subject to value added tax at the statutory rate on the day of invoicing and any applicable social security contributions for artists.
5. If the customer does not pay the invoice amount within 10 days of receipt of the invoice, he shall be in default even without a separate reminder. In the event of default of payment by the customer, Octopus shall be entitled to demand interest on arrears at the statutory rate, but at least 12% per annum. The assertion of further damages caused by default remains unaffected.
6. The customer can only assert rights of retention or declare offsetting against claims of Octopus if his claim is undisputed or legally established.
7. The customer can only assert a right to refuse performance and a right of retention if the payment claim of Octopus and the counterclaim of the customer are based on the same contractual relationship.

§ 7 Retention of title
1. The following retention of title shall apply to all transactions involving the delivery of goods.
2. The delivered goods shall remain the property of Octopus as reserved goods until payment of the remuneration and until all claims already existing from the business relationship and the ancillary claims existing in close connection with the delivered goods (default interest, default damages, etc.) have been settled. The inclusion of individual claims in a current invoice or the drawing of a balance and its recognition shall not cancel the retention of title. If the customer is in default of payment, Octopus is entitled to take back the goods subject to retention of title after declaration of withdrawal and the customer is obliged to surrender them.
3. If goods subject to retention of title are processed by the customer into a new movable item, the processing is carried out for Octopus without Octopus being obliged to do so; the new item becomes the property of Octopus. In the event of processing together with goods not supplied by Octopus , Octopus shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other goods at the time of processing. If goods subject to retention of title are combined, mixed or blended with goods not supplied by Octopus in accordance with §§ 947, 948 of the German Civil Code, Octopus shall become co-owner in accordance with the statutory provisions. If the customer acquires sole ownership by combining, mixing or blending, he hereby transfers co-ownership to Octopus in the ratio of the value of the reserved goods to the other goods at the time of combining, mixing or blending. In these cases, the customer shall store the item owned or co-owned by Octopus , which is also considered reserved goods within the meaning of the following provisions, free of charge.
4. If reserved goods are sold by the customer, alone or together with goods not supplied by Octopus , the customer hereby assigns to Octopus the claims arising from the resale in the amount of the value of the reserved goods with all ancillary rights. Octopus accepts the assignment. If the resold reserved goods are co-owned by Octopus , the assignment of the claims extends to the amount corresponding to Octopus 's share in the co-ownership.
5. If reserved goods are installed by the customer as an essential component in the property, the customer hereby assigns the claims arising from the commercial sale of the property or property rights in the amount of the value of the reserved goods with all ancillary rights. Octopus accepts the assignment.
6.The customer shall only be entitled to resell, use or install the reserved goods in the normal, proper course of business and only on condition that the claims assigned in advance are actually transferred to Octopus . The customer is not entitled to dispose of the reserved goods in any other way, in particular by pledging them or assigning them as security.
7. Subject to revocation, the customer is authorized to collect assigned claims. Octopus will not make use of its own collection authority as long as the customer meets its payment obligations. Upon request, the customer must name the debtors of the assigned claims and notify them of the assignment. Octopus is also authorized to notify the debtors of the assignment itself.
8. The customer must inform Octopus immediately of any enforcement measures by third parties against the reserved goods or the assigned claims, handing over all necessary documents.
9The right to resell, use or install the goods subject to retention of title and the authorization to collect the assigned claims shall expire upon cessation of payment or upon application for or opening of insolvency proceedings or upon implementation of out-of-court settlement proceedings with the creditors regarding debt settlement. In the event of a cheque or bill protest, the direct debit authorization shall also lapse.
10. If the value of the securities granted exceeds the claims to be secured from delivery transactions by more than 10%, the customer may demand retransfer or release up to this limit. Upon settlement of all claims of Octopus against the customer arising from delivery transactions, ownership of the reserved goods and the assigned claims shall pass to the customer.

§ 8 Liability and limitations of liability
1. With regard to delivered hardware, Octopus warrants that it is free of material and manufacturing defects at the time of the transfer of risk.
2. With regard to software, Octopus warrants that the software provided to the customer complies with the program specifications published by Octopus in the relevant data sheet, provided that the software has been installed in accordance with the manufacturer's guidelines. However, the warranty is excluded if the customer makes changes or extensions to the software specified in the contract, unless the customer proves that the errors are not causally related to the changes or extensions.
3. Octopus does not warrant that the software specified in the contract will meet the customer's individual requirements. This applies in particular to the non-achievement of the intended economic success.
4. Insofar as programs, software etc. are made available to the customer as third-party products only against reimbursement of the distribution costs (duplication costs, postage etc.), Octopus assumes no liability for this.
5. Octopus shall only be liable for the loss of data and programs and their recovery within the scope specified in sections 8 and 9 and only to the extent that this loss could not have been avoided by appropriate precautionary measures on the part of the customer, in particular the daily creation of backup copies of all data and programs.
6. Octopus shall only be liable for ensuring that the data used has been checked for viruses using standard virus programs. Any further liability for freedom from viruses is excluded.
7. Octopus is not liable for the completeness, accuracy, timeliness and legality of the information provided, nor for the fact that it is free from third-party rights.
8. The liability of Octopus for damages, regardless of the legal basis (including tort claims), is otherwise governed by the statutory provisions, provided that the damage is based on intent or gross negligence by Octopus, its representatives or vicarious agents. Liability for simple negligence is excluded unless there is a culpable breach of a material contractual obligation or Octopus has assumed a guarantee or a procurement risk. The limitation of liability does not apply to damages resulting from injury to life, body or health of a person and in cases of liability under the provisions of the Product Liability Act.
9. Claims for damages against Octopus are limited to the typical, foreseeable damage. This does not apply to claims based on intentional or grossly negligent behavior by Octopus, its representatives or vicarious agents. The limitation of liability does not apply to damages resulting from injury to life, body or health of a person and in cases of liability under the provisions of the Product Liability Act.
10. If the customer supplies Octopus with materials for the service to be provided, the customer is liable for ensuring that he has all rights of use and exploitation of the supplied materials that are required in the context of the application and use of the service.
11.The customer shall indemnify Octopus against any claims asserted against Octopus by third parties due to the modification, transfer or other utilization of programs, data, information, images, sounds, photographs, etc.

§ 9 Statute of limitations
In the case of purchase contracts, contracts for work and materials and contracts for work and services, the customer's claims against Octopus shall become statute-barred within the following periods:
1. Purchase contracts / contracts for work and materials
(a) Warranty claims of the customer pursuant to § 437 BGB shall become statute-barred in the cases of § 438 para. 1 no. 3 BGB within a period of one year from delivery of the purchased item.
(b) Claims of the customer for damages due to breaches of duty that are not based on defects in the purchased item (§ 280 BGB) shall become time-barred one year after the statutory limitation period begins.
(c) Letters (a) and (b) shall not apply in the cases of § 438 para. 1 no. 1 and 2 BGB, §§ 478, 479 BGB and for claims for damages arising from injury to life, limb or health of a person. Furthermore, they do not apply in cases of intent or gross negligence on the part of Octopus, its legal representatives or vicarious agents.
2Contracts for work and services
(a) Warranty claims of the customer pursuant to § 634 BGB shall become time-barred in the cases of § 634 a para. 1 no. 1 BGB within a period of one year from acceptance of the work.
(b) In the cases of § 634 a para. 1 no. 3 BGB, a limitation period of one year from the statutory commencement of the limitation period shall apply.
(c) Letter (b) applies accordingly to claims of the buyer for damages due to breaches of duty (§ 280 BGB) that do not fall under letter (a) or (b).
(d) Letters (a) to (c) do not apply to claims for damages arising from injury to life, limb or health of a person or in cases of intent or gross negligence by Forte, its legal representatives or vicarious agents.

§ 10 Obligation of the customer to cooperate
1. The customer is obliged to provide Octopus with all information necessary for the provision of the deliveries and services. The customer is also obliged to inform Octopus , also without being asked, of circumstances that may be significant for the provision of the deliveries and services by Octopus and of which the customer can recognize that they are unknown to Octopus .
2. Insofar as Forte and the customer define joint development stages, the customer is obliged to provide all necessary cooperation to comply with these steps. The acceptance and release of the development stages shall be made in writing. If the customer requests changes to the defined development stages, Octopus is entitled to accept these changes only under agreement of an additional fee.
3. Octopus is entitled to terminate the contract with immediate effect if the customer does not fulfill an obligation to cooperate after a reasonable deadline has been set. In the event of termination, Octopus is entitled to charge for all work performed up to that point in accordance with the list of hourly rates. The assertion of further claims for damages remains unaffected.

§ 11 Rights to the services of Octopus
1. Upon acceptance, Octopus transfers the non-exclusive right to use the delivered software for the territory of the Federal Republic of Germany for an unlimited period of time for the contractually agreed purpose; § 7 remains unaffected.
2. Restrictions apply to services purchased by Octopus for the customer, in particular words, music, images or artistic services. These will be communicated to the customer on a case-by-case basis. The customer undertakes to observe these restrictions.
3. The customer is not entitled to process, change or distribute the delivery or service in parts or as a whole, unless this is expressly the subject of the agreed delivery or service.
4.The customer is not entitled to reproduce the delivered software in parts or as a whole on hard disk or similar storage media or to feed it into publicly accessible data networks, unless this is expressly the subject of the agreed delivery or service.
5. The originals of the presentation documents used for the production (exposés, treatments, drawings, plans, graphics, prototypes, etc.) as well as all preliminary stages to the finished delivery or service shall remain the property of Octopus.

§ 12 Applicable law, place of performance, place of jurisdiction
1. These Terms and Conditions and the entire legal relationship between the parties shall be governed by the law of the Federal Republic of Germany with the exception of private international law and the UN Convention on Contracts for the International Sale of Goods.
2. The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of Octopus, provided that the contractual partner is a merchant, a legal entity under public law or a special fund under public law.
3. Unless otherwise contractually agreed, the place of performance shall also be the registered office of Octopus.
Hamburg, February 2015