DAIMLER GROUP NORTH AMERICAN COMPANIES General Purchasing Conditions for IT Part H Individual Software Development, Maintenance and Customization 1 Subject Matter / Scope of Performance 1.1 General The terms and conditions of this Part H of the GPC- IT, and any amendments thereto existing as of the Effective Date, (collectively, "Part H), are hereby made a part of the Contract, together with Part A of the GPC-IT; the Customer s General Terms and Conditions of Purchase; and the applicable Purchase Order, and shall apply to Contractor's design, individual software development, maintenance and customization services for Customer. All capitalized terms not otherwise defined in this Part H shall have the meaning set forth in Part A of the GPC-IT. 1.2 Design, software, installation and maintenance Contractor shall perform the services set forth in the applicable Purchase Order, including, but not limited to, design and development of custom software and customization and configuration of software. The Services shall include, but not be limited to: 1.2.1 Specification and design services consisting of: 1.2.1.1 IT strategy and IT process design; and/or 1.2.1.2 The preparation of a requirements specifications (consisting of a list of requirements and functional and non-functional requirements for an IT system also referred to as a rough concept); and/or 1.2.1.3 The preparation of performance specifications (consisting of a specialist concept, IT concept, test concept and requirements for operation also referred to as target concept, detailed concept, requirement specifications or statement of work). 1.2.2 Design and realization services consisting of: 1.2.2.1 Preparation of software and application design (including low level specification, data processing concept, design documentation, architecture and application design); and/or 1.2.2.2 Development, test and introduction, including installation support ("Realization Services"); and/or 1.2.3 Development and implementation including installation ("Implementation Services"); and/or 1.2.4 Adaptation and parameterization ("Customization Services"); and/or 1.2.5 Software maintenance services and related services. 1.3 Documentation If the Services include Realization Services or Customization Services of a software solution, Contractor shall supply Customer with all Documentation necessary and appropriate for the Services including, but not limited to, installation, use, operation and maintenance Documentation, which shall be in English and in both printed and printable forms. To the extent required for use of the Services in accordance with the Contract, Customer may make copies of the Documentation. The Documentation must be of sufficient quality to enable a user to install and use the Services without support or assistance from Contractor. In addition, all operating manuals must be of sufficient quality to enable an IT specialist (as such term is commonly understood in the industry) to operate and maintain the Services without support or assistance from Contractor. 1.4 Provision / installation Contractor shall assemble, install, integrate and/or configure the results of the Realization Services and Customization Services, so that the Services are ready for use immediately upon delivery to Customer. 1.5 Instruction Contractor shall instruct and support Customer to the extent necessary in Customer s testing and trial operation of the Services. 1.6 Remuneration All payments under this Part H shall be consistent with the payment provisions of Part A.
1.7 Additional services At the request of Customer, Contractor shall perform additional services pursuant to a separate purchase order, which shall be subject to the terms and conditions of this Part H. At the request of Customer, and for a separate fee, Contractor shall conduct training for Customer's employees on the use of the software, and such training shall be listed separately on the Purchase Order. 2 Performance of Services 2.1 Specification and design services 2.1.1 If the scope of Services set forth in the applicable Purchase Order require Contractor to prepare the requirements specifications and/or the performance specifications, Contractor shall ensure that these specifications are in accordance with (a) the technical and quality standards recognized on the Effective Date of this Contract; (b) any and all applicable governmental regulations, requirements or standards in effect on the Effective Date of this Contract; and (c) the Standard for Services. 2.1.2 In preparing the performance specifications, Contractor shall take into consideration applicable standards and requirements of Customer. In the performance specifications, Contractor shall define and quantify all characteristics by means of which the software solution to be realized can be tested and accepted by Customer. Upon Customer's approval in writing, the performance specifications shall form the basis for the Realization Services. 2.1.3 [RESERVED]. 2.2 Design and realization The Services are to be performed and completed by Contractor in accordance with the current performance specifications and the current design requirements. Contractor shall take into consideration all requirements of the performance specifications, which shall be performed and completed by Contractor with suitable technical and specialist solutions in such a way that the Services meet Customer's requirements and are suitable for Customer's purposes. Implementation is carried out in the program and system landscape of Customer and shall guarantee the compatibility of the Services with programs and systems with which it is to be used. 2.3 Adaptations / configurations (customization) The terms and conditions of this Contract shall apply to the customization of software already used by Customer or acquired elsewhere. If necessary, Documentation that Customer possess for the software shall be given to Contractor for use solely in performing the Services. Contractor shall be responsible for requesting any additional information it may need to perform the Services. 2.4 Provision / installation / instruction 2.4.1 The Services are to be delivered in operational condition complete with the agreed scope of functions, the Documentation, and all other documents and accessories required for its intended use. Contractor shall deliver the source code of the software, together with the complete development documentation and the development tools in conjunction with the Services. If the preparation of a specification or design of a software solution is included in the Services, then Contractor shall supply the results to Customer in printed or printable form or electronically on commercially available data storage media. These results are to be presented and explained to Customer by Contractor in a presentation of results, in addition to being provided in printed, printable, and electronic formats. 2.4.2 Contractor shall install the software for test and trial operation pursuant to Cause 9.2. Contractor shall install the system as a productive system after the Services have been accepted pursuant to Clause 9. Contractor acknowledges that the system is critical to Customer s business operations. Configurations and customizations necessary for the installation are to be performed in advance by Contractor or designed by Contractor in such a manner as to avoid any data loss and minimize any disruption to Customer's business operations during or after the installation. Installations that are critical for Customer s business operations shall be performed by Contractor outside of Customer s business hours to the extent reasonable. Customer and Contractor shall agree in writing to time frames in advance. The incorporation of data sets in or by the Services is to be performed by Contractor in compliance with all security measures in a manner that
prevents any data loss and ensures that all data sets can be restored to their current status at any time. 2.4.3 Contractor shall instruct and support Customer regarding the deliverables for the Services, including, but not limited to, providing instruction for administrators and uses of the Services. Contractor s instruction must be of sufficient quality to enable Customer to install and use the deliverables without support or assistance from Contractor. In addition, the training must be of sufficient quality to enable an IT specialist (as such term is commonly understood in the industry) to install, operate and maintain the deliverable without support or assistance from Contractor. 2.5 Quality assurance Contractor shall perform the Services in accordance with the Standards for Services in effect as of the Effective Date. Customer, or a third party retained by Customer, shall have the right to audit Contractor's quality management system and to inspect the Services at Contractor s facilities during normal business hours to verify that the requirements of the Contract are being fulfilled and that the quality and technical conditions of the Services are consistent with the requirements and specifications set forth in the Contract. Customer, or third party retained by Customer, shall also have the right to inspect all of Contractor's documentation relating to the Services. Contractor shall keep Customer informed of its quality management system on a regular basis during the term of this Contract. Upon completion of the Services, the Contractor shall submit to Customer the complete written documentation of the quality management systems and quality assurance procedures applied in the performance of the Services, including quality checks that are performed and their test results. 3 Assistance from the Customer If required for Contractor's performance of the Services, and if requested in writing by Contractor prior to the Effective Date, Customer shall supply the third party software specified by Contractor. 4 Duties of the Contractor 4.1 Service environment / preliminary assessment Prior to performing the Services, Contractor shall test the technical conditions to the extent necessary to ensure that the Services can be performed without disruption and, if necessary, inform Customer about the Services that must be performed at Customer's facilities in order to create the system requirements necessary for using the Services. Contractor and Customer will agree to necessary changes, if any, to Customer s systems and software. The results of Contractor s assessment shall be incorporated as a concept in the performance requirements. 4.2 [RESERVED] 4.3 [RESERVED] 4.4 Additional assistance Customer agrees to use reasonable efforts to assist Contractor as agreed upon in the Contract. 5 Modifications to Services Any changes to the Services shall be governed by Clause 5 of Part A. 6 Project Organization 6.1 Contractor responsibility Contractor remains directly responsible for performance of the Services, even if Contractor subcontracts the performance of some or all of the Services. 6.2 Contact persons Prior to commencing the Services, the parties shall each appoint a responsible contact person and a deputy (collectively, the "Representatives"). If one of the Representatives is prevented from performing his or her duties for an extended period of time, a substitute shall be promptly appointed. The Representatives shall each be authorized to accept and to issue all statements in connection with the Contract on behalf of their respective party. 6.3 Project management / meetings / minutes of meetings
During the performance of the Services, the parties shall hold regular meetings in order to discuss the status of the performance of the Services. Such meetings shall be held at Customer's facilities, or if mutually agreed, at Contractor's facilities. After each meeting, Contractor shall prepare a report documenting the minutes of the meeting and the issues discussed, and submit such report to Customer's Representative within five (5) working days of the meeting. 6.4 Project Decisions If, during the regular meetings, the parties are unable to agree on significant points regarding the Services, the Representatives shall meet separately and try to reach an agreement. If the Representatives are unable to reach an agreement, the matter will be escalated to a senior manager of each party with ability to make decisions regarding the dispute. If an agreement is not reached within 14 days, either party may seek resolution under the dispute resolution provisions of the Contract. 6.5 Employee qualification Qualifications of Contractor's employees shall be in accordance with Clause 3.3 of Part A. 7 Rights of Use 7.1 Ownership of Work Product All materials in whatever from, that emerge during or in connection with Contractor's performance of the Services including, but not limited to, statements of work, specifications, studies, concepts, documentation including installation, user and operating manuals as well as maintenance and development documentation, reports, papers, consulting documents, charts, diagrams and illustrations, as well as individual software, programs, software adaptations and parameterizations, including of the annotated source and objects codes, as well as all interim results originating from this and tools created for this, and/or other results of the Services (collectively the Work Product ) shall be and remain the exclusive property of Customer, subject to Contractor's, its subcontractors', or suppliers' right to use the same to perform the Services under this Contract. To the extent necessary to ensure Customer s ownership rights, Contractor hereby assigns to Customer all right, title and interest in and to the Work Product, including, without limitation, all copyrights, patent rights, and other intellectual property and trade secret rights in such Work Product. Contractor agrees to execute all documents and to take all steps requested by Customer, at Customer's expense, which Customer deems necessary or desirable to complete, perfect or record Customer's ownership of the Work Product. For purposes of clarification and without limiting the foregoing assignment, Contractor hereby assigns to Customer the source code for all software included in the Work Product, together with all related documentation. 7.2 Customer's non-exclusive rights to use Contractor Works All materials owned or developed by Contractor prior to the Effective Date or developed outside the scope of the Services, including, but not limited to, documentation, software, development tools, and all intellectual property rights therein, including, but not limited to, copyrights, patent rights, trade secrets, and know-how, shall be known as "Contractor Works" and Contractor shall be and remain the sole owner of such Contractor Works. Contractor shall grant Customer a non-exclusive, royalty-free, irrevocable, sublicensable, permanent, and perpetual right and license, which shall not be restricted by place or content, in all Contractor Works used in Contractor's performance of the Services or necessary for use of the Work Product. This right and license shall also include Customer's right to duplicate, process, and modify Contractor Works to the extent necessary to use the Work Product and/or the Services as intended. 7.3 Rights to Use Standard Software To the extent third party software is used to perform the Services or included in the Work Product, Contractor grants to Customer or shall acquire for Customer without any additional charge, a non-exclusive, royalty-free, irrevocable, sublicensable, permanent and perpetual right and license to use such third party software as necessary to obtain the benefits of the Services or to fully exercise Customer's ownership rights in the Work Product. Customer is entitled to grant a sublicense of the rights in the third party software to Customer's Affiliates and to sublicense rights to third parties to use the third party software for Customer's benefit.
7.4 Rights of use for customizing services If Contractor customizes its own software or third party software for Customer, such customizations are to be considered Work Product as defined in Clause 7.1, and Customer shall be entitled to the same ownership rights as it receives in all other Work Product. 7.5 Reporting requirement Contractor shall notify Customer in writing prior to the Effective Date of all Contractor Works and third party software, development tools, and other works (such as documentation necessary for development and processing of the results of the Services) to be used in connection with the development of the Work Product. Contractor shall identify which version or versions of the third party software and/or the Contractor works that will be used in the Work Product or the provision of the Services, and will ensure that Customer receives the necessary rights and licenses to use such third party software and Contractor Works as specified in Clauses 7.2 and 7.3. 7.6 Rights of subcontractors, employees, agents or representatives In the event that any subcontractors, employees, agents, or representatives of Contractor are involved in developing or creating the Work Product in providing the Services, Contractor warrants that it has acquired from such subcontractors, employees, agents, or representatives all rights necessary to allow Contractor to grant or assign to Customer the rights specified in this Part H and the Contract. 7.7 [RESERVED] 7.8 Granting of rights for updates and in the event of subsequent performance Corrections, patches, updates, upgrades, new versions, or any similar software, and updated documentation, (referred to collectively as Updates ) supplied by Contractor, which replace or supplement the software that Contractor previously supplied to Customer, shall have the same rights and licenses described in this Clause 7. 7.9 Continued validity Sublicenses that have been issued or other rights of use that have been granted shall not be affected by termination of the Contract. 8 Place / Dates of Delivery The Services are to be delivered to Customer at the agreed place of performance (place of use) on the agreed date. The risk of loss of the Services shall not pass to Customer until such delivery and acceptance. 9 Acceptance of the Services 9.1 Pre-delivery check Before the Services are delivered to Customer, Contractor shall check that the Services fulfill the Contract requirements and include the functions stated in the product description and specifications. 9.2 Test and trial operation and demonstration by Contractor The Services shall be tested by Customer in a test and trial operation to ensure that they are complete and that they function in accordance with the requirements of the Contract and the software's Documentation. Contractor shall provide any support requested by Customer in conjunction with such testing. The acceptance testing for the Services shall only commence after a successful test and trial operation has been performed. The test and trial operation and its results are to be recorded in writing, as well as any deficiencies observed during the test. The record is to be signed by both parties. Customer shall confirm a successful demonstration in writing without a reasonable delay if the requirements of this Contract are satisfied. If the requirements of this Contract are not fulfilled, Customer shall not be required to give this confirmation. Contractor shall correct the defects without delay and demonstrate the Services again in a test and trial operation within the agreed dates and deadlines. When Customer confirms that the trial operation has been performed without any defects that could prevent acceptance testing, the acceptance test shall commence at Customer s facilities, which Contractor shall support to the required extent. If Customer chooses not to perform the trial operation, Contractor shall notify Customer in writing of its readiness to perform the acceptance procedure.
9.3 Acceptance procedure and defect classes Customer shall perform acceptance testing only when the Realization, Implementation and Customization Services have been completed in accordance with the requirements of the Contract. The place, location and scope of the acceptance testing shall be determined by Customer in consultation with Contractor. The place of the acceptance testing shall be the Customer facilities where the Services will be deployed, unless otherwise agreed to by the parties. As part of the acceptance testing, Contractor must furnish proof that the Services and deliverables fulfill the Contract requirements under conditions similar to production operations. In the acceptance testing, Customer will test the functions of the Services and deliverables against the performance specifications and other agreed specifications. The acceptance testing does not constitute productive use of the Services. Defects in the Services that are discovered during the acceptance test shall be categorized by Customer into the following classes: 9.3.1 Class 1: Software or system failure The Services do not function at all or a defect or several defects occur that make it impossible to conduct a complete acceptance testing or hinder the acceptance testing to such an extent that complete acceptance is impossible. 9.3.3 Class 2: Software or system function(s) fail(s) Most of the primary and peripheral functions of the Services are fully functional. One or several primary functions only function with significant restrictions or workarounds. Individual peripheral functions do not work at all or only with significant restrictions or workarounds. The majority of the Services functions and can be meaningfully tested. 9.3.3 Class 3: Software or system function(s) is (are) significantly impaired All primary functions of the Services are fully functional. Individual primary or peripheral functions work with only insignificant restrictions or workarounds. The Services as a whole can be fully and meaningfully tested. 9.3.4 Class 4: Software or system function(s) is (are) only insignificantly impaired All major and peripheral functions of the Services are fully functional. Individual functions can be tested with insignificant restrictions or workarounds. 9.3.5 Supplementary regulations on the categorization Contractor can object to the assignment of a defect class if Contractor can show that the Services fulfill the Contract requirements in this respect or the defect is properly assigned to another class. 9.4 Refusal of acceptance Customer shall not be obligated to accept the Services, unless the Services are complete and in accordance with the requirements of the Contract, without significant defects. Customer is entitled to refuse to accept the Services and discontinue the acceptance testing if a defect of Class 1 and/or 2 or several defects of Class 3 are discovered, if the Services do not comply with the Contract, or if the Services are materially unfit for use. If Class 3 defects are present in the Services, Customer may refuse to accept the Services if from an overall perspective the defects are more than insignificant defective, for example it operation with the defects would seriously impede smooth and trouble-free work. If the Services are defective, Contractor shall correct the defects within a reasonable time taking into consideration the interests of Customer, in particular by adhering to agreed dates and deadlines. After Contractor corrects the defects, the Services are to be presented again for acceptance. If Contractor does not correct the Services by the agreed upon deadline, Contractor shall be in default of the Contract. Customer's refusal to accept the Services shall not entitle Contractor to an extension of time to complete the Services. 9.5 Acceptance statement Customer shall issue a written statement of acceptance when Contractor has determined that all the Services are in conformance with the requirements of the Contract and do not contain any defects. The price and performance risk passes to Customer with this acceptance statement. The Services are only accepted when Customer has
signed the acceptance record for the Services as a whole together with the acceptance statement. Contractor is obligated to correct defects that Customer has agreed are minor within a reasonable time. With Customer's agreement, Contractor may perform such corrections with Contractor s supply of Updates. If Customer accepts the Services despite identified defects then these defects are to be recorded in the acceptance record and corrected immediately by Contractor. 9.6 Partial Acceptance The Services are not subject to partial acceptance. Contractor shall not have successfully completed any Services until Customer issues an unconditional acceptance of all Services. 9.7 [RESERVED] 10 Warranty and Defects Contractor agrees that the Services shall be provided in accordance with the warranty and defect clauses set forth in Part A of the GPC-IT. Customer shall assert all warranty claims regarding the Services during the Warranty Period, or within a reasonable time period thereafter. Contractor shall ensure that the Services are compatible with all programs that Customer specifies as of the Effective Date, both those that are commercially available and those that require custom interfaces. Contractor, at its own expense, shall be responsible for ensuring that the Services are compatible with all standard, commercially available software packages specified by Customer at all times. In the event that custom interfaces are required for any of Customer s programs, Customer shall notify Contractor anytime a change to software results in a compatibility defect and provide Contractor with a reasonable opportunity to correct the compatibility defect. If Contractor corrects the defect, Contractor shall be entitled to an equitable pricing adjustment for the work involved in correcting the compatibility defect for the custom interface. If Contractor fails to correct the defect within a reasonable time, Customer shall be entitled to any and all remedies for defects that are available under this Contract, including, but not limited to termination. 10.1 Subsequent performance Contractor shall correct defects by supplying Customer with an improved version of the Services that does not have such defect. As a short-term solution, Contractor may, in consultation with Customer, provide a suitable replacement or workaround to temporarily relieve the effects of the defect. Contractor's duty to correct defects completely within the time required by the Contract remains unaffected by this. The same shall apply to defects in the Documentation. Customer shall provide reasonable assistance to Contractor in analyzing and correcting defects. If any defects in Class I or in Class 2 are discovered during the Warranty Period, Contractor shall correct these defects with a reasonable period of time, taking into account the severity of the defect and the impact of Customer's business. 10.2 Reduction, termination In the event that Contractor is unable to successfully correct the defect(s) within the time permitted by the Contract, Customer may, at its option, terminate the Contract, or the applicable Purchase Order, pursuant to Clause 11 of Part A, or equitably reduce the price paid for the Services. If Customer elects to reduce the price paid for the Services, Customer shall be entitled to a refund of the Services price pro-rated based on a five year straight line depreciation. 10.3 Retention and setoff of payments If Contractor does not fulfill its duties, Customer may withhold payment for the Services until Contractor has fulfilled its duties in full in accordance with the Contract. Customer may deduct its claims against Contractor for breaches of contract from payments to Contractor. 10.4 Further compensation for damages The remedies and compensation Customer receives for rescission shall not limit or supersede any other rights or remedies Customer may have as a result of the defect, including, but not limited to Customer s termination rights set forth in Clause 11 of Part A and Customer's rights under this Contract and common law. 11 Data Protection, Information Security and Data Backup Measures Contractor shall comply with the generally accepted principles of data processing when
performing the Services. These include, for example, protection against malware (e.g. Trojan Horses, viruses, spyware, etc.), information security and data backup measures, compliance with data protection regulations and all precautions and measures in accordance with the Standard for Services. The appendix Data Protection and Information Security for the GPC-IT Individual Software Development and IT Services shall additionally apply for data protection and information security. conformity with the contract, then the contractor shall have no or only a reduced claim to the agreed remuneration if the customer is entitled to a claim for compensation of damages for that reason. The customer can offset claims for the compensation of damages against claims of the contractor. The procedure pursuant to clause 5 of the GPC-IT (Part A) shall apply for changes to contract services. 12 [RESERVED] 13 Software Maintenance If the Contract includes software maintenance services, such services shall be governed by Part F of the GPC-IT, and Contractor shall maintain the Services in accordance with the standards set forth in Part F, free of malfunctions, and shall correct any defects that arise as required by Part F of the GPC- IT and the Contract. In the event that any software purchases under this Contract are terminated or rescinded, the software maintenance services for such any software shall end automatically, but termination of the software maintenance services shall not necessarily terminate or rescind the software purchases. Notwithstanding the foregoing, after the Warranty Period has expired, it shall only be possible to terminate the software maintenance services and the purchase of any software may not be terminated or rescinded. 14 Special Provisions in the event of Services under a Service Contract If Contractor will support Customer in or produce the design of a specification (e.g. specification book or performance specifications) or design concept, this can be expressly provided as a service under a service contract for in the contract by way of exception on a case-by-case basis. In this event, the contractor shall always be obliged to carry out its best possible, professional work. The stipulations in clauses 9.1 and 9.2 shall apply accordingly for the way in which these services are delivered. The customer shall audit the service delivered in this way by the contractor to check whether it is according to specification. If the services are not to specification, the customer is entitled to a right of subsequent performance. If the service performed is not in