Country Specific Terms Germany

Contract

Clause

Modification/Supplement

Multi-Country-Services Master Agreement (“MCSA”) OR Multi-Country-Sales Agreement Products & Services (“MCSAPS”)

3.1 of the MCSA and 5. of the MCSAPS

Shall be deleted and replaced by the following clause:

Prices for Services will be agreed upon and set forth in writing in a mutually agreed upon Order Form. For Services, Insight is entitled to adjust the prices or charges quoted for the Services at its reasonable discretion in accordance with Section 315 of the German Civil Code (“BGB”) regarding the costs that are relevant for the development and the operation of the Services but no more than twice a year. This is particularly relevant for technology costs (e.g., operation of data centers, hardware, technical service) and costs for operating the Services (e.g., licenses, especially software licenses), personnel and service costs, energy, overhead costs as well as government-imposed fees and levies, taxes, and contributions. In the event of any such price adjustment, Insight will adjust the prices at its reasonable discretion within the meaning of Section 315 of the German Civil Code (BGB), whereby the ratio of Service and consideration may not change to the disadvantage of the Client. The price adjustment is limited to the scope of the Service changes or cost changes and can lead to both an increase and a reduction in the prices to be paid by the Client. When increasing or decreasing prices, Insight will take into account whether the change can be offset by reduced or increased costs in another area. Section 315 BGB remains unaffected.

Insight will inform the Client of the change in writing within a reasonable period of time before the adjustment takes effect. In the event of an adjustment that does not exclusively benefit the Client, the Client has the right to terminate respective Order Form in writing without observing a notice period at the time the adjustment comes into effect.

3.2.1.

Clause 3.2.1. shall be deleted and replaced by the following clause:

Each Client Affiliate shall be subject to Insight’s written credit approval. Client and/or Client Affiliate shall furnish to Insight all financial information reasonably requested by Insight from time to time for the purpose of establishing or continuing Client’s or Client Affiliate’s credit limit. Any Order Form issued is also subject to credit approval by Insight. Insight retains the right to decline or extend credit (if applicable) and /or credit approval and to require that the applicable purchase price be paid prior to performance of Services based on changes in Insight’s credit policies or Client’s financial condition and/or payment record. In the event of a late payment by the Client or of a Client Affiliate, Insight reserves the right to charge the statutory interest rate for default interest for transactions between companies (currently 9% above the prime rate; Section 288 (2) BGB per month).

Notwithstanding the foregoing, Insight shall be entitled to payment of a lump sum of forty Euro (40€) in the event of default. The Client is responsible for costs and expenses incurred for the collection through the bailiff or private debt collection agency if and to the extent that these costs are to be expected based on the usual course of events. Notwithstanding the foregoing, Client shall have the right to prove that collection took place at lower costs than those invoiced.

4. of the MCSA and 7. of the MCSAPS

Shall be supplemented by the following:

If Services are subject to an acceptance according to applicable law, the following conditions shall apply: At Insight’s request, partial acceptance tests must be carried out for parts of the Services that can be used independently or for parts of the Services on which further Services are based if the parts of the Services to be accepted can be tested and accepted separately. Once all parts of the Services have been accepted, the last partial acceptance is also the final acceptance. Notwithstanding the above, Services shall also be deemed to have been accepted if: (i) the Service has been provided, (ii) Insight has informed the Client of this with reference to the deemed acceptance in accordance with this clause and requested its acceptance, (iii) twelve (12) business days have passed since the Service was provided or the Client has started using the Service (and in this case, six (6) business days have passed since delivery or installation) and (iv) the Client has failed to accept the Service within the periods indicated above for a reason other than a defect reported to Insight that makes the use of the Service impossible or significantly impairs it.

5. of the MCSA and 8. of the MCSAPS

Shall be deleted and replaced by the following clause:

Insofar as the provisions of Section 377 of the HGB (Handelsgesetzbuch, German Commercial Code) apply to the procurement of Products, Client is only entitled to claim material defects if the Products have been properly inspected and a complaint has been made without delay to Insight.

Client shall notify Insight of any occurring quality and material defect (“Sachmängel”) without undue delay in writing, in a comprehensible form, providing any information expedient for remedying the defects. If there is a material defect, Insight is entitled to remedy the defect through subsequent performance at its discretion, i.e., either by providing a new service free of defects or by rectifying the defect. Client’s remedy for non-conforming Services discovered during the warranty period shall be the re-performance of any deficient Services at Insight’s expense (“Nacherfüllung”). If Insight is unable to remedy any deficient Services within 30 days of notice or such additional time as may be agreed upon by the Parties, Insight will, at its option, provide a credit or refund of any fees paid for the specific non-conforming Services (“Service Credits”). No re-performance will extend any warranty period. To the extent warranty rights are subject to the Services, Client’s warranty claims based on quality and material defects shall become time-barred after twelve (12) months. This also applies to claims due to defective title, unless the defect consists of a right in rem of a third party. In this case, the claim expires in five (5) years. The start of the limitation period is governed by the statutory provisions under applicable law. The statutory provisions regarding the limitation period apply if Insight has committed breaches of duty intentionally or through gross negligence. The same also applies to damages resulting from injury to life, body, or health as well as to claims under the Product Liability Act or in the event of the assumption of an assurance within the meaning of Section 276 Para. 1 of the BGB, a guarantee, or, in the case of fraudulent concealment, of a defect.

If Services are subject to an acceptance according to applicable law, and Client requests subsequent fulfilment due to a defect, Insight shall have the right to choose between rectification or replacement of the Services, if applicable. The Client shall support Insight to the required extent in the rectifying of any defects. The Client’s right of self-remedying defects shall be excluded (Section 637 BGB). If Insight is unable to remedy any deficient Services within 30 days of notice or such additional time as may be agreed upon by the Parties, Insight will, at its option, provide a credit or refund of any fees paid for the specific non-conforming Services. Any credits issued to Client by Insight for any reason must be applied by Client within one (1) year from the date the credit is issued. If not used within such period, Service Credits will automatically expire.

Claims for damages, if any, are subject to clause 9 (“Limitation of Liability”). All other claims based on quality or defects are excluded. Insight does not owe any expenses for rectifying quality and material defects by third parties or any contractual costs.

6. of the MCSA and 9. of the MCSAPS

Shall be deleted and replaced by the following clause:

Neither Party may make any commitments for or create any obligations on behalf of the other Party without that Party’s prior written consent. Regarding the obligations under Country Specific Terms Germany or any Order Form, the Client and any Client Affiliate are jointly and severally liable in accordance with Section 421 BGB.

7. of the MCSA and 10. of the MCSAPS

Shall be supplemented by the following:

“Confidential Information” shall also include, but is not limited to, trade secrets (as defined under the German Federal Trade Secret Act (“Geschäftsgeheimnisgesetz”). For the avoidance of any doubts, if Confidential Information does not meet the requirements of a trade secret within the meaning of the German Federal Trade Secrets Act, this information is still subject to the confidentiality obligations under this Agreement.

9. of the MCSA and 12. of the MCSAPS

Shall be deleted and replaced by the following clause:

9.1 Insight’s liability for damages, irrespective of the legal basis, in particular due to impossibility, delay, defective or incorrect delivery or performance, breach of contract, breach of obligations during contract negotiations, and tort, is limited in accordance with this clause 9, insofar as fault is involved (“Verschulden”).

9.2 Insight is not liable in the event of simple negligence unless it involves a breach of essential contractual obligations (“Kardinalpflichten”). Such essential contractual obligations are to provide timely Service or deliver Products on time, free from legal defects and defects that significantly impair the functionality or usability of the Service or the Product, as well obligations to provide advice, protection, and care that are intended to enable the Client to use the Service or the Product in accordance with the Agreement or to protect the life or limb of the Client or its staff or to protect its property from significant damage.

9.3 Insofar as Insight is liable for damages on the merits in accordance with this clause 9, this liability is limited to damages that Insight foresaw as a possible consequence of a breach of contract when the Agreement was concluded or that Insight should have foreseen if it had exercised due care. Indirect damages and consequential damages that are the result of defects in the delivered Products are only eligible for compensation if such damage is typically to be expected when the delivered Product is used as intended. Clause 9.3 does not apply in the event of intentional or grossly negligent conduct on the part of the members of Insight's executive bodies or senior executives.

To the extent that Insight provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of Services owed by Insight, this is done free of charge and to the exclusion of any liability, subject to the exceptions following from 9.6.

9.4 Insight is not liable for the loss of data to the extent that the damage is due to the Client failing to carry out data backups and thereby ensuring that lost data can be restored with reasonable effort.

Insight assumes no warranty or liability in the event of unauthorized changes to Services by the Client or third parties. In particular, Insight shall not be liable for deletions, corrections, changes, damage, loss, or failure to store data carried out or initiated by the Client. This exclusion of liability also includes software viruses and any other harmful computer code, files, scripts, or programs that may be contained in the stored data. Furthermore, Insight assumes no liability for errors that are attributable to improper operation.

9.5 The above liability exclusions and limitations apply to the same extent in favour of Insight’s executive bodies, legal representatives, employees, subcontractors and other third parties.

9.6 The limitations of this clause shall not apply to Insight’s liability for intentional conduct, for guarantees given by Insight, for injury to life, limb, or health under the Product Liability Act and under other mandatory statutory liability provisions.

11.3 of the MCSA and 14.3 of the MCSAPS completed

Shall be supplemented by the following clause:

Either Party shall have the right to extraordinary relief to terminate the respective Order Form without notice for good cause (“Kündigung aus wichtigem Grund”) in accordance with Section 314 BGB. If the individual assessment of the Parties’ interest reasonably allows for continuation of the framework agreement MCSA or the MCSAPS, the MCSA or the MCSAPS shall remain unaffected. If Section 648 BGB is applicable and Client terminates the Agreement in accordance with Section 648 sentence 1, Parties agree that, in deviation from Section 648 sentence 3 BGB, it is assumed that Insight is entitled to 15% of the agreed remuneration attributable to the part of the work not yet performed. Notwithstanding the aforementioned, Parties may object to these numbers by proving proof for higher or lower expenses.

12.8 MCSA and 15.10 of the MCSAPS

Shall be deleted and replaced by the following clause:

Both Parties agree that, during the Term and for a one-year period after the termination or expiration of the applicable MCSA or MSCAPS, neither Party will directly or indirectly solicit, offer employment or hire any current or former employee or consultant of the other Party who was directly involved in the performance of this Agreement (“Non-Solicitation Agreement”).

In each case of a breach of the Non-Solicitation Agreement, the Client shall owe liquidated damages in the amount of 50.000€. This provision does not restrict the right of either Party to solicit or recruit generally in the media and does not prohibit either Party from hiring an employee of the other who answers any advertisement or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by the hiring party.

Insight Recurring Services Agreement (“RSA”)

3.4.

Shall be deleted and replaced by the following clause:

The Client shall, in a timely, complete manner and free of charge, provide Insight all resources, data, information and documents deemed necessary by Insight to perform the Services. Insight is entitled to presume that all such resources, data, information and documents are complete, correct and up to date, except where such are obviously incomplete, incorrect or no longer up to date. Insight will rely on the specific instruction, information and/or other software or product provided by Client. Insight is not responsible for default or delays caused by Client’s failure to provide accurate instructions, information, access to facilities or suitable product or application environment. The Client will take appropriate measures to ensure that Insight’s employees or subcontractors are not integrated into the Client’s operations. The Client has no right to issue instructions to Insight employees and/or subcontractors. The Client’s right to give instructions within the framework of the Order Form or work contracts (“Werkverträge”) can only be exercised towards a legal representative or a person designated by Insight as authorized to represent them. Client hereby grants Insight or any of Insight’s employees, agents, subcontractors or authorised representatives the right to access for the purpose of the performance of the Services access to any Client’s premises subject to the Services (“Site Visit”). Insight must notify Client of such Site Visits reasonably in advance.

4. to 6.

Shall be deleted and amended clause 9. of the MCSA and 12. of the MCSAPS shall apply (see above).

10.3

Shall be deleted and replaced by the following clause:

Adjustments, amendments, and additions to the Services as well as measures that serve to identify and eliminate malfunctions will only lead to a temporary interruption or impairment of accessibility if this is necessary for technical reasons. Insight monitors the basic functions of the Services on a daily basis during business week and business hours subject to local time and not on public holidays in Germany. Insight will verify and ensure proper functioning of the Services during business days (at Insight) between 9:00 a.m. and 6:00 p.m local time (Germany). In the case of serious errors - which make it impossible to use the Services or significantly restricts their use - maintenance shall be carried out within 24 hours of the Client becoming aware of it or being informed. The Client will be notified immediately of the maintenance work, and this will be carried out in the shortest possible time. If it is not possible to resolve the error within 24 hours, the provider shall notify the Client before the end of the 24 hours, stating the reasons and the period of time that is expected to be required to resolve the error. The average annual availability of the agreed Services is 98.5%, including maintenance work. However, availability may not be interrupted or impaired for longer than two consecutive calendar days.

10.5. and 12.

Shall apply subject to clause 9 of the MCSA or the MCSAPS, as applicable, subject to the modifications set out above.

16.

Shall apply subject to clause 11 of the MCSA or the MCSAPS, as applicable, subject to the modifications set out above.

Insight Recurring Services Order Form: Flex for Devices

3.

Shall be deleted and replaced by the following clause:

The Client may terminate this Order Form at any time in accordance with Section 648 sentence 1 BGB to the extent applicable. The Parties agree that, in deviation from Section 648 sentence 3 BGB, it is assumed that Insight is entitled to 15% of the agreed remuneration attributable to the part of the work not yet performed. Notwithstanding the aforementioned, Parties may object to these numbers by providing proof for higher or lower expenses.

11. and 12.

Shall be deleted and replaced by the following clause:

Insight is also entitled to adjust the prices at its reasonable discretion in accordance with Section 315 of the German Civil Code (BGB) to those costs that are relevant for the provision of our services no more than twice a year. What is particularly relevant are the costs for technology (e.g., operation of data centers, hardware, technical service) and costs for operating the services (e.g., licenses, especially software licenses), personnel and service costs, energy, overhead costs as well as government-imposed fees and levies, taxes, and contributions. In the event of such a price adjustment, Insight will adjust the prices at its reasonable discretion within the meaning of Section 315 of the German Civil Code (BGB), whereby the ratio of service and consideration may not change to the disadvantage of the Client. The price adjustment is limited to the scope of the service changes or cost changes and can lead to both an increase and a reduction in the fees to be paid by the Client.

19.

Shall be deleted and replaced by the following clause:

Unless either party gives 90 days’ written notice of non-renewal prior to end of the Minimum Term, all Services will be automatically renewed on a month-to-month basis up to a maximum of one year. Last agreed prices shall continue to apply, subject to Clause 11 and 12.

Client Owned Inventory Storage Agreement (United States, United Kingdom and Germany)

6.

Shall be deleted and replaced by the following clause:

If Hardware stored under this COI Storage Agreement is intended for export, it will be subject to export regulations. Client accepts full responsibility for, and agrees to comply fully with, all manufacturer restrictions and export regulations, including obtaining export licenses and the payment of all applicable costs, duties, and taxes. Client shall indemnify Insight for any claims, losses, costs, liability, and charges, including reasonable legal fees, incurred by Insight because of Client’s breach of this provision.

7.

Shall be deleted and replaced by the following clause:

Insight carries property insurance against standard all-risk perils, including theft of property while in Insight’s possession, subject to limitations for flood and earthquake.

Insight disclaims responsibility or liability for loss of Hardware or loss or misuse of data contained on any Hardware that is lost in transit by the carrier when the Hardware is shipped from the Client’s location (including Client’s end users) to Insight for repair or disposal subject to the limitations set out in amended clause 9. of the MCSA and 12. of the MCSAPS (see above).

Shall be deleted and replaced by the following clause:

(i) Insight’s liability for damages, irrespective of the legal basis, in particular due to impossibility, delay, defective or incorrect performance, breach of contract, breach of obligations during contract negotiations, and tort, is limited in accordance with this Clause 9 insofar as fault is involved.

(ii) Insight is not liable in the event of simple negligence unless it involves a breach of material contractual obligations. Material contractual obligations include timely performance and careful storage of the Hardware that more than insignificantly impairs functionality or usability of the stored Hardware, as well as obligations to provide advice, protection, and care that are intended during the storage term to enable the Client to use the delivery item or to protect the life and limb of the Client or its staff or to protect its property from significant damage.

(iii) Insofar as Insight is liable for damages on the merits in accordance with this Clause 9, this liability is limited to damages that Insight foresaw as a possible consequence of a breach of contract when the Contract was concluded or that Insight should have foreseen if it had exercised due care (“vertragsüblicher vorhersehbarer Schaden”). Indirect damages and consequential damages that are the result of defects in the delivery item are only eligible for compensation if such damage is typically to be expected when the delivery item is used as intended. The above provisions of this paragraph (iii) do not apply in the event of intentional or grossly negligent conduct on the part of the members of Insight's executive bodies or senior executives.

(iv) To the extent that Insight provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by Insight, this is done free of charge and to the exclusion of any liability, subject to the exceptions in paragraph (vi) of this Clause 9.

(v) The above liability exclusions and limitations apply to the same extent in favor of Insight’s executive bodies, legal representatives, employees, and other vicarious agents.

(vi) The limitations of this Clause 9 shall not apply to Insight’s liability for intentional conduct, for guarantees (“Garantien”) given by Insight, or for injury to life, limb, or health under the Product Liability Act (“Produkthaftungsgesetz”) and under other mandatory statutory liability provisions.

10.

The following additional terms shall apply:

The following provisions of Section 6. of the German Commercial Code (“Handelsgesetzbuch”, hereinafter referred to as “HGB”) shall not apply: Section 470, 472, 473, 475 HGB.

Insight shall exercise the due care and diligence of a prudent warehouse keeper (“verkehrsübliche Sorgfalt eines ordentlichen Lagerhalters”) during storage in Germany and throughout the Term. If the stored goods are fungible goods (“vertretbare Sachen”) within the meaning of Section 91 BGB, the Client, by accepting the Terms of Storage, expressly consents to the commingling in accordance with Section 469 HGB.

For hardware stored in Germany, if Insight wishes to invoke its right of lien (“Pfandrecht des Lagerhalters”) in accordance with Section 475 b HGB, the Hardware which lies in its possession by way of selling the same, it is deemed sufficient notification of the sale to send the Client to last known address made known to Insight, the intention to auction its items and the date and time said auction is to take place. The auction may not take place prior the end of one month after notification has been made.

The limitation and the period for claims following from and related to this Client Owned Inventory Storage Agreement is governed by Section 439 HGB.

Client Supplied Inventory Storage Agreement (United States, United Kingdom and Germany)

4.

Shall be deleted and replaced by the following clause:

Client assumes responsibility for all shipping and delivery charges including, without limitation, excise, import or export, customs, duties, costs tariffs, taxes and transport insurance or similar fees (and the costs of collection of the foregoing items). Outbound freight from the warehouse to Client’s designated end location will be charged at the time shipment occurs and at the rate then in effect for Client’s requested shipping method. Client agrees to issue a purchase order or provide other payment satisfactory to Insight for such charges prior to shipment of the CSI. Section 470 HGB shall not apply.

5.

Shall be deleted and replaced by amended clause 6 Client Owned Inventory Storage Agreement (see above).

6.

Shall be deleted and replaced by the following clause:

Client shall retain title to CSI Hardware stored in accordance with this CSI Storage Agreement and is responsible for calculating and paying all applicable taxes, duties, or assessment imposed by a taxing authority in connection with CSI while in the warehouse. Client shall procure and maintain adequate insurance coverage for all CSI stored at the warehouse at Client’s sole and separate expense.

Insight disclaims responsibility or liability for loss of Hardware or loss or misuse of data contained on any Hardware that is lost in transit by the carrier when the Hardware is shipped from the Client’s location (including Client’s end users) to Insight for repair or disposal subject to the limitations set out in amended clause 9. of the MCSA and 12. of the MCSAPS (see above).

8.

9.

Shall be deleted and replaced by amended clause 9 Client Owned Inventory Storage Agreement (see above).
Additional Clause 10 of the Client Owned Inventory Storage Agreement (see above) shall apply.