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Special terms and conditions
for the loan of test positions (Germany)

1. loan agreement

1.1 Components of the contract. Unless expressly agreed otherwise in writing, TIM AG (“lender“) shall lend test items to its customers (“borrower“) exclusively on the terms and conditions stated in the respective test item offer (“offer“), on these lending terms and conditions and in addition to the General Terms and Conditions of TIM AG (“GTC“).

1.2 Subject matter of the contract.Test setups” are hardware components from one or more manufacturers, or systems of such hardware components (including the necessary operating system software in each case), which are generally assembled by the lender in flight cases and on special transport pallets and provided to the borrower at short notice and on loan for test purposes.

1.3 Conclusion of contract. A “loan contract” is concluded when the borrower unconditionally accepts the offer, the loan conditions and the GTC.

1.4 Order of precedence. In the event of contradictions, the offer shall take precedence over the rental conditions and the offer and rental conditions shall take precedence over the GTC.

1.5 Cancellation. The lender must be notified in writing (by e-mail) of any cancellation of the test provision no later than 4 working days before the start of the agreed test provision period. In the event of later cancellations, transport costs already incurred or which can no longer be cancelled by the lender shall be invoiced in full as well as 50% of the agreed other costs.

2. Transfer for use free of charge

2.1 Transfer for use. The lender shall provide the borrower with the test setup, including accessories and means of transport, for the test setup period (“transfer period“), in each case as described in the offer. Times of delivery and return delivery are not included in the transfer period.

2.2 Intended use. The test provision is to be used exclusively for test purposes or demonstrations and therefore not for use in productive environments or for data migration.

2.3 Extension of the transfer period. An extension of the transfer period is only possible in exceptional cases and must be requested in writing (by e-mail) from the lender at least 3 working days before the end of the transfer period. If an extension is not possible, the borrower must make the goods available for collection at the agreed time.

2.4 Scope of delivery. The test setups are provided with the required, pre-installed operating system software, but not with application software. Deviating from this, servers that are part of a test installation are provided without operating system software. Media (data cartridges) and other consumables are not included in the scope of the test installation and must be ordered separately.

2.5 Costs. The licence is provided free of charge. The borrower shall only bear the transport costs specified in the offer and the processing fee specified therein

3. despatch

3.1 Delivery, return delivery. The delivery and return delivery of the test set-up shall be carried out at the expense of the borrower by a transport person commissioned by the lender to or from the delivery address specified in the offer (“place of installation“). Delivery shall be made from the lender’s warehouse or, in the case of test setups, directly from the manufacturer’s warehouse or its branch or office (each referred to as “dispatch warehouse“) to the installation site. The return delivery shall also be made by a transport person commissioned by the lender from the installation site back to the dispatch warehouse.

3.2 Transfer of risk. The risk is transferred to the borrower when the transport person hands over the test setup to the borrower at the installation site. The borrower shall bear this risk until the test setup is collected from the installation site by the carrier.

3.3 Dispatch. Test setups are usually shipped in special shipping devices in Euro pallet dimensions. The borrower must therefore ensure that there is sufficient space at the installation site.

3.4 Obligation to inspect. The borrower must inspect the test set-up immediately upon arrival at the installation site and immediately notify the lender of any defects or damage of any kind to the test set-up or its packaging.

3.5 Forwarding. The borrower is obliged to operate the test set-up exclusively at the place of installation and to change this only with the prior consent of the lender.

4. Utilisation of the test position

4.1 Risks. The borrower uses the test position at his own risk. In particular, it is the borrower’s responsibility to take appropriate protective measures and security precautions to prevent data loss or unauthorised access by third parties.

4.2 Conditions of use. The borrower must ensure that the spatial and technical requirements for the use of the test site are met. The test facility must be used by professionally qualified personnel. The lender does not owe any instruction or training in the use of the test facility. The borrower must observe the technical and other instructions for commissioning and/or operating the test facility enclosed with the test facility.

4.3 Rights of use. The Lender warrants that it has acquired sufficient rights of use to the respective operating system software to grant the Borrower simple, non-transferable rights of use thereto, limited in time and space to the duration of the loan, in connection with the respective test installation. The borrower undertakes to comply with the terms of use and licence conditions of the manufacturer of the operating system software.

4.4 Proper handling. The borrower shall treat the test installation with the care of a prudent businessman, maintain it in a serviceable condition and protect it appropriately against damage, destruction and theft. The borrower shall

4.5 Labelling. The lender shall mark the test positions by labelling them as its property or the property of the respective manufacturer. Neither this labelling nor manufacturer information, serial numbers, seals, software licence information etc. may be removed or changed by the borrower.

4.6 Malware. The lender expressly draws the borrower’s attention to the fact that test versions are handed out to various borrowers and it is therefore possible that the test version provided or parts thereof have already been used by previous borrowers. The lender also points out that it does not delete data or test for viruses, malware, spyware, other malware or other damaging components (collectively “malware“) after a test installation has been returned. It is therefore the Borrower’s responsibility to ensure that there is no third-party data and, in particular, no malware on the test site before using it.

4.7 Insurance obligation of the borrower. The hirer shall be obliged to insure the test equipment appropriately against damage, destruction and theft at its own expense during the hire period and to provide the lender with evidence of the conclusion and existence of the insurance and the inclusion of the test equipment in the insurance on request. The insurance must cover at least the value of the test equipment specified in the offer.

4.8 Transfer to third parties. The borrower may not transfer the test equipment to third parties, unless they are service providers of the borrower who support him in the contractual use of the test equipment or an end customer of the borrower named in the offer. In such cases, the borrower shall pass on its obligations under the loan agreement to the service provider or the end customer in accordance with the contract.

4.9 Modifications. The borrower may not make any changes to the hardware of the test setups, the operating systems, the accessories, the configuration or the mounting in and on the means of transport (flight cases, pallets), unless this is absolutely necessary for carrying out the intended tests. In any case, the borrower must return the test setups in the same condition as they were originally received.

4.10. Loss of data. The borrower must ensure that an appropriate back-up routine is set up for the data and programmes installed by him on the test set-up and that data is backed up during the test procedures. The Lender shall therefore not be liable under any circumstances for any loss of data that occurs at the Borrower’s premises in the course of using the test equipment.

4.11. Data deletion. The borrower must completely delete all data and programmes uploaded by him to the test station before returning the test station in such a way that it is not possible to restore the data and/or programmes. Under no circumstances may the borrower install or leave harmful data or programmes (such as viruses, malware, spyware or similar) on the test site.

5. Warranty and liability

5.1 Suitability for specific purposes. The lender makes no promise, promise, guarantee, warranty or other statement as to whether the test position is suitable for the objectives or purposes pursued by the borrower.

5.2 Lender’s warranty. If the lender fraudulently conceals a defect of title or a defect in the loaned item, it is obliged to compensate the borrower for the resulting damage. Otherwise, any warranty for material defects or defects of title is excluded.

5.3 Liability of the lender. The lender is only liable for intent and gross negligence. This does not apply to injury to life, limb or health. Liability under the Product Liability Act remains unaffected. Insofar as the liability of the lender is excluded or limited, this shall also apply to the personal liability of its organs, employees, workers, staff and vicarious agents.

6. return

6.1 Obligation to return. At the end of the hire period, the hirer must return the test equipment, including accessories, to the lender in the condition in which it was received.

6.2 Packaging and accessories. The packaging of the test position must be stored carefully and replaced upon return. If a shipping device on a Euro pallet was supplied, the test position must be attached to this. Listed accessories must be checked for completeness before return.

6.3 Provision for collection. The borrower must make the test stand available for collection by the transport company appointed by the lender at the agreed collection time, complete and properly packaged. The borrower shall bear the costs arising from late provision.

6.4 Late return. The return is deemed to be late if the rental period is exceeded for reasons for which the borrower is responsible. The provision of the test equipment for collection at the installation site shall be decisive for the calculation of the delay. In the event of late return, 1% of the list price (EMVK) will be charged per week or part thereof, but at least € 100.

7. return of incomplete or damaged goods

7.1 Incompleteness / damage. If the borrower returns the test item incomplete and/or damaged, the lender shall be entitled, at its discretion, to charge the borrower for the costs of restoration or replacement.

7.2 Destruction. In the event of complete destruction, the borrower shall be charged the replacement value. Complete destruction is equivalent to cases of impossible or uneconomical repair. In the event of total loss, the replacement value shall also include software maintenance and support services (“Services”) associated with the hardware, provided that (i) the manufacturer effectively excludes the transfer of the Services to the replacement hardware and/or (ii) the replacement hardware is not offered without Services and in cases (i) and (ii) the Services cannot be sold independently.

7.3 Due date. The respective invoiced amount is due immediately.

7.4 Transfer of ownership. In the event of complete loss, ownership of the Test Site shall pass to the Borrower upon receipt of the payment amount for the replacement value. The test equipment can then be collected by the borrower from the place where it is located at the borrower’s expense. After the transfer of ownership, the borrower is free to utilise the services associated with the hardware in any other way that is legally permissible.

8. Final provisions

8.1 Supplementary provisions. Unless otherwise stipulated in these Terms and Conditions of Hire, Sections 598 – 606 BGB shall apply in addition.

8.2 Severability clause. In the event that one of the provisions of the loan agreement is or becomes invalid or void, the other provisions shall continue to apply. The invalid or void provision shall be replaced by a provision that comes as close as possible to the economic intentions of the parties and takes appropriate account of the legitimate interests of both contracting parties. The same applies to loopholes.

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