1. scope of application

The following terms and conditions apply to all deliveries, services, consulting services, information and offers of bartolome roeder AG (hereinafter referred to as BR-AG). Terms and conditions of purchase and other general terms and conditions of the client that deviate from the following terms and conditions shall only become part of the contract if and insofar as they have been recognized in writing by BR-AG. Clients within the meaning of the following terms and conditions are exclusively entrepreneurs. Deviations from these terms and conditions and/or additions as well as amendments and additions to concluded contracts and the terms and conditions of BR-AG applicable to these must be made in writing.

2. offers and contracts

Offers from BR-AG are subject to change. All orders, including those received by representatives or other sales employees of BR-AG, shall only become binding for BR-AG upon written order confirmation from BR-AG or upon delivery of the goods or provision of the service. If the customer submits his offer electronically, BR-AG shall confirm receipt without delay. However, the mere confirmation of receipt does not constitute a binding acceptance of the offer. The confirmation of receipt can be combined with a written declaration of acceptance by BR-AG.

3. programs, services, transfer of risk

3.1 Individual programs shall be developed in accordance with the type and scope of the documents provided by the client. If necessary, the client shall provide additional practical test data and test options to a sufficient extent in good time and at its own expense.

3.2 The basis for the creation of individual programs is the written program description that BR-AG prepares on the basis of the documents and information provided to it. This program description must be checked and confirmed by the client for correctness and completeness. Any change requests made by the client after checking and confirmation require a separate agreement.

3.3 When ordering standard programs, the client confirms with the order at the same time the knowledge of the scope of services of the ordered programs.

3.4 BR-AG shall provide the agreed services either by providing advice, training, information, etc. or by handing them over (sending programs, organizational drafts or other documents).

3.5 Shipment shall always be at the risk of the customer, even in the case of carriage paid delivery.

3.6 Prior to handover to the customer, BRAG undertakes to verifiably inspect the service itself in detail and in particular to determine whether it meets the contractual requirements in accordance with the individual order. If the cooperation of the customer is required for this, BR-AG will point this out to the customer. BR-AG shall verify the compliance of the software with the specifications on the basis of a verifiable functional test and as part of a subsequent trial run under system conditions. The result of the acceptance shall be recorded in a protocol to be drawn up and signed jointly by BR-AG and the client.

4. prices

4.1 The prices quoted by BR-AG are exclusive of discounts and other rebates plus any value added tax.

4.2 If the delivery or service is to be provided by BR-AG later than 90 days after conclusion of the contract, BR-AG shall be entitled to charge any price increases that have occurred in the meantime.

4.3 The costs for travel, daily and accommodation expenses as well as travel times shall be invoiced to the client separately according to the respective rates plus statutory VAT.

5. delivery time, non-delivery, delay, partial delivery

5.1 With the order, BR-AG assumes no risk for the procurement of supplies and other services required for the creation of the order.

5.2 Confirmed orders and delivery dates shall apply in all cases subject to correct, timely and complete delivery to us. Delivery periods shall only commence after clarification of all details of the execution of the order and the provision of any necessary certificates by the client and, in particular, after receipt of confirmation of the program description checked by the client in accordance with section 3.2. Delivery periods and delivery dates shall be extended by the period by which the client is in default with its obligations to BR-AG.

5.3 Events of force majeure and circumstances for which BR-AG is not responsible and which make delivery impossible or excessively difficult shall entitle BR-AG - even within the delay - to postpone delivery for the duration of the hindrance. If the events lead to a not merely temporary hindrance or impediment to performance, BR-AG may withdraw from the contract in whole or in part due to the part not yet fulfilled. The right to postpone delivery or to withdraw from the contract exists irrespective of whether the events referred to in sentences 1 and 2 occur at BR-AG or at BR-AG's subcontractors; the exercise of this right by BR-AG shall not give rise to any claims for damages by the customer.

5.4 In the cases of clause 5.3, the client is entitled to withdraw from the contract insofar as he can prove that the complete or partial fulfillment of the contract is no longer of interest to him due to the delay. Withdrawal with regard to partial deliveries that have already been made by BR-AG shall, however, be excluded, provided that the outstanding fulfillment is not tantamount to a fulfillment that is still outstanding in its entirety with regard to the content of the contract. In the event of justified withdrawal on the part of the client, BR-AG is entitled to demand an appropriate usage fee for the benefits derived by the client from the use of the contractual software up to the time of rescission. The compensation for use shall be calculated on the basis of a linear four-year amortization.

5.5 Partial deliveries are permissible within the delivery periods specified by us, provided that this does not result in any disadvantages for use.

6. installation

If BR-AG installation is provided for in the order confirmation, the customer must enable this within 30 days of delivery and/or readiness for delivery by BR-AG.

7. terms of payment

7.1 Invoices from BR-AG are due for payment without deduction within 14 days of the invoice date. If the customer has not paid by this time, he shall be in default without further notice from BR-AG. The date of payment shall be the date on which the money is received by BR-AG or credited to an account of BR-AG. Discounts may only be deducted with the express consent of BR-AG.

7.2 In the case of orders comprising several units, BR-AG is entitled to invoice after delivery of each individual unit or service.

7.3 Notwithstanding other claims, BR-AG may demand interest on its claims from the due date in the amount of 5%, in the event of default of payment by the client in the amount of 8% above the base interest rate. If BR-AG can provide evidence of a higher interest claim, in particular due to its own credit interest expenses, it is entitled to claim this. BR-AG reserves the right to claim damages caused by default that exceed the damages specified in sentence 1.

7.4 If the client is in default of payment or if a significant deterioration in his financial circumstances becomes known for which he is responsible, all of BR-AG's existing claims against the client shall become due for payment immediately, irrespective of accepted bills of exchange. In this case, BR-AG may demand immediate advance payment or the provision of security. If the client has provided false information about its financial circumstances during the term of the contract, BR-AG is entitled to withdraw from the contract and demand compensation. In the event of withdrawal, the client shall owe a usage fee in accordance with clause 5.4.

7.5 Payments with discharging effect can only be made directly to BR-AG. If there are several outstanding claims against the client, payments made by the client shall be offset against the oldest claim, even if the client has expressly paid towards a specific claim. The set-off shall always be made first against the costs, then against the interest and finally against the principal claim.

7.6 The client shall only have a right of set-off in respect of undisputed or legally established claims. The client shall only be entitled to a right of retention in respect of undisputed or legally established claims arising from the same contractual relationship with BR-AG.

8. reservation of title

8.1 All goods delivered by BR-AG shall remain the property of BR-AG until such time as the entire customer balance from the current business relationship has been paid. The retention of title expires definitively with the settlement of all outstanding claims at the time of payment.

8.2 Processing or transformation of the goods subject to retention of title shall always be carried out for BR-AG as manufacturer within the meaning of § 950 BGB, without this giving rise to any liability for BR-AG. If the goods subject to retention of title are processed, combined or mixed with other goods by the customer, BR-AG shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. At the time of processing, combining or mixing, the customer hereby assigns to BR-AG its (co-)ownership rights to the uniform item to the extent of the invoice value of the goods subject to retention of title and shall store them for BR-AG free of charge.

8.3 The client is entitled to resell the reserved goods in the ordinary course of business; however, the client hereby assigns to BR-AG all claims in the amount of the purchase price agreed between BR-AG and the client that accrue to the client from the resale, irrespective of whether the delivery items are resold without or after processing. The client is authorized to collect these claims after their assignment. BR-AG's authority to collect the claims itself remains unaffected; however, BR-AG undertakes not to collect the claims as long as the customer duly fulfills its payment obligations and is not in default of payment. If this is the case, however, BR-AG may demand that the customer discloses the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.

8.4 The client is obliged to inform BR-AG immediately of any seizure or other legal or actual impairment, as well as any endangerment of the goods subject to retention of title or any other security existing in favor of BR-AG. The client may neither pledge the delivery items nor assign them as security.

8.5 In the event of default in payment and in the event of rescission of the contract, the customer hereby declares its consent to BR-AG removing the goods subject to retention of title from the customer's premises or having them removed. The removal shall only constitute a withdrawal from the respective contract if BR-AG expressly declares this.

8.6 If the realizable value of the goods subject to retention of title exceeds the claims to be secured by more than 110%, BR-AG undertakes to release the securities to which it is entitled at the request of the client. The limit for the creation of a claim for release is 150% of the estimated value of the collateral.

9. warranty

9.1 The warranty shall initially take the form of subsequent performance at the discretion of BR-AG, either by rectification of defects free of charge or new production, following corresponding notification by the client. In the event of justified notification of defects, the defects shall be rectified within a reasonable period of time, whereby the client shall enable BR-AG to take all measures necessary for the inspection and rectification of defects.

9.2 If two attempts at repair or replacement fail or if subsequent performance is deemed to have failed or to be unreasonable for other reasons, the Client may, at its discretion, demand rescission (withdrawal) or a reduction in the remuneration. However, in the event of only a minor breach of contract, in particular in the case of only minor defects, the client shall not be entitled to withdraw from the contract. In the event of withdrawal, the client shall owe a usage fee in accordance with clause 5.4. In addition, the client may not demand compensation in lieu of performance or reimbursement of futile expenses, unless BR-AG, its legal representatives or vicarious agents are guilty of intent or gross negligence, there is mandatory statutory liability due to a breach of an obligation that is decisive for the achievement of the overall purpose of the contract, liability under the Product Liability Act, injury to life, limb and health or liability within the scope of an assumption of warranty in accordance with 9.5.

9.3 BR-AG's liability shall be limited to the foreseeable damage typical of the contract. If the client chooses compensation for damages after subsequent performance has failed, the goods shall remain with the client insofar as this is reasonable.

9.4 This does not affect the warranty rights due to errors in standard software, to which the warranty rules of the corresponding license agreement apply.

9.5 In the case of software products, BR-AG warrants that they will execute the program instructions free of material and execution errors if the hardware and operating system configuration correspond to BR-AG's recommendation. BR-AG does not provide the client with any further guarantees in the legal sense. Manufacturer warranties remain unaffected by this. Only the product descriptions of the manufacturer and BR-AG are deemed to be agreed as the quality of the products. If the software is created on the basis of a specification sheet (e.g. I-Book concept), this subsequently determines the quality of the product. Public statements, promotions or advertising by the manufacturer do not constitute contractual specifications of the quality of the goods.

9.6 BR-AG is exempt from any warranty if defects arise because the products are handled improperly or not maintained and cared for in accordance with the regulations or a third party makes changes of any kind or repairs to the products without the written consent of BR-AG or operating and installation instructions are not followed or complied with. If the customer receives faulty operating or installation instructions, BR-AG is only obliged to supply faultless instructions and only if the fault in the instructions prevents proper operation or installation by the customer.

9.7 The Client's claims for subsequent performance, compensation, reimbursement of expenses or reduction due to a defect shall become time-barred within one year from the start of the statutory limitation period. Withdrawal after expiry of the limitation period is invalid.

9.8 Insofar as the above provisions on the prerequisites and consequences of the Client's rights in the event of defects do not contain any or no deviating provisions, the statutory provisions on these rights shall apply.

10. liability

10.1 Other claims for damages by the client due to a breach of duty are excluded unless BR-AG, its legal representatives or vicarious agents are guilty of intent or gross negligence, unless liability is mandatory by law due to a breach of an obligation that is decisive for the achievement of the entire purpose of the contract, liability under the Product Liability Act or liability for injury to life, limb and health.

10.2 Insofar as the client has a claim for damages, it shall be limited to the foreseeable damage typical for the contract.

10.3 In corresponding application of clause 9.6, any liability for damages on the part of BR-AG is excluded if the damage is based entirely or predominantly on the circumstances mentioned in clause 9.6.

10.4 The client's claims for damages shall become time-barred within one year from the start of the statutory limitation period.

11. copyright protection

11.1 BR-AG shall grant the customer a non-transferable right of use to the programs, associated documentation and subsequent supplements for the customer's own use for the purposes for which the programs were supplied. The client must ensure that these programs and documentation are not accessible to third parties without the prior written consent of BR-AG. Copies of copyrighted software and printed materials may only be made if this is necessary to safeguard future use. If the originals bear a copyright notice, this notice must also be affixed by the client to the copies made. Copyright notices, serial numbers and other features serving to identify the program may not be removed or altered under any circumstances.

11.2 The client is obliged to refrain from passing on the organizational development, programs and programming descriptions to third parties, whether for payment or free of charge, without the written consent of the contractor. In view of the fact that the programs and organizational services created by BR-AG are the intellectual property of the contractor, the use of the same is permitted exclusively for the client's own purposes, even after payment.

11.3 Reverse translation of the programs provided into other code forms (recompilation) and other types of reverse engineering of the various types of software production, including program modification, are not permitted without the prior written consent of BR-AG. The removal of copy protection or similar protection routines is not permitted. § Sections 69 e and 69 d (2) and (3) UrhG remain unaffected.

11.4 The use of the software provided within a network or other multi-station computer system is not permitted without the written consent of BR-AG, insofar as this creates the possibility of simultaneous multiple use of the program and such use is not the subject of the contract.

11.5 In the event of violations of the above provisions, the Licensee shall be obliged to surrender all copies of the program to BR-AG without any right to compensation. The right to assert further claims for damages in this respect is expressly reserved.

11.6 The Licensee shall impose the above obligations on all persons coming into contact with the licensed software.

11.7 Further developments of the licensed software are not provided free of charge.

12. foreign trade and export control regulations

Insofar as delivered products are subject to German or foreign foreign trade and export control regulations, the client shall be responsible for compliance with the relevant regulations. In the event of a breach of such regulations, the client is obliged to indemnify BR-AG.

13. general

13.1 The client may only transfer its rights and obligations under this contract with the written consent of BR-AG.

13.2 Orders shall be processed within BR-AG with the aid of automated data processing. The client hereby grants its express consent to the processing of the data disclosed to BR-AG in this contract and required for order processing.

13.3 Any amendment or possible invalidity of individual provisions shall not affect the validity of the remaining provisions. In the event of the invalidity of a provision, the client shall be obliged to agree with BR-AG on a valid provision that comes closest to the invalid provision in a legally permissible manner.

13.4 This contract shall be governed exclusively by German law. The provisions of the Hague Convention on Contracts for the International Sale of Goods and the United Nations Convention on Contracts for the International Sale of Goods shall not apply. The place of performance and jurisdiction for both parties is Nuremberg, provided that the client is a merchant, a legal entity under public law or a special fund under public law.