General Terms and Conditions of braintool software GmbH
§ 1 General Information / Scope of validity
(1) These general terms and conditions of trade are applicable to our agreements regarding the sale of software. In particular, the subject matter of these agreements is not the installation and maintenance of software or the supply of hardware, unless agreed otherwise.
(2) The following general terms and conditions of trade are applicable to all agreements between us and the client. In each case, the version applicable at the time of concluding the agreement is authoritative.
(3) Deviating, contradictory or supplementary general terms and conditions of trade shall not become a valid part of the agreement, even if we are aware of these, unless we expressly consent to their validity in writing.
§ 2 Conclusion of the agreement/Delivery
(1) Our offers are subject to change without notice. The offer on our homepage is non-binding. We reserve the right to make changes. The agreement with the client shall be effected only by the declaration of acceptance by us (in electronic form or by email as well) or by the provision of services.
(2) With the order, the client declares his binding offer of agreement. We will immediately confirm receipt of the client’s order. The client must check to see that the software specifications meet his goals and requirements before the agreement is concluded. He is conversant with the functional characteristics and specifications of the software.
(3) We are entitled to accept the offer of agreement contained in the order within three working days after receipt. We are entitled to decline the order without providing any reasons.
(4) The client shall be immediately informed if the software is not available or only partially available.
(5) We shall make every effort to provide delivery within two weeks of acceptance of the order at the latest. We are entitled to deliver in phases.
(6) Delivery or service deadlines specified shall not be binding unless we provide written commitment for the same.
(7) The software may be obtained via downloads, e-mail or by physical delivery (on CD-ROMs). Usage instructions and documentation are available for download on the corresponding product page on the website.
§ 3 Retention of title/Utilization rights
(1) We shall retain the title to the software until complete payment of the purchase price. The client is obligated to handle the software with the utmost care in the meantime.
(2) We are authorized to withdraw from the agreement and demand the return of the software if the client’s conduct is contrary to the terms of the agreement, especially in the case of delay in payment. The client may also be obligated to delete the software and provide proof of having done so.
(3) The software is legally protected. We are exclusively entitled to the copyright, patent rights, trademark rights and all other ancillary copyrights to the software. Any rights that a third party is entitled to have been procured by us.
The client is authorized to permanently transfer the software to a third party, in the absence of good cause, if the third party agrees to the validity of these general terms and conditions of trade. Thereupon, the client must transfer all copies of the software to the third party and delete his own copies. The client’s right to use the software expires with the transfer of the software to the third party. In addition, the client is obligated to provide us the full name and address of the third party without being asked.
Other acts of utilization and exploitation by the client are not permitted. In particular, there shall be no assignment whatsoever of additional copyright-protected utilization and exploitation rights to the software (such as leasing, hiring out, distribution etc.) and/or to the source code beyond the non-exclusive license.
§ 4 Price/Shipment/Delay
(1) The price includes statutory turnover tax if due.
(2) The client can make payment by wire transfer or credit card.
(3) The client can offset only against undisputed claims or claims that have been established by declaratory judgment.
(4) Payments are in principle due upon delivery and at the most fourteen days after the date of invoice.
(5) Physical deliveries can be made only after shipment modalities have been agreed to in advance.
(6) In case of payment delays by the client, we shall be entitled to demand interest at the rate of 5 % p.a. over the base interest rate of the European Central Bank. We reserve the right to assert any further claims due to delay.
(7) Delivery and service deadlines shall be extended to the extent of the payment delay on the part of the client.
§ 5 Passage of risk
(1) The risk of accidental loss and accidental deterioration of the software sold shall pass to the client upon delivery of the software.
(2) Default of acceptance on the part of the client shall be equivalent to delivery.
§ 6 Warranty – Liability
(1) The warranty rights of the customer are exclusively defined in the license agreement included in the software or – if a separate license agreement is concluded – this separate license agreement.
(2) The statutory liability covering damages other then the purchase and use of the software applies with the following stipulations: BRainTool Software’S LIABILITY IS LIMITED TO DAMAGES ARISING FROM GROSS NEGLIGENCE, WILLFUL ACTS, OR THE CULPABLE VIOLATION OF THE BASIC OBLIGATIONS STEMMING FROM THIS AGREEMENT. IN THE EVENT THAT BRainTool Software’S VIOLATION OF AN OBLIGATION ESSENTIAL TO THE AGREEMENT IS NOT DUE TO GROSS NEGLIGENCE OR IS UNINTENTIONAL, THEN BRainTool Software’S LIABILITY WILL BE LIMITED TO TYPICAL DAMAGES OR TO SUCH TYPICAL DAMAGES THAT WERE REASONABLY FORSEEABLE AT THE TIME THE AGREEMENT WAS MADE.
(3) FURTHERMORE, BRainTool Software IS NOT LIABLE FOR ANY LOST WAGES OR OTHER IMPAIRMENT TO CUSTOMER ASSETS.
(4) Any liability for damages arising from BRainTool Software’s negligence is limited to typical, foreseeable contractual damages that are usually equal to the license fee paid.
(5) BRainTool Software assumes no responsibility or liability for software or systems that are not the subject of this contract.
§ 7 Data protection
The client explicitly consents to the gathering, processing and use of personal data for the purpose of executing the order. The relevant statutory data protection regulations shall be complied with.
§ 8 Final provisions
(1) Should a term be or become invalid, the remaining terms shall remain valid. The ineffective term shall be replaced by an effective term coming closest to the ineffective term in the economic sense.
(2) Amendments and supplements to these general terms and conditions of trade are effective only if confirmed in writing by us. This applies to the amendment and revocation of this written form requirement as well.
(3) German law shall apply exclusively to all legal relations between the client and us to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods even if the client has his company headquarters abroad.
(4) The place of jurisdiction is Ludwigsburg, Germany.