General Terms and Conditions of BRAIN FORCE Software GmbH

Article 1 Scope

1.1. The deliveries and services of BRAIN FORCE Software exclusively take place on the basis of the General Terms and Conditions below. They relate to all deliveries and services of BRAIN FORCE Software.

1.2. Terms and conditions of the customer, which contradict or deviate from our General Terms and Conditions are not acknowledged by BRAIN FORCE Software, unless BRAIN FORCE Software has expressly consented to their validity in writing. Amendments and supplements to the contract must be in writing. Our General Terms and Conditions shall also apply if BRAIN FORCE carries out the delivery or service without reservation, in awareness of conflicting or deviating terms and conditions of the customer. Commitments and side agreements must be confirmed in writing by BRAIN FORCE Software.


Article 2 Offer and conclusion

2.1. The offers of BRAIN FORCE Software are always subject to confirmation and non-binding. A contract is only formed with the written order confirmation by BRAIN FORCE Software, however, not later than with acceptance of the delivery or service by the customer.

2.2. BRAIN FORCE Software is entitled to withdraw from contracts, if events should occur, which show that the customer is not creditworthy.

2.3. The customer is obligated to comply with the respective, valid, national, European and international anti-terrorism regulations, as well as the national (Foreign Trade Law/Foreign Trade Ordinance) and European (Dual Use Regulation 1334/2000 in its respective, valid version) export control regulations. Furthermore, the customer is obligated to comply with US re-export regulations (EAR) and sanctions (OFAC) for the goods/technical data, to which the US regulations apply. If an approval by the respective, responsible authorities should be necessary on the basis of the above mentioned regulations, the customer will be obligated to obtain these at his own expense and notify BRAIN FORCE of this.


Article 3 Delivery and service

3.1. BRAIN FORCE Software is only bound to delivery dates, if BRAIN FORCE Software has explicitly designated these as binding in written form. Agreed delivery dates are regarded as being met, if the contractual product has been handed over to the freight forwarder on the agreed delivery date, to the extent that no other explicit agreement has been made.

3.2. The expiry of specific delivery dates does not exempt the customer, who intends to withdraw from the contract or demand compensation due to non-fulfilment, from setting an adequate grace period

3.3. BRAIN FORCE Software expressly reserves the right to perform reasonable, partial services, within the specified delivery dates, and their invoicing, as long as disadvantages do not result from this for utilisation.

3.4. If the infeasibility of delivery is due to incapacity of the manufacturer, both contracting parties can withdraw from the contract, if the agreed delivery date is exceeded by more than three months.

3.5. BRAIN FORCE Software shall not be responsible for default or infeasibility of the delivery, if BRAIN FORCE Software or its legal agents are not at fault. The occurrence of force majeure or other unforeseeable circumstances for which BRAIN FORCE Software is not responsible, such as state measures, non-granting of official approvals, labour disputes of any type, sabotage, lack of raw materials, non-culpable, delayed material deliveries, through which BRAIN FORCE Software is prevented from fulfilling its obligations, also extends the delivery period within the default. Such a delay of more than three months entitles the customer to withdraw from the contract.

3.6. BRAIN FORCE Software reserves the right to withdraw from the contract, if the delivery delay caused by one of the above events lasts longer than six weeks and BRAIN FORCE Software is not responsible for this. If the delivery becomes infeasible or unreasonable due to the above mentioned events, BRAIN FORCE Software will be exempted from its obligation.

3.7. Compensation claims by the customer in the case of default or infeasibility not caused by BRAIN FORCE Software are excluded. A claim by the customer for compensation due to delivery default is excluded in the case of ordinary negligence, furthermore, the liability is limited to the amount of the foreseeable loss, however a maximum of 5% of the delivery value. This liability limitation does not apply to grossly negligent or premeditated conduct of the seller.


Article 4 Shipping and transfer of risk

4.1. Shipping generally takes place at the expense of the customer. At the request and expense of the customer, the delivery can be insured against breakage, transport damage and fire damage.

4.2. The customer must immediately inspect the goods after receipt for completeness and correspondence to the delivery note / invoice. If a complaint should not take place within six days, the goods shall be regarded as having been delivered properly and completely, unless it involves a defect that was not recognisable during the inspection.

4.3. Insignificant defects, which do not impair the functionality of the delivery object, do not entitle the customer to refuse acceptance.

4.4. The risk of loss or damage to the goods shall be transferred to the customer, with the handover of the same to the freight forwarder, his authorised agents or other persons, who are named by BRAIN FORCE Software. To the extent that shipping is delayed or becomes infeasible without it being the fault of BRAIN FORCE Software, the risk shall transfer to the customer with notification of readiness for delivery. The provisions of 4.1 shall also apply to return shipments to the customer after rectification of defects/paid services.


Article 5 Payment terms

5.1. The purchase prices and fees for ancillary services shall fall due for payment upon handover of the delivery object. Differing agreements must be confirmed in writing by BRAIN FORCE Software.

5.2. Checks and promissory notes will only be regarded as a payment upon redemption. The acceptance of promissory notes always requires a prior, written agreement with BRAIN FORCE Software. With the receipt of promissory notes, the bank discount and collection fees are charged. They are immediately payable in cash.

5.3. We charge default interest of 8% above the respective base interest rate of the European Central Bank to merchants, we charge consumers 5% above the respective base interest rate of the European Central Bank. They are to be applied higher or lower, if BRAIN FORCE Software proves a charge with a higher interest rate or if the customer proves a lower charge.

5.4. If the customer enters into payment default, BRAIN FORCE Software is entitled to charge reminder costs. These amount to EUR 5.00; EUR 7.50 and EUR 10.00, depending on the reminder level (1, 2 or 3).

5.5. If the customer is a merchant a legal entity under public law or a special public-sector fund, the retention of payments due to any counterclaims of the customer that are not acknowledged by BRAIN FORCE Software is not permitted, as well as offsetting with such counterclaims. Otherwise, offsetting is only admissible with such claims, which are undisputed or legally established.

5.6. BRAIN FORCE Software reserves the right to increase the price appropriately, if after conclusion of the contract, cost increases - particularly due to price increases by the supplier or exchange rate fluctuations - occur with BRAIN FORCE Software.
This will be proven to the customer by BRAIN FORCE Software, upon request.

5.7. If the customer enters into acceptance default or infringes other cooperation duties, in addition to the loss incurred, BRAIN FORCE shall be entitled to demand compensation for the storage and maintenance of the delivery items at a flat rate of 1% of the invoice amount per month or compensation of the loss actually incurred.

5.8. BRAIN FORCE is entitled to initially use the customer's payments for amortising his older debts. If costs and/or interest have already been incurred for this, BRAIN FORCE is entitled to initially apply payments to the costs, then to the interest and finally to the main claim.


Article 6 Reservation of ownership

6.1. BRAIN FORCE Software reserves the ownership of the delivery objects until payment.

6.2. With anti-contractual conduct by the customer, particularly with payment default, BRAIN FORCE Software is entitled to demand return of the goods after issuing a warning and the customer is obligated to return the goods.

6.3. The assertion of the reservation of ownership and the pledging of delivery objects by BRAIN FORCE Software are not regarded as withdrawal from the contract, as long as the regulations regarding consumer contracts do not apply or this is expressly declared in writing by BRAIN FORCE Software. With utilisation vis-à-vis merchants, a legal entity under public law or a special public-sector fund, the following additionally applies:

6.4. The seller reserves the ownership of the goods, until all claims of the seller against the buyer from the business relationship, including the future claims arising, also from contracts concluded simultaneously or later, are settled. This also applies if individual or all claims of the seller having been included in a running invoice and the balance has been drawn and acknowledged.

6.5. The customer is entitled to sell the delivery objects on in the ordinary course of business; however, he already assigns all claims now in the amount of the purchase price agreed between BRAIN FORCE Software and the customer (including VAT), which accrue to the customer from the onward sale, regardless of whether the delivery objects are sold on without or after processing. The customer is authorised to collect these claims after their assignment. Our authority to collect the claims ourselves shall remain unaffected by this; however BRAIN FORCE Software is obligated not to collect the claims, as long as the customer properly fulfils his payment obligations and is not in payment default. However, if this is the case, BRAIN FORCE Software can demand that the customer discloses the assigned claims and their obligors, provides all details necessary for collection, releases the related documents and notifies the assignment to the obligors (third parties).

6.6. The processing or alteration of the goods by the customer will always be carried out on behalf of BRAIN FORCE Software. If the delivery objects are processed with other items not belonging to BRAIN FORCE Software, BRAIN FORCE Software will acquire the co-ownership of the new item in the proportion of the value of the delivery objects to the other items processed, at the time of processing.

6.7. If the delivery objects are inseparably combined with other items not belonging to BRAIN FORCE Software, BRAIN FORCE Software will acquire the co-ownership of the new item in the proportion of the value of the delivery objects to the other items combined. The customer shall keep the co-owned property for BRAIN FORCE Software.

6.8. The customer is not permitted to pledge or assign the delivery objects as collateral. With pledges, confiscation or other directives by third parties, the customer must immediately notify BRAIN FORCE Software of this and provide BRAIN FORCE Software with all information and documents, which are necessary for preserving our rights. Enforcement officials/a third party must be notified of our ownership.

6.9. At the request of the customer, BRAIN FORCE Software is obligated to release the collateral to which it is entitled if their value exceeds the value of the claims secured by more than 20%, if these have not yet been settled.


Article 7 Warranty

7.1. BRAIN FORCE Software guarantees that the contractual products are not afflicted with significant defects. Insignificant deviations from the service specification shall not be regarded as defects. The technical data and descriptions in the product information alone shall now guarantee a specific quality. An agreed quality must be confirmed in writing by BRAIN FORCE Software.
The manufacturing of the contractual products will take place with the required duty of care. However, the parties are aware that according to the state-of-the-art, it is not possible to rule out errors in the software under all application conditions.

7.2. The delivered goods must be inspected by the customer after receipt for defects, agreed quality and quantity deviations. The notification of defects is only admissible within one week, with obvious defects. The notification must take place in writing. For the calculation of the period, the time of delivery and the date of receipt of the complaint letter are decisive.

7.3. BRAIN FORCE Software has the option of supplementary performance in the case of justified notification of defects. If supplementary performance is infeasible or refused by BRAIN FORCE Software in spite of setting an adequate period, the customer shall be entitled to withdraw from the contract or reduce the purchase price.

7.4. With improperly carried out alterations and repair work by the customer, the liability of BRAIN FORCE Software will lapse for resulting consequences.

7.5. If the goods are lacking an agreed quality at the time of risk transfer, the customer will be entitled to a right of withdrawal. He can only demand compensation due to non-fulfilment, if the guarantee of the quality pursues the purpose of securing him against this. Possible compensation claims by the customer from default on conclusion of the contract, infringement of contractual ancillary obligations, consequential losses/consequential defect losses, particularly also due to loss of recorded data, are excluded, if they are not based on deliberate acts or gross negligence by BRAIN FORCE Software.

7.6. Defects/losses are specifically excluded from the warranty, which are due to: operational wear and tear and regular wear and tear, improper use, operating error, operation with the wrong type of electricity or voltage, fire, lightning strike, explosion, all types of moisture. The warranty also lapses if serial numbers, type descriptions or similar labelling is removed or made illegible.

7.7. The guarantee performance generally applies ex factory Langen. All costs and risks for shipping or collection are borne by the customer.

7.8. If the review of the defect notification results in a guarantee claim not existing, BRAIN FORCE Software is entitled to demand compensation for all costs. Costs of the review and repair will be charged at the respective, valid service prices of BRAIN FORCE Software.

7.9. The warranty period amounts to 12 months vis-à-vis merchants, 24 months with a purchase of consumer goods. Warranty claims are not transferrable. Differing agreements must be confirmed in writing by BRAIN FORCE Software.


Article 8 Liability

8.1. To the extent that nothing different arises from these provisions, further claims of the customer - regardless of the legal grounds - are excluded. Therefore, BRAIN FORCE Software is not liable for losses, which have not occurred to the delivery object itself, in particular, BRAIN FORCE Software shall not be liable for lost profit or other financial losses of the customer. The exclusion particularly also applies to claims arising from default on contract conclusion, infringement of ancillary duties and producer liability pursuant to Article 823 BGB [German Civil Code].

8.2. This liability exclusion does not apply, if the infringement of duty is based on deliberate acts or gross negligence, unless the infringement of duty is based on the infringement of a cardinal duty. Furthermore, it will not apply if the customer asserts a claim due to the lack of extensive warranty and quality compensation claims due to non-fulfilment (cf. Subsection 7.5) covering risk of consequential loss.

8.3. If BRAIN FORCE Software negligently infringes a material contractual duty, BRAIN FORCE Software's compensation obligation for material and personal losses is limited to indemnification under product liability insurance. In any case, the compensation obligation is limited to the foreseeable loss at the time of concluding the contract.

8.4. The above mentioned liability exclusions and limitations do not apply to claims pursuant to product liability law or due to initial incapacity or infeasibility for which BRAIN FORCE Software is responsible. If liability is excluded or limited, this shall also apply to the personal liability of our salaried staff, wage-earners, workers, employees, representatives and legal agents.


Article 9 Software utilisation

9.1. The customer will receive a right of use to the software programs acquired by him. The respective manufacturer is entitled to the copyright. With order processing by BRAIN FORCE Software, regulations deviating from this must be in writing.

9.2. BRAIN FORCE Software does not assume any liability for the contractual products not infringing any industrial property rights or third party copyrights. The customer must immediately notify BRAIN FORCE Software regarding all claims asserted against him for this reasons.


Article 10 Export and import approvals

10.1. Products and technical know-how supplied by BRAIN FORCE Software are intended for being used and remaining in the country of delivery agreed with the customer. The re-exporting of contractual products - individually or in a system-integrated form - requires approval for the customer and is generally subject to the foreign trade regulations of the Federal Republic of Germany/the other country of delivery agreed with the customer. The customer must independently find out about these German regulations from the Federal Export Agency.

10.2. Any onward delivery of contractual products by the customer to third parties, with and without the knowledge of BRAIN FORCE Software, simultaneously requires the transfer of the export approval conditions. The customer is liable for proper compliance with these conditions vis-à-vis BRAIN FORCE Software.


Article 11 Obligations arising from the Law on the Disposal of Electrical and Electronic Devices (ElektroG)

11.1. Obligations arising from the Law on the Disposal of Electrical and Electronic Devices (ElektroG)

11.2. After termination of use, the customer assumes the obligation to properly dispose of the delivered goods at his own expense, pursuant to the legal regulations. The customer exempts BRAIN FORCE from the obligations pursuant to Article 10 Par. 2 ElektroG (Obligation of the manufacturers to accept return) and associated third party claims.

11.3. The customer must impose a contractual obligation on third parties to whom he passes on the goods, to dispose of these after termination of use, at their own expense, pursuant to the legal stipulations and impose a further obligation in the goods are passed on again. In contrast, if the customer fails to obligate third parties to whom he has passed the goods on accordingly, the customer must accept the delivered goods back at his own expense, after termination of use, and dispose of them in accordance with the legal regulations.

11.4. In no case is the customer permitted to pass on the delivered goods or parts thereof to private third parties, due to their classification as exclusive commercial use, pursuant to ElektroG.

The customer ensures BRAIN FORCE that he will fully comply with his obligations pursuant to ElektroG.


Article 12 EU import VAT

12.1. To the extent that the customer has his domicile outside of Germany, he is obligated to compliance regarding the European Union import VAT regulations. This specifically includes the notification of the VAT identification number to BRAIN FORCE Software, without a separate enquiry.

12.2. The customer is obligated to compensate any costs - particularly a handling fee - which is incurred by BRAIN FORCE Software due to insufficient/faulty details provided by the customer regarding import VAT.

12.3. Any liability by BRAIN FORCE Software from the consequences of details provided by the customer regarding import VAT/the relevant data is excluded, as long as deliberate acts/gross negligence does not exist on the part of BRAIN FORCE Software.


Article 13 Place of performance and legal jurisdiction

13.1. The place of performance is the business premises of BRAIN FORCE Software in Langen.

13.2. For all disputes arising from the contractual relationship, if the customer is a full merchant, a legal entity under public law or a special public-sector fund, the legal action shall be filed with the court responsible for the registered office of BRAIN FORCE Software. BRAIN FORCE Software is also entitled to file legal action at the customer's registered domicile.

13.3. German law shall exclusively apply, excluding the UN Convention on the International Sale of Goods (CISG), even if the customer has his registered office abroad.


Article 14 Miscellaneous

14.1. Transfers of rights and duties of the customer from the contract concluded with BRAIN FORCE Software require our written consent in order to be valid. This also applies to the waiver of the written form requirement.

14.2. If a provision should be or become invalid, this shall not affect the validity of the remaining provisions.

14.3. BRAIN FORCE is entitled to lead the customer as a reference in the context of marketing activities.