Allgemeine Geschäfts- und Nutzungsbedingungen der SoftDot

Inhalt

1. 1. Validity of the terms
2. 2. Offer and conclusion of contract
3. 3. Regulations for software delivered
4. 4. Software maintenance and service
5. 5. Retention of title
6. 6. Remuneration
7. 7. Right of withdrawal of the contractor
8. 8. Transfer of risk
9. 9. Liability (Warranty)
10. 10. Liability restrictions
11. 11. Final Regulations

$ 1 Validity of the terms

The following terms and conditions apply to all current and future business relationships with companies, legal entities of public law or public-law special assets (customer).

All deliveries, services and offers from us (contractor) are made exclusively on the basis of these general terms and conditions. They are part of all contracts that the contractor concludes with its contractual partners (customer) on the services or deliveries offered to him. They also apply to all future offers, services or deliveries to the customer, even if they are not separately agreed again.

Any general terms and conditions of the contractual partner are hereby objected to. They will not be recognized even if we (contractor) do not expressly contradict them again after receipt with us.

Changes and additions to the agreement reached, including these general terms and conditions, require written form for their effectiveness. With the exception of managing directors or authorized signatories, the employees of the contractor are not authorized to make verbal agreements to the contrary. For the purposes of written form, telecommunication transmission, in particular by fax or by e-mail, is sufficient, provided that the copy of the signed declaration is transmitted.

In the case of delivery of new machines and equipment, new software and hardware, these are subject to the delivery and warranty conditions of the respective manufacturer or licensee or supplier, provided that we (contractor) are not the manufacturer. If these have not been effectively agreed, the general terms and conditions of the contractor shall apply by way of replacement.

$ 2 Offer and conclusion of contract

1. All offers of the contractor are non-binding and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The contractor reserves the right to take into account mandatory deviations from the offer documents or from the order confirmation due to legal or technical standards. The prices are plus VAT.
2. With the order of a product, the customer declares that he wants to purchase the ordered product. The product or software is delivered as described by the manufacturer. Deviating requirements are always to be recorded in writing. There are no verbal side agreements.
3. The contract is concluded subject to the correct and timely self-supply by our suppliers. This applies only in the event that the non-delivery is not attributable to us (contractor). The customer is informed immediately about the unavailability of the service. The consideration will be refunded immediately.

§ 3 Regulations for software delivered

Software created by the contractor will be protected by copyright. The customer acquires a simple, non-transferable right of use of the software on the basis of the offer of the contractor. The software is not transferred to the customer. The customer is not entitled to make any changes to the software, to use the submitted documents for the creation of its own software or to make the corresponding documents accessible to third parties or to create any kind of copies of the software including documents. In any case, a sale of the acquired usage rights of the software by the customer is excluded. Likewise, the customer cannot sell the software in connection with the sale of its hardware.

When the software delivered by us is not such on which we have the license and ownership rights, the general terms and conditions of the licensor / owner of the software apply.

§ 4 Software maintenance and service

1. Software maintenance agreements are valid as long as a valid subscription exists. In the course of this time-limited subscription, the following services are provided:

   1. Fixing bugs after the term of guarantee in the software to be maintained and in the documents provided by us (service provider).
   2. Adaptation to legal changes, new or modified guidelines, regulations etc. that have an impact on the agreed purpose of the software to be maintained. These adaptations are made within the scope of our technical programming possibilities and within a reasonable period of time after announcement or introduction of the change in law.
   3. Readiness to consult, following a conversation transmitted by the user, exclusively via email. The service provider will then contact the user.
   4. Provision of consulting capacity for inquiries received in writing with regard to the software to be maintained.

   The calculation of the services listed above is calculated at our respective applicable remuneration rates. Any price changes will be communicated to the client up to six months in advance. Here, in particular, the general terms and conditions of the platform provider or distributor apply.

2. Precondition for Software maintenance:

   1. Only the latest version of our software will be maintained in written request of the user in our usual working hours.
   2. The user must have completed the minimum training measures recommended by the software supplier for the respective software products and their modules used.


3. The clauses 1.a, 1.b, and 2.a of this condition apply only if the software maintenance agreement concerns software packages of which we are the manufacturer.
4. The agreement for the maintenance of the software loaned runs for an indefinite period. It can be terminated in writing by both parties with a notice period of three months to the end of each calendar year, at the earliest at the end of the calendar year following the contract start, unless otherwise agreed in writing in individual contracts. In the event of termination, the date of receipt at BPS Software shall apply.

5. The following costs are not covered by the software maintenance fee, the annual subscription fee or the license fee.

   • Software disk
   • Handbook shipping costs
   • Software disk creation
   • Shipping costs
   • Installation costs if done by us
   • Data repair, data conversion, data transfer
   • Training/Induction

   The user receives the latest version of the software, which is the subject of this contract

6. The payment of the software maintenance has to be made after the issuing of an invoice in advance at the beginning of each calendar year, unless something else has been agreed in writing. In general, a valid and active subscription includes the software maintenance at the same time.
7. If a installment payment of the software maintenance has been agreed by direct debit, the agreed payment is debited from the account specified by the client. A separate invoice will no longer be created. The respective valid sales tax will be shown on the direct debit slip.
   If the client is in arrears with a rate (return debit or similar), the entire outstanding amount until the end of the year will become due immediately.
   The contractor will issue an invoice to the client, which will then also be due immediately. For the future, the calculation "yearly in advance" will then be agreed.
   For deviating payment models, tariffs and payment methods, the respective general terms and conditions of the corresponding sales platform or distributor apply.
   

§ 5 Retention of title

Unless otherwise provided in the preceding paragraphs ($$ 3 and 4), the following applies:

• The contractor reserves the right to ownership of the goods until payment of all the claims against the client from an ongoing business relationship.
• The customer is obliged to give us access to third parties on the goods, such as in the case of a levy, as well as any damage or destruction of the goods immediately. The ownership of the goods as well as a business relocation, the customer has to report immediately.
• The contractor is entitled, in breach of contract by the customer, in particular in case of default of payment or in case of violation of a duty according to the preceding provisions to withdraw from the contract and to demand the goods out.
• The customer is entitled to resell the goods in the ordinary course of business. He already now transfers to us all claims in the amount of the invoice amount, arising from the resale against a third party. We accept the assignment. After the assignment, the customer is authorized to collect the claim.
• We reserve the right to collect the claims themselves as soon as the customer meets his payment obligations in accordance with the rules and is in default.

§ 6 Remuneration

1. For mail order, the purchase price is understood to be plus shipping costs and VAT.
2. The client is obliged to pay the purchase price within 10 days of receipt of the goods. After the expiry of this period, the client is in default of payment.
   The client has to pay interest on the money debt in the amount of 8% above the base interest rate during the default. The contractor reserves the right to prove and assert a higher default damage against the client.
3. The client has a right of set-off only if his counterclaims have been legally established or acknowledged by the contractor.
   The client can only exercise a right of retention if his counterclaim is based on the same contractual relationship.

$ 7 Right of withdrawal of the contractor

Material deterioration in the creditworthiness of the client entitles the contractor to require advance payment or security deposit or to withdraw from the contract.

$ 8 Transfer of Risk

1. The risk of accidental loss and accidental deterioration of the goods shall pass to the client upon delivery of the goods to the carrier, the shipping agent or any other person or institution designated to carry out the shipment. In the case of a sale by delivery of the goods, the risk shall pass to the client upon delivery of the goods to the shipping agent, the carrier or any other person or institution designated to carry out the shipment.
2. The delivery shall be deemed to have taken place if the client is in default of acceptance.

§ 9 Liability (Warranty)

1. The right to choose between defect removal/supplement and new delivery/replacement delivery is valid in any case for the contractor.
2. If the improvement/further fulfillment fails, the client has the right to decrease (reduction of the fee) or to withdraw from the contract according to his choice. With a only minor breach of contract, in particular with only minor/immaterial defects, the client has no right of withdrawal.
3. The client must report defects to the contractor according to the provisions of $ 377 HGB - but in writing - otherwise the assertion of the liability claim is excluded. For the observance of the deadline the timely dispatch is sufficient. The client bears the full burden of proof for all prerequisites for the claim, in particular for the defect itself, for the time of the discovery of the defect and for the timeliness of the complaint.
4. If the client chooses to resign from the contract because of a legal or material defect after failed remedy, he is not entitled to claim damages for the defect.
5. If the customer chooses damages after failed remedy, the goods remain with the customer if this is reasonable. The damages are limited to the difference between the purchase price and the value of the defective item. This does not apply if the contractor has caused the breach of contract fraudulently.
6. The limitation period for claims and rights due to defects in the goods - for whatever legal reason - is one year. The limitation period begins with all claims with the delivery of the goods. In the case of used items, the limitation period is one year from the delivery of the goods. This does not apply if the client has not notified the contractor of the defect in good time (paragraph 3 of this provision).
7. As the quality of the goods, the product description of the manufacturer is basically only agreed. Public statements, recommendations or advertising of the manufacturer do not constitute a contractually agreed quality statement of the goods.
8. If the client receives a defective manual, the contractor is only obliged to deliver a flawless manual and only if the defect of the manual is contrary to proper use.
9. Guarantees in the legal sense are not granted by us. Manufacturer's warranties remain unaffected.
10. In case of withdrawal from the contract or return of the contractual goods, the user rights of the customer expire.
11. Trading instruments of any kind are associated with high risk. Our software does not give any investment advice. The data generated by the software are based on logical and mathematical formulas that can contain errors. Every decision to trade is the responsibility of the customer, or user himself, even if our software is used to create your own automatic systems. Our software does not recommend buying, holding or selling. We recommend testing the software thoroughly with a demo account until the customer, or user has familiarized himself with the operation before switching to a real money account.

§ 10 Liability restrictions

1. In case of slight negligence, the liability of the contractor is limited to the foreseeable, typical, direct average damage that can be caused by the type of product. This also applies to slight negligent breaches of duty by a legal representative or vicarious agent of the contractor. The contractor is not liable for slight negligent breaches of non-essential contractual obligations.
2. The above and following limitations of liability do not apply to claims of the client from product liability. Further, the limitations of liability do not apply to damages caused by the contractor that lead to personal injury or damage to health or loss of life of the customer.
3. Damage claims of the client due to a defect shall expire after one year from delivery of the product. This does not apply in case of intent or fraudulent concealment of a defect by the contractor.
4. The client is obliged to do daily data backups. The contractor is not liable for damages that result from not making daily data backups. Furthermore, the client is obliged to inform the contractor immediately about possible software errors. The contractor is not liable for errors that are caused by the fact that an immediate notice was not made.
5. The contractor does not assume any liability for damages that result from wrong representation or advertisements or wrong use of the products, services and services. This applies in particular to our financial products.

11. Final Regulations

1. The relations between the contractor and the client are exclusively subject to the law of the Federal Republic of Germany. The provisions of the UN sales law shall not apply.
2. If the client is a merchant, a legal entity under public law or a public-law special asset, the business address of the contractor shall be the exclusive place of jurisdiction for all disputes arising from this contract. The same applies if the customer does not have a general place of jurisdiction in Germany or if his domicile or habitual residence are not known at the time the action is brought.
3. If the contract or these terms and conditions contain any gaps in regulation, the legally effective regulations agreed upon by the contracting parties in order to fill these gaps shall be deemed to have been agreed, which the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these general terms and conditions.