Terms and
Conditions

of Wolf & Wolf Software Engineering (hereafter called “Wolf & Wolf”), CEO Roland Farkas, Werner-von-Siemens-Str. 6, 86150 Augsburg, Germany.

1 General

1. Wolf & Wolf is an IT company specialising in the development of custom software and other software systems. The production and delivery of the systems includes all industry-typical tasks, such as project management, conceptual design, consulting, programming and administration. The following general terms and conditions apply to all business relationships between Wolf & Wolf and its clients.

2. Under these terms and conditions, consumers are considered natural persons who conclude a legal act with an objective relating neither to their commercial activities nor to their activities as self-employed entrepreneurs.
For the purpose of these terms and conditions, entrepreneurs are considered natural or juristic persons or business partnerships with a legal capacity that, in concluding this legal act, exercise their commercial or self-employed professional activity.
Under these terms and conditions, clients can be either consumers or entrepreneurs.

3. Any individual contractual agreements have priority over these general terms and conditions. Any deviating, contradictory, or supplementary general terms and conditions do not become part of the contract unless their validity is expressly consented to.

2 Conclusion of contract

1. All products and services as well as technical specifications and descriptions of the delivery item and/or object of services offered in quotations, brochures and other informational material are subject to change and are non-binding. Such offers only become binding for Wolf & Wolf upon receipt of an order confirmation.

2. The client can confirm the order in the written form, by fax or by e-mail. The client’s order represents a binding offer for the conclusion of a contract.
Neither a verbal receipt of an order nor a receipt by telephone represent, unless otherwise agreed, a binding confirmation on the part of the Wolf & Wolf.

3. Wolf & Wolf is entitled to accept the client’s offer of contract within 10 working days after receipt. For products ordered electronically, Wolf & Wolf is entitled to accept the order within 3 working days after receipt. Wolf & Wolf is entitled to decline the order without stating any reasons.

4. The conclusion of a contract is subject to the proviso that, should our suppliers not deliver the correct supplies at the correct time, we will not, or will not fully, fulfil our contractual obligations.
This applies only in the case that Wolf & Wolf is not responsible for the failure to perform and Wolf & Wolf has with all diligence concluded a concrete hedging transaction with the supplier. Wolf & Wolf will make all reasonable efforts to procure the product. Otherwise the reward is reimbursed without delay. In the case of non-availability or only partial availability of the product, the client is informed immediately.

3 Title retention and rights of use

1. With regard to consumers, Wolf & Wolf retains ownership of the product or any replacement deliveries until the compensation payment is made in full.
With regard to entrepreneurs, Wolf & Wolf reserves the right of ownership of the product or any replacement deliveries until all accounts receivable from a current business relationship have been settled.

2. In the case of the client acting against contractual agreements, particularly in the form of late payment, provision of false information by the client concerning his/her creditworthiness or legal compositions or insolvency proceedings being instituted against the client’s assets, Wolf & Wolf is entitled to withdraw from the contract in accordance with §§ 323, 324 BGB (German Civil Law Code) and to reclaim any of its products if the client has not, or not fully, provided compensation. Possible damage claims on the part of Wolf & Wolf remain unaffected by this.

3. If an entrepreneur resells the goods to a third party in the course of a regular business transaction, he/she immediately assigns all claims arising from the resale to Wolf & Wolf, up to the amount of the invoice.
Wolf & Wolf accepts the assignment. After the assignment the entrepreneur is authorised to collect the claim. Wolf & Wolf reserves the right to collect the claim itself should the entrepreneur fail to properly fulfil his/her payment obligations and the payment is delayed.

4. Upon demand of the entrepreneur, Wolf & Wolf undertakes to release any securities to which it is entitled to the extent to which the value of the securities exceeds by more than 10% the realisable value of Wolf & Wolf’s claims to be secured. The choice of securities to be released rests with Wolf & Wolf.

4 Rights of use

Wolf & Wolf grants the client the contractually agreed rights of use, which are, however, only transferred to the client upon full payment. Until full payment is received, Wolf & Wolf grants the client a suspensively conditional non-exclusive right of product use.

5 Prices, delivery, and payment conditions

1. Wolf & Wolf’s confirmation of order is relevant for the scope of the delivery and performance obligations. Wolf & Wolf is entitled to partial delivery if this is deemed acceptable for the client.

2. Unless otherwise agreed by Wolf & Wolf and the client, the invoice amount is payable by bank transfer within 14 days of invoice receipt.
For contracts regarding custom software, the following staggered payment plan applies unless otherwise agreed:
a) 33% of the total net amount plus statutory value added tax (VAT) upon receipt of order;
b) 33% of the total net amount plus statutory VAT upon acceptance of the detailed concept;
c) 34% of the total net amount plus statutory VAT upon final invoice upon acceptance.

3. The client is entitled to offset any counterclaims only if these counterclaims have been judicially established, and are undisputed and accepted by Wolf & Wolf. The client is entitled to exert a right of retention only if his/her counterclaim is based on the same contractual relationship.

4. If payment upon receipt of invoice has been agreed upon, the client will be in default of payment after the payment deadline indicated on the invoice has passed. If in late payment, the consumer is obliged to pay interest of 5% above the basis interest rate on the outstanding amount. The entrepreneur is obliged to pay interest of 8% above the basis interest rate on the outstanding amount during the late payment period. Wolf & Wolf reserves the right to claim higher damages for delay.

6 Risk transfer and acceptance

1. For consumers, the risk of incidental demise and deterioration of the sold product is transferred to the consumer upon handover or acceptance of the product.

2. For entrepreneurs, the risk of incidental demise and deterioration of the sold product is transferred to the entrepreneur upon handover or acceptance of the product; in the case of a sale involving the despatch of goods, including delivery of the good to a forwarding agent, it is transferred to the entrepreneur upon the submission of the good to the forwarding agent, carrier or other person or enterprise contracted for the delivery. This is not affected if the entrepreneur delays acceptance of the good.

3. The acceptance date is provided in the order confirmation. Otherwise the item must be accepted immediately upon completion.

4. Products and services are considered accepted as soon as a trial run has been successfully completed. Furthermore, they are considered accepted as soon as the client puts the product into operation.

5. If the client does not fulfil his/her obligation of acceptance and at the determined time of acceptance, the product is considered accepted and delivered 14 calendar days after Wolf & Wolf has declared the product ready for acceptance – except in the case of a justified refusal to accept.

6. If, for reasons for which Wolf & Wolf is not responsible, a new acceptance date must be set, all associated costs will be charged to the client.

7 Warranty

1. The warranty period for consumers is two years from the delivery or acceptance of the product. Notwithstanding this, the warranty period for entrepreneurs is one year from the delivery or acceptance of the product. Notwithstanding this, the warranty period for used products is one year from the delivery of the product. This one-year warranty period does not apply if Wolf & Wolf can be accused of gross negligence or fraudulent intent or if Wolf & Wolf is answerable for harm to the body or health or loss of life of the client, in a warranty case and in the case of a delivery recourse according to §§ 478, 479 BGB (German Code of Civil Law). Wolf & Wolf’s liability according to product liability law remains unaffected.

2. Wolf & Wolf guarantees that the software has been produced with due diligence and expertise.

3. Consumers can choose between supplementary performance through remediation of a defect or replacement of the product. Wolf & Wolf is entitled to refuse the selected supplementary performance if it involves disproportionally high costs while the other option has no significant disadvantages for the consumer.
For entrepreneurs, Wolf & Wolf provides a warranty for defects in the product according to its choice of remediation of the defect or replacement delivery.

4. Should the supplementary performance fail, the customer can generally demand either a reduction of payment due (abatement) or cancellation of the contract (withdrawal) as well as damages. Only in the case of insignificant defects is the client not entitled to withdrawal, under consideration of mutual interests. In place of damage claims instead of performance, the client can demand compensation, in the context of § 284 BGB (German Code of Civil Law), for wasted expenditures which have been justly made relying on reception of the product. If the client chooses damage claims instead of performance, liability limitations apply according to § 8, paragraph 1 of these general terms and conditions.

5. Entrepreneurs are obliged to report obvious defects in the product in the crocsystem within two weeks of receiving the product; otherwise, the assertion of a warranty claim is excluded. To keep the deadline, it is sufficient to send off the notification in time. The burden of proof pertaining to all claims rests with the entrepreneur, particularly with regard to the defect itself, the time of discovering the defect, and the timeliness of the notification of defect. For merchants, § 377 HGB (German Commercial Code) applies.

6. With regard to businesses, only the properties of the product as described in the manufacturer’s product description are considered as agreed upon. Public statements, promotions or advertisements by the manufacturer do not constitute further contractual properties of the product.

7. Wolf & Wolf does not offer any liability to the client in the legal sense. Manufacturers’ warranties remain unaffected.

8 Liability limitations

1. In the case of slight negligent breaches of obligation, liability is limited to liability according to the foreseeable, contract-typical and direct average damage for the particular product. This also applies to slightly negligent breaches of obligation by the legal representatives or performing/vicarious agents of Wolf & Wolf. Wolf & Wolf is not liable in the case of a slightly negligent breach of inessential contractual obligations. Wolf & Wolf is, however, liable for breaching obligations with regard to contractually essential legal positions of the client. Contractually essential legal positions are those which the contract must grant the client according to the content and purpose of the contract. Wolf & Wolf is further liable for breaches of obligations whose fulfilment is necessary to enable the contract to be fulfilled in the first place, and on whose keeping the client may rightly rely.

2. The above limitations of liability do not apply to any claims by the client deriving from warranties and/or product liability. Furthermore, the limitations of liability do not apply in the case of fraudulent intent, breach of contractually essential obligations, and if Wolf & Wolf is answerable for harm to the body or health or loss of life of the client.

9 Changes to the general terms and conditions

1. Wolf & Wolf is entitled to change these terms and conditions at any time in keeping with an appropriate prior notification period of at least two weeks. The notification is carried out in the form of a publication of the changed general terms and conditions, including the date of entry into force, on the company’s website, www.thepimcompany.com.

2. If the client does not express objection within two weeks of the publication, the changed terms and conditions are considered accepted. In the notification of the change, the significance of the two-week period is pointed out separately.

10 Final provisions

1. The law of the Federal Republic of Germany applies. For consumers who do not enter into the contractual agreement for professional or commercial purposes, this choice of law only applies in so far as the protection granted by compulsory legal provisions of the country of the consumer’s habitual residence is not withdrawn from the client.
The regulations of the UN Sales Convention do not apply.

2. If the client is a business person, legal entity under public law, or special fund under public law, the place of jurisdiction pertaining to any disagreements arising from this contract is the respective court at the Wolf & Wolf’s headquarters, unless an exclusive place of jurisdiction is given. The same applies if the client has no general place of jurisdiction in Germany or if no place of residence or place of habitual residence are known at the time of the commencement of a lawsuit.