Adalogic GmbH

General Terms and Conditions

(v02; 02-2022)

Section II – General Part

1. Validity

1.1 These General Terms and Conditions (GTC) shall apply only to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB), hereinafter referred to as "Customer".

1.2 These General Terms and Conditions shall apply to all business relations between Adalogic GmbH, Volmerstraße 3, 12489 Berlin, and the Customer. Any deviating or conflicting terms and conditions of the Customer shall not be recognized by us unless we have expressly agreed to them.

1.3 These terms and conditions shall also apply to all future business transactions between the parties and also if we carry out the delivery of the goods in the knowledge of deviating or conflicting terms and conditions.

1.4 The provisions of the first section of these Terms and Conditions shall be subordinate to the more specific terms and conditions of the following sections, if applicable.

1.5 The GTC of Adalogic GmbH are available in German and English. If different interpretations are possible between the German and the English version of these terms and conditions, the German version shall apply. In the event of any discrepancies, the wording in German shall prevail. In case of different interpretations of these standards, the German version shall prevail.


2. Offers and Conclusion of Contract

2.1 Offers made by Adalogic GmbH are always subject to change, unless they are limited in time. Our written order confirmations shall form the basis of the contract and shall determine the scope of delivery. This shall also apply if the Customer has requested Adalogic GmbH to submit a specific offer. Orders placed by the Customer shall be binding on the latter and shall be deemed to have been accepted by or on behalf of Adalogic GmbH upon presentation of the order confirmation or upon performance of the relevant service. Subsidiary agreements and amendments must be confirmed by Adalogic GmbH.

2.2 Even in the case of orders confirmed by Adalogic GmbH, Adalogic GmbH shall be released from any obligation to deliver if delivery or partial delivery is or becomes impossible for Adalogic GmbH due to unforeseen obstacles for which Adalogic GmbH is not responsible. Such reasons are e.g. official orders, force majeure or failure of timely and correct self-delivery.

2.3 If documents such as illustrations, drawings, weights and dimensions are part of an offer of Adalogic GmbH, they are only approximations unless they are expressly designated as binding. Adalogic GmbH reserves title and copyright to price information (e.g. in the form of quotations), drawings and other documents; they may not be made available to third parties.

2.4 If the order constitutes an offer within the meaning of Section 145 of the German Civil Code (BGB), Adalogic GmbH shall be entitled to accept it within a period of two weeks.


3. Prices, Payment

3.1 Unless otherwise stated in the order confirmation, the prices quoted shall be ex works or ex warehouse (EXW). The statutory value added tax is not included in the prices; it will be included in the invoice at the rate applicable on the date of invoicing and will be shown separately. Orders for which fixed prices have not been expressly agreed shall be invoiced at the list prices valid on the day of delivery. If the basis of calculation changes, Adalogic GmbH reserves the right to adjust prices. The Customer shall bear the costs of shipment and packaging and of any customs clearance that may be required, unless otherwise stated in the order confirmation.

3.2 Prices marked "without customs duty" shall apply in the event of timely submission of a customs clearance declaration, subject to recognition by the customs authorities. The customs clearance shall be deemed to have been submitted in good time if it is available at the time of invoicing.

3.3 The Customer shall be in default if it fails to settle payments due no later than 30 days after receipt of the invoice or equivalent request for payment. Adalogic GmbH reserves the right to cause default at an earlier point in time by issuing a reminder due after the due date. Notwithstanding sentences 1 and 2, the Customer shall also be in default if it is agreed that the purchase price is to be paid at a date specified in the calendar and the Customer does not make payment by this date at the latest. Invoices shall be due for payment without deduction. Adalogic GmbH reserves the right to make deliveries only against advance payment or cash on delivery, in particular in the case of first orders or after payment due dates have been exceeded.

3.4 Payments shall only be deemed to have been received by Adalogic GmbH when Adalogic GmbH can dispose of them. This shall normally be the case after unconditional crediting of the invoice amount to an account of Adalogic GmbH.

3.5 The Customer shall only be entitled to withhold payments or to set off payments against any counterclaims if such counterclaims are undisputed and have been expressly acknowledged by Adalogic GmbH or have been finally determined by a court of law. In addition, the Customer shall only be entitled to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.

3.6 In the event of default in payment, the Customer shall pay default interest to Adalogic GmbH at the respective statutory rate, subject to the assertion of further damages by Adalogic GmbH.

3.7 Adalogic GmbH may make outstanding deliveries dependent on the timely receipt of payment of due receivables. If, after conclusion of the contract, Adalogic GmbH becomes aware of circumstances which reduce the creditworthiness of the Customer, Adalogic GmbH may withdraw from the contract and, irrespective of due dates, demand immediate payment or the return of the goods already delivered.


4. Offsetting, retention

The Customer shall be entitled to set-off only to the extent that its counterclaims are undisputed or have been finally determined by a court of law. The customer shall only be entitled to assert rights of retention on the basis of counterclaims arising from the same contractual relationship.


5. Delivery

5.1 Delivery requires the timely and proper fulfillment of the customer's obligations. The objection of non-fulfillment of the contract remains reserved.

5.2 In the event of default in acceptance or other culpable breach of duties to cooperate on the part of the Customer, Adalogic GmbH shall be entitled to demand compensation for the resulting damage, including any additional expenses. Adalogic GmbH reserves the right to assert further claims. In this case, the risk of accidental loss or accidental deterioration of the goods shall pass to the Customer at the time of default of acceptance or other breach of duties to cooperate.


6. Transfer of risk, shipment

If the goods are shipped at the request of the customer, the risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the time of shipment.


7. Retention of title

7.1 The goods shall remain the property of Adalogic GmbH until all payments have been received in full. In case of breach of contract by the Customer, including default of payment, Adalogic GmbH shall be entitled to take back the goods.

7.2 Until the transfer of ownership, the Customer shall handle the goods with care, insure them appropriately and, if necessary, maintain them at its own expense.

7.3 Insofar as the purchase price has not been paid in full, the Customer shall notify Adalogic GmbH in writing without delay if the goods are encumbered with third-party rights or exposed to other third-party interventions.

7.4 The Customer shall be entitled to resell the goods subject to retention of title in the ordinary course of business. In this case, however, it hereby assigns to Adalogic GmbH all claims arising from such resale, irrespective of whether such resale takes place before or after any processing of the goods delivered under retention of title. Notwithstanding Adalogic GmbH's right to collect the claim itself, the Customer shall remain authorized to collect the claim even after assignment. In this context, Adalogic GmbH undertakes not to collect the claim as long as and to the extent that the Customer meets its payment obligations, no application for the institution of insolvency or similar proceedings has been filed and no suspension of payments has occurred.

Furthermore, the customer is permitted to process, transform and combine the reserved goods with other objects. The processing or transformation shall be carried out on behalf of Adalogic GmbH. Adalogic GmbH shall become the direct owner of the item produced by processing or remodeling in proportion to the value of the delivery. The processed or transformed item shall be deemed to be goods subject to retention of title. In the event of processing, transformation or combination with other items not belonging to Adalogic GmbH, Adalogic GmbH shall be entitled to a co-ownership right in the new item in the amount of the share resulting from the ratio of the value of the processed, transformed or combined reserved goods to the value of the new item. The share of the claim assigned to Adalogic GmbH shall have priority over the other claims.

The Customer shall not be entitled to dispose of the reserved goods other than as set out above, in particular to pledge or assign them as security. In the event of seizure, attachment or other dispositions by third parties, the Customer shall be obliged to draw attention to the ownership of Adalogic GmbH. The Customer shall notify Adalogic GmbH without delay of any impairment of the rights to the items owned by us.

7.5 To the extent that the above-mentioned securities exceed the claims to be secured by more than 10%, Adalogic GmbH shall be obliged to release the securities at our choice upon the Customer's request.

7.6 The assertion of a reservation of title by Adalogic GmbH as well as the seizure of the delivery item by Adalogic GmbH shall not be deemed a withdrawal from the contract. Even after the assertion of rights of retention of title, Adalogic GmbH shall retain claims under the contract and in particular claims for damages.

7.7 If the Customer is domiciled in another jurisdiction and the principle of retention of title is unknown to such jurisdiction, the Customer undertakes to provide Adalogic GmbH with security equivalent to retention of title to the extent that it grants Adalogic GmbH a right in rem in the item (security in rem) and to assist Adalogic GmbH in every respect in providing such security in rem.


8. Warranty

8.1 The prerequisite for any warranty rights of the Customer shall be its proper fulfillment of all inspection and complaint obligations owed under § 377 of the German Commercial Code (HGB).

8.2 Warranty claims shall become statute-barred within 12 months after the passing of risk.

8.3 If the defect is based on the defectiveness of a supplier's product and if the supplier does not act as a vicarious agent of Adalogic GmbH, but Adalogic GmbH merely passes on a third-party product to the Customer, the Customer's warranty claims shall initially be limited to the assignment of Adalogic GmbH's warranty claims against its supplier. This shall not apply if the defect is due to improper handling of the supplier's product for which the Customer is responsible. If the Customer is unable to assert its claims for defects against the supplier out of court, Adalogic GmbH's subsidiary liability for defects shall remain unaffected.

8.4 Modifications or extensions to the services or delivered items made by the Customer itself or by third parties shall render Adalogic GmbH's claims for defects null and void unless the Customer proves that the modification or extension is not the cause of the defect. Adalogic GmbH shall also not be liable for defects caused by improper operation and operating conditions or the use of unsuitable operating materials by the Customer.

8.5 Adalogic GmbH may refuse subsequent performance until the Customer has paid the agreed remuneration, less a part corresponding to the economic significance of the defect.


9. Liability

9.1 Adalogic GmbH shall be liable for gross negligence in accordance with the statutory provisions; the same shall apply in the event of culpable breach of material contractual obligations.

9.2 Unless otherwise expressly provided above, any liability of Adalogic GmbH shall be excluded. Liability for culpable injury to life, body or health as well as liability under the Product Liability Act shall remain unaffected.

9.3 In the absence of intentional breach of contract, Adalogic GmbH's liability for damages shall be limited to the foreseeable, typically occurring damage. Adalogic GmbH shall be liable for damages due to the lack of warranted characteristics up to the amount which was covered by the purpose of the warranty and which was recognizable for Adalogic GmbH at the time of giving the warranty.

9.4 Adalogic GmbH shall be liable for damages arising from the breach of cardinal obligations, its legal representatives or vicarious agents; cardinal obligations are those essential obligations which form the basis of the contract, which were decisive for the conclusion of the contract and on the performance of which the Customer may rely. If Adalogic GmbH has breached these cardinal obligations due to slight negligence, its liability shall be limited to the amount which was foreseeable for Adalogic GmbH at the time of the respective performance.


10. Export Control Regulations

Certain goods may be subject to German, European and/or US export control regulations. The Customer shall be responsible for compliance with the relevant regulations in the event of onward delivery to a third country.


11. Applicable Law, Place of Performance and Jurisdiction

11.1 This contract shall be governed by the substantive law of the Federal Republic of Germany. The same shall apply to the power of attorney.

11.2 The place of performance for both parties shall be the registered office of Adalogic GmbH in 12489 Berlin.

11.3 The exclusive place of jurisdiction for all disputes arising from or in connection with this contract shall be Berlin. However, Adalogic GmbH shall also be entitled to bring an action at the Customer's principal place of business.


12. Other provisions

The invalidity of individual provisions of this contract shall not affect the validity of the remaining provisions. In this case, the parties undertake to agree on effective provisions which come closest in economic terms to the intended purpose of the invalid provisions. This shall apply accordingly to the closing of any loopholes in this contract.



Section II – Software

1. Scope of Application and Granting of Rights

1.1 The provisions of this section shall apply exclusively to the transfer of software, in particular by sale, lease and other forms of transfer of use. The right of use applies only to the software version in object code expressly named on the invoice.

1.2 Adalogic GmbH grants the Customer a geographically unrestricted, simple, non-transferable right to use the subject of the License. The period of use shall commence upon acquisition of the Software by the Customer; the period of use shall be specified in the invoice.  If the transfer of physical copies, dongles or license keys is contractually agreed or required for the contractual use of the Software, the Customer shall receive a number of copies, dongles or license keys corresponding to the number of use licenses acquired.

1.3 The right to reproduce the subject matter of the License shall be limited to the installation of the subject matter of the License on a computer system directly owned by the Customer for the purpose of fulfilling the purpose of use and to a reproduction necessary for loading, displaying, running, transferring and storing the subject matter of the License as well as to the right to make a backup copy of the subject matter of the License by a person authorized to do so pursuant to Section 69d (2) UrhG.

1.4 The Customer shall not be granted any further rights of use and exploitation of the subject matter of the License.

1.5 Upon request and to the extent that there is a legitimate interest in doing so, the Customer shall permit Adalogic GmbH or a third party commissioned by it to examine whether the use of the subject matter of the Licence is within the scope of the rights granted herein; the Customer shall support Adalogic GmbH in carrying out such examination to the best of its ability.


2. Handover and Installation of the Licensed Subject Matter

2.1 Adalogic GmbH shall provide the Customer with the number of copies of the subject matter of the License required to exercise the rights of use and exploitation granted herein in machine-readable form, at Adalogic GmbH's option, either on a data carrier customary at the time or by remote data transmission as a download.

2.2 The Customer shall be responsible for operating the Software only on a system environment that meets the requirements and specifications of the Software.

2.3 If installation is required, this shall be the responsibility of the Customer. Upon request, the Customer shall inform Adalogic GmbH in writing of the respective installation locations of the copies of the subject matter of the License. This shall also apply to any subsequent change in the installation locations.

2.4 Adalogic GmbH shall retain title to all copies of the subject matter of the license until the license fees have been paid in full. In the event of a breach of the contract by the Customer, in particular in the event of default in payment, Adalogic GmbH shall be entitled to demand, at the Customer's expense, the return of all copies of the subject matter of the Licence to which Adalogic GmbH has retained title or, where relevant, to demand the assignment of such rights to which the Customer is entitled against third parties. In this case, the Customer shall confirm to Adalogic GmbH in writing upon request that it has not retained any copies of the Licensed Material and that all installations of the Licensed Material have been irrevocably deleted from the systems of the Customer or the third party. Prior to the final transfer of ownership, the Customer shall only dispose of the rights to the Licensed Object with the prior written consent of Adalogic GmbH.

2.5 The transfer of the Software to third parties shall in any case require the consent of Adalogic GmbH. If the Software is transferred for the purpose of resale, acceptance of these terms and conditions by the third party purchaser must be ensured.


3. Claims in case of material defects

3.1 Claims for defects shall not exist in the event of an insignificant deviation from the agreed or assumed quality and in the event of an only insignificant impairment of the usability. Product descriptions shall not be deemed a warranty without a separate written agreement. In the case of update, upgrade and new version deliveries, the claims for defects shall be limited to the innovations of the update, upgrade or new version delivery compared to the previous version status.

3.2 If the Customer demands subsequent performance due to a defect, Adalogic GmbH shall have the right to choose between rectification, replacement delivery or substitute performance. If the Customer has set Adalogic GmbH a further reasonable period of grace after the first period has expired without result and this period of grace has also expired without result, or if a reasonable number of attempts to remedy the defect, make a replacement delivery or provide a replacement service have been unsuccessful, the Customer may, subject to the statutory requirements, at its option withdraw from the contract or reduce the purchase price and claim damages or reimbursement of expenses. Subsequent performance may also be effected by handing over or installing a new program version or a work-around. If the defect does not impair the functionality or does so only insignificantly, Adalogic GmbH shall be entitled, to the exclusion of further claims for defects, to remedy the defect by delivering a new version or an update within the scope of its version, update and upgrade planning.

3.3 Defects shall be notified in text form by a comprehensible description of the defect symptoms, as far as possible proven by records or descriptions or other documents illustrating the defects. The notice of defect shall enable the reproduction of the defect. Statutory obligations of the customer to examine and give notice of defects shall remain unaffected.

3.4 The limitation period for claims for defects in software shall commence upon delivery of the first copy of the subject matter of the license and the instructions for use, if such are owed. In the case of the delivery of updates, upgrades and new versions, the period for these parts shall commence in each case upon delivery.


4. Claims in case of defects of title

4.1 The Software delivered or provided by Adalogic GmbH shall be free of any third party rights which may prevent its use in accordance with the contract.

4.2 If third parties are entitled to such rights and assert them, Adalogic GmbH shall do everything in its power to defend the Software against the asserted rights of third parties at its own expense. The Customer shall immediately notify Adalogic GmbH in writing of the assertion of such third party rights and grant Adalogic GmbH all powers of attorney and authority necessary to defend the Software against the asserted third party rights.

4.3 To the extent that defects in title exist, Adalogic GmbH shall be entitled (a) at its option (i) to take lawful measures to eliminate the rights of third parties which impair the contractual use of the Software, or (ii) to eliminate the assertion thereof, or (iii) to modify or replace the Software in such a way that it no longer infringes third-party rights, if and to the extent that the functionality of the Software owed is not significantly impaired thereby, and (b) to reimburse the Customer for the necessary reimbursable costs of legal action incurred by the Customer. If the indemnification fails within a reasonable period of grace set by the Customer, the Customer may, at its discretion and subject to the statutory requirements, rescind the contract or reduce the purchase price and claim damages.

4.4 In all other respects, clause 3 of this section and clause 8 of the first section shall apply mutatis mutandis.


5. Liability, Compensation

5.1 Adalogic GmbH shall be liable under this contract only in accordance with the following provisions:

5.2 Adalogic GmbH shall be liable for the loss of data only up to the amount that would have been incurred to restore the data had it been properly and regularly backed up.

5.3 Any further liability of Adalogic GmbH shall be excluded on the merits.



Section III – Services

1. Scope of services

A certain success or a suitability of the result of the service for a purpose intended by the Customer shall only be owed if this has been explicitly agreed.


2. Performance of the Service

2.1 The Customer shall be obligated to contribute what is necessary on its part for the performance of the Service. This includes, in particular, granting access to the place of the service, the object of measurement, testing or application, providing data in a form usable by Adalogic GmbH, insofar as this is required for the service, and creating sufficient conditions for the performance of the service within the scope of what is locally and factually possible.

2.2 If third party approval is to be obtained for the performance of the service, the Customer shall be responsible for obtaining such approval.

2.3 The Customer shall instruct the employees of Adalogic GmbH involved in the performance of the Service on site in the relevant work and safety regulations and shall draw their attention to any particularly hazardous circumstances. If the service is performed in or at a facility belonging to the Customer and if special protective equipment is required in this context, the Customer shall provide such equipment free of charge for the performance of the service and shall monitor its correct use.

2.4 If the performance of the Service requires access by employees or agents of Adalogic GmbH to the Customer's equipment, installations or other facilities, the Customer shall draw attention in advance to the special features of its facilities (e.g. particular sensitivity or high susceptibility to damage), instruct it on the necessary protective measures and ensure compliance therewith. The Customer shall inform Adalogic GmbH of any special protective measures to be taken prior to the service.

2.5 If, for the purpose of preparing or performing the Service, modifications or other interventions in the Customer's equipment, installations or other facilities are required and if such modifications or interventions are performed with the Customer's consent, Adalogic GmbH and its agents shall not be liable for any damage resulting from such modifications or interventions.


3. Evaluation and results

3.1 The Customer shall acquire the exclusive right of use to the evaluation materials sent to it within the scope of the evaluation.

3.2 The Customer shall grant Adalogic GmbH a reasonable period of time for the evaluation. Unless there are special circumstances and unless otherwise agreed, a period of 6 weeks shall be deemed reasonable.

3.3 Unless otherwise agreed, the evaluation shall be provided in text form.

3.4 Unless otherwise agreed, any discussion, interpretation or other post-processing or follow-up of the results of the Service shall not be part of Adalogic GmbH's obligations.



Section IV – Maintenance and Support Services

1. Scope of Services

The Customer shall only be entitled to maintenance, servicing and support services which Adalogic GmbH provides or has provided by qualified third parties outside any existing defect liability obligations if this has been agreed accordingly between Adalogic GmbH and the Customer. The same shall apply to the scope of corresponding services.


2. Support

2.1 Adalogic GmbH shall, at the Customer's request, advise and support the Customer via telephone, e-mail or online video conference on the proper use of the product and its components as well as in the event of errors and defects. The advice may be made conditional upon the Customer having previously attended a training course on the product organized by Adalogic GmbH. General application-related questions are not subject of the consultation.

2.2 The Customer may contact Adalogic GmbH by telephone

on weekdays from 9.00 a.m. to 12.00 p.m. and 1.00 p.m. to 4.00 p.m. (all times CET)

a contact person is available at the service number specified in the offer, order, order confirmation or on the website of Adalogic GmbH, to whom the Customer can submit error messages and express requests for advice. The advice shall be provided via callback by an employee of Adalogic GmbH. If possible, the callback should take place on the same day or on the working day following receipt of the telephone call. Working days are the weekdays from Monday to Friday, which are not official holidays in the state of Berlin.

2.3 Requests may also be made by e-mail or by post (Adalogic GmbH, Volmerstraße 3, 12489 Berlin). Adalogic GmbH will answer inquiries made in this way promptly within the scope of its possibilities.


3. Remuneration

3.1 The amount of remuneration shall be determined by the maintenance or support agreement.

3.2 Adalogic GmbH shall invoice the Customer for the contractually owed remuneration at the beginning of the maintenance period. The invoice shall be due for payment within 14 working days.

3.3 Any additional expenses incurred by Adalogic GmbH as a result of the Customer's failure to comply with its obligations under these Terms and Conditions shall be charged at an hourly rate of EUR 155.00 plus VAT.


4. Services not owed

4.1 Unless expressly agreed, there shall be no entitlement to the following services within the scope of a maintenance and support agreement:

a) the modification and / or supplementation of the software in question, including the services provided under this agreement, in a specific manner, insofar as this does not merely result in the elimination of a defect;

b) the adaptation of the Software to versions used by other users or distributed by Adalogic GmbH and which constitute a customary, distinct and therefore independent distribution service;

c) the elimination of defects or malfunctions for which the Customer or third parties are responsible, in particular when the Software is used under a different operating system, when hardware or program code is interfered with or when the Software is operated within the scope of unsupported interoperability;

d) the training of the Customer's personnel in the use and application of the Software;

e) the installation of the Software at the Customer's premises.

4.2 The list in paragraph 4.1 is not exhaustive. It cannot be concluded from the lack of naming of services that these services are the subject of the contractual obligations of Adalogic GmbH.


5. Obligations of the Customer to cooperate

5.1 The Customer shall support Adalogic GmbH in every respect in the performance of the service and support services. This includes in particular the transmission of test cases and/or test data, the provision of error logs, screenshots, etc. upon request of Adalogic GmbH.

5.2 The Customer shall describe defects and malfunctions in as much detail as possible, describing the error symptoms, the conditions of use, previous instructions to the software, the system and hardware environment including any third-party software used. Any report shall be made immediately after discovery of the error by telephone or e-mail.

5.3 A further prerequisite for the provision of maintenance services is that the Customer does not operate the products of Adalogic GmbH in a system environment other than the one relevant at the time of acquisition or conclusion of a maintenance contract without agreement.


6. Obligation to examine and give notice of defects

6.1 The Customer shall inspect the Maintenance Services, including any modified or supplemented documentation, without undue delay after delivery, in particular with regard to completeness and functionality of basic program functions.

6.2 Adalogic GmbH must be notified immediately in text form of any defects discovered in the course of such inspection. The notice of defects shall contain as detailed and specific a description of the defects as possible.

6.3 Defects which could not be detected within the scope of the proper inspection described above must again be notified in text form without undue delay after discovery. This notice of defects must also contain as detailed and specific a description of the defects as possible.