1.1. Our offers, services and deliveries are made exclusively on the basis of these terms and conditions. These terms and conditions shall be deemed accepted at the latest upon receipt of the goods or services. Counter-confirmations with reference to own terms and conditions are hereby expressly contradicted.
2. Offer, conclusion of contract and execution of order
2.1. Our offers are always subject to change and non-binding. The contract with the client shall only be concluded with our order confirmation or with the execution.
2.2. We are entitled to subcontract orders or parts of orders.
2.3. We reserve the right to make technical and design deviations from descriptions and information in brochures, catalogs and written documents as well as changes in the course of technical progress that are not fundamental, without this giving rise to any rights against us.
3.1. The prices valid on the day of delivery (daily price) shall apply to the deliveries and services of d-serv GmbH, unless a different price is expressly stated in our offer.
3.2. All prices shall be understood ex registered office Tübingen. Any agreements to the contrary must be confirmed in writing.
3.3. Price quotations which are recognizably directed exclusively at commercial customers shall, in case of doubt, be understood to be exclusive of statutory value-added tax.
4. Ancillary agreements, assurances
4.1. Subsidiary agreements, assurances and other agreements made before or at the time of placing a written order must be in writing to be effective.
5. Delivery and performance time
5.1. The dates and deadlines stated by us are non-binding unless expressly agreed otherwise in writing.
5.2. All delivery promises and dates are subject to correct and timely delivery by our suppliers.
5.3. Delays in delivery and performance due to force majeure and/or due to events that make performance significantly more difficult or impossible for us, e.g. operational disruptions, strikes, official orders, etc., shall entitle us to postpone delivery for the duration of the hindrance plus a reasonable start-up period.
6. Warranty and liability
6.1. The statutory warranty periods shall apply.
6.2. It is pointed out that, according to the state of the art, defects cannot be completely excluded under all conditions of use.
6.3. If operating instructions are not followed or changes are made to the products, any warranty shall lapse unless the customer proves that the changes are not the cause of the defect.
6.4. The customer shall inspect the products received for conformity with the contract within one month of receipt. He shall notify us in writing of any defects without delay, but no later than one month after handover. Defects which cannot be discovered within this period even after careful inspection shall be notified to us in writing immediately after discovery. Programs and other delivered products shall be deemed to have been accepted if, after expiry of the period referred to in sentence 1 for a further period of two weeks, usability is not significantly restricted due to reported errors.
6.5. Error reports shall only be considered if they are made in writing.
6.6. The Customer may initially only request rectification of defects. Only after two rectifications have failed can further warranty rights be asserted. The obligation to rectify errors can also be fulfilled if we provide a new program version.
6.7. Compensation claims for damages of any kind, regardless of the legal reason, including damages resulting from the use of software to data, software or hardware of the user are excluded, unless the damage is caused intentionally or by gross negligence. This shall not apply if the damage was caused by a breach of a cardinal obligation by d-serv GmbH.
6.8. All claims against us are not assignable without written consent and can only be asserted by the customer himself.
7. Retention of title
7.1. We reserve title to the delivered goods until full payment of all claims to which we are entitled, irrespective of the legal grounds.
7.2. Processing or transformation shall always be carried out on our behalf, but without any obligation on our part. If our (co-) ownership expires due to combination, it is already now agreed that the (co-) ownership of the customer in the unified object shall pass to us in proportion to the value (invoice value). The customer shall keep our (co-) ownership in safe custody free of charge. Goods to which we are entitled to (co-)ownership are hereinafter referred to as reserved goods.
7.3. The customer shall be entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledges or transfers by way of security are not permitted. The customer hereby assigns to us in full, by way of security, any claims arising from the resale or any other legal reason in respect of the goods subject to retention of title. We authorize the customer in a manner that is always revocable to collect the claims assigned to us for his invoices in his own name. Upon our request, the customer shall disclose the assignment and provide and submit the necessary information and documents.
7.4. In the event of access by third parties to the reserved goods, in particular in the event of seizure, the customer shall draw attention to our ownership and notify us immediately. Any costs incurred shall be borne by the customer.
7.5. In the event of any breach of contract by the customer, in particular in the event of default in payment, we shall be entitled to take back the reserved goods at the customer’s expense or, if necessary, to demand assignment of the customer’s claim for return against third parties. The repossession or seizure of the goods subject to retention of title by us shall not be deemed to be a withdrawal from the contract, unless the German Installment Purchase Act (Abzahlungsgesetz) applies.
8.1. Unless otherwise agreed, our invoices shall be due for payment immediately without deduction.
8.2. We shall be entitled to charge interest at a rate of 5% above the respective ECB prime rate from the 31st day after the due date.
8.3. If the customer does not meet his payment obligations in accordance with the contract or if he suspends his payments or if we become aware of other circumstances that call into question the customer’s creditworthiness, we shall be entitled to declare the entire remaining debt due and payable, to demand advance payments or the provision of security.
8.4. The customer may only offset a counterclaim if it is undisputed by the supplier or has been legally established. The customer may not assert rights of retention based on another contractual relationship with the supplier..
9. Property rights and copyrights
9.1. The ownership and copyright of the software supplied by us, the printed accompanying material and all copies of the software are held by the software manufacturer. The customer may use the software – unless a more extensive right of use has been expressly transferred – only on a single data processing system and make a single copy of the software exclusively for backup or archiving purposes. He shall only be entitled to copy any printed materials enclosed with the software on the basis of a written permission of the software manufacturer.
9.2. If the customer has modified the delivered product or integrated it into a system, or if we have designed the product on the basis of the customer’s instructions in such a way that this results in infringements of property rights, the customer shall be obliged to defend us or indemnify us against claims of the owner of the infringed right.
10.1. The export of our software to non-EU countries requires our written consent, irrespective of the fact that the customer himself is obliged to observe the statutory import and export regulations.
11. Place of performance and jurisdiction
11.1. Place of performance is Tübingen
11.2. In commercial transactions and vis-à-vis legal entities under public law, Tübingen is agreed as the place of jurisdiction.
11.3. The law of the Federal Republic of Germany shall apply exclusively. The application of the UN Convention on Contracts for the International Sale of Goods is expressly excluded.
d-serv GmbH, Tübingen © 2021