Terms and Conditions of Dacher Systems GmbH (hereinafter DS)
For contracts for deliveries and services between DS and its customers, these general terms and conditions apply exclusively, unless supplementary contractual conditions are included in the contract. These terms and conditions apply to all future business, even if they are not expressly agreed again. The conditions are deemed to have been accepted at the latest when the goods or services are accepted. Deviating conditions of the customer, which are not expressly recognized in writing by DS, are non-binding in any case. All agreements require the written confirmation of DS in order to be binding.
2. Order, placing of order
DS accepts verbal and written orders. The customer bears the risk of transmission errors in the context of verbal orders. However, a contract is only concluded with a written order confirmation, which usually takes place within two weeks. All offers made by DS are subject to change and non-binding. Services or goods compiled in an offer are only considered to belong together if this has been expressly agreed.
3. Bearing of risk and delivery
Even if the transport costs have been expressly agreed, DS delivers exclusively at the risk of the customer; When the goods are handed over to the customer or a person carrying out the transport, the risk is transferred to the customer. Even in the case of accidental destruction, accidental damage or loss of the goods, the customer must pay the full purchase price. The place of performance is Berlin. It is up to the customer to take out transport insurance. The transport risk for the arrival of goods returned to DS also lies with the customer.
4. Partial services, payments on account
DS is entitled to make partial deliveries, which can be invoiced according to their execution. DS expressly reserves the right to request advance payments. This applies in particular in cases in which the contract also includes the adaptation of the software to the customer's system or the creation of special software.
5. Delivery times
The delivery period for ordered goods is approx. 4 weeks, subject to timely delivery to us. A longer delivery period can also be agreed upon at the request of the customer. If this delivery period is exceeded by more than 2 weeks, the customer must set DS a grace period of 2 weeks, which begins with the notification to DS. After the grace period has expired, the customer can withdraw from the contract by registered letter. In this case, the customer can only claim damages if DS caused damage to the customer intentionally or through gross negligence; Further claims for compensation by the customer are - as far as legally permissible - excluded.
6. Prices and Payment
All prices given by DS are net prices without VAT; VAT is added at the respective statutory rate, unless the prices are expressly shown as gross prices including VAT at the respective statutory rate. Unless otherwise agreed, costs for special packaging and transport are to be borne by the customer. Software prices do not include installation and training as well as any software adjustments; nor do prices for software include installation, training and any necessary adaptation to other hardware and / or other software. Such services must be ordered separately by the customer and will then be charged separately; separately calculated instructions provide information about the most important performance characteristics of a delivery item without being able to replace detailed training. DS offers the customer separate service, maintenance and training agreements for such services. If the customer defaults on a payment, DS is entitled to charge interest at the rate usually charged by commercial banks for open overdrafts, but at least - if a consumer is not involved in the legal transaction - 8 percentage points above the base rate . If it is proven that the interest rate is higher, DS is entitled to charge the proven percentage. The proof of further damage remains unaffected. If the customer's check or bills of exchange are not cashed, DS is entitled to make the entire remaining debt due immediately, even if further checks or bills of exchange have been accepted. In this case, DS can also demand advance payments or security deposits for all other services contractually owed to the customer and withdraw from these contracts after a reasonable grace period and / or, if legally permissible, demand compensation for non-performance.
7. Retention of title
All goods delivered by DS to the customer remain the property of DS until all claims from the entire business relationship have been paid in full. The customer may neither pledge the goods subject to retention of title by DS, nor otherwise transfer them as security, nor resell or pass them on in any other way. The customer may only dispose of the items subject to retention of title to the extent that they are to be processed, installed or resold in the ordinary course of business. The treatment or processing of the goods subject to retention of title takes place for us without obliging us. The buyer's claims against his purchaser in the event of a resale are hereby assigned to DS. If DS's ownership expires through combination, mixing, processing or in any other way, it is already agreed that the customer's ownership of the new uniform item shall pass to DS in accordance with the value (invoice value of the goods). The customer keeps this (co-) ownership free of charge for DS. The customer already now assigns the claims arising from the resale, including the insurance benefit, in advance to the seller in the corresponding amount. If the value of the goods or claims of the customer covered by the simple or extended retention of title exceeds the claims of DS against the customer by more than 20 percent, the seller will reduce the claims of DS by more at the request of the buyer of the overcollateralization to the extent that the security interests than 20 percent. The buyer is obliged to notify DS immediately in writing of any seizure or other access by third parties to the goods delivered under retention of title. He is obliged to provide the DS with all necessary information that is necessary for the assertion of the rights from § 771 ZPO. Page 3/4 General Terms and Conditions of Dacher Systems GmbH He is also obliged to immediately notify DS of the ownership of the third party who has access to the goods delivered under retention of title. The customer must carefully store the goods delivered to him under retention of title and insure them against all risks at his own expense. The customer hereby assigns any future claims from the insurance contracts with regard to the delivered reserved goods to DS. The customer has to bear the costs of all measures that serve to maintain or secure the property of DS. This also applies if such a measure fails but objectively seems necessary. If the customer acts in breach of contract, in particular if he is in default of payment, DS is entitled to reclaim the goods delivered under retention of title without setting a grace period or declaration of withdrawal. The customer then has to return the goods immediately. A withdrawal from the contract by DS only exists if DS has expressly declared the withdrawal in writing.
8. Warranty and liability
Within the scope of the following provisions, DS guarantees for the duration of the warranty period that deliveries and services are free from defects in the legal warranty sense. The parties agree that software cannot be error-free under all application conditions. Obvious defects must be reported in writing no later than 14 days after receipt of the delivery. In commercial transactions, it is necessary that the commercial customer has properly complied with his inspection and complaint obligations specified in § 377, 378 HGB and notifies DS of the error in writing within 8 days at the latest, at the latest within 8 days of delivery or detection of the defect. The warranty period is one year from delivery of the goods to the customer or, in the case of shipment, from delivery to the transport company. The guarantee takes place at the choice of the customer through repair or replacement. If the attempt at repair or replacement should fail twice, the buyer is entitled to a reasonable reduction in the purchase price or, alternatively, to cancel the purchase contract. The prerequisite for this is that the customer has given DS a reasonable grace period by registered letter. Further claims due to faulty delivery or breach of secondary contractual obligations by DS are, as far as legally permissible, excluded; this applies to both damage and consequential damage. In the event of personal injury and breach of a main (cardinal) duty, DS is liable within the framework of the statutory provisions. Otherwise there is only liability in the event of willful intent and gross negligence. If and to the extent that the liability of DS is excluded, this also applies to the personal liability of employees, employees, employees, representatives and vicarious agents of DS. The provisions of the Product Liability Act remain unaffected. There is no guarantee that the object of purchase will work flawlessly in conjunction with other products. The assertion of the warranty claim is excluded if operating or maintenance instructions are not followed, changes are made to the delivered goods, parts are replaced or consumables are used that do not correspond to the original specifications. At the request of DS, in the event of a warranty claim, the customer must send the goods complained about, stating the exact nature of the complaint and the invoice number to DS. DS will reimburse the costs incurred to a reasonable extent. The customer and DS agree that software programs cannot be error-free under all application conditions. Additional on-site services are also to be paid for in the event of a warranty. Additionally in this sense are all services that are not covered by the guarantee.
DS generally sells software (standard software) as commercial goods. The customer is obliged to recognize the delivery and contractual conditions of the software manufacturer or software supplier as well as the copyrights of the software manufacturer or license holder. This applies accordingly if the software has been adapted or developed to the customer's system.
10. Patent and copyrights
DS reserves the right of ownership and copyright to the software, circuit diagrams, drawings, drafts, descriptions, plans, concepts and similar documents it has created. They may not be made accessible to third parties without the written consent of DS. Copying is prohibited without the express consent of DS. Upon request, they must be returned to DS immediately, provided this does not contradict other usage agreements. In the event of a violation, DS is entitled to claim damages. DS cannot be made liable for any infringement of any patent or other property rights by the customer. The customer releases DS from any third party claims.
11. Return of goods / exchange
Returns of goods are only permitted with the express prior consent of DS. In the case of the agreed return of goods, a flat fee is generally charged. Returns of goods that arrive "freight collect" at DS will not be accepted. In the event of an incorrect order by the customer, the goods must be returned to DS "carriage paid"; the customer bears the transport risk.
12. Place of jurisdiction, place of performance and application of law
The law of the Federal Republic of Germany is the basis for all disputes resulting from this contract. For all possible disputes with DS from a business relationship or their initiation, the place of jurisdiction is agreed as the place of jurisdiction of DS as far as legally permissible. The place of performance is Berlin.
13. Partial ineffectiveness
If one or more of the above provisions should be or become ineffective, the effectiveness of the others will not be affected. The parties undertake to replace these provisions with an effective provision that comes as close as possible to the economic meaning of the ineffective provision. The above applies accordingly in the case of gaps.