General Terms and Conditions
As of: January 2012
General Terms and Conditions – ITservices24 GmbH
1. Scope of validity
For all deliveries and services of ITservices24 GmbH
(hereinafter referred to as ITserviceses24) in addition to the individual agreements, the terms and conditions apply exclusively, also for follow-up orders, without the need of an explicit reference. Deviating terms and conditions of a customer only become part of the contract if they have been acknowledged in writing by ITservices24. The fulfillment of a customer order does not mean the acceptance of their terms and conditions.
The conclusion of the contract with the customer only comes off when
ITservices24 has issued a written order confirmation. The order confirmation by ITservices24 and the specifications contained therein determine the content and the terms of the contract. Deliveries are made according to the latest manufacturer’s specifications at the time of conclusion of the contract.
If there are any doubts about the customer’s ability to pay, ITservices24 can make the execution of deliveries and services dependent on advanced payment of the contract amount or a security deposit. If the customer fails to comply with an appropriate request from ITservices24 within a reasonable period, ITservices24 is entitled to withdraw from the contract in whole, a part or to assert further claims.
3. Labor Contract
Services are provided according to the agreed specifications. ITservices24 is responsible for the result.
The service specifications contain the conditions of execution, the features, the planned dates and the acceptance conditions. The customer ensures that acceptance takes place immediately after the handover. Insignificant deviations from the agreed scope do not entitle the customer to refuse the acceptance of the ordered goods.
Services are solely for the advice and support of the customer. The exact scope is presented in a service description. Services do not guarantee the achievement of a certain success.
5. Delivery and service dates
Delivery and service dates are not binding, unless they are expressly designated as binding in the order confirmation. Time shall be determined according to the anticipated performance of ITservices24, subject to unforeseen circumstances and events, when they enter, reasonable extension of delivery and service times (including manufacturers and suppliers) shall be made.
Within delay by ITservices24, the customer may, after futile expiry of a period of grace of 4 weeks, refuse to perform their part of contract and demand compensation for intent or gross negligence, if they explicitly threatened ITservices24 with a deadline for rejecting the contract. Claims for damages against ITservices24 due to simple negligence are excluded. If ITservices24 is not responsible for exceeding the delivery and service times, particularly by event of a delay due to force majeure, ITservices24 may withdraw from the contract. Customer damage claims are ruled out.
6. Prices and terms of payment
If no separate price has been agreed, the calculation will be based on the date of order confirmation by ITservices24 generally agreed prices. All prices are exclusive of VAT or other statutory charges as well as any necessary costs for packaging, shipping, transport and transport insurance.
Payments are due 10 days after invoicing without any deductions. Checks are accepted as way of payment. The transfer of bills of exchange are excluded. Transfer and collection costs are charged to the customer. In case of late payment, ITservices24 is entitled to claim default interest of 4% above the default interest rate. Further claims are reserved for ITservices24.
The customer cannot offset counterclaims of ITservices24.
7. Transfer of risk and place of performance
When shipping goods, the legal regulations of dispatch purchase apply.
Place of fulfillment is Aschaffenburg.
8. Retention of title
Delivered goods remain the property of ITservices24 until the fulfillment of all, including future, claims arising from this contract and the further business relationship with the customer. The Customer is not permitted to pledge or transfer to any third party goods under the reserved ownership of ITservices24. However, he is entitled until further notice to resell the reserved goods in the ordinary course of business. The customer assigns his claims from the resale in the amount of the respective invoice value at the time of the order in advance to ITservices24.
In the case of combination or mixing of the reserved goods, ITservices24 acquires co-ownership pro rata in proportion to the invoice value of the remaining goods. Working with or processing the reserved goods resolving out of ITservices24 as the manufacturer in accordance with § 950 BGB, without any kind of obligations for ITservices24.
The processed goods are co-owned by ITservices24 according to the above provisions. In case of delayed payment of the customer or other facts that justify doubts about his ability to pay, ITservices24 is entitled to enter the business premises of the customer and to take possession of the reserved goods. The customer is obligated to hand over the reserved goods ITservices24 without being able to rely on any counterclaims. Insofar as the customer is a merchant, taking possession of the reserved goods or garnishment by ITservices24 does not constitute a withdrawal from the contract. If the value of the securities exceeds the claims of ITservices24 by more than 20%, ITservices24 releases the surplus of the securities at the customer’s request, whereby ITservices24 determines which goods and / or receivables are no longer required as collateral.
9. Customer obligations
In order to carry out the commissioned work, the customer will grant ITservices24 the necessary time and opportunity and will also provide the necessary support. The customer is responsible for the proper use of the equipment and programs included in the contract and will independently back up all programs and data and save them to external data carriers before starting work. Liability of ITservices24 does not exist if data is lost. ITservices24 can only take over the data backup after an express written agreement in the context of a service specification.
The Parties are aware that it is impossible in the prior art to ensure the proper functioning of data processing equipment, equipment combinations and data processing programs under all conceivable conditions of use and to exclude errors in data processing programs. However, ITservices24 guarantees the basic functional fitness and / or the technical usability of its deliveries and services as well as assured characteristics.
Excluded from the warranty are defects and damage resulting from operational wear, normal wear and tear, improper use, operating errors, customer behavior, operation with incorrect current and / or voltage, connection to unsuitable power sources, fire, lightning, explosion, network-related overvoltage, moisture of any kind, incorrect program operation and use of equipment without observing the manufacturer’s recommendations, software and / or processing data. A warranty is further excluded for devices whose serial numbers, type designations or similar markings have been removed or made illegible.
Insofar as manufacturers make warranty and warranty promises beyond the legal deadlines, ITservices24 will pass these fully on to the customer. In case of warranty, ITservices24 reserves the right to repair or replacement. If ITservices24 does not finally remedy the defect within a reasonable period of time set in writing, the customer is entitled either to withdraw from the contract or to demand a reasonable reduction in the purchase price or work wage.
Statements, illustrations and descriptions of products in brochures, other documents as well as in order confirmations do not constitute guaranteed properties within the meaning of the law, unless they are expressly listed as such in writing in the order confirmation.
11. Commercial Property Rights and Copyrights
ITservices24 shall not be liable if the goods supplied, in particular data processing programs, contain industrial property rights or copyrights of third parties. The customer must immediately inform ITservices24 of all claims against him for this reason. Insofar as deliveries and services have been made on the basis of documents and information provided by the customer, ITservices24 shall be exempt from all claims asserted by third parties for infringement of industrial property rights and copyrights. ITservices24 may charge a reasonable legal process fee.
The customer is entitled to use the programs, circuit diagrams, cabling and other documents provided to him for the contractually intended use. A transfer of copyright and other intellectual property rights is not associated with this. Any use exceeding the intended use, in particular dissemination, processing, duplication and transfer to third parties for a fee is not permitted to the customer. Excepted from this is the provision in § 69c section 3, sentence 2 UrhG.
ITservices24 is only liable for damages that could be expected to occur when the contract was concluded according to the then known circumstances. Liability for indirect damage, consequential damage or loss of profit is excluded. The liability of ITservices24 for intent or gross negligence, for missing warranted properties and according to the provisions of the Product Liability Act remains excluded from this limitation of liability. However, the liability is limited to the amount of the net invoice amount of the damage-causing delivery and service.
13. General provisions
Aschaffenburg am Main is agreed as court of jurisdiction.
Only the law of the Federal Republic of Germany applies. The application of the Vienna UN Convention on the International Sale of Goods (UNCITRAL) and the Uniform Law on the International Sale of Goods and on the conclusion of such sales contracts are excluded.
Changes and additions to the agreement, in particular deviations from these terms and conditions, must be made in writing in order to be valid.
Should one or more provisions of these General Terms and Conditions be or become ineffective or should the text of the contract contain a loophole, the contracting parties shall replace or supplement the ineffective or incomplete contract provision by a provision which comes closest to the intended purpose of the intended provision. The validity of the remaining provisions stay unaffected.