Terms of Service (ToS)

General Terms of Payment and Delivery of Serviceware SE („contractor“)

§ 1 Term for delivery

1.1 The term for delivery shall commence upon dispatch of the confirmation of order, yet not before the production of the documents, permits and approvals that may have to be acquired by the ordering party, nor before receipt of an agreed advance payment.

1.2 The term for delivery has been observed if the readiness for dispatch has been communicated or the delivery item has left the works.

1.3 The term for delivery shall be extended in the event of action in the scope of labor disputes, in particular strikes and lockouts as well as upon the occurrence of unforeseeable obstructions outlying our intention, e.g. disruptions, delays in supplies of essential materials to the extent that such obstructions provably have a significant impact on the delivery of the delivery item. This shall also apply if such circumstances arise for the sub-supplier. The term for delivery shall be extended in line with the duration of such action and obstructions.
We are also not responsible for the previously mentioned circumstances if they occur during a delay that is already existent. We shall inform the ordering party as soon as possible of the beginning and end of such obstructions in important cases.

1.4 Partial deliveries shall be permitted within the terms for delivery stated by us insofar as this does not result in disadvantages for use.

§ 2 Scope of delivery

2.1 The scope of delivery shall be determined by a written confirmation of order or special documents of contract and their appendices.

2.2 Modifications to the construction, software or design that result from improvements in technology or requirements by law shall remain reserved during the term for delivery insofar as the item of delivery is not significantly modified and the modifications are reasonable to the ordering party.

§ 3 Cancelation charge

If the ordering party unjustifiably cancels a submitted order, they shall remain obliged to pay the contractually agreed amount – yet minus the contractor’s saved efforts. In addition, the contractor can demand 10% of the sales price for lost profits without prejudice to the possibility of asserting higher actual damages. The ordering party reserves the right to provide proof of lower damages.

§ 4 Packaging and dispatch

Packages shall become the ordering party’s property and will be charged for by us. Delivery and packaging charges shall be invoiced separately. The type of delivery shall be selected at our best discretion.

§ 5 Acceptance and transfer of risk

5.1 The ordering party is obliged to accept the item of delivery. In the absence of a deviating agreement (delivery by us), the items of delivery are handed over at the ordering party’s business premises. The ordering party shall reserve the right to inspect the item of delivery within fourteen days of receipt of the delivery note or other notification of completion at the place of delivery. The ordering party is obliged to accept the item of delivery within the same term unless they are temporarily prevented from accepting it through no fault of their own.

5.2 If the ordering party deliberately or grossly negligently delays in accepting the item of purchase or item of lease for longer than fourteen days from the receipt of the delivery note, we shall be entitled to cancel the contract after granting a grace period of a further fourteen days or demand compensation for non-fulfilment.

A grace period need not be granted if the ordering party seriously or finally refuses to accept delivery or is obviously not in a position to pay the purchase price within this period.

5.3 The risk shall be transferred to the ordering party upon acceptance of the item of delivery. If the ordering party declares that they will not accept the item of delivery, the risk to the item of delivery of accidental perishing or deterioration shall be transferred to the ordering party at the time of refusal.

§ 6 Changes in prices

6.1 Changes in prices are permitted if there are more than four months between conclusion of the contract and the agreed delivery date. If, after that, wages, material costs or cost prices on the market increase by completion of the delivery, we are thus entitled to increase the price in a reasonable way in line with increases in costs. The ordering party is only entitled to cancel if the price increase more than significantly exceeds the increase in general subsistence costs from between the times of ordering and delivery.

6.2 If the ordering party is a businessperson, a body corporate organized under public law or a special fund under public law, changes in prices as per the afore-mentioned provision are permissible if there are more than six weeks between the conclusion of the contract and the agreed delivery date.

6.3 In the event of services provided by the contractor outside the contractor’s business premises, if the ordering party does not make use of at least 24 man hours in one piece, the contractor shall thus be entitled to invoice traveling expenses amounting to a lump sum of EUR 300.00 as journey time compensation plus the other agreed additional costs. This shall also apply to services offered including additional costs.

§ 7 Rectification, rescission and abatement

During a period of twelve months after accepting the item of delivery, the ordering party is entitled to have errors rectified (rectification). An error is only such if the source code itself is incorrect to the extent that the usability of the program has not been expressly agreed for a certain hardware or software environment. If we are not able to remove an error that is subject to our warranty obligation or if further attempts to rectify it are not reasonable for the ordering party, instead of the rectification, the ordering party can demand rescission (cancellation of the contract) or abatement (reduction in payment).
Natural wear and tear is exempted from the guarantee in all cases. The entitlement to compensation shall only exist in the scope stated under § 9.

§ 8 Retention of title

8.1 We retain the title to the items of delivery until paid for.

8.2 In the event of the ordering party’s behavior being contrary to the contract, especially in the event of a default of payment, we are entitled to redemption after a warning and the ordering party is obliged to surrender.

8.3 The assertion of the retention of title as well as the seizure of the items of delivery by us are not deemed as a withdrawal from the contract, insofar as the provisions of consumer credit law apply or if this is expressly declared by us in writing. In the event of its use towards a businessperson, a body corporate organized under public law or a special fund under public law, the following shall apply in addition:

8.4 The ordering party is entitled to resell the items of delivery that were bought by the ordering party in a proper business transaction; however, they assign to us with immediate effect all receivables amounting to the purchase price agreed between the ordering party and us (including sales tax) that accrues from the reselling, irrespective of whether the items of delivery are resold without or after being modified.

The ordering party is authorized to collect these receivables after assigning them. Our authority to collect the receivables ourselves shall remain unaffected; however, we pledge to not collect the receivables as long as the ordering party meets their payment obligations properly and is not in default. If this is, however, the case, we can demand that the ordering party announces the assigned receivables and the respective debtors, provides all information necessary for collection, provides the corresponding documents and informs the debtors (third parties) of the assignment.

8.5 The processing or transformation of the items by the ordering party is always performed for us. If the items of delivery are processed with other items that do not belong to us, we hereby acquire co-ownership of the new item in the ratio of the value of the items of delivery to the other processed items at the time of processing.

8.6 If the items of delivery are inseparably mixed with other items that do not belong to us, we hereby acquire co-ownership of the new item in the ratio of the value of the items of delivery to the other mixed items. The ordering party shall protect this co-ownership for us.

8.7 The ordering party is not permitted to pledge the items of delivery nor convey them as security. The ordering party must inform us of pledges as well as seizures or other dispositions without delay and provide us with all information and documents required to assert our rights. Executory officers or third parties must be informed of our property.

8.8 Should we receive collateral security from the client for the safeguarding of our demands and the client demands the release of the security before having settled the demands, we shall release the proportion of the security that exceeds the value of the demands by more then 20%.

§ 9 Compensation

Claims for compensation, especially claims for compensation arising from the contract, preliminary contract or torts, shall only exist in the cases of intent or gross negligence as well as in the event of a violation of a guarantee assumed by contract or essential contractual obligations (cardinal duties) on the basis of the following provisions.

a) Liability is limited to damages typical of the contract, unless the loss-incurring event was caused by one of our legal representatives or executive vicarious contractors in a grossly negligent or intentional manner;

b) We are liable for personal damage caused by us within the scope of the existing public liability insurance policy for property and personal damage for up to EUR 2 million, as well as for pecuniary damages up to EUR 500,000.00. In the event of property damage caused by us, we shall reimburse the effort for the repair of the property up to an amount of EUR 750,000.00 per loss event. In the event of damage to data carrier material, the liability to pay damages does not cover the effort for retrieving lost data and information;

c) All claims for damages shall expire 12 months after delivery or rendering of the service. This shall not apply to claims based on unlawful acts and from intentional violations of obligations;

All liability is excluded for the rest.

§ 10 Terms of payment

10.1 The purchase price and the charges for ancillary services are due for payment upon transfer of the item of delivery unless otherwise agreed on a case-to-case basis. All payments must be effected free from bank charges or other deductions to the contractor’s account stated on the invoice.

10.2 The issuance of checks and bills of exchange is not regarded as payment until discharged and are thus only a service for purposes of fulfillment. The acceptance of a bill of exchange always requires a former written agreement with us. When collecting bills of exchange, the bank’s discounting and collection charges are invoiced. They are due for immediate payment in cash.

10.3 We charge interest on arrears at 8% p.a. This is to be adjusted upwards or downwards if we can prove a burden with a higher interest rate or the ordering party proves a lower burden.

10.4 If the ordering party is a businessperson, a body corporate organized under public law or a special fund under public law, the retention of payments in return for any counterclaims by the ordering party that have not been recognized by us is not permitted. This equally applies to a set-off.

§ 11 Place of fulfillment and jurisdiction

11.1 Place of fulfillment is the contractor’s head office.

11.2 If the ordering party is a businessperson, a body corporate organized under public law or a special fund under public law, in the event of all disputes arising from the contractual relationship, action must be taken at the court that is responsible for our domicile. We are also entitled to take action at the ordering party’s domicile.

11.3 Solely German law shall apply under the exclusion of the Law on the International Sale of Goods, even if the ordering party has their business domicile abroad.

§ 12 Miscellaneous

12.1 Transfers of ordering party’s rights and obligations from the contract concluded with us require written permission to become valid.

12.2 In correlation with the business relations, information of a confidential nature, especially information about business processes, customer, employee and order data, technical information, documents and knowledge that are business secrets are conveyed or otherwise provided to the contractual partner. The recipient party pledges to keep this information strictly confidential and only make those employees within the company and all other affiliated companies (Article 15 ff. German Corporation Law), who are entrusted with immediate tasks in the respective project, aware of it An exception to this is information that is or becomes publicly know at no fault of the recipient party or is expressly released in writing by the disclosing party. In the event of a violation of confidentiality, the violating party is fully liable as defined by statutory regulations even for their employees or vicarious contractors.

12.3 Should one provision be or become void the validity of the other provisions shall remain unaffected hereby.

12.4 The principal will not directly or indirectly employ the employees assigned by the contractor for a period of 12 months after their assignment without the contractor’s permission. In the event of a violation of this loyalty agreement, a contractual fine totaling EUR 50,000.00 shall become due.

12.5 The contractor does not recognize contractual fines as well as lump-sum compensation by the principal going beyond this loyalty agreement. This shall also apply if the principal’s General Terms of Business contain such a clause and the contractor accepts these terms without reservation and/or without protest.