General Terms and Conditions of CHIPFACTORY GmbH
These General Terms and Conditions shall apply to all services and deliveries of Chipfactory GmbH (“AN”) unless the parties have expressly agreed otherwise in writing. The validity of the general terms and conditions can only be excluded or limited by an explicit mutual agreement in individual cases. The general terms and conditions also apply if the client (“AG”) invokes its own deviating terms and conditions. The contract forms, general terms and conditions or similar used by the AG are ineffective. Conflicting or divergent terms and conditions of the client shall not apply, even if they remain uncontested or, in the knowledge of such terms and conditions, the service is accepted without reservation. Deviations from these General Terms and Conditions, including deviations from the written form requirement, must be in writing in order to be effective. The terms and conditions apply equally to consumers and entrepreneurs in the sense of the UGB.
2. Parts of the contract, conclusion of the contract
2.1 Parts of the contract are the offer of the contractor in addition to these GTC. Verbal collateral agreements do not exist.
2.2 The offers of the contractor are in principle not binding, unless otherwise agreed in detail. The contract shall only then be considered legally binding if the contractor has handed over a written order confirmation after receipt of an order. The services are rendered by the contractor to the extent of the order he has accepted.
3. Prices, accounting and due date, right of retention
3.1 The fee for the service offered by the contractor is lump sum in the absence of a contrary agreement. However, the contractor is entitled to carry out billing according to the actual expenditure, if additional expenses are necessary due to changes. For each working hour including travel times net € 100.- will be charged. Starting hours are charged as a full hour.
3.2 The remuneration claim of the contractor arises upon conclusion of the contract and is due from this date. If the AG is in default of payment, the contractor is entitled to retain the vehicle provided by the AG. A delivery is made with full payment of the claims of the contractor. The right of retention exists for all claims arising from the order, in particular also for compensation for necessary and useful expenses as well as for damage caused by the AG. The right also exists vis-à-vis third party owners of the vehicle.
3.3 All costs of the enforcement of claims shall be borne by the Client. In case of delay of the AG with the payment an interest rate of 9,2% pA is agreed.
All dates are non-binding unless otherwise agreed in writing. A liability for damages due to delay of the contractor is excluded.
5. Testing and warning obligation / concerns
5.1 The obligation to examine provided goods delivery acc. § 377 UGB is expressly rejected. If any defects are discovered, the contractor is entitled to a complaint for a six-week period.
5.2 The contractor is not obliged to check the vehicle or other contributions provided by the AG. The client is obliged to inform the contractor about all relevant circumstances.
5.3 If there is a presumption that a defect is attributable to the quality of the material provided by the customer or to defective advance services, this must prove that there was no defect.
6.1 The client must take over the vehicle immediately after notification of completion. In the event of non-takeover, the contractor is entitled to charge EUR 25 per day as stand fee. The client is obliged to inspect the vehicle upon acceptance and to notify all defects without delay. Liability for defects caused by violation of the obligation to notify is excluded.
7. Warranty and damages
7.1 Liability for damage to the vehicle of the AG is excluded. The AG is aware that the changes carried out on its behalf will optimize the performance of its vehicle, which – depending on the condition of the vehicle – may lead to increased wear or improper operation resulting in damage. If installation of the tuning chip / software modification removes the warranty and guarantees granted by the manufacturer, the contractor shall not be liable.
7.2 The Contractor shall be released from its warranty and indemnification obligation in respect of a defect if the Principal can not prove that (i) the Contractor could have recognized the defect by observing due diligence or (ii) he avoids all warnings and concerns expressed by the Contractor Accounted for.
7.3 The warranty period, within the possible warranty claims