Marks Software GmbH, Brock 6, 29683 Bad Fallingbostel, Germany (hereinafter referred to as "MS").
1. Scope
1.1 These General Terms and Conditions (GTC) apply to all contracts, deliveries, and services between MS and the customer. Deviating terms and conditions of the customer shall only be recognized if MS expressly agrees to them in writing.
1.2 These GTC apply to both consumers and entrepreneurs. Consumers are natural persons who are not acting for purposes relating to their trade, business, or self-employed professional activity. Entrepreneurs are natural or legal persons or partnerships with legal capacity who act in the exercise of their commercial or independent professional activity.
1.3 MS is entitled to assign claims arising from the business relationship.
2. Amendments to the GTC
2.1 MS may amend these GTC with a reasonable notification period. If the customer does not object within the specified period, the amendment shall be deemed accepted.
2.2 MS will explicitly point out the objection period and the consequences of silence in the notification.
2.3 Information and declarations regarding the contractual relationship may be sent to the email address provided by the customer.
3. Offer and Conclusion of Contract
3.1 Offers from MS are non-binding and subject to available resources and timely delivery by suppliers. By placing an order, the customer submits a binding offer. MS can accept this offer by delivery, order confirmation, or another appropriate method.
3.2 In the event of discrepancies between the order and the order confirmation, the statement from MS shall prevail, provided it does not constitute a new offer.
3.3 Obvious errors, spelling, printing, and calculation errors are not binding for MS.
4. Description of Services and Modifications
4.1 To the extent that the customer's requirements are not already apparent from the contract, MS shall draw up a specification sheet (requirements and functional specifications) in coordination with the customer. This serves as the binding basis for further work and may be adjusted through mutual coordination.
4.2 If the customer substantially changes the task description, MS may withdraw from the contract. Costs already incurred shall be borne by the customer.
4.3 If a change request affects timelines or workload, MS may demand a reasonable adjustment of the contractual terms.
4.4 Delays for which MS is not responsible shall entitle MS to a reasonable postponement of deadlines. If the cause falls within the customer's sphere of responsibility, MS may additionally charge for the extra effort incurred.
5. Place of Work and Cooperation
5.1 Work is only carried out at the customer's premises, in whole or in part, if necessary and by prior agreement.
5.2 The customer shall appoint a contact person with decision-making authority. This person shall be available to provide necessary information. MS will inform the customer about the project status upon request.
5.3 The customer shall create all prerequisites required for proper execution within their sphere of responsibility and provide a suitable workstation free of charge when performing on-site work.
6. Acceptance
6.1 The customer shall check the conformity of the product or service with the contract within a period of two weeks following a request and shall declare acceptance in writing, provided no major defects exist.
6.2 The product shall be deemed accepted if no significant defects are reported within a further two weeks after the inspection period has expired, or if usage is not substantially restricted.
6.3 Minor defects do not entitle the customer to refuse acceptance. Defects are minor if the agreed function is not substantially impaired.
7. Delivery Dates and Force Majeure
7.1 Stated dates are non-binding unless explicitly agreed otherwise. Compliance presupposes that the customer provides all required cooperation services in a timely manner.
7.2 In the event of temporary delivery obstacles due to force majeure or other events for which MS is not responsible, MS is entitled to carry out the delivery after the obstacle has been removed. If the obstacle lasts longer than two weeks beyond the regular period, both parties may withdraw from the contract by setting a reasonable deadline.
7.3 In the event of a delivery delay for which MS is responsible, entrepreneurs shall only have the right to withdraw from the contract, excluding claims for damages.
8. Default of Acceptance
8.1 If the customer defaults on acceptance, MS is entitled to store the products at the customer's risk and expense. Storage costs shall be charged at a flat rate of 3% of the net invoice value per month, up to a maximum of EUR 50.00. Both parties reserve the right to prove higher or lower costs.
8.2 If MS withdraws from the contract as a result of the default of acceptance, MS may claim flat-rate damages amounting to 30% of the agreed net invoice value. The right to prove higher or lower damages remains reserved.
9. Prices
9.1 The prices stated in the order confirmation apply. These prices include statutory VAT applicable at the time of order placement, plus any listed incidental costs.
9.2 For deliveries to countries outside the European Union, German VAT does not apply in cases provided for by law. The customer is responsible for paying any customs duties and import VAT.
9.3 MS is bound to quoted prices for 10 days unless agreed otherwise.
9.4 Partial deliveries requested by the customer entitle MS to charge for the resulting additional costs.
10. Terms of Payment
10.1 Invoices are to be settled within 10 days without deduction unless agreed otherwise.
10.2 Depending on the agreement, payments are made by invoice, advance payment, PayPal, credit card, or SEPA direct debit. Deliveries abroad are made exclusively against advance payment.
10.3 In the case of advance payment, payment must be made within two weeks of order placement. Receipt of payment by MS is decisive.
10.4 A payment is only deemed to have been made when MS can dispose of the funds.
10.5 The customer may only withhold payments or offset claims if their counter-claim is based on the same contractual relationship, has been legally established, or has been acknowledged by MS.
11. Service and Support
11.1 Following completion or delivery, subsequent services, maintenance, and support are subject to a separate contract or a new quotation.
12. Right of Withdrawal (for Consumers)
Consumers have the right to withdraw from the contract within 14 days without giving reasons in text form (letter or email). The period begins after receipt of this notice and the product.
The withdrawal must be addressed to:
Marks Software GmbH, Brock 6, 29683 Bad Fallingbostel
or via email to: info@marks-software.de
The right of withdrawal does not apply to custom-made products or services created according to customer specifications that are not suitable for return.
In the event of withdrawal, MS will refund all payments received, including standard delivery costs, without undue delay and at the latest within 14 days. Products must be returned at the customer's expense. If the service begins during the withdrawal period, the customer shall pay a reasonable amount for the service already provided.
13. Warranty
13.1 Illustrations and descriptions are for illustrative purposes. The product or service description is authoritative. Technical specifications are approximate unless explicitly designated as binding.
13.2 Products and services are intended for normal private or commercial use. Use in critical safety systems, nuclear power plants, or life-support medical devices is only permitted if agreed in writing.
13.3 Obvious defects must be reported in text form immediately after delivery. Transport damage must be reported and logged upon delivery.
13.4 Before returning items, the customer must back up any existing data. MS is not liable for data loss on returned devices.
13.5 The warranty period is 24 months from delivery for new products and 12 months for used products.
13.6 There is no warranty for damage caused by improper use, faulty installation, or commissioning by the customer or third parties, natural wear and tear, failure to observe instructions, or improper modifications.
14. Liability
14.1 MS has unlimited liability for intent, gross negligence, and fraudulent concealment. In the event of negligent breach of essential contractual obligations, liability is limited to the typical, foreseeable damage characteristic of the contract.
14.2 Liability under the Product Liability Act, arising from a guarantee, or for personal injury remains unaffected.
15. Retention of Title and Licenses
15.1 The product or service remains the property of MS until full payment has been made. The customer stores goods subject to retention of title free of charge. Pledgings or transfers of ownership by way of security are not permitted.
15.2 Third-party software is subject to the respective manufacturer's license terms. MS's own software is subject to separate software license terms.
16. Right of Use
16.1 After acceptance and full payment, the customer receives a non-exclusive, non-transferable right to use the products created by MS for their own purposes, provided no license terms prevent this.
16.2 MS may utilize self-created parts elsewhere, provided no contractual confidentiality or explicit exclusion agreement prevents this.
17. Prohibition of Assignment
17.1 The assignment of claims against MS requires consent in text form. MS is obliged to grant consent if the customer demonstrates a legitimate interest.
18. Data Protection
18.1 MS processes personal data within the framework of the business relationship in accordance with the Privacy Policy and the GDPR. Data is only passed on to third parties with consent or if there is a legal obligation.
18.2 The complete Privacy Policy is available on the website and in the business premises of MS.
19. Place of Jurisdiction and Applicable Law
19.1 The exclusive place of jurisdiction for all disputes is Bad Fallingbostel / Walsrode / Verden, provided the customer is a merchant, a legal entity under public law, or a special fund under public law.
19.2 The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
20. Domains, Web Hosting, Servers, and Email
20.1 Domain registrations are established between the customer and the respective registry. MS commissions the registration within the framework of a business management contract.
20.2 The customer is responsible for ensuring that domains and content do not violate legal regulations or third-party rights. Sending spam is prohibited.
20.3 In the event of legal violations or risks, MS may block content or domains or terminate the contractual relationship without notice. The entitlement to remuneration remains in effect during a justified block.
20.4 Upon termination of the contract, MS may return domains to the registry or have them deleted after a reasonable period, provided the customer does not issue alternative instructions.
21. Final Provisions
21.1 Should any provision of these GTC be wholly or partially invalid, the validity of the remaining provisions shall remain unaffected. The invalid provision shall be replaced by a valid one that comes as close as possible to the economic purpose.
21.2 Supplementary agreements and amendments must be made in writing.