Terms and Conditions

I. Scope of Application

I.1 Deliveries and services as well as other legal acts in the entire business transactions of Service4TM Matthias Ploch – hereinafter simplified referred to as „Service4TM“ – shall exclusively be subject to the following General Terms and Conditions in the respective valid version and shall be deemed an integral part of the contract, unless otherwise agreed in writing in an individual agreement between Service4TM and the contractual partner or Customer.

I.2 These terms and conditions shall be deemed accepted at the latest upon receipt of the service. They shall also apply if they are no longer mentioned in subsequent contracts or services.

I.3 Amendments and supplements to a contract must be made in writing.

I.4 Offers made by Service4TM are subject to change and non-binding and are subject to the capacities of Service4TM.

I.5 Service4TM shall be entitled to withdraw from contracts if facts arise which show that the other party to the contract is not creditworthy.

II Delivery and Performance

II.1 Drawings, illustrations, dimensions, weights or other performance data shall only be binding if this has been expressly agreed in writing. SERVICE4TM reserves the right to make reasonable technical and design deviations from information in brochures, catalogs and written documents as well as model, design and material changes in the course of technical progress and further development without deriving any rights against SERVICE4TM from such deviations.

II.2 SERVICE4TM expressly reserves the right to reasonable partial performance and invoicing thereof.

II.3 Agreed delivery dates shall be deemed met if the contractual product is online by the agreed delivery date. If the realization of the contractual product is delayed for reasons for which SERVICE4TM is not responsible, it shall be executed at the next possible date.

II.3.1 SERVICE4TM shall place the data submitted by the Ordering Party online in the appropriate portals and subsequently notify the Ordering Party thereof.

II.3.2 The Customer shall immediately check the publication and, in the event of errors or incorrect information, shall immediately inform Service4TM so that Service4TM can make an appropriate correction.

II.3.3 Service4TM shall determine the order of publication in the respective portals.

II.3.4 Service4TM is entitled to suspend the execution of the order if there are reasonable doubts that the Customer has all the rights required for publication. The authorization to execute these rights must then be credibly proven by the Customer and then the further execution of the order shall take place. The client shall not be entitled to a refund of the fees paid for the period during which publication was suspended for this reason.

II.3.5 Service4TM is entitled to delete the publication if a third party proves to Service4TM a claim to the brand name or industrial property rights. The Customer will be informed of this case accordingly by Service4TM. A refund of the fees paid to the Customer will not be made in this case.

II.3.6 Service4TM shall not be liable for unauthorized changes to the portals, unauthorized access to data or other interventions in the computer systems of Service4TM. Furthermore, Service4TM is not liable for damages caused by temporary interruptions or restrictions of the availability of the portals.

II.4 The date or period of performance – hereinafter all referred to as „delivery date“ for convenience – shall be agreed upon in accordance with SERVICE4TM’s anticipated performance capacity and shall be non-binding and subject to timely delivery by SERVICE4TM and unforeseen circumstances and obstacles, regardless of whether these occur at SERVICE4TM or at the customer, in particular force majeure, government measures, failure to obtain official permits, labor disputes of any kind, sabotage, shortage of raw materials, late delivery of materials through no fault of SERVICE4TM. Such events extend the delivery date accordingly, even if they occur during a delay that has already occurred. In this case, any grace period set by the contractual partner shall also be extended by the duration of the unforeseen event. If such events lead to a delay in performance of more than two months, the contractual partner may withdraw from the contract – irrespective of other rights of withdrawal.

II.5 The contractual partner may request SERVICE4TM in writing to perform six weeks after exceeding a non-binding delivery date. SERVICE4TM shall be in default upon receipt of the request. In the event that the contractual partner is entitled to claim damages for default, such damages shall be limited to a maximum of 5% of the agreed remuneration in the event of slight negligence on the part of SERVICE4TM. If the contractual partner withdraws from the contract in addition to asserting a claim for damages caused by delay or if it asserts a claim for damages instead of performance, it shall set SERVICE4TM a reasonable deadline for performance after the aforementioned period of six weeks has expired. However, SERVICE4TM shall not be liable if the damage would have occurred even if the delivery date had been met. If a binding agreed delivery date is exceeded, a request by the contractual partner shall not be required to put SERVICE4TM in default. The above provisions shall apply to the rights of the contractual partner.

II.6 Service4TM reserves the right to withdraw from the contract if the delay in performance caused by one of the above events lasts longer than six weeks and SERVICE4TM is not responsible for this.

II.7 The agreement on postponement of performance dates shall be made in writing.

II.8 In the event of a delay in acceptance, SERVICE4TM shall have the right, in addition to the claim for payment, either to set a new date for performance or to withdraw from the contract. In the event of non-acceptance, SERVICE4TM may claim damages in the amount of 15% of the contractual remuneration.

III Term and termination

Unless otherwise contractually agreed, the contract shall be concluded for a period of 12 months. The contract term shall be automatically extended by another 12 months if neither party exercises its right to terminate the contract. The contract may be terminated by either party with 3 months‘ notice to the end of the term. In the event of a contract extension, the customer shall pay the agreed contract fee again. The termination must be made in writing.

IV. Inspection and transfer of risk

IV.1 Upon delivery, the contractual partner shall inspect the goods for completeness and conformity according to the invoice immediately after performance. If a written notice of defect is not received by SERVICE4TM within six calendar days after receipt, the goods shall be deemed to have been duly and completely delivered, unless the defect is hidden.

IV.2 Insignificant defects that do not affect the functionality of the subject of performance shall not entitle the contractual partner to refuse acceptance.

V. Prices and Terms of Payment

V.1 The prices resulting from the respective prices or the individual offer are to be understood as fixed prices without value added tax. Value added tax and other statutory levies shall be charged separately.

V.2 The offer and the conclusion of the contract come into effect when the customer accepts the offer and pays the annual registration fee.

V.3 SERVICE4TM undertakes to perform the registration within 5 business days after receipt of payment of the annual registration fee.

V.4 SERVICE4TM reserves the right to reasonably increase the price if SERVICE4TM experiences cost increases – in particular due to price increases of exchange rate fluctuations – after the conclusion of the agreement. Evidence of such increases shall be provided upon request.

V.5 Unless otherwise agreed in writing, all invoices shall be payable immediately upon receipt without deduction. The first invoice shall be issued in advance and shall also be payable in advance. Subsequent invoices (extension of contract) shall be issued each time the contract is extended.

V.6 The contracting party may only offset claims of SERVICE4TM against counterclaims if such counterclaims are undisputed or legally enforceable; a right of retention may only be asserted if it is based on claims under the contract to which SERVICE4TM is entitled.

V.7 If the other contracting party fails to comply with the above terms of payment, SERVICE4TM shall be entitled at any time to demand performance concurrently against cash payment, advance performance or provision of security. All outstanding claims, including those for which SERVICE4TM has accepted bills of exchange or for which payment by installments has been agreed, shall become due immediately.

VI Retention of title

VI.1 The contractual product shall remain the property of SERVICE4TM until all claims under the contract have been satisfied, and in the event that the contractual partner is a legal entity under public law, a special fund under public law or an entrepreneur in the exercise of its commercial or independent professional activity, also beyond that from the current business relationship until the claims to which SERVICE4TM is entitled in connection with the contract have been settled.

VI.2 In the event of the contracting party’s default in payment, also from other and future performances of SERVICE4TM, or in the event of the contracting party’s financial collapse, SERVICE4TM shall be entitled to rescind the contract and, in the event that SERVICE4TM claims damages in lieu of performance, SERVICE4TM shall be entitled to enter the contracting party’s business premises and take possession of the goods subject to retention of title. In the event of compensation after repossession, SERVICE4TM and the contracting partner agree that such compensation shall be made at the usual market value of the subject matter of the agreement at the time of repossession. The contracting party shall bear all costs of taking back and realizing the goods; realization costs shall be agreed without proof at 5% of the ordinary market value, with an increase or reduction possible upon proof by SERVICE4TM or the contracting party.

VI.3 Assertion of retention of title or seizure of the delivery item by SERVICE4TM shall not be deemed a rescission of the contract if the contracting partner is a merchant.

VI.4 Items delivered for testing and demonstration purposes shall remain the property of SERVICE4TM. They may be used by the contracting party beyond the test and demonstration purpose only on the basis of a separate written agreement with SERVICE4TM.

VII Warranty

VII.1 The parties are aware and agree that according to the state of the art it is not possible to exclude defects of software and hardware under all conditions of use.

VII.2 Subject to this provision, the claims of the contractual partner shall become statute-barred in accordance with the statutory provisions two years after the passing of risk in the case of a new object of purchase or one year after the passing of risk in the case of a used object of purchase subject to the following conditions.

VII.2.1 SERVICE4TM warrants that the contractual products are described in product information in a generally accurate manner and are generally usable within this scope. However, the warranty claim shall extend only to the extent that the manufacturer of the goods acknowledges it. A warranty of characteristics shall only be given if the respective specifications have been confirmed in writing by SERVICE4TM.

VII.2.2 SERVICE4TM cannot warrant that the program functions will meet the requirements of the contracting party or will work together in the selection made by the contracting party.

VII.2.3 Excluded from the warranty are, in particular, defects or damage attributable to operational wear and tear and normal wear and tear, improper use, operating errors and negligent conduct on the part of the customer, operation with the wrong type of power or voltage as well as connection to unsuitable power sources, fire, lightning, explosion or mains-related overvoltage, moisture of any kind, incorrect or faulty programs, software and/or processing data as well as any consumable parts, unless the contracting partner proves that these circumstances are not the cause of the defect complained of. The warranty shall also not apply if the serial number, type designation or similar marks are removed or made illegible, or if the goods are tampered with during the warranty period by third parties other than SERVICE4TM or third parties authorized by SERVICE4TM to do so.

VII.2.4 Warranty claims shall not be transferable.

VII.2.5 Notwithstanding the foregoing, SERVICE4TM shall pass on to the contractual partner any further warranty and guarantee commitments of the manufacturer in full without being liable for them itself.

VII.2.6 The result of the service rendered shall be inspected immediately upon receipt. Complaints shall be submitted to SERVICE4TM in writing within six calendar days of receipt.

VII.2.7 In the event of a warranty claim, SERVICE4TM shall choose between repair or replacement. The contracting party shall be obliged to accept a replacement delivery against return of the defective goods. Replaced parts shall become the property of SERVICE4TM. If SERVICE4TM fails to remedy defects within a reasonable grace period set in writing, the contractual partner shall be entitled to demand either rescission of the contract or a reasonable reduction. Any further claims shall be excluded. In particular, SERVICE4TM shall not be liable for damage not incurred to the delivery item itself, for loss of profit or other financial losses of the contracting party.

VII.2.8 In case of rectification SERVICE4TM shall bear the labor costs. All other costs of rectification as well as ancillary costs associated with a delivery, in particular transport costs for the replacement item, shall be borne by the contractual partner, unless these other costs are disproportionate to the value.

VII.2.9 If the examination of a notice of defect shows that a warranty case does not exist, SERVICE4TM shall be entitled to demand and invoice reimbursement of all expenses.

VIII. Limitation of liability

If SERVICE4TM is obligated to pay damages under these Terms and Conditions on the basis of statutory provisions, its liability shall be limited as follows in the event that the damage was caused by slight negligence: SERVICE4TM shall be liable only in the event of a breach of material contractual obligations and such liability shall be limited to the typical damage foreseeable at the time the agreement was concluded. The above limitation shall not apply in case of damage to life, body or health. If the damage is covered by an insurance policy taken out by the contractual partner, SERVICE4TM shall only be liable for the disadvantages incurred by the contractual partner in connection with the settlement of the damage, such as higher insurance premiums or interest disadvantages. Liability for damage caused by slight negligence due to a defect of the subject matter of the agreement is excluded. SERVICE4TM’s liability shall remain unaffected, regardless of whether fault exists, in case of fraudulent concealment of a defect, assumption of a guarantee or under the Product Liability Act. Consequences of a delay in delivery are conclusively regulated in § II of these Terms and Conditions. Personal liability of SERVICE4TM’s managing directors, vicarious agents and SERVICE4TM’s employees for damage caused by them due to slight negligence shall be excluded.

IX. Industrial property rights and copyrights of third parties

IX.1 Services shall be provided in accordance with the contract concluded. The customer assures that all rights (industrial property rights and also copyrights) necessary for performance are in his hands and that he can present appropriate proof upon request.

IX.2 Liability for the violation of copyrights on the part of Service4TM is excluded.

IX.3 Service4TM rejects claims for damages arising from the infringement of brand names, patents, design patents or copyrights of a third party against Service4TM.

IX.4 The Customer is obligated to compensate Service4TM and other entitled parties for damages caused by technical or legal defects of the transmitted data. This applies in particular to damages caused by the publication of the transmitted data, if these have violated copyright, trademark rights or the rules of competition.

X Solicitation of personnel

The Customer undertakes not to entice away any personnel from SERVICE4TM during the performance of the order and for the subsequent period of one year, regardless of whether this is done at the instigation of the employee or the Customer.

XI. Confidentiality clause

XI.1 SERVICE4TM and the Principal undertake not to use confidential information made accessible within the scope of the relationship established by the contract for themselves and/or third parties.

XI.2 All documents disclosed by the Parties in connection with the performance of this Agreement shall remain in their possession. The contracting parties may not use, copy, duplicate or otherwise pass on these documents to third parties, make them accessible to third parties or show their contents without the written consent of the other contracting party. This shall apply in particular even if the documents are not marked as confidential.

XI.3 The obligation to maintain confidentiality shall remain in force even after termination of the contractual relationship.

XI General Provisions

XI.1 The contractual partner shall not be entitled to assign its claims under the agreement without SERVICE4TM’s prior written consent.

XI.2 The place of performance and exclusive place of jurisdiction – to the extent permitted by law – for all legal disputes arising directly or indirectly from the contractual relationship shall be Herne, Germany.

XI.3 The law of the Federal Republic of Germany shall apply.

XI.4 Order processing shall be performed within SERVICE4TM with the help of automatic data processing. The contractual partner hereby grants SERVICE4TM its express consent to store and process the data disclosed within the scope of contractual relations and necessary for order processing in accordance with the statutory provisions on data protection.

XI.5 If one or more provisions of these General Terms and Conditions are or become invalid or if this contract text contains a regulatory gap, the contracting parties shall replace or supplement the invalid or incomplete provisions with appropriate valid provisions that correspond to the economic purpose of the intended provision. The validity of the remaining provisions shall remain unaffected.

These General Terms and Conditions are valid as of March 2021.