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General sales and delivery conditions DVX Performance (DVX-OLS).
For the offer, sale, delivery to and installation at Clients of Software for the purpose of engine management systems by DVX Performance, registered office at Z.I. in den Allern 1, 9906 Troisvierges Luxembourg.
Article 1 – Definitions
In these general conditions of sale and delivery, the following terms are used in the following meanings unless expressly stated otherwise.
1.1 DVX Performance .: Full Liability, hereinafter referred to as "DVX ".
1.2 Client: the natural or legal person, acting in the capacity of a car company, dealer, trader or similar company, who has ordered DVX to deliver and/or install Software and/or has ordered DVX to provide services and services, hereinafter referred to as "Client".
1.3 Completion: the moment at which the installation of the Software has been completed and, if necessary, notified to the Client.
1.4 Agreement: the document in which the order is recorded in writing.
1.5 Software: the software used by DVX which optimizes the engine management of the vehicle.
2.1 These terms and conditions apply to any offer, quotation, order and Agreement between DVX and the Customer to which DVX has declared these terms and conditions applicable, to the extent these terms and conditions have not been expressly deviated from by the parties in writing. These conditions are an integral part of the Agreement between Customer and DVX .
2.2 These conditions also apply to Agreements with DVX , for the execution of which third parties must be involved.
2.3 Application of conditions invoked by Customer is explicitly rejected unless explicitly stated otherwise.
2.4 Deviation from these conditions or from one or more provisions contained in these conditions can only be made in writing in the Agreement between DVX and Customer.
2.5 In case of conflict between these terms and conditions and the Agreement, the Agreement shall prevail, provided it has been validly signed.
Article 3 – Quotes and formation of Agreement.
3.1 All quotations are always without obligation, unless a validity period is mentioned in the written offer.
3.2 An Agreement shall be established by written confirmation by DVX of the verbal or written order of Customer, or by written acceptance by Customer of an offer provided by DVX.
3.3 Statements by DVX on a website or otherwise relating to the services are deemed to be non-binding offers, and are subject to change and availability.
Article 4 – Delivery time
4.1 The delivery period shall begin at the time the order is accepted by DVX.
4.2 In case Client owes an advance payment or in case he needs to provide information for the execution of the Agreement, the delivery period will not start until payment has been received in full, respectively the information has been provided in full.
4.3 Delivery terms are indicative and do not give the right to compensation if exceeded.
4.4 A term given by DVX is based on the circumstances known to the Customer at the time of the conclusion of the Agreement.
4.5 Customer, who has given DVX a written notice and a reasonable deadline to execute the agreement, is entitled to terminate the agreement if DVX is not able to execute the agreement within the reasonable deadline set in the notice.
Article 5 – Prices
5.1 Prices charged by DVX are exclusive of VAT and any other taxes, as well as any costs to be incurred under the Agreement, unless otherwise indicated.
5.2 If DVX has agreed with Customer on a fixed sales price, DVX is nevertheless entitled to an interim price increase. DVX may only implement this increase if significant changes have occurred between the time of offer and execution of the Agreement with respect to, for example, engine management system upgrades, exchange rates, wages, or other factors determining the cost price.
Article 6 – Verification, acceptance and complaints
6.1 Client is required to report any defects in the vehicle to DVX prior to installation of the Software.
6.2 DVX guarantees that the Software to be installed meets the usual requirements and standards that can be set for it and is free of any defects whatsoever.
6.3 Client is obligated to check the vehicle for defects and damages upon Delivery. Visible defects must be reported immediately upon Delivery and noted on the invoice. Defects that could not be detected immediately upon Delivery, such as malfunctioning of the Software, should be reported to DVX in writing as soon as possible, but no later than 4 days after receipt.
Article 7 – Transfer of ownership
7.1 As long as Client has not paid the full amount of the purchase price with any additional costs, or has not provided adequate security for this, DVX reserves the right to use the Software. The right of use of the Software shall pass to the Client as soon as the Client has fulfilled his obligations regarding the Delivery.
7.2 If DVX has reasonable doubt about the payment capacity of Customer, DVX is authorized to postpone the installation of the Software until Customer has provided security for payment. Customer is liable for the damage to be suffered by DVX if the Delivery is delayed due to justified doubts about the payment capacity of Customer.
Artikel 8 – Payment
8.1 Each order is paid in advance by credits. The client is free to choose how many credits to place and purchase in his portfolio in advance.
Article 9 – Changes or cancellations
9.1 Modifications or cancellations of an Agreement concluded between the parties shall require the written consent of DVX . Client is then bound to compensate DVX for all damages and costs resulting from the change or cancellation.
Article 10 – Standard warranty
10.1 Warranty claims must be made by the Customer by notifying DVX by registered mail within the mentioned term. DVX is never bound to any further obligation like compensation or dissolution of the Agreement.
10.2 The stipulations in these conditions regarding warranty, do not affect the warranty claims of Customer under the law, all subject to the stipulations in these conditions and the Agreement, including the nature and quality of what is sold and delivered to Customer.
10.3 The warranty starts at the moment DVX has received full payment from Customer.
10.4 The Client takes over the warranty as soon as he delivers the vehicle to the end user.
Artikel 11 – Liability and indemnity
11.1 DVX shall not be liable in the following cases (non-exhaustive):
- Damage related to defects and/or parts of items provided by the other party;
- Damage to the vehicle itself and/or items in the vehicle during the execution of the order;
- Damage caused to the engine and/or other parts of the vehicle as a result of a test performed on the power test bench;
- Damage resulting from incomplete and/or incorrect information provided by the other party;
- Damage as a result of an incorrect cost estimate;
- Damage as a result of: minor deviations in specifications, composition, performance;
- Damage as a result of: advice given by third parties for the benefit of the client;
- Damage as a result of: transport, temporary storage, goods given by the principal for processing, unless intent or gross negligence of DVX;
- Damage as a result of overwriting, or de-installation of the delivered software;
- For indirect damages, including consequential damages or trading losses;
11.2. Before the other party appeals to the liability regulation in this article, DVX will be timely given the opportunity in writing to establish the complaint and in that framework (if necessary) to take measures for correction. If DVX is denied this opportunity for repair, there is primarily no right to compensation, at least in the alternative this will at all times be maximized to € 1.000, =.
11.3. In case DVX would be liable in connection with the by her performed activities and/or delivered products, her liability is, further to the above, as follows and limited to (in separate and descending order): - The amount recoverable from engaged third parties and/or auxiliary persons; - The amount that the insurer of DVX may turn out to pay;
11.4. In case the liability of DVX does not fall under the aforementioned exclusions and DVX nevertheless may be liable, its contractual and/or legal liability is limited to either the free repair or redelivery of the defective Software, or to a compensation equal to the invoice amount with a maximum of € 2.000,= (in words: two thousand euros).
Article 12 – Intellectual property licensing
12.1. The intellectual property rights in all Software and services provided or made available by DVX under the Agreement shall remain vested in DVX or its licensors. To the extent necessary for Customer's use of the Software and services, DVX grants Customer a limited, non-exclusive, non-transferable right to use the intellectual property rights in the Software and services.
12.2. Customer shall indemnify DVX against all third party claims and resulting third party claims related to DVX's use of the materials and data provided by Customer to DVX and the intellectual property rights thereon.
12.3. Client must guard as a good family man that DVX Performance's software is in no way read and or distributed. Failure to comply with this condition reserves DVX Performance the right to claim a penalty of 12x the amount paid by the client from the client.
Article 13 – Supremacy
13.1 The delivery period mentioned in article 4 of these conditions will be extended with the period, during which DVX is prevented to fulfill its obligations due to force majeure.
13.2 Force majeure on the part of DVX shall exist if DVX is prevented to fulfill its obligations under this Agreement or its preparations after the conclusion of the Agreement.
13.3 Force majeure includes natural disasters, wars, non-attributable failures of DVX third parties or suppliers, temporary unavailability or unavailability of materials, hardware, Software and/or internet or other telecommunication connections for the benefit of the Customer for which the cause is beyond DVX's control, as well as any other situation over which DVX has no (decisive) control. In the event of a force majeure situation, the parties shall not be obligated to compensate any damage suffered by the other party as a result of the force majeure situation.
Article 14 – Privacy
DVX will provide the Services and process Client's data in accordance with the Privacy Statement. Client hereby consents to DVX processing Client's personal data in accordance with the Privacy Statement.
Article 15 – Miscellaneous provisions
15.1 The contents of the Agreement and these terms and conditions jointly determine the legal relationship between the parties and supersede all previous agreements, both oral and written, between the parties regarding the subject matter of the Agreement.
15.2 Nullity of one or more parts of these terms and conditions shall not affect the validity of the remaining part of these terms and conditions. If one or more parts of these terms and conditions should prove to be void, the parties are obliged to make and implement an arrangement that is valid and that most closely approximates the parties' intention with the void part(s).
Artikel 16 – Applicable law and competent court
16.1 Any Agreement to which DVX is a party and any offer made by DVX shall be governed exclusively by Luxembourg law.
16.2 Disputes between parties, including those considered as such by only one of the parties, will be resolved as much as possible through proper consultation.
16.3 All disputes to which DVX is directly or indirectly a party shall be decided exclusively by the competent court in Luxembourg.