1.0 Scope

1.1 For all present and future offers, deliveries and services of Winweb Informationstechnologie GmbH, only these following General Terms and Conditions shall apply. Details regarding quantity, designation, purchase price or monthly rental rate or maintenance rate, intended delivery date and other costs shall be specified in the order confirmation.

1.2 Agreements deviating from these General Terms and Conditions are only effective if made in writing. Under no circumstances do the licensee's terms and conditions apply.

1.3Exclusivity clause
These GTC apply to all our declarations of intent, agreements and offers; they become part of the contract through placement of the order, silence in response to our commercial order confirmation or execution of the order or provision of the services. Deviating, conflicting or supplementary general terms and conditions shall not become part of the contract, even if known, unless their validity is expressly agreed to in writing.

2.0 Offers

2.1 Offers from Winweb Informationstechnologie GmbH are valid for up to 90 days after the offer date, unless otherwise specified in the offer.

2.2 Offer documents (product descriptions, sample documents and similar) remain the property of Winweb Informationstechnologie GmbH and may neither be reproduced nor passed on to third parties without their consent.

2.3 Technical and design deviations from descriptions and information in brochures, prospectuses and written offer documents as well as in software product descriptions and samples remain reserved until delivery, without any rights against Winweb Informationstechnologie GmbH being derived from this, if the changes do not impair the performance of the purchased item, are reasonable for the licensee or represent an advantage for the licensee.

3.0 Prices and payment terms

3.1 The prices stated in the order confirmation of Winweb Informationstechnologie GmbH plus the respective statutory value added tax shall apply. The packaging costs for the delivery of spare parts, accessories and consumables shall be invoiced separately.
Postage, freight, insurance and other shipping costs are not included in the prices. These shipping and transport costs will be charged separately.

3.2 The receivables are payable within 10 days of the invoice date net without any deductions, unless otherwise agreed in writing.

3.3 In the event of default in payment by the licensee, Winweb Informationstechnologie GmbH is entitled, subject to the assertion of further rights, to charge default interest at a rate of 4% above the respectively valid Bundesbank discount rate.

3.4 The Licensee has no right of retention. Set-off can only be declared with undisputed or legally established counterclaims.

4.0 Conclusion of contract

4.1 A contract is concluded through signature by both parties in the discussed contract document or through a written order confirmation from Winweb Informationstechnologie GmbH after prior verbal agreement, or with the start of the execution of the order or in the case of services (for example maintenance) through the provision of the service by Winweb Informationstechnologie GmbH.

4.2 Any ancillary agreements and assurances that go beyond the written software license agreement (purchase or rental) or maintenance agreement require written form and express confirmation by Winweb Informationstechnologie GmbH.

5.0 Delivery, delay in delivery, partial delivery, force majeure

5.1 Delivery dates are considered agreed if they have been confirmed in writing by Winweb Informationstechnologie.

5.2 Delivery periods begin with the conclusion of the contract and are subject to the timely fulfillment of the duties to cooperate on the part of the licensee. If the licensee is in default with its duties to cooperate, the delivery dates or delivery periods shall be extended at least by the period of delay.

5.3 If contractual changes are agreed subsequently, for example the inclusion of new requirements that do not arise from the software license agreement, a new delivery date or a new delivery period must be agreed if necessary.

5.4 Partial deliveries are possible without the prior consent of the licensee.

5.5 If a binding delivery date is exceeded or handover is delayed for reasons for which Winweb Informationstechnologie GmbH is not responsible, the specified date shall be postponed appropriately. Delivery and performance delays due to force majeure and due to events that make delivery substantially more difficult or impossible for Winweb Informationstechnologie GmbH (difficulties in procuring materials, operational disruptions, strike, statutory or official orders etc.), even if they occur at our suppliers or their subcontractors, are also not the responsibility of Winweb Informationstechnologie GmbH, even in the case of bindingly agreed deadlines and dates. The aforementioned reasons entitle Winweb Informationstechnologie GmbH to postpone the delivery and performance by the duration of the hindrance plus an appropriate start-up time or to withdraw from the contract in whole or in part because of the unfulfilled part.

5.6 If a delivery period or a delivery date is exceeded for reasons attributable to Winweb Informationstechnologie GmbH, the licensee may set a reasonable grace period for delivery in writing. If the grace period expires without result, the licensee may withdraw from the contract. Claims for damages exist only in accordance with section 10.

6.0 Shipping and transfer of risk

6.1 If the delivery items are transported by Winweb Informationstechnologie GmbH, the risk passes to the licensee as soon as the delivery items have been handed over to the licensee or its representative.

6.2 Upon dispatch of the delivery items, the risk passes to the licensee as soon as the delivery items have been handed over to the person carrying out the transport. This also applies if carriage paid delivery has been agreed.

6.3 If the handover of the delivery items is delayed for reasons for which the licensee is responsible, the risk passes to the licensee upon readiness for handover.

6.4 The transfer of risk with regard to standard software takes place upon transfer to the licensee.

7.0 Subject matter of the contract and licenses, retention of title

7.1 Winweb Informationstechnologie GmbH supplies the software winweb-food to the licensee as a license (purchase) or grants the use of the software winweb-food for a limited period in return for payment of a monthly fee (rental). The respective form of provision is set out in writing in the order confirmation.

7.2 When purchasing the software winweb-food, the result is an unlimited period of use. The purchase of the software also includes enhancements or further developments of the functionality of the purchased software acquired upon conclusion of the contract or commissioned subsequently (=Upgrades) and, where a maintenance contract exists, the elimination or correction of program errors (=Updates) of the software that Winweb Informationstechnologie GmbH provides to the licensee within the scope of contract performance.

7.3 The purchase item remains the property of Winweb Informationstechnologie GmbH until the purchase price has been paid in full on the basis of the purchase contract. The retention of title to the purchase item also remains in effect for all claims that Winweb Informationstechnologie GmbH subsequently acquires against the licensee in connection with the purchase item, e.g. on the basis of repairs or spare parts deliveries or other services.

7.4 If the licensee defaults on payment or fails to fulfill his obligations arising from the retention of title, Winweb Informationstechnologie GmbH may demand the return of the purchased item. In this case, the licensee is obligated to return the purchased item without delay. The licensee shall bear all costs of repossession and realization of the purchased item.

7.5 As long as retention of title exists, a sale, transfer by way of security, pledging, rental or other transfer of the purchased item impairing the security of Winweb Informationstechnologie GmbH, as well as its modification, is only permitted with the prior written consent of Winweb Informationstechnologie GmbH. The licensee is obliged to keep the purchased item in proper condition for the duration of the retention of title, to have all maintenance work specified by the manufacturer and necessary repairs carried out without delay.

7.6 In the event of access by third parties, in particular in the event of seizures of the purchased item, the licensee shall point out the retention of title and immediately notify Winweb Informationstechnologie GmbH in writing. A resale is only possible with the written consent of Winweb Informationstechnologie GmbH.

7.7 In the event of rental of the software winweb-food, this results in a time-limited provision of the scope of use of winweb-food specified in the order confirmation. The rental of the software also includes enhancements or further developments of the functionality of the rented software (=upgrades) or removal or correction of program errors (=updates) of the software, which Winweb Informationstechnologie GmbH provides to the renter within the scope of contract fulfillment. The rental relationship ends after termination under the conditions set out in writing in the Software License Agreement (Rental).

8.0 Protective rights or copyrights

8.1 The licensee receives a non-exclusive and non-transferable right of use to the programs provided by Winweb Informationstechnologie GmbH together with the associated documentation, organizational and setup aids, quotation documents and software product descriptions and later extensions/additions for internal, own use in conjunction with hardware expressly approved by Winweb Informationstechnologie GmbH and licensed to the licensee.

8.2 The licensee shall ensure that the delivered programs, documentations and other documents are not made accessible to third parties without the written consent of Winweb Informationstechnologie GmbH. This also applies in the event of a resale of the hardware.

8.3 Copies may be made, without assumption of costs or liability by Winweb Informationstechnologie GmbH only for the Licensee's own use for backup and archiving purposes or for troubleshooting. If originals bear a notice indicating copyright protection, the Licensee must also affix this to copies.

8.4 All other rights to the programs and documentation remain with Winweb Informationstechnologie GmbH in the original and copy.

8.5 In the event of an unauthorized transfer of the programs or documentation to third parties, a contractual penalty amounting to 3 times the delivered software value is agreed for each individual case. All copyright claims as well as claims for damages of Winweb Informationstechnologie GmbH against the licensee remain unaffected by this.

8.6 The same applies in the event of further use without a valid software license agreement (rental). In this case, the damage shall be determined according to the programs delivered on the system in accordance with the current software license fees resulting from the respective price list.

9.0 Warranty9.1Warranty for hardware products

9.1.1 Winweb Informationstechnologie GmbH warrants from delivery of the hardware products for the duration of the manufacturer's warranty that they are free from defects in accordance with the current state of the art of the purchased item. Properties of the purchased item shall only be deemed warranted if they have been agreed as such in writing. The presentation of hardware products in information or advertising material of Winweb Informationstechnologie GmbH does not include any performance descriptions or guarantees with regard to the purchased item.

9.1.2 The client must notify Winweb Informationstechnologie GmbH immediately in writing of any defects identified. This notification does not interrupt or suspend the warranty period. In accordance with the provisions of the manufacturer warranty, Winweb Informationstechnologie GmbH fulfills the warranty obligation at its discretion according to the technical requirements by remedying defects or replacing faulty parts. If the defect cannot be remedied, the client may assert rescission or reduction.

9.1.3 For the parts installed during rectification warranty is provided under the purchase contract until the expiry of the warranty period of the purchased item.

9.1.4 The warranty obligation does not apply to defects that arise due to improper, faulty, negligent handling or excessive use of the purchased item. This also applies if parts have been installed in the purchased item whose use has not been approved by Winweb Informationstechnologie GmbH, if the purchased item has been modified in a non-approved manner, or if the client has not complied with the regulations regarding the handling, maintenance and care of the purchased item, in particular in the event of repairs or modifications carried out by third parties not authorized by Winweb Informationstechnologie GmbH. The warranty obligation also does not apply if an identified defect is not reported immediately and an opportunity for subsequent performance is not given.

9.1.5 Natural wear and tear is excluded from the warranty according to the conditions of the hardware manufacturers.

9.1.6 Claims of the customer going beyond rectification, regardless of the legal basis, in particular from fault at the time of conclusion of the contract, breach of contractual ancillary obligations, from positive breach of contract, in particular consequential damages caused by defects, from tort are excluded. Claims for damages of any kind, in particular with regard to consequential damages, shall exist only in accordance with section 10.

9.1.7 Warranty claims are available only to the first direct client and are not transferable or assignable.

9.1.8 Otherwise, the warranty conditions of the manufacturers of the delivered hardware products apply.

9.2 Warranty for software products

9.2.1 For software products, Winweb Informationstechnologie GmbH assumes a warranty for a period of 12 months after delivery with regard to the functions and performance features according to the obligations of the licensor specified in the contract at the time of delivery. This warranty applies exclusively to software created and licensed by Winweb Informationstechnologie GmbH and installed by it on prescribed hardware configurations and operating systems. The technical data, specifications and performance features in the software product description do not constitute assurances, unless they are expressly designated as such and have been set out in writing in the software license agreement.

9.2.2 As part of the warranty, Winweb Informationstechnologie GmbH shall provide free rectification for all program errors communicated to it by e-mail, by telephone or in writing, insofar as these have been sufficiently documented by the licensee and are therefore reproducible. Further claims of any kind, in particular claims for damages are excluded.

9.2.3 Program changes for the purpose of correcting errors or expanding the range of functions after the installation of an update or patch are to be accepted by the licensee. They will be documented promptly. The licensee undertakes to take note of the proof of program changes. Winweb Informationstechnologie GmbH cannot be held liable for damages arising from documented program changes.

9.2.4 In all other respects, the provisions of section 9.1 apply accordingly.

10.0 Liability

10.1 The liability of Winweb Informationstechnologie GmbH is limited to the cases regulated in these General Terms and Conditions. In the event of any kind of statutory or contractual liability, the following limitation of liability applies:

10.2 The liability of Winweb Informationstechnologie GmbH is limited overall to the amount corresponding to the purchase price of the respective object of purchase. Also in this respect, Winweb Informationstechnologie GmbH shall only be liable insofar as the damage exceeds any benefits provided by an insurance policy.

10.3 Winweb Informationstechnologie GmbH is not liable for the technical and/or legal possibility of connecting third-party hardware to hardware supplied by Winweb Informationstechnologie GmbH.

10.4 Liability for the loss of data is excluded, unless Winweb Informationstechnologie GmbH has caused its destruction through gross negligence or intent. In the event of liability on the part of Winweb Informationstechnologie GmbH, liability is limited to the effort required to reconstruct the data, provided that the data has been properly backed up by the licensee.

10.5 Winweb Informationstechnologie GmbH is not liable for lost profit, unrealized savings, damages from third party claims and other indirect and consequential damages as well as for recorded data, unless the damages incurred are based on a breach of material contractual obligations (cardinal obligations) that jeopardizes the purpose of the contract.

10.6 The above limitations of liability do not apply insofar as Winweb Informationstechnologie GmbH is guilty of intent or gross negligence. However, for intent or gross negligence of vicarious agents, Winweb Informationstechnologie GmbH shall only be liable to a limited extent for the damage foreseeable to Winweb Informationstechnologie GmbH.

10.7 In the event of liability arising from slight negligence, this liability is limited to such damages as are foreseeable or typical. Liability for the absence of the guaranteed quality, due to fraudulent intent, for personal injury, defects in title, under the Product Liability Act and the Federal Data Protection Act remains unaffected.

10.8 In the event of a claim against Winweb Informationstechnologie GmbH under warranty or liability, any contributory fault on the part of the licensee shall be taken into appropriate consideration, in particular in the case of insufficient error reports or insufficient data backup. Insufficient data backup exists in particular if the licensee has failed to take appropriate precautions, by means of suitable security measures corresponding to the state of the art, against external influences, in particular against computer viruses and other phenomena that may endanger individual data or an entire data set. The licensee shall carry out a review immediately after every substantial hardware and/or software modification, installation, defect rectification work, maintenance work or other interventions by Winweb Informationstechnologie GmbH on the IT system to determine whether the functionality of the data backup (verification of the backed up data for completeness and restorability) is still ensured, and shall record the result in writing. The licensee shall ensure that a reliable, timely and comprehensive data routine guarantees data backup.

10.9 The licensee bears sole responsibility for the transfer and use of software not supplied by Winweb Informationstechnologie GmbH, in particular jointly on the same system or in the network.

10.10 If, from the Licensee's point of view, there is a breach of duty within the sphere of performance of Winweb Informationstechnologie GmbH, he shall, before judicial assertion, reduction, termination or set-off, request Winweb Informationstechnologie GmbH in writing, setting a reasonable period for the remedy of specific complaints.

11.0 Installation, Maintenance and Operation

11.1 In accordance with the specifications and instructions of Winweb Informationstechnologie GmbH and the participating hardware manufacturers, it is the responsibility of the licensee to make all installation preparations in the designated installation rooms by the agreed delivery date and to complete all electrical connections.

11.2 The licensee is responsible for compliance with all occupational safety regulations.

11.3 The installation is carried out by Winweb Informationstechnologie GmbH.

11.4 Maintenance begins immediately after installation has been completed in accordance with the agreement on the maintenance of the winweb-food software.

11.5 If the maintenance contract concluded upon purchase of the software is terminated in due time, any right to the associated services shall expire on the expiry date. A subsequent reinstatement of the maintenance contract is only possible after carrying out any necessary system analyses and data consolidations in advance, in accordance with the valid price list, possible.

12.0 Applicable law, partial invalidity, place of performance and place of jurisdiction

12.1 The legal relationships between the licensee and Winweb Informationstechnologie GmbH are governed exclusively by the law of the Federal Republic of Germany. Exclusively these general terms and conditions apply, unless otherwise agreed in writing.

12.2 Any amendment or deviation from the content of these General Terms and Conditions shall only be valid if it is confirmed in writing by Winweb Informationstechnologie GmbH. In addition, the terms of the Software License Agreement (Purchase), Software License Agreement (Rental) and the agreements on the maintenance of the winweb-food software shall apply.

12.3 The invalidity of individual points of these conditions shall not affect the validity of the remaining provisions. The valid provision that comes closest to the invalid provision in its economic effect shall take the place of the invalid provision.

12.4 Place of performance is Aldenhoven.

12.5 The exclusive place of jurisdiction for all present and future claims arising from the business relationship between the licensee and Winweb Informationstechnologie GmbH regardless of the legal basis is Aachen.

As of 04/2015