AGB

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, description, 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 valid if they are made in writing. Under no circumstances do the licensee's terms 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 do 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 stated in the offer.

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

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

3.3 In the event of late payment by the licensee, Winweb Informationstechnologie GmbH shall be entitled, without prejudice to the assertion of further rights, to charge default interest at a rate of 4% above the applicable 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 by signature of both parties in the discussed contract document or by a written order confirmation from Winweb Informationstechnologie GmbH after prior verbal coordination, or with the start of the execution of the order or in the case of services (for example maintenance) by the provision of the service by Winweb Informationstechnologie GmbH.

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

5.0 Delivery, delivery delay, partial delivery, force majeure

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

5.2 Delivery periods begin with the conclusion of the contract and apply subject to the timely fulfillment of the cooperation obli-gations on the part of the licensee. If the licensee is in default with its cooperation obligations, the delivery dates or delivery periods shall be extended at least by the period of delay.

5.3 If contract changes are subsequently agreed, 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 the handover is delayed for reasons for which Winweb Informationstechnologie GmbH is not responsible, the stated date shall be postponed appropriately. Winweb Informationstechnologie GmbH shall not be responsible for delays in delivery and performance due to force majeure and due to events that make delivery by Winweb Informationstechnologie GmbH significantly more difficult or impossible (difficulties in procuring materials, operational disruptions, strike, legal or official orders etc.), even if they occur at our suppliers or their subcontractors, 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 a reasonable start-up period or to withdraw from the contract in whole or in part with respect to the unfulfilled part.

5.6 If a delivery period or a delivery date is exceeded for reasons for which Winweb Informationstechnologie GmbH is responsible, the licensee may set an appropriate additional period for delivery in writing. If the additional 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 In the event of shipment 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 freight-free 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 when readiness for handover is established.

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 delivers the software winweb-food as a license to the licensee (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 Upon purchase of the software winweb-food, a time-unlimited use results. The purchase of the software also includes extensions or further developments of the functionality of the purchased software (=upgrades) acquired upon conclusion of the contract or commissioned subsequently, and, if 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 fulfillment.

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

7.4 If the licensee is in default of payment or does not 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 obliged to return the purchased item without delay. The licensee shall bear all costs of the repossession and realization of the purchased item.

7.5 As long as the retention of title exists, a sale, transfer by way of security, pledging, rental or other transfer of the purchased item that impairs 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 and to have all maintenance work provided for by the manufacturer and necessary repairs carried out without delay.

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

7.7 In the case of rental of the winweb-food software, 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 elimination 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 Property rights or copyrights

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

8.2 The licensee ensures that the delivered programs, documentation 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, without assumption of costs or liability by Winweb Informationstechnologie GmbH only be made for 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 of 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.

8.6 The same applies to further use without a valid software license agreement (rental). In this case, the damage shall be determined according to the delivered programs located on the equipment 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 provides warranty from delivery of the hardware products for the duration of the manufacturer's warranty for freedom from defects corresponding to the respective state of the art of the purchased item. Properties of the purchased item are considered warranted only if they have been agreed as such in writing. The presentation of hardware products in informational or advertising material of Winweb Informationstechnologie GmbH does not include performance descriptions or guarantees with regard to the purchased item.

9.1.2 The client shall 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's warranty, Winweb Informationstechnologie GmbH shall fulfill the warranty obligation at its discretion according to the technical requirements by remedying defects or replacing defective 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, incorrect, 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 without delay and 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 Any claims of the customer going beyond rectification, regardless of the legal basis, in particular arising from fault at the time of contract conclusion, breach of contractual ancillary obligations, positive breach of contract, in particular consequential damage caused by defects, and tort are excluded. Claims for damages of any kind, in particular with regard to consequential damages, exist only in accordance with section 10.

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

9.1.8 In all other respects, 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 provides a warranty for a period of 12 months after delivery with regard to the functions and performance characteristics according to the service obligations of the licensor stipulated 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 characteristics in the software product description do not constitute warranties unless they are expressly marked as such and have been set down in writing in the software license agreement.

9.2.2 As part of the warranty, Winweb Informationstechnologie GmbH provides free rectification for all program errors communicated to it by e-mail, by telephone or in writing, insofar as these are 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 eliminating errors or expanding the functional scope 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 program change record. Winweb Informationstechnologie GmbH cannot be held liable for damages arising from documented program changes.

9.2.4 In all other respects, the provisions of point 9.1 apply analogously.

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 in total to the amount corresponding to the purchase price of the respective purchased item. Even in this respect, Winweb Informationstechnologie GmbH is only 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 intentionally. In the event of liability of Winweb Informationstechnologie GmbH, liability is limited to the effort required to reconstruct the data if the data is properly backed up by the licensee.

10.5 Winweb Informationstechnologie GmbH shall not be liable for lost profit, unrealized savings, damages arising from claims by third parties 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 essential to the purpose of the contract (cardinal obligations).

10.6 The above limitations of liability shall 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 be liable only to a limited extent for the damage foreseeable for Winweb Informationstechnologie GmbH.

10.7 In the event of liability for slight negligence, this liability shall be limited to such damages as are foreseeable or typical. Liability for the absence of the guaranteed quality, due to fraudulent intent, for personal injury, legal defects, 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 arising from warranty or liability, any contributory negligence on the part of the licensee shall be taken into appropriate account, 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 protective measures in line with 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 inventory. The licensee shall, without undue delay after every significant hardware and/or software modification, installation, defect rectification work, maintenance work or other interventions by Winweb Informationstechnologie GmbH on the IT system, carry out a check as to whether the functionality of the data backup (check of the backed up data for completeness and restorability) still exists, and 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 will, before judicial enforcement, reduction, termination or set-off, request Winweb Informationstechnologie GmbH in writing, setting a reasonable deadline 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 involved hardware manufacturers, the licensee is responsible for making all installation preparations in the designated installation rooms by the agreed delivery date and completing all electrical connections.

11.2 The licensee is responsible for compliance with all occupational health and 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 for 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 expires on the expiry date. A subsequent resumption of the maintenance contract is only possible after carrying out the 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 relations between the licensee and Winweb Informationstechnologie GmbH are governed exclusively by the law of the Federal Republic of Germany. These general terms and conditions shall apply exclusively, unless otherwise agreed in writing.

12.2 Any change 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 does not affect the validity of the remaining provisions. The valid provision that comes closest to the invalid provision in its economic effect takes the place of the invalid provisions.

12.4 Place of performance is Aldenhoven.

12.5 Aachen shall be 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.

Version 04/2015