AGB

1.0 Scope

1.1 All current and future quotations, deliveries, and services of Winweb Informationstechnologie GmbH shall be governed exclusively by the following general terms and conditions. Details regarding quantity, description, purchase price or monthly rental fee or maintenance fee, scheduled delivery date, and other costs shall be specified in the order confirmation.

1.2 Agreements that deviate from these General Terms and Conditions shall only be effective if made in writing. Under no circumstances shall the licensee's terms and conditions apply.

1.3 Exclusivity clause
These general terms and conditions form the basis of all our declarations of intent, agreements and offers; they become part of the contract upon placement of an order, failure to object to our commercial order confirmation, performance of the order or provision of the services. Any deviating, conflicting or supplementary general terms and conditions shall not form part of the contract, even if we are aware of them, unless their applicability is expressly agreed to in writing.

2.0 Quotations

2.1 Quotations from Winweb Informationstechnologie GmbH are valid for up to 90 days from the quotation date, unless otherwise stated in the quotation.

2.2 Quotation documents (product descriptions, sample documents and similar materials) remain the property of Winweb Informationstechnologie GmbH and may neither be reproduced nor disclosed to third parties without its consent.

2.3 Technical and design deviations from descriptions and information in brochures, prospectuses and written quotation documents as well as in software-product descriptions and samples remain reserved until delivery, without this giving rise to any rights against Winweb Informationstechnologie GmbH, provided that the changes do not impair the performance of the purchased item, are reasonable for the licensee or provide an advantage to the licensee.

3.0 Prices and payment terms

3.1 The prices stated in the order confirmation issued by Winweb Informationstechnologie GmbH shall apply, plus the applicable statutory value-added tax. 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 transportation costs shall be invoiced separately.

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

3.3 If the Licensee defaults on payment, 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 shall have no right of retention. Set-off may only be declared against undisputed or legally-established counterclaims.

4.0 Conclusion of the contract

4.1 A contract is concluded upon signature by both parties on the agreed contract document or upon written order confirmation by Winweb Informationstechnologie GmbH following prior verbal agreement, or upon commencement of performance of the order or in the case of services (for example maintenance) upon 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 must be made in writing and expressly confirmed by Winweb Informationstechnologie GmbH.

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

5.1 Delivery dates shall be deemed agreed if they have been confirmed in writing by Winweb Informationstechnologie.

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

5.3 If subsequent amendments to the contract are agreed, for example the inclusion of new requirements that do not arise from the software license agreement, a new delivery date or delivery period shall be agreed if necessary.

5.4 Partial deliveries are permitted without the licensee’s prior consent.

5.5 If, for reasons beyond the control of Winweb Informationstechnologie GmbH, a binding delivery date is exceeded or the handover is delayed, the specified date shall be postponed by an appropriate period. Winweb Informationstechnologie GmbH shall not be responsible for delays in delivery and performance due to force majeure or events that make delivery by Winweb Informationstechnologie GmbH substantially more difficult or impossible (difficulties in procuring materials, operational disruptions, strikes, statutory or official orders etc.), even if they occur at our suppliers or their subcontractors and even where binding deadlines and dates have been agreed. The aforementioned reasons entitle Winweb Informationstechnologie GmbH to postpone delivery and performance for the duration of the impediment plus an appropriate start-up period or to withdraw from the contract in whole or in part with respect to the unfulfilled portion.

5.6 If a delivery period or delivery date is exceeded for reasons for which Winweb Informationstechnologie GmbH is responsible, the Licensee may set a reasonable additional period for delivery in writing. If the additional period expires without result, the Licensee may withdraw from the Agreement. Claims for damages shall exist only in accordance with Clause 10.

6.0 Shipping and transfer of risk

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

6.2 If the delivery items are shipped, the risk shall pass to the Licensee as soon as the delivery items have been handed over to the person carrying out the transport. This shall also apply if carriage-paid delivery has been agreed.

6.3 If the handover of the deliverables is delayed for reasons for which the Licensee is responsible, the risk shall pass to the Licensee when the deliverables are ready for handover.

6.4 The risk in relation to standard software passes upon transfer to the licensee.

7.0 Subject Matter of the Agreement and Licenses, Retention of Title

7.1 Winweb Informationstechnologie GmbH supplies the winweb-food software to the licensee under a license (purchase) or grants the right to use the winweb-food software for a limited period in return for payment of a monthly fee (rental). The applicable form of provision shall be specified in writing in the order confirmation.

7.2 The purchase of the winweb-food software grants an unlimited period of use. The purchase of the software also includes extensions or further developments to the functionality of the purchased software acquired upon conclusion of the contract or subsequently commissioned (=upgrades) and, where a maintenance agreement is in place, the rectification or correction of software errors (=updates) that Winweb Informationstechnologie GmbH provides to the licensee in fulfilment of the contract.

7.3 The purchased item shall remain the property of Winweb Informationstechnologie GmbH until the purchase price has been paid in full under the purchase agreement. Retention of title to the purchased item shall also remain in effect for all claims that Winweb Informationstechnologie GmbH subsequently acquires against the Licensee in connection with the purchased item, e.g. due to repairs or deliveries of spare parts or other services.

7.4 If the licensee defaults on payment or fails to meet its obligations under the retention of title, Winweb Informationstechnologie GmbH may demand the return of the purchased item. In this case, the licensee is obliged to surrender the purchased item immediately. The licensee shall bear all costs associated with the repossession and disposal of the purchased item.

7.5 As long as retention of title remains in effect, the purchased item may be sold, transferred by way of security, pledged, rented out or otherwise made available in a manner that impairs the security of Winweb Informationstechnologie GmbH, or modified, only 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 period, and to have all maintenance work specified by the manufacturer and any necessary repairs carried out without delay.

7.6 In the event of access by third parties, particularly the seizure of the purchased item, the Licensee must draw attention to the retention of title and immediately notify Winweb Informationstechnologie GmbH in writing. Resale is only permitted with the written consent of Winweb Informationstechnologie GmbH.

7.7 When winweb-food software is leased, the scope of use of winweb-food specified in the order confirmation is provided for a limited period. The software lease also includes extensions or further developments to the functionality of the leased software (=upgrades) or the elimination or correction of software errors (=updates) that Winweb Informationstechnologie GmbH provides to the lessee in the course of fulfilling the contract. The lease ends upon termination under the conditions stipulated in writing in the software license agreement (lease).

8.0 Intellectual property rights

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

8.2 The Licensee shall ensure that the supplied programs, documentation, and other materials are not made accessible to third parties without the written consent of Winweb Informationstechnologie GmbH. This shall also apply in the event of resale of the hardware.

8.3 Copies may be made solely for internal use for backup and archiving purposes or for troubleshooting, without Winweb Informationstechnologie GmbH assuming any costs or liability. If originals bear a notice indicating copyright protection, the licensee must also affix this notice to copies.

8.4 All other rights to the programs and documentation, both originals and copies, shall remain with Winweb Informationstechnologie GmbH.

8.5 In the event of unauthorized disclosure of the programs or documentation to third parties, a contractual penalty equal to three times the value of the software supplied shall be payable for each individual case. This shall not affect any copyright claims or claims for damages by Winweb Informationstechnologie GmbH against the licensee.

8.6 The same shall apply in the event of continued use without a valid software license agreement (rental). In this case, the damages shall be calculated based on the programs supplied and installed on the system, in accordance with the current software license fees set out in the applicable price list.

9.0 Warranty9.1Warranty for hardware products

9.1.1 From delivery of the hardware products and for the duration of the manufacturer's warranty, Winweb Informationstechnologie GmbH warrants that they will be free from defects in accordance with the state of the art applicable to the purchased item. Properties of the purchased item shall be deemed guaranteed only if they have been agreed as such in writing. The depiction of hardware products in informational or advertising material of Winweb Informationstechnologie GmbH does not constitute any specifications or warranties with regard to the purchased item.

9.1.2 The Client must notify Winweb Informationstechnologie GmbH immediately in writing of any defects identified. Such notification shall not interrupt or suspend the warranty period. In accordance with the terms of the manufacturer’s warranty, Winweb Informationstechnologie GmbH shall, at its discretion and as technically required, fulfil its warranty obligation by repairing or replacing defective parts. If the defect cannot be remedied, the Client may demand rescission of the contract or a reduction in price.

9.1.3 Parts installed during remedial work shall be covered under the purchase contract until the expiry of the warranty period for the purchased item.

9.1.4 The warranty obligation does not apply to defects arising from 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 an unauthorized manner, or if the Client has failed to comply with the regulations concerning the handling, maintenance and care of the purchased item, particularly if repairs or modifications have been 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 to remedy it is not provided.

9.1.5 Natural wear and tear is excluded from the warranty under the hardware manufacturers’ terms and conditions.

9.1.6 Claims by the Client beyond rectification, irrespective of their legal basis, in particular arising from fault in the conclusion of the contract, breach of ancillary contractual obligations, positive breach of contract, especially consequential damage caused by defects, or tort are excluded. Claims for damages of any kind, particularly with regard to consequential damage, shall exist only in accordance with Section 10.

9.1.7 Warranty claims are available only to the first direct client and may not be transferred or assigned.

9.1.8 In all other respects, the warranty terms of the manufacturers of the supplied hardware products shall 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 respect to the functions and performance features in accordance with the licensor's performance obligations 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 the specified hardware configurations and operating systems. The technical data, specifications and performance features in the software product description do not constitute guarantees, unless they are expressly designated as such and set out in writing in the software license agreement.

9.2.2 Under the warranty, Winweb Informationstechnologie GmbH shall remedy free of charge all software errors reported to it by email, telephone or in writing, provided that they are adequately documented by the licensee and can therefore be reproduced. Any further claims of any kind are excluded, particularly damage-compensation claims.

9.2.3 The Licensee must accept program changes made for the purpose of correcting errors or expanding the scope of functionality following the installation of an update or patch. They will be documented promptly. The Licensee undertakes to review the record of program changes. Winweb Informationstechnologie GmbH cannot be held liable for damage arising from documented program changes.

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

10.0 Liability

10.1 The liability of Winweb Informationstechnologie GmbH is limited to the cases stipulated in these General Terms and Conditions. In the event of any statutory or contractual basis for liability, the following limitation of liability shall apply:

10.2 The total liability of Winweb Informationstechnologie GmbH is limited to the amount corresponding to the purchase price of the respective purchased item. In this respect as well, Winweb Informationstechnologie GmbH shall be liable only to the extent that the loss exceeds any benefits payable under an insurance policy.

10.3 Winweb Informationstechnologie GmbH shall not be liable for the technical and/or legal feasibility 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 caused its destruction through gross negligence or intent. In the event that Winweb Informations-technologie GmbH is liable, 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 shall not be liable for loss of profit, unrealized savings, damages arising from third-party claims and other indirect and consequential damages, or for recorded data, unless the damages incurred result from a breach of material contractual obligations (cardinal obligations) that jeopardizes the purpose of the contract.

10.6 The foregoing limitations of liability shall not apply where Winweb Informationstechnologie GmbH is responsible for intent or gross negligence. However, Winweb Informationstechnologie GmbH shall be liable for intent or gross negligence on the part of its agents only up to the amount of the loss foreseeable by Winweb Informationstechnologie GmbH.

10.7 In the event of liability for ordinary negligence, such liability shall be limited to losses that are foreseeable or typical. Liability for the absence of a guaranteed quality, fraudulent intent, personal injury, defects in title, under the Product Liability Act and the German Federal Data Protection Act remains unaffected.

10.8 In the event that claims are asserted against Winweb Informationstechnologie GmbH under warranty or liability, any contributory negligence on the part of the licensee shall be appropriately taken into account, particularly in the case of inadequate error-reports or inadequate data backup. Data backup shall be deemed inadequate in particular if the licensee has failed to take appropriate backup measures in line with the state of the art to protect against external influences, particularly computer viruses and other phenomena that may jeopardize individual data or an entire data set. Immediately after any significant hardware and/or software change, installation, defect rectification work, maintenance work or other intervention by Winweb Informationstechnologie GmbH in the IT system, the licensee shall verify whether the data backup remains functional (checking the backed-up data for completeness and recoverability), and shall document 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, particularly when used together on the same system or within a network.

10.10 Where the Licensee considers that a breach of duty has occurred within the sphere of performance of Winweb Informationstechnologie GmbH, the Licensee shall request Winweb Informationstechnologie GmbH to remedy specific complaints within a reasonable period specified in writing before asserting claims in court, reducing the price, terminating the agreement or offsetting claims.

11.0 Installation, maintenance and operation

11.1 In accordance with the specifications and instructions of Winweb Informationstechnologie GmbH and the participating hardware-manufacturers, the licensee is responsible, in the designated installation rooms by the agreed delivery date, for making all installation preparations and completing all electrical connections.

11.2 The Licensee is responsible for compliance with all occupational accident insurance association safety regulations.

11.3 Installation shall be carried out by Winweb Informationstechnologie GmbH.

11.4 Maintenance commences immediately after installation in accordance with the winweb-food Software Maintenance Agreement.

11.5 If the maintenance agreement concluded upon purchase of the software is terminated with due notice, all rights to the associated services shall expire on the expiration date. Subsequent reinstatement of the maintenance agreement is only possible after the necessary prior system analyses and data consolidations have been carried out, in accordance with the current price list.

12.0 Applicable law, severability, place of performance and jurisdiction

12.1 The legal relations between the licensee and Winweb Informationstechnologie GmbH shall be governed exclusively by the laws of the Federal Republic of Germany. These general terms-and-conditions shall apply exclusively 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 confirmed in writing by Winweb Informationstechnologie GmbH. In addition, the terms and conditions of the Software License Agreement (Purchase), Software License Agreement (Rental), or the agreements concerning the maintenance of the winweb-food software shall apply, as applicable.

12.3 The invalidity of individual provisions of these terms and conditions shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision that most closely approximates the economic effect of the invalid provision.

12.4 The 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, irrespective of the legal basis.

As of 04/2015