AGB

1.0 Scope

1.1 These following General Terms and Conditions shall apply exclusively to all present and future offers, deliveries and services of Winweb Informationstechnologie GmbH. 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 they are made in writing. Under no circumstances do the licensee's conditions apply.

1.3Exclusivity clause
All our declarations of intent, agreements and offers are based on these GTC; 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 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, catalogs 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 within 10 days from the invoice date net without any deduction, unless otherwise agreed in writing.

3.3 In the event of default in payment by the licensee, Winweb Informationstechnologie GmbH is entitled, without prejudice 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 binding 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 collateral 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, Delay in delivery, 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 upon conclusion of the contract and apply subject to the timely fulfillment of the duties to cooperate on the part of the licensee. If the licensee is in default with his duties to cooperate, the delivery dates or delivery periods shall be extended at least by the period of delay.

5.3 If contract amendments 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 the 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 by Winweb Informationstechnologie GmbH substantially more difficult or impossible (difficulties in procuring materials, operational disruptions, strike, statutory or official orders etc.), even if they occur at our suppliers or their subcontractors, shall not be 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 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 due 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 When the delivery items are shipped, 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 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 regarding 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 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 Upon purchase of the winweb-food software, the right to use it is granted for an unlimited period. The purchase of the software also includes extensions or further developments of the functionality of the purchased software acquired at the time of conclusion of the contract or commissioned subsequently (=upgrades) 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 purchased item remains the property of Winweb Informationstechnologie GmbH until the purchase price has been paid in full on the basis of the purchase agreement. The retention of title to the purchased item also remains in effect for all claims that Winweb Informationstechnologie GmbH subsequently acquires against the licensee in connection with the purchased item, e.g. on the basis of repairs or spare parts deliveries or other services.

7.4 If the licensee defaults on 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, any sale, transfer by way of security, pledging, renting or other transfer of the purchased item that impairs the security of Winweb Informationstechnologie GmbH, as well as its modification, is permissible 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, to have all maintenance work stipulated 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 immediately notify Winweb Informationstechnologie GmbH in writing. A resale is only possible with the written consent of Winweb Informationstechnologie GmbH.

7.7 In the case of renting 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 extensions or further developments of the functionality of the rented software (=upgrades) or elimination or correction of program errors (=updates) of the software that Winweb Informationstechnologie GmbH provides to the tenant 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 shall receive a non-exclusive and non-transferable right of use for the programs provided by Winweb Informationstechnologie GmbH, together with the associated documentations, organizational and setup aids, offer documents and software product descriptions and later extensions/additions, for internal, own use and specifically 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 be made, without assumption of costs or liability by Winweb Informationstechnologie GmbH only for your 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 unauthorized disclosure of the programs or documentation to third parties, a contractual penalty amounting to 3 times the delivered software value shall be 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 based on the delivered programs located 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 of defects in accordance with the current state of the art of the purchased item. Properties of the purchased item are only 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 constitute performance descriptions or guarantees with regard to the purchased item.

9.1.2 The customer 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 terms of the manufacturer's warranty, Winweb Informationstechnologie GmbH shall fulfill the warranty obligation at its discretion in accordance with the technical requirements by repair or replacement of defective parts. If the defect cannot be remedied, the customer 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 for 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 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 terms and conditions of the hardware manufacturers.

9.1.6 Claims of the client exceeding subsequent improvement, regardless of the legal basis, in particular from fault at the time of contract conclusion, 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, 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 assumes a warranty for a period of 12 months after delivery with regard to the functions and performance characteristics according to the performance 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 characteristics in the software product description do not constitute assurances, unless they are expressly designated 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 shall provide free rectification for all program errors reported 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 error correction or the expansion of the functional scope following 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 record of program changes. Winweb Informationstechnologie GmbH cannot be held liable for damages arising from documented program changes.

9.2.4 Otherwise, the provisions of point 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 statutory or contractual basis of liability of any kind, 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. Also in this respect, Winweb Informationstechnologie GmbH shall only be liable insofar as the damage exceeds any benefits of 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 on the part of Winweb Informations-technologie GmbH, liability is limited to the expense required for the reconstruction of the data if the data has been 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 (cardinal obligations) that endangers 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 on the part of vicarious agents, Winweb Informationstechnologie GmbH shall only be liable to a limited extent for the damage foreseeable for 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 arising from warranty or liability, any contributory fault 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 accordance 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 set. The licensee shall carry out a check immediately after every significant hardware and/or software change, 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 (checking the backed up data for completeness and recoverability) still exists, 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, especially when used together on the same system or in a 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, then before judicial assertion, reduction, termination or set-off, he shall request Winweb Informationstechnologie GmbH in writing, setting an appropriate deadline, to remedy 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 health and safety regulations.

11.3 The installation is carried out by Winweb Informationstechnologie GmbH.

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

11.5 If the maintenance contract concluded upon purchase of the software is terminated on time, any right to the associated services expires on the expiration date. Any subsequent resumption of the maintenance contract is only possible after carrying out in advance necessary system analyses and data consolidations, 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 subject exclusively to the law of the Federal Republic of Germany. These general terms and conditions apply exclusively, unless otherwise agreed in writing.

12.2 Any amendment or deviation from the content of these General Terms and Conditions is only 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 apply.

12.3 The invalidity of individual points of these conditions does not affect the validity of the remaining provisions. The valid provision whose economic effect comes closest to the invalid provision takes the place of the invalid provision.

12.4 Place of performance is Aldenhoven.

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

As of 04/2015