Terms of Service
| 1.0 | Scope |
|---|---|
| 1.1 | These following general terms and conditions apply exclusively to all present and future offers, deliveries and services of Winweb Informationstechnologie GmbH. Details about quantity, designation, purchase price or monthly rental rate or maintenance rate, intended delivery date and other costs will 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. In no case shall the conditions of the licensee. |
| 1.3 | Exclusivity clause All our declarations of intent, agreements and offers are based on these GTC; they become part of the contract by placing the order, silence on our commercial order confirmation or execution of the order or provision of the services. Deviating, conflicting or supplementary general terms and conditions, even with knowledge, not part of the contract, unless their validity is expressly agreed 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, etc.) remain the property of Winweb Informations-technologie GmbH and may not be reproduced or disclosed to third parties without their permission. |
| 2.3 | Technical and design deviations from descriptions and specifications in brochures, leaflets 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 therefrom, if the changes do not impair the performance of the object of purchase, are reasonable for the licensee or represent an advantage for the licensee. |
| 3.0 | Prices and terms of payment |
| 3.1 | The prices stated in the order confirmation of Winweb Informationstechnologie GmbH apply plus the respective legal value added tax. The packaging costs for the delivery of spare parts, accessories and consumables will be invoiced separately. Postage, freight, insurance and other shipping costs are not included in the prices. These shipping and transportation costs will be billed separately. |
| 3.2 | The receivables are payable within 10 days after the invoice date net without any deduction, unless otherwise agreed in writing. |
| 3.3 | In case of default of payment by the licensee, Winweb Informationstechnologie GmbH is entitled, subject to the assertion of further rights, to charge interest on arrears in the amount of 4% above the respective valid Bundesbank discount rate. |
| 3.4 | The licensee has no right of retention. Offsetting can only be declared with undisputed or legally established counterclaims. |
| 4.0 | Contract conclusion |
| 4.1 | A contract is concluded by the signature of both parties in the discussed contract document or by a written order confirmation of Winweb Informationstechnologie GmbH after previous verbal agreement, or with the start of the execution of the order or in case of services (for example maintenance) by the provision of the service by Winweb Informationstechnologie GmbH. |
| 4.2 | Any collateral agreements and assurances that go beyond the written software license agreement (purchase or lease) or maintenance agreement must be in writing and expressly confirmed by Winweb Informationstechnologie GmbH. |
| 5.0 | Delivery, delay in delivery, partial delivery, force majeure |
| 5.1 | Delivery dates are considered agreed upon when they have been confirmed in writing by Winweb Informationstechnologie. |
| 5.2 | Delivery periods shall commence upon conclusion of the contract and shall apply subject to the timely performance of the cooperation obligations 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 subsequent changes 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 possible without prior consent of the licensee. |
| 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 appropriately. Winweb Informationstechnologie GmbH is not responsible for delays in delivery and performance due to force majeure and due to events which make delivery considerably more difficult or impossible for Winweb Informationstechnologie GmbH (difficulties in material procurement, operational disturbances, strike, legal or official orders, etc.), even if they occur at our suppliers or their sub-suppliers, even in case of bindingly agreed deadlines and dates. The aforementioned reasons entitle Winweb Informationstechnologie GmbH to postpone the delivery and service for the duration of the hindrance plus a reasonable 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 date is exceeded for reasons for which Winweb Informationstechnologie GmbH is responsible, the Licensee may set a reasonable grace period for delivery in writing. In case of fruitless expiration of the grace period, the Licensee may withdraw from the contract. Claims for damages exist only in accordance with clause 10. |
| 6.0 | Shipping and transfer of risk |
| 6.1 | If the delivery items are transported by Winweb Informationstechnologie GmbH, the risk is transferred to the licensee as soon as the delivery items have been handed over to the licensee or his representative. |
| 6.2 | In case of shipment of the delivery items, the risk shall pass to the Licensee as soon as the delivery items have been handed over to the person performing 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 shall pass to the Licensee when the delivery items are ready for handover. |
| 6.4 | The transfer of risk with regard to standard software shall take place upon transfer to the Licensee. |
| 7.0 | Contractual objects and licenses, retention of title |
| 7.1 | Winweb Informationstechnologie GmbH delivers the software winweb-food as a license to the licensee (purchase) or transfers the use of the software winweb-food for a limited period of time against payment of a monthly fee (lease). The respective form of the surrender is fixed in writing in the order confirmation. |
| 7.2 | When purchasing the software winweb-food results in a time unlimited use. The purchase of the software also includes extensions or further developments of the functionality of the purchased software (=upgrades) acquired at the time of the conclusion of the contract or subsequently ordered and, in case of an existing maintenance contract, the elimination or correction of program errors (=updates) of the software, which Winweb Informationstechnologie GmbH leaves to the licensee in the context of the fulfillment of the contract. |
| 7.3 | The object of purchase remains the property of Winweb Informationstechnologie GmbH until the complete settlement of the purchase price based on the contract of purchase. The retention of title to the object of purchase also remains in force for all claims which Winweb Informationstechnologie GmbH subsequently acquires against the licensee in connection with the object of purchase, e.g. due to 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 object of purchase. In this case the licensee is obliged to return the object of purchase immediately. All costs of taking back and utilization of the object of purchase shall be borne by the licensee. |
| 7.5 | As long as the retention of title exists, a sale, transfer by way of security, pledge, lease or other transfer of the object of purchase 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 has the obligation to keep the object of purchase in proper condition for the duration of the reservation of title, to have all maintenance work provided by the manufacturer and necessary repairs carried out without delay. |
| 7.6 | In case of access by third parties, especially in case of seizure of the object of purchase, the licensee has to point out the retention of title and to inform Winweb Informationstechnologie GmbH immediately in writing. A resale is only possible with the written consent of Winweb Informationstechnologie GmbH. |
| 7.7 | If the software winweb-food is rented, this results in a temporary transfer of the scope of use of winweb-food as 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, which Winweb Informationstechnologie GmbH hands over to the lessee within the framework of the fulfillment of the contract. The lease ends after termination under the terms and conditions set forth in writing in the Software License Agreement (Lease). |
| 8.0 | Protection or copyright |
| 8.1 | The licensee receives a non-exclusive and non-transferable right to use the programs provided by Winweb Informationstechnologie GmbH together with the associated documentation, organization and setup aids, offer documents and software product descriptions and later extensions/additions for internal, own use in combination with hardware expressly approved by Winweb Informationstechnologie GmbH and licensed to the licensee. |
| 8.2 | The Licensee shall ensure that the delivered programs, documentation and other documents are not made available to third parties without the written consent of Winweb Informationstechnologie GmbH. This also applies in case 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 own use for backup and archiving purposes or for troubleshooting. Provided that originals carry a note indicating copyright protection, this is to be attached by the licensee also on copies. |
| 8.4 | All other rights to the programs and documentations remain in the original and copy with Winweb Informationstechnologie GmbH. |
| 8.5 | In case of an unauthorized transfer of the programs or documentations 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 in case of further use without a valid software license agreement (rental). The damage is determined in this case according to the programs delivered on the system according to the current software license fees resulting from the respective price list. |
| 9.0 | Warranty |
| 9.1 | Warranty 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 the object of purchase is free of defects in accordance with the respective state of the art. Properties of the object of purchase are only considered as warranted if they have been agreed upon 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 warranties with regard to the object of purchase. |
| 9.1.2 | The Principal shall immediately notify Winweb Informationstechnologie GmbH in writing of any defects discovered. This notification does not interrupt or suspend the warranty period. According to the specifications of the manufacturer’s warranty Winweb Informationstechnologie GmbH fulfills the warranty obligation at its own choice according to the technical requirements by repair or replacement of defective parts. If the defect cannot be eliminated, the client can claim redhibitory action or reduction. |
| 9.1.3 | For the parts installed during the repair, warranty is provided until the expiry of the warranty period of the object of purchase based on the purchase contract. |
| 9.1.4 | The warranty obligation does not exist for defects which arise due to improper, faulty, negligent handling or excessive use of the object of purchase. This also applies if parts have been installed in the object of purchase, the use of which has not been approved by Winweb Informationstechnologie GmbH, if the object of purchase has been modified in a way which has not been approved, or if the Principal has not followed the regulations regarding the treatment, maintenance and care of the object of purchase, especially when repairs or modifications have been carried out by third parties not authorized by Winweb Informationstechnologie GmbH. The warranty obligation also does not exist if a detected defect is not reported immediately and the opportunity for rectification is not given. |
| 9.1.5 | Natural wear and tear is excluded from the warranty under the terms of the hardware manufacturers. |
| 9.1.6 | Claims of the customer beyond rectification, regardless of the legal grounds, in particular from culpa in contrahendo, breach of ancillary contractual obligations, from positive breach of contract, in particular consequential harm caused by a defect, from tort are excluded. Claims for damages of any kind, especially in relation to consequential damages, exist only in accordance with the provisions of paragraph 10. |
| 9.1.7 | Warranty claims are only entitled 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 hardware products supplied 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 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 warranties unless they are expressly identified as such and set forth in writing in the software license agreement. |
| 9.2.2 | Winweb Informationstechnologie GmbH shall, within the scope of the warranty, provide rectification free of charge for all program errors communicated to it by e-mail, telephone or in writing, insofar as these are sufficiently documented by the licensee and can thus be reconstructed. Further claims of any kind, especially claims for damages are excluded. |
| 9.2.3 | Program changes for the purpose of error correction or expansion of the scope of functions after importing an update or patch are to be accepted by the licensee. They shall be documented in a timely manner. The Licensee undertakes to take note of the program change documentation. Winweb Informationstechnologie GmbH cannot be held liable for damages caused by documented program changes. |
| 9.2.4 | For the rest, 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 case of a legal or contractual liability case 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 object of purchase. Also in this respect Winweb Informationstechnologie GmbH is only liable as far as the damage exceeds any benefits of an insurance. |
| 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 | The liability for the loss of data is excluded, unless Winweb Informationstechnologie GmbH has caused their destruction by gross negligence or intentionally. In case of liability of Winweb Informations-technologie GmbH, the liability is limited to the effort required for the reconstruction of the data, if the data is properly secured by the Licensee. |
| 10.5 | Winweb Informationstechnologie GmbH shall not be liable for loss of profit, loss of savings, damages from claims of third parties and other indirect and consequential damages as well as for recorded data, unless the damages incurred are based on a breach of essential contractual obligations (cardinal obligations) endangering the purpose of the contract. |
| 10.6 | The above limitations of liability do not apply as far as Winweb Informationstechnologie GmbH is charged with intent or gross negligence. However, for intent or gross negligence of vicarious agents Winweb Informationstechnologie GmbH is liable only limited to the damage foreseeable for Winweb Informationstechnologie GmbH. |
| 10.7 | In the event of liability arising from slight negligence, such liability shall be limited to such damages as are foreseeable or typical. A liability for the absence of guaranteed quality, due to fraudulent intent, for personal injury, defects of title, under the Product Liability Act and the Federal Data Protection Act shall remain unaffected. |
| 10.8 | In the event of a claim against Winweb Informationstechnologie GmbH under warranty or liability, contributory negligence on the part of the Licensee shall be adequately taken into account, in particular in the case of insufficient error messages or insufficient data backup. Inadequate data backup shall be deemed to exist in particular if the Licensee has failed to take precautions against external influences, in particular against computer viruses and other phenomena, which may endanger individual data or an entire data stock, by taking appropriate, state of the art security measures. The licensee shall immediately after each essential hardware and/or software change, installation, defect removal work, maintenance work or other interventions of Winweb Informationstechnologie GmbH on the EDP system carry out a check whether the functionality of the data backup (check of the backed up data for completeness and recoverability) is still given and record the result in writing. The licensee shall ensure that a reliable, timely and comprehensive data routine ensures the data backup. |
| 10.9 | For the transfer and the use of software not supplied by Winweb Informationstechnologie GmbH, especially together on the same installation or in a network compound, the licensee bears sole responsibility. |
| 10.10 | If, from the point of view of the Licensee, there is a breach of duty in the sphere of performance of Winweb Informationstechnologie GmbH, the Licensee shall request Winweb Informationstechnologie GmbH to remedy specific complaints by setting a reasonable period of time in writing before making any legal claim, reduction, termination or set-off. |
| 11.0 | Installation, maintenance and operation |
| 11.1 | According to the specifications and instructions of Winweb Informationstechnologie GmbH and the involved 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 shall commence in accordance with the agreement for the maintenance of the winweb-food software immediately after installation has been completed. |
| 11.5 | If the maintenance agreement concluded at the time of purchase of the software is terminated in due time, any right of the associated services shall expire on the expiration date. A subsequent resumption of the maintenance contract is only possible after carrying out in advance necessary system analyses and data consolidations, according to the valid price list. |
| 12.0 | Applicable law, partial invalidity, place of performance and jurisdiction |
| 12.1 | The legal relations between the Licensee and Winweb Informationstechnologie GmbH are exclusively subject to the laws of the Federal Republic of Germany. These general terms and conditions of business shall apply exclusively, unless otherwise agreed in writing. |
| 12.2 | Any change or deviation from the contents of these General Terms and Conditions shall only be valid if confirmed in writing by Winweb Informationstechnologie GmbH. The terms and conditions of the software license agreement (purchase), software license agreement (rental) or the agreements for the maintenance of the software winweb-food shall apply in addition. |
| 12.3 | The invalidity of individual points of these conditions does not affect the validity of the remaining provisions. The invalid provisions shall be replaced by the valid provision that comes closest in its economic effect to the invalid provision. |
| 12.4 | The 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, irrespective of the legal ground, the exclusive place of jurisdiction is Aachen. |