General Terms and Conditions of Contract
1 Validity of the licence conditions/contractual conditions
1.1 WPS - Workplace Solutions GmbH (hereinafter "WPS GmbH") provides its services for its customers (hereinafter "Customer/Licensee") exclusively on the basis of these General Terms and Conditions of Contract. WPS GmbH may provide supplementary or deviating terms and conditions for individual business areas, for example for the provision of standard software (sale/rental/leasing), employee leasing, SAAS services or training services. All terms and conditions also apply to pre-contractual obligations. They apply exclusively to business transactions. Other contractual terms and conditions, in particular purchasing terms and conditions of the customer/licensee/prospective customer, shall not become part of the contract, even if WPS GmbH does not expressly object to them. Individual agreements and contractual agreements must be made in writing. Verbal agreements require immediate confirmation by the customer/licensee in text form in order to be effective.
1.2 Even if no further reference is made to these terms and conditions when concluding similar contracts, these General Terms and Conditions of Contract and, if applicable, the supplementary General Terms and Conditions for Special Business Areas of WPS GmbH in the version applicable at the start of the contract negotiations shall apply exclusively.
1.3 German law shall apply exclusively; in addition, depending on the type of contract, the provisions of the German Civil Code and the German Commercial Code relating to contracts for work, services, sales and leases shall apply, as well as German copyright law in particular.
2 Conclusion of contract
The cost estimates/quotations of WPS GmbH are subject to change and non-binding, unless they are designated as binding in text form. A legal commitment only comes about through a contract signed by both parties or through an order confirmation from WPS GmbH in text form. Even if WPS GmbH begins to provide the service after the order has been placed, a contract is only concluded subject to these General Terms and Conditions of Contract. WPS GmbH may request confirmation of the customer's/licensee's verbal contractual declarations in text form.
3 Subject matter of the contract, scope of services
3.1 Before concluding the contract, the customer/licensee must check whether the specification of the services, systems or software offered corresponds to his wishes and requirements. The essential functional features, system requirements and conditions of the services offered by WPS GmbH are known to the customer/licensee prior to conclusion of the contract. WPS GmbH will answer all enquiries as completely and correctly as possible. The customer/licensee is not permitted to subsequently claim ignorance.
3.2 The scope, type and quality of the deliveries and services of WPS GmbH are determined by contracts, order confirmations, if applicable on the basis of the cost estimate or the offer of WPS GmbH. Other details or requirements only become part of the contract if the contractual partners agree this in text form or WPS GmbH has confirmed this in text form. Subsequent changes to the scope of performance or the object of performance require agreement in text form or the express confirmation of WPS GmbH in text form. Unless otherwise agreed, WPS GmbH owes services of an average type and quality.
3.3 Product descriptions, illustrations, test programmes etc. are service descriptions, but not guarantees. A guarantee requires express confirmation by the management of WPS GmbH in text form.
3.4 The type of service provision and the method of delivery of software is based on the agreements; in the absence of other agreements, programmes and manuals are delivered online. The customer/licensee is not entitled to the provision of source codes.
3.5 Unless otherwise agreed, WPS GmbH provides its services as services. This applies in particular to work on third-party IT systems. Invoicing is based on actual expenditure.
4 Availability, errors
4.1 Insofar as WPS GmbH provides software solutions for use, including SaaS services, the customer/licensee is aware that there is no such thing as error-free software.
4.2 It is the responsibility of the customer/licensee to ensure regular data backups and to ensure the archiving of data in accordance with the retention periods under commercial and tax law; unless otherwise agreed, this work is not part of the scope of services of WPS GmbH.
4.3 If necessary, the customer/licensee is responsible for the connection to the Internet and the maintenance of the network connections. Where relevant, the transfer of services by WPS GmbH takes place at the router output of the data centre used by WPS GmbH to the Internet.
4.4 The normal operating hours of WPS GmbH are from Monday to Friday from 9.00 am to 5.00 pm. Public holidays (Hamburg) are excluded.
4.5 Insofar as the usability of a software service is important, an availability of 95%, based on the calendar year during the normal operating hours of WPS GmbH (4.4.). A higher availability requires an express agreement between the contractual partners in text form.
4.6 In all other respects, the general regulations for reporting and rectifying errors apply.
4.7 WPS GmbH is only obliged to provide the expressly agreed services. In particular, further installation, customisation, migration, programming, documentation, consulting and training services are subject to remuneration.
4.8 Installation and operation of the solutions generally require considerable cooperation on the part of the customer/licensee. These co-operation services must be provided in full and in good time. When using the solutions offered by WPS GmbH, the customer/licensee must comply with all applicable laws and other legal provisions. It is prohibited to transfer data or content to WPS GmbH servers that violate legal regulations or infringe third-party property rights or copyrights or other third-party rights. Transferred data must be free of computer viruses or other harmful code; no software, techniques or procedures may be used that impair the operation, security and availability of the systems. It is the responsibility of the customer/licensee, if necessary, to work towards the conclusion of further agreements, for example the conclusion of an agreement on commissioned processing (Art. 28 GDPR).
4.9 WPS GmbH may adjust the remuneration during the term of the contract. Such a price adjustment is only permitted once a year and for the first time after the end of the first year of the contract and should be based on the general price increase rates. Price adjustments must be announced in text form at least six weeks before they come into effect. If the price increase is to amount to more than 10% of the previous remuneration, the customer/licensee has a special right of termination. The special right of cancellation can be exercised within one month of receipt of the notification of change with a notice period of one month.
4.10. WPS GmbH is authorised to change, further develop or supplement its services within the scope of the purpose of the contract. Significant changes relevant to the contract will be announced in text form at least six weeks before they come into effect. The customer/licensee may object to planned and announced changes in text form with a notice period of one month from receipt of the notification of change. If no objection is made, the amended solution shall become the subject matter of the contract.
5.1 Training courses are subject to a charge. If agreed, training shall take place at the registered office of WPS GmbH. The customer/licensee can have training courses carried out on his premises, provided that he provides the technical equipment and assumes the additional costs incurred.
5.2 WPS GmbH can also cancel a training date in good time. WPS GmbH will inform the customer/licensee of the cancellation of the date in good time and offer alternative dates.
6 Rights of the customer/licencee to the software
6.1 Software (programme and user manual) and the predominant services of WPS GmbH are legally protected. The copyrights, patent rights, trademark rights and all other ancillary copyrights to the services of WPS GmbH, in particular to software and other services and objects which WPS GmbH provides or makes accessible to the customer/licensee within the framework of the initiation and execution of the contract, are the exclusive property of WPS GmbH in the relationship between the contractual partners. Insofar as third parties are entitled to the rights, WPS GmbH has corresponding exploitation rights.
6.2 Unless otherwise agreed, the customer/licensee is only authorised to process their own data with the software/services of WPS GmbH in their own company for their own purposes. All data processing devices to which the programmes/services are copied or transferred in whole or in part, temporarily or permanently, must be located on the premises of the customer/licensee and be in his direct possession. Further contractual rules of use (e.g. restriction to a number of workstations or persons), use in branch offices, subsidiaries, remote operation or use via the Internet (cloud solutions) must be expressly agreed contractually, set up technically and complied with in practice. WPS GmbH hereby grants the customer/licensee the necessary authorisations for use as a simple right of use, including the right to rectify errors. The right of use is granted for the contractual duration. The transfer of purpose theory shall apply.
6.3 The customer/licensee may make the backup copies of the programmes required for secure operation. The backup copies must be stored securely and, as far as technically possible, labelled with the copyright notice of the original data carrier or the version of the software transferred online. Copyright notices, trademarks and product labelling may not be deleted, changed or suppressed. Any user manual supplied and other documents provided by WPS GmbH may only be copied for internal use and for the purposes provided for in the contract.
6.4 The customer/licensee may only decompile the interface information of the programmes within the limits of § 69e UrhG (German Copyright Act) and only if he has informed WPS GmbH of this intention in text form and has requested the provision of the necessary interface information with a notice period of at least two weeks. The regulations on confidentiality and data protection apply to all knowledge and information that the customer/licensee obtains about the software in the course of decompiling. Prior to any involvement of third parties, the customer/licensee shall provide WPS GmbH with a declaration from the third party in text form that the third party undertakes directly to WPS GmbH to comply with the rules set out in these licence conditions.
6.5 All other acts of exploitation, in particular the rental, lending and distribution in physical or non-physical form, the use of the software by and for third parties (e.g. through outsourcing, computer centre activities, application service providing) are only permitted on the basis of the prior consent of WPS GmbH in text form.
6.6. . All contractual objects, as well as documents, development proposals, test programmes, updates, services, etc. of WPS GmbH, which become accessible to the customer/licensee before or after conclusion of the contract, are deemed to be the intellectual property and business and trade secrets of WPS GmbH. They may not be used or passed on without the prior consent of WPS GmbH and must be kept secret. The declaration of consent must be in text form.
7 Performance time, delays, place of performance
7.1 Information on delivery and performance times is non-binding unless it has been designated or confirmed as binding by WPS GmbH in text form. WPS GmbH can provide partial services insofar as the delivered parts are reasonably usable for the customer/licensee.
7.2 Delivery and performance deadlines are extended by the period in which the customer/licensee is in default of payment from the business relationship and by the period in which WPS GmbH is prevented from delivering or performing due to circumstances for which it is not responsible, as well as by a reasonable start-up period after the end of the impediment. These circumstances also include force majeure, a pandemic situation and industrial action. Deadlines shall also be extended by the period in which the customer/licensee fails to cooperate in breach of contract, e.g. fails to provide information, fails to provide access, fails to supply a provision or fails to make employees available.
7.3 If the contracting parties subsequently agree other or additional services that affect the agreed deadlines, these deadlines shall be extended by a reasonable period of time.
7.4 Reminders and deadlines set by the customer/licensee must be in text form to be effective. A grace period must be reasonable. A period of less than two weeks shall only be appropriate in cases of particular urgency.
7.5 Unless otherwise agreed, the place of performance is the registered office of WPS GmbH in Hamburg.
8 Contract commitment and termination of contract
8.1 Any termination of the further exchange of services (e.g. cancellation, reduction, termination for good cause, claims for damages instead of performance) must always be threatened by stating the reason and setting a reasonable deadline for rectification. In the cases stipulated by law (e.g. Section 323 (2) BGB), the deadline may be omitted. Anyone who is wholly or mainly responsible for the disruption cannot demand cancellation. All declarations in this context must be made in text form to be effective.
8.2 After the end of the contract, WPS GmbH generally makes the data created by the customer available for download in full within three weeks - insofar as this data is processed on behalf of the customer/licensee, for example in SaaS solutions. The data is made available in a suitable format selected by WPS GmbH. Within one week after the customer has downloaded the data, but no later than three months after the end of the contract, WPS GmbH will completely delete all data stored by the customer on its servers. For a separate fee and at the customer's discretion, WPS GmbH will transfer the data to a third company. Under no circumstances is WPS GmbH obliged to retain data for longer than 6 months after the end of the contract.
9 Remuneration, payment
9.1 Unless otherwise agreed, the remuneration owed is due without deduction after delivery/provision of the services, in particular the software, and receipt of the invoice by the customer/licensee and is payable within 10 days. WPS GmbH may issue interim and instalment invoices. In the case of services which are provided over a longer period of time, invoices can be issued monthly; in the case of work services, appropriate monthly instalment invoices can be issued in accordance with the progress of the work.
9.2 Unless the contracting parties have agreed otherwise, the respective list of services and prices of WPS GmbH valid at the time of conclusion of the contract shall apply; in the absence of such a list, the customary local remuneration shall apply.
9.3 Travel costs, expenses, hardware, any third-party licence costs, accessories, shipping costs and telecommunication costs are to be remunerated additionally at cost. Additional services requested by the customer/licensee from WPS GmbH (e.g. consulting and support, training, support services and the like) are charged in accordance with the WPS GmbH service and price list.
9.4 All prices are net plus the respective statutory value added tax.
9.5 The customer/licencee can only offset claims that are undisputed by WPS GmbH or have been legally established. Except in the area of § 354a HGB, the customer/licensee may only assign claims from a contract to third parties with the prior consent of WPS GmbH in text form. The customer/licensee is only entitled to a right of retention or the defence of non-performance of the contract within the contractual relationship concerned
Rights of use to copyrighted services are only transferred to the customer upon full payment to the necessary extent. Insofar as ownership rights to the service of WPS GmbH exist, WPS GmbH retains ownership of the item until full payment of all outstanding claims of WPS GmbH. The contractual partners agree that ownership is transferred to the customer/licensee upon full payment without further declaration.
10 Obligations of the customer/licencee
10.1 The customer/licensee is obliged to professionally inspect all delivery items of WPS GmbH immediately upon delivery or upon making them available in accordance with the commercial law regulations (§ 377 HGB) and to report any defects detected in text form with a precise description of the defect. The customer/licensee shall thoroughly test each service/module for usability in the specific situation before commencing productive use. This also applies to programmes and services that the customer/licensee receives under the warranty and a maintenance contract.
10.2 The customer/licensee shall take appropriate precautions in the event that the services supplied, in particular the IT programs supplied, do not work properly in whole or in part (e.g. through regular data backups, documentation of software use, fault diagnosis, regular testing of results, emergency planning). It is the responsibility of the customer/licensee to ensure the functionality of the working environment of programmes and services of WPS GmbH.
11 Material defects / errors
11.1 The services of WPS GmbH (in particular software) have the agreed quality and are suitable for the contractually stipulated use or, in the absence of an agreement, for normal use. They fulfil the criterion of practical suitability and have the usual quality for services/software of this type; however, they are not error-free. A functional impairment of the software and services resulting from hardware defects, environmental conditions, incorrect operation or similar is not a defect/error. An insignificant reduction in quality shall not be taken into account. A service provided in this respect must be accepted by the customer/licensee.
11.2 Insofar as the order to WPS GmbH is based on advance services of third parties, in particular on software or systems existing at the customer/licensee or systems provided by the customer/licensee, a warranty for material defects or liability for these systems or their functionalities is excluded.
11.3 In the event of material defects, WPS GmbH may initially provide subsequent fulfilment. Subsequent fulfilment is carried out at the discretion of WPS GmbH by remedying the defect, by subsequent delivery which does not have the defect, or by WPS GmbH demonstrating ways of avoiding the effects of the defect. At least two attempts to rectify a defect must be accepted. An equivalent new programme version or the equivalent previous programme version without the defect is to be accepted by the customer/licensee if this is reasonable for him. The installation of software/conversion (patches or new versions) is the responsibility of the customer/licensee, unless otherwise agreed.
11.4 The customer/licensee shall support WPS GmbH in analysing errors and rectifying defects, in particular by informing WPS GmbH of any problems that occur. Any errors that occur must be reported immediately to the responsible office at WPS GmbH in a structured form (if necessary using the tools used by WPS GmbH) with a precise description of the problem. Verbal error reports must be repeated immediately in text form. The customer/licensee shall grant WPS GmbH the time and opportunity required to rectify the defect. WPS GmbH may, at its discretion, carry out the rectification of defects on site or at its business premises. WPS GmbH can also provide services by remote maintenance. The customer/licensee must ensure the necessary technical requirements at his own expense and grant WPS GmbH electronic access to the software after appropriate prior notification.
11.5 WPS GmbH analyses and rectifies documented, reproducible errors in the systems and services supplied or offered by it. Errors are faults reported by the customer/licensee which demonstrate a deviation in the quality or functionality of the system from the offer or from the user documentation and which impair usability more than insignificantly or lead to faulty or lost data. A non-reproducible report by the customer/licensee shall not be deemed an error.
11.6 The contracting parties agree the following error classes and response times:
Error class 1: Defects preventing operation: The error impedes business operations at the customer/licensee; there is no workaround solution: WPS GmbH shall begin immediately, at the latest within 8 hours of the error being reported, to rectify the error and shall continue to do so with vigour until the error has been rectified. This obligation exists within the normal business hours of WPS GmbH (see 4.4.).
Error class 2: Defects that hinder operations: The error significantly hinders business operations at the customer/licensee; however, the use of the services/software is possible with workaround solutions or with temporarily acceptable restrictions or difficulties. In the event of an error message before 10:00 a.m., WPS GmbH will begin to rectify the error on the following day, in the event of a later error message at the beginning of the next working day but one and will continue to do so until the error has been rectified within normal working hours. WPS GmbH can initially demonstrate a workaround solution and rectify the error later if this is reasonable for the customer/licence holder. This obligation exists within the normal business hours of WPS GmbH (see 4.4.).
Error class 3: Other defects: WPS GmbH will begin to rectify the error within one week or will only rectify the error with the next programme version if this is reasonable for the customer/licensee.
11.7 The deadlines in accordance with paragraph 11.6. begin with an error message in accordance with paragraph 11.4. in the event of differences of opinion regarding the allocation of an error to the classes, the customer/licensee can demand classification in a higher error class. He shall reimburse WPS GmbH for the additional expense if he cannot prove that his categorisation was correct.
11.8 WPS GmbH can demand additional costs from the fact that the software has been modified, used outside the specified environment or operated incorrectly, as well as in the case of improper, unauthorised use, operating errors, hardware defects and use of the SaaS solution on hardware and operating system environments other than those specified in the user documentation. It may demand compensation if no defect is found. The burden of proof lies with the customer/licensee. § Section 254 BGB applies accordingly. In these cases, WPS GmbH is authorised to treat support services relating to this as a separate order and to invoice them in accordance with the applicable billing rates.
11.9 If WPS GmbH finally refuses subsequent fulfilment or if this finally fails or is unreasonable for the customer/licensee, the customer/licensee can either withdraw from the contract or reduce the remuneration appropriately.
12 Defects of title
12.1 WPS GmbH guarantees that the contractual use of the software and services of WPS GmbH by the customer/licensee does not conflict with any third-party rights. In the event of defects of title, WPS GmbH warrants that it will, at its discretion, provide the customer/licensee with a legally flawless opportunity to use the service/software or an equivalent service/software.
12.2 The customer/licensee shall inform WPS GmbH immediately in text form if third parties assert property rights (e.g. copyrights or patent rights) to the service/software. WPS GmbH shall support the customer/licensee in its defence against attacks by third parties by providing advice and information.
12.3 The provisions in Section 11 apply accordingly.
13.1 In the event of injury to life, limb and health and in the event of claims arising from the Product Liability Act, the statutory provisions apply without restriction.
13.2 WPS GmbH shall pay damages or compensation for futile expenses, regardless of the legal grounds (e.g. from legal and similar obligations, material defects and defects of title, breach of duty and unauthorised action), only to the following extent:
Liability for intent and under guarantee is unlimited. In the event of gross negligence, WPS GmbH shall be liable to the amount of the typical damage foreseeable at the time the contract was concluded. In the event of a simple negligent breach of a cardinal obligation (obligation whose fulfilment is essential for the proper execution of the contract, on whose compliance the customer/licensee regularly relies and may rely and whose breach jeopardises the achievement of the purpose of the contract), WPS GmbH is liable in the amount of the typical damage foreseeable at the time of conclusion of the contract, but at most twice the order value per case of damage and at most five times the order value for all cases of damage arising from and in connection with the contract as a whole.
13.3 WPS GmbH remains free to raise the defence of contributory negligence. In particular, the customer/licensee has a duty to back up data and to defend against malware, in each case using state-of-the-art technology.
14 Statute of limitations
14.1 The limitation period shall be
- in the case of material defects, one year from delivery/provision of the services/software for claims for repayment of the purchase price from cancellation or reduction, but not less than three months from submission of the effective complaint for defects duly notified within one year;
- for other claims arising from material defects, one year from delivery/provision of the services/software;
- two years in the case of claims arising from defects of title, if the defect of title does not lie in a right of a third party, on the basis of which the third party can demand the return of the aforementioned items or demand the cessation of their use;
- the statutory limitation periods shall apply to claims for damages or compensation for futile expenses that are not based on material defects or defects of title.
14.2 The limitation period shall commence at the latest upon expiry of the statutory limitation periods.
15 Beginning and end of the rights of the customer/licensee
15.1 The rights granted to the customer/licensee to the services/software of WPS GmbH and the rights in accordance with Section 6 shall only be transferred to the customer/licensee upon full payment of the contractual remuneration. Prior to this, he only has a provisional right of use under the law of obligations and revocable in accordance with these conditions.
15.2 WPS GmbH may terminate the rights in accordance with Section 6 for good cause. Good cause exists if WPS GmbH, taking into account all circumstances of the individual case and weighing up the interests of both parties, cannot reasonably be expected to continue to provide the service/the permanent retention of the software by the customer/licensee, in particular if the customer/licensee is in significant breach of his contractual obligations.
15.3 If the rights under Section 3 do not arise or if they end, WPS GmbH may demand that the customer/licensee return the items provided or demand a written declaration from the customer/licensee that the item has been destroyed and that all copies of the services/software/items have been deleted or destroyed.
16 Confidentiality and data protection
16.1 The contracting parties undertake to treat as confidential all circumstances/items (e.g. software, documentation, documents, information) which are legally protected or contain business or trade secrets or are designated as confidential and which are transmitted or become known to them by the other contracting party before or during the performance of the contract, even after the end of the contract, unless they are publicly known without breach of the confidentiality obligation. The contractual partners shall store and secure this information/objects in such a way that access by third parties is excluded.
16.2 The customer/licensee shall only make the contractual services/software/documents/information accessible to employees and other third parties who require access to perform their official duties. He shall instruct these persons about the need for confidentiality.
16.3 WPS GmbH processes the data of the customer/licensee required for business transactions in compliance with data protection regulations. WPS GmbH may name the customer/licensee as a reference customer after successful completion of the services.
16.4 It is the sole responsibility of the customer/licensee to comply with the data protection regulations in its applications, to appoint a data protection officer if necessary, to keep the necessary registers and to train and instruct the employees concerned. The processing of third-party data may require the consent/authorisation of these third parties. The customer/licensee is responsible for checking whether such consent or authorisation is required and whether the corresponding consent or authorisation has been obtained. Any additional costs incurred by WPS GmbH as a result of data protection measures or checks, compliance measures or official measures shall be reimbursed by the customer.
17 Place of jurisdiction, formal requirements
17.1 Amendments or additions to contracts must be made in text form to be effective. The text form requirement can also only be cancelled in text form. Transmission by fax or e-mail is sufficient to fulfil the text form requirement.
17.2 The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The place of fulfilment and jurisdiction for all disputes arising from and in connection with the underlying contractual relationship is the registered office of WPS GmbH in Hamburg (Mitte).