General terms and conditions
1 Validity of the Licence Conditions/Conditions of Contract
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), the provision of employees, SAAS services or training offers. All terms and conditions also apply to pre-contractual obligations. They apply exclusively in business dealings. Other contractual conditions, in particular purchasing conditions of the customer/licensee/interested party, do not become part of the contract, even if WPS GmbH does not expressly contradict them. Individual agreements and contractual agreements require the text form. Oral agreements require immediate confirmation by the customer/licensee in text form in order to be valid. 1.2.
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 Fields of WPS GmbH in the version applicable at the beginning 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 (Bürgerliches Gesetzbuch), the German Commercial Code (Handelsgesetzbuch) and, in particular, German copyright law shall apply.
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 binding comes into being only through a contract signed by both parties or through an order confirmation of the WPS GmbH in text form. Even if the WPS GmbH starts with the service provision after the order, a contract is only concluded under the validity of these general terms and conditions of order. WPS GmbH can demand a confirmation of the verbal contract declarations of the customer/licensee in text form.
3 Subject matter of the contract, scope of services
3.1 The customer/licensee has to check before conclusion of the contract whether the specification of the offered services, systems or the software corresponds to his wishes and needs. The essential functional features, system requirements and conditions of the offered services of WPS GmbH are known to the customer/licensee before conclusion of the contract. The WPS GmbH will answer all enquiries as completely and correctly as possible. The customer/licensee is precluded from subsequently pleading ignorance.
3.2 The scope, type and quality of the deliveries and services of WPS GmbH are determined by contracts, order confirmation, if necessary 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 on this in text form or WPS GmbH has confirmed this in text form. Subsequent changes to the scope of services or the object of services require agreement in text form or the express confirmation of WPS GmbH in text form. Unless otherwise agreed, WPS GmbH owes services of average type and quality.
3.3 Product descriptions, representations, test programmes etc. are performance descriptions, but not guarantees. A guarantee requires the explicit confirmation by the management of WPS GmbH in text form.
3.4 The type of service provision and the technique of software delivery is based on the agreements; in the absence of other agreements, programmes and manuals are delivered online. The customer/licensee has no claim to the provision of source codes.
3.5 Unless otherwise agreed, WPS GmbH provides its services as services. This also applies in particular to the work on external IT systems. Invoicing takes place according to actual expenditure.
4 Availability, Errors
4.1 As far as WPS GmbH provides software solutions for use, also as far as SaaS services are concerned, 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 a regular data backup and the archiving of the data according to the retention periods under commercial and tax law; this work is not part of the scope of services of WPS GmbH, unless otherwise agreed.
4.3 If necessary, the customer/licensee is responsible for the connection to the internet and the maintenance of the network connections. As far as relevant, the service transfer of the WPS GmbH takes place at the router exit of the computer centre used by the WPS GmbH to the internet.
4.4 The usual operating hours of the WPS GmbH are from Monday to Friday 9.00 to 17.00 o'clock. Public holidays (Hamburg) are excluded.
4.5 As far as the usability of a software service is concerned, an availability of 95 %, related to the calendar year in the usual operating hours of the WPS GmbH (4.4.). A higher availability requires an explicit agreement of the contractual partners in text form.
4.6 In all other respects, the general regulations for the reporting and rectification of errors apply.
4.7 WPS GmbH is only obliged to provide the expressly agreed services. In particular, further installation, adaptation, migration, programming, documentation, consulting and training services are subject to remuneration.
4.8 Installation and operation of the solutions usually require considerable cooperation obligations on the part of the customer/licensee. These cooperation services are to be provided completely and in due time. When using the solutions offered by WPS GmbH, the customer/licensee must observe all applicable laws and other legal regulations. It is forbidden to transfer data or contents to servers of the WPS GmbH which violate legal regulations or infringe third party property rights or copyrights or other rights of third parties. Transmitted data must be free of computer viruses or other harmful code; no software, techniques or procedures may be used which 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 processing on behalf (Art. 28 DS-GVO).
4.9 WPS GmbH can adjust the remuneration during the term of the contract. Such a price adjustment is only permissible once a year and for the first time after the end of the first contract year and shall be based on the general price increase rates. Price adjustments shall be announced in text form at least six weeks before they take effect. If the price increase is to amount to more than 10% of the previous remuneration, the customer/licensee shall have a special right of termination. The special right of termination can be exercised within one month after receipt of the change notification with a notice period of one month.
4.10. WPS GmbH is entitled to change, 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 take effect. The customer/licensee may object to planned and announced changes in text form with a period of notice of one month from receipt of the notice 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. Trainings take place, as far as they have been agreed, at the place of business of WPS GmbH. The customer/licensee can have trainings carried out on his premises as far as he provides the technical equipment and takes over the additional expenses incurred.
5.2 The WPS GmbH can also cancel a training date in due time. WPS GmbH will inform the customer/licensee of the cancellation of the date in due time and offer alternative dates.
6. rights of the customer/licensee 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 the WPS GmbH, in particular to software as well as to other services and objects which the WPS GmbH provides or makes accessible to the customer/licensee within the scope of the contract initiation and implementation, are exclusively entitled to the WPS GmbH in the relationship of the contractual partners. As far as third parties are entitled to the rights, the WPS GmbH has corresponding exploitation rights.
6.2 Unless otherwise agreed, the customer/licensee is only entitled to process his own data himself in his own company for his own purposes with the software/services of WPS GmbH. All data processing devices onto which the programmes/services are copied or taken over in whole or in part, for a short time or permanently, must be located on the customer's/licensee's premises and be in his direct possession. Further contractual rules of use (e.g. the restriction to a number of workstations or persons), the use in branch offices, subsidiaries, remote operation or the use via the internet (cloud solutions) are to be expressly agreed contractually, technically set up and practically complied with. WPS GmbH hereby grants the customer/licensee the authorisations necessary 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 programs required for secure operation. The backup copies must be stored securely and, as far as technically possible, must be marked with the copyright notice of the original data carrier or the version of the software transferred online. Copyright notices, trademarks and product identifications may not be deleted, changed or suppressed. A possibly delivered user manual and other documents provided by WPS GmbH may only be copied for internal purposes and those intended according to 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 this only after he has informed WPS GmbH in text form about this intention and has asked for the surrender of the necessary interface information with a period of at least two weeks. For all knowledge and information which the customer/licensee obtains about the software in the course of decompiling, the regulations on secrecy and data protection apply. Before any involvement of third parties, the customer/licensee provides WPS GmbH with a declaration of the third party in text form that the third party commits itself directly to WPS GmbH to comply with the rules stipulated in these licence conditions.
6.5 All other acts of exploitation, in particular the renting, the lending and the distribution in tangible or intangible 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 a prior agreement of WPS GmbH in text form.
6.6. . All subjects of the contract as well as documents, development proposals, test programmes, updates, services etc. of the WPS GmbH which become accessible to the customer/licensee before or after the conclusion of the contract are regarded as intellectual property and as business and trade secrets of the WPS GmbH. They may not be used or passed on without prior declaration of consent of the WPS GmbH and are to be kept secret. The declaration of consent must be in text form. 7.
7. time of performance, delays, place of performance
7.1 Information about delivery and performance times are non-binding unless they have been designated or confirmed as binding by WPS GmbH in text form. WPS GmbH can provide partial services as far as the delivered parts can be reasonably used by the customer/licensee.
7.2 Delivery and service periods are extended by the period of time in which the customer/licensee is in default of payment from the business relationship and by the period of time in which WPS GmbH is prevented from the delivery or service due to circumstances for which it is not responsible as well as by an appropriate start-up time after the end of the reason for the hindrance. 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, for example by failing to provide information, failing to provide access, failing to supply materials or failing to make employees available.
7.3 If the contracting parties subsequently agree on other or additional services which affect the agreed deadlines, these deadlines shall be extended by a reasonable period of time.
7.4 Reminders and setting of deadlines 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 reasonable in case of special urgency.
7.5 Unless otherwise agreed, the place of performance is the registered office of WPS GmbH in Hamburg.
8. contractual obligation and termination of the contract
8.1 Any termination of the further exchange of services (e.g. withdrawal, reduction, termination for good cause, claims for damages in lieu of performance) must always be threatened by stating the reason and setting an appropriate deadline for rectification. In cases prescribed by law (e.g. § 323 para. 2 BGB) the setting of a time limit may be omitted. Anyone who is wholly or predominantly responsible for the disruption cannot demand rescission. All declarations in this context must be made in text form to be effective.
8.2 After the end of the contract, WPS GmbH will generally - insofar as this data is processed on behalf of the customer/licensee, for example in SaaS solutions - make the data created by the customer completely available for download within three weeks. The data is made available in a suitable format chosen by WPS GmbH. Within one week after the customer has downloaded the data, but at the latest three months after the end of the contract, WPS GmbH completely deletes all data stored by the customer on its servers. Against separate remuneration and according to the customer's choice, the WPS GmbH transfers the data to a third company. Under no circumstances is the WPS GmbH obliged to a data storage which exceeds the period of 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 can issue interim and partial invoices. In the case of services which are rendered over a longer period of time, invoices can be issued on a monthly basis, in the case of work services, appropriate instalment invoices can be issued on a monthly basis in accordance with the progress of the work.
9.2 If the contractual partners have not agreed anything different, the respective service and price list of WPS GmbH valid at the time of the conclusion of the contract shall apply, in the absence of such the customary local remuneration.
9.3 Travel costs, expenses, hardware, if applicable third-party licence costs, accessories, shipping costs and telecommunication costs are to be remunerated additionally according to expenditure. Additional services of WPS GmbH requested by the customer/licensee (e.g. consulting and support, training, support services and the like) will be invoiced according to the service and price list of WPS GmbH.
9.4 All prices are net plus the respective statutory value added tax.
9.5 The customer/licensee can only offset claims which are undisputed by WPS GmbH or which have been legally established. Except for the area of § 354a HGB (German Commercial Code), the customer/licensee can 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-fulfilment of the contract within the contractual relationship concerned.
Rights of use to copyright-protected services are only transferred to the client with full payment to the necessary extent. As far as property rights to the performance of the WPS GmbH exist, the WPS GmbH reserves the ownership of the object until the complete payment of all open claims of the WPS GmbH. The contractual partners agree that the ownership is transferred to the customer/licensee with complete payment without further declaration.
10 Obligations of the customer/licensee
10.1 The customer/licensee is obliged to expertly examine all delivery items of WPS GmbH immediately after delivery or after making them available according to the regulations of commercial law (§ 377 HGB) and to give notice of detected defects in text form with an exact 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 which the customer/licensee receives within the scope of the warranty and a maintenance contract.
10.2 The customer/licensee shall take reasonable precautions in the event that the delivered services, in particular delivered EDP programs, do not work properly in whole or in part (e.g. through regular data backup, 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 / faults
11.1 The services of WPS GmbH (especially software) have the agreed quality and are suitable for the contractually presupposed, in the absence of an agreement for the usual use. They meet the criterion of practical suitability and have the quality usual 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 shall be accepted by the customer/licensee.
11.2 Insofar as the order to WPS GmbH is based on preliminary services of third parties, in particular on software or systems existing at the customer/licensee or systems provided, a warranty for material defects or liability for these systems or their functionalities is excluded.
11.3 In the case of material defects, WPS GmbH can initially provide subsequent fulfilment. The supplementary performance is carried out at the discretion of WPS GmbH by removing the defect, by subsequent delivery which does not have the defect or by WPS GmbH showing possibilities to avoid the effects of the defect. Due to a defect at least two attempts of rectification are to 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 supports WPS GmbH in the error analysis and elimination of defects, in particular by informing about occurring problems. Occurring errors are to be reported immediately with an exact description of the problem to the responsible office at WPS GmbH in a structured form (if necessary using the tools used by WPS GmbH). Verbal error reports are to be repeated immediately in text form. The customer/licensee grants WPS GmbH the necessary time and opportunity for a rectification of defects. The WPS GmbH can carry out the removal of defects at its choice on site or in its business premises. The WPS GmbH can also provide services by remote maintenance. The customer/licensee has to provide the necessary technical prerequisites at his own expense and to grant WPS GmbH electronic access to the software after corresponding prior announcement.
11.5 WPS GmbH analyses and rectifies documented, reproducible errors of the systems and services delivered or offered before it. Errors are faults reported by the customer/licensee which prove a deviation of the condition or functionality of the system from the offer or from the user documentation and which impair the usability more than insignificantly or lead to faulty or lost data. A non-reproducible report by the customer/licensee shall not be deemed to be an error.
11.6 The contractual partners agree on the following error classes and response times:
Error class 1: Defects hindering operation: The error hinders business operations at the customer/licensee; there is no workaround: WPS GmbH starts immediately, at the latest within 8 hours after the error message, with the elimination of the error and continues it with vigour until the error has been eliminated. This obligation exists within the usual business hours of WPS GmbH (see 4.4.).
Error class 2: Defects hindering operation: The error hinders the business operation at the customer/licensee considerably; however, the use of the services/software is possible with workarounds or with temporarily acceptable restrictions or difficulties. In case of an error message before 10:00 a.m. the WPS GmbH starts with the error removal on the following day, in case of a later error message at the beginning of the next but one working day and continues it until the error has been removed within the usual working hours. WPS GmbH can first show a workaround solution and eliminate the error later if this is reasonable for the customer/licensee. This obligation exists within the usual business hours of WPS GmbH (see 4.4.).
Error class 3: Other defects: WPS GmbH begins with the elimination of the error within one week or eliminates the error only with the next programme version if this is reasonable for the customer/licensee.
11.7 The periods according to paragraph 11.6. begin with an error message according to paragraph 11.4. In case of disagreement about the allocation of an error to the classes, the customer/licensee can demand the classification into a higher error class. He reimburses the WPS GmbH for the additional effort if he does not prove that his classification was correct.
11.8 WPS GmbH can demand additional costs from the fact that the software was changed, used outside of the specified environment or operated incorrectly, as well as in the case of improper, unauthorised use, in the case of operating errors, in the case of hardware defects and in the case of use of the SaaS solution on other than the permissible hardware and operating system environments specified in the user documentation. It may demand compensation if no defect is found. The burden of proof lies with the customer/licensee. § 254 BGB (German Civil Code) applies accordingly. In these cases, WPS GmbH is entitled to treat support services attributable to this as a separate order and to invoice them according to the respectively valid billing rates.
11.9 If WPS GmbH finally refuses the supplementary performance or this finally fails or is not reasonable for the customer/licensee, the customer/licensee can either withdraw from the contract or reduce the payment appropriately.
12. defects of title
12.1 WPS GmbH guarantees that no rights of third parties oppose the contractual use of the software and services of WPS GmbH by the customer/licensee. In the case of defects of title WPS GmbH guarantees that it provides the customer/licensee with a legally flawless possibility of use of the service/software or an equivalent service/software.
12.2 The customer/licensee informs WPS GmbH immediately in text form if third parties assert property rights (e.g. copyrights or patent rights) to the service/software. WPS GmbH supports the customer/licensee in his defence against the attacks of third parties by providing advice and information.
12.3 The regulations in section 11 apply accordingly.
13.1 In the case of injury to life, body and health as well as claims from the product liability law, the legal regulations apply without restrictions.
13.2 WPS GmbH will only pay compensation for damages or reimbursement of futile expenses, irrespective of the legal grounds (e.g. from contractual and quasi-contractual obligations, material and legal defects, breach of duty and unlawful acts), to the following extent:
Liability in the case of intent and under guarantee is unlimited. In the case of gross negligence, WPS GmbH is liable to the amount of the typical damage foreseeable at the time of conclusion of the contract. In the case of simple negligent violation of a cardinal obligation (obligation, the fulfilment of which enables the proper execution of the contract in the first place, on the compliance of which the customer/licensee regularly relies and may rely and the violation of which endangers the achievement of the purpose of the contract) WPS GmbH is liable to the amount of the typical and at the time of the conclusion of the contract foreseeable damage, however, at the most with double the order value per damage case and at the most with five times the order value for all damage cases from and in connection with the contract as a whole.
13.3 The objection of contributory negligence remains open to WPS GmbH. The customer/licensee has in particular the duty to secure data and to defend against malware, in each case at the current state of technology.
14. limitation period
14.1 The limitation period shall be as follows
- in the case of material defects, one year from delivery/provision of the services/software for claims for repayment of the purchase price due to withdrawal or reduction, but not less than three months from submission of the effective complaint for defects duly notified within one year;
- in the case of other claims arising from material defects, one year from delivery/provision of the services/software;
- in the case of claims based on defects of title, two years 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 said objects or demand that they cease to be used;
- in the case of claims for damages or reimbursement of futile expenses not based on material defects or defects of title, the statutory limitation periods shall apply.
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 to the services/software of WPS GmbH granted to the customer/licensee and the rights according to section 6. are only transferred to the customer/licensee with the complete payment of the contractual remuneration. Before this he only has a provisional right of use under the law of obligations which can be revoked according to these conditions. 15.2.
15.2 WPS GmbH can terminate the rights according to section 6. for good cause. An important reason exists if the WPS GmbH, taking into account all circumstances of the individual case and weighing up the interests of both parties, cannot be expected to continue the service/remain the software permanently with the customer/licensee, in particular if the customer/licensee violates his contractual obligations in a considerable way.
15.3 If the rights according to section 3. do not arise or if they end, WPS GmbH can demand the return of the provided objects from the customer/licensee or demand a written declaration from the customer/licensee that the object has been destroyed and a deletion or destruction of all copies of the services/software/objects has taken place.
16 Confidentiality and data protection
16.1 The contractual partners undertake to treat as confidential all circumstances/objects (e.g. software, documentation, documents, information) which are legally protected or contain business or trade secrets or are designated as confidential and which are communicated to them by the respective other contractual partner prior to or during the performance of the contract, even beyond the end of the contract, unless they are in the public domain without any breach of the duty of confidentiality. The contractual partners shall store and secure this information/items in such a way that access by third parties is excluded. 16.2.
16.2 The customer/licensee shall make the contractual services/software/documents/information accessible only to employees and other third parties who require access to perform their official duties. He/she shall instruct these persons about the need for confidentiality.
16.3 The WPS GmbH processes the data of the customer/licensee necessary for the business transaction in compliance with the data protection regulations. WPS GmbH is allowed to name the customer/licensee as a reference customer after successful completion of the services.
16.4 It is exclusively the responsibility of the customer/licensee to comply with the data protection regulations in his applications, to appoint a data protection officer if necessary, to keep the necessary registers and to train and instruct the relevant employees. The processing of data of third parties may require the consent/consent of these third parties. The customer/licensee is responsible for checking whether such a consent or approval requirement exists and, if so, whether the relevant consent or approval has been given. Additional expenses incurred by WPS GmbH due to data protection measures or checks, compliance measures or official measures are to be reimbursed by the customer.
17. place of jurisdiction, formal requirements
17.1 Changes or additions to contracts require text form to be effective. The text form requirement can also only be waived in text form. Transmission by fax or e-mail shall be sufficient to comply with 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 performance 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).