General Terms and Conditions (GTC) of WABSOLUTE GmbH
1.1 The following General Terms and Conditions (GTC) shall be an integral part of all contracts (in written and electronic form) between WABSOLUTE GmbH, Technologiepark 14, 33100 Paderborn, Germany (hereinafter referred to as WABSOLUTE) and the Client. Deviating general terms and conditions of the national and international contractual partners shall not become part of the contract.
1.2 Subsidiary agreements and other deviations from our contracts, license conditions or from these GTC must be made in writing. Verbal statements must be confirmed in writing.
1.3 Agreements made between the contracting parties in individual cases (including collateral agreements, supplements, and amendments) shall in any case take precedence over these GTC.
1.4 These GTC shall also apply to all future business with the Client, insofar as legal transactions of a related nature are concerned.
1.5 We do not offer services to consumers. WABSOLUTE’s offer is directed exclusively at customers who are entrepreneurs within the meaning of § 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.
1.6 „Customer“ shall mean the customer of WABSOLUTE in connection with the agreement on commissioned processing.
1.7 „Contractor“ shall mean WABSOLUTE in connection with the Agreement on Commissioned Processing.
2. Services / Employee Protection
2.1 WABSOLUTE provides various services, such as web design, conception, consulting, software development, web development as well as support and training services. The applicable service description describing the scope of the activity shall be agreed separately between the Parties. The exact scope of the service is conclusively regulated there. Services not agreed upon there are not subject matter of the contract and will be agreed upon separately according to the respective valid hourly rates.
2.2 The Client undertakes not to entice away directly or indirectly any of WABSOLUTE’s employees of whom the Client has gained knowledge as a result of the cooperation between the Parties, during and up to one year after the termination of any contractual relationship. For each case of violation of this provision in sentence 1, the Client shall pay WABSOLUTE a contractual penalty in the amount of €50,000. The Client shall bear the burden of proof that an infringement pursuant to sentence 1 has not occurred.
3. Terms of Payment
3.1 All prices are subject to statutory value added tax.
3.2 Payment shall be due in each case on completion of a project stage in accordance with the schedule agreed for the contract.
3.3 If no project stage-related invoicing is defined, monthly invoicing according to the progress of the project shall be agreed. In this case, invoicing shall take place at the beginning of the following month and shall be due 10 days after invoicing.
3.4 Unless otherwise agreed, all payments shall be due immediately, but no later than 10 days after invoicing. WABSOLUTE shall be entitled to invoice partial services.
4. Rights of Use
4.1 Unless otherwise agreed, WABSOLUTE grants the Client the non-exclusive, unrestricted, and permanent right to use the work in accordance with the contract, i.e., in particular to store and load it permanently or temporarily, to display it and to run it, even if this requires copying.
4.2 Any copyright notices, trademarks, other reservations of rights, serial numbers and other features serving to identify the program that may be contained in the software may not be changed or made unrecognizable.
4.3 If WABSOLUTE provides open-source software, the following clauses shall apply in particular:
4.4 Open-Source Software means software that anyone may use, copy, and distribute, either modified or unmodified. In particular, this means that the source code must be available.
4.5 Insofar as open-source software is the subject of a delivery/service, WABSOLUTE shall not transfer any rights of use to the Client. In this respect, the license terms of the respective open-source software that WABSOLUTE provides shall apply.
4.6 The Customer shall be permitted to make a backup copy and to reproduce a reasonable number of copies in the course of normal data backups.
4.7 Decompilation within the scope of § 69e UrhG shall also be permitted. The rights of the client from §§ 69 d paragraph 2 and 3 UrhG also remain unaffected.
4.8 The Client shall not be granted any rights of use to drafts, models, sketches and similar. The Client shall not be granted any rights of use to WABSOLUTE’s drafts, models, sketches, and similar works that serve to develop the final project. If the Client wishes to use concepts and ideas from the design phase, a separate agreement is required for the granting of rights of use.
4.9 WABSOLUTE reserves the right to advertise the product in the usual media and to name the Client as a reference. This may be done by means of illustrations as well as functional cut-outs of the product.
4.10. Until full payment of the remuneration due to WABSOLUTE, WABSOLUTE reserves the right to revoke the Client’s rights of use granted under this clause at any time without setting a deadline and without prior notice.
5. Specifications of the Client
5.1 Requests and specifications of the Client which are to be considered in the production of the subject matter of the contract and which have been agreed between the parties shall always require at least text form (e.g., e-mail).
5.2 If necessary, the scope of services shall be extended by additional orders which must be placed in writing or in text form (e.g., e-mail). Unless otherwise agreed, the current hourly fee of WABSOLUTE shall be deemed agreed.
6. Delivery Time
6.1 Delivery dates must be agreed in writing in a schedule. Otherwise, the dates stated by WABSOLUTE shall be „approximate dates“ and shall only be binding if this has been agreed in writing with the Client.
6.2 The Client shall be obliged to provide WABSOLUTE with all necessary information and materials for the execution of the Agreement. Any delay in the provision of such information by the Client or by third parties involved in the project shall result in a corresponding delay in the delivery date.
6.3 For the duration of the examination of drafts, demos, test versions, programs, or program parts etc. by the Client the delivery time shall be interrupted in each case. The interruption shall be counted from the day of notification of the Client until the day of receipt of the Client’s statement.
6.4 If, after the order has been placed, the Client requests changes to the order that affect the production time, WABSOLUTE shall be entitled to extend the delivery time accordingly, at its own discretion and considering the interests of the Client.
6.5 In the event of a delay in delivery, the Client shall in any case only be entitled to exercise its statutory rights after a reasonable grace period of at least two weeks has been granted.
7. Subsequent Support by WABSOLUTE
7.1 After completion of the project (acceptance), further support of the Client’s project by WABSOLUTE is possible by agreement.
7.2 Unless otherwise agreed, the further agreed support by WABSOLUTE shall be remunerated by the Client according to its regular hourly rate at the time of commissioning.
8. Change Request – Changes
8.1 Both parties shall be entitled to request the other party to discuss and negotiate changes or fine technical specifications, stating important reasons.
8.2 In the event that the Client requests changes that go beyond the agreed scope, WABSOLUTE shall work on an hourly basis against payment on a time and materials basis. WABSOLUTE shall examine the effort involved and whether the desired change is feasible and shall then inform the Client of any changes that are likely to result, particularly with regard to costs and schedule. To the extent possible and necessary, WABSOLUTE shall also examine the extent to which such a change will affect previously realized services and their usability.
8.3 If no agreement is reached on a change request, the Parties shall, unless otherwise agreed, implement the Project accordingly in the current version.
8.4 Requests for changes must be made in text form and may also be confirmed by WABSOLUTE by e-mail.
9. Acceptance / Complaints
9.1 WABSOLUTE shall indicate that the project results are ready for acceptance by handing them over or by informally notifying the Client.
9.2 The Client shall immediately inspect and test the project results to determine whether they are essentially in accordance with the contract. The Client shall immediately notify WABSOLUTE of any defects.
9.3 If the project results essentially comply with the contractual provisions, the Client shall declare acceptance. This declaration may be made in text form by means of a release note.
9.4 If no detailed written notice of not insignificant defects is received within a maximum period of 4 weeks after notification of readiness for acceptance of the project results, the delivered project results shall be deemed to have been accepted or released.
9.5 The Client shall not be entitled to rights under the warranty for defects for defects which were known to the Client at the time of acceptance, which would have been obvious during a proper initial inspection, or which were otherwise negligently not known to the Client or which were not reported by the Client.
10. Defects of quality and title
10.1 If no service is the subject of the contract, the warranty law of the contract for work and services shall apply, with a warranty period of 12 months from acceptance.
10.2 Unless otherwise agreed, in the case of web solutions the source code shall be suitable for display on the most current version of the so-called standard browsers at the time of performance of the contract. Standard browsers are Internet Explorer, Chrome, Firefox, and Safari. The user/viewer has individual setting options in the browser (viewing software for Internet pages), which can change the way the pages are displayed. The different browsers also interpret the source code differently in some cases, which can lead to different display modes. The different display with different browsers and minor deviations therefore do not constitute a defect, especially not deviating display or missing functionalities due to outdated browsers.
10.3 Restrictions of use or errors caused by operation, hardware, operating system, system environment of the Customer or by another third party are not defects. If the troubleshooting or inspection reveals that the malfunction is not due to a defect attributable to WABSOLUTE, WABSOLUTE shall be entitled to charge for the expenses incurred as a result thereof in accordance with the regular hourly rates.
10.4 In the event of justified complaints, the Client shall have the right to subsequent performance. Within the scope of subsequent performance, WABSOLUTE shall remedy the defect at its discretion either by subsequent delivery or by rectification. The Client shall grant WABSOLUTE a reasonable period for subsequent performance. If the defect is remedied, WABSOLUTE shall bear the necessary expenses, provided that such expenses are not increased because the subject matter of the contract is located at a place other than the place of performance.
10.5 WABSOLUTE may also remedy the defect by giving instructions to the Client by telephone, in writing or electronically, or by providing a workaround.
10.6 The warranty shall not apply to the open-source software used, as WABSOLUTE shall not transfer any rights of use here either. Any liability on the part of WABSOLUTE for material defects and/or defects of title shall therefore be excluded due to the specific nature of open-source software.
10.7 The Client shall provide WABSOLUTE with all necessary support for the purpose of warranty measures, in the form of error messages, application data, insight into the operating documents, use of the computer system, access to the operating premises, etc.
10.8 If the supplementary performance has failed or if WABSOLUTE has finally and seriously refused the supplementary performance, the Client may, at its option, demand a reduction of the purchase price or declare its withdrawal from the contract.
10.9 In addition to rescission and reduction, the Client may claim damages for the defect if WABSOLUTE is at fault. The right of the Customer to assert further claims for damages under the following conditions shall remain unaffected.
10.10. In the event of fraudulent intent and if WABSOLUTE has assumed a guarantee, the statutory warranty provisions shall remain unaffected.
10.11. Claims based on material defects and defects of title shall not apply if the program has been modified without the written consent of WABSOLUTE and the Client fails to prove that the defect is independent of use contrary to the terms of the contract and fails to refute a corresponding substantiated assertion that this circumstance caused the defect.
10.12. In addition, § 12 of these GTC shall apply in the event of a limitation of liability.
11. Liability / Third Party Rights
11.1 WABSOLUTE shall not be liable for damages to legal assets other than life, limb, or health, unless the damages are the result of intentional or grossly negligent conduct on the part of WABSOLUTE, one of its legal representatives or one of its vicarious agents, and the conduct is not a violation of secondary obligations that are essential to the purpose of the contract. Material contractual obligations are obligations whose fulfillment is essential for the proper execution of the contract and on whose fulfillment the Client may regularly rely. This exclusion of liability shall not apply insofar as claims under the Product Liability Act are concerned, a defect was fraudulently concealed, or a guarantee of quality was assumed.
11.2 The Client warrants that the content and materials made available to WABSOLUTE are completely free of third-party rights and may also be made available for use in the project from a legal perspective.
11.3 In the event that third party rights (e.g., trademark, design or patent rights) are nevertheless affected by WABSOLUTE’s use of the submitted materials, the Client shall indemnify WABSOLUTE against any third-party claims and shall also inform the third party of this upon request. The Client shall join WABSOLUTE in the ongoing proceedings. He shall reimburse WABSOLUTE for all necessary costs, in particular the necessary costs of legal prosecution, in connection with the infringement of rights.
11.4 The Client shall be obliged to take reasonable precautions if a program does not work properly, in whole or in part, by means of a fallback procedure, data backup, fault diagnosis, etc. The Client shall be obliged to prevent any loss of data and to make regular and proper data backups. WABSOLUTE shall be liable only to the extent of the regular costs that would be incurred by the restoration in case of proper data backup, unless WABSOLUTE has been commissioned with the (regular) data backup.
12. Data Security
12.1 WABSOLUTE shall use the personal data provided by the Client for the purpose of the contract (such as name, address, payment data) exclusively for the performance and execution of the contract. The data shall not be disclosed to third parties except for the purpose of executing the contract. With the complete execution of the contract, which includes the complete payment of the agreed remuneration, the customer data will be deleted, unless a retention is necessary for legal reasons, unless the client has expressly consented to further processing and use of the data. The Client may at any time, free of charge, request that WABSOLUTE query, change or delete the stored data. Any consent can be revoked at any time.
13. Final Terms
13.1 This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
13.2 If the Client is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract shall be Paderborn (Germany). The same shall apply if the customer does not have a general place of jurisdiction in Germany or if the customer’s place of residence or habitual abode is unknown at the time the action is brought. The place of performance shall be the registered office of WABSOLUTE.
13.3 Should individually provisions of this contract be or become invalid or contain a loophole, the remaining provisions shall remain unaffected.