General terms and conditions

IT services, sales and leasing of hardware and software

1. Scope

1.1 Services and deliverables and other legal transactions in all business transactions of WIIT AG (hereafter called WIIT) shall be made solely at the following terms and conditions and the provisions in the current price list, unless agreed otherwise in writing. Reference is also made to the manufacturer's licence terms enclosed with the products under the contract.

1.2 These terms are deemed accepted at the latest upon receipt of the goods or services. They also apply even if they are no longer mentioned in later contracts or services.

1.3 These conditions especially apply even if the other party applies its own general terms and conditions that contain conflicting terms or deviate from these general terms and conditions. These conditions also apply if WIIT unconditionally provides a contractually agreed delivery / service in knowledge of contradictory and/or deviating conditions. Deviations from the conditions listed here are effectively agreed only if WIIT explicitly agrees to them in writing.

1.4 Amendments and additions to the contract must be in writing. Verbal agreements are invalid. Waiver of the written form must also be in writing.

1.5 Employees of WIIT or third parties which are appointed by WIIT for performance of the service are not authorised to conclude verbal subsidiary agreements or to give verbal assurances, which differ from the contents of the contract concluded by WIIT.

1.6 Offers provided by WIIT are non-binding and are subject to the delivery by suppliers. Offers are considered accepted and orders deemed issued if WIIT confirms this in writing or by fax.

1.7 WIIT is entitled to withdraw from the contracts upon knowledge of facts which demonstrate that the other party is not creditworthy.

2. Service and Deliverables

2.1 Drawings, illustrations, dimensions, weights or other performance data are only binding if this is explicitly agreed in writing. Reasonable technical and design-related deviations from specifications in brochures, catalogues and written documents as well as model, design and material changes shall remain reserved in the course of technical progress and development, without claim of any rights against WIIT.

2.2 WIIT expressly reserves the right to reasonable partial deliveries / partial services and their invoicing.

2.3 Agreed delivery dates are deemed met if the contractual product was handed over on the agreed delivery date to the forwarder, unless expressly agreed otherwise in writing. If shipment of goods that are ready for dispatch is delayed due to reasons for which WIIT is not responsible, the contractual products may be stored at the expense and risk of the contracting party.

2.4 The delivery or performance date or the delivery or performance period (hereinafter always called "delivery date" for reasons of simplification) will be agreed according to the anticipated capacity of WIIT and is non-binding and subject to timely delivery and unforeseen circumstances and obstacles, regardless of whether these occur at WIIT or the manufacturer, in particular, force majeure, governmental actions, non-grating of regulatory approvals, labour disputes of any kind, sabotage, lack of commodities, inculpable late material deliveries. Such events accordingly extend the delivery date even if they occur during an existing delay. In this case, a grace period specified by the contracting party is also extended by the duration of the unforeseen event. If such events lead to a delay in performance of more than two months, the contracting party may rescind the contract, irrespective of the cancellation rights of the other party.

2.5 The contracting party may request WIIT in writing for service or delivery two weeks after defaulting a binding delivery date. WIIT will be in default upon receipt of the request. In the event that the contracting party is entitled to claim damages for delay, such claim is limited to 5% of the agreed fee in case of slight negligence of WIIT. If the contracting party is a legal entity of public law, a special estate under public law or an entrepreneur, who acts in practice of his commercial or self-employed professional activity, then claims for damages are excluded in case of slight negligence. If the contracting party withdraws from the contract besides claiming damages for default, or he claims for damages instead of payment, he must allow WIIT a reasonable grace period after the above-mentioned period of six weeks for delivery / service and the claim for damages instead of payment is limited to a maximum of 25% of the contract fee in case of slight negligence. This limitation of liability also applies to the case that fulfilment of performance becomes impossible for WIIT during a default . Liability of WIIT is excluded if the damage would have occurred even in the event of compliance with the delivery date. The above regulations apply to the rights of the contracting partner.

2.6 WIIT reserves the right to withdraw from the agreement if the delay in delivery / service that is caused by one of the above events lasts longer than six weeks and WIIT is not responsible for this.

2.7 The agreement on the postponement of the delivery or service dates shall be in writing.

2.8 In case of delay in acceptance, WIIT also has the right to specify a new delivery / performance deadline or cancel the contract. In the case of non-acceptance, WIIT may claim damages amounting to 15% of the contractual fee; WIIT reserved the right to the proof of a higher damage.

3. Inspection and transfer of risk

3.1 During delivery, the contracting partner shall immediately check the goods upon receipt and compare with the invoice for completeness and conformity. If no written complaint is made to WIIT within six calendar days of receipt, then the goods shall be considered as completely and correctly delivered, unless there is a hidden defect. Returns of delivered goods without the prior written consent of WIIT will not be accepted even in case of defective goods. Transportation costs and risk shall be borne by the contracting partner.

3.2 Minor defects that do not affect the functionality of the delivery item or service do not entitle the contracting partner to refuse acceptance.

3.3 With transfer of the contractual product to the forwarder, its agent or other persons who are appointed by WIIT, the risk is transferred to the contracting partner. Insofar as the delivery is delayed or becomes impossible without the fault of WIIT, the risk is transferred to the contracting partner with the notification of readiness for shipment.

4. Prices and Payment Terms

4.1 The prices from the current price list / individual offer are fixed prices ex Ludwigshafen. VAT and other statutory charges in the country of delivery as well as packaging, transport costs, transport insurance, environmental and handling fee will be charged separately according to the applicable price list / individual offer. In case of goods orders by WIIT, the agreed prices are also fixed prices - unless expressly agreed otherwise in writing and the supplier hikes his prices in general. The supplier undertakes not to subject WIIT to unfavourable prices and conditions when compared with other customers.

4.2 Following expiry of the offer period, WIIT reserves the right to increase the price appropriately if WIIT incurs increased expenses after conclusion of the contract - in particular due to price increases by suppliers or exchange rate fluctuations. Evidence of this shall be provided on request.

4.3 All invoices shall be immediately due upon receipt of the invoice, unless otherwise agreed in writing or is apparent from the invoice. Checks are only accepted on account of performance. The invoice amount is free of charge for WIIT.

4.4 Notwithstanding any deviating provision of the contracting party, WIIT is entitled to offset payments on existing claims in any order.

4.5 The contracting partner may only offset claims by WIIT only with claims arising out of counter-claims if they are uncontested or legally titled; right of retention can only be asserted in the case that it is based on claims, which arise from the contract and to which WIIT is entitled.

4.6 Insofar as the other contracting party does not comply with above payment terms, WIIT may at any time require optional delivery / service step-by-step against cash payment, advance or security deposit. All outstanding claims including those, for which WIIT has received bills or instalment payment has been agreed will become due immediately.

5. Retention of Title

5.1 The contractual product shall remain the property of WIIT until fulfilment of all claims under the contract, in the event that the contracting party is a legal entity of public law, public special estate or an entrepreneur in exercise of his commercial or self-employed professional capacity, also beyond the ongoing business relationship until settlement of the receivables to which WIIT is entitled in connection with the contract.

5.2 The other party has the revocable right to forward the reserved goods in the ordinary course of business under retention of title only with the consent and approval of WIIT, if it in turn sells them under its own retention of title, but not for pledge or security in any form. In case of access of third parties to the reserved goods, the contracting parts shall instruct the former about the ownership of WIIT and notify WIIT immediately.

5.3 In case of combination, processing or mixing of the reserved goods with goods owned by a party other than WIIT, the same shall acquire ownership in proportion of the invoice value of the reserved goods to the other goods. Treatment and processing of the reserved goods will take place for WIIT as the manufacturer within the meaning of  Section 950 German Civil Code, without obliging WIIT. WIIT shall acquire co-ownership of the processed goods in the sense of the foregoing provisions.

5.4 In case of default in payment by the contracting partner, also for other and future deliveries / services of WIIT, or in case of its financial collapse, WIIT can withdraw from the contract and WIIT is entitled to enter the premises of the contracting partner and seize the reserved goods, in case of a claim for damages instead of payment. In the case of compensation following the withdrawal, WIIT and the contracting partner agree that prices are based on ordinary market value of the contractual object at the time of collection. The contracting party shall bear all costs of collection and recycling; recycling costs will be agreed at 5% of the ordinary sales value without proof, wherein an increase or reduction is possible upon evidence by WIIT or the contracting party.

5.5 The retention of title or the seizure of the delivered item by WIIT are not considered as withdrawal from the contract, if the contracting party is a businessman.

5.6 Items supplied for testing and demonstration purposes shall remain the property of WIIT. They may be used by the contracting party beyond the scope of testing or demonstration only on the basis of a separate written agreement with WIIT.

5.7 WIIT reserves the right to use developed components elsewhere or for other customers. All programs and software developments can be purchased by the customer for resale only in the legal licensing procedure. Programs and software developments which have been created and developed by WIIT remain its intellectual property. In case of violation, unauthorised disclosure, copying or misuse, WIIT reserves the right to file a petition against misuse.

6. Warranty

6.1. The parties are aware and agree that it is not possible according to the prior art, eliminate errors of software and hardware under all conditions of use.

6.2 Subject to this condition, claims of the contracting party in accordance with the legal provisions lapse two years after the transfer of risk in case of a new item of purchase or one year after the transfer of risk in case of purchase of a used item in accordance with the following conditions.

6.2.1 WIIT ensures that the contractual products are described in a general context in the product information and are basically operational in this context. However, the warranty extends only as far as the manufacturer of the product recognises this. A guarantee of the properties can only be given if the relevant information has been confirmed by WIIT in writing.

6.2.2 WIIT cannot assume any guarantee for compliance of the program functions with the requirements of the contracting party or for their operation in the combination selected by the contracting party.

6.2.3 Excluded from the warranty are, in particular faults or damage due to operational wear and normal wear and tear, improper use, operating errors and negligence of the customer, operation with incorrect current type or voltage and connection to unsuitable power sources, fire, lightning , explosion or grid-related surges, moisture of all kinds, false or erroneous programs, software and/or processing data and any consumable parts, unless the contracting party proves that these circumstances are the cause of the defect complained. Further, the warranty is void if the serial number, type designation or similar identification marks are removed or made illegible, and in case of manipulations to the goods during the warranty period, by anyone other than WIIT or third parties authorised by WIIT.

6.2.4 Warranty claims are not transferable.

6.2.5 Regardless of the foregoing provision, WIIT continues to offer further manufacturer warranties in full to the other contracting party, without incurring any claim against it.

6.2.6 The goods delivered or the result of the service provided must be checked immediately upon receipt. WIIT must be notified in detail of any complaint in writing within six calendar days after goods receipt.

6.2.7 In the case of warranty repair or replacement shall be made at the discretion of WIIT. The contracting party is obliged to accept a replacement against return of the defective goods. Replaced parts shall become the property of WIIT. If WIIT does not eliminate the defects within a reasonable deadline specified in writing, the contracting party is entitled either to demand the cancellation of the contract or an appropriate deduction in fee. Further claims are excluded. In particular, WIIT is not liable for any damage that has not occurred on the delivery item, for lost profits or other financial damage to the contracting party.

6.2.8 In the case of warranty, WIIT accepts only the material cost of the hardware. All other costs of repair and the incidental costs for the spare part associated with a delivery shall be borne by the customer. The warranty expressly does not cover the work resulting from installations of materials, covered by the warranty, and the related installations, as well as the restoration of the original system status. This service is chargeable. The warranty only covers defective material components. These are supplied free-of-charge for replacement of material.

6.2.9 If the review of a complaint shows that a warranty case is not present, WIIT is entitled to demand compensation for all expenses. Costs of review and repair are based on the current price list of WIIT.

7. Limitation of Liability

WIIT is liable for damages to the customer insofar as intent or gross negligence is attributable to it or its employees, representatives and agents. Liability for indirect or consequential damage as well as removal and installation costs is excluded. This provision applies to all claims for damages. WIIT does not assume any liability for data losses by the customer resulting from the repair of a device. Upon delivery of the equipment for repair, the customer is obliged to submit a detailed list of the entire databases, that need to be backed up at WIIT against a fee. Is WIIT is obliged to pay damages due to the legal regulations according to these conditions, then the liability in the event that the damage was caused by slight negligence is limited as follows: A liability of WIIT is given only in case of violation of substantial contractual obligations and is limited to the predictable typical damage upon conclusion of the contract. The foregoing limitation does not apply to physical injury, health impairment or death. If the damage is covered by an insurance policy taken out by the contracting party, WIIT is liable only for the disadvantages incurred by the contracting party upon settlement of claims, such as higher insurance premium or interest shortcomings. Liability shall be excluded for damage caused by a defect of the contractual item due to slight negligence. This does not affect the liability of WIIT in the case of fraudulent concealment of a defect, the assumption of a guarantee or under product liability law, regardless of whether culpability is proven or not.

8. Intellectual Property Rights and Copyrights of Third Parties.

8.1 WIIT does not assume any liability that the contract products do not infringe any intellectual property rights or copyrights of third parties. The contracting party shall immediately notify WIIT of all claims against it for this reason.

8.2 If delivered products / services were manufactured / provided according to the drafts or instructions of the contracting party, the same shall indemnify WIIT against all claims that are asserted by third parties due to the infringement of intellectual property rights and copyrights. The contracting party shall pay a reasonable advance towards any litigation costs at the request of WIIT.

8.3 The transfer of software programs is done in accordance with the licence conditions of the respective licensor. The scope of services arises from the licence agreement, the licensor and the service specifications and other user instructions that are printed in the corresponding user manuals or are available as an electronic file. This applies, in particular to restrictions of use. The software charges do not include installation, training and induction.

9. Special Rental Arrangements

9.1 Details of the rental equipment (device number, performance, installation description, condition, etc. and possibly version number, guaranteed properties, installation site, rent, rental duration, etc.) result from the respective rental agreement. The following rules apply in addition to the rental agreement and the general terms and conditions of WIIT, and shall supersede them in the event of a contradiction, unless agreed otherwise in writing.

9.2. If the lessee cancels the contract before commencement of the rental term, he shall pay 30% of the agreed rent upon cancellation of the rental agreement 14 days before commencement of the rental term, and 60% in case of 7 days and 100% in case of 3 days respectively, and any personnel and indirect costs, plus VAT. These also include any additional costs, e.g. for transportation, etc. which are also governed by the aforementioned arrangement. Section 4 of these General Terms and Conditions shall apply accordingly to the payment of these amounts.

9.3 WIIT ensures that the rental property is free from material defects and assured properties are present, including the proper and lawful licensing of the software installed. The licensing is subject to the legal possession by WIIT. Software that is provided or rented by WIIT, is the legal property of WIIT in terms of licence and can only be operated on our own computer which comes with the installations. By the required maintenance work WIIT upkeeps the operational readiness. WIIT shall implement this at appropriate intervals and in case of technical faults. The lessee shall immediately notify WIIT of the technical faults in writing. WIIT decides on the nature and scope of maintenance and repair work. The lessee is not allowed to carry out any maintenance or repair work upon occurrence of technical faults in the leased hardware and software. Without permission and instruction from WIIT no exception must be made thereof.

9.4 The monthly rent shall be reduced by 1/30 for each calendar day on which the leased property cannot be used for longer than 12 hours in case of warranty. This amount is reduced accordingly if this applies only to parts of the leased property, or the operability is only partially impaired.

9.5 WIIT is entitled to transfer the leased property upon receipt of a reasonable rental advance and/or deposit. The payment methods are accepted in the order confirmation.

9.6 By the end of the lease term, the leased property must be returned by the lessee to WIIT in its business premises. Costs for dismantling, packaging, transportation, etc. shall be borne by the lessee, whose right of retention is excluded. In case of a delay in the return of the leased property for which the lessee is culpable. he shall pay a compensation equal to the agreed rent plus 50%; claim of further damages is unaffected. In case of daily rental, the property must be handed over by noon.

9.7 Subleases are excluded. Upon breach of this obligation or other non-conforming use of the lessee, WIIT is entitled to immediately repossess the leased property. Costs incurred shall be borne by the lessee, who irrevocably authorises WIIT to take possession.

9.8 If the parties agree to rental conditions in the relevant rental agreement, in particular obligations of the lessee with respect to standby personnel, number and type of power connections, etc. and the lessee does not fulfil these obligations in full, then WIIT is entitled to terminate the lease immediately without notice and to claim damages from the lessee.

10. Export and Import Approvals

10.1 Products and technical know-how provided by WIIT are intended for use and presence in the country of delivery agreed with the contracting party. The re-export of contractual products - individually or integrated into a system - is subject to approval by the contracting party and is generally subject to the foreign trade regulations of the Federal Republic of Germany and of the other delivery country agreed with the contracting party. The contracting party is obliged to inquire about the provisions concerning the German regulations at the Federal Export Office in 65760 Eschborn/Taunus, and the US regulations at the US Department of Commerce, Office of Export Administration, Washington, D.C. 20230. Regardless of whether the contracting party indicates the final delivery destination of the contractual products, it is its own responsibility to obtain any necessary approval from the relevant foreign trade authorities before exporting such products.

10.2 Any re-delivery of contractual products by the contracting party to third parties, with or without the knowledge of WIIT requires the simultaneous transfer of the export approval conditions. The contracting party shall be liable against WIIT for observing these provisions.

11. EC Import Turnover Tax

11.1 If the contracting party has his registered office outside Germany, he is obliged to comply with the regulations of the import turnover tax of the European Union. This includes, in particular the notification of the VAT ID to WIIT without prior request. On request, the contracting party is obliged to provide WIIT with the necessary information about his role as an entrepreneur, the use and transportation of the goods supplied and the statistical reporting obligation.

11.2 The contracting party is obliged to refund any expense, in particular a reasonable handling fee,  incurred by WIIT from incomplete or erroneous information provided by the contracting party with regard to import turnover tax.

11.3 Any liability of WIIT from the consequences of the information provided by the contracting party on the import turnover tax or the relevant data for this purpose is excluded, unless WIIT shows wilful misconduct or gross negligence.

12. General Provisions

12.1 The contracting party is not entitled to assign its claims from the contract without the prior written consent of WIIT.

12.2 Legal venue for business transactions with merchants, legal persons under public law or public assets is Limburgerhof for all legal disputes in connection with the concluded contract. In this case, a judicial process can also be carried out at the customer's place of business at the discretion of the provider.

12.3 The Law of the Federal Republic of Germany applies.

12.4 Orders are processed within WIIT using automatic data processing. The contracting party herewith expressly allows WIIT to store and process data that has become known under contractual relationship and is necessary for order processing, in accordance with statutory provisions for data protection.

12.5 Should one or more provisions of these terms and conditions are or become invalid or this contract text contains a loophole, the contracting parties shall supplement or replace the ineffective or incomplete provisions with appropriate effective provisions, corresponding to the economic purpose of the intended provisions. The validity of the remaining provisions shall remain unaffected.