Legal
General terms and conditions
General Terms and Conditions of Westwerk GmbH & Co. KG
As of 26.07.2017
Address
Westwerk GmbH & Co. KG
Charlottenstraße 14
52070 Aachen
Scope of application
Within the framework of contracts concluded with WESTWERK GmbH & Co. KG, hereinafter referred to as “WESTWERK”, the following General Terms and Conditions shall become an integral part of the contract in accordance with the law of the Federal Republic of Germany. These are recognized by the customer when placing the order. Any deviating provisions are hereby rejected. Any provisions other than those contained herein shall only become effective with our express written acknowledgement.
These General Terms and Conditions shall also apply to future business relationships, even if they are not expressly agreed again.
Individual contractual agreements take precedence over general terms and conditions.
Subsidiary agreements are only valid if they are documented in writing or on a persistent data carrier, e.g. by letter or e-mail. Changes to the terms and conditions, including this confirmation clause, as well as the agreement of delivery dates or deadlines, which can be agreed as binding or non-binding, require confirmation by WESTWERK.
General information
Maintenance contracts are valid for 2 years and can be terminated up to 3 months before the end of the contract period. After expiry of the notice period, the contract term is extended by 1 year.
Placing an order
A contractual offer (order) from the Customer shall be confirmed by WESTWERK in writing or by e-mail. A binding contractual relationship shall not come into existence without the order confirmation by WESTWERK.
The documents required for the execution of the order must be made available to WESTWERK in the agreed form. Files, texts and images can be handed over by email or on a standard storage medium. Handwritten manuscripts shall only be accepted by WESTWERK after express prior consent for the execution of the order. If further documents are required for the execution of the order (graphics, statistics, glossaries, inventory lists, etc.), these must also be handed over to WESTWERK without being requested to do so. The Customer shall hand over the necessary documents to WESTWERK free of third-party rights. The documents must be provided by a date to be agreed between the parties and in a form agreed between the parties (file format, size, quality). If the Customer fails to provide the documents at the agreed time or in the agreed form, it shall be granted a reasonable grace period. If the statutory grace period expires without notice, WESTWERK shall be entitled to withdraw from the contract, whereby the Customer shall pay in full for any work carried out up to this point in time.
Scope of services
The service to be provided by WESTWERK relates to the order accepted by the confirmation. Changes to the content of the order must be notified to WESTWERK regardless of their nature and must also be confirmed in writing.
WESTWERK shall be free to use third parties to fulfill its contractual performance obligations. The service providers commissioned by WESTWERK shall be selected with the necessary care. Placing an order with WESTWERK does not create any contractual relationship between the Customer and the service provider commissioned by WESTWERK.
After processing, the order shall be returned to the Customer by email in a standard file format, provided the Customer has a valid email address. Otherwise, WESTWERK shall transmit the order in a standard file format on a standard storage medium. There is no entitlement to a specific type of transmission. The processed order shall not be sent in paper form.
Delivery time
WESTWERK shall agree a completion date with the Customer. If WESTWERK is unable to meet the completion date, the Customer shall grant WESTWERK a reasonable grace period to perform the service. If the grace period set expires without notice, the Customer shall be entitled to withdraw from the contract.
If the Customer is dependent on the order processing being handed over on a specific date, he must inform WESTWERK of this in writing when placing the order.
Compliance with the delivery deadlines is always dependent on timely self-delivery. If the possibility of delivery depends on delivery by an own supplier and if this self-supply fails for reasons for which WESTWERK is not responsible, WESTWERK shall be entitled to withdraw from the contract. The Customer shall not be entitled to claim damages for this reason in such a case.
The same applies if delivery is made significantly more difficult or impossible due to force majeure or other events and WESTWERK is not responsible for this. Such events include in particular Flood, fire, earthquake, war, epidemics, operational disruptions, strike and official orders which are not attributable to WESTWERK's operational risk. In such or similar cases, the Customer shall be In such cases, the Customer shall be informed immediately of the impossibility of delivery and any service already rendered shall be reimbursed immediately.
Replacement deliveries are permitted if an article is not available. WESTWERK shall then send an item of equivalent quality and price as a substitute (replacement item). In the event of rejection, a replacement item can be returned free of postage and packaging charges.
Copyright and rights of use
All works produced by WESTWERK, such as network plans, documentation, concepts, drafts, drawings, print templates, ideas, layouts, etc. are copyrighted works within the meaning of §2 UrhG, even if they are not explicitly mentioned in §2 UrhG.
Exclusive rights of use, media-related or spatial exclusive rights or blocking periods must be agreed separately.
WESTWERK has the right to be named as the author on the reproductions.
Specimen copies may be used freely by WESTWERK.
WESTWERK has the right to cite the work or service as a reference and, if applicable, to list it on the WESTWERK website for reference purposes.
Remuneration / Terms of payment
The remuneration shall be calculated in euros unless otherwise agreed upon conclusion of the contract.
The applicable VAT is not included in the prices quoted by us and will be charged separately.
The prices stated in the offers and invoices are payable immediately upon delivery without deduction. Payment is due upon completion of the service. Our offers are subject to change.
If the Customer is in arrears with invoice payments after 7 days, he must pay default interest of 5% above the base interest rate, unless WESTWERK can prove higher damages. Interest on arrears shall accrue if the payment term is exceeded even without a reminder.
Cost estimates and calculations are not binding. Exceeding the preliminary calculation or cost estimate by up to 15% is permissible. Any additional services required shall be remunerated separately.
Payments must be made by bank transfer to the account specified in the invoice, stating the invoice number, and shall only be deemed to have been made when this account has been credited.
WESTWERK reserves the right to invoice partial services or advance payments prior to completion of the order.
If the Customer modifies, redesigns or supplements the subject matter of the order after confirmation by WESTWERK or if WESTWERK incurs additional expenses in any other way at the Customer's request, WESTWERK reserves the right to adjust the remuneration accordingly.
Claims for defects in goods
Claims for defects Goods Defects in goods for which WESTWERK is responsible shall be rectified by WESTWERK free of charge. The Customer shall set WESTWERK a reasonable deadline for the rectification of defects. Rectification shall be deemed to have failed if the defects cannot be rectified even after two attempts at rectification. If the rectification fails, the Customer shall be entitled to a reduction in price or to withdraw from the contract. If the defectiveness of the goods is due to a breach of the customer's duty to cooperate, the customer shall not be entitled to claim rectification of the defect.
Obvious defects in the goods must be reported to WESTWERK in writing immediately after delivery of the goods (obligation to give notice of defects). In the case of defects whose existence is not obvious, the obligation to give notice of defects must be complied with immediately after discovery of the defect. If the customer is a consumer within the meaning of § 13 of the BGB of the Federal Republic of Germany, the corresponding statutory limitation period shall apply.
Claims for damages by the buyer due to a defect are excluded.
Liability
WESTWERK shall only be liable to the Customer for damages caused by intentional or grossly negligent breaches of duty by the User or a legal representative or vicarious agent of the User. The exclusion of liability does not apply to the breach of essential contractual obligations, i.e. obligations whose fulfillment is necessary for the achievement of the purpose of the contract. The exclusion of liability also does not apply to injury to life, limb or health caused by at least negligent breach of duty by the user or a legal representative or vicarious agent of the user.
Liability for service failures and delays is excluded in the event of force majeure as well as for circumstances for which WESTWERK is not responsible.
Warranty
Supplementary guarantee provisions apply to all goods, insofar as these have been provided with such by the manufacturer. A dependent guarantee that goes beyond the statutory warranty provisions is not granted.
If WESTWERK is unable to identify any defects in the goods, they will be returned to the customer freight collect.
Supplementary warranty provisions apply to all goods, insofar as the goods have been provided with such provisions by the manufacturer.
The limitation period is one year from handover.
Return policy
Customers of WESTWERK are granted a right of return if the value of the order exceeds the value of 50 euros.The right of return can only be exercised by returning the goods within two weeks. The return period begins upon receipt of the goods.
The goods must be returned to: WESTWERK GmbH & Co.KG, Charlottenstraße 14, 52070 Aachen, Germany
Goods sent carriage forward will not be accepted.
The goods must be in as-new condition (complete and undamaged goods, operating instructions, etc.). If the customer is responsible for a deterioration in the condition of the goods, he must compensate for the reduction in value or the value; § 351 to § 353 BGB do not apply. For the provision of the use or the use of an item as well as for other services up to the time of exercising the revocation, the value of the item shall be reimbursed; the reduction in value resulting from the intended use of an item or the use of another service shall not be taken into account. In these cases, the customer shall only be liable for intent and gross negligence.
Goods or articles that have been specially made for the customer and software that has been unsealed by the consumer are excluded from the right of return. Prohibition of offsetting and right of retention.
The customer is only entitled to reduce the price, offset or withhold payment if the counterclaims have been legally established by a German court or are undisputed.
Software products
When purchasing a software product, the customer acquires a product in accordance with the license terms of the respective manufacturer and accepts these with the first use of the software product.
The purchased software product remains the intellectual property of the manufacturer. When utilizing the delivered goods, industrial property rights to which third parties are entitled must be observed.
Liability, data protection and confidentiality
WESTWERK shall only be liable, irrespective of the legal grounds, for intent and gross negligence.
The Customer shall indemnify WESTWERK against all claims made by third parties against WESTWERK on account of conduct for which the Customer bears responsibility or liability under the contract or agreement..
The client shall bear the costs of any legal proceedings or warnings.
WESTWERK shall not be liable for the admissibility and registrability of the work under competition and trademark law or for the novelty of the product.
WESTWERK accepts no liability for the infringement of the rights of persons or objects depicted, unless a signed release form is enclosed. The acquisition of rights of use over and above the artistic copyright and the obtaining of publication permissions shall be the responsibility of the Client. The client shall bear sole responsibility for the context resulting from the specific publication.
The dispatch of documents or confidential data shall be at the risk of the client, regardless of how this is done.
The Customer is hereby informed in accordance with Section 33 (1) of the Federal Data Protection Act (BDSG) and Section 3 (5) of the Teleservices Data Protection Act (TDDSG) that WESTWERK collects its address data and account details in machine-readable form and processes them automatically for tasks arising from the contract. In addition, login and access data shall be stored for evidence purposes and for the smooth operation of the machines. The client expressly agrees to this.
The client bears sole responsibility for ensuring that the content to be created and/or the content on any web storage provided is legally permissible and does not infringe the rights of third parties. In particular, the client shall bear sole responsibility for ensuring that the content does not violate criminal law or regulations for the protection of minors and that it is not defamatory, libellous, glorifying war, inciting hatred, harmful to minors, pornographic or similar in nature and that it is not likely to jeopardize the security or free democratic basic order of the Federal Republic of Germany.
The client is responsible for a final backup of the data. Costs for loss of business or similar restrictions due to the loss of the Client's data shall not be assumed and cannot be asserted against WESTWERK.
Both contracting parties undertake to keep confidential all information and documents relating to the contractual relationship and business secrets that become known as a result of the cooperation in question.
The duty of confidentiality remains in force even after the end of the contract.
Changes to the general terms and conditions
The customer shall be notified in writing of any changes to the General Terms and Conditions. They shall be deemed approved if the customer does not object to the changes within two weeks of notification.
Severability clause
Should individual provisions be wholly or partially invalid or not become part of the contract, the remainder of the contract shall remain valid (Section 306 (1) BGB). The wholly or partially invalid or not included provision shall be replaced by the statutory provision (Section 306 (2) BGB).