General Terms and Conditions

Software Lease (Subscription)

1. Scope of application

1.1 The following General Terms and Conditions for Software Rental (GTC) apply to all business transactions relating to the purchase of software concluded between the Customer and GmbH, Vor den Kämpen 23, 30851 Langenhagen (hereinafter referred in short as: WHINT). These GTC shall at all times apply as amended at the time of conclusion of the respective agreement. Unless otherwise agreed in writing, we herewith object to the incorporation of terms of the Customer.

1.2 Customer for the purposes of these GTC are exclusively entrepreneurs as defined in section 14 of the German Civil Code [BGB].

2. Object of the agreement

2.1 WHINT offers the Buyer the opportunity to lease software products (hereinafter referred to in short as: Software) for given period against remuneration. The type of software and the scope of performance are based on the product description provided by WHINT and on the performance description provided by WHINT on their website for the software concerned. Unless made for the purpose of remedying any defects, updates for the Software will be provided only based on a separate agreement.

The Software is provided for contract-compliant use according to the product description.

The functionality of the Software, as well as the system environment in which the Software may be used, is outlined in the product description.

2.2 Information contained in brochures, ads, documentation and similar records is descriptive only and does not establish any guarantee as to the properties of the Items. Any guarantee as to the properties of the Items requires an express written agreement.

2.3 The Software is provided by means of rent. Accordingly, the right to use the Software is granted only for the term of the lease agreement. Unless otherwise provided for in the provisions below, the statutory provisions on lease contracts, sections 535 et seq. BGB apply.

3. Delivery, installation, consultation

3.1 WHINT shall supply the Software ready for installation by download through a data network, including the documentation, at the contractually agreed time.

3.2 The Customer installs the Software.

3.3 WHINT owes consulting services, only if this is agreed expressly and by separate agreement. Any consulting services to be provided shall be remunerated separately pursuant to the current price list of WHINT.

3.4 Any adjustments or modifications of the Software are only owed to the extent necessary for maintenance and repair of the Leased Items or to secure contract-compliant use. In all other respects, WHINT is only required to make updates and modifications if this is expressly agreed; any corresponding services shall be reimbursed by the Customer in accordance with the current price list of WHINT.

4. Rent

4.1 The Customer is obliged to pay the agreed yearly rent (subscription). All prices of WHINT are exclusive of the statutory VAT, which shall be added at the applicable rate. The rent comprises the remuneration for the provision and use of the Software, as well as for its maintenance and repair.

4.2 The rent shall be paid each year in advance with 30 days payment terms.

5. Rights of use in the Software, use in a network

5.1 WHINT shall grant the Customer a non-exclusive, non-transferable right to use the provided Software for the presumed contractual purpose in accordance with the following provisions of this para. 5 and of the following paras. 6, 7 and 8, limited in time to the term of the contract.

5.2 The Customer is entitled to use the Software on the listed of production instances indicated in the contract. The use of the Software on other production instances is not permitted, unless WHINT expressly consents to such use. WHINT may make their consent contingent on the payment of an additional, reasonable remuneration.

6. Replication of the Software

6.1 The Customer is entitled to reproduce the Software and the documentation, if and insofar as this is necessary for the intended use.

6.2. The Customer is entitled to compile copies of the Software, as far as these are required to secure the future use of the software, as well as for a backup in line with the operational requirements of the Customer and for archiving purposes.

6.3 The Customer’s right of reproduction of the source code pursuant to the provisions of section 69d(1) UrhG remains unaffected.

6.4 All other reproductions are prohibited.

7. Alteration of the software; decompilation

7.1 The Customer shall make no alteration to the Software, unless they are required for the intended use. A makeover is permitted if it is necessary for the removal of a defect and if WHINT is in arrears with the remedy of the defect, if WHINT unlawfully rejects the removal of defects or is unable for other reasons attributable to their sphere of responsibility to remedy the defect without undue delay. A makeover is also permissible if it is necessary to resolve compatibility problems in the interaction of the software with other programs required by the Customer and if WHINT is unwilling or unable to remedy these against reasonable, customary remuneration.

7.2 The Customer may not instruct any third party to perform the measures pursuant to para. (1) who are competitors of WHINT, unless the Customer can show that the risk of disclosure of significant business and trade secrets of WHINT is excluded (especially the functions and design of the program).

7.3 Decompilation of the program is permitted only subject to the terms and conditions stipulated in section 69e(1) UrhG. The information gained in this way may not be used or transmitted in breach of the precautions stipulated in section 69e(2) UrhG.

7.4 Markings of the Software, especially copyright notices, trade marks, serial numbers or similar designations may not be removed, modified or rendered illegible.

8. Provision of Software to third parties

8.1 Without the consent of WHINT, the Customer is not authorised to provide the Software to third parties, and in particular may not sell or rent out the Software.

8.2 The dependent use by the employees of the Customers or other third parties subject to the right of instruction on the part of the Customer is permitted for the purposes of the intended use.

9. Buyer’s duties of notification, care, cooperation and information

9.1 The Customer is obligated to report defects of the Software without undue delay to WHINT. In doing so, the Buyer shall take into account the instructions of WHINT for the analysis of the problem to a reasonable extent and shall transmit the information available and required for remedying the defect to WHINT.

9.2 The Customer shall take suitable precautions to protect the Software against unauthorised access of third parties. Customer’s employees and third parties subject to the Customer’s right of instruction authorised to make use of the Software pursuant to the Customer’s instructions shall be instructed about the prohibition on the compilation of copies beyond the contractually agreed scope.

9.3 The Customer shall inquire about the essential functional features of the Software and shall bear the risk if the latter complies with his desires and requirements; in case of doubt, the Customer shall consult employees of WHINT or technically skilled third parties prior to the conclusion of the contract.

9.4 Prior to the use of the Software, the Customer shall examine the Software thoroughly for defects and usability in the existing hardware and software configuration. This also applies to software that the Buyer receives under warranty and as part of maintenance services.

9.5 Customer shall observe the instructions of WHINT for the installation and operation of the Software.

9.6 If WHINT assumes any further obligations beyond the provision of the Contract Items, the Customer shall cooperate to the required extent, e.g. by providing employees, work spaces, hardware and software, data and telecommunications equipment, free of charge.

9.7 For debugging and troubleshooting purposes, the Customer grants WHINT direct and/or remote access to the Contract Items. WHINT is authorised to verify whether the Contract Items are used in accordance with the provisions of this contract. For this purpose, WHINT may require information from the Customer, especially about the time and scope of the use of the Contract Items and inspect the Customer’s books and records, as well as their hardware and software. To this end, access to the business premises of the Buyers shall be granted to WHINT during regular business hours.

9.8 The Customer shall take appropriate precautions in case the Software does not function at all or only partially (e.g. by means of daily data backups, fault diagnosis, regular examination of the data processing results).

8.10 If the Customer does not expressly indicate otherwise, WHINT may assume that all data of the Customer with which WHINT is in contact are backed up.

8.11 The Customer shall bear all consequences and costs arising from a breach of these duties.

10. Rights of the Customer in case of defects

10.1 WHINT is obliged to remedy defects in the licensed Software including the documentation.

10.2 Defects shall be remedied by WHINT – at their choice – through free of charge repair or replacement.

10.3 Termination by the Customer pursuant to sentence 1 No. 1 of section 543(2) BGB for failure to provide contract-compliant use is admissible only after WHINT has been granted a reasonable opportunity to remedy the defect and has failed to do so. The remedy shall be deemed to have failed only if the remedy has become impossible, has been refused by WHINT or is delayed in any other unreasonable manner, if there are reasonable grounds to question the success of the remedy or if the acceptance by the Customer is deemed unreasonable for other reasons.

10.4 The rights of the Customer for defects are excluded if the latter has modified the Leased Product or caused the modifications to be made without the consent of WHINT, unless the Customer is able to show that modification does not have any unreasonable effects on the analysis and remedy of the defects. The rights of the Customer for defects remain unaffected, provided that the Customer is entitled to make modifications, especially as part of the right to self-help pursuant to section 536a(2) BGB and if such modification has been executed in a technically proper manner and transparently documented.

11. Liability limitations

11.1 WHINT shall be liable under the statutory provisions without limitation for damage

(a) resulting from an injury of life, body or health, based on a deliberate or negligent breach of duty or otherwise intentional or negligent behaviour of WHINT or one of their legal representatives or vicarious agents;

(b) resulting from the absence or cessation of a warranted property or failure to comply with a guarantee;

(c) resulting from the intentional or grossly negligent breach of duty or otherwise intentional or grossly negligent behaviour of WHINT or one of their legal representatives or vicarious agents.

11.2 WHINT shall be liable, subject to limitation of the damages to the contract-typical, foreseeable damage for damage based on a slightly negligent breach of essential duties by WHINT or one of the legal representatives or vicarious agents. Essential contractual obligations are basic duties which must be fulfilled for the proper execution of the contract and which the parties may usually expect to be complied with.

11.3 WHINT shall be liable for any other cases of slightly negligent behaviour limited to a six-fold of the monthly rent per instance of damage.

11.4 No-fault liability of WHINT pursuant to the 1st alternative of section 536a(1) BGB for defects existing already at the time of conclusion of the contract shall be excluded.

11.5 In case of loss of data caused by simple negligence, WHINT shall be only liable for damage which would be incurred despite proper and regular data backups in line with the significance of the data by the Customer; this limitation shall not apply if the data back is impeded or impossible for reasons within the sphere of responsibility of WHINT.

11.6. The above provisions shall apply with the necessary modifications also for the liability of WHINT in regard to the compensation for futile expenses.

11.7 Liability under the Product Liability Act remains unaffected.

12. Contract term, termination of the rent

12.1 The lease starts on the contractually agreed date and is concluded for an indefinite period. It may be properly terminated by either party with a notice period of 2 weeks for the end of the month.

12.2 The rights of termination of the Customer pursuant to para. 10.3 of this contract remain unaffected.

12.4 The right of termination of each party for a compelling reason remains unaffected.

12.5 Any termination shall be valid if in writing (email is sufficient).

13. Return of the Contract Items

13.1 Upon termination of the contractual relationship, the Customer shall delete the Software, destroy the documentation and provide proof thereof to WHING upon written request. Any copies produced of the Software provided by WHINT must be deleted entirely and definitively.

13.2 Any use of the Software after termination of the contractual relationship is not permitted.

14. Final provisions

14.1 The laws of the Federal Republic of Germany, excluding the laws on the international sale of goods, apply to all transactions between the Parties.

14.2 The exclusive place of jurisdiction for all disputes arising from the contractual relationship between the Customer and WHINT is – in cases where the Customer is a merchant pursuant to the provisions of the HGB – the registered office of WHINT.

14.3 Should any of these terms and conditions be wholly or partially invalid, this shall not affect the validity of the remaining provisions.