Terms & Conditions

1. Scope

1.1. The general terms and conditions (GTC) of work4all GmbH in the present version apply from 01.11.2015 and until a different version is published.

1.2. Since work4all GmbH exclusively addresses customers who are not consumers within the meaning of the law, the following terms and conditions apply exclusively to contractual relationships with non-consumers.

1.3. Insofar as work4all GmbH is not itself a manufacturer within the meaning of the Act, the legal position of work4all GmbH is limited to that of a retailer. work4all GmbH may assign its warranty claims against the manufacturer to the customer on account of performance or in lieu of fulfillment. In case of doubt, the assignment of fulfilment shall take place. By concluding the purchase contract, the customer accepts the assignment.

1.4. The terms and conditions of work4all GmbH apply to all legal transactions with which work4all GmbH offers and sells services or goods. The customer's terms and conditions only apply if they have been expressly accepted in writing by work4all GmbH. In this case, the terms and conditions of work4all GmbH apply in addition to the customer's terms and conditions.

2. Conclusion of contract

2.1. The mutual obligations of work4all GmbH and the customer arise from the contract to be agreed in writing. Offers submitted by work4all GmbH to the specific customer are binding on work4all GmbH only within the acceptance period specified in the offer. Declarations of acceptance by the customer that differ in content from the work4all GmbH offer or are received after expiry of the commitment period are considered as an offer from the customer to work4all GmbH to conclude the contract on amended terms.

2.2. General publications and advertising by work4all GmbH do not represent an offer, but an invitation ad offerendum and are always to be understood subject to change.

2.3. The content of the contract is only the services and specifications promised in writing in the offer, unless they are standard programs without special adaptation to the customer's needs. In this respect, only the specifications of a standard program provided by work4all GmbH to the customer in the form of advertising material or manuals are considered agreed and owed.

2.4. Insofar as work4all GmbH is obliged to deliver software, the customer exclusively acquires the non-exclusive and non-transferable right to use the software at the agreed number of workstations and to store it on the agreed number of servers. work4all GmbH remains the owner of the intellectual property embodied in the software with all copyrights. In particular, with regard to the usability of delivered software, the number of workstations and servers agreed in the purchase contract from which the software can be worked with at the same time is considered binding on the contracting parties. The customer is prohibited from passing on the software delivered by work4all GmbH to third parties, regardless of the form and on which legal basis, unless work4all GmbH agrees to this.

2.5. Insofar as the customer has a specification for adapting the software, its content only becomes part of the contract if the specification is presented before the contract is concluded and work4all GmbH expressly guarantees the features specified herein.

3. Deliveries and services

3.1. Deliveries and services are carried out on the basis of contractual agreements. Pre-contractual agreements only become part of the contractual agreements if they have been confirmed in writing by work4all GmbH.

3.2. Insofar as the customer's cooperation is required for work4all GmbH to provide the service, an agreed period for the provision of the service by work4all GmbH is extended by the delay resulting from the customer's lack of cooperation.

3.3. If the customer is in default of cooperation in accepting the service, work4all GmbH may make the agreed service price due without deduction at the time at which the service would have been provided without the delay caused by the customer in the regular course of business. In this respect, the customer has no right of retention with regard to services or partial services which cannot be provided or cannot be provided on time due to his lack of cooperation.

3.4. work4all GmbH is entitled to provide partial services when fulfilling its obligations. If partial services are provided over a period of more than two months, the partial services are considered to be legally independent and fees due for this can be made in the form of reasonable advance payments.

3.5. The delivery time agreed in the contract is extended accordingly in the event of operational disruptions, strikes, lockouts, non-delivery by upstream suppliers and other unavoidable cases of force majeure over which work4all GmbH has no influence.

3.6. If work4all GmbH is in default, the liability to pay compensation in the event of simple negligence is excluded. Liability in the event of intent or gross negligence remains unaffected. In any case, the burden of proof for the cause of the damage and the amount of the damage caused by the delay lies with the customer.

3.7. Delivery and shipping are at the expense and risk of the customer, with the risk of performance being transferred to the customer upon handover to the carrier/delivery service.

4. Prices and payments

4.1. All prices in offers, brochures or other publications by work4all GmbH are net prices plus the applicable value added tax (currently 19%), unless otherwise expressly stated.

4.2. Standard programs and support packages are available at fixed prices. Training, installations and program adaptations, as well as the provision of individual services according to customer requirements, are delivered at the agreed hourly rate. The applicable hourly billing rate is set out in the contract.

4.3. In the case of continuing obligations (e.g. support contracts), work4all GmbH can adjust the fee owed by 5% per year of the term once a year. In each case, after adjustment of the fee, the customer has a special right of termination, which he can exercise within one month after the amount to be paid has been due.

4.4. Unless otherwise agreed, the invoice for services/partial services provided must be settled within 14 days of receipt.

4.5. If the customer is in default of payment on a due invoice, he must pay an annual default interest of 10% above the currently valid base interest rate of the ECB as lump sum compensation from the start of the default. work4all GmbH reserves the right to claim further damage caused by default. Insofar as the service has not yet been fully provided by work4all GmbH, work4all GmbH is entitled to withhold partial services not yet provided during the period of default in payment.

4.6. From the onset of default, the customer must bear all necessary costs of proper and professional legal action by work4all GmbH. This also applies in particular to deliveries and services abroad and regardless of any legal provisions to the contrary at the place of performance.

4.7. Payments are generally not to be made in cash. Cash payments are only permitted with the express permission of the managing director of work4all GmbH. In this respect, work4all GmbH accepts all forms of non-cash payment transactions with the exception of bills of exchange.

5. Retention of title

5.1. Delivered goods and programs remain the property of work4all GmbH until full payment of the invoice amounts and all additional costs, such as interest on arrears or legal proceedings costs. The customer is allowed to use delivered software within the agreed scope of delivery, as long as work4all GmbH does not expressly object to the use.

5.2. work4all GmbH reserves the right to block software that is used by the customer without authorization for further use. This applies both to software that is still owned by work4all GmbH and is used despite a prohibition, as well as to programs that are used from workstations or servers that have not been or are no longer approved.

6. Material defects

6.1. The basis of the software to be delivered by work4all GmbH is the service description, which is made available by work4all GmbH in a form of publication accessible to the customer with knowledge and will by work4all GmbH. Minor deviations of the software from the service description are not considered a defect and do not entitle the customer to assert warranty claims. This also applies to deviations resulting from ongoing development of the software, unless these further developments not only insignificantly restrict the usability of software originally usable by the customer. work4all GmbH expressly points out that, according to the state of the art, it is not possible to produce absolutely error-free software.

6.2. Liability for material defects is also excluded for non-reproducible or otherwise undetectable functional errors of the software.

6.3. Claims due to a material defect expire within one year after the start of the statutory limitation period. Further liability due to grossly negligent or intentional breaches of duty by work4all GmbH remains unaffected.

6.4. If the customer reports alleged defects in the software which are not confirmed as such after inspection by work4all GmbH, work4all GmbH is entitled to charge for the resulting expenses. The usual hourly billing rates in the industry are considered to have been agreed. This does not apply if, with reasonable effort, the customer was unable to recognize that the software was not a defect.

6.5. work4all GmbH does not guarantee that the delivered software will interact without errors with software programs not expressly assessed as suitable by work4all GmbH. In particular, claims for damage arising from the use of third-party software together or simultaneously with the software delivered by work4all GmbH are excluded, unless work4all GmbH has confirmed that the simultaneous use of the software is harmless. The customer acknowledges that he has been informed of possible functional restrictions and errors of the software in the event that the software is operated simultaneously on a network or on the same server with third-party programs not certified by work4all GmbH. The customer acknowledges that he must report any change in the software or hardware configuration of his IT system to work4all GmbH if this results in restrictions on the use of the software.

6.6. work4all GmbH does not guarantee the loss of data due to the use of software provided by work4all GmbH or services provided by work4all GmbH that goes beyond the effort required to restore the data from a data backup properly created by the customer. The customer acknowledges that he is solely responsible for backing up his data and undertakes to back up his data at appropriate intervals.

7. Legal deficiencies

7.1. work4all GmbH guarantees that the software delivered by work4all GmbH infringes the rights of third parties only insofar as the software is used for its intended purpose.

7.2. The scope of use of the software delivered by work4all GmbH is limited to the European Economic Area, so that liability for infringement of third-party rights through the use of the software outside the contract area is excluded.

7.3. If and insofar as a claim is made against the customer by a third party due to the infringement of third-party rights, the customer may not accept such claims, but must inform work4all GmbH immediately and completely of the facts. Claims by the customer against work4all GmbH are only possible within the limits set out in these terms and conditions if the claim by third parties is justified due to infringement of their rights and work4all GmbH has not succeeded in directly pacifying the injured third party.

8. Basic limitations of liability

8.1. work4all GmbH is not liable for damage caused by slight negligence, unless this would involve a breach of an essential contractual obligation.

8.2. Liability for financial losses, loss of profit and other subsequent damage not directly related to the performance of work4all GmbH is excluded, unless work4all GmbH could be accused of gross negligence or intent.

8.3. Liability is limited to the contract value in individual cases, and to an annual amount in the case of continuing obligations.

9. Data protection

9.1. Both contracting parties guarantee full compliance with the provisions of the Federal Data Protection Act and the applicable implementing provisions. In particular, work4all GmbH and the customer will inform the employees employed in their companies regarding data secrecy and document this.

9.2. The customer agrees to the storage of his data voluntarily provided to work4all GmbH, insofar as this is necessary for the purpose of maintaining a customer file and executing the contract. After termination of all legal relationships, work4all GmbH and the customer commit to delete the mutually stored data.

10. Final provisions

10.1. The validity of German law is exclusively agreed for the entire business relationship between work4all GmbH and the customer. The application of other national legislation or international legal norms or arbitration rules is excluded.

10.2. The place of fulfilment is Cologne, unless installation or maintenance is required at the customer's place of business.

10.3. Cologne is agreed as the place of jurisdiction, although work4all GmbH is free to choose other places of jurisdiction permitted for the customer.

10.4. All agreements between work4all GmbH and the customer must be made in writing, including the waiver of the validity of this written form requirement. Terminations must be made in writing in verifiable form.

10.5. Should individual provisions of these terms and conditions be invalid or unenforceable, this shall not affect the validity of the remaining provisions. The contracting parties agree to replace the invalid or unenforceable provision with that effective and enforceable provision that comes closest to the economic intent of the unenforceable or ineffective provision.