General terms and conditions 

windata GmbH
Weißgerberweg 11
88239 Wangen im Allgäu
Phone: +49 7522 9770 0
Fax: +49 7522 9770 179

Register entry:

Entry in the commercial register:
Register court: Ulm HRB
Register number: HRB 721386

VAT:
VAT ID
according to Section 27a Value Added Tax Act: DE445876474

1. Validity of the conditions

The following General Terms and Conditions of Business and Delivery shall apply to all deliveries and services of windata GmbH, including subsequent transactions, and shall take precedence over the terms and conditions of business, delivery, contract and purchase of the customer/contractual partner. The deliveries, services and offers of windata GmbH are made exclusively on the basis of these terms and conditions. These terms and conditions shall be deemed to have been accepted at the latest upon receipt of the goods or services. In commercial legal transactions, counter-confirmations of the contractual partner with reference to its terms and conditions of business or purchase are hereby rejected; this also applies in the event that these are transmitted by letter of confirmation. No other agreements have been made and no verbal promises have been made. All agreements and verbal subsidiary agreements made between windata GmbH and the contractual partner for the purpose of executing this contract must otherwise be recorded in writing.

2. Offer and conclusion of contract

The offers of windata GmbH are subject to change and non-binding until acceptance by the contractual partner. The contract is concluded with order confirmation or delivery or service. Drawings, illustrations, dimensions, weights, or other performance data or specifications are binding only if this is expressly agreed in writing.

3. Right of withdrawal

For consumers

Consumers have the right to withdraw from this contract within 14 days without giving any reason. The withdrawal period is 14 days from the date of conclusion of the contract. To exercise the right of withdrawal, the consumer must inform us (windata GmbH, Weißgerberweg 11, 88239 Wangen im Allgäu, info@windata.de) of their decision to withdraw from this contract by an unequivocal statement (e.g., a letter sent by mail, fax, or e-mail). In order to comply with the withdrawal period, it is sufficient for the consumer to send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period.

Special instructions

The right of withdrawal expires in the case of a contract for the delivery of digital content that is not on a physical data carrier if we have started to execute the contract after the consumer has expressly agreed that we will start to execute the contract before the expiry of the withdrawal period and has confirmed his knowledge that they loses their right of withdrawal by their consent with the start of the execution of the contract.

For non-consumers

There is no right of withdrawal for customers who are not consumers within the meaning of Section 13 BGB. Contracts with non-consumers can be terminated or amended only by individual agreement and under the conditions set out in the contract.

4. Prices

Unless otherwise stated, windata GmbH shall be bound by the prices contained in its offers for 10 days from their date. The prices stated in the order confirmation of windata GmbH plus the respective statutory value added tax are decisive. Additional deliveries and services shall be invoiced separately. Unless otherwise agreed, the prices are ex warehouse Wangen without packaging. In the event of a calculation error, windata GmbH reserves the right to recalculate. Receivables of windata GmbH are generally owed in EURO. Costs (e.g., bank charges and fees) for the conversion of third currencies into EURO shall be borne by the customer/contractual partner.

5. Delivery and performance time

Delivery dates or periods, which can be either binding or non-binding, must be stated in writing. Delays in delivery and performance because of force majeure and to events that make delivery considerably more difficult or impossible for windata GmbH—this includes, in particular, strikes, official orders, weather conditions even if they occur at the suppliers or their sub-suppliers of windata GmbH—entitle windata GmbH to postpone the delivery or performance by the duration of the hindrance plus a reasonable start-up time of a maximum of two weeks or to withdraw from the contract in whole or in part because of the part not yet fulfilled. If the hindrance lasts longer than six weeks, the contractual partner is entitled to withdraw from the contract with regard to the part not yet fulfilled after setting a reasonable grace period of two weeks. Windata GmbH can invoke the aforementioned circumstances only if it has promptly informed the contractual partner.

For all deliveries and (work) services, in particular installation, set-up and connection work, maintenance, and other services, the contractual partner is obliged to provide suitable premises with the necessary technical equipment, in particular the necessary power sources, in good time and to maintain them in a functional condition during the agreed performance period. Windata GmbH shall not be responsible for delays in the commissioning of the deliveries of windata GmbH because of the lack of the aforementioned operational readiness incumbent on the contractual partner. Compliance with the delivery and service obligations of windata GmbH presupposes the timely and proper fulfillment of the obligations of the contractual partner. If the contractual partner is in default of acceptance, windata GmbH shall be entitled to demand compensation for the damage incurred; the risk of accidental deterioration and accidental loss shall pass to the contractual partner upon the occurrence of default of acceptance.

6. Transfer of risk/transport

The risk shall pass to the contracting party as soon as the consignment has been handed over to the person carrying out the transportation or has left the warehouse of windata GmbH for the purpose of dispatch. If shipment becomes impossible through no fault of windata GmbH, the risk shall pass to the contractual partner upon notification of readiness for shipment. Windata GmbH will take out transport insurance only on special written instruction and for the account of the contractual partner.

7. Liability for defects/warranty

Details in brochures, on the windata GmbH website, or in other documents serve only to describe the product and do not constitute warranties within the meaning of Section 459 BGB. Warranted characteristics must be expressly agreed in writing and identified as such.

windata GmbH warrants that the products are free from manufacturing, material, and workmanship defects; the warranty period is 12 months in commercial legal transactions and 24 months for consumers within the meaning of Section 13 BGB and begins with the date of delivery or acceptance of the work performance. In commercial legal transactions or for companies, any liability for defects or warranty for used items is excluded. If the instructions of windata GmbH regarding storage, installation and handling of the goods are not followed, changes are made to the products or presentation materials, parts are replaced or consumables are used which do not correspond to the original specifications, any warranty shall lapse if the contractual partner does not refute a corresponding substantiated assertion that only one of these circumstances has caused the defect. In commercial legal transactions, windata GmbH must be notified in writing of defects and transport damage without delay or otherwise within two weeks of receipt of the delivery item; it is necessary that the commercial contractual partner has otherwise properly fulfilled his obligations to inspect and give notice of defects in accordance with Sections 377, 378 HGB (German Commercial Code). Defects that cannot be discovered within this period, even with careful inspection, must be reported to windata GmbH in writing immediately after discovery. In the event of notification by the contractual partner that the products are defective, windata GmbH demands that the defective goods be sent to windata GmbH for subsequent performance (rectification or new delivery) and subsequent return at the expense and own choice of windata GmbH. The defective goods are to be insured by the contractual partner during transportation at the expense of windata GmbH. If the rectification of defects in EDP systems fails at least twice or is unreasonable for windata GmbH, the contractual partner may, at its discretion, demand a reduction in payment or withdraw from the contract. The same shall apply if the new delivery provided within the scope of subsequent performance fails or is unreasonable for windata GmbH. Withdrawal is excluded in the event of only an insignificant reduction in value or contractual fitness. Warranty claims against windata GmbH are available only to the direct contractual partner and are not assignable. The above paragraphs conclusively contain the warranty for the products and exclude any other liability for defects or warranty claims of any kind insofar as legally permissible.

8. Guarantee

In the event that windata GmbH grants the contractual partner a separate warranty extending beyond the warranty period specified in Clause 6, this shall include the free procurement of spare parts or a replacement device at the discretion of windata GmbH. The place of performance for this guarantee is 88239 Wangen. Any warranty service is also subject to the proviso that the warranty case is recognized and confirmed as such by the upstream supplier of windata GmbH.

9. Reservation of proprietary rights

Until the fulfillment of all claims (including all balance claims from current account) to which windata GmbH is entitled against the contracting party now or in the future for any legal reason, windata GmbH is granted the following securities, which it will release on request at its discretion, insofar as their value exceeds the claims by more than 20%. The goods remain the property of windata GmbH. Processing or transformation shall always be carried out for windata GmbH as manufacturer but without any obligation on its part. If (joint) ownership of windata GmbH expires through combination, it is already now agreed that the (joint) ownership of the contractual partner in the uniform item shall pass to windata GmbH in proportion to the value (invoice value). The contractual partner shall store the (co-)ownership of windata GmbH free of charge. Goods to which windata GmbH is entitled to (joint) ownership are hereinafter referred to as reserved goods. The goods subject to retention of title owned by windata GmbH must be insured in commercial business transactions against fire, water, theft, and burglary for the duration of the retention of title. The rights arising from this insurance are assigned to windata GmbH, whereby windata GmbH accepts the assignment. The contractual partner is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledges or transfers by way of security are not permitted. The contractual partner hereby assigns to windata GmbH by way of security the claims arising from the resale or any other legal grounds (insurance, tort) in respect of the reserved goods (including all current account balance claims) in the amount of the invoice value. windata GmbH revocably authorizes him to collect the claims assigned to it for its account in his own name. This collection authorization can be revoked only if the contractual partner does not properly meet their payment obligations. In the event of access by third parties to the reserved goods, in particular seizures, the contracting party shall draw attention to the ownership of WINDATA GMBH and inform the latter immediately so that windata GmbH can enforce its ownership rights. Insofar as the third party is not in a position to reimburse windata GmbH for the judicial or extrajudicial costs incurred in this connection, the contracting party shall be liable for this. If the contractual partner is responsible for conduct in breach of contract—in particular in the case of cardinal obligations (e.g., default of payment)—windata GmbH is entitled to take back the reserved goods or, if necessary, to demand assignment of the contractual partner’s claims for restitution against third parties. The repossession or seizure of the reserved goods by windata GmbH does not constitute a withdrawal from the contract.

10. Inspection and approval

In the case of services under a contract for work and services, acceptance shall be declared by the contractual partner by signing the acceptance protocol or by written notification to windata GmbH. The work performance shall also be deemed to have been accepted if the contractual partner has used it for four weeks or has not accepted the work performance despite windata GmbH setting a separate deadline of a further two weeks for the declaration of acceptance. At the start of this two-week period, windata GmbH must specifically point out the deemed acceptance resulting from the conduct of the contracting partner.

11. Payment

Unless otherwise agreed, the invoices of windata GmbH are due for payment immediately upon delivery without deduction and free of costs and charges. Bills of exchange and checks are accepted only on account of performance. windata GmbH is entitled to offset payments first against the older debts of the contractual partner. If costs and interest have already been incurred, windata GmbH is entitled to set off the payment first against the costs, then against the interest, and finally against the main performance. A payment is deemed to have been made only if windata GmbH can dispose of the amount. In the case of payment by check, payment shall be deemed to have been made only when the check has been cashed. If the contractual partner is in default, windata GmbH is entitled to demand interest of 8% above the base interest rate according to the Discount Transition Act as compensation from the date in question. They are to be set lower if the contracting party proves a lower charge. Proof of higher damages by windata GmbH is permissible. If windata GmbH becomes aware of circumstances that call into question the creditworthiness of the contractual partner, in particular if they do not cash a check or stops their payments, or if other circumstances become known which call into question the creditworthiness of the contractual partner, windata GmbH is entitled to declare the entire remaining debt due, even if it has accepted checks. In this case and in the case of services under a contract for work and services, windata GmbH is also entitled, insofar as legally permissible, to demand advance payments, payments on account, or the provision of security. The contractual partner can offset claims of windata GmbH only with undisputed or legally established claims. In commercial legal transactions, a right of retention and a right to refuse performance is excluded with the exception of undisputed or legally established counterclaims.

12. Presentation and packaging

windata GmbH reserves the right to make changes to the type and design of the presentation and packaging of the goods at any time; however, it is not obliged to make such changes to products that have already been delivered.

13. Secrecy/Data protection

Unless expressly agreed otherwise in writing, the information submitted to windata GmbH in connection with orders shall not be deemed confidential. The contracting party agrees that the confidential data provided by it to windata GmbH may be stored and processed electronically for order processing. Any transmission, modification, blocking, or deletion of this data requires the written form. windata GmbH is entitled to pass on to third parties, in particular to credit institutions and contractual partners, data of the contractual partner that result from the contract documents and which are necessary for the execution of the contract insofar as this serves the purpose of order processing. The applicable provisions of data protection are observed by windata GmbH.

14. Limitation of liability

In the event of a breach of cardinal (main) contractual obligations, windata GmbH is liable for damages for which it is responsible. In all other respects, liability, in particular claims for damages arising from positive breach of contract, culpa in contrahendo, and tortious acts against windata GmbH as well as against the vicarious agents of windata GmbH is excluded except in cases of willful misconduct, gross negligence, or injury to life, limb or health. If windata GmbH is found liable, claims for damages are limited to foreseeable losses or expenses except in cases of intent, gross negligence, or violations of cardinal contractual obligations or of life, body, or health. In any case, liability under the Product Liability Act shall remain unaffected.

15. Data backup

The contractual partner shall ensure that sufficient data is backed up. Liability for any loss of data is excluded according to Clause 13 of these terms and conditions with the exception of gross negligence and intent. Otherwise, liability for data loss shall be limited to the effort required to restore the lost data on the contractual partner’s system using existing backup copies.

16. Software, literature

When hardware, software, and/or literature is supplied, the special licensing and other conditions of the respective manufacturer shall apply in addition to these General Terms and Conditions. By accepting the goods in question, their validity is expressly recognized. In particular, the hardware, software, and literature covered by the contract may be resold to third parties only in accordance with the license terms of the respective manufacturer.

17. Credit institutions (banks and savings banks)/institutions

If the credit institution or the customer/contractual partner of software programs of windata GmbH has acquired an “institution license”, windata GmbH may implement or change services and functional extensions even without the consent of the credit institution or the customer/contractual partner if

a) the security of the product is improved or increased

b) the security of the end user’s stored data is improved or increased

c) implementation has been declared mandatory for the contracting party by a resolution of the Central Credit Committee

d) these were ordered by an official measure

If the points listed under a) to d) did not exist at the time the contract was concluded, were not yet known, or were not yet included in the product, windata GmbH shall be entitled to charge the credit institution or the customer/contractual partner for the services provided and/or product enhancements.

If the credit institution takes over another credit institution or is taken over by another credit institution, the cumulative balance sheet total of both institutions shall be decisive for the calculation of the license and maintenance fee. The subsequent calculation is calculated from the date of the legal merger and is due and payable immediately. Insofar as the merged institutions each had a license agreement at the time of the merger, the parties shall agree on any new arrangements by mutual consent in individual cases.

18. Duty to cooperate of the client

The customer shall grant windata GmbH the spatial and temporal opportunity to perform the services and comply with the agreed performance times. The customer shall provide windata GmbH with all necessary and reasonable support during the preparation and performance of the services, in particular by providing the necessary technical facilities and environmental conditions.

19. Applicable law, place of jurisdiction, partial invalidity

The law of the Federal Republic of Germany shall apply to these terms and conditions and the entire legal relationship between windata GmbH and the contractual partner, whereby the validity of the uniform international sales law or UN sales law (UNCITRAL Convention/CISG) is expressly excluded. Insofar as the contractual partner is a registered trader within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, 88239 Wangen im Allgäu shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. Should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.