TERMS AND CONDITIONS
Last change: 01 January 2023


1.0 Scope
1.1 These Terms and Conditions shall apply to all one-time and ongoing services provided by Warptec Software GmbH and its legal successors within the scope of its entire business operations and irrespective of the contractual classification. They shall also apply to all future business relations without the need for a renewed express inclusion. These Terms and Conditions shall be deemed accepted at the latest upon the first use of the services of Warptec Software GmbH. Counter-confirmations of the customer with reference to its own GTC are hereby contradicted. These GTC shall apply to the customer's legal successors even if no express inclusion is made by contract between the customer and its legal successors.

1.2 Deviations from these GTC shall only be effective if Warptec Software GmbH acknowledges them in writing. The employees of Warptec Software GmbH are not authorized to make verbal collateral agreements or to give verbal assurances that go beyond the content of the written contract.

1.3 Warptec Software GmbH shall be entitled to amend these GTC at any time. If the customer does not object within 2 weeks after notification of the changes, at the latest, however, at the time the changes come into force, they shall become an effective part of the contract. If the customer objects in due time, Warptec Software GmbH may terminate the contract with a notice period of 2 weeks. If Warptec Software GmbH does not terminate the contract, the contract shall be continued under the old terms and conditions.

1.4 These General Terms and Conditions as well as any amendments are available online on the website of Warptec Software GmbH at http://www.warptec.com/.


2.0 Offers, prices
2.1 The offers of Warptec Software GmbH are subject to change and shall be valid for a maximum of 30 days. Cost estimates or budget plans prepared by Warptec Software GmbH are not binding.

2.2 If the parties have not reached an agreement on the remuneration of a service of Warptec Software GmbH, the performance of which the customer could expect according to the circumstances only against remuneration, the customer shall pay the remuneration customary for such service.

2.3 If Warptec Software GmbH performs weekend or night work with the Customer's consent, the hourly rates applicable at the time shall apply with a surcharge of 50%.


3.0 Scope of services
3.1 Unless otherwise agreed, the object of performance shall be defined by the customer in writing (specifications). The type and scope of Warptec Software GmbH's services shall be derived from the performance specification or from the contract, of which these GTC are an integral part. Performance specifications as well as the nature of samples shall only be binding if Warptec Software GmbH expressly confirms them in writing. For the performance specifications §1.1 shall apply accordingly. For changes to the performance specifications, §1.3 shall apply accordingly.

3.2 Warptec Software GmbH shall be obligated to process the data supplied by the customer (texts, still and moving images, sounds) only to the extent that they comply with the requirements resulting from the service description or the contract. Warptec Software GmbH shall not check the content and legal admissibility of the data; this shall be the responsibility of the customer. Data carriers of any kind such as paper, CDs etc. shall become the property of Warptec Software GmbH.

3.3 Warptec Software GmbH shall provide its services itself or through third parties unless otherwise agreed in the contract. Necessary interruptions of operation for maintenance and repair work shall be announced as early as possible. Malfunctions shall be eliminated as soon as possible.

3.4 Insofar as Warptec Software GmbH provides services free of charge, such services may be discontinued or made chargeable at any time upon prior notice.

3.5 Unless otherwise agreed, the Customer shall have an unrestricted right to use the software programmed for it. However, the Customer shall not be permitted to use individual modules / parts of the source code for purposes other than for the commissioned software, to pass them on or to apply for property rights to these modules. All rights to modules / parts of the source code shall remain with Warptec Software GmbH. Unless otherwise agreed, the customer shall receive an exclusive and unrestricted right of use to the overall work, but not to individual modules or parts of the source code.


4.0 Performance periods, deadlines
4.1 Agreed delivery, completion and provision deadlines and dates shall not be binding as long as they have not been confirmed in writing by Warptec Software GmbH.

4.2 If Warptec Software GmbH is responsible for the non-compliance with bindingly agreed deadlines and dates, the customer shall be entitled to compensation for delay in the amount of 2% of the invoice value of the performance affected by the delay for each full week of delay, but not more than 5% in total.

4.3 Any further claims shall be excluded unless the delay is due to gross negligence or intent on the part of Warptec Software GmbH.

4.4 If Warptec Software GmbH has products (e.g. printed products) manufactured by third parties (e.g. by a printing company) on behalf of the customer or is involved in a manufacturing process (e.g. by transmitting the print data), Warptec Software GmbH shall not be liable for delays for which the manufacturer (e.g. printing company) is responsible.

4.5 The term of the contract for domains, hosting, servers or other services that are billed on a recurring basis is 12 months, unless otherwise agreed. The notice period is 4 weeks to the end of the billing period.


5.0 Acceptance, warranty
5.1 Warptec Software GmbH shall inform the customer as soon as the Services are available. The customer shall be obliged to inspect and accept the Services of Warptec Software GmbH within 7 calendar days after they have been made available or after receipt of a corresponding notification, unless there are defects which materially impair the Services and therefore render them unusable for the customer. Acceptance shall be declared in writing, if necessary with a description of the non-substantial defects. If no written complaint is made within the time limit, the performance of Warptec Software GmbH shall be deemed to have been accepted without defects even without an express declaration by the customer. The use of a one-off service without defects shall also be deemed to be acceptance.

5.2 The warranty shall commence upon acceptance or upon expiry of the period specified in § 5.1. Unless otherwise agreed, the warranty period for purchase contracts shall be 1 year.

5.3 If objects of performance (e.g. source codes, drafts, texts, files) or data systems (e.g. server configurations) are modified by the customer or third parties without Warptec Software GmbH's consent, any warranty and liability of Warptec Software GmbH shall expire with immediate effect.


6.0 Terms of payment, default in payment
6.1 All services provided by Warptec Software GmbH in accordance with the contract shall be paid for regardless of whether the customer uses them. A refund or reduction of the payment obligation due to lack of use is excluded.

6.2 Unless otherwise agreed, each service rendered by Warptec Software GmbH shall be due for payment 7 days after completion. If the completion of a service is delayed for reasons for which Warptec Software GmbH is not responsible, e.g. because the customer does not provide texts, image material or other information or technical requirements, Warptec Software GmbH shall be entitled to issue an interim invoice for the project after a delay of 14 days. If Warptec Software GmbH has to assume that an order can no longer be executed for reasons for which it is not responsible, Warptec Software GmbH shall be entitled to invoice the agreed or expected service fee less any expenses saved. The impracticability of an order shall be assumed, among other things, if the customer fails to deliver the documents, data, texts, images, information, etc. required for the continuation of the order within 21 days after Warptec Software GmbH's written request.

6.3 If Warptec Software GmbH becomes aware of circumstances that call into question the creditworthiness of the customer, Warptec Software GmbH shall be entitled to demand immediate payment of the entire remaining debt as well as advance payments and security deposits.

6.4 Warptec Software GmbH shall furthermore be entitled to charge interest in the amount of 8% p.a. above the base interest rate from the time of the customer's default in payment. Further claims shall remain unaffected by this.


7.0 Set-off, retention
7.1 The customer may only set off undisputed or legally established claims against claims of Warptec Software GmbH. The customer shall only be entitled to rights of retention on the basis of claims arising from the individual, concrete contractual relationship of which these GTC are an integral part.

7.2 Warptec Software GmbH reserves the ownership of delivered products and the right to revoke granted rights of use of rendered services until all remuneration claims of Warptec Software GmbH arising from this contractual relationship as well as other existing claims from the ongoing business relationship with the customer have been settled in full.


8.0 Duties and obligations of the customer
8.1 The customer shall be obliged to use the services of Warptec Software GmbH properly. Insofar as Warptec Software GmbH publishes usage rules for its services, the customer shall comply with them.

8.2 The use of the services of Warptec Software GmbH by persons other than the customer (third parties) or the permission of such use shall only be permitted if this has been expressly agreed by contract. The absence of a contractual agreement shall not release the customer from the obligation to pay for the use by third parties.

8.3 Warptec Software GmbH shall be notified immediately of any recognizable defects and damage. The customer shall take all necessary measures to prevent and mitigate damage. It shall give Warptec Software GmbH the opportunity to detect and remedy defects. Insofar as faults and damages are the responsibility of the customer, Warptec Software GmbH shall be reimbursed for all expenses incurred in connection with the determination of the cause and the elimination of faults or damages.

8.4 The customer shall support Warptec Software GmbH in the performance of its contractually owed services. This includes, in particular, the timely provision of information, data material as well as hardware and software to the extent necessary for the customer's cooperation. The customer shall instruct Warptec Software GmbH in detail regarding the services to be provided by Warptec Software GmbH.

8.5 For the duration of the cooperation of the parties and for a period of one year thereafter, the customer undertakes not to entice away any employees of Warptec Software GmbH or to employ them without the consent of Warptec Software GmbH or to place orders with them personally. For each case of culpable violation, half a year's salary shall be due for payment to Warptec Software GmbH even without proof of damage. Warptec Software GmbH reserves the right to prove higher damages.

8.6 The customer warrants that the information provided by it is correct and complete. The customer undertakes to inform Warptec Software GmbH without undue delay of any changes in the contact data provided and any other data required for the performance of the contract.

8.7 The customer undertakes to inform Warptec Software GmbH without undue delay as soon as it becomes aware that unauthorized third parties are aware of the passwords provided to it for the purpose of access.

8.8 The customer undertakes to refrain from using techniques in the design of its Internet presence that cause excessive use of Warptec Software GmbH's resources. Warptec Software GmbH may exclude internet presences with such techniques from access by third parties until the customer has removed/deactivated the techniques. This shall not apply to servers that are available for the sole use of the customer (dedicated hardware).

8.9 The Customer further undertakes not to use the resources provided by the Provider for actions that violate legal prohibitions, morality and the rights of third parties. This includes in particular the following actions:

8.9.1. unauthorized intrusion into computer systems of third parties (e.g. hacking);

8.9.2. the impairment of third-party computer systems by sending/forwarding data streams and/or e-mails (e.g. DoS/DDoS attacks/spam/mailbombing);

8.9.3. searching for open access to computer systems (e.g. port scanning);

8.9.4. sending e-mails to third parties for advertising purposes, unless the recipient has expressly agreed or it is otherwise permitted;

8.9.5. the forgery of IP addresses, mail and news headers, and the distribution of malware.

8.10. The customer is obliged to operate the software/scripts used by him in the most current version. Updates must be installed within a period of 14 days. After security gaps become known, they must be closed immediately.

8.11. If the customer violates one or more of the aforementioned obligations or if there is a risk of default, Warptec Software GmbH shall be entitled to temporarily suspend all services immediately. Warptec Software GmbH expressly reserves the right to assert claims for damages.


9.0 Secrecy, data protection
9.1 Unless expressly agreed otherwise in writing, all information provided to Warptec Software GmbH shall be deemed to be non-confidential.


10.0 Copyrights and ancillary copyrights
10.1 The customer shall transfer to Warptec Software GmbH all rights of use to the data supplied by the customer (texts, still and moving images, sounds, etc.) that are required to provide the agreed services.

10.2 The customer shall inform Warptec Software GmbH without undue delay of the assertion of claims by third parties.

10.3 In the event of an infringement of property rights, Warptec Software GmbH may, at its own discretion and at its own expense, after prior consultation with the customer, make modifications which, while safeguarding the interests of the customer, ensure that an infringement of property rights no longer exists or procure the necessary rights of use for the customer.

10.4 The customer shall indemnify Warptec Software GmbH against all infringements of property rights for which the customer is responsible. In particular, the customer shall be liable for such infringements of property rights that are based on its execution instructions or its material.

10.5 Warptec Software GmbH may name the customer as a reference customer on its website or in other media. In addition, Warptec Software GmbH may publicly reproduce or refer to the services provided for demonstration purposes, unless this would violate confidentiality (e.g. protected areas on the Internet or internal documents) or the customer claims a contrary legitimate interest.

10.6 On websites created by Warptec Software GmbH, the author shall be named in the imprint at the request of Warptec Software GmbH.


11.0 Liability
11.1 Warptec Software GmbH shall not be responsible for delays in delivery and performance due to force majeure and due to events that make performance significantly more difficult or impossible for Warptec Software GmbH, such as strikes, lockouts, official orders, floods, operational disruptions or disruptions in the area of the operators of the physical networks, even if they occur with third parties, even in the case of bindingly agreed deadlines. They shall entitle Warptec Software GmbH to postpone the performance for the duration of the impediment plus a reasonable start-up period or to withdraw from the contract in whole or in part due to the unfulfilled part.

11.2 Warptec Software GmbH shall not be liable for the consequences of the use of data, information, texts, moving and still images provided by customers who are defective or do not have the required rights of use.

11.3 Warptec Software GmbH shall not be liable for print orders placed with printers selected by the customer and with "low cost printers" selected due to low printing costs. Furthermore, Warptec Software GmbH shall only be liable for print orders where the presence of a representative of Warptec Software GmbH at the press proof has been expressly ordered by the customer and where Warptec Software GmbH has acted negligently or intentionally.

11.4 Claims for damages arising from impossibility, positive breach of contract, culpa in contrahendo and tort shall be excluded against Warptec Software GmbH as well as against its vicarious agents or assistants, except in case of intent or gross negligence. Liability for properties warranted in writing by Warptec Software GmbH shall remain unaffected. Warptec Software GmbH shall also not be liable for lost profits and for indirect damages, regardless of whether these occur at the customer's or at third parties' premises, unless there is intentional or grossly negligent conduct.

11.5 Warptec Software GmbH shall not be liable within the scope of its service as Internet Service Provider for the completeness, correctness and up-to-dateness of the information transmitted via its services and products. Likewise, Warptec Software GmbH shall not be liable for the information and data being free of third party rights or being handled or processed lawfully by the sender or recipient.

11.6 Unless otherwise provided for in these contractual terms and conditions, Warptec Software GmbH shall only be liable to the extent of the proven damage. Otherwise, liability shall be limited to the amount of the order value or, in the case of recurring services, to the amount of the agreed annual fee to be paid regularly by the customer.

11.7 If a damaging event occurs within the sphere of influence of a third party (network operator, supplier, etc.), Warptec Software GmbH shall only be liable to the extent that the third party is liable to Warptec Software GmbH.

11.8 The customer shall be liable like a vicarious agent for third parties who act for Warptec Software GmbH in the field of activity of Warptec Software GmbH at the instigation or with the acquiescence of the customer. Warptec Software GmbH shall not be liable to the customer if Warptec Software GmbH, due to the conduct of one of the aforementioned third parties, cannot fulfill its obligations to the customer in whole or in part or cannot fulfill them in time.

11.9 Warptec Software GmbH shall not be liable for the loss of data and/or programs to the extent that the damage is due to the customer's failure to perform data backups and thus to ensure that lost data can be restored with reasonable effort.

11.10. The Contractor shall not be liable for updates and problems of the third party software and damages caused thereby. In particular, the Contractor shall not be liable for malfunctions caused by updates of programming languages such as Perl, php, html, etc. and of Internet browsers. Furthermore, Warptec Software GmbH does not warrant that the web pages created by it can be displayed and used without errors in outdated browser versions. If the customer expressly wishes the support of outdated browser technologies, Warptec Software GmbH must be expressly informed of this before the order is placed. Warptec Software GmbH reserves the right to charge for the additional effort required for this.

11.11. The Contractor shall not be liable for any damage caused by disturbances of data lines or in the area of the Internet Service Provider.

11.12. Warptec Software GmbH shall be liable for intent and gross negligence. Warptec Software GmbH shall only be liable for slight negligence in the event of a breach of a material contractual obligation (cardinal obligation) and in the event of damage resulting from injury to life, body or health.

11.13. The Customer warrants that it holds the exploitation rights to the data it supplies (texts, still and moving images, sounds) and that this Agreement does not infringe any copyrights, ancillary copyrights or rights of third parties.

11.14. The customer further warrants that it is entitled to transfer all rights required for the production of the subject matter of the contract or for the provision of the services by Warptec Software GmbH. To the extent that the customer is or becomes a licensor, it warrants that it has not entered into and will not enter into any further agreement with any third party with respect to the subject matter of the contract under which rights of use and powers of the kind to be granted under this contract automatically expire or pass from it to a third party.

11.15. The customer shall bear the legal responsibility for the ordered service. In case of doubt about the legal admissibility of the ordered service, the customer shall seek legal advice at its own expense.

11.16. Warptec Software GmbH is not authorized by law to give legal advice. However, Warptec Software GmbH shall endeavor to advise the customer on the basis of its experience about possible existing legal risks of the commissioned service. However, Warptec Software GmbH shall not assume any liability for the correctness or completeness of the legal advice.

11.17. As part of its service as an Internet service provider, Warptec Software GmbH guarantees server availability of 98% on an annual average.


12.0 Final provisions
12.1 Place of performance and place of jurisdiction shall be, to the extent permissible, Bamberg. Warptec Software GmbH shall also be entitled to sue at any other place of jurisdiction provided by law.

12.2 The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods. In addition, the provisions of German copyright and data protection law shall apply to this contract.

12.3 The invalidity or ineffectiveness of individual provisions of the contract or these GTC shall not affect the validity of the remaining provisions. In the event of the invalidity of a provision, the parties shall be obliged to replace the invalid provision with a valid provision that comes as close as possible to the economic and legal meaning of the invalid provision.

12.4 Terms such as termination and rescission shall be synonymous with the respective conduct provided for by law in the case of individual and continuing obligations, to which these GTC shall apply equally, without the choice of law being restricted by the wording.