terms and conditions
General Terms and Conditions Wice for providing the software Wice CRM for use via the Internet
1 . General / Scope of application
a) These Terms and Conditions apply to all current and future business relationships in which we act as contractor, seller, supplier or in any other manner (hereinafter collectively “Provider”) for the purpose of providing the opportunity to use the “Wice CRM” software (hereinafter “Wice”) via the Internet.
b) Deviating, conflicting or supplementary General Terms and Conditions of the Customer, even if known, shall not become part of the contract, unless their validity is expressly agreed to in writing by the Provider.
2. Conclusion of Contract / Special Provisions
a) Offers of the Provider are subject to change. Deadlines are only binding if they have been expressly confirmed in writing by the Provider as a fixed date. With his purchase order or his order, the customer bindingly declares that he wishes to purchase the ordered service.
b) Is an order considered as an offer acc. If the order is to be considered as an offer of a contract according to § 145 BGB, the Provider is entitled to cancel the offer of a contract according to § 145 BGB. § 147 Abs. 2 BGB to be assumed. Acceptance can also be declared by the start of processing the order.
3. Provision of Wice and storage space for application data
a) From the beginning of the contract, the Provider shall make the Wice software available on a server operated by it in the version released by it from time to time as well as storage space for storing the Customer’s application data for use in accordance with the following provisions. The customer does not have a right to be provided with a specific server for his sole use, but the provider can provide the server to a large number of customers for use at the same time if the data stocks are separated within the scope of the server’s capacity.
b) The Provider shall provide the Customer with a user name and user password for the initial user ordered by the Customer at the time of the initial order. The password must be changed by the customer immediately to a password known only to the customer. After the initial order, the customer can create additional users himself for a fee.
c) The application data is backed up regularly, at least every calendar day. The customer is responsible for compliance with retention periods under commercial and tax law.
d) The customer needs an internet connection and a current browser of the types Firefox, Safari, Chrome or Internet Explorer to access Wice.
e) For customers who only use a free client under the Wice Freemium model, storage is limited to 1 GB.
4. Wice availability and application data access, response and recovery times.
a) The Provider owes an availability of Wice and the application data at the transfer point (interface to the Internet of the data center in which the servers are kept ready) of 99% per contract year. The parties understand availability to mean the technical usability of the Application and the Application Data at the Delivery Point for use by the Customer.
b) The application and / or the application data are not available at
(aa) Malfunctions of parts of the technical infrastructure or the Internet required for the execution of the application that are not to be provided by the Provider or its vicarious agents;
(bb) disruptions or other events that are not (co-)caused by the Provider or one of its vicarious agents;
(cc) planned unavailability for the purpose of maintenance of the server and / or the application during low-use hours Monday through Friday between 8 p.m. and 6 a.m. and on weekends and federal holidays.
5. Non-fulfillment of main performance obligations
a) If the Provider does not fully comply with its obligations, the following provisions shall apply.
b) If the Provider is in default with the initial operational provision of Wice, the Customer is entitled to withdraw from the contract if the Provider does not comply with a two-week grace period set by the Customer, i.e. does not provide the full agreed functionality of Wice for the first time within the grace period.
c) If, after operational provision of Wice and / or the application data, the Provider fails to meet the agreed obligations in whole or in part, and if the availability agreed in Section 4 for the contractual year is not met, the agreed monthly usage fee shall be reduced proportionately for the time during which the application and / or the application data were not available to the Customer to the extent agreed or the storage space was not available to the extent agreed. If the Provider is responsible for such non-performance, the Customer may further claim damages in accordance with the provisions of this Agreement.
d) If a use of Wice and / or the application data according to. lit c) is not restored within a period of three working days after the Provider has become aware of the defect, the Customer may extraordinarily terminate the contractual relationship without notice, irrespective of the reason for the non-performance, but not if it is exclusively a case of force majeure.
e) The Provider shall demonstrate that it is not responsible for the reason for the delayed provision or the loss of service. If the Customer has not notified the Provider of the service failure, the Customer must prove in the event of a dispute that the Provider has otherwise become aware of it.
6. Rights of use of the customer to Wice, rights of the provider in case of exceeding the rights of use
a) The customer receives simple (non-sublicensable and non-transferable) rights of use to Wice, limited to the term of this agreement.
b) The Customer shall take the necessary precautions to prevent the use of Wice by unauthorized persons using the Customer’s user IDs and / or passwords. This data shall be protected by appropriate and customary measures. The Customer shall inform the Provider immediately if there is any suspicion that the access data and/or passwords may have become known to unauthorized persons.
c) In the event of misuse of the user IDs and / or passwords provided to the customer, the customer shall bear the burden of proof that it is not responsible for such misuse.
d) The customer is responsible for ensuring that Wice is not used for illegal purposes.
e) The customer will use the possibility of Wice to send emails, faxes or mail only in compliance with the legal requirements and in particular do not send so-called SPAM email messages. A violation of this is considered an important breach of contract, which entitles the customer to terminate the contract without notice.
f) If the Customer violates the above provisions for reasons for which the Customer is responsible, the Provider may block the Customer’s access to the application or the application data if the violation can be demonstrably remedied. If it is reasonable for the Provider to do so, the Provider shall request the Customer to remedy the violation by setting a reasonable deadline.
g) If the Customer violates paragraph g) above, the Provider is entitled to immediately delete the data or application data affected thereby.
h) If the Customer continues to violate or repeatedly violates the above provisions despite a corresponding written warning from the Provider and if the Customer is responsible for this, the Provider may terminate the contract extraordinarily without observing a notice period.
i) If the Customer is responsible for the breach of duty, the Provider may claim damages in accordance with the provisions of this Agreement.
a) The agreed remuneration shall accrue for each month or part thereof of the term of the contract from the date of operational provision (in each case the day of the calendar month of provision). It shall be due in advance upon provision of the application and then on the third last working day of the respective preceding contractual month. If the customer has justifiably terminated the contract extraordinarily, the remuneration paid for coming periods shall be refunded pro rata temporis.
b) The Provider is entitled to increase the remuneration at any time with a notice period of three calendar months. In this case, the customer shall have a special right of termination at the time the price increase takes effect, which must be exercised within four weeks of receipt of the information about the price increase. The Provider shall draw the Customer’s attention to this right of termination together with any notice….
8. Obligations of the customer
The customer is obliged,
a) not to interfere or allow interference with programs operated by the Provider outside the ordinary use or with data networks of the. Provider without authorization or to promote such intrusion;
b) to indemnify the Provider against claims of third parties based on an unlawful use of Wice by the Provider or resulting from data protection, copyright or other legal disputes caused by the Customer and connected with the use of Wice;
c) require its authorized users to comply in turn with the provisions of this Agreement applicable to them;
d) to obtain the required consent of the respective data subject, insofar as it collects, processes or uses personal data when using Wice and no statutory permissible circumstance applies;
e) to check data and information for viruses before sending them to the Provider and to use state-of-the-art virus protection programs;
f) Defects in contractual services, in particular defects in Wice, to notify the Provider without delay. If the customer fails to give timely notice for reasons for which he is responsible, this shall constitute contributory negligence or contributory negligence. Insofar as the Provider was unable to provide a remedy as a result of the omission or delay of the notification, the Customer is not entitled to reduce the agreed remuneration in whole or in part, to demand compensation for the damage caused by the defect or to terminate the contract extraordinarily due to the defect without observing a period of notice. The customer has to prove that he is not responsible for the omission of the notification;
9. Liability and liability limits
a) The parties shall hold each other liable without limitation for all damage caused by them or their legal representatives or vicarious agents in the event of intent, gross negligence or injury to life, body or health.
b) In all other respects, a party shall only be liable to the extent that it has breached a material contractual obligation. Essential obligations are those obligations which the other party can regularly rely on and which serve precisely to achieve the objectives of this contract. In this respect, liability is limited to compensation for foreseeable, typically occurring damage.
c) If the Customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code), the Provider’s strict liability for damages (§ 536a BGB) for defects existing at the time of conclusion of the contract is otherwise excluded.
d) Liability under the Product Liability Act remains unaffected.
10. Data security, data protection
The Parties shall conclude a separate order processing agreement for the services to be provided by the Provider.
11. Duration, Termination
a) The contractual relationship begins with the conclusion of the contract and is concluded for an indefinite period.
b) The contractual relationship may be terminated by either party in writing or in text form with the agreed notice period, subject to the minimum term agreed at the time of the order. Partial termination for individual users is also possible.
c) Notwithstanding the foregoing, the Provider may terminate the Agreement without notice if the Customer is in default of payment of the Fees for two consecutive months or, in a period exceeding two months, in default of payment of the Fees in an amount equal to the Fees for two months. In this case, the Provider may additionally demand liquidated damages due immediately in one lump sum in the amount of 75% of the remaining monthly base fee until the expiration of the regular contract term. The customer reserves the right to prove a lesser damage.
d) In the case of customers who use Wice exclusively with one user free of charge via the Wice Freemium model, the Provider is entitled to extraordinary termination with a notice period of four weeks to the end of the month if the customer has not used the client for more than 6 months. The Provider is entitled to delete the Client of the Customer with all contents after the termination has been completed. The Provider is entitled to notify the Customer of the possible termination and deletion of all data by e-mail at any time. For this purpose, the customer must be reachable for the provider via the contact data stored during registration.
12. Obligations upon and after termination of the contract
Upon termination of the contractual relationship, the Provider is obligated, upon the Customer’s request, to provide the Customer with the application data stored by the Customer on DVD-ROM in the data format of Wice. For this purpose, the Provider shall be entitled to an expense-based remuneration in accordance with the Provider’s current hourly rates.
13. Final clauses
a) The contractual relationship shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
b) There are no ancillary provisions outside this contract and its annexes. Amendments or supplements to this contract and the appendices must be made in writing to be effective. This also applies to the waiver of the written form requirement.
c) The possible invalidity of individual provisions of this contract shall not affect the validity of the remaining content of the contract.
d) If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from this contract shall be the court responsible for the Provider’s place of business, unless an exclusive place of jurisdiction is given. The same shall apply if the customer does not have a general place of jurisdiction in Germany or if the customer’s place of residence or habitual abode is unknown at the time the action is brought.