General Terms and Conditions (GTCs)
§ 1 Scope of application
1.1 WeLean GmbH provides consulting and support services in the areas of lean management, process and project management as well as development and customisation services (hereinafter collectively "Services"). These General Terms and Conditions of Business (hereinafter collectively referred to as "GTC") govern the provision of services by WeLean for lean implementation and the introduction of our lean software within the scope of service contracts. In the case of contracts for work and services, the Special Terms and Conditions for Contracts for Work and Services (hereinafter "BB-Werk") shall also apply.
1.2 WeLean shall provide services exclusively in accordance with these GTC and, in the case of contracts for work and services, additionally in accordance with the BB-Werk. The customer's contractual terms and conditions do not apply, even if WeLean does not expressly object to them and performs the contract.
1.3 These GTC as amended from time to time shall also apply to all future business relations between WeLean and the customer, even if no reference is made to them again.
1.4 WeLean only uses these GTC vis-à-vis entrepreneurs in the course of its business activities.
§ 2 Conclusion of contract, scope of services and quality
2.1 Offers made by WeLean are subject to change and non-binding unless they are expressly designated as binding or they are made for a limited period of time. A contract for services is concluded either by signing it or by written confirmation of the order by WeLean or by WeLean executing the contract.
2.2 The scope, type and quality of WeLean's services are generally determined by the contract concluded and, unless otherwise agreed, the project documents and other appendices designated as binding and, in the case of work performance, the specifications (see § 1 of the BB-Werk). Other information is only binding if WeLean has confirmed it as binding in writing.
2.3 WeLean shall provide the services in the contractually agreed quality and in accordance with the state of the art at the time the contract is concluded. The customer's specifications must be in writing.
2.4 WeLean may make notes of discussions to clarify or change contractual circumstances, in particular the subject matter of the service. The notes shall become binding on both parties if WeLean provides them to the customer and the customer does not object to them in writing within one week, stating the reasons. WeLean will inform the customer of this effect in each case.
2.5 Information and representations in product and project descriptions, documentation, etc. do not constitute a guarantee declaration by WeLean for the quality of work results, projects or services unless WeLean expressly declares this in writing.
2.6 Insofar as WeLean carries out developments according to the customer's requirements and specifications or insofar as WeLean integrates computer programs or other components of third parties or of the customer itself into developments or adapts its own developments to the specified components, WeLean shall not assume any responsibility for the technical and legal properties of these third-party components. In particular, the customer shall indemnify WeLean against claims for damages asserted by third parties against WeLean for infringement of third-party patents, copyrights, trademarks or other industrial property rights.
2.7 WeLean is at liberty to use subcontractors in the performance of the services.
§ 3 Cooperation of the Client
3.1 The customer shall provide WeLean in good time with all information required for the performance of the contract, shall check the work results in a timely manner and shall immediately give notice of any faults and defects in writing, describing the defect in detail. This obligation is based on the customer's ability to identify and name defects. WeLean shall in no case waive the objection of delayed inspection and notification.
3.2 Insofar as it is necessary or useful for the performance of the contract, the customer shall support WeLean in the performance of the contract free of charge by making available in good time and to the extent necessary, e.g. employees, work rooms, the relevant IT environment, telecommunications equipment and data, and by cooperating in specifications, tests, acceptances, etc. The customer shall appoint a contact person for WeLean who is authorised to make binding declarations and receive them. The customer shall appoint a contact person for WeLean who is authorised to make and receive the binding declarations required for the performance of the contract.
3.3 The customer shall thoroughly test all work results, developments and adaptations for freedom from defects and for usability in the specific situation before commencing operational use. He shall back up his data, check the programmes, diagnose malfunctions and take other appropriate safety precautions in accordance with the state of the art.
3.4 In the case of software implementation projects, it is a prerequisite for the provision of WeLean's services that the infrastructure provided by the customer as well as the software to be provided by the customer run smoothly both individually and in interaction and that, in particular, the network complies with the manufacturer's specifications for the respective software and allows operation without restrictions.
3.5 If the customer does not comply with the obligations to cooperate, WeLean is entitled to withhold services; other rights of WeLean remain unaffected. If WeLean nevertheless performs, the additional expense will be invoiced in accordance with the applicable price list. This also applies to the additional expense incurred by WeLean because work has to be repeated as a result of incorrect, incomplete or subsequently corrected information provided by the customer.
§ 4 Performance dates, delays
4.1 Delivery and performance deadlines shall be extended by the period during which WeLean is prevented from performing the services due to circumstances for which it is not responsible (e.g. industrial disputes occurring through no fault of WeLean, force majeure, breakdowns of employees, hardware or non-delivery by suppliers) and by a reasonable start-up period after the hindrance. The same applies to the period during which WeLean is waiting for information, acts of cooperation or a decision by the customer on a supplementary offer.
4.2 Except in the case of payment obligations, WeLean shall only be in default by issuing a reminder. Reminders and setting of deadlines by the customer must be in writing to be effective. Deadlines set by the customer for performance or subsequent performance must be reasonable; as a rule, they may not be shorter than 10 working days.
4.3 If the customer is responsible for a project or contract disruption, WeLean shall invoice the additional costs in accordance with the price list valid at the time.
§ 5 Remuneration, terms of payment, set-off
5.1 The remuneration for the services rendered is set out in the contract concluded for the services or in WeLean's order confirmation. Unless the contractual partners have agreed otherwise, remuneration shall be based on time and effort in the form of daily rates in accordance with WeLean's price list valid at the time.
5.2 Unless otherwise agreed, the daily rates cover a working time of 8 hours. Any additional work per day shall be remunerated on a pro rata basis. A 50% surcharge shall be added for work at weekends and on public holidays as well as for night work (from 8:00 p.m.). The travel times of WeLean's employees to and from the customer's place of business as well as services which WeLean provides at other locations at the customer's request shall be charged by WeLean for the travel time of the respective employees at 50% of the pro rata agreed daily rate. Costs for expenses, travel costs and overnight accommodation will be invoiced separately. Car journeys shall be charged in accordance with the respective valid price list, journeys by public transport (1st class rail, business class air) and overnight accommodation costs shall be charged according to expenditure, meals shall be charged at a flat rate in accordance with the respective applicable maximum tax rates.
5.3 The services rendered (with the exception of agreed fixed prices) shall be invoiced monthly. Unless otherwise agreed, fixed prices shall in principle be invoiced 1/3 after conclusion of the contract, 1/3 after the first agreed milestone has been reached and 1/3 after the service has been rendered. Payments are due within 14 days of the invoice date without deduction. The date on which WeLean can dispose of the payment is decisive in this respect.
5.4 All amounts are net amounts, to which the respectively applicable statutory value added tax as well as any levies and customs duties must be added.
5.5 WeLean may claim default interest at a rate of 10% above the base rate as default damages. WeLean may prove higher default damages, the customer lower (but not below the statutory default interest rate). If the customer is more than two weeks in arrears with a payment, WeLean shall be entitled not to provide any further deliveries and services until payment has been made. WeLean will notify the customer of this in writing before discontinuing deliveries and services.
5.6 The customer may only set off claims from the same individual contract/order that are undisputed or have been established by a court of law. The customer shall only be entitled to a right of retention or the defence of non-performance within this contractual relationship and only in the event that WeLean itself has committed a gross breach of contract or has already received the part of the remuneration for a defective performance that corresponds to the value of the performance or if the customer's counterclaim has been legally established or is undisputed.
§ 6 Copyright and rights of use
6.2 The customer may load software and work results into the working memory and onto the hard disks of the contractually specified type and number of computers within the defined network and use them at the number and type of workstations specified there. Within the scope of the contractual use, he shall be entitled to duplicate the software, to make the necessary backup copies, which shall be designated as such, and to use the documentation supplied. Leasing, transfer or use by and for third parties, timesharing use, use within the scope of online services (ASP) and computer centre activities or any other use of the software for third parties against payment or free of charge is generally not permitted without the consent of WeLean. Unless otherwise agreed, the customer shall receive software exclusively in the executable version (machine program).
6.3 All other types of exploitation, in particular the translation, adaptation, arrangement, other reworking and distribution of software and other work results require the consent of WeLean. The copyright notices, other reservations of rights, serial numbers and other features contained in the software and other work results may not be changed or made unrecognisable.
6.4 The customer may only sell the software and other work results to third parties with WeLean's written permission. WeLean will grant permission if the customer assures WeLean in writing prior to the transfer that it will cease using the software and other work results permanently and has not retained any copies and if the third party undertakes in writing to WeLean to comply with the contractual rules of use and transfer.
6.5 The contracting parties are at liberty to expressly designate individual individually programmed software and other work results as "exclusive material" by mutual agreement. In this case, the customer shall receive the exclusive, transferable, irrevocable and temporally, spatially and factually unrestricted right of use and ownership. In this case, the customer shall be entitled to reproduce, translate, revise, distribute, make available to third parties for distribution, demonstrate, commercially exploit and publicly report on software and other work results. The customer shall receive copies or originals of the source code including the development documentation and all other documents. However, WeLean is not prevented from developing materials, software and work results and providing them to third parties for use that are similar to the exclusive material supplied to the customer. In all other respects, the rules of use contained in this paragraph shall apply mutatis mutandis to work results not marked as exclusive material.
6.6 If WeLean supplies the customer with software created by third parties, the customer shall in principle be granted rights of use of the type and to the extent that corresponds to the licence terms and conditions of use of the third parties.
6.8 Except in the case of the granting of exclusive rights of use, the customer shall notify WeLean in writing without delay if third parties wish to access the software or work results; it shall inform third parties of WeLean's ownership of the rights and of its own rights of use, which may only be conditional and limited.
6.9 If WeLean does not hand over the software to the customer but merely acts as the host of the cloud-based application, the additional order processing contract in accordance with the contract annex shall come into force. In addition to the data ownership rights, the security standards on the part of WeLean and possible subcontractors are also regulated there.
§ 7 Warranty/Deficiency Claims
7.1 The following provisions for claims for defects/warranty apply to services provided by WeLean on the basis of purchase contracts or contracts for work and services. If the services are subject to service contract law, WeLean may also demand the application of the following provisions in the case of defined, delimitable work results.
7.2 Errors within the meaning of the warranty are exclusively reproducible errors whose cause lies in quality defects in the services provided by WeLean, including the services obtained by WeLean from subcontractors or its own programme modules brought in by WeLean. A defect is therefore not a functional impairment resulting from hardware defects, defects in the standard software, environmental conditions, incorrect operation, damaged data, etc. WeLean points out that even minor changes to the software can lead to significant, unforeseeable disruptions in the operation of the programme concerned and other programmes. The customer is therefore expressly warned against unauthorised changes to the programmes; the customer bears the risk in this respect alone.
7.3 The customer shall inspect all services provided by WeLean without delay and give notice of defects in writing, describing them in detail. The customer's project manager shall take all necessary measures within reason to identify, limit and document defects. This includes the preparation of a defect report, system logs and memory excerpts if necessary, the provision of the affected input and output data, interim and test results and other documents suitable for illustrating the defect. In the event of a warranty claim, the customer shall provide WeLean with all available information and support the rectification of the defect.
7.4 WeLean may initially provide warranty by means of supplementary performance. WeLean may choose to remedy the defect by providing a new program or documentation version or by showing WeLean ways to avoid the effects of the defect. Not in every case is complete elimination of the defect possible through subsequent performance. The customer will also accept a new programme status if this leads to an acceptable adaptation effort.
7.5 Errors shall be classified by the contracting parties as follows:
- Category 1: The service cannot be used. The error cannot be circumvented by organisational or other economically justifiable means.
- Category 2: The use of the service is impaired, but can essentially take place. The defect can be circumvented by organisational and other economically justifiable means.
- Category 3: The error has no significant impact on the functionality and usability of the service. The use of the service is not or only insignificantly restricted.
7.6 If the supplementary performance finally fails after more than two attempts despite a reasonable follow-up period set in writing, the customer shall have the right to reduce the remuneration or to rescind the contract at his discretion. Other warranty rights are excluded, e.g. reimbursement of expenses for rectification of defects by third parties, new delivery, contract costs.
7.7 If the cause of the defect cannot be identified by the customer, WeLean will investigate the cause of the defect. If WeLean proves that the defect cannot be attributed to it, in particular because unsuitable hardware has been used or the defect is due to intervention by the customer, WeLean may demand reimbursement of expenses for its services.
7.8 In the event of a breach of duty by WeLean, the customer may only claim damages instead of the entire performance and withdraw from the contract if the customer has specifically named the complaint and given specific notice of the breach of contract to WeLean, insofar as the setting of a deadline by the customer for the performance or subsequent performance is required by law and is not dispensable in individual cases. Furthermore, the customer must have threatened, together with the setting of a deadline, to reject WeLean's performance after unsuccessful expiry of the deadline and to claim damages instead of performance and/or to withdraw from the contract. If WeLean responds to the customer's request to remedy the disruption, the customer shall, in order to avoid legal uncertainty, declare definitively within 10 working days of the expiry of the deadline set, at WeLean's request, whether it will adhere to the existing contract.
7.9 If third parties assert property rights against the customer, the customer shall inform WeLean in writing without delay. WeLean will, at its discretion and in consultation with the customer, defend or satisfy the claims. WeLean may replace the affected services with equivalent services that comply with the contractual provisions if this is acceptable to the customer. The customer may not acknowledge the claims of third parties on its own initiative. WeLean will defend itself against the claims of third parties at its own expense and indemnify the customer against all costs and damages associated with the defence against the claim, whereby the indemnification is limited by the provision in § 8 (Liability) and insofar as the damages are not based on conduct by the customer in breach of duty.
7.10 The limitation period for claims of the customer is:
- for material defects 1 year;
- in the case of defects of title 1 year if the defect of title does not lie in a right in rem of a third party on the basis of which the delivered equipment or software can be demanded to be returned, and
- otherwise in accordance with the statutory regulation.
If a material defect or defect of title was deliberately concealed or if there is intent, fraudulent intent or gross negligence, the statutory limitation period shall also apply.
§ 8 Liability
8.1 The following provisions under 8.2 to 8.6 shall apply equally to claims of the customer for damages and/or reimbursement of futile expenses, irrespective of the legal nature of the claim.
8.2 WeLean shall only be liable for simple negligence, in the event of default, impossibility and other forms of fault-based liability if an obligation is breached, compliance with which is essential for achieving the purpose of the contract (cardinal obligation), as follows:
- Liability shall be limited in nature to such damages as could typically be expected to occur within the scope of this contract at the time of the conclusion of the contract.
- Liability for financial loss is excluded.
- The liability is limited to 50 % of the contract value and a maximum of 150 TEUR per claim and in total to a maximum of 100 % of the contract value and a maximum of 500 TEUR.
- The cumulative claims from warranty and liability are limited to a maximum of 100 % of the contract value and a maximum of 500 TEUR.
8.3 WeLean shall be liable without limitation only for the gross negligence of its legal representatives and/or executive employees and/or for intent. WeLean shall only be liable for the gross negligence of other employees and/or vicarious agents to the extent and in accordance with the liability for ordinary negligence pursuant to § 8.2. Notwithstanding the above provisions, WeLean shall be liable for damage caused by delay due to gross negligence to 100 % of the contract value and in absolute terms up to a maximum of EUR 750k.
8.4 Liability for data loss shall be limited to the typical recovery costs that would have been incurred in the event of regular and risk-compliant data backup measures. In all other respects, § 254 BGB (German Civil Code) shall apply to defective data backups by the customer.
8.5 If WeLean also provides software as a hoster, the order processing agreement attached to the contract shall also apply.
8.6 Liability for damages arising from injury to life, limb or health, under the Product Liability Act, due to the absence of warranted characteristics or the non-existence of the guaranteed quality and/or due to guarantees within the meaning of § 443 BGB or § 639 BGB shall remain unaffected by the above provisions.
§ 9 Secrecy, Safekeeping
9.1 The contracting parties undertake to treat as confidential all information and documents they receive or become aware of from the other contracting party during the performance of the contract. They may not be made accessible to third parties not involved in the performance of the contract. The contractual partners shall store and secure these items in such a way that misuse by third parties is excluded.
9.2 Information and documents which were generally known and accessible at the time of disclosure or which were already known to the receiving contractual partner at the time of disclosure or which were legitimately made accessible to it by third parties are not covered by the confidentiality obligation. The confidentiality obligation shall also apply beyond the time of termination of this contract.
9.3 WeLean is permitted to use project names and customers for marketing purposes.
§ 10 End of contract, termination
10.1 Contracts for work and services may be terminated by the customer at any time. In this case, the statutory regulation (§ 649 BGB) shall apply.
10.2 In the case of continuing obligations without a defined end of the contract, each contracting party may terminate the contract in writing with a notice period of three months to the end of the month, unless otherwise agreed in the contract.
10.3 Each contracting party may terminate the contractual relationship for good cause. The termination must be in writing in order to be effective. Good cause shall be deemed to exist in particular if the other contracting party ceases its payments, if it files for insolvency proceedings or comparable statutory proceedings, or if such proceedings are opened or their opening is rejected for lack of assets;
claims of the other contracting party are attached and the attachment is not lifted within two weeks.
Termination for cause must be preceded by a written warning with a threat of termination and the setting of a deadline, unless the delay would be unreasonable for the terminating party.
§ 11 Arbitration
11.1 The contracting parties agree that in the event of any disagreement in connection with the contractual relationship which they are unable to settle among themselves, they shall call upon the arbitration board of the German Association for Law and Information Technology (Deutsche Gesellschaft für Recht und Informatik e.V.). (Schöne Aussicht 30, 61348 Bad Homburg) in order to settle the dispute in whole or in part, either provisionally or finally. The contracting parties assume that the arbitration rules are fair and balanced, the arbitrators are neutral, the arbitration does not lead to binding findings of fact and legal recourse to the state courts remains open.
11.2 In order to enable the mediation, the contracting parties mutually waive the defence of the statute of limitations for all claims arising from the disputed facts of life from the request for mediation until one month after the end of the mediation proceedings. The waiver has the effect of suspending the statute of limitations.
§ 12 Final provisions
12.1 The customer's data that has become known within the framework of the contractual relationship may be stored at WeLean for internal purposes.
12.2 All amendments and additions to the contract must be made in writing to be effective. This written form requirement may itself only be waived expressly and in writing by the contracting parties. The contracting parties shall also satisfy the written form requirement by sending documents by fax and by e-mail. Annexes are an integral part of the contract.
12.3 Should any provision of these GTC or of the contract be or become invalid or incomplete, the remaining content of the contractual relationship shall not be affected. The contracting parties shall replace the invalid provision with a provision that comes as close as possible in economic terms to the meaning and purpose of the invalid provision in a legally effective manner. The same applies to loopholes in the contract.
12.4 All legal relationships between the contracting parties shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The place of performance and jurisdiction for all disputes in connection with this contractual relationship is Stuttgart. WeLean shall also have the right to bring an action at the customer's place of jurisdiction or at any other place of jurisdiction competent under national or international law.
Special Conditions for Works (BB-Werk)
§ 1 Scope of application
WeLean provides work services exclusively in accordance with these Special Terms and Conditions for Work Services ("BB-Werk"). In addition and supplementary thereto, the General Terms and Conditions of Business (GTC) shall apply.
§ 2 Specifications and project phases
2.1 As a rule, WeLean provides work services on the basis of the customer's requirements and specifications (performance specification). The customer has verified that the requirements listed in the specifications or service specifications meet its wishes and needs.
2.2 Insofar as the requirements for the services are not specified by the customer independently, WeLean is prepared to support the customer against separate commissioning and remuneration in drawing up the specifications or service specifications or to draw up the specifications or service specifications independently. The specifications prepared jointly or exclusively by WeLean shall then be reviewed and approved by the customer. If the customer identifies defects, gaps or contradictions during the review, it shall notify WeLean of this without delay and WeLean shall rectify the specification. If the rectifications do not constitute subsequent performance, WeLean may demand payment for them on a time and material basis. The performance specification is the binding basis for the provision of the services. §3 BB-Werk shall apply to changes.
2.3 If necessary, the contracting parties shall agree on further milestones and performance stages as part of the project development and implementation, upon the achievement of which the customer will review and approve the performance status. In this respect, the respective stage of performance shall be deemed to have been accepted no later than one week after the date on which WeLean submits the respective work results or has notified the achievement of the stage of performance, unless the customer gives notice of defects in writing and in a comprehensible manner.
§ 3 Changes and Extensions (Change Requests)
3.1 The contractual partners may request changes and additions to the agreed services in writing. WeLean may refuse to execute a customer's request for changes or additions if the changes or additions are not feasible or if WeLean cannot reasonably be expected to execute them within the scope of its operational capacity.
3.2 The customer shall commission the analysis of a change request. WeLean shall determine the effects on the agreed scope of services and any necessary changes to the schedule within a period to be agreed by the contracting parties and present them in writing in a supplementary offer.
3.3 WeLean may demand payment on a time and material basis for reviewing a request for a change or extension and for preparing supplementary offers. WeLean may also demand separate remuneration for any downtime costs caused by the customer's request for a change. Subject to any other provision in the supplementary agreement, performance deadlines shall be extended by the number of calendar days on which the contractual work had to be interrupted due to the change request, as well as by a reasonable restart period.
3.4 Changes to the agreed scope of services and other contractual adjustments shall be agreed in writing in a supplement to the contract. If the contractual partners do not agree on an amendment to the contract within two weeks of receipt of WeLean's supplementary offer, WeLean shall execute the contract without taking the request for amendment into account.
§ 4 Project management
4.1 Each contracting party shall appoint a project manager (if necessary also his deputy) who shall be responsible for the project and the implementation of the contract and who shall make the necessary decisions.
4.2 The project managers as well as their respective deputies are exclusively authorised and entitled, alongside the management, to make all decisions relevant to the project and to issue declarations of intent, in particular to give notice of defects and to declare acceptance.
4.3 If WeLean prepares minutes of a project meeting, these shall be binding on both parties if WeLean leaves them with the customer and the customer does not object to the minutes in writing within one week, stating the reasons.
§ 5 Acceptance
5.1 In the case of contracts for work and services which do not involve the delivery of movable items to be manufactured or produced, the contracting parties shall carry out an acceptance test. The customer shall issue a written declaration of acceptance as soon as the performance has been rendered essentially correct, complete and free of defects. The customer will only refuse acceptance if the services have substantial defects or defects that cannot be remedied. The customer shall carry out the acceptance test within the agreed period, in the absence of an agreement within 14 days of WeLean's call for acceptance in cooperation with WeLean. During the acceptance test, the customer and WeLean shall jointly draw up a protocol showing the test cases/test data, any functional tests carried out and the defects found.
5.2 Defects detected during the acceptance test shall be classified by mutual agreement by the contracting parties according to the categories specified in § 7.5 of the GTC. The customer will declare acceptance if no category 1 error has occurred. Category 2 errors will be remedied during the acceptance test if possible. Category 2 and 3 errors remaining after acceptance shall be remedied within the scope of subsequent performance.
5.3 Acceptance shall also be deemed to have been declared if the customer expresses its approval of the performance in another way, e.g. by putting it to use in productive operation or by remaining silent in response to a request for acceptance (in each case for longer than one month) or by making payment in accordance with the contract.
5.4 WeLean may demand that the customer nevertheless declares acceptance/release in accordance with the conditions formulated in this paragraph for deliveries and services for which no acceptance procedure is provided by law. WeLean may also require the customer to declare partial acceptance for definable parts of the performance. By means of a partial acceptance, the customer declares its agreement with the respective performance result. In the case of the overall acceptance, it shall only be checked whether the subject matter of the accepted partial area functions in interaction with the subject matter of the other project areas. Partial acceptances that have already taken place remain unaffected by the success of the final acceptance.