ToS / Disclaimer
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General Terms and Conditions of CWC Solutions | Bleichner & Hammer GbR
(hereinafter referred to as CWC Solutions).
§ 1 Validity of the General Terms and Conditions
(1) The following General Terms and Conditions (GTC) shall apply to all current and future contracts with our customers for the supply of equipment, programs, data and services in all contract sections.
(2) When placing an order, our customer accepts the following terms and conditions as binding. CWC Solutions does not accept any conflicting terms and conditions of purchase or other terms and conditions of the customer. Counter-confirmations of the customer with reference to his terms and conditions of business and purchase are hereby objected to. Any other terms and conditions shall only be binding if agreed upon in writing between the customer and CWC Solutions at the time of conclusion of the contract.
§ 2 Offers
(1) Offers of CWC Solutions are non-binding and subject to change. Orders shall only be deemed accepted upon written order confirmation by CWC Solutions.
(2) CWC Solutions reserves the right to make technical and design deviations from descriptions and specifications in catalogs, brochures and written documents as well as design, model and material changes in the course of technical progress or in case of changes in the market situation. The customer may not derive any rights against CWC Solutions from changes or deviations.
§ 3 Copyrights and other industrial property rights
Procedures, computer programs, circuit diagrams and similar documents developed by CWC Solutions are subject to copyright protection. The customer is not entitled to reproduce them, to pass them on to unauthorized third parties or to make them accessible to third parties without the written consent of CWC Solutions. Authorized third parties shall be informed of CWC Solutions‘ copyright by the client. Existing marks, property right notices or proprietary notices of CWC Solutions on the products shall not be removed by the customer. They shall also be included in copies made.
CWC Solutions is and remains the owner of all rights to the products handed over to the customer. This also applies to parts of the products or products derived from them in whole or in part, including the related materials. Even if the customer modifies the products within the contractually permissible scope and combines them with his own products or products of a third party, CWC Solutions shall remain the owner of all rights. The same applies to the acquired hardware.
If third parties claim infringements of property rights on products of CWC Solutions, CWC Solutions shall be entitled to carry out the necessary modifications at the customer’s premises at its own expense. The customer may not derive any further contractual rights therefrom. The customer undertakes to immediately send a written notification to CWC Solutions if the infringement of industrial property rights and copyrights is claimed by third parties.
The customer shall be liable to CWC Solutions for all damages resulting from the violation of the aforementioned obligations of the customer.
§ 4 Deliveries, Delivery Periods, Shipment
(1) Dates and deadlines stated by CWC Solutions are non-binding unless expressly agreed otherwise. The delivery dates shall only apply insofar as CWC Solutions itself receives correct and timely deliveries. Within the framework of the contractual relationship, partial deliveries are permissible if the acceptance of such deliveries is not associated with disproportionate expenses for the customer.
(2) Agreed delivery periods shall commence with the issuance of the order confirmation and shall be deemed to have been met when the goods have left the premises of CWC Solutions or when the customer has been notified that the consignment is ready for delivery. Exceeding the delivery period does not entitle the customer to withdraw from the contract.
The shipment of the goods shall be at the expense and cost of the customer. The shipping risk shall be borne by the customer, unless otherwise agreed in writing with the customer. CWC Solutions is entitled to take out transport insurance, which it considers necessary, with the company commissioned to transport the goods at the expense of the customer.
(3) If the customer does not fulfill his duties to cooperate according to § 9 in time, the performance and delivery periods shall be extended accordingly. If the customer continues to fail to comply with his duties to cooperate despite the setting of a deadline and the threat of termination, CWC Solutions shall be entitled to terminate the contract. CWC Solutions shall then be released from its contractual obligation to perform. In addition, CWC Solutions shall have the right to charge the client for all expenses incurred up to the time of termination.
(4) CWC Solutions shall not be liable for the violation of bindingly agreed deadlines and dates if these delays in delivery and performance have occurred due to force majeure and CWC Solutions is not responsible for them. This includes labor disputes, operational disruptions, official orders, material procurement difficulties, even if they occur at suppliers or among suppliers of CWC Solutions. CWC Solutions shall then be entitled to postpone the performance or delivery by the duration of the impediment plus a reasonable start-up period. In addition, CWC Solutions shall be entitled to withdraw from the contract in whole or in part due to the part of the performance not yet fulfilled.
(5) Delay in performance shall occur if CWC Solutions continues to fail to perform after written request by the customer and after expiration of a grace period of 4 weeks and if CWC Solutions is responsible for this delay. In case of delay, the client may claim compensation for delay in the amount of 0.5% of the order value for each completed week of delay. In total, however, the compensation for delay may not exceed 5 % of the order value. Further claims, in particular claims for damages, are excluded.
§ 5 Terms of Payment
(1) All prices are valid ex CWC Solutions‘ place of business.
(2) Prices do not include the statutory value added tax applicable at the time of the conclusion of the contract. In the case of ongoing services, the VAT rate applicable at the time of invoicing shall apply.
(3) Payment shall be due immediately upon delivery of the goods. Deviating payment periods are to be agreed upon in writing.
(4) Even contrary to other provisions of the client, CWC Solutions may first credit the client’s payments against his oldest debt. If costs or interest have already been incurred, CWC Solutions may set off the payments first against the costs, then against the interest and finally against the main performance.
(5) The client may set off against a claim of CWC Solutions only such counterclaims that are undisputed or have been legally established. The customer may not assert any rights of retention from other contractual relationships with CWC Solutions in this contractual relationship.
(6) Services that arise due to incomplete or incorrect information provided by the customer, costs for special services or costs for unverifiable notices of defects or improper system use shall be borne by the customer. Without express agreement, additional data carriers and other accessories shall be charged separately at the respective list prices.
§ 6 Default of payment
(1) If the customer is in default of payment, CWC Solutions shall be entitled, without prejudice to any other rights, to take back the hardware and software, as well as all further delivered products from the order and to dispose of them otherwise.
(2) From the time of default, CWC Solutions may charge interest in the amount of the interest rate charged by commercial banks for open overdrafts, but at least 5% above the respective discount rate of the EU Central Bank (ECB), plus the respective statutory value added tax. Accruing interest shall be due immediately.
(3) If the client defaults on a payment or if there are concrete indications of an imminent insolvency of the client, CWC Solutions shall be entitled to stop further work on all orders of the client. It may demand immediate advance payment of all claims including bills of exchange and deferred amounts or demand appropriate securities.
§ 7 Retention of title
(1) Services under this contract shall remain the property of CWC Solutions until all claims, including future claims, under this contract and the entire business relationship with the client have been satisfied. This retention of title shall also extend to copies handed over on data carriers or transmitted online and shall also apply to all accompanying materials. If only rights of use to software and design have been granted, the above provision shall apply accordingly to the data carriers handed over.
(2) The Customer may modify, process or otherwise adapt the goods subject to retention of title to its requirements in the ordinary course of business. However, this right shall only apply if the customer is not in default and the license conditions of CWC Solutions do not conflict with this. The goods subject to retention of title may not be sold, pledged or assigned as security.
(3) The customer shall point out the ownership of CWC Solutions if third parties access the goods subject to retention of title, in particular by seizure. CWC Solutions shall then be notified immediately. Judicial, extrajudicial or other costs incurred by such access shall be borne by the customer. The customer shall be fully liable for any damages.
(4) If the customer acts contrary to the contract or defaults on payments, CWC Solutions may take back the goods subject to retention of title at the customer’s expense or, if applicable, demand the assignment of the customer’s claim for return against the third party. The taking back as well as the seizure of the goods subject to retention of title by CWC Solutions shall not constitute a rescission of the contract, subject to the validity of other legal provisions.
(5) If the delivered goods are processed or transformed by the customer, this shall be done for CWC Solutions as manufacturer. However, this shall not result in any obligation for CWC Solutions. If the ownership or co-ownership of CWC Solutions should expire due to combination, it shall be deemed already upon signing of the contract that the ownership or co-ownership of the customer in the combined item shall pass to CWC Solutions on a pro rata basis (invoice value). In this case, the customer shall keep the property or co-property of CWC Solutions free of charge.
(6) Hardware and software delivered for testing and demonstration purposes shall remain the property of CWC Solutions. It may be used by the customer only within the scope of the special agreement with CWC Solutions. This agreement may be limited in time. After expiration of the time-limited right of use, all parts of the hardware and software shall be returned to CWC Solutions at the customer’s expense without being requested to do so.
§ 8 Warranty
(1) According to the state of the art, defects in digital products cannot be completely excluded. The hardware and software supplied shall be free from defects in manufacture and other defects impairing use.
(2) The contractual warranty is limited to 12 months from the date of delivery. Warranty claims against CWC Solutions are only available to the direct customer and are not assignable.
(3) If CWC Solutions hands over products of third parties to the customer, the warranty declarations are part of the present agreement. The customer may then assert claims arising from this warranty declaration also against the third party. A warranty or liability that goes beyond the content of the declaration of this third party is excluded.
(4) As soon as defects occur in the delivered goods, the customer shall notify CWC Solutions immediately with a short description of the defect. The customer has the duty to inspect the delivered goods for obvious defects. Obvious defects and considerable easily visible damages have to be notified in writing within one week from delivery and have to be reported as defects. Pictures of defects are to be communicated as precisely as possible in writing.
(5) CWC Solutions shall remedy the defects within a reasonable period of time. The prerequisite is that the defects are communicated and reproducible. If notified defects cannot be detected during an inspection, the customer shall bear the costs of the inspection. If the defects occurred are due to faulty operation or malfunctions for which CWC Solutions is not responsible, the costs of the inspection shall also be borne by the customer.
(6) If the delivered goods are extended or modified by the customer or a third party, the warranty shall expire. If the customer can prove that the respective modification or extension did not cause or contribute to the defect, the warranty shall remain valid.
(7) Any liability of CWC Solutions for normal wear and tear is excluded. Defects and malfunctions resulting from improper operation, unusual operating conditions or the use of unsuitable operating materials shall exclude any warranty claim.
(8) If rectification and subsequent delivery by CWC Solutions remain unsuccessful, the customer may assert the further rights of the German Civil Code.
(9) The customer’s commercial obligations to give notice of defects and to examine the goods shall remain unaffected by the aforementioned provisions.
§ 9 Liability
(1) CWC Solutions shall be liable for gross negligence and intent. Liability shall be limited to foreseeable damages and up to a maximum of the agreed order amount. Any further liability is excluded. This also applies to consequential damages and loss of data.
CWC Solutions shall be liable without limitation for damages to life, body and health.
(2) CWC Solutions shall only be liable for data reconstruction if the data has been sufficiently up-to-date and completely backed up by the client, i.e. on a daily basis. The reconstruction must be possible with reasonable effort.
§ 10 Customer obligations
(1) The customer undertakes to keep confidential all information about the delivered product as well as pre-contractual and contractual correspondence during the entire period of use and also after its termination. The information shall not be made accessible to any third party. The customer’s employees shall be bound accordingly.
(2) The intellectual property as well as the delivered products shall be protected by the Customer against unauthorized access or access by third parties. This obligation applies to the customer or other contractual partners of the customer and extends to the entire company.
(3) The client shall create all conditions necessary for a proper performance of the contractually agreed service of CWC Solutions. Target concepts, organizational concepts and proposals as well as software shall be formally accepted by the customer immediately after delivery or creation. If the customer uses the products handed over to him or if four weeks have elapsed after handover of the agreed services, as well as hardware and software, without defects having been reported, acceptance shall be deemed to have taken place.
§ 11 Data protection
If personal data are processed within the scope of CWC Solutions‘ activities, CWC Solutions shall comply with applicable data protection law.
§ 12 Assignment of rights
(1) The customer may assign rights arising from the contract to third parties only with the prior consent of CWC Solutions.
(2) A change of the contractual partner on the part of CWC Solutions is permissible. If the obligations have been taken over by a third party, the customer has an extraordinary right of termination. However, this right of termination must be exercised within four weeks after the change of the contractual partner has become known. After expiry of this period, the contractual relationship with the third party shall continue.
§ 13 Assignment of subcontractors
CWC Solutions shall be entitled to assign its obligations and rights under the contract to third parties. It may have all obligations fulfilled by third parties within the scope of the contractual relationship. The client then accepts the service rendered as a service of CWC Solutions.
§ 14 Term of Contract, Termination
The term of the contract shall initially be governed by the individual agreement in the contract. In the absence of such an agreement, either party may terminate the contract in writing with a notice period of 3 months to the end of the quarter.
§ 15 Place of performance, place of jurisdiction
Auerbach i.d.OPf. shall be deemed to be agreed as the place of performance for all contractual services, also vis-à-vis commercial customers within the meaning of the German Commercial Code (HGB).
§ 16 Applicable Law
The export of CWC Solutions goods to non-EU countries requires the written consent of CWC Solutions.
The law of the Federal Republic of Germany shall be deemed agreed upon, even if the customer is not domiciled in the Federal Republic of Germany.
§ 17 General Contractual Provisions
(1) No verbal collateral agreements have been made by the contracting parties. Subsequent supplements or amendments to the concluded agreements must be made in writing. An oral waiver of the written form is excluded.
(2) In the event that one or more of these provisions are invalid, the remaining provisions shall continue to apply and the invalid provision shall be replaced by a provision that comes closest to the economic purpose of the invalid provision and the interests of the parties involved.