General Terms and Conditions for the Use of print:cloud Rendering Service

§1. Scope of application

1. The General Terms and Conditions (hereinafter referred to as "Contract Terms") shall apply to the use of our cloud-based software for the creation of data sheets - hereinafter referred to as "SOFTWARE". The SOFTWARE shall be made available to the customer by WERK II in accordance with the following provisions.
   The service description of the SOFTWARE is available here and is part of the GTC.
2. These contractual terms and conditions apply exclusively to entrepreneurs within the meaning of § 14 BGB. An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent profes-sional activity.  
3. Deviating terms and conditions of the customer shall only apply if and to the extent that we expressly acknowledge them in writing. Our silence with regard to such deviating terms and condi-tions shall not be deemed to be acceptance or consent, not even in the case of future contracts. Our contractual terms and conditions shall apply instead of any purchasing terms and conditions of the customer even if, according to these, the acceptance of the order is provided for as uncondi-tional acceptance of the purchasing terms and conditions, or we deliver after the customer has pointed out the validity of his general purchasing terms and conditions, unless we have expressly waived the validity of our contractual terms and conditions. 5By accepting our order confirmation, the customer expressly acknowledges that he waives his legal objection derived from his own terms and conditions of purchase.

§2. Subject matter of the contract / conclusion of the contract

1. The object of the contract concluded with the customer is the providing of the SOFTWARE, for the use of its functionalities, the technical enabling of the use of the SOFTWARE by means of an access software hereinafter: ACCESS SOFTWARE) and the granting or mediation of rights of use to the provision of the SOFTWARE, the technical enabling of the use of the software by means of ac-cess software (hereinafter: ACCESS SOFTWARE) and the granting or procurement of rights of use to the SOFTWARE  by WERK II vis-à-vis the customer against payment of the agreed fee.
2. Offers made by WERK II are invitations to the customer to place orders and are made without engagement unless they are expressly marked as binding or contain binding commitments.  A con-tract shall only be concluded - also in current business transactions - if we confirm the customer's order in writing or text form (i.e. also by fax or e-mail). In the event of immediate performance, our confirmation may be replaced by our invoice.

§3. Providing of the SOFTWARE

1. WERK II shall make the SOFTWARE available for use in the respective current version as of the conclusion of the contract in accordance with the following provisions.
2. WERK II shall be liable for the fact that the SOFTWARE provided
   • is suitable for the purposes resulting from the Service Description,
   • in particular, is free of viruses and similar malware which would render the SOFTWARE unsui-table for use in accordance with the contract.
3. WERK II shall ensure that the SOFTWARE always corresponds to the proven state of the art.
   
   If and insofar as the provision of a new version or a change is accompanied by a change in function-alities of the SOFTWARE, work processes of the customer supported by the SOFTWARE and/or re-strictions in the usability of previously generated data, WERK II shall notify the customer thereof in writing at least six weeks before such a change takes effect. If the customer does not object to the change in writing within a period of two weeks from receipt of the change notification, the change shall become part of the contract. WERK II shall draw the customer's attention to the aforemen-tioned deadline and the legal consequences of its expiry in the event of failure to exercise the op-tion to object whenever changes are announced.
4. The SOFTWARE shall be backed up on the SERVER on a regular basis, at least every calendar day. The Customer shall be responsible for compliance with retention periods under commercial and tax law.
5. The transfer point for the SOFTWARE and the CUSTOMER DATA is the router exit of the com-puter centre of WERK II.
6. WERK II shall not be responsible for the quality of the required hardware and software on the part of the customer as well as for the telecommunication connection between the customer and WERK II up to the transfer point.

§4. ACCESS SOFTWARE

The  SOFTWARE  is accessed via an Application Programming Interface (API). The Transmission of Data is secured by an SSL encrypted connection and validated by using the OAuth2 authentification standard.

§5. Technical availability of the SOFTWARE / unavailability

1. WERK II owes the availability of the SOFTWARE at the delivery point with the following excep-tions. The contractual partners understand availability to mean the technical usability of the SOFT-WARE at the delivery point for use by the customer.
2. The customer expressly acknowledges that due to the special features of the Internet a perma-nent availability of the SOFTWARE cannot be guaranteed.
3. WERK II is entitled to maintain the SOFTWARE, to carry out data backups or other work. Planned unavailabilities shall be communicated to the customer in due time in advance.
4. If and to the extent that the customer can use the SOFTWARE in times of planned unavailability, there is no legal claim to this. If the use of a SOFTWARE in times of planned unavailability results in a reduction or discontinuation of performance, the customer shall have no claim to liability for de-fects or damages.

§6. Liability and warranty

1. WERK II shall only be liable for damages, insofar as intent or gross negligence can be proven against it, in accordance with the statutory provisions; however, WERK II shall only be liable for gross negligence up to the amount of the agreed remuneration. Unless otherwise provided for in these Terms and Conditions, claims for damages and reimbursement of expenses of the CLIENT, irrespective of the legal ground, due to the breach of duties arising from this obligation or from tort are excluded.
   This does not apply insofar as liability is assumed as follows:
   
   a) according to the statutory mandatory liability provisions, the Product Liability Act;
   
   b) in the event of malice and intent;
   
   c) in the event of gross negligence on the part of owners, legal representatives or executive em-ployees;
   
   d) in the event of non-compliance with a guarantee or assumption of a procurement risk in accord-ance with § 276 BGB;
   
   e) in the event of culpable injury to life, limb or health
   
   f) for the culpable breach of essential contractual obligations. Material contractual obligations are those contractual obligations the fulfilment of which is a prerequisite for the
   proper performance of the contract and on the observance of which the Licensee may rely.
   
   However, the customer's claim for damages and reimbursement of expenses due to the breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract, unless one of the cases of letters a)-d) applies.
   
   In the event of negligent breaches of duty by WERK II or its vicarious agents, liability shall be limited to € 10,000 insofar as this amount covers the foreseeable damage typical of the contract. This does not apply in the cases according to lit. a)-d) above.
   
   In the event of data loss, the Licensor's liability shall be limited to the effort required to restore the lost data on the Licensee's system using existing backup copies. The Licensee is obliged to back up its data regularly and to the extent required, e.g. by making backup copies.
   
   A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
   
   The objection of contributory negligence remains unaffected by the above provisions.

2. WARRANTY

   In case of warranty, the improvement shall have priority over a price reduction or rescission. In the event of a justified notice of defects, the defects shall be remedied within a reasonable period of time, whereby the Client shall give WERK II the opportunity to take all measures necessary to ex-amine and remedy the defects.
   The provisions on warranty shall also apply to claims under a right of recourse, claims for damages or claims based on any legal ground on which warranty claims are usually asserted, such as in partic-ular damage caused by defects.
   Furthermore, WERK II does not assume any warranty for defects, failures or damages resulting from improper use, modified components of the operating system, interface or parameters, im-proper use of organisational means and data carriers (as far as these are prescribed), abnormal operating conditions (in particular deviations from the installation and storage conditions) as well as transport damages.
   WERK II shall not assume any warranty for programmes that have been subsequently modified by programmers of the CLIENT or by third parties.
   Insofar as the limitations of warranty and liability violate mandatory statutory provisions, the war-ranties and liability of WERK II shall in any case be limited to the extent permitted by law.
   

    

    

§7. Rights of use of the SOFTWARE, rights of WERK II in case of exceeding the rights of use

1. Rights of use to the SOFTWARE
   
   (a) The customer receives simple (non-sublicensable and non-transferable) rights of use to the SOFTWARE, limited to the term of this agreement, in accordance with the following provisions.
   
   (b) The SOFTWARE is not physically transferred to the customer. The customer may only use the SOFTWARE for its own business activities by its own personnel.
   
   (c) The customer is not entitled to any rights not expressly granted to the customer above. In par-ticular, the customer is not entitled to use the SOFTWARE beyond the agreed use or to have it used by third parties or to make the SOFTWARE accessible to third parties. In particular, it is not permit-ted to reproduce the SOFTWARE, to sell it or to make it available for a limited period of time, in par-ticular not to rent or lend it.
   
   
2. Violation of the provisions under para. 1 by the customer
   
   (a) If the Customer violates the provisions in Paragraph 1 for reasons for which the Customer is responsible, WERK II may block the Customer's access to the SOFTWARE or the CUSTOMER DATA if the violation can be demonstrably remedied thereby.
   
   (b) If the customer unlawfully violates para. 1 lit. b, WERK II is entitled to delete the data affected thereby. In the event of an unlawful violation by the user, the customer shall, upon request, im-mediately provide WERK II with all information necessary for the assertion of claims against the user, in particular the name and address of the user.
   
   If the customer continues to violate or repeatedly violates the provisions in para. 1 despite a corre-sponding written warning from WERK II and if he is responsible for this, WERK II may terminate the contract extraordinarily without observing a notice period.
   
   (c) WERK II shall not be liable for an infringement of third party rights by the Customer, if and to the extent that such infringement results from a transgression of the rights of use granted under this Agreement. In this case the customer shall indemnify WERK II upon first request against all claims of third parties.
   
   
3. Third party rights
   
   The CUSTOMER is exclusively responsible for the fact that he possesses copyrighted rights of use to works of third parties which he uses in connection with the SOFTWARE. The CUSTOMER shall in-demnify WERK II against all claims of third parties which they raise against WERK II for infringement of their rights.  

§8. Remuneration

The customer shall pay WERK II the remuneration stated in the order.

§9. Duties and obligations of the customer

The customer is subject to the following obligations.
He will:

1. keep the access authorisations and authentication safeguards assigned to him/her secret, protect them from access by third parties and not pass them on to unauthorised users. This data shall be protected by appropriate and customary measures. The customer shall immedi-ately inform WERK II if it is suspected that access data might have become known to unauthor-ised persons;
2. comply with the restrictions/obligations with regard to the rights of use pursuant to § 7, in particular.
   
   (a) not to retrieve or cause to be retrieved any information or data without authorisation or to interfere or cause to be interfered with any     programmes operated by WERK II or to penetrate or promote such penetration of WERK II's data networks without authori-sation.
   
   (b) indemnifies WERK II against claims of third parties which are based on an illegal use of the SOFTWARE by him or which result from data protection, copyright or other legal disputes caused by the customer which are connected with the use of the SOFTWARE;
3. obtain the required consent of the respective data subject in accordance with Section 10 (1), insofar as he/she collects, processes or uses personal data when using the SOFTWARE and no legal grounds for permission apply;
4. before sending data and information to WERK II, check them for viruses and use state-of-the-art virus protection programs;
5. if he transmits data for the generation of CUSTOMER DATA with the aid of the SOFTWARE  he will back them up regularly and in accordance with the importance of the data and make his own back-up copies in order to enable the reconstruction of the data and information in the event of loss;

§10. Data protection

If the customer collects, processes or uses personal data, it warrants that it is entitled to do so in accordance with the applicable provisions, in particular the provisions of data protection law, and shall indemnify WERK II against claims of third parties in the event of a breach.

§11. Secrecy

1. Information to be treated confidentially is [only] the information expressly designated as confi-dential by the contracting party providing the information and such information whose confidential-ity clearly results from the circumstances of the transfer. In particular, the SOFTWARE DATA shall be treated confidentially by WERK II if it becomes aware of them.
   
   No information is to be treated as confidential insofar as the contracting party receiving the infor-mation proves that it is
   
   • were known to him or generally accessible before the date of receipt;
   • were known or generally accessible to the public before the date of receipt;
   • became known or generally accessible to the public after the date of receipt without the in-formation-receiving contracting party being responsible for this.
2. The contracting parties shall keep confidential all confidential information that has come to their knowledge within the scope of this contractual relationship and shall only use it vis-à-vis third par-ties - for whatever purpose - with the prior written consent of the respective other contracting party.
3. Public declarations of cooperation by the contracting parties shall only be made by prior mutual agreement.
4. The obligations under subsection 2 shall continue to exist for an indefinite period of time be-yond the end of the contract and for as long as an exceptional circumstance under subsection 1 is not proven.

§12. Term, Termination

1. The contractual relationship begins with the conclusion of the contract and is concluded for an indefinite period.
2. The contractual relationship may be terminated by either contracting party in writing with a no-tice period of hree (3) month until end of month
3. Extraordinary termination due to or in connection with a breach of duty is only possible after a prior written warning with a reasonable deadline of not less than 5 working days.
4. Notwithstanding the provision in para. 3, WERK II may terminate the contract without notice if the customer is in default of payment of the prices or a not insignificant part of the prices for two consecutive months or, in a period extending over more than two months, in default of payment of the fee in an amount equal to the fee for two months.

§13. Force majeure

Neither of the contracting parties shall be obliged to fulfil the contractual obligations in the event of and for the duration of force majeure. In particular, the following circumstances shall be considered as force majeure in this sense:

• fire/explosion/flood for which the contracting party is not responsible,
• War, mutiny, blockade, embargo,
• industrial dispute lasting more than 6 weeks and not culpably brought about by the contractual partner,
• technical problems of the internet which cannot be influenced by a contractual partner; this shall not apply if and insofar as WERK II also offers the telecommunication service.
  Each contracting party shall immediately notify the other in writing of the occurrence of a case of force majeure.

§14. Final Provisions

The contractual relationship shall be governed by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Both parties agree that the place of jurisdiction for all disputes arising from this contract shall be the courts having jurisdiction for the registered office of WERK II.

The possible invalidity of individual provisions of this contract shall not affect the validity of the re-maining content of the contract.

Duisburg, 01.02.2023