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General Terms and Conditions of Delivery of Wingfield GmbH
Hanover (“WINGFIELD”) Status 06/2021
A. General conditions
B. Special conditions for
I. Sale of hardware & provision of software
II. the maintenance and care of hardware & software
Preliminary remarks
WINGFIELD is a sports technology company that makes match and performance analysis accessible to the broader amateur tennis community through a proprietary system that turns every tennis court in the world into a digital playing field. All that is needed is the Wingfield Box - an installation consisting of two cameras and a processing unit. Based on artificial intelligence and innovative image processing software, WINGFIELD is able to track and evaluate tennis matches. The “Wingfield Court” product consists of three components:
1. Hardware, consisting of Wingfield Box, processor unit, IP camera (“Hardware”),
2. software responsible for the collection of analysis data based on image processing algorithms, installed on the processing unit located in the Wingfield Box (“Tracking Software” or “Software”),
3. Wingfield App - the users of a Wingfield Court (players, coaches) interact exclusively via the Wingfield App (from check-in on the court to viewing the data) and use the system via a free app on their mobile devices. The customers are clubs, private facilities, tennis schools and associations that want to equip their tennis courts with a Wingfield Court.
A. General conditions
1. Scope
1.1. The following General Terms and Conditions of Business (“Terms and Conditions”) govern the legal relationships between WINGFIELD GmbH (“WINGFIELD”) and its customers (“Customer”) with regard to the sale of hardware and the provision of software as well as the associated documentation or product description (together “Deliverables”) as well as the maintenance and care of hardware and software and other services, including training, consulting, customisation programming and installation services (together also “Contractual Deliverables and Services”).
1.2. The contractual deliveries and services of WINGFIELD are made exclusively on the basis of these terms and conditions, unless expressly agreed otherwise between WINGFIELD and the customer in individual cases. WINGFIELD does not recognise the customer’s general terms and conditions of business or purchase, even if WINGFIELD does not expressly object to them.
1.3. These terms and conditions apply to all current and future business relationships between WINGFIELD and the customer. However, these terms and conditions do not apply to consumers as defined by § 13 BGB (German Civil Code).
2. Offers, orders
Unless expressly stated otherwise by WINGFIELD, all offers made by WINGFIELD for contractual deliveries and services are subject to change and are non-binding.
2.1. Unless expressly stated otherwise by WINGFIELD, all offers made by WINGFIELD for contractual deliveries and services are subject to change and are non-binding.
2.2. Deliveries and services between WINGFIELD and the customer come about through a written order or in electronic form (in particular email) from the customer on the basis of offers from WINGFIELD and a subsequent written or electronic declaration of acceptance (“order confirmation”) from WINGFIELD (the relevant document is also referred to below as the “contract”).
3. Dates, Deadlines, Delay and Impossibility for Deliveries and Services
3.1. Unless otherwise agreed between the contracting parties, the deadlines and dates contained in the contract are standard deadlines and dates without fixed debt character.
3.2. Compliance with deadlines and dates for contractual deliveries and services requires the timely receipt of all documents to be provided by the customer, necessary approvals, releases and compliance with the agreed payment terms and other obligations by the customer. If these prerequisites are not met, the performance period shall be extended accordingly.
3.3. Claims of the customer against WINGFIELD due to delay or impossibility of the contractual deliveries and services are excluded if contractually agreed deadlines and dates are not met due to circumstances or the contractual delivery or service is cancelled due to circumstances for which WINGFIELD is not responsible. This applies in particular in the event of force majeure (cf. Clause A.7.).
3.4. Except in the case of the agreement of fixed dates or in the case of unjustified refusal of performance, WINGFIELD shall only be in default with the contractual delivery or performance if the customer has sent WINGFIELD a reminder for the failure to meet the deadline and has set a reasonable deadline for the performance of the contractual delivery or performance.
4. Subcontractor
WINGFIELD carries out the contractual deliveries and services itself or through the involvement of affiliated companies or third parties as subcontractors. If WINGFIELD engages affiliated companies or third parties as subcontractors, WINGFIELD shall be liable for their activities in accordance with these Terms and Conditions to the same extent as for its own conduct.
5. General obligations of the customer to cooperate and provide information
5.1 The customer has informed himself about the essential functional features of the contractual deliveries and services and bears the risk as to whether these correspond to his wishes and needs; he has sought advice on questions of doubt from employees of WINGFIELD or from expert third parties before concluding the contract.
5.2. The Customer shall be solely responsible for setting up a functional - and also sufficiently dimensioned taking into account the additional load caused by the contractual deliveries and services - hardware and software environment for the delivery items. This includes in particular the following requirements for each place on which a Wingfield Box is to be installed:
5.2.1. Power cable laid on the side where the Wingfield Box is to be installed.
5.2.2. LAN cable laid on the side where the Wingfield Box is to be installed, which allows a data transmission rate of 10 mbit/s. in upload.
5.3. The customer shall thoroughly test the contractual deliveries and services for freedom from defects and for usability in the existing hardware and software configuration before they are used. This also applies to software which he receives within the scope of the warranty and maintenance.
5.4. The customer shall observe the instructions given by WINGFIELD for the installation and operation of the contractual deliveries and services. These are in particular:
5.4.1. Alignment of the IP camera
The IP camera included in the scope of delivery of the hardware must be aligned exclusively to the pitch and must cover as few areas as possible outside the pitch. The customer shall indemnify WINGFIELD for any data protection violations resulting from misalignment of the IP camera.
The IP camera included in the scope of delivery of the hardware must be aligned exclusively to the pitch and must cover as few areas as possible outside the pitch. The customer shall indemnify WINGFIELD for any data protection violations resulting from misalignment of the IP camera.
5.4.2. Placement of the signs
Any areas that are covered by the cameras of the Wingfield Court System must be marked by the installation of signs. WINGFIELD will provide sufficient signs for equipped courts.
5.5. Insofar as WINGFIELD is responsible for further performance obligations in addition to the provision of the contractual deliveries and services, the customer shall cooperate in this to the necessary extent free of charge, e.g. by providing employees, work rooms, hardware and software, data and telecommunications equipment.
5.6. The customer grants WINGFIELD the following rights for troubleshooting and access to the contractual deliveries and services, at the customer’s choice directly and/or by means of remote data transmission.
5.7. The customer shall take reasonable precautions in the event that the contractual deliveries and services do not work properly in whole or in part (e.g. by checking the alignment of the IP camera, fault diagnosis, regular checking of the power supply and LAN connection).
5.8. The customer shall bear any disadvantages and additional costs arising from a breach of these obligations.
6. Remuneration, terms of payment
6.1. The prices are net prices, unless expressly stated otherwise; in the case of deliveries, the customer shall be invoiced separately for transport or shipping costs and individual packaging, including statutory sales tax at the rate applicable at the time.
6.2. Travel costs and expenses shall be reimbursed separately.
6.3. Unless otherwise agreed in the respective contract or the following special conditions, invoices shall be issued within fourteen days.
(14) days after receipt of the invoice by the customer.
6.4. In the event of default in payment by the customer, WINGFIELD is entitled to demand interest on arrears in the amount provided by law.
6.5. The customer is only entitled to use the contractual deliveries and services beyond the contractually granted rights of use with the prior written consent of WINGFIELD. The customer may charge additional usage or booking fees for the use of a tennis court equipped with the Wingfield Court System.
6.6. All prices are subject to the applicable statutory value added tax.
6.7. Offsetting by the customer is only permitted with undisputed or legally established claims. The customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
7. Force majeure
As long as WINGFIELD (i) waits for the customer’s cooperation or information or (ii) is hindered in its performance by strikes or lock-outs in third-party companies or in WINGFIELD’s company (in the latter case, however, only if the industrial action is lawful), official intervention, legal prohibitions or other circumstances beyond its control (“force majeure”), If WINGFIELD is hindered in its performance due to strikes, lockouts in third party companies or in the company of WINGFIELD (in the latter case, however, only if the industrial action is lawful), official intervention, legal prohibitions or other circumstances for which WINGFIELD is not responsible (“force majeure”), the delivery and performance periods shall be deemed to be extended by the duration of the hindrance and by a reasonable start-up time after the end of the hindrance (“downtime”) and there shall be no breach of duty for the duration of the downtime. WINGFIELD shall inform the customer of such hindrances and their expected duration without delay. If the force majeure lasts uninterruptedly for more than 3 months, both parties shall be released from their performance obligations.
8. Secrecy and data protection
8.1. The contracting parties undertake to treat all knowledge of confidential information and trade secrets (“Confidential Information”) of the respective other contracting party obtained in the course of the initiation and performance of the contract as confidential for an unlimited period of time and to use it only for the purposes of the performance of the respective contract. The contracting parties shall only make Confidential Information available to employees and other third parties to the extent that this is necessary for the performance of the respective contract. They shall instruct all persons to whom they grant access to the Confidential Information about the obligation to maintain secrecy and shall oblige these persons in writing to maintain secrecy and to use the Confidential Information only to the extent set out in Clause A.8.1, unless the persons concerned are obliged to maintain secrecy at least to the aforementioned extent for other legal reasons.
8.2. The foregoing obligations shall not apply to Confidential Information that is
(i) were already evident or known to the other contracting party at the time of their transmission by the contracting party;
(ii) have become apparent after their transmission by the contracting party through no fault of the other contracting party;
(iii) have been made accessible to the other contracting party by a third party in a non-illegal manner and without restriction with regard to secrecy or exploitation after their transmission by the contracting party;
(iv) which have been developed independently by one contracting party without using the Confidential Information of the other contracting party;
(v) which must be published in accordance with the law, an official order or a court decision - provided that the publishing contracting party informs the contracting party thereof without delay and supports the contracting party in the defence against such orders or decisions; or
(vi) insofar as the contractual partner is permitted to use or disclose the Confidential Information on the basis of mandatory statutory provisions or on the basis of the respective contract.
8.3. The confidentiality obligations pursuant to this Clause A.8. shall continue to exist beyond a termination or reversal of the respective contract as long as and to the extent that, with regard to the respective information, one of the conditions set out in A.8.3. has occurred.
8.4. The parties shall comply with the statutory provisions of data protection. Insofar as WINGFIELD also collects, processes or uses personal data of the customer within the scope of the contract by way of commissioned data processing bound by instructions, the parties shall conclude an agreement on commissioned data processing.
8.5. The Customer expressly agrees to be listed with full name and address in the Wingfield Court Finder in the Wingfield App or on the Wingfield website to help users find Wingfield Courts.
9. End of the right of use
In all cases of termination of his right of use (e.g. through withdrawal, subsequent delivery), the customer shall immediately surrender all deliveries and services that are the subject matter of the contract and delete all copies, unless he is legally obliged to retain them for a longer period. is. The customer shall assure WINGFIELD in writing of the completion of the order.
10. Retention of title
10.1. WINGFIELD retains ownership of the contractual deliveries and services until full payment of all claims existing at the time of delivery or arising later from the contractual relationship.
10.2. In the event of payment arrears on the part of the customer for which WINGFIELD is responsible, the assertion of the reservation of title by WINGFIELD shall not be deemed to be a withdrawal from the contract unless WINGFIELD expressly informs the customer of this. If WINGFIELD asserts its retention of title, the customer’s right to resell the contractual deliveries and services shall expire.
10.3. If WINGFIELD asserts its retention of title, the customer’s right to further use the contractual deliveries and services shall expire.
11. Final provisions
11.1. The exclusive place of performance is - subject to special agreements in the contract - the registered office of WINGFIELD.
11.2. The customer is entitled to publish and use the name of WINGFIELD and a description of the contractual deliveries and services in press releases and in other marketing materials. WINGFIELD may refuse consent in the event of inappropriate use.
11.3. Amendments or supplements to the respective contract or these terms and conditions must be made in writing to be effective. The same applies to the waiver of this written form requirement.
11.4. The respective contract and these terms and conditions shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
11.5. The exclusive place of jurisdiction for all disputes arising from or in connection with the respective contract is the place of business of WINGFIELD if the customer is a merchant, a legal entity under public law or a special fund under public law. If WINGFIELD brings an action, it is also entitled to choose the place of jurisdiction at the customer’s place of business. The right of the parties to seek interim legal protection before the courts having jurisdiction according to the statutory provisions remains unaffected.
11.6. Should individual provisions of the contract or these terms and conditions be or become invalid or unenforceable, the validity of the contract or these terms and conditions shall not be affected thereby. The invalid or unenforceable provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid or unenforceable provision. The same shall apply in the event that the parties subsequently determine that the contract or the terms and conditions are incomplete.
B. Special conditions for
I. Sale of hardware & use of tracking software
1. Subject of the contract
1.1. The customer acquires from WINGFIELD the hardware specified in the contract with the associated tracking software and the associated documentation or product description (together “delivery items”) under the conditions regulated herein.
1.2. The source code of the tracking software is not part of the delivery.
1.3. The performance description contained in the documentation or product description (also in audiovisual form) is conclusively decisive for the quality of the delivery items supplied by WINGFIELD. WINGFIELD does not owe any further quality of the delivery items. In particular, the customer cannot derive such an obligation from other representations of the delivery items in public statements or in advertising by WINGFIELD and/or the manufacturer, as well as their employees or sales partners, unless WINGFIELD has expressly confirmed the additional quality in writing. Since the use of the delivery items is dependent on a functioning Internet connection, WINGFIELD cannot always guarantee a specific upload speed or uninterrupted use of the delivery items for technical reasons. Furthermore, the service is temporarily limited if this is necessary with regard to capacity limits, the security or integrity of the servers or for the implementation of technical measures and this serves the proper or improved provision of the services (in particular maintenance work). It is clarified that WINGFIELD GmbH does not owe a certain accuracy of the measurement results in the analysis of the tennis match, as these are also largely dependent on external influences that cannot be influenced, in particular lighting conditions.
1.4. Insofar as employees of WINGFIELD give guarantees before conclusion of the contract, these are only effective if they are confirmed in writing by the management of WINGFIELD.
1.5. Set-up, installation, or preparation of the technical readiness for operation are the subject of the respective contract and can either be carried out independently by the customer based on instructions or by WINGFIELD against an installation fee agreed in the contract.
2. Scope of use of the software
2.1. WINGFIELD grants the customer - subject to payment of the remuneration specified in the contract - a simple right to use the software for an unlimited period of time to the extent specified herein or in the contract (individual licence per Wingfield Box, hereinafter “software licence”). A Software License is required for the functionality of the Wingfield Court. In the event of non-renewal of the Software Licence, the Customer shall not be entitled to a functioning Wingfield Court.
2.2. The Client may only use the tracking software in conjunction with the hardware and software provided to it.
2.3. The Customer may only use the Tracking Software for the operation of a Wingfield Court, unless otherwise provided for in the Contract.
3. Duplications, changes
3.1. Duplications of the tracking software are not permitted. The Client may not make backup copies of the tracking software.
3.2. The customer is not authorised to make changes, extensions or other modifications to the tracking software. Any errors in the tracking software are to be remedied exclusively by WINGFIELD.
3.3. If WINGFIELD provides the customer with supplements (e.g. patches, supplements to the documentation) or a new edition of the software (e.g. update, upgrade) that replaces previously provided software (“legacy software”) within the scope of rectification or maintenance, these shall be subject to the provisions of these Terms of Use. If WINGFIELD makes a new version of the software available, the customer’s rights under these terms of use expire with regard to the old software as soon as the customer uses the new software productively, even without an express request by WINGFIELD to return the software.
3.4. Duplication or reworking of the documentation is not permitted.
4. Software protection
4.1. Insofar as the customer is not expressly granted rights in accordance with these terms and conditions or the contract, WINGFIELD shall be exclusively entitled to all rights to the software provided, copyright, rights to inventions and technical property rights. This also applies to adaptations of the software by WINGFIELD.
4.2. The customer is not permitted to change or remove copyright notices, marks and/or control numbers or control marks of WINGFIELD.
5. Passing on the software
Subject to other provisions in the contract, the customer may not transfer the software provided to a third party.
6. Delivery and performance time
6.1. Unless otherwise agreed, the software shall be delivered in the version current at the time of delivery.
6.2. WINGFIELD effects the delivery of software by making the software available on the processor unit located in the Wingfield Box.
6.3. The customer shall install and configure the hardware upon receipt or have the installation/configuration carried out by WINGFIELD (Clause B.I.1.5.). It is the responsibility of the customer to ensure that the system environment required for this is available in accordance with WINGFIELD’s guidelines (Clause A.5.2.).
6.4. The time at which WINGFIELD hands over the delivery items to the carrier is decisive for compliance with delivery dates and the transfer of risk in the case of physical shipment; in the case of software, the time at which the software is made available for retrieval is decisive.
7. Defects of quality and title, other defects in performance, limitation period
7.1. WINGFIELD warrants the agreed quality of the delivery items in accordance with Clause B.I.1.3. and that the use of the delivery items by the customer to the extent stipulated in the contract does not conflict with any rights of third parties.
7.2. In the event of material defects, WINGFIELD shall initially provide warranty by means of subsequent performance. For this purpose, it shall, at its discretion, provide the customer with a new, defect-free delivery item or rectify the defect; rectification of the defect shall also be deemed to be if WINGFIELD shows the customer reasonable possibilities of avoiding the effects of the defect.
7.3. If a third party claims the infringement of property rights against the customer due to the use of the delivery items, the customer shall inform WINGFIELD of this immediately and leave the defence against these claims to WINGFIELD as far as possible. In doing so, the customer will provide WINGFIELD with all reasonable support. In particular, the customer shall provide all necessary information on the use and possible processing of the delivery items, if possible in writing, and provide the necessary documentation. If it is legally established that the delivery items infringe the industrial property rights of third parties, WINGFIELD may, at its discretion, remedy the infringement by
(i) obtains a right of use sufficient for the purposes of the contract from the person entitled to dispose of the property right for the benefit of the customer, or
(ii) modifies the infringing delivery items without or only with acceptable effects on their function for the customer, or
(iii) exchanges the delivery items infringing the property rights without or only with effects acceptable to the customer on their function for delivery items whose contractual use does not infringe any property rights, or
(iv) supplies a new software version, the use of which in accordance with the contract does not infringe any thirdparty property rights.
7.4. The customer is obliged to adopt a new software version if the contractual scope of functions is maintained and the adoption does not lead to significant disadvantages.
7.5. If two attempts at subsequent performance fail, the customer shall be entitled to set a reasonable period of grace for the rectification of defects. In doing so, he must expressly point out in writing that he reserves the right to withdraw from the contract and/or demand compensation in the event of renewed failure. If the subsequent order also fails within the grace period, the customer may reduce the remuneration or withdraw from the contract. Withdrawal is not permissible in the case of an insignificant defect. WINGFIELD will pay compensation or reimbursement of futile expenses due to a defect within the limits set out in Clause B.I.8. After the expiry of a deadline set in accordance with sentence 1, WINGFIELD can demand that the customer exercise his rights resulting from the expiry of the deadline within two weeks after receipt of the request.
exercised.
7.6. The customer can only derive rights from other breaches of duty by WINGFIELD if he has notified WINGFIELD of these in writing and has granted WINGFIELD a period of grace to remedy the situation. This does not apply if a remedy is not possible due to the nature of the breach of duty. The limits set out in section B.I.8. apply to compensation for damages or futile expenses.
7.7. The limitation period for all warranty claims is based on the statutory framework conditions, unless otherwise contractually agreed. In the event of intent or gross negligence on the part of WINGFIELD in the case of fraudulent concealment of the defect, in the case of personal injury or defects of title within the meaning of § 438 Para. 1 No. 1 a BGB (German Civil Code), as well as in the case of guarantees (§ 444 BGB), the statutory limitation periods shall apply, as shall claims under the Product Liability Act.
8. Liability
8.1. In all cases of contractual and non-contractual liability, WINGFIELD shall pay damages exclusively in accordance with the following limits:
(i) in the event of intent and gross negligence in the full amount, as well as in the absence of a quality for which WINGFIELD has assumed a guarantee;
(ii) in other cases: only for breach of a material contractual obligation (“cardinal obligation”), if the purpose of the contract is thereby jeopardised, but always only to the extent of the foreseeable damage. Liability for other consequential damage and loss of profit is excluded. For a single case of damage, the liability per case of damage is limited to the purchase price. The term “cardinal obligation” refers in the abstract to obligations whose fulfilment is essential for the proper performance of the contract and on whose fulfilment the contractual partner may regularly rely.
8.2. The limitations of liability pursuant to clause B.I.8.1. shall not apply in the case of liability for personal injury and in the case of liability under the Product Liability Act.
8.3. WINGFIELD is free to raise the objection of contributory negligence.
8.4. Clause B.I.7.7. shall apply mutatis mutandis to the limitation period, with the proviso that the statutory limitation period shall apply to claims under Clauses B.I.8.1(i) and B.I.8.2. The limitation period pursuant to sentence 1 shall commence at the point in time specified in § 199 section 1 of the German Civil Code (BGB). It shall commence at the latest upon expiry of the maximum periods stipulated in § 199 para. 3 and para. 4 BGB.
II. Maintenance and care of hardware and software
1. Subject of the contract
These special conditions for the maintenance and servicing of hardware and/or software refer to the delivery items listed in the contract with the designation “Wingfield Court” and specify the maintenance and servicing services to be provided by WINGFIELD. Additional services and delivery items (e.g. installation accessories) that are not specified as “Wingfield Court” do not apply in the following regulations.
2. Removal of defects, repair
2.1. A prerequisite for WINGFIELD's obligation to perform under this clause is that the customer has delivered the items to be serviced to
(i) at the place specified in the contract, and
(ii) in the software and hardware environment specified in the contract.
2.2. WINGFIELD shall remedy any defects in the delivery items reported to it within a reasonable period of time.
2.3. If WINGFIELD offers the customer software patches, bug fixes, a new programme version or parts of the programme etc. ("patches") in order to avoid or eliminate defects, these will be applied by means of remote maintenance. ("patches"), these will be installed by means of remote maintenance. A functioning internet connection to the Wingfield Box is required. If the problems cannot be solved via remote maintenance, then the WINGFIELD can be either
(i) send a service employee to the customer's installation,
(ii) request the customer to return the hardware for repair at WINGFIELD's expense.
(iii) or request the customer (if and as soon as it is reasonable for him) to install the patch on his hardware in accordance with WINGFIELD's installation instructions. The elimination of a defect can also take the form of instructions to the customer. The customer must follow such instructions unless this is unreasonable for him. The type and method of remedying the defect are at the reasonable discretion of WINGFIELD.
2.4. If WINGFIELD is unable to rectify a defect within the contractually agreed period, it may temporarily provide the customer with a workaround solution at its own expense, i.e. at WINGFIELD's expense.
2.5. If a defect in the delivery item reported by the customer does not exist, WINGFIELD shall be entitled to invoice the expenditure caused by this separately in accordance with its usual rates.
3. Maintenance
If the parties have agreed in the contract that WINGFIELD is obliged to maintain the hardware in addition to the repair, the following shall apply:
3.1 The subject of the warranty is work that serves to maintain the functionality of the hardware components mentioned under 3.2. Replaced components become the property of WINGFIELD.
3.2 The "Wingfield Care" warranty extension applies to the main components "Wingfield Box Brain" & "Wingfield Box Body" only. Accessories such as network components or cables are not included.
For example, if Wingfield Care is purchased for 6 years and a defect occurs after 3 years, the following would apply:
Example 1: The touch screen of the "Wingfield Box Brain" fails. The "Wingfield Box Brain" will be replaced free of charge.
Example 2: The "Wingfield Box Brain" no longer has an Internet connection because the cable has a defect. In this case, the customer must replace the cable at his own expense.
4. Hotline
If agreed in the contract, WINGFIELD shall make available for the reporting of defects and for user support at the times agreed in the contract - with the exception of public holidays at the location of WINGFIELD - a telephone hotline is available.
5. Delivery of new program parts
5.1. WINGFIELD will provide the customer with updates/upgrades/ releases ("program parts") of the software. This includes the corresponding supplement or update of the documentation of the software. The classification of the respective software version under the terms "update", "upgrade" and "release" is at the reasonable discretion of WINGFIELD. New program parts can eliminate errors in previous versions and/or change and/or improve existing functions or contain new functions. However, the delivery of new program parts does not include in particular (i) separately offered additional functions of the software; (ii) a new development of the software with the same or similar functions on a different technological basis. These new versions of the software can be acquired against additional remuneration within the framework of separate agreements.
5.2. B.II.2.3. shall apply accordingly to the delivery of program parts.
6. Other services
The customer may separately order the services listed below which are connected with the delivery items but which are not included in the services pursuant to section B.II.2. This applies in particular to:
(i) Services on the delivery items which become necessary due to improper handling and/or breach of obligations by the customer, e.g. non-compliance with instructions for use;
(ii) Services on the software that become necessary due to force majeure or other circumstances for which WINGFIELD is not responsible;
(iii) Adaptations of the delivery items to modified and/or new installations of the customer.
6.1. The customer shall support WINGFIELD in the fulfilment of the maintenance and servicing services at his own expense. He shall in particular
(i) appoint a responsible person during the term of the contract who has all the decision-making powers and authority required for the purposes of implementing the maintenance and servicing contract;
(ii) In the case of defect reports, observe the symptoms that have occurred, the delivery items and the system and hardware environment in detail and report a defect to WINGFIELD, providing information that is useful for rectifying the defect, for example the number of users affected or a description of the system and hardware environment;
(iii) who support WINGFIELD in the search for the cause of the deficiency;
(iv) the employees commissioned by WINGFIELD to perform the contractual services have access to the premises in which the hardware to be serviced is installed;
(v) immediately install the program parts received from WINGFIELD (including patches, bug fixes) according to more detailed instructions from WINGFIELD and comply with the suggestions and instructions for remedying defects sent by WINGFIELD.
6.2. The customer shall provide WINGFIELD with remote access to the hardware at its own expense (including connection costs).
7. Remuneration
7.1. The maintenance and care fee as well as the calculation periods result from the contract.
7.2. WINGFIELD is entitled to adjust the agreed remuneration for deliveries and services. The announcement must be made in writing. An increase becomes effective three months after the announcement. In the event of an increase of more than 5%, the customer is entitled to terminate the deliveries and services in compliance with the contractual notice period.
8. Defects of quality and title, limitation period
8.1. Material defects shall be remedied during the term of the maintenance and servicing contract within the scope of the remedying of defects pursuant to Clause B.II.2.
8.2. A defect of title exists if the customer could not be effectively granted the rights to a maintenance service required for the contractual use. If a third party asserts an infringement of property rights against the customer due to the use of the maintenance services, the customer shall inform WINGFIELD of this immediately and leave the defence against these claims to WINGFIELD as far as possible. In doing so, the customer will provide WINGFIELD with all reasonable support. In particular, the customer shall provide WINGFIELD with all the necessary information about the use and possible modifications of the software in writing if possible and provide WINGFIELD with the necessary documents.
8.3. If WINGFIELD does not succeed in rectifying a material defect and/or defect of title within a reasonable period of time during the term of the contract, the customer is entitled to set WINGFIELD a reasonable period of grace with the warning that, after expiry of this period of grace, the maintenance and servicing fee will be reduced or the maintenance and servicing contract will be terminated in writing without notice. Termination of the entire maintenance and care contract is only permissible in the event of a significant defect. Withdrawal from the maintenance and care contract is excluded.
8.4. Further legal rights of the customer remain unaffected. WINGFIELD shall pay damages or compensation for futile expenses due to a defect within the limits set out in section B.II.8.
8.5. Claims for defective maintenance or servicing services shall become statute-barred within one year of the performance/completion of the respective service. In all other respects, the provisions of Clause B.I.7.7. shall apply accordingly.
8.6. The liability for material defects and defects of title for the maintenance services provided shall expire if the customer or third parties make changes to the delivery items to be maintained or serviced which WINGFIELD has not expressly agreed to in advance. Something else only applies insofar as the customer proves that the defect is not due to the changes and that these have not made the identification and rectification of the defect more difficult.
9. Liability
The provisions of Clause B.I.8. shall apply accordingly to liability.
10. Rights of use
WINGFIELD grants the customer rights of use to the programme parts delivered in fulfilment of the maintenance and servicing contract (including patches, bug fixes and documentation) in accordance with B.I.2.
11. Contract period, termination
11.1. The contract period is specified in the contract.
11.2. The right of use granted to the customer remains unaffected by a termination of the maintenance and service contract.
11.3. The right of each party to extraordinary termination for good cause remains unaffected.
11.4. Notice of termination must be given in writing to be effective.