General Terms and Conditions of WERKBLiQ GmbH
General Terms and Conditions for the use of the WERKBLiQ platform
WERKBLiQ GmbH (hereinafter referred to as “WERKBLiQ” or the “Provider”) shall provide its subscribers (Companies) with a virtual platform for the management of machines and systems via the Internet at www.werkbliq.de. Machines or systems can be mapped using the platform, machine-specific data (e.g. data concerning maintenance, service, spare and wear parts and operating data including data that has been collected automatically) for the respective machine/system can be collected, stored, mapped and shared with third parties, service providers and goods suppliers can contact one another with reference to such machines or systems, and business transactions can be initiated and processed. In addition, subscribers can communicate and cooperate with one another through the platform. As such, the “platform” refers to the totality of central computers (servers), data, databases, computer programs, domain names, mobile applications and websites, which work together to make it possible to access the services offered at www.werkbliq.de .
The following General Terms and Conditions (Ts & Cs) apply to access to all WERKBLiQ services. “WERKBLiQ services” refer to all offers and services which are provided on the Internet, inter alia via an Internet browser at www.werkbliq.de, via mobile applications (“apps”), via web applications including background applications, via integration into third-party websites, via interfaces or via locally installed software, and which make it possible to use individual or multiple functions on the platform available at www.werkbliq.de . These apply regardless of which medium and which service (PC, tablet computer, smartphone, server, interface) is used to access the services.
WERKBLiQ GmbH is the provider of WERKBLiQ services, and is represented by its Managing Director/s. The current business address, registration data and legal representatives are specified in the mandatory information provided by the service provider at www.werkbliq.de/impressum .
These Ts & Cs can be retrieved at any time – including after the conclusion of a licence agreement – under the “Ts & Cs” link which is provided in the footer of the website or in the meta-navigation menu of the respective application together with the link to the “Imprint”.
- Conclusion of contract, registration
- The contract between WERKBLiQ and the subscriber regarding the use of the WERKBLiQ services is concluded upon registration. Use is permitted for registered subscribers only.
- Subscribers may only be companies (section 14 of the German Civil Code (BGB)), in other words natural or legal persons or general partnerships (sections 105 et seqq. of the German Commercial Code (HGB)), acting in the exercise of their commercial or independent professional activity.
- There are two steps to registration on the platform; firstly, entering and saving the subscriber and user information (see 2 below), and secondly, entering the verification code sent in a confirmation email, by means of which the registration process for the subscriber account (one location) is concluded.
- The subscriber shall be responsible for meeting the technical requirements for using the platform (including performance capability, compatibility and up-to-date status of hard drives and software, Internet browsers, compatibility with existing software; performance of the Internet connection; trouble-free operation of data exchange (firewall settings, etc.)). WERKBLiQ shall inform the subscriber of the technical requirements on request prior to the conclusion of the contract.
- Subscribers and users, user administration, data protection
- In the course of registration, the subscriber creates an initial user account (primary user), which has comprehensive rights with regard to the subscriber account (one location), including the right to add additional users and to assign rights to those users for the use of the subscriber account (one location). The user is a natural person who logs onto the platform on behalf of the subscriber using their user name and password, and who uses or maintains their subscriber account (one location). In the case of sole proprietors, the subscriber and the user may be identical. The use of a single user account by multiple natural persons is excluded.
- The user shall affirm that s/he is authorised to conclude contracts on behalf of the subscriber using the WERKBLiQ platform and to disclose company data to the extent necessary for registration. The user shall prove to WERKBLiQ that s/he has power of representation on request.
- The subscriber is obliged to enter all requested company information completely and truthfully, and to keep this information up to date. The provision in section 5 TMG (mandatory information of the service provider) also applies to the corporate identity of the subscriber on the platform.
- WERKBLiQ shall review the information provided by the subscriber during registration in terms of its plausibility. WERKBLiQ may request additional information or supporting documents from the subscriber prior to activation of the subscriber account (one location) in order to verify the information. Nevertheless, WERKBLiQ cannot determine with any certainty whether a registered subscriber is actually the individual s/he claims to be. WERKBLiQ therefore does not guarantee the actual identity of a subscriber. WERKBLiQ cannot verify the identity of the users for whom the respective subscriber has created accounts on the platform; liability for the identity of the user is likewise excluded.
- The subscriber shall be entitled to create or delete additional user accounts within the account. A new user account must be created for each new user. The transfer of an existing user account to a new user is excluded.
- Use the “Invite additional user” to create an additional user. Registration on behalf of a third party as a user (a colleague, employee) is not permitted. The subscriber shall affirm that s/he is entitled to invite the new user.
- The new user must complete the registration process independently, and must personally consent to the use of their personal information. The subscriber must also issue the statement pursuant to 6.3 regarding the granting of rights of use for the content s/he creates.
- The number of users that can be created for a subscriber account (one location) is determined by the details of the service package agreed with the subscriber.
- Data protection, personal information
WERKBLiQ only collects, processes and/or uses personal information if and to the extent that the user has consented to such use, or if and to the extent that this use is permitted under German data protection legislation or corresponding European provisions. WERKBLiQ uses this data solely for the purpose of enabling the subscriber to use the WERKBLiQ services. Under no circumstances will WERKBLiQ provide your personal information to third parties for advertising or marketing purposes or for any reason other than the use of the platform without the consent of the authorised party. All details regarding collection, processing and/or use of personal information are explained in greater detail in the WERKBLiQ privacy statement.
- The subscriber assigns rights with regard to the subscriber account (one location) to the user accounts s/he has created within their subscriber account (one location). The subscriber shall be responsible for instructing/training those users.
- It is in the subscriber’s own interest to ensure that the users of his/her subscriber account (one location) keep the access information to the platform confidential and to ensure that misuse by a third party is excluded. WERKBLiQ stores the password in encrypted form and only retrieves it during the login process.
- The subscriber is required immediately to delete the user accounts of employees who have left or are leaving employment, in order to prevent unauthorised access to the data of the subscriber account (one location). The data entered by the user who has departed shall continue to be available to the subscriber.
- If a user changes from one subscriber on the platform to another, the subscriber to whom the user has switched may request that the user’s data which has been used in evaluating the user’s expert status be assigned to the new user account. There is no right to retain a specific expert status.
- Subject matter of the contract
- Subject matter of the service provided by WERKBLiQ
WERKBLiQ provides its subscribers with use of the WERKBLiQ platform. The platform can be used via a web browser at werkbliq.de and - insofar as this is available – using mobile applications (“apps”), web applications, background applications, via integration into third-party websites, via interfaces or locally installed software. The scope of services associated with the platform includes blogs, forums and a knowledge base, which are linked to the other content on the platform and which users may access using their user account and their alias.
WERKBLiQ is entitled to change the scope of functions on the platform and in particular, to expand these without notice. WERKBLiQ is entitled to limit or remove individual functions with a notice period of no less than six weeks. 15.1 and 15.2 regarding changes to the Ts & Cs shall apply accordingly.
- Hosting location
The location of the server or servers on which the data and software that comprise the platform and the data of the subscribers are stored (hosting location) is in Germany. WERKBLiQ is entitled to move the hosting location to another location within the EU. WERKBLiQ shall inform subscribers in a timely manner in electronic, text or written format prior to moving the hosting location.
- Data security
WERKBLiQ shall take appropriate measures to protect the platform and data against unauthorised access. With regard to the encryption of the platform data, WERKBLiQ shall consistently utilise what it considers to be the most effective and secure encryption technology, taking account of the state of the art, which simultaneously allows the efficient use of the platform. There is no right to a certain type of encryption.
WERKBLiQ is not liable for the integrity of the data (including the subscriber details) that is transferred via the Internet or other computers or telecommunication networks which are not operated or controlled by WERKBLiQ. Moreover, WERKBLiQ shall not be responsible for ensuring that third parties have no access to such data during transmission.
- Accessibility, liability for loss of use, liability for loss of data
- WERKBLiQ shall ensure the availability of WERKBLiQ services and WERKBLiQ servers and of the data paths up to the transfer point to the Internet (backbone) at a level of at least 98% as an annual average. Excepted from this are those times during which the servers cannot be reached via the Internet due to technical issues or other problems beyond the control of WERKBLiQ (force majeure, the fault of third parties, e.g. DDOS attacks, etc.).
- WERKBLiQ shall periodically back up the data stored on the platform in order to secure the subscriber details (complete data backup), and shall do so no less than once a week. The backup cycle can be shortened at the request of the subscriber in respect of its data.
- WERKBLiQ is not liable for the loss of data entered after the last regular backup, or for consequential damages that result from such loss, as long and insofar as the intended backup cycle has been maintained.
- WERKBLiQ is entitled to switch off or disconnect the main computer (server) to perform maintenance. Maintenance shall be carried out in such a way that the impact on subscribers is minimised. Regular or scheduled maintenance shall be carried out at times when usage is at a minimum and notice shall be given in advance if the duration of the maintenance is expected to be substantial.
- WERKBLiQ shall provide subscribers with video instructions (video tutorials) and additional materials to introduce them to the use of the platform. Additional training courses - including distance learning (webinars, etc.) - must be booked and remunerated separately.
- In addition, WERKBLiQ shall provide subscribers and users with community features as part of the platform, such as the ability to create and maintain blogs, a knowledge base, a forum service aimed specifically at sharing knowledge and answering questions and an evaluation system for questions and answers.
- Remuneration, payment conditions
- A fee shall be incurred for the use of the platform and for accessing products via this platform. The type (e.g. monthly user fee, one-time payment, etc.) and amount of the remuneration shall be determined by WERKBLiQ’s current price list.
- WERKBLiQ is entitled to modify the price list at any time with a notice period of no less than four weeks. Notification must be in electronic, text or written format. If the subscriber fails to object or only objects after the next deadline has expired, the price list shall become a component of the contract starting on the date on which it enters into force. If the subscriber objects to the change in the price list within three weeks of notification in electronic, text or written format, this shall also be deemed to constitute ordinary termination of the licence agreement. The contract shall end at the end of the current calendar year, but no sooner than three months after the objection has been declared. The previous price list shall apply in relation to the objection until the end of the contract.
- Claims for remuneration shall be due for payment immediately. Unless otherwise agreed, payment shall be made within seven calendar days of invoicing. The point in time at which WERKBLiQ receives the credit is definitive. The statutory provisions regarding default remain unaffected.
- If the subscriber defaults on payment of an amount that exceeds the monthly usage fee by more than 10 days, or if the subscriber consistently defaults for a period that exceeds 3 months, WERKBLiQ shall be entitled to limit or temporarily block access to the platform until the amount in arrears has been paid in full.
- WERKBLiQ is entitled to send invoices and reminders electronically, in particular via email, and using the internal notification system on the platform. WERKBLiQ may charge a flat reminder fee according to the price list for each justified reminder. Cancellation fees as a result of chargebacks shall be borne by the subscriber.
- Should WERKBLiQ incur any costs in relation to the payment, for example in the form of bank charges caused by the subscriber or other expenses resulting from the delay, those costs shall be borne by the subscriber insofar as the subscriber is responsible for causing them.
- WERKBLiQ is entitled to assign compensation claims from the licence agreement to third parties for collection in its own name or on behalf of WERKBLiQ, and to disclose information about the invoice recipient to the extent required.
- Input, storage, sharing and retrieval of data
- Both automatically generated operating data (e.g. sensor data, status data, error codes, operating periods) and manually generated data (e.g. master data for machines, service protocols, maintenance and repair reports, machine logbook, tool data, CAD programs) about machines can be stored on the WERKBLiQ platform (machine-specific data).
- The subscriber shall affirm that no third-party rights exist for the content that s/he stores or duplicates, distributes and makes available on the WERKBLiQ platform, or affirm that s/he is entitled to use the content. If the subscriber enters data for a third party and/or stores or maintains such data, or makes that data accessible to third parties, the subscriber shall be responsible for obtaining the requisite consent.
- The subscriber is solely responsible for the extent to which s/he makes the data relating to the subscriber account (one location) accessible to users registered on that account (e.g. reading, input, editing, saving, deleting). The subscriber is required to review the visibility of any confidential data for third parties and – if necessary – to make the necessary changes to the settings.
- The subscriber may only duplicate and disclose third-party data to which s/he has access with the consent of said third-party. In cases of doubt, granting access does not constitute consent. No consent is required for the automatic creation of a digital copy of this data in the subscriber account (one location) for collaboration purposes.
- If a copy of a subscriber’s original data is stored in the area of another subscriber for the purposes of collaboration, the owner of the original data shall be responsible for incorporating any changes or additions to the copied data file into the original data file, after a review if necessary, or for approving the incorporation of changes into his/her dataset by third parties.
- The subscriber may only use the WERKBLiQ platform for its intended purpose and to he extent required for retrieving the data of third parties. Completion of an automated query by using scripts, by bypassing the intended search masks and parameters, by using search software or similar measures is not permitted. The user may not use the data obtained by such a query in its entirety or in part to build his/her own database, regardless of the format used. S/he may not use said data for the provision of his/her own commercial service. Linking, integration or other consolidation of the databases or individual elements of the database with other databases or meta-databases is not permitted.
- WERKBLiQ is entitled to process the content of subscribers technically in such a way that said content can be displayed on mobile end devices or software applications of WERKBLiQ or third parties.
- Business and operating secrets
- The parties agree that, in the case of machine-specific data that the operator of the machine/system stores and presents or that is stored and presented on his/her behalf on the WERKBLiQ platform, said data shall be considered business and operating secrets. Additional data (orders/order summaries, invoices/invoice summaries, contacts, etc.) are likewise considered to be business secrets. The parties are obliged to maintain confidentiality. In his/her own interest, the subscriber shall notify the users associated with his/her subscriber account (one location) of this.
- Entry of machine-specific data on the WERKBLiQ platform is only possible with the consent of the system operator. The system operator may demand that data stored or made accessible without its consent be deleted or made inaccessible immediately.
- In the event that the rights of a third party are infringed or insofar as there is any other legal obligation to do so, WERKBLiQ is entitled to disclose the subscriber’s confidential information to the degree required and/or to provide information about the subscriber and/or about the data that s/he has stored and/or used.
- Rights to the data on the platform, database rights, legal succession
- WERKBLiQ has invested in the conceptual design, planning, programming, content and maintenance of the WERKBLiQ platform, which is used for systematic recording of data with reference to individual machines and mechanical equipment and for mapping of such systems and the data pertaining to them. The parties agree that this is a significant investment in terms of its type and scope. WERKBLiQ is therefore considered to be the originator of the database which is created and grows as a result of the input and maintenance of data. Insofar as rights to a database arise from this (sections 87 et seqq. of the German Copyright Act (UrhG)), they belong exclusively to WERKBLiQ. Individual rights that exist or may arise for specific data or specific data records, (e.g. copyrights, design rights, rights of the photographer) and any rights of use remain unaffected by this.
- Insofar as the subscriber enters, updates or supplements data in the corresponding fields or categories on the platform in the course of the platform’s operating life, this data shall become part of WERKBLiQ’s database. The establishment of separate database rights owned by or partially owned by the subscriber is excluded. The establishment of separate (partial) database rights for data which the subscriber enters with reference to a specific system or multiple systems over an extended period of time is likewise excluded.
- WERKBLiQ shall be given non-exclusive rights of use for the reproduction, distribution and public disclosure of all data that the subscriber enters on the platform, including texts, drawings, sketches, photos, slides, audio, video and other media data, without restriction in terms of time and space. WERKBLiQ is entitled to use this data for marketing purposes insofar as the legitimate interests of the subscriber (e.g. confidentiality) are maintained.
- WERKBLiQ is entitled to copy, save, analyse, edit, or filter data entered by a subscriber or on behalf of a subscriber, is entitled to compare said data with that of a third party and evaluate it, in order to be able to make suggestions to the subscriber on how to optimise his/her operations. Moreover, WERKBLiQ is entitled to merge the subscriber’s data in an anonymised format with data that has been entered by other subscribers on the platform, reconfigure, filter, modify, analyse and store said data with the objective of obtaining relevant information with reference to the market for machines, machine parts, consumables, software, CAD files, spare parts and machine-specific services.
- Insofar as exclusive rights to texts, drawings, sketches, photos, slides, audio, video or other media data exist or arise for the person who is an individual user (e.g. service technicians), the subscriber who owns the account in question shall ensure with contractual agreements that s/he is granted the comprehensive and exclusive right to use said data in terms of time and space and for all known types of use. Insofar as copyright has arisen, the user must declare that s/he waives the right to be named as the author.
- If the machine or system is in the (collateral) ownership of a third party, for example a lessor or financial creditor, the operator of the machine or system shall be responsible for obtaining the consent of said third party to the collection, storage or use of the machine-specific data on the platform.
- If the machine or system is sold or otherwise transferred to a third party by way of individual or universal succession, the machine-specific data shall be retained by the machine operator (MB) or with another authorised party (e.g. service technicians), unless agreed otherwise. If agreed, WERKBLiQ shall store a copy of the machine-specific data in the user account belonging to the successor.
- WERKBLiQ is entitled to disclose machine-specific data, in particular operating data, to the manufacturer of the machine in an anonymised format. The owner of the machine may object to the disclosure of the data.
- The subscriber is entitled to delete individual data records in part or in full within the normal course of business. The deletion of a body of data, for example the historical data regarding a machine or the master data for all (or a number) of an operator’s machines, on the other hand, is prohibited unless there is an objective reason for that deletion (the machine(s) is/are being scrapped, etc.).
- Blogs, commentaries or forum posts (contributions) that have been created by one or more user shall remain with the subscriber even after the end of the licence agreement or the deactivation or deletion of the subscriber or user account. At the request of the subscriber or user, these posts may be anonymised. WERKBLiQ may delete individual posts on the request by the user, if there is an objective reason for that deletion.
- The subscriber agrees that his/her services, which are or have been offered, granted or performed via the platform or using the platform, may be reviewed by contractual partners in accordance with the WERKBLiQ evaluation system. The purpose of the review system is to provide a meaningful and accurate profile of a subscriber’s performance, expertise, reliability and trustworthiness. The reviews are visible to all users of the WERKBLiQ platform and are fundamentally not verified by WERKBLiQ.
- As a matter of principle, it is only possible to leave a review once both parties have performed their services in full. If the complete performance fails and if that failure is the fault of one of the parties, the other party shall still be entitled to review the performance.
- The subscribers are obliged to make only factual and truthful statements in the review. Inaccurate, misleading, irrelevant or offensive statements or statements that do not fulfil the purposes of the review as specified under 8.1 are prohibited. A subscriber may not review their own services or arrange for reviews to be provided by third parties.
- User posts in forums and blogs may be reviewed subsequently by other users to indicate whether those posts are well-informed, useful/helpful or relevant according to a prescribed procedure.
- WERKBLiQ does not check reviews prior to their publication. On notification by the subscriber concerned, WERKBLiQ is entitled to remove inadmissible reviews at its own discretion and after hearing the reviewer, unless the reviewer first deletes or amends the review. It is not necessary to hear the reviewer in the case of manifestly insulting, defamatory or discriminatory reviews.
- WERKBLiQ is entitled, at its own discretion, to impose sanctions pursuant to para. 9.4 against a subscriber whose account is repeatedly used to submit inadmissible reviews.
- Violation of community rules, illegal use & sanctions
- The following actions are prohibited: Infringements of proprietary rights:
- Infringements of proprietary rights:
The use of texts, terms, photos, figures, drawings or other content protected by law (e.g. by copyright, trademark or design law) without the consent of the party who holds those rights;
- Infringements of competition law; specific forms of distribution:
Engaging in or promoting anti-competition activities including progressive customer canvassing (such as chain, snowball or pyramid systems); implementation, promotion or funding of structural sales measures (including multi-level marketing or multi-level network marketing); unreasonable harassment of other users (especially spam).
- Technical circumvention measures or misuse
The use of mechanisms, software or scripts in conjunction with the use of WERKBLiQ services; attempts to decrypt, decompile or reverse engineer with respect to the source code of the software on which the platform is based; blocking, overwriting, modifying and copying, insofar as this is not necessary for the proper use of WERKBLiQ services; copying by means of “robot/crawler” search engine technologies is not considered necessary for the proper use of WERKBLiQ services.
- Impermissible distribution of platform content:
The distribution and public disclosure of the content of WERKBLiQ services or of other users (in particular outside the WERKBLiQ platform);
Any action designed to compromise the functionality of the infrastructure and functionality of the WERKBLiQ platform.
- Should WERKBLiQ become aware of possible legal violations or breaches of duty in connection with content that has been posted or distributed by a subscriber, e.g. due to objections by third parties, WERKBLiQ shall allow the subscriber concerned a hearing on the matter and, on a case by case basis, shall grant that subscriber an appropriate period for remedying or responding to the matter, which may amount to a few hours if the matter is especially urgent. Within this period, the subscriber may either delete/deactivate the objectionable content or explain why, in his/her opinion, there is no infringement. WERKBLiQ shall then make a decision at its own discretion regarding the deletion or deactivation of the objectionable content and of similar illegal content, if applicable.
- WERKBLiQ reserves the right, at its own discretion, to impose sanctions against the subscriber, if there are concrete indications that s/he is violating or has violated these Terms and Conditions and/or applicable law while using the platform. In selecting the measures, WERKBLiQ shall consider its interest in undisrupted and smooth functioning of the platform, its own liability risks and the legitimate interests of any claimant and of the subscriber concerned (e.g. culpability, severity of the breach of obligations, risks, the subscriber’s statement) when making a decision.
- The sanctions that WERKBLiQ may alternatively or cumulatively impose on a subscriber at its own discretion, include:
- Deletion of the objectionable content or, alternatively, in the case of marketplace offers or pool enquiries, deletion of the offer/enquiry;
- Written warning of the subscriber with the request to stop the violation and refrain from such violation in the future;
- Disabling or deactivation of the read and write authorisations for certain areas (e.g. machine overview, profile, offers) or for the subscriber’s own content (e.g. reviews, blog posts, forum posts);
- Temporarily disabling the subscriber account (one location) or a user’s access;
- Permanent disabling and/or termination of the licence agreement with or without notice (cf. also 13.6).
WERKBLiQ shall inform the subscriber of the reason for and duration of the sanction.
- Subscribers are responsible for the behaviour of users registered under their account.
- WERKBLiQ reserves the right to charge a flat administrative fee for the deletion of content and for disabling and/or reactivating user or subscriber accounts (one location) insofar as the subscriber is responsible for the violation, unless the subscriber can demonstrate that no damage has occurred or that the amount of damage is substantially lower.
- Liability for platform content
- The content that subscribers place on the WERKBLiQ platform constitutes third-party content for WERKBLiQ within the meaning of section 8 (1) of the German Telemedia Act (TMG). As such, the subscriber who entered the content in the database bears legal responsibility for said content.
- WERKBLiQ is therefore not liable for the accuracy and completeness of third-party information on the platform, in particular for the timeliness and accuracy of subscriber and contact data, of machine-specific data, of posts in blogs or the “knowledge base”, of forum posts or other content posted by its subscribers. WERKBLiQ is also not liable for the accuracy or appropriateness of reviews that are submitted via the review system.
- If the rights of third parties are infringed by the content posted by the subscriber, the subscriber shall be obligated either to provide WERKBLiQ with the rights to use the corresponding content, or to modify said content so that it is free of proprietary rights, at the subscriber’s own expense.
- The subscriber shall indemnify WERKBLiQ against all claims – including claims for damages – which third parties may assert against WERKBLiQ due to a legal violation or breach of obligation by the subscriber in the course of using the WERKBLiQ service, unless the subscriber is not responsible for the breach of obligation.
- The subscriber shall also bear the reasonable costs incurred by WERKBLiQ due to an infringement of third-party rights, including reasonable costs incurred for the purposes of legal defence. These costs also include an hourly fee for advice. Further rights and claims for damages by WERKBLiQ remain unaffected.
- Conclusion of contracts via the WERKBLiQ platform
- In the case of contracts between subscribers that are concluded using the WERKBLiQ platform, only those conditions agreed between them shall apply.
- WERKBLiQ shall receive additional remuneration according to the price list for contracts that are concluded between subscribers using the WERKBLiQ platform. WERKBLiQ is entitled to demand remuneration from both contracting parties. The remuneration may also relate to follow-on contracts based on the conclusion of the first contract.
- WERKBLiQ is not involved in any contracts between subscribers as a broker, agent or intermediary, nor as a supplier of goods or services. WERKBLiQ does not act as a representative for the contractual partners, does not receive any statements from them, and is not responsible for the proper, in particular timely and complete performance of said contracts. Claims arising from contracts must be asserted exclusively against the respective contracting party.
- If a reduction in the order volume or a reduction or elimination of the remuneration occurs as a result of poor performance or non-performance by a subscriber, WERKBLiQ’s claim for remuneration shall remain unaffected.
- Contracts concluded between subscribers that are initiated using the platform shall be considered to have been concluded on the platform, even if the parties have not made contractual declarations via the platform. This also applies to follow-up contracts or extensions.
- If the remuneration paid to WERKBLiQ is based on the reason for or the amount of the contracts that are concluded between subscribers to the platform, WERKBLiQ is entitled to demand information from the parties about the content of the contract if there are indications that suggest that the subscribers are withholding information from WERKBLiQ that is required to establish or calculate the claim for remuneration.
- Order management
- Orders may be placed and received directly vis-à-vis other subscribers in electronic format using the platform’s order management function. Written confirmation is not required.
- In addition, offers from other subscribers may be requested for services that are described in greater detail. The special conditions listed under II. for awarding orders via pool enquiries shall apply in this context.
- Orders that are placed or received via the platform are displayed and documented in the “Order management” menu item. Subscribers are responsible for archiving contractual information and data that is stored on the WERKBLiQ platform and which they need in a form other than an electronic format for the purpose of preserving evidence, accounting or other purposes, on a storage medium that is independent from WERKBLiQ.
- Term and termination of the contract; partial termination; consequences of termination
- The contract for the use of the platform is concluded for one year unless a longer or shorter period of time has been agreed by individual contract. The contract may be terminated at the end of a calendar year with a notice period of three months, but no earlier than 12 months from conclusion of the licence agreement. If the subscriber or WERKBLiQ fail to terminate the agreement in a timely manner prior to expiration of the respective term of the contract, the term shall be extended for a period of equal duration. The subscriber and WERKBLiQ may terminate the contract by letter, fax or email without indicating a reason with a period of notice of three (3) months before the expiration of the minimum licence period, and three (3) months before the expiration of the respective extension period thereafter.
This termination shall take effect on expiration of the agreed performance period and first results in deletion of all user accounts registered under the subscriber account and deactivation of the subscriber account (one location). The subscriber account (one location) shall be given a quarantine status for a period of six months. During this period, third parties whose data may be affected by the termination shall have the opportunity to import or transfer the data concerned to a third party for review.
- Insofar as no request to transfer data is made during the quarantine period, the data associated with the subscriber account (one location) shall be deleted. The only data not included in this deletion are posts in forums, blogs and the knowledge base and any additional, public comments and questions that are visible to users on the platform that have been made by users of the respective subscriber account (one location). These posts shall be anonymised as a consequence of the deletion of the user accounts.
- If an authorised third party requests transfer of said data prior before or during the quarantine period, or if the subscriber agrees to the transfer of said data, the data shall not be deleted but shall be transferred to the subscriber who is inheriting it.
- The subscriber is entitled at any time to declare the termination of an independent and definable part of the services claimed under the licence agreement (for example, for the machine park at a specific location or of a specific customer). The termination shall then take effect at the beginning of the following month for this partial dataset only; the corresponding machine data records are deactivated. The licence agreement for the platform shall otherwise be continued. 12.2 to 12.4 shall apply accordingly to the partial dataset that is the subject of the termination.
- The right of both parties to terminate for good cause remains unaffected. For WERKBLiQ, there is good cause, in particular, if continuation of the contractual relationship up to the regular expiration of the contractual term is not reasonable, taking into account all of the circumstances of the individual case and tin view of the interests of the subscriber and those of WERKBLiQ. Good cause includes, in particular:
- Initiation of insolvency proceedings in respect of the assets of the subscriber or rejection of the application for lack of assets;
- Outstanding payments in an amount that is equal to the licence fee for three months or more;
- Repeated violations of statutory provisions by the subscriber or one of his/her users, in particular in offering pirated goods;
- Repeated violations of essential contractual obligations despite repeated warnings;
- Submitting inadmissible reviews pursuant to 8.3 despite repeated warnings.
- Unlawful use of the platform pursuant to 9 despite repeated warnings.
- If a subscriber has been permanently blocked from accessing the platform, the subscriber has no claim to the restoration of the deactivated WERKBLiQ subscriber account (a location), the evaluation profile or the transfer of data to a new subscriber account (a location).
- If WERKBLiQ terminates the licence agreement unilaterally due to a legal violation or breach of duty by the subscriber, WERKBLiQ shall retain all fees paid in advance as remuneration. If WERKBLiQ temporarily limits the use of the account, the subscriber shall still be responsible for paying the licence fee in full.
- Liability of WERKBLiQ
- WERKBLiQ is fully liable for damage resulting from loss of life, physical injury or damage to health that arises due to a breach of obligation on the part of WERKBLiQ, a legal representative or vicarious agent of WERKBLiQ, or for damage caused by the absence of a condition that WERKBLiQ has guaranteed, or in the event of malicious conduct by WERKBLiQ. In addition, WERKBLiQ is fully liable for damage that is caused by WERKBLiQ or a legal representative or vicarious agent of WERKBLiQ, either intentionally or as a result of gross negligence.
- In the event of a violation of essential contractual obligations due to minor negligence, the amount for which WERKBLiQ is liable is limited to the damage foreseeable for the contract, except in the cases specified under 14.1 and 14.3. Essential contractual obligations are, in the abstract, those obligations, the fulfilment of which makes proper execution of a contract possible in the first place, and compliance with which is routinely expected by the contractual parties. Any other liability on the part of WERKBLiQ is excluded.
- Liability under the German Product Liability Act (Produkthaftungsgesetz) remains unaffected.
- Amendments to the Ts & Cs
- WERKBLiQ reserves the right to amend these Ts & Cs without specifying a reason, unless such amendment is unreasonable for the subscriber. WERKBLiQ shall inform the subscriber of amendments to the Ts & Cs in a timely manner. If the subscriber fails to object to the validity of the new Ts & Cs within six (6) weeks of notification, the amended Ts & Cs shall be deemed to have been approved by the subscriber.
- If the subscriber objects to the validity of the new Ts & Cs, this shall also be deemed to constitute ordinary termination of the licence agreement at the next possible date. Until that date, the contractual relationship shall continue on the basis of the Ts & Cs that applied previously.
- Moreover, WERKBLiQ reserves the right to amend the Ts & Cs on a case-by-case basis without the approval of the subscriber,
- if the amendment will only be beneficial to the subscriber;
- if the amendment is made for purely technical or procedural reasons, unless it has a significant impact on the subscriber;
- insofar as WERKBLiQ is obliged to amend the Ts & Cs so that they comply with applicable law, in particular if the current legal situation changes;
- insofar as WERKBLiQ must do so to comply with a court order or administrative decision against WERKBLiQ; or
- insofar as WERKBLiQ introduces additional completely new services or service elements that require a description of services in the Ts & Cs, unless the previous user relationship is modified in a way that is disadvantageous to the subscriber.
WERKBLiQ shall inform the subscriber about such amendments by email or with a notification on the platform.
- If the subscriber concludes multiple contracts with WERKBLiQ via the platform to which WERKBLiQ’s Ts & Cs likewise apply, or if existing contracts are renewed or modified, the latest valid version of the Ts & Cs shall apply to them, regardless of the version on which the contract concerning the use of the platform was based.
- Contractual statements, applicable law, place of fulfilment and jurisdiction
- WERKBLiQ is entitled to transfer the rights and obligations from the licence agreement for the platform, in part or in full, to third parties. Any other assignment, transfer, hiring out or leasing, or other provision of the services or the rights associated with this contract to a third party, is excluded.
- The subscriber undertakes to treat as confidential the contents of the licence agreement and any information that is disclosed to him/her in conjunction with the use of the WERKBLiQ platform (in particular about the functions and operation of the platform), unless the information is generally available to the public.
- WERKBLiQ may communicate declarations to the subscriber by email, fax or letter or via a notice using the system on the platform, unless specified otherwise in these Ts & Cs.
- The place of fulfilment and jurisdiction is the registered office of WERKBLiQ GmbH.
- Amendments to the licence agreement must be made in writing.
- Should individual provisions of the licence agreement, including these General Terms and Conditions, be invalid or void, the contract shall otherwise remain valid.
- German law shall apply to the use of the WERKBLiQ platform, excluding international private law and the UN Convention on the International Sale of Goods, which has been incorporated into German law.
- Special conditions for the award of orders via pool enquiries
- If enquiries are made about the services of other platform subscribers via the WERKBLiQ platform (pool enquiries), the enquiry forms the performance specification for a possible order, associated with the request for a specific (closed pool) or unspecified number (open pool) of providers to make an offer for this scope of services. Enquirers may accept offers made in response to express enquiries at any time, while other enquirers may only accept an offer once the offer period has ended.
- Enquiries about a service as a pool service (with the exception of express enquiries) must contain the following information:
- An indication that this is an enquiry, which serves as an invitation for multiple providers to make an offer that is binding and that will result in a contract with the tenderer, with no further explanation if the offer is accepted during the commitment period;
- The group of addressees (closed/open pool service);
- A clear, complete and concluded bill of quantities in addition to specifications regarding the performance period, unless the scope of services has not yet been determined (for example in the case of general repair enquiries);
- Specification of the time period within which offers are to be made (offer period);
- Specification of the time period within which a decision will be made regarding the placement of the order (commitment period);
- A description of the qualitative requirements of the providers (degrees, qualifications, certificates, training certificates, etc.) and the evidence to be provided
- Where applicable, a reference or link to the General Terms and Conditions of the party making the enquiry, on which the placement of the order is based.
- While the offer period is running, interested parties may make offers and ask questions about the enquiries. Questions and answers by and to the inquirer shall be published with the enquiry. Should it emerge during the offer period that the offer requires additions or corrections, or should an answer to a question significantly add to or change the content of the enquiry, those providers already involved may confirm, withdraw or modify their offer. If they do not comment, the offer shall be considered withdrawn. Offers are always based on net amounts. Unless otherwise specified in the call for offers, the offer must be made in EUR.
- Those enquiring about services using pool enquiries may not simultaneously submit enquires or calls for offers on other Internet platforms or by other means during the offer and commitment period.
- The enquirer/customer may only place the order by accepting a pool offer.
- If the customer receives an offer for the execution of an order that was submitted as a pool enquiry in another form and/or in another manner notwithstanding 17.5, in particular outside the WERKBLiQ platform, the customer must refuse that offer and request that the provider make the offer on the WERKBLiQ platform. S/he may only place an order in response to an offer that a provider has made via a pool enquiry – regardless of the form or channel – via the WERKBLiQ platform.
- In the event of a violation of 17.5 and/or 17.6, the party that has violated this contractual provision shall be required to pay WERKBLiQ an amount that is double the remuneration owed for the successful pool enquiry.
- Special conditions for service technology service providers
- Data that the service technology provider (STA) stores, enters, updates or otherwise maintains on the WERKBLiQ platform on behalf of a machine or system operator (machine operator) shall be considered data belonging to the machine operator. The service technology provider shall acquire neither the data record, nor any exclusive rights to databases created over the course of the collaboration.
- Insofar as exclusive rights to texts, drawings, sketches, photos, slides, audio, video or other media data that are stored in the database arise or have arisen for the individual user (e.g. service technicians), the service technology provider shall grant the machine operator a non-exclusive right of use for an unlimited period of time. The machine operator may modify or duplicate the data, share said data with other users on the WERKBLiQ platform or send such users copies thereof, and grant those users corresponding rights.
- Unless agreed otherwise, the work carried out by the service technology provider with regard to the input, storage, saving, updating and maintenance of the machine operator’s data on the WERKBLiQ platform and the granting of rights to it is settled with the remuneration for maintenance, repair and service.
- The machine operator may request from the service technology provider information about the machine-specific data relevant to him/her which that provider has stored on the WERKBLiQ platform, and request that the service technology provider share that data with him/her. The legitimate interests of the service technology provider, e.g. rights of retention, must be taken into account.
- Insofar as the machine operator is not a subscriber to the WERKBLiQ database, the granting of rights to said operator is limited to a non-exclusive right of use for the duplication and transmission of data in a readable format (PDF printouts on paper, etc.). Should the operator become a subscriber on the WERKBLiQ platform at a later date, the right of use will subsequently be expanded to include all rights specified under 19.1 and 19.2.
- Special conditions for the operators of machines and mechanical equipment
- WERKBLiQ shall grant the operators of machines and systems whose machine-specific data is collected, stored, displayed and shared via the WERKBLiQ platform (machine operators) a non-exclusive, non-transferable and non-sub-licensable right of use to the part of the data base that pertains to said operator, in other words to the dataset that has been stored for the operator’s subscriber account (one location) and that the operator maintains. This applies regardless of who entered, updated and/or supplemented the data (machine-specific data and subscriber and user data). The right is granted indefinitely. The right ends together with the end of the user agreement for the WERKBLiQ platform.
- If the machine operator does not receive access to the machine-specific data relevant to him/her on the platform (18.1 above) from the service technician, after allowing the service technician a hearing WERKBLiQ may store a copy of the appropriate dataset for the subscriber account (one location) of the machine operator provided the legitimate interests of the service technician do not prohibit this.
- Special conditions for marketplace providers
- An offer for goods must be classified in the appropriate category. Goods for which there is (as yet) no precisely suitable category must be classified in the closest appropriate category; WERKBLiQ may open a new category for these goods on request by the provider.
- The provider must describe the goods accurately and completely in words and pictures. All essential features and characteristics that are essential to the purchase decision and any flaws that reduce the value of the goods on offer must be indicated truthfully. Information about the goods may only be provided in the fields provided. It must always be clarified whether the goods on offer are original products, OEM goods or third-party products. If it is necessary to indicate in the item designation or description whether the goods are compatible with a specific brand product or a specific model, the provider may use the name of the brand or model with suitable supplementary information, for example by preceding the name with “compatible with” or “fits”.
- Costs of shipping, packaging and/or insurance must be indicated in the offer. Complete information must be provided regarding the payment and delivery conditions.
- The provider has no claim to its range of products appearing in a specific position within the category of products or, if a search is carried out for specific goods, to it appearing in a specific position within the search results. Manipulation of the search results by the provider is prohibited. In particular, the provider is prohibited from listing the same item more than once, from listing an excessive number of sale offers for identical items or from using inappropriate or confusing terms in the item designation or description; this includes, in particular, so called keyword spamming (the use of terms that do not describe the actual article or that only partially describe it, and that are primarily designed to lure buyers to the offer). This also applies to hidden HTML texts and drop-down fields.
- Anyone offering pirated goods, in other words goods that are not original products but are offered as such, shall be liable to prosecution (actionable trademark, design or patent infringement, fraud/attempted fraud) and, if there is a risk of repetition, shall be barred from using the platform.
- Offers for software and CAD data must contain a reference to the author or the holder of the exploitation rights, the rights that the purchaser will acquire to said software or data, in particular under what conditions, to what extent and, where applicable, for what purpose the software or file may be used, and whether and, where applicable, the extent to which licensing, resale or editing of the software or file is permitted.