general terms of condition

1. scope of application

1.1 These General Terms and Conditions of Delivery and Service (“GTC”) are valid for the WAY Group (hereinafter referred to as “WAY” and including WAY GmbH, WAY People+ GmbH, WAY Engineering GmbH, WAY Digital Solutions GmbH, WAY HR Professionals & Experts GmbH). “Client” in these General Terms and Conditions refers to any party that concludes contracts with WAY in individual cases for the purchase of WAY deliveries and/or services. WAY and the Client are together hereinafter also referred to as the “Parties” and individually as a “Party”.

1.2 These GTC apply to all types of contracts with WAY as contractor and include all types of services, work performances or products delivered or provided by WAY (hereinafter referred to as “Contracts”). WAY does not recognize any contradictory or conflicting terms and conditions of the Client, even if their inclusion has not been separately objected to in individual cases, unless WAY has expressly confirmed their validity in writing.

1.3 These General Terms and Conditions shall also apply if WAY executes an order of the client without reservations in the knowledge of contradictory or conflicting terms and conditions.

1.4 Any change or addition to these GTC’s and the other agreements of the parties must be in writing to be valid. The “written form” in this sense shall be deemed to be satisfied by transmission by letter, e-mail, fax or transmission of data or other electronic transmission within the framework of a supplier platform or other electronic B2B applications.

1.5 These GTC shall also apply to future contracts between WAY and the Customer.

2 Offer, order, order documentation

2.1 The offers of WAY are always subject to confirmation, unless expressly designated as binding. A contract is thus in principle only concluded if and as soon as WAY has confirmed the order of the client in writing.

2.2 Orders placed verbally by the client are also binding. The order is considered accepted if and as soon as WAY starts with the execution of the order in knowledge of the client.

2.3 The client is entitled to demand adjustments of the delivery or service item at any time. WAY will examine this change request and inform the Client in particular of the effects with regard to price and delivery date within the framework of a supplementary offer. Before the client has accepted this supplementary offer unconditionally and without changes, WAY is not obligated to implement the change request. Delays in the fulfillment of the contract and additional costs resulting from a nonimmediate acceptance of the supplementary offer are at the expense of the client.

3 Prices, Payment

3.1 Unless expressly agreed otherwise in an individual contract, the prices and delivery conditions of WAY are “ex works” to the registered office of the WAY company which is the contractor of the order (EXW according to Incoterms 2010) without packaging, which will be charged separately.

3.2 Unless otherwise stated, WAY’s prices are net prices plus VAT at the rate applicable on the date of performance of the respective contract.

3.3 The deduction of discounts must be agreed in writing before the contractual service is rendered.

3.4 Unless expressly agreed otherwise in an individual contract, the agreed price shall be due for payment without deduction within 30 days of receipt of the invoice by the Client. In case of default of payment by the client, WAY is entitled to the legal rights. In addition, WAY is entitled in this case to withhold all outstanding services resulting from the business relationship with the client until WAY has received full payment of the agreed price.

3.5 Payments must be made by bank transfer. The client is only entitled to a set-off if his counterclaims are legally established or undisputed or recognized by WAY. Under these conditions, the client is also entitled to assert a right of retention, provided that his counterclaim is based on the same contractual relationship.

4 Method and manner of performance of the contract by WAY.

4.1 If employees of WAY work on the company premises of the Client in the execution of a contract, the Client is not entitled to any right of instruction with regard to these employees, except in the case of employee leasing contracts according to section 4.2. WAY is entitled to also employ employees of affiliated companies in the sense of §§ 15ff. AktG (German Stock Corporation Act), without this requiring the consent of the Client.

4.2 With regard to employee leasing contracts according to the German Employee Leasing Act (AÜG), the General Terms and Conditions for Employee Leasing of WAY People+ GmbH shall apply with priority to the provisions of these GTC. WAY is not liable for errors, damages or other consequences that arise due to actions or omissions of the client. WAY’s obligations according to the German Personnel Leasing Act (AÜG) remain unaffected.

4.3 With regard to service contracts for services to be provided by WAY, the following provisions apply:

4.3.1 Sections 6 and 8 of these GTC do not apply.

4.3.2 WAY will use employees with appropriate qualifications and experience to provide its services and fulfill its obligations under the respective service contract. WAY shall perform the Services professionally with due care and skill in accordance with the provisions of the respective Service Agreement.

4.3.3 WAY does not assume any liability for the attainability and/or the achievement of objectives of the Client as well as for the commercial usability of the result of the Services or for any other purposes of the Client.

4.4 With regard to all services under the contracts WAY observes the generally accepted rules of technology as well as the technical specifications agreed upon with the Client.

5 Delivery Times, Delay; Duty to Cooperate

5.1 All agreed delivery times for purchase contracts, contracts for work and services and contracts for work and materials are binding, unless expressly agreed otherwise. The delivery time shall be deemed to have been complied with if the contractual service has been provided on time at WAY’s premises.

5.2 In the event of a delay by WAY in the delivery of goods or work performance, the client may withdraw from the contract or claim damages instead of performance after a reasonable period for performance or subsequent performance has been agreed between the parties in writing and this period has expired without completion of the performance. The Client does not have to grant a time limit if WAY is significantly in default, or if a fixed transaction (§ 323 paragraph 2 No. 2 BGB, § 376 HGB) has been agreed, or if special circumstances exist which justify immediate withdrawal, taking into account the interests of both parties.

5.3 If the Client asserts a claim for damages for delay in performance or instead of performance, WAY’s liability for such damages shall be limited in accordance with Section 9. In addition, claims for damages for delay in performance are limited to a maximum of 5% of the agreed net price of the goods or work in default under the respective contract.

5.4 The fulfillment of WAY’s contractual obligations depends on the proper, timely fulfillment of the Client’s obligations. Any duty of cooperation or other participation of the Client (or of a subcontractor engaged by the Client) agreed upon or presupposed by the respective contract shall constitute a duty of the Client in the sense of the foregoing. This applies in particular to any assistance necessary for the performance of WAY’s agreed contractual obligations, as well as to the timely, complete provision of all relevant drawings, specifications and other documents or information free of charge to Se WAY.

5.5 If and to the extent that WAY is prevented from performing its contractual obligations (including failure to achieve agreed Milestones) under a Contract due to a default by the Client (or any subcontractor engaged by the Client) with respect to cooperation or other participation (including refusal to accept or partially accept performance without lawful cause)

5.5.1 WAY’s delivery times shall be extended accordingly; and

5.5.2 the Customer shall compensate WAY for any loss suffered, including any additional costs and any costs of personnel and/or equipment which WAY has kept in readiness for the relevant performance and could not reasonably be expected to use otherwise.

5.6 In any case, the default of the Client shall be triggered after the expiry of a reasonable period of grace granted to the Client by WAY for the fulfillment of his contractual obligations to cooperate.

6 Acceptance of performance, transfer of risk

6.1 With regard to contracts for work and services, the following provisions apply:

6.1.1 The acceptance of a service or partial service by the Client must be confirmed in writing by the Client. It shall result in a transfer of risk.

6.1.2 Acceptance of a partial performance must take place in particular after an agreed milestone has been reached achievement of an agreed milestone. If the Principal requests further performance after a product milestone has been reached, this shall be deemed to be acceptance of the previous partial performance.

6.1.3 If the Client does not expressly accept the service or partial service provided by WAY, the risk of WAY shall pass to the Client if the Client uses the service or partial service in such a way that a neutral, third person would consider such use as implied acceptance.

6.1.4 If the Client expressly refuses to accept the service or partial service provided by WAY, the risk shall nevertheless pass from WAY to the Client if WAY has granted the Client a reasonable grace period to declare acceptance and this period has expired, provided acceptance was refused without lawful reason.

6.2 In the case of sales contracts, the risk shall pass “ex works” (EXW according to Incoterms 2010) to the registered office of the WAY company which is the contractual partner, unless expressly agreed otherwise.

6.3 In the case of contracts for work and materials, the risk shall pass “ex works” (EXW according to Incoterms 2010) to the registered office of the WAY company which is the contractual partner, unless delivery to the registered office of the customer has been agreed in the contract. In this case, the risk is transferred to the Client upon handover.

6.4 If the Client is in default with any acceptance of performance as determined in this Clause 6, or if he intentionally violates one of his support obligations, the risk of accidental loss or destruction of the object of performance shall pass to the Client upon the occurrence of such default or violation of obligation.

7 Force Majeure

7.1 Force majeure, labor disputes, riots, official measures and other unforeseeable, unavoidable and serious events shall release the parties from their obligations to perform for the duration of the disruption and to the extent of its effect. This shall also apply if these events occur at a time when the affected party is in default. The parties shall be obliged to provide the necessary information without delay within the bounds of what is reasonable and to adjust their obligations to the changed circumstances in good faith.

7.2 In the event that the delay or non-performance of WAY or the Client continues for a period of more than three (3) months due to such circumstances, each Party shall have the right to terminate the relevant Agreement with immediate effect.

8. defects

8.1 With regard to purchase agreements and contracts for work and materials, the following provisions shall apply:

8.1.1 The Client must subject the goods delivered by WAY to an inspection satisfying his commercial duty to inspect and give notice of defects.

8.1.2 If a defect is found, the client must notify WAY immediately, in any case no later than within 5 (five) working days after the delivery date of the goods concerned. In the case of hidden defects that are discovered later, the notification must be made immediately after the discovery of such defect. The notification must be made in writing.

8.1.3 The Client is only entitled to assert rights due to defects of the delivered goods if he has duly fulfilled his obligations of examination and notification determined in clauses 8.1.1 and 8.1.2.

8.1.4 WAY is entitled, at its own discretion, to repair the defect or to make a subsequent delivery of new goods. The Client must make the greatest possible efforts to assist WAY in minimizing damage. If WAY unjustifiably finally refuses to carry out a repair or a subsequent delivery, or if these repairs have failed, the client may withdraw from the contract (with the effect of reversing all services received between the parties) or reduce the purchase price proportionally. WAY’s liability for damages shall be determined exclusively in accordance with Sections 9 and 10.

8.2 In the event of defects in contracts for work and services, the statutory provisions shall apply, but limited by the provisions of clauses 9 and 10.

8.3 No provision of these GTC or in the contracts of the parties constitutes a guarantee of quality or durability, unless expressly agreed otherwise in writing.

8.4 Unless otherwise expressly agreed in the contracts of the parties, any liability of WAY for defects of title due to the infringement of third party property rights (as defined in clause 11.1) is excluded, unless it can be proven that WAY acted with intent or gross negligence.

8.5 In the event that WAY is liable for defects of title due to an infringement of third party property rights by services, work performances or products of WAY on the basis of a contract of the parties, WAY is obliged, excluding any further liability, at its own choice to

8.5.1 to ensure that the Client can continue to use the corresponding services, work performances or products (e.g. by licensing services and products); or

8.5.2 replace the infringing part with a non-infringing part; or 8.5.3 repay an amount equal to the share of the remuneration due to WAY attributable to the infringing part of the service, work performance or product. Work performance or product.

8.6 WAY’s liability is excluded if and to the extent that a defect (including an infringement of third party rights) was exclusively was caused by:

8.6.1 drawings, specifications or other special requirements made by the Client;

8.6.2 a use of the products or services other than that which was provided for in the respective contract; or

8.6.3 modification of Products or Services without the cooperation or consent of WAY.

9 Liability

Except in the case of employee leasing contracts subject to clause 4.2, WAY’s liability for damages, whether such liability is based on contractual or non-contractual claims, shall be governed exclusively by the following provisions:

9.1 WAY shall be liable in accordance with the relevant statutory provisions for damage caused by fraudulent concealment of a defect or in connection with a guarantee given by WAY with regard to the quality of the services or products to be delivered.

9.2 In addition, WAY shall be liable in accordance with the relevant statutory provisions for damages in which WAY or representatives or vicarious agents of WAY have intentionally or negligently caused personal injury or death.

9.3 If the Client claims damages due to intent or gross negligence on the part of WAY or one of its representatives or vicarious agents, or due to a negligent breach of an “essential contractual obligation”, WAY shall also be liable in accordance with the relevant statutory provisions. In such cases, however, WAY’s liability is limited to the amount of foreseeable and typical damages, unless WAY has acted intentionally or with gross negligence or its representatives or vicarious agents have acted intentionally. The term “essential contractual obligation” in this context refers to an obligation specifically described in the respective contract, the breach of which endangers the achievement of the purpose of the contract. The “essential contractual obligation” is an obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the other party as contractual partner may regularly rely.

9.4 In addition, WAY shall be liable in accordance with the mandatory provisions of the Product Liability Act.

9.5 In all other respects, WAY’s liability for damages is excluded. As far as nothing else results from clauses 9.1 to 9.4, WAY is therefore not liable for damages that did not occur on the object of the service or work performance itself (indirect damages, such as loss of profit or other pure financial losses of the client), as well as for claims for damages from the violation of secondary obligations resulting from a contractual obligation or the law (e.g. faulty advice, care or information, construction of the packaging and instruction regarding handling) and for claims from non-contractual liability.

9.6 Furthermore, WAY’s liability is excluded if damage was caused exclusively by specifications or requirements given by the Client.

9.7 As far as the liability of WAY is excluded or limited, this also applies to the personal liability of its employees, workers, staff, representatives and vicarious agents.

10 Limitation

10.1 A claim for subsequent performance due to defects in work services or products shall become statute-barred within one (1) year from the transfer of risk (clause 6), unless the Customer claims damages due to fraudulent concealment of a defect or in connection with a quality guarantee for work services or products which WAY has granted the Customer for a longer period of time.

10.2 Withdrawal and reduction of the agreed price for work services or products are ineffective according to § 218 BGB (German Civil Code) if the claim for subsequent performance is time-barred.

10.3 Claims for damages shall become time-barred in accordance with the following provisions:

10.3.1 The limitation period shall be one (1) year.

10.3.2 The limitation period for defects in work or products shall commence with the passing of risk (Clause 6).

10.3.3 For all other claims, the limitation period shall begin at the time when the claim arose and the Client became aware or could have become aware of the circumstances giving rise to the claim and the fact that WAY is the debtor of the claim. It ends at the latest with the expiration of the legal maximum periods according to § 199 paragraph 2 and 3 BGB.

10.3.4 Clauses 10.3.1 to 10.3.3 do not apply to claims based on gross negligence or intent, to claims with regard to a guarantee given by WAY or in connection with death or personal injury as well as to claims according to the Product Liability Act; in these cases the statutory limitation periods apply.

11 Industrial property rights

11.1 “Industrial property rights” means all registered and unregistered industrial property rights and similar rights, including trademarks, patents, utility models, design patents, copyrights and software.

11.2 WAY is entitled to use the trademarks and/or the companies of the Client to a reasonable extent for advertising purposes.

11.3 “Background knowledge” means all industrial property rights and in addition all information, knowledge, data and know-how, whether independently developed by a party outside the scope of the corresponding contract or acquired from third parties. WAY and the Client agree in principle that any Background Knowledge of WAY remains the property of WAY and any Background Knowledge of the Client remains the property of the Client.

11.4 WAY grants the Client, on commercial terms to be agreed in individual cases, a worldwide, perpetual, irrevocable, non-exclusive and non-transferable license (without the right to reproduce, modify, transfer or sublicense to third parties) to use WAY’s Background Knowledge to the extent necessary for the proper use of the subject matter of the respective Agreement, but limited to the scope and agreed purpose of the respective Agreement.

11.5 The Client grants WAY the unrestricted right to use the background knowledge of the Client to the extent necessary for the fulfillment of WAY’s obligation under the respective contract.

11.6 The client receives, without any separate remuneration for WAY, the irrevocable, exclusive, locally unrestricted and transferable right in rem to all copyright protected work results of WAY, which have arisen on the occasion of the execution of the contract, at the time of their creation in perpetuity, to use the work results in all – also as yet unknown – types of use, in particular to reproduce them, to make them accessible on the Internet, to develop them further or to change them.

11.7 If, within the scope of the contract, WAY achieves results which have a content that can be protected and registered, WAY:

inform the Client about this without delay

claim the inventions without limitation according to the law on employee inventions upon request and after consultation with the Client, and

transfer the invention(s) to the Client against reimbursement of the employee inventor remuneration (§ 9 ArbEG) as well as the costs for registration and maintenance of possibly already applied for property rights, and otherwise without separate remuneration for use by the Client. However, in this case the Client grants WAY a non-exclusive, otherwise unrestricted right of use in all types of use for use in other projects and contracts, including those with third parties.

11.8 All offer-related pictures, drawings, calculations, data, i.e. also parts lists, circuit diagrams and software source codes and all other documents, are and remain the sole property of WAY. WAY reserves all copyrights. Upon request, but in any case as soon as it is determined that no order will be placed with WAY, such property of WAY and related documentation must be returned to WAY without delay.

12 Retention of title

12.1 Until full payment has been received, WAY retains ownership of all work services and products delivered to the client. In this context, all deliveries of work services or products within one contract are considered as one coherent transaction, regardless of agreed milestones.

12.2 If WAY’s performance under a contract is invoiced by current account, the retention of title shall remain in force as long as there is a debit balance of the Client.

12.3 The Client must handle the work performances and products with care. In particular, the Customer must insure the work performances and products at their replacement value against fire, water damage and theft at its own expense. The Client must store the work performances and products in a way that allows them to be clearly distinguished from the Client’s other goods and makes them recognizable as the property of WAY.

12.4 If the work performances and products are seized or exposed to other interventions of third parties, the Client must inform WAY immediately.

12.5 The client is entitled to resell the work performances or products in the ordinary course of business. However, he hereby already assigns to WAY the claims against his customers or third parties resulting from the resale in the amount of the invoice amount (including VAT) from the respective contract, regardless of whether the work performances or products were resold without or after processing. WAY accepts this assignment. The customer shall nevertheless remain entitled to collect the claims. The authority of WAY to collect the claim itself remains unaffected. However, WAY undertakes not to collect the claim as long as the client is not in default of payment, no insolvency proceedings have been opened against his assets or the opening has been rejected due to lack of assets. In the event of such circumstances, WAY is entitled to demand that the client discloses the assigned claims and the corresponding debtors and that the client provides all other information necessary for collection, hands over the corresponding documents and informs the third-party debtors of the assignment.

12.6 Any processing or transformation of the work performances and products by the Client shall always be carried out for WAY. If the work performances and products are processed with other objects not belonging to WAY, WAY shall acquire co-ownership of the new object in the ratio of the value of the work performances and products (invoice amount, including VAT) to the other processed objects at the time of processing. The client shall store the sole or co-ownership thus created for WAY free of charge. In all other respects, the same shall apply to the object created by processing or transformation as to the work performances or products delivered under retention of title.

12.7 If the work performances or products are inseparably combined or mixed with other objects not belonging to the Client, item 12.6 shall apply accordingly, with the proviso that it shall be deemed agreed that the Client transfers proportional co-ownership to WAY if the combination or mixing takes place in such a way that the Client’s object is to be regarded as the main object.

12.8 WAY undertakes to release securities held by it if and insofar as their total value exceeds 110% of the total value of WAY’s outstanding claims secured by them.

13 Confidentiality

13.1 WAY and the Client are obliged to treat all business and technical details which they have obtained from the other party or of which they have become aware in any other way as a result of their business relationship as business secrets and not to disclose, transmit or otherwise make available to third parties, if and as long as such information is not obvious or publicly accessible. The companies affiliated with WAY (§§ 15 ff. AktG), which are used by WAY for the respective contract, are not third parties in this sense. The duplication of any information is only permitted within the framework of the operational requirements and the applicable legal regulations concerning property rights.

13.2 Neither drawings, drafts, models, molded parts, samples, templates and similar objects and documents, data in electronic form, tools and other means of production nor design specifications or other confidential information provided by WAY may be passed on, handed over or otherwise made accessible by the Client to third parties, in particular competitors of WAY or companies affiliated with competitors or with the Client (§§ 15 ff. AktG). This does not apply insofar as WAY has expressly consented to the disclosure in writing beforehand. WAY will not unreasonably refuse such consent if and to the extent that it is necessary for the proper execution of a project under a contract. In this case, the client must obligate the receiving third parties to confidentiality in advance in a manner at least corresponding to these clauses 13.1 and 13.2.

14 Termination

14.1 The termination of a contract shall generally be subject to the relevant provisions of the contract and the applicable law. 14.2 The right to extraordinary termination without notice remains unaffected. WAY shall be entitled to such termination in particular if

14.2.1 the client stops his payments, or insolvency proceedings have been instituted against his assets, or the opening of such proceedings has been rejected for lack of assets;

14.2.2 there is a direct or indirect violation of the provisions of clause 13 by the Principal;

14.2.3 there is a delay in acceptance by the Client or a lack of cooperation after expiry of a grace period according to Section 5.6; 14.2.4 there is a continuing delay in payment by the Client if a reasonable grace period granted by WAY has expired; or

14.2.5 there is any other default by the Client after a reasonable grace period granted by WAY has expired.

14.3 In the event of a justified termination without notice for good cause, the Client is obliged to pay WAY the agreed remuneration plus additional costs and expenses, less costs and expenses not to be borne by WAY due to the premature termination.

15 General provisions

15.1 If any provision in these GTC or in any contract between the parties is or becomes invalid or unenforceable, all other provisions shall remain unaffected. The parties are obliged to replace an invalid or unenforceable provision with a new provision that comes as close as possible to the legal and economic purpose intended by the original provision. The same shall apply in the event of a loophole.

15.2 Unless expressly agreed otherwise, these GTC and any contract between the parties shall be governed by German law, excluding the conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (“CISG”) shall not apply.

15.3 The place of performance shall be WAY’s place of business, unless expressly agreed otherwise.

15.4 The ordinary courts at WAY’s place of business shall have exclusive jurisdiction for all disputes and claims arising from or in connection with a contract and its performance. However, WAY is also entitled, at its own discretion, to sue the Client at the ordinary court of the Client’s place of business.