GENERAL Terms of Service
General Terms of Service
In case of any conflict or contradiction between the German and English translations of the terms of service, only the German version shall be legally valid.
1 Scope
1.1 These terms of use govern the relationship between the platform operator, WPS Management GmbH, Linkstraße 2, 10785 Berlin, Germany (hereinafter referred to as „WPSM“), and the user for the use of the wescale platform (hereinafter referred to as „wescale“).
1.2 WPSM operates a digital and online transaction and marketing platform for companies on the wescale.com websites. The platform offers companies, in particular, the opportunity to connect their buyers, employees, suppliers, and partners in a global network, to exchange content and to optimise purchasing-related processes. Users can upload or make their own digital content available on the platform for the presentation and integration of their processes. In addition, the platform offers users the opportunity to publish their own user profile or company profile. Users can also upload or make their own digital content available on the platform for this purpose.
1.3 All users who wish to use this platform must accept these general terms and conditions. Any conflicting general terms and conditions of the user do not apply. They do not apply even if the user sends them to WPSM or refers to them in communication with WPSM or elsewhere, and WPSM does not object to them.
1.4 Only purchasing companies and their suppliers (who are customers of WPSM) are authorised to use the platform.
1.5 The platform is not aimed at consumers. A consumer is any natural person who concludes a legal transaction for purposes that can primarily be attributed neither to their commercial nor their independent professional activity.
2 Access and registration
2.1 WPSM offers the user an online software solution for a permanent period of use, which makes it easier for the user to organise purchasing and sales processes. WPSM also provides storage space for the data and content with which the user populates the software solution. Transfer of the platform software is not part of the contract.
2.2 WPSM offers the user the right to use the software in accordance with Clause 2.1. There are no costs for registering on the platform and using the additional functions not designated as fee-based. Registration is confirmed by WPSM by email or through the platform. In addition, after registering on the platform, the user can select and order any fee-based additional functions from WPSM.
2.3 The user can choose between different versions of WPSM, which contain different scopes of use and functions of the software solution.
2.4 The offers for additional functions indicated as fee-based by WPSM on the platform represent a non-binding offer in the legal sense. If the user places an order via the platform or via an email created using the platform, the user declares his contractual offer to be binding. Input errors can be corrected during the ordering process before the order is sent using the usual keyboard and mouse functions.
WPSM can accept the offer by
- sending the user a written order confirmation or an order confirmation in text form (email), whereby the receipt of the order confirmation by the user is decisive,
- performing the service,
- requesting payment after the placement of the order by the user.
A payment request is also made by communicating the bank details to the user or by redirecting the user to a payment service provider. If several of the aforementioned
alternatives are available, the contract is concluded at the time at which one of the aforementioned alternatives for acceptance occurs first.
2.5 The contract text is stored by WPSM.
2.6 A fee-based contract can be concluded by placing an order by email as follows: by placing an order, the user declares his contractual interest without obligation or declares his contractual offer to be binding.
2.6.1 Contractual interest
The user’s order, placed as specified in Clause 2.6, represents a non-binding offer from the user to WPSM to conclude a contract for the service described in the order. After receipt of the order, WPSM will, at its discretion, send the user a message confirming receipt of the order and listing its details (order confirmation) and containing the General Terms and Conditions. This order confirmation represents a binding offer to the user. Acceptance is either expressly declared by the user or occurs at the latest upon payment for the service within 14 days of receipt of the offer. The offer made by WPSM is valid for a period of 14 days from receipt by the user.
2.6.2 Contractual offer
The user can also expressly declare his contractual offer to be binding in his order. WPSM will send the user a confirmation of receipt of his order at its discretion. Acceptance is either expressly declared by WPSM within two days or occurs with a request for payment or provision of services.
2.7 The user must provide complete and correct contractual data requested by WPSM in the registration form for login or in another way, if and to the extent that this is not marked as voluntary information. If the data collected changes after the order, the user is obliged to update his profile immediately.2.8 The user must keep his/her login password secret and carefully protect access to his/her user account. The user is obliged to inform WPSM immediately if there are indications that a user account has been misused by third parties.2.9 WPSM is entitled to interrupt the permanent use due to maintenance work and other important reasons, provided that it informs the user in advance with a reasonable notice period. In urgent cases, advance notification is not necessary.
3 Platform functions
3.1 WPSM offers the technical option of managing and organising purchasing and sales processes by providing WPSM-specified interfaces with the online platform.
3.2 The user has the option of sharing information and communications with other users via the platform and the specified interfaces. Users can also publish a company profile.
3.3 All digital content mentioned under 3.1 and 3.2 can be created, uploaded, and managed by the user in their own account area. Thus, the user has the option of uploading their own digital content to the platform and/or offering their own digital content or integrating their own links to other content.
3.4 The respective user is responsible for ensuring that any content he provides is completely exempt from third-party rights, is also legally suitable for these uses, and may be made available. The same applies to data and content that the user transmits at his own responsibility via any interface.
3.5 Each user is obliged to create and manage his own content independently and is liable for the corresponding legal information and labelling obligations as well as any statements in his descriptions and content presentation. It is his responsibility to manage these properly in accordance with his own contractual relationships. He is obliged to comply with his legal obligations.
3.6 The user indemnifies WPSM against all claims, including claims for damages, asserted by third parties against WPSM due to a violation of their rights by the content and offers submitted and published by the user on the platform. The user assumes all reasonable costs incurred by WPSM due to this violation of third-party rights, including reasonable costs incurred for legal defence. All further rights of and claims for damages by WPSM remain unaffected.
3.7 The user must inform WPSM immediately upon becoming aware of any disruptions to the platform and provide WPSM with appropriate support in determining the disruption and its causes and remedying them.
3.8 The user is responsible for archiving documents and information created and viewed using the platform, which he requires for the purposes of preservation of evidence, record keeping, etc., on a storage medium independent of the platform.
4 Payment
4.1 Payment is based on the respective offer selected. Upon conclusion of the contract, either a flat-rate or usage-dependent payment is due for a selected period of time.
4.2 Additional costs will be charged for additional functions depending on the agreed offer.
4.3 WPSM is entitled to demand payment in advance for the payment period.
4.4 If the user defaults on payment, WPSM is entitled to block the services provided at the user’s expense until payment is made. In this case, the user remains obliged to make payment.
4.5 If the user falls behind on payment
a) of the fee or a major part thereof for two consecutive months or
b) over a period extending over several months of an amount that reaches the theoreticalmonthly fee for two months, WPSM may terminate the contractual relationship without notice. WPSM reserves the right to assert further claims due to late payment.
b) over a period extending over several months of an amount that reaches the theoreticalmonthly fee for two months, WPSM may terminate the contractual relationship without notice. WPSM reserves the right to assert further claims due to late payment.
4.6 In addition, in the case of contractual relationships in which the user has committed to making a recurring payment, WPSM is entitled, in the event of termination by WPSM, to
demand a lump-sum payment from the user in the amount of 50% of the fee that would have been payable up to the end of the minimum contract term. This does not apply if the user proves that no damages were incurred or that the actual damages incurred are significantly less than the lump sum.
5 Execution of the service, responsibility
5.1 WPSM offers the technical option of using the platform functions. Any contractual agreements between users are concluded between the respective parties.
5.2 WPSM has the right to technically edit, process and adapt the functional content of the platform so that it can also be displayed on mobile devices or software applications, including those of third parties. WPSM reserves the right to add further interfaces to the platform in the future and improve technical functions at its own discretion. Functions can also be removed at WPSM’s discretion. If a change to paid services could adversely affect the legitimate interests of the user (e.g. in the event of a significant change to the service to the detriment of the user), WPSM will notify the user of this change in service in writing or electronically before it takes effect and will inform the user in this notification of his special right of termination as set out below and the consequences of not exercising his right of termination. In this case, the user has the right to terminate the contract early with a notice period of 14 days from the time the change takes effect (special right of termination). If preliminary agreements for the use of purchasing solutions already exist between WPSM and the customer, the provisions therein take precedence over the aforementioned special right of termination (Clause 5.2 S.4, 5).
5.3 If legal declarations are made by the user within the platform, WPSM is only responsible for their technical display or, if applicable, transmission. The user is responsible for the completeness, accuracy and validity of the content.
5.4 In order to use the access offered by WPSM, the user must have an appropriate IT device and Internet access. It is the sole responsibility of the user to create the aforementioned conditions for use.
5.5 The user concludes separate contracts with third-party providers to whom he has access via any interfaces. With the software solution, WPSM can only offer a technical connection and access option. The user or the third-party provider is responsible for the configuration of the service agreed between them.
6 Rights of use
6.1 The copyright and exclusive right of use for published objects created by WPSM (software including interfaces, websites, scripts, programs, AND graphics) remains solely with WPSM.
6.2 Upon registration and conclusion of the contract for the provision of the software, the user receives a simple, territorially unrestricted right to use the platform to the extent agreed in the contract for his own purposes for the duration of the contract only. Further rights, particularly to replication beyond the extent necessary for contractual use, are not granted. Any rights under §§69d (2) and (3) and 69e of the German Copyright Act remain unaffected.
6.3 Further commercial or business use with respect to third parties or the public demonstration, replication or use of elements of the platform in other electronic or printed publications, particularly on other websites, is not permitted without the express consent of WPSM.
6.4 The user is aware that data uploaded by suppliers to the platform to make it available to a customer of the supplier may be used by WPSM for the purposes of value-added services, data enrichment and data combination. The user grants WPSM a right of use to rearrange, mix and combine this data to „artificially“ create new virtual product data. This creation can be carried out by machine processes, employees, and vicarious agents of WPSM. The user verifies that he has the necessary rights to transfer the aforementioned right of use to WPSM.
6.5 The user grants WPSM a simple right of use for advertising and marketing purposes for and on the platform with regard to its logo and any materials and content made available to WPSM for this purpose. The user can revoke this right of use by notifying WPSM in writing.
7 Term, termination and blocking
7.1 Unless otherwise agreed in individual cases, each user contract has an indefinite contract term and can be terminated by either party with one month’s notice to the end of each calendar month.
7.2 The right of the contracting parties to terminate the contract for cause without observing a period of notice remains unaffected.
7.3 All terminations under this contract must be made in writing. If WPSM provides an option for electronic termination, the user has the right to use this option for valid termination.
7.4 WPSM may take the following measures if there are indications that a user is violating legal provisions, the rights of third parties or these terms and conditions, or that WPSM has another significant legitimate interest, in particular protecting other users from fraudulent activities:
a) Deletion of content,
b) Warning users,
c) Limitation/restriction of use,
d) Temporary blocking,
e) Permanent blocking.
When choosing the measure, WPSM takes into account the legitimate interests of the user concerned.
7.5 In particular, the following actions are prohibited:
- if defamatory, substantively false, offensive, obscene, objectionable, sexually oriented, threatening, harassing or racist material and/or statements are disseminated or any type of pornography, texts or images are offered, provided or otherwise made accessible via the platform.
- if the platform is used to threaten, harass, insult, defraud or violate the rights (including personal rights) of others or the rights of third parties (trademarks, naming rights,
copyrights, data protection, personal rights, etc.). - if interference in the technical design and maintenance of the use of the platform occurs.
- if advertising, especially surreptitious advertising, is published that is not directly related to the users of the platform.
8 Warranty
8.1 The statutory provisions apply to the rights of the user in the event of material defects and defects of title.
9 Liability for defects
9.1 WPSM guarantees that all services are free from material defects and/or defects of title.
9.2 The aforementioned liability for defects does not apply to any open-source software used, as no rights of use are transferred from WPSM in this case. Liability on the part of WPSM for material defects and/or defects of title is therefore excluded due to the specific nature of open-source software. Liability for defects also does not apply to functions that no longer correspond to the current status due to changes in the law and were not agreed upon by the parties as part of the scope of services.
9.3 A defect can also be remedied by giving the user instructions by telephone, in writing or electronically. If WPSM offers the user reasonable technical changes to avoid or remedy defects that do not change the intended use of the functions purchased by the user, the user must accept these. Defects can also be remedied by providing a workaround solution.
9.4 Termination by the user of rental services pursuant to §543 (2) (1) (1) of the German Civil Code (BGB) due to non-granting of contractual use is only permissible if WPSM has been
given sufficient opportunity to remedy the defect and this has failed. Clause 10 (Liability) applies accordingly.
10 Liability
10.1 Liability is excluded for damage to legal assets other than life, body or health unless the damages are due to intentional or grossly negligent conduct by WPSM, one of its legal
representatives or one of its vicarious agents, or the conduct also does not represent a breach of essential contractual obligations. Essential contractual obligations are those
obligations whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the user can regularly rely.
10.2 In the event of data loss caused by WPSM due to intent or gross negligence, WPSM shall be liable exclusively for the costs of copying the data from the backup copies to be created by the user and for restoring the data that would have been lost even if the data had been properly backed up.
10.3 The aforementioned exclusions of liability do not apply to the extent that claims under the German Product Liability Act are affected, a defect was fraudulently concealed, or a guarantee of quality was given.
10.4 WPSM provides the user who uses a paid service with the content of this service with an availability of 98.8%. The availability refers to the average availability during the operating hours of each calendar month. WPSM reserves the right to interrupt the provision of services to carry out scheduled maintenance work and unscheduled maintenance work in the event of an emergency (the maintenance windows). The times of the maintenance windows are not considered operating times within the meaning of the above regulations. WPSM shall notify the user of scheduled maintenance windows with a notice period of four (4) days. WPSM shall notify the user of unscheduled maintenance windows in advance as much as possible and reasonably. Other temporary interruptions in service due to internet disruptions at third-party providers or network operators or in the event of force majeure will also not be taken into account.
10.5 Users who only have free access to the platform and have not ordered any additional paid functions have no right to the availability of the platform.
11 Data protection
11.1 The user is the data controller for processing the personal data entered and stored by him within the software solutions and within the framework of the applicable data protection laws (GDPR). The use of the platform requires the conclusion of a data processing contract (Art. 28 (3) of the 3 GDPR).
11.2 Recording and evaluation of usage by the server is necessary for the provision of the software solutions and enables support for the full use of the software solutions and
optimisation of the functionalities provided, support for user support requests, and maintenance purposes. After the end of the service period of booked services, the usage data is deleted after six months. The storage of data and documentation to prove the proper provision of services, to fulfil tax retention obligations and in the case of anonymous recordings remains unaffected.
11.3 If the user has concluded a contract for services from WPSM, WPSM will offer the user information about its own similar services via the email address sent when the contract was concluded (§7 III of the German Unfair Competition Act). The user can object to this being sent at any time. For further information and user rights, please refer to the privacy policy.
12 Final provisions
12.1 The relationship between the contracting parties shall be governed by the law applicable in the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
12.2 The contract language is German. In the case of different language versions, only the German text of these terms and conditions is authoritative.
12.3 WPSM is entitled to change the terms of use or other conditions. The user shall be notified of changes by email at least three weeks before they come into effect. The changes will take effect if the user does not object within three weeks of
receiving the notification of change within the platform, and WPSM has informed the user of this legal consequence in the notification of change.
12.4 WPSM is entitled to increase the payment to be made by the user once a year, with effect from the beginning of the next payment period, by a maximum of 5% of the payment originally agreed before the increase.
12.5 The place of performance and exclusive place of jurisdiction for all disputes arising from or in connection with this contract is the registered office of WPSM