(Status: October 2019)
These Terms of Use apply in the version valid at the time of conclusion of the contract to the use of the winkler NOW application (hereinafter "winkler NOW") and the services offered through it by Christian Winkler GmbH & Co. KG, Leitzstraße 47, 70469 Stuttgart (hereinafter "winkler") by the customer as the end user (hereinafter "User").
Other contractual conditions or conflicting terms and conditions shall not become part of the contract, even if winkler does not expressly object to them.
Section 1 Service offer and availability
(1) winkler NOW gives users the ability to contact winkler employees and communicate with them through text, image or audio messages. At the same time, winkler NOW offers users the option of entering product codes or using barcode scanning to retrieve data about products. For purchases in the winkler online shop, the terms and conditions of sale of winkler Unternehmensgruppe apply (www.winkler.com/gtcs). Further details are regulated in Section 7.
(2) winkler NOW is available for the operating systems iOS by Apple Inc. and Android by Google LLC. In addition, you can use winkler NOW as a web app on various browsers. winkler reserves the right to adapt the supported operating systems and versions at any time. For further information, please see www.winkler.com/de/services/winkler-now-app/faq/. The user is not entitled to the retention of certain services. Further details are regulated in Section 14.
(3) winkler reserves the right to supplement the services offered within the scope of winkler NOW or to temporarily limit the use of the services provided. The user is not entitled to the retention of certain services. Further details are regulated in Section 14.
(4) To use the services provided by winkler NOW, the user must register in accordance with Section 2. Registration for use is free of charge.
(5) The user is not entitled to uninterrupted use. It is not guaranteed that access to or use of winkler NOW will not be interrupted or impaired for a short time due to maintenance work, further developments or other disruptions, which may also lead to data loss. winkler aims to ensure that the usability of the services is as free of interruptions as possible.
Section 2 Registration
(1) Using winkler NOW requires prior registration in the winkler online shop and then a login to winkler NOW. Registration is free of charge.
(2) During the registration process in the winkler online shop, the user is asked to specify their login details. These consist of their email address, first and last name, title and a password of their choice. Users who are already winkler customers must enter their customer number and postal code. To register a new company, the company name, address of the company, business field and phone number must be entered. In addition to this mandatory information, the user may provide further data voluntarily (e.g., fax number). When registering, the user may not impersonate any other person or use a name that they are not authorized to use.
(3) If the registration data or profile data changes during the course of the relationship of use, each user must correct their data in their personal settings immediately.
(4) By logging in to winkler NOW after registering in the online shop, the user submits an offer to winkler to establish a relationship of use on the basis of these Terms of Use. The acceptance of the offer will be decided at winkler's own discretion. If the login is not confirmed within a reasonable period of time by an email sent to the specified email address or by activating the user profile, the user is no longer bound to the offer. After the email confirmation has been received or the user profile has been activated, an agreed relationship of use is established and winkler activates the requested access. Upon activation, the user is entitled to use winkler NOW within the scope of these Terms of Use. The text of the contract is stored by winkler but cannot be viewed by the user.
(5) The registration, contractual relationship and user account, including login details, are not transferable.
Section 3 Responsibility for login details
(1) The login details, including the password, must be kept secret by the user and must not be made accessible to unauthorized third parties under any circumstances.
(2) Furthermore, the user is responsible for ensuring that their access to winkler NOW and the use of the available services is carried out exclusively by the user or by the persons authorized by the user. If there is any reason to fear that unauthorized third parties have gained or will gain knowledge of login details, winkler must be informed immediately.
(3) The user is fully responsible for any use and/or other activity in winkler NOW conducted under their login details.
Section 4 Use of winkler NOW
(1) Users of winkler NOW can send messages to winkler employees as text, audio or image files.
(2) When users contact winkler employees in winkler NOW, the message is visible to numerous winkler employees. The purpose of this is to enable all messages to be processed quickly.
(3) winkler NOW uses a chat bot that automatically checks whether a number entered is a winkler product number, manufacturer item number or barcode of a winkler product. If this is the case, winkler NOW will show the user further information on the respective product.
(4) The right of use is limited to access to winkler NOW, as well as to the use of the respective available services within the scope of the provisions of these Terms of Use.
(5) The user is responsible for establishing the technical requirements necessary in the user's area of responsibility for the contractual use of the services (in particular, a smartphone or tablet and Internet access). winkler is not obligated to provide any advice in this regard.
(6) winkler grants the user the simple, non-transferable and non-sublicensable right to use winkler NOW for the duration described in these Terms of Use. This right is limited to the term of the relationship of use. Any transfer of winkler NOW to the user beyond this shall not take place.
(7) The user receives all the software in executable form only. The source code is not handed over. The processing, distribution, public disclosure and decompilation of the software are not allowed without the prior written consent of winkler.
(8) The software may only be used within the permissible scope of the applicable laws. In particular, it is not allowed to violate the rights of third parties (e.g., personal rights or industrial property rights). Further details are regulated in Section 5.
(9) It is also forbidden to take any action that is likely to impair the smooth operation of winkler NOW, in particular, to overload the IT systems.
Section 5 Posting texts and other content
(1) The user affirms not to disclose any business secrets in conjunction with using winkler NOW. If business secrets are disclosed, the user allows winkler to use this information for processing the request.
(2) By placing copyrighted or otherwise legally protected content in winkler NOW, the user grants winkler – free of charge – the necessary, non-exclusive, transferable, sublicensable, worldwide and temporally unlimited rights to use this content in order to provide the respective service and to the extent necessary for this purpose. This includes, in particular, storage and hosting on the servers of winkler.
(3) In posting content (images, texts, audio messages), the user assures winkler that they are the sole owner of all rights to the content they send to winkler or that they are otherwise authorized (e.g., by effective permission of the holders of the rights) to post the content and to grant the rights of use and utilization as described above. This applies, in particular, to third-party copyrights, trademark rights or patent rights, as well as industrial and/or competition-related ancillary copyrights and personal rights. Furthermore, the user agrees to refrain from posting any content that violates applicable law.
(4) The user is forbidden to engage in any activities on or related to the user account that violate applicable law, infringe the rights of third parties or violate the principles governing the protection of minors. In particular, the following actions are forbidden:
a) the posting, distribution, offering and advertisement of pornographic content, services and/or products that are fraudulent and/or violate laws for the protection of minors, data protection laws and/or other laws;
b) the use of content that insults or slanders other users or third parties;
c) the use, provision and distribution of content, services and/or products that are protected by law or subject to third-party rights (e.g., copyrights) without being expressly authorized to do so.
(5) Furthermore, regardless of any violation of the law, the user is forbidden to engage in the following activities when posting their own content in their messages:
a) the distribution of offensive, sexually explicit, obscene or defamatory content or communication, as well as content or communication that is likely to promote or support racism, bigotry, hatred, physical violence or illegal acts (whether explicitly or implicitly);
b) harassing other users, including employees of winkler, and encouraging or supporting such harassment;
c) soliciting other users, including employees of winkler, to disclose passwords or personal data for commercial or unlawful purposes;
d) the distribution of the content available in winkler NOW, unless the user is expressly permitted to do so by the respective author or this is expressly made available as a feature of winkler NOW.
Section 6 Use of the contents available through winkler NOW
(1) The contents available through winkler NOW are predominantly protected by copyright, trademark and competition law or by other property rights and are the property of winkler in each case. As such, the compilation of the contents is also protected by copyright. The user is only entitled to use this content in accordance with these Terms of Use.
(2) Unless further use is not expressly permitted in these Terms of Use,
a) the user may only use the contents available in winkler NOW for internal business purposes. Any commercial use of the available content beyond this is forbidden. This right of use is limited to the duration of the contractual use of winkler NOW;
b) the user is forbidden to edit, change, translate, show or perform, publish, exhibit, reproduce (including downloads) or distribute the available content in whole or in part (including the use of iFraming). It is also forbidden to remove or change copyright notices, logos and other identifying marks or protection notices.
(3) The user is only entitled to download content, send it by email or print if there is a corresponding option available to them as a function (e.g., by means of a download button).
(4) The user shall receive a non-exclusive and unlimited right of use to contents that have been properly downloaded, sent or printed out by them for their own internal purposes, unless a different use is expressly permitted in individual cases. In all other respects, all rights to the contents remain with the original holder of the rights.
(5) The mandatory statutory rights (including reproduction for private and other own use according to Section 53 German Copyright Act (Urhebergesetz) remain unaffected.
Section 7 Use of the online shop
In conjunction with using winkler NOW, the user is allowed access to the winkler online shop. For purchases that the user makes with the app, the terms and conditions of sale of winkler Unternehmensgruppe apply. These are available at www.winkler.com/gtcs.
Section 8 Personal data
(1) All personal data provided by the user will be handled by winkler NOW only in accordance with the applicable data protection regulations.
(2) The details of the data collected in winkler NOW, the respective use of the data and the rights of data subjects are shown in the Privacy Policy of winkler NOW, which can be viewed at any time at www.winkler.com/de/services/winkler-now-app/datenschutz.
(3) If the user visits the website of winkler by way of winkler NOW, the provisions of the privacy policy of the website shall apply accordingly. The privacy policy is available at www.winkler.com/data-protection.
Section 9 Blocking access to winkler NOW
(1) winkler is entitled to block the user's access to winkler NOW as a whole or to individual sections temporarily or permanently at its own discretion if there are concrete indications that the user violates or has violated these Terms of Use and/or applicable law, or if winkler has any other justified interest in blocking access. When deciding whether to block a user, the legitimate interests of the user shall be given due consideration. If the user repeatedly violates these Terms of Use despite being notified, winkler reserves the right to block access permanently.
(2) In the event of a temporary or permanent block, the access right will be blocked, and the user will be notified of this by email.
(3) In the event of a temporary block, the access right will be reactivated after the blocking period has expired or the reason for the block has finally ceased to exist. The user will be notified of this by email. A permanently blocked access right cannot be restored. Permanently blocked users are permanently excluded from using winkler NOW and are not allowed to log in again. If the user is permanently blocked, winkler has the right to extraordinarily terminate the relationship of use with the user.
(4) If a user is blocked in the online shop and the user uses the same login details in winkler NOW, the user will also be blocked in winkler NOW. Conversely, blocking the user in winkler NOW does not automatically result in blocking the user in the online shop.
Section 10 Duration, Termination of Use
(1) The relationship of use between winkler and the user is concluded for an indefinite period. The user is allowed to terminate the relationship of use at any time by sending an email to widerruf-now@winkler.de. Unless otherwise agreed, winkler is allowed to terminate the user relationship without notice.
(2) After 30 calendar days from the effective date of termination and after expiration of any statutory retention periods, winkler is entitled to irretrievably delete all data that the terminating user has created in conjunction with using winkler NOW. In the case of personal data, the data protection provisions have priority, which may also specify a shorter period for deletion. Further information can be found in the Privacy Policy of winkler NOW.
(3) The right to extraordinary termination remains unaffected. winkler has the right to extraordinary termination, in particular if the user repeatedly violates these Terms of Use and, despite a reminder from winkler, fails to remedy this violation or violates the Terms of Use again.
Section 11 Limitation of Liability
(1) winkler is liable for damages according to the statutory provisions for personal injury and for damages under the Product Liability Act (Produkthaftungsgesetz) or within the scope of Section 44a Telecommunications Act (Telekommunikationsgesetz).
(2) For other damages, winkler is liable according to the following provisions unless otherwise specified in a guarantee assumed by winkler.
(3) According to the statutory provisions, winkler is liable for damages caused by fraudulent conduct as well as for damages caused by intent or gross negligence on the part of winkler, its legal representatives or executive employees.
(4) The liability of winkler is limited to the amount of the foreseeable damage typical for this type of contract for damages resulting from a slightly negligent breach of essential contractual obligations or obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose fulfillment the user may generally rely, as well as for damages caused intentionally or by gross negligence by simple vicarious agents.
(5) In all other respects, any liability of winkler for damages caused by slight negligence is excluded.
Section 12 Indemnity
(1) The user releases winkler from all costs, claims and disadvantages that third parties assert against winkler due to the user's infringement of their rights by means of the user's contents or due to the user's infringement of the law.
(2) In addition, the user is required to reimburse winkler for all costs incurred as a result of the infringement, in particular, the costs of reasonable legal defense, including any court and attorney fees incurred. This does not apply if and to the extent that the user is not responsible for the infringement.
Section 13 Amendment of the terms of use
(1) winkler reserves the right to change these Terms of Use at any time. The user will be notified of such changes by email at least 30 calendar days before the changes are scheduled to take effect.
(2) If the user does not object within 30 days of receiving the notification and continues to use the services even after expiration of the objection period, the changes shall be considered to have been effectively agreed upon after expiration of the deadline. In the event of an objection, the relationship of use will be continued under the previous conditions. winkler reserves the right to terminate the user relationship in the event of an objection. In the notification of the change, the user will be informed of their right to object and of the consequences.
Section 14 Changes to services
(1) winkler is entitled to change the free services provided by winkler NOW at any time, to make new services available free of charge or against payment and to discontinue the provision of free services. Hereby, winkler will always respect the legitimate interests of the user. If services provided free of charge are changed to services provided for a fee or if services provided for a fee are changed, the change procedure in Section 13 shall apply accordingly.
(2) In each notification of the change, the user will be informed separately of the consequences of the change and their right to object and/or to terminate the contract.
Section 15 Final provisions
(1) Detailed information about winkler as the operator of winkler NOW is available to the user in the publisher's information under www.winkler.com/imprint/.
(2) German law applies to the exclusion of German international private law and the UN Convention on Contracts for the International Sale of Goods. If the user is a consumer, this choice of law shall apply only to the extent that it does not deprive the user of mandatory consumer protection provisions of the country in which the user as a consumer has their habitual residence at the time of their offer.
(3) If the user is a commercial trader, the exclusive place of jurisdiction shall be the registered office of winkler. winkler shall, however, also be entitled to take legal action at the user's place of business.
(4) The language of the contract is German. Even if the text of the contract is translated into any other language, the German text of the contract remains binding. The other language version is for information purposes only.