1. GENERAL INFORMATION AND SUBJECT MATTER OF THE REGULATIONS
a. All contracts for deliveries and services that Bütema AG, Steinbeisstrasse 7, D-74321 Bietigheim-Bissingen ("we") concludes exclusively with entrepreneurs, legal entities under public law or special funds under public law (hereinafter"customers") are subject to the following terms and conditions.
b. Our terms and conditions apply exclusively and within the scope of current and future business relationships; any deviating or supplementary terms and conditions of the customer are hereby rejected.
c. The content of the contract is otherwise governed by the written agreements. Contract amendments or additions are only effective if they are confirmed by us in writing.
d. "Goods" within the meaning of this contract are all items to be provided to the customer in accordance with the contract, including software, even if they are intangible, e.g., provided by electronic means of transmission. "IT system" refers to hardware and/or software and includes, in particular, "IuK" (information and communication) systems.
2. REFERENCES, ORDER OF PRECEDENCE, AND DEFINITIONS
a. References to legal requirements, annexes, or other documents shall, unless expressly stated otherwise, refer to the currently valid version of the relevant legal requirements, annexes, or other documents. References to the contract shall include its annexes.
b. Supplementary contractual terms and conditions, insofar as they are used in conjunction with these terms and conditions, shall take precedence over these terms and conditions.
c. In case of doubt, annexes are an integral part of the respective contract/terms and conditions.
3. CONCLUSION OF THE CONTRACT
a. Our offers are generally subject to change and represent a non-binding invitation to the customer to purchase goods or services. The customer's binding offer is only accepted if we confirm this in writing or have carried out the delivery or service.
b. We are entitled to fulfill our performance obligations by commissioning suitable subcontractors, unless otherwise specified in the written agreements.
4 A. PROVISIONS REGARDING THE PURCHASE OF HARDWARE AND OPERATING SYSTEMS
a. If the delivery of hardware (including mobile devices) is part of the subject matter of the contract, the customer shall purchase from us the devices specified in the written contract and, if applicable, the operating system specified therein in executable form (object code), which is installed on the devices.
b. We shall take care of delivery and—if agreed—setup, installation, or commissioning at the agreed delivery location and at the agreed times. Prior to delivery of the hardware, the customer must ensure that the spatial and technical conditions necessary for setup, installation, or commissioning are in place.
c. There is no entitlement to the release or disclosure of the source code.
d. For hardware and operating systems, the customer shall receive the user documentation (operating instructions/user manual) provided by the manufacturer. We are not obliged to provide any further documentation. Upon request, the customer may inspect the original user documentation to be delivered before concluding the contract.
e. The customer is responsible for checking whether the hardware has been damaged during transport, whether parts of the hardware delivery are missing, or whether certain functions are unavailable. In such a case, this must be reported to us immediately for the purpose of prompt repair, replacement, or substitute delivery.
f. The customer receives the simple (non-exclusive) right to use the operating system installed on the hardware permanently as part of the designated devices.
g. Unless specified in a separate written contract, advice regarding selection, use, or other matters relating to the subject matter of the contract shall not be considered part of our services in cases of doubt.
h. Hardware and operating systems may be subject to (re-)export restrictions. In this regard, the customer must observe the export restrictions specified by the respective manufacturer.
i. The customer shall only acquire ownership of the hardware and the accompanying user documentation upon full payment of the invoiced amount. Notwithstanding the following further provisions, the customer shall acquire a permanent right of use to the operating system.
4 B. PROVISIONS REGARDING THE TEMPORARY TRANSFER OF USE OF HARDWARE AND OPERATING SYSTEMS UNDER TENANCY LAW
a. If the subject matter of the contract includes the delivery of hardware (including mobile devices) for use for a specific period of time, the customer shall receive from us, for the agreed period of time, the temporary right to use the devices specified in the written contract and, if applicable, the operating system specified therein in executable form (object code) installed on the devices.
b. The customer receives the simple (non-exclusive) right to use the operating system installed on the hardware during the agreed period of use as part of the designated devices.
c. The hardware is provided for the exclusive use of the customer. The hardware may only be used for the purposes specified in the written contract.
d. The customer is not entitled to transfer the use of the hardware, including the software provided under this agreement, to a third party, in particular to rent or lend it. Use by the customer's employees is permitted within the scope of contractual use.
e. The customer must treat the hardware with care and protect it from damage. They shall ensure that the hardware is used and operated properly by sufficiently qualified personnel. The customer shall follow the maintenance, care, and operating instructions, in particular the information contained in the operating manual and documentation provided. Markings on the hardware, in particular labels, numbers, or inscriptions, may not be removed, altered, or made illegible.
f. The customer shall grant us free access to the hardware during normal business hours for maintenance and repair work. In doing so, the customer's legitimate security interests must be safeguarded.
g. We are entitled to make changes to the hardware if these serve to maintain it. Improvements may only be made if they are reasonable for the customer and do not impair the contractual use of the hardware. We will inform the customer of any such measures in good time in advance.
h. Changes and additions to the hardware by the customer require our prior consent. This applies in particular to additions or installations as well as the connection of the hardware to other devices, ICT systems, or networks. Upon return of the hardware, the customer shall restore it to its original condition at our request.
i. The installation of the hardware at a location other than that agreed in the written contract requires our prior consent if the new installation site is more than 30 km away from the original location. In this case, we may require that the transport and reinstallation be carried out by qualified specialists. The customer shall bear the expenses and consequential costs associated with a change of location, as well as any additional costs for maintenance and servicing that may arise as a result.
j. Upon termination of the contractual relationship, the customer must return the hardware to us in proper condition. Upon return of the hardware, a report shall be drawn up in which any existing damage and defects to the hardware shall be recorded. The customer shall reimburse the costs of repairing any damage or defects for which they are responsible. Unless otherwise agreed in the written contract, the customer shall bear the costs of dismantling, packaging, and returning the hardware.
k. In all other respects, section 4 a. letters b to e apply accordingly.
5 A. PROVISIONS FOR STANDARD SOFTWARE
a. Unless otherwise agreed in writing, the software covered by this contract is exclusively standard software that has not been individually developed or produced for the customer's needs. The customer is aware that, given the current state of technology, it is impossible to develop standard software that is error-free for all application conditions.
b. For our own programs, the scope of delivery includes delivery and user documentation. For standard software from third-party manufacturers, we provide the customer with the manufacturer's original user documentation; we are not obligated to provide any additional documentation.
c. If we are obliged to transfer the object code, the transfer shall take place on a data carrier or by sending the customer a download link.
d. Under no circumstances shall there be any entitlement to the release or disclosure of the source code.
e. If we are obliged to install software, the customer shall ensure that the hardware and other system environment requirements communicated to them are met prior to installation.
f. During any test operations and during installation, the customer shall ensure the presence of competent and trained employees and, if necessary, suspend other work with the IT system. The customer shall ensure that all data is backed up prior to each installation.
5 B. PROVISIONS FOR THE CREATION OF CUSTOM SOFTWARE
a. The following provisions apply to the creation of custom software and the implementation of individual enhancements or adaptations to software created or delivered by us:
b. If the customer intends to purchase standard software specified by us, to be specified in more detail, and have it adapted to the needs of their business, we will install and test the standard software and the adapted software at our premises, deliver it to the customer after successful testing, and, at the customer's request, introduce their employees to the software and, if necessary, conduct training courses.
c. The specific rights and obligations of the parties are set out in the written contract.
d. In case of doubt, the scope of services includes the delivery of the programs in object code, the delivery of user documentation and—if a corresponding contract exists—production and maintenance documentation to the extent required by the customer under the contract (for example, if agreed, to the extent necessary for the customer to independently maintain and further develop the customized programs).
6. DEPOSIT AGREEMENT
If we have entered into a deposit agreement with regard to contractual software, the customer may join this agreement upon request; the prerequisite for this is the existence of a legally valid release or managed services agreement with us.
7. RIGHTS OF USE
a. If hardware or software is provided exclusively for use, we remain the sole owner or rights holder.
b. In the case of standard software, we grant the customer a simple, non-exclusive, unlimited, irrevocable, and non-transferable right to use this software on their IT system to the extent specified in the written contract.
c. With regard to the creation of custom software and the implementation of custom extensions or adaptations, the customer shall, in case of doubt, receive the exclusive, unlimited in time, unrestricted in content, irrevocable, and transferable right of use.
d. Insofar as software products created by third parties, e.g., program libraries, parts of software tools, and others, are integrated into the delivered systems, we grant the customer a simple, non-exclusive, perpetual, irrevocable, and non-transferable right to use these software products together with the delivered IT system on their equipment.
e. If open source software is supplied together with the system, all rights of the customer with regard to this software shall be governed by the respective provisions of the rights holder or distributor.
f. We shall inform the customer of the inclusion of software subject to the GNU Public License (GPL) of any version or other so-called copy-left licenses prior to delivery of the corresponding systems.
g. Unless otherwise agreed in writing or otherwise prescribed by mandatory legal provisions, the customer, as the licensee, shall not be authorized to modify or edit, copy, or reproduce the software or text materials (codes, documentation) provided to them, either themselves or through third parties. Existing copyright notices or registration marks, such as registration numbers in the software, may not be removed or altered.
8. SHIPPING, PRICES, TERMS OF PAYMENT
a. Unless otherwise specified, shipping is charged at the applicable flat rates for freight/packaging costs. The costs for express shipping requested by the customer are charged according to actual expenditure. At the customer's request, deliveries will be insured by us at the customer's expense. The costs of normal packaging are included in the flat-rate freight/packaging costs. If special packaging is requested or necessary under the given circumstances, this will be charged according to a separate agreement.
b. Unless otherwise specified in the contract, invoices are due immediately and without deduction. If no payment date has been agreed, the occurrence of default shall be governed by the statutory provisions.
c. If a delivery period of more than six weeks has been agreed or in the case of continuing obligations lasting longer than six weeks, we shall be entitled to charge the customer for any cost increases incurred in the meantime for the procurement or delivery (changes in customs duties, import and export fees, foreign exchange controls, etc.) or for personnel deployment (wages and ancillary wage costs) that are beyond our control by increasing the prices affected by this to the extent necessary to compensate for these changes.
9. RIGHTS OF SET-OFF AND RETENTION, ASSIGNMENT, PARTIAL PERFORMANCE
a. The customer is only entitled to set off claims that are undisputed or have been legally established. The customer is only entitled to exercise rights of retention with undisputed or legally established claims from the same legal relationship.
b. The assignment of claims against us is excluded. This does not apply within the scope of application of Section 354a of the German Commercial Code (HGB).
c. Partial deliveries, partial services, and corresponding invoices are permissible if they are not unreasonable for the customer.
10. DELIVERY, TRANSFER OF RISK
a. All deliveries are made ex works. We do not guarantee the cheapest shipping method.
b. Regardless of the arrangement for transport costs, the risk of loss and deterioration shall pass to the customer upon delivery to the person or organization responsible for shipping, even if we carry out the shipping ourselves.
11. RESERVATION OF SELF-SUPPLY, OBSTACLES TO PERFORMANCE, DELAY IN ACCEPTANCE
a. We procure any hardware and software required to perform our contractual obligations from third parties; our delivery obligation is therefore subject to timely and proper self-supply by these suppliers.
b. Obstacles to performance for which we are not responsible shall result in a corresponding extension of the performance period. This applies in particular to insufficient or missing self-delivery (see letter a), force majeure, war, natural disasters, traffic or operational disruptions, import restrictions, energy and raw material shortages, official measures and labor disputes, as well as the customer's breach of cooperation obligations or duties. We shall be entitled to withdraw from the contract if the impediment to performance continues for an unknown period of time and the purpose of the contract is jeopardized. If the impediment lasts longer than two months, the customer shall be entitled to withdraw from the contract with regard to the part not yet fulfilled, unless he is entitled to withdraw from the contract as a whole.
c. If the customer does not accept or receive the contractual item within the specified period, we shall be entitled, subject to all further rights, to set a reasonable grace period, after the expiry of which we may dispose of the contractual item elsewhere or perform with a reasonably extended grace period.
12. RETENTION OF TITLE
a. We retain title to the items delivered by us until all payments arising from the entire business relationship have been received.
b. The customer is obligated to treat the purchased item subject to retention of title with care. In particular, they are obligated to insure it adequately at their own expense against fire, water, theft, and vandalism damage at replacement value. If maintenance and inspection work is necessary, they must carry this out in good time at their own expense.
c. In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can take legal action in accordance with § 771 ZPO (German Code of Civil Procedure). If the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit in accordance with § 771 ZPO, the customer shall be liable for the loss incurred by us.
13. LIMITATION OF LIABILITY AND CONTRIBUTORY NEGLIGENCE
a. We shall be liable without limitation in cases of intent or the assumption of a guarantee. We shall not be liable for damages incurred by the customer as a result of data loss for which we are not responsible. The customer is obliged to take appropriate state-of-the-art protection and security measures.
b. We shall be liable for direct damages caused by intent, gross negligence, or slight negligence in breach of essential contractual obligations. An obligation is essential to the contract if its fulfillment is essential for the proper execution of the contract and if the customer can regularly rely on its fulfillment. In the event of slight negligence, liability shall be limited to typical, foreseeable damages. Liability for financial, consequential, or other indirect damages, in particular for lost profits, loss of information, and other financial losses, is excluded.
c. Liability for interruptions, disruptions, or other damaging events caused by telecommunications services provided by us or by third parties for whom we are liable is limited to the amount of recourse available to us against the respective telecommunications service provider. We are not liable for the functionality of the communication facilities to the server covered by the contract in the event of power failures and server failures that are beyond our control.
d. The limitation period for non-material breaches of contract is limited to two years.
e. Liability for open source software that has been provided free of charge is excluded.
f. The limitations of liability apply conclusively and independently of legal grounds to all liability claims in connection with this contract, including, in particular, warranty liability. This does not apply to mandatory statutory liability, in particular liability under the Product Liability Act or in the event of injury to life, limb, or health.
g. In the event of a warranty or liability claim, contributory negligence on the part of the customer shall be taken into account appropriately, in particular in the case of insufficient error reports or insufficient data backup.
14. MATERIAL DEFECTS AND DEFECTS OF TITLE; NOTIFICATION OF MALFUNCTIONS AND DEFECTS
a. If a purchase has been made and this purchase is a commercial transaction for us and the customer, the customer must immediately inspect the delivered contractual item for deviations in quality and quantity and notify us of any recognizable defectswithin a period of one week from receipt of the goods; otherwise the assertion of warranty claims is excluded. Hidden defects must be reported to us within a period of one week from discovery. Timely dispatch is sufficient to meet the deadline. In this case, the customer bears the full burden of proof for all claim requirements, in particular for the defect itself, for the time of discovery of the defect, and for the timeliness of the notification of defects.
b. In the event of defects, we shall, at our discretion, provide warranty by means of subsequent performance in the form of repair or replacement delivery; in the case of hardware provision, this shall always be by means of replacement within a standard period of 48 hours.
c. If the subsequent performance fails or if the repair can only be carried out at disproportionately high costs, we may refuse to do so and the customer shall be entitled to withdraw from the contract or reduce the remuneration claim. Other warranty rights—in particular, self-performance—are excluded.
d. If we deliver a defect-free contractual item for the purpose of subsequent performance, we may demand that the customer return the defective contractual item.
e. Damage caused by improper or non-contractual actions on the part of the customer during installation, connection, operation, or storage shall not give rise to any claims against us.
f. When purchasing used items, the customer's rights in respect of material defects are excluded. This does not apply to claims for damages and claims arising from a warranty given by us (guarantee, Section 276 (1) BGB) or a quality or durability guarantee (Section 443 BGB) or in the event of fraudulent concealment of a defect (Section 444 BGB).
g. In the event of material defects in supplied third-party hardware and standard software, as well as in the event of third-party involvement for maintenance services, we shall be entitled to assign our corresponding claims against our supplier, the manufacturer, or other third parties to the customer for the purpose of rectification or replacement delivery, unless this is unreasonable for the customer.
h. If we are unable to remedy the defect or provide a replacement delivery, we will show the customer ways to work around the defect. If these are reasonable for the customer, they shall be deemed to be subsequent performance.
i. We shall only be liable for defects in software that were already present when it was handed over to the customer if we are responsible for these defects.
j. In the event of interference by the customer with the subject matter of the contract, in particular with the program code, which is not expressly permitted by the operating instructions or other instructions for use, the customer shall not be entitled to any claims for defects unless the customer demonstrates and proves to us that the defect is not due to the interference.
k. All of the above shall also apply if we have adapted, configured, or otherwise modified the software or hardware to meet the customer's requirements, unless the material defect was caused by our performance.
l. The customer's warranty claims for defects shall become time-barred one year after the transfer of risk. Excluded from this provision are claims for damages, claims for defects due to fraudulent concealment, and claims arising from a guarantee that we have assumed for the quality of the item. The right of recourse under Section 478 of the German Civil Code (BGB) is also excluded. The statutory limitation periods apply to these excluded claims.
m. If the customer makes a claim against us for subsequent performance and it turns out that there is no entitlement to subsequent performance (e.g., user error, improper handling of the goods, absence of a defect), the customer shall reimburse us for all costs incurred in connection with the inspection of the goods and the subsequent performance, unless he is not responsible for our claim.
15. ACCEPTANCE OF WORK PERFORMANCE
a. After installation or completion of the subject matter of the contract and its inspection, we shall notify the customer in writing of its functionality and request the customer to accept it.
b. The customer can then check that the goods are in working order. If the goods are acceptable, the customer shall declare acceptance in writing without delay, or within 10 working days in case of doubt.
c. If the customer does not accept the software within this period, acceptance shall nevertheless be deemed to have taken place. The date on which the letter is received by the customer shall be decisive for the commencement of the period. If the customer puts the software into operation or pays the remuneration without written objection, this shall be deemed equivalent to acceptance.
d. Acceptance cannot be refused on the grounds of minor defects.
16. CONFIDENTIALITY AND SECRECY
a. The parties mutually undertake to keep all business and trade secrets, including offer documents, confidential and not to disclose them to third parties or exploit them in any way. The documents, drawings, and other information received by the other party to the contract on the basis of the business relationship may only be used by that party within the scope of the respective purpose of the contract.
b. In particular, the customer is obliged to use all information about the non-public components and properties of software created or adapted by us, such as code and functionality, which he receives within the scope of his contractual relationship with us, only for the purposes of this contractual relationship and to keep it confidential in all other respects. Any disclosure of such information to third parties that is necessary for these purposes requires that the customer impose the same confidentiality obligation on the recipient of this information. The above obligation does not apply to information that is demonstrably public knowledge or belongs to the known state of the art or was already known to the customer before it was disclosed by us or was disclosed to the customer again after disclosure by the other contracting party by third parties who were not subject to any confidentiality obligation towards us.
c. The parties shall ensure through appropriate agreements with employees and other assistants and vicarious agents and appropriate organizational measures that they are subject to the same duty of confidentiality.
d. These obligations shall continue to apply even after termination of the contract.
17. DATA PROTECTION
a. The customer shall ensure that its IT systems and databases comply with the relevant federal data protection law, state data protection law, and any applicable special data protection regulations. This applies in particular to the collection, processing, and use of data and databases.
b. The customer shall ensure that no actions are taken in the performance of this contract that violate existing data protection regulations. In individual cases, the person responsible for data protection (data protection officer) to be appointed by the customer shall consult with us.
18. CHANGES TO THE TERMS AND CONDITIONS
a. Unless otherwise specified, we are entitled to amend or supplement these terms and conditions as follows; the same applies to the price list on which our services are based, which we may amend at our reasonable discretion (§ 315 (3) BGB):
b. We shall notify the customer of any changes or additions in writing at least six weeks before they take effect. If the customer does not agree with the changes or additions to the terms of the contract, they may object to the changes with one week's notice from the date on which the changes or additions are intended to take effect. The objection must be made in writing. If the customer does not object, the changes or additions to the terms of the contract shall be deemed to have been approved by them. We will specifically inform the customer of the intended significance of their behavior when notifying them of the changes or additions to the terms of the contract.
19. CHANGE REQUEST PROCEDURE
a. The change requestprocedure applies to any change in the content of the contract, in particular the services, as well as in all other cases in which the contract stipulates the application of the change request procedure. The change request procedure is initiated when one party submits a change request. Each party shall process change requests from the other party without delay.
b. If the parties reach an agreement, the change request procedure ends with the conclusion of a change agreement. Neither party is obliged to perform services in accordance with a change request before a corresponding change agreement has been concluded. If such services are nevertheless performed, the performing party shall bear the costs incurred as a result. Each party shall bear its own costs incurred in connection with a change request procedure.
20. CONTRACT TERM AND TERMINATION FOR HARDWARE RENTAL
The contract shall initially apply for an initial contract period of three years from the date of conclusion. It shall be tacitly renewed for further contract periods of one year in each case unless terminated in writing by one of the contracting parties at the end of the initial or each subsequent contract period. The notice period is three months.
21. TERMINATION OF THE CONTRACT; TERMINATION FOR GOOD CAUSE
a. The right of each contracting party to terminate the contractual relationship extraordinarily and without notice for good causeremains unaffected. Good cause shall be deemed to exist if there are facts which, taking into account the interests of all circumstances of the individual case and weighing the interests of the contracting parties, mean that the terminating party can no longer be reasonably expected to continue the contract.
b. In particular, we shall be entitled to terminate the contract for good cause in any case where
22. SPECIAL RIGHT OF TERMINATION AT THE END OF THE LIFE CYCLE OF IT SYSTEMS
a. We may terminate this agreement in writing with three months' notice to the end of any calendar quarter if the customer rejects an offer from us to switch to a current version or version of hardware or software for a reasonable fee, or if the life cycle of the hardware or software covered by the agreement and used by the customer has expired.
b. The life cycle of the hardware or software covered by the contract ends two years after the last delivery or installation at the customer's premises.
c. If discontinuing maintenance would cause undue hardship for the customer because it was already apparent at the time the contract was concluded that maintenance would still be required at a later date, the customer may request an extension of maintenance in writing 6 months before maintenance is discontinued. In this case, we will provide maintenance as a one-off service for a reasonable fee, provided this is technically possible.
23. MISCELLANEOUS (PROHIBITION OF ASSIGNMENT, PLACE OF PERFORMANCE, CHOICE OF LAW, CONTRACT LANGUAGE, PLACE OF JURISDICTION)
a. The customer is obligated to notify us in writing of any changes to their company details (business name, legal form, address, email address for reporting, bank details).
b. The customer may only assign rights arising from this contract with our written consent.
c. For contracts with merchants, the place of performance for both parties is the registered office of our company.
d. These terms and conditions and all legal relationships between the parties are subject to German substantive law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
e. The contract language is German.
f. If the customer is a merchant, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be the registered office of our company, whereby we shall, however, be entitled to sue the customer at another legal place of jurisdiction.
g. The invalidity of provisions in these terms and conditions or in other agreements made between the parties shall not affect the validity of the remaining provisions or other agreements. The parties are always and in each case obliged to replace the invalid provisions with valid provisions that come as close as possible to the meaning of the invalid provisions.
Bütema AG
Steinbeisstraße 7
D-74321 Bietigheim-Bissingen
Germany
Phone: +49 (0)7142-501-0
Fax: +49 (0)7142-501-999
info@buetema-ag.de
www.buetema-ag.de
Headquarters in Bietigheim-Bissingen
Chairman of the Supervisory Board:
Dirk Frintrop
Board of Directors:
Lutz Hollmann-Raabe (Chairman)
Patrick Schiller
, Germany HRB No. 302334
Stuttgart Local Court
VAT ID No. DE 814196859