1. General Information and Matters Governed
a. All contracts regarding supplies and services that BÜTEMA AG, Bütema AG, Steinbeisstrasse 7 D-74321 Bietigheim-Bissingen (“We”) concludes exclusively with entrepreneurs, legal persons 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 ongoing and future business relationships; terms of the customer that are different or supplementary are hereby repudiated.
c. Moreover, the content of the contract is based on the written agreements. Amendments or supplementations to contracts are only valid if confirmed by us in writing.
d. Within the meaning of this contract, “Goods” means all objects, including software, that are to be left with the orderer in accordance with the contract, including insofar as they are supplied in a non-physical manner, e.g. via electronic communication means. “IT system” refers to hardware and/or software, and includes in particular “ICT” (Information and Communication Technology) systems.
2. References, Precedence and Definitions
a. Unless something different is expressly provided, references to legal requirements, annexes or other documents refer to the respectively valid version of the corresponding requirements, annexes or other documents. References to the contract include its annexes.
b. Insofar as supplementary contractual terms are used in connection with these Terms and Conditions, the former take precedence over the latter.
c. In case of doubt, annexes form an integral component of the respective contract/terms and conditions.
3. Entering into the Contract
a. Our offers are non-binding and constitute a non-binding invitation to the customer to purchase goods or services. The binding offer of the customer is only accepted once we have confirmed this in writing or have executed the delivery or service.
b. We are entitled to meet our performance obligations through commissioning suitable subcontractors insofar as nothing opposed thereto derives from the written agreements.
4 a. Provisions Regarding the Purchase of Hardware and Operating Systems
a. If supplying hardware (incl. mobile devices) is part of the subject matter of the contract, the customer receives from us the devices designated in the written contract and the operating system that is specified there, if applicable, in executable form (object code), which is installed on the devices.
b. We perform the delivery – and to the extent agreed – the setup, installation or establishment of operational readiness at the agreed place of delivery and at the times agreed
there. Before delivery of the hardware, the customer shall ensure that the spatial and technical requirements necessary for the setup, installation or establishment of operational readiness are met.
c. There is no entitlement to surrender or disclose the source code.
d. In the case of hardware and operating system, the customer receives the user documentation intended and provided by the manufacturer (operating instructions/user manual). We are not obligated to supply any further documentation beyond this. If desired, the customer may view the original user documentation before entering into the contract.
e. The customer is responsible for checking whether the hardware has sustained damage during transport, if there are any hardware parts missing and if certain functions are not available. If any of these is the case, we must be notified immediately so that we can swiftly remedy the issue or provide subsequent or replacement delivery.
f. With regard to the operating system installed on the hardware, the customer is granted a one-off (non-exclusive) right to use it indefinitely as a component of the designated devices.
g. In case of doubt, we do not owe the consultation related to the selection or use of the contractual goods, or any other consultation, as part of our service, unless it is the subject of a separate written contract.
h. The hardware and operating system may be subject to (re)export restrictions. The customer shall observe the respective export restrictions of which the manufacturer has made them aware.
i. The customer does not acquire ownership of the hardware and supplied user documentation until the invoice amount has been paid in full. The following additional provisions notwithstanding, the customer receives the right of use for the operating system on a permanent basis.
4 b. Provisions Regarding the Limited-Term Lease of Hardware and Operating Systems
a. If supplying hardware (incl. mobile devices) for limited-term use is part of the subject matter of the contract, the customer receives from us, for the agreed term, the limited-term use right to the devices designated in the written contract and the operating system that is specified there, if applicable, in executable form (object code), which is installed on the devices.
b. With regard to the operating system installed on the hardware, the customer is granted a one-off (non-exclusive) right to use it during the agreed term of use as a component of the designated devices.
c. The hardware is provided for exclusive use by the customer. The hardware must only be used for the purposes specified in the written agreement.
d. The customer is not entitled to enable a third party to use the hardware, including the software delivered in accordance with this contract, and in particular, is not entitled to lease or lend it. Use by the customer’s employees is permitted within the scope of proper contractual use.
e. The customer shall handle the hardware with care and safeguard it against damage. The customer shall ensure proper intended use and correct operation of the hardware by sufficiently qualified personnel. The customer shall follow the service, care and usage instructions, in particular those in the operating manual provided and the notes contained in the documentation. Labelling on the hardware, especially plates, numbers or labels, must not be removed, modified or rendered illegible.
f. Within usual business hours, the customer shall grant us free access to the hardware for maintenance and repair work. In this regard, the customer’s legitimate security interests must be safeguarded.
g. We are entitled to make changes to the hardware, provided such changes serve as maintenance. Improvement measures must only be performed if they are reasonable for the customer and do not impede the contractual use of the hardware. We shall inform the customer in advance regarding such measures.
h. The customer shall not make any changes or add any externally installed hardware to the hardware without our prior approval. This applies in particular to externally installed hardware and internally installed hardware, as well as to connecting the hardware to other devices, ICT systems or networks. Upon our request, the customer shall restore the original condition upon return of the hardware.
i. Setting up the hardware anywhere other than the place of setup agreed in the contract requires our prior approval if the new place of setup is located more than 30 km from the original location. In this case, we can demand that the transport and re-installation be performed by qualified technical personnel. The customer bears the expenses and follow-up costs associated with a site change as well as any resulting additional costs for maintenance and care.
j. When the contractual relationship ends, the customer shall return the hardware to us in proper condition. Upon return of the hardware, a log is created in which any existing hardware damage and defects are recorded. The customer shall pay compensation to cover the costs of repair in the event of damage or defects attributable to the customer. Unless otherwise agreed in the written contract, the customer bears the costs for disassembly, packaging and return transport of the hardware.
k. Moreover, No. 4 a. letters b to e apply accordingly.
5 a. Provisions for Standard Software
a. Unless otherwise agreed in writing, the contractual software is exclusively standard software that has not been individually developed and/or produced for the needs of the customer. The customer is aware that, according to the state of the art, it is not possible to develop error-free standard software for all application conditions.
b. The scope of delivery for own programs includes their delivery and user documentation. In the case of standard software from third-party manufacturers, we supply the customer with the manufacturer's original user documentation; we are not obligated to provide any further documentation beyond this.
c. If we are obligated to deliver the object code, delivery is made on a data carrier or by the customer receiving the notification of a download link.
d. In no case is there any entitlement to surrender or disclose the source code.
e. If we are obligated to install software, the customer ensures that the requirements of which the customer has been made aware regarding the hardware and remaining system environment are met prior to installation.
f. The customer shall ensure the presence of competent and trained staff during any test runs and during installation, and cease performing other work with the IT system if necessary. The customer shall back up all of their data before every installation.
5 b. Provisions for the Creation of Individual Software
a. The following terms apply to the creation of individual software and implementation of individual expansions or adaptations of software we have created or supplied:
b. If the customer intends to purchase certain standard software to be further specified from us and to have it adapted to the needs of their company, we will install and test the standard software and adapted software at our facility, deliver it to the customer following successful testing, train the customer and their employees on the software if desired and
hold training sessions if applicable.
c. The rights and obligations of the parties are governed in detail in the written contract.
d. In case of doubt, the scope of delivery includes supplying the program as object code, delivery of user documentation as well as – where a corresponding contract exists – delivery of manufacturing and maintenance documentation in whatever scope contractually required by the customer (for example, if independent maintenance and further development of the adapted programs by the customer are necessary).
6. Escrow Agreement
If we have concluded an escrow agreement in relation to contractual software, the customer can enter into it if desired; the prerequisite to do so is the existence of a valid release or managed-services contract with us.
7. Rights of Use
a. If hardware or software is provided exclusively for use, we remain the exclusive owner and/or rights holder.
b. In case of doubt regarding standard software, we grant the customer a non-exclusive, temporally unlimited, irrevocable and non-transferable right to use this software on their IT system within the scope designated in the written contract.
§ If the contractual performance includes the supply of standard software of a third-party manufacturer, the latter’s terms and conditions of use apply. In this case, we merely broker the licensing agreement, which is concluded directly between the manufacturer and the customer. These terms and conditions of use are provided to the customer upon request – including before conclusion of the contract, if so requested.
§ Unless otherwise agreed in writing, the subject matter of the contract is not a network license (multi-user licence), but rather the right of use is restricted to the individual workplace. In the event the hardware is replaced, the software must be completely deleted from the previously used hardware. Simultaneous saving, keeping available or use on more than just a single hardware unit is not permitted.
§ In all cases, the customer undertakes to take suitable measures to prevent any unauthorised use by third parties, where branch offices, affiliated companies, shareholders or spatially or organisationally separate facilities of the customer, in its capacity as a licensee, are deemed "third parties”.
c. With regard to the creation of individual software and performance of individualised expansions or adaptations, in cases of doubt the customer receives the exclusive, temporally unlimited, unlimited with respect to 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 to be integrated into the supplied systems, we grant the customer a one-off, non-exclusive, temporally unlimited, irrevocable and non-transferable right to use these software products together with the supplied IT system on the customer’s equipment.
e. Insofar as the open source software is included in the scope of supply of the system, all rights of the customer in respect of this software are according to the respective provisions of the rights holder or distributor.
f. With regard to the inclusion of software subject to any version of the GNU Public Licence (GPL) or other "copyleft" licences, we inform the customer before delivery of the corresponding systems.
g. Unless otherwise agreed in writing or by compelling operation of statute, the customer, as licensee, moreover does not have permission, either themselves or through third parties, to change or edit, copy or reproduce the software of text materials (codes, documentations) provided to the customer. Any existing copyright notes or registration features, such as registration numbers in the software, must not be removed or changed.
8. Shipping, Prices, Payment Terms
a. With regard to shipping, unless specifically provided for, the respectively valid transport/packaging flat rates are billed. The cost of express shipping at the customer’s request is calculated according to the actual expenses incurred. If desired by the customer, we can insure deliveries at the customer's expense. The cost of normal packaging is included in the transport/packaging flat rate. If specialised packaging is requested or required due to the given circumstances, such specialised packaging will be billed per separate agreement.
b. Unless otherwise provided for in the contract, invoices are due for payment immediately and without deduction. If no payment date has been agreed, the occurrence of default is as provided by statute.
If a delivery period of more than six weeks is agreed and/or in the case of continuing obligations longer than six weeks in duration, we are entitled to pass
on to the customer any cost increases that have occurred intermittently and which are not attributable to us for procurement or delivery (changes in customs duties, import and export fees,
currency control, etc.) or for engaging personnel (payroll and incidental payroll costs), by increasing the affected prices to the extent necessary to counterbalance these changes.
9. Rights of Offset and Retention, Assignment, Partial Performance
a. The customer is only entitled to offset with undisputed payment claims or those that have been declared legally valid. The customer is only entitled to exercise rights of retention with undisputed payment claims or those that have been declared legally valid, and which derive from the same legal relationship.
b. Assignment of claims against us is excluded. This does not apply within the scope of applicability of § 354 a German Commercial Code (Handelsgesetzbuch – HGB).
c. Partial delivery, partial performance and the corresponding deductions are permissible if they are not an unreasonable burden for the customer.
10. Delivery, Passing of Risk
a. All deliveries are ex works. We accept no responsibility for the cheapest mode of shipping.
b. Regardless of how the transport costs are governed, the risk of destruction and deterioration passes to the customer upon handover to the person or organisation engaged to perform the shipping, even when we carry out shipping ourselves.
11. Reservation Regarding Self-Delivery, Performance Impediments, Delay of Acceptance
a. With regard to the performance we owe within the scope of our contractual obligation, we procure some hardware and software from third parties; our delivery obligation is therefore subject to the condition precedent that we receive our deliveries from these suppliers in a timely and proper manner.
b. Performance impediments not attributable to us result in a corresponding extension of the performance deadline. This applies in particular to defective or lacking self-delivery (see letter a), force majeure, war, natural disasters, traffic or operational disruptions, impeded import, energy and raw materials shortage, regulatory measures and labour disputes as well as breach of the customer’s cooperation obligations or responsibilities. We are entitled to withdraw from the contract if the performance impediment continues indefinitely and the purpose of the contract is placed at risk. If the impediment lasts longer than two months, the customer is entitled to withdraw from the part of the contract that has not yet been fulfilled, unless the customer is entitled to a right of withdrawal from the entire contract.
c. If the customer fails to accept or take delivery of the contractual goods at the agreed time, we are entitled, while reserving all other rights, to give the customer an appropriate grace period, upon expiration of which we are entitled to dispose of the contractual goods in another manner or to provide performance after an appropriately extended grace period.
12. Reservation of Title
a. We reserve title to the items we have delivered until receipt of all payments deriving from the entire business relationship.
b. The customer undertakes to handle the purchased reserved-title item with care. In particular, the customer undertakes at their own expense to sufficiently insure the purchased item against damage due to fire, water, theft and vandalism for its replacement value. If maintenance and inspection work is necessary, the customer must perform it at their own expense and in a timely manner.
c. In the event of distraint or other interventions by third parties, the customer must inform us immediately in writing so that we can take legal action pursuant to § 771 Code of Civil Procedure (Zivilprozessordnung – ZPO). To the extent the third party is not in a position to
reimburse us for the court and out-of-court costs of a claim pursuant to §771 ZPO, the customer is liable for the loss suffered by us.
13. Limitation of Liability and Contributory Negligence
a. In the event of intent or taking over of a guarantee, we are liable without restriction. We are not liable for damage suffered by the customer due to a data loss not attributable to us. The customer undertakes to take appropriate protective and security measures according to the state of the art.
b. We are liable for direct damage caused due to intent, gross negligence or breach of material contractual obligations by simple negligence. A material contractual obligation is one that must be fulfilled in order to enable the proper execution of the contract in the first place and on the fulfilment of which the customer may regularly rely. In the event of simple negligence, liability is limited to typical, foreseeable damage. Liability for financial, consequential or other indirect damage is excluded, especially for lost profits, loss of information and other asset reductions.
c. Liability for interruption, disruption or other damage-causing events in relation to our telecommunication services or those of third parties for which we are liable is limited to the amount of recourse it is possible for us to obtain against the respective telecommunication service provider. We are not liable for the functionality of the communications equipment up to the contractual server, in the event of power failures or failure of servers beyond our sphere of influence.
d. The limitation period for breach of non-material contractual obligations is limited to two years.
e. Liability for open-source software provided free of charge is excluded.
f. The limitations on liability apply as an exhaustive list and regardless of the legal grounds for all liability claims given in connection with this contract and including warranty liability, in particular. An exception from the above is made for compelling statutory elements of liability, especially liability under the German Product Liability Act or in case of death, personal injury or impaired health.
g. In the event of a warranty or liability claim, contributory negligence on the part of the customer is to be considered appropriately, especially in the case of insufficient error reports or insufficient data backup.
15. Physical Defects and Defects of Title; Notice of Disruptions and Defects
a. If a purchase has been made and if this purchase is a business transaction for us and the customer, the customer shall immediately inspect the delivered contractual goods for deviations in quality and quantity, and to notify us of obvious defects within a period of one week from receipt of the goods; otherwise assertion of the warranty claim is excluded. Concealed defects must be reported to us within a period of one week from discovery. The notice is still deemed to fall within the compliance period if it is sent before the end of the period. In this case, the customer bears the full burden of proof for all claim prerequisites, especially for proving the defect itself, the point in time at which the defect was identified and the timeliness of the defect notice.
b. In the case of defects, we will satisfy our warranty obligation through supplementary performance of our choice of subsequent improvement or replacement delivery; in the case of leased hardware, we will always satisfy our warranty obligation by offering exchange within a standard period of 48 hours.
c. If the supplementary performance fails or if the supplementary performance can only be provided at disproportionately high cost, we can refuse to provide it and the customer has the reserved right to withdraw from the contract or reduce payment. Other warranty rights – especially the right to perform the work oneself – are excluded.
d. If we supply a defect-free contractual product for the purpose of supplementary performance, we can demand that the customer return the defective contractual product.
e. Damage caused by improper or non-contractual measures taken by the customer during setup, connection, operation or storage cannot substantiate any claim against us.
f. In the event used goods are purchased, the customer’s rights on account of physical defects are excluded. This does not apply to damage claims and claims deriving from an assurance given by us (warranty, § 276 para. 1 Civil Code (Bürgerlichesgesetzbuch – BGB) or quality or best-before guarantee (§ 443 BGB) or to fraudulent concealment of a defect (§ 444 BGB).
g. In the case of physical defects in delivered hardware and standard software of third parties as well as when third parties are engaged for maintenance services, we are entitled to assign to the customer our corresponding claims against our suppliers, the manufacturer or other third parties insofar as this releases our obligation for the purpose of subsequent improvement or replacement delivery, except if this constitutes an unreasonable burden for the customer.
h. If we are not in a position to remedy the defects or provide replacement delivery, we will inform the customer of possible workarounds. Insofar as these workarounds are reasonable for the customer, they are deemed supplementary performance.
i. For software defects that were already present at the time of handover to the customer, we are only liable if we are responsible for these defects.
j. In the case of interventions into the contractual product, especially the program code, by the customer that are not expressly permitted according to the operating instructions or other usage instructions, the customer is not entitled to any claims for defects if the customer fails to demonstrate and prove to us that the defect did not result from the intervention.
k. All of the above also applies if we have adapted, configured or otherwise modified the software or hardware for the needs of the customer, except if the physical defect was caused by our performance.
l. The customer’s warranty claims for defects lapse one year after the passing of risk. Damage claims, claims in respect of fraudulently concealed defects and claims deriving from a warranty that we took on for the quality of the item are excepted from this provision. The recourse claim pursuant to § 478 BGB is also excluded. The statutory limitation periods apply to these excepted claims.
m. If the customer asserts supplementary performance claims against us and it becomes apparent that there is no claim to supplementary performance (e.g. user error, improper handling of the goods, lack of an actual defect), the customer shall reimburse us for all costs incurred in connection with inspection of the goods and the supplementary performance, except if the assertion of the claim against us is not attributable to the customer.
16. Acceptance of Work
a. Following installation and/or completion of the contractual performance, and testing thereof, we notify the customer in writing of its functionality and request formal acceptance from the customer.
b. The customer can then check the functionality. In the case that acceptance is possible, the customer shall declare the acceptance in writing immediately or in case of doubt, within 10 business days.
c. If the customer does not grant acceptance within this period, acceptance is nevertheless deemed to have occurred. The period begins upon receipt of the written notice by the customer. If the customer operates the software or if the customer pays the price without making a written complaint, this is equivalent to acceptance.
d. Acceptance cannot be refused due to the presence of insignificant defects.
17. Confidentiality and Non-Disclosure
a. The parties mutually undertake to keep confidential all business and trade secrets, including quotation documents, and not to forward them to third parties or exploit them in any way. As concerns the documents, drawings and other information received by the respective other contracting party as a result of the business relationship, that party must only use them within the framework of the respective contractual purpose.
b. In particular, the customer undertakes to use all information regarding the non-public components and characteristics of software created or adapted by us, such as code and functionality, of which the customer becomes aware within the scope of their contractual relationships with us, solely for the purposes of this contractual relationship and to otherwise keep it confidential. Forwarding of such information to third parties where such forwarding is necessary for these purposes, requires that the customer bind the recipient of this information to the same confidentiality obligation. The above obligation does not apply to information that is demonstrably public or forms part of the known state of the art or which the customer already became aware of before disclosure by us or which was communicated to the customer once again by a third party that has no confidentiality obligation to us after it was already disclosed by the other contracting party.
c. The parties shall ensure through suitable agreements with employees and other external personnel and vicarious agents, as well as suitable organisational measures, that these are also subject to the same confidentiality obligation.
d. These obligations continue to remain in force even after the contract ends.
18. Data Protection
a. The customer ensures that their IT systems and databases comply with the Federal Data Protection Act, the data protection statute of the respective German federal state as well as the respective applicable special data protection provisions. This applies in particular with regard to the collection, processing and use of data and databases.
b. The customer ensures that within the scope of executing this agreement, no acts are committed that violate prevailing data protection provisions. In individual cases, the person responsible for data protection (data protection officer) to be named by the customer coordinates with us.
19. Amendments to the Contractual Provisions
a. Unless otherwise provided for, we are entitled to amend or supplement these contractual provisions as follows; the same applies to the price list on which our performance is based, which we can change according to our reasonable discretion (§ 315 para. 3 BGB):
b. We will announce any changes or supplements to the customer in text form no later than six weeks before they enter into force. If the customer does not agree to the amendments or supplements to the contractual provisions, he can object to the amendments or supplements within a period of one week before the intended entry into force. The objection must be in writing. If the customer does not object, the amendments or supplements to the contractual provisions are deemed to have been approved by the customer. In the notice regarding the amendments or supplements to the contractual provisions, we will inform the customer of the foreseeable significance of their actions in this regard.
20. Change Request Procedure
a. The change request procedure applies to each change in the content of the contract, especially to the services, as well as in all other cases in which the contract provides for the application of the change request procedure. The change request procedure is initiated by one party making a change request. Each party shall immediately process the other party's change requests.
b. If the parties come to agreement regarding a change, the change request procedure ends with the conclusion of a change agreement. No party is obligated to provide performance as provided by a change request before a corresponding change agreement has been concluded. If such performance is rendered nevertheless, the party who rendered it bears the costs incurred by doing so. Each party bears the costs it incurs in connection with a change request procedure.
21. Term of Contract and Termination for Hardware Rental
The contract remains in effect initially for a first contractual term of three years from conclusion of the contract. It extends automatically by additional contractual periods of one year each unless written notice of termination is given by a contracting party to take effect at the end of the first or any subsequent contractual period. The notice of termination must be given three months in advance.
22. Dissolution of Contract; Termination for Cause
a. The right of any contracting party to extraordinary and immediate termination of the contractual relationship for cause remains unaffected. Cause exists when circumstances prevail, on the basis of which the terminating party, when considering the interests
of all circumstances of the individual case and weighing the interests of the contracting parties, can no longer consider the continuation of the contract reasonable.
b. In particular, cause exists for us whenever
§ on two consecutive occasions the customer has defaulted on payment of the agreed remuneration or, within a period that extends over more than two occasions, the customer has defaulted on payment of the remuneration in an amount equivalent to two months’ remuneration;
§ the customer is insolvent or insolvency proceedings have been instituted in respect to their assets or the application to open insolvency proceedings was denied due to lack of assets; following an application to open insolvency proceedings in respect to the customer's assets, we will not, however, terminate the agreement due to default on payment of the remuneration that occurred during the time before the application to open proceedings, or due to a worsening of the customer's asset situation;
§ the customer breaches essential contractual obligations.
23. Special Right of Termination at the End of IT Systems’ Life Cycle
a. We can terminate this contract in writing by giving notice three months in advance of the end of any calendar quarter if the customer refuses an offer from us to transition to a current version or model of hardware or software in exchange for appropriate compensation, or the contractual hardware or software in use by the customer has reached the end of its life cycle.
b. The life cycle of the contractual hardware or software ends two years after the last delivery or installation at the customer's location.
c. If ceasing maintenance constitutes an unreasonable hardship for the customer because it was already evident at the time of contract conclusion that there would be a need for maintenance at a later time, the customer can request an extension of the maintenance in writing 6 months before the scheduled end of maintenance. In this case, we will perform the maintenance on a one-off basis for appropriate compensation, insofar as is technically possible.
24. Miscellaneous (Non-Assignment Clause, Place of Performance, Applicable Law, Language of Contract, Venue)
a. The customer undertakes to inform us in writing of any change to their company information (business name, legal form, address, email address for reporting, bank account information).
b. The customer can only assign rights deriving from this agreement with our written permission.
c. For contracts with commercial parties, our company headquarters serves as the place of performance for both parties.
d. These Terms and Conditions and the entire legal relationships of 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 language of contract is German.
f. If the customer is a commercial party, legal person under public law or special fund under public law, the sole venue for all disputes deriving from the contractual relationship
is our company headquarters, however we are further entitled to institute proceedings against the customer at a different statutory venue.
g. The invalidity of provisions in these Terms and Conditions or in other agreements made between the parties has no effect on the validity of the remaining provisions or other agreements. The parties always and each respectively undertake to replace the invalid provisions with such valid provisions that most closely approximate the intention of the invalid provisions.
Phone: +49 (0)7142-501-0
Fax: +49 (0)7142-501-999
Chairman of the Supervisory Board:
Dirk Frintrop (Chairman)
German Commercial Register [HRB] No. 302334
Stuttgart District Court [Amtsgericht]
VAT ID No. DE 814196859