GENERAL TERMS AND CONDITIONS
General terms and conditions and customer information
1.1 These General Terms and Conditions govern the rights and obligations for the provision of work and services between Futura GmbH and the customer.
1.2 These General Terms and Conditions shall apply exclusively. General terms and conditions and supplementary terms and conditions of the customer are excluded. Deviating or conflicting terms and conditions shall not be recognized by us unless we have expressly agreed to them in writing.
2 Subject matter of the contract/execution of the contract
2.1 Service provision
2.1.1 Futura GmbH undertakes to provide the work and/or services specified by the conclusion of a contract (hereinafter referred to as “services”).
2.1.2 The services shall be provided by Futura GmbH either by technically qualified employees or, unless otherwise agreed in the contract, by qualified subcontractors. Futura GmbH shall always remain directly obligated to the customer.
2.1.3 Futura GmbH shall decide at its own discretion which professionally qualified employees and/or subcontractors shall be used.
2.1.4 Futura GmbH shall perform the services with the utmost care and according to the assured state of the art. Insofar as the services involve the creation of individual software, standard modules that are introduced into this software are delivered in object code and without technical system documentation.
2.1.5 Insofar as the requirements of the customer do not yet result or do not result clearly from an existing specification sheet or the service description of the contract, or these are not yet sufficiently specified, Futura GmbH shall specify them against the remuneration stipulated in the contract with the support of the customer, draw up a concept about the requirements and submit it to the customer for approval. The client will approve the concept in writing within ten working days after delivery. Otherwise, it shall be deemed accepted for lack of objection. The concept is a binding specification for further services.
2.1.6 If Futura GmbH recognizes that the service description is incorrect or ambiguous, Futura GmbH shall inform the customer of this in writing without delay. Thereupon, the client decides immediately on the further procedure. If this decision is not made immediately, the customer shall bear the additional costs resulting from any delay.
2.1.7 Futura GmbH reserves the right to withdraw from the contract if it becomes apparent after the order has been placed that the order placed cannot be carried out, cannot be carried out in a way that covers the costs or can only be carried out at unreasonably high expense.
2.1.8 Insofar as the order constitutes an offer within the meaning of § 145 of the German Civil Code (BGB), Futura GmbH shall be entitled to accept this offer within a period of two weeks.
2.2 Project schedule
2.2.1 A project schedule may be drawn up in the contract in agreement between Futura GmbH and the customer.
2.2.2 The Project Schedule may specify an estimated or a fixed end date for completion of the Services or construction of the Work.
2.2.3 If the service cannot be provided on a date agreed in the contract for reasons for which the Client is responsible, the date shall be postponed accordingly. Reasons for which the Customer is responsible shall be deemed to exist in particular if the Customer fails to properly fulfill its obligations to cooperate pursuant to Section 4.
2.3 Contact person
2.3.1 Both contracting parties shall name a contact person and his/her deputy in the contract. The latter may make decisions and bring them about without delay, insofar as these do not amend these General Terms and Conditions. The overall project responsibility is regulated in the contract.
2.4 Project meetings
2.4.1 To ensure successful and timely performance of the Services, the Project Managers will hold regular project meetings from the time the Contract is signed until the Services are completed.
2.4.2 The content of the project meetings will include, in particular:
Designation of the service parts on which work was carried out during the reporting period. Status of the work performed and the test results obtained, as well as a comparison of the target and actual status if timeframes and/or the requirements according to the service description were not met.
Overview of work planned for the next reporting period.
3 Changes in performance
3.1 Both the ordering party and Futura GmbH may apply in writing to the other contracting party for a change in the scope of services specified in the contract.
3.2 The recipient of the change request shall immediately check whether and under which conditions the requested changes can be implemented and shall generally notify the other party in writing of the approval or rejection within ten working days and, if necessary, give reasons. If the Customer’s request for a change requires an extensive review, this shall be agreed separately. Futura GmbH may demand reasonable remuneration for the inspection effort.
3.3 The recipient of the change request may only reject it if the implementation of the change is unreasonable, in particular with regard to the effort and scheduling. The recipient of the change request may, insofar as the realization of a change request affects the contractual conditions, demand an appropriate adjustment of the contractual conditions, in particular the adjustment of the remuneration and the postponement of the deadlines.
3.4 The ordering party and Futura GmbH may agree that the services affected by the change request shall be interrupted until the necessary adjustment of the contractual agreements. The execution periods are extended by the duration of the interruption. Futura GmbH may demand the agreed remuneration for the duration of the interruption as well as the corresponding increase of an agreed upper limit or an agreed fixed price insofar as the employees affected by the interruption could not be deployed elsewhere. The prerequisite is a timely written notification by Futura GmbH in which the affected employees are to be offered to the client for the duration of the interruption to perform comparable activities.
3.5 If the scope of services is changed and a change affects the specifications or another document already adopted, Futura GmbH shall reproduce the change therein at the expense of the customer.
4 Cooperation obligations of the customer
4.1 Unless otherwise agreed in the contract, the service will be provided by Futura GmbH.
4.2 The Client is obliged to cooperate in the provision of the services specified in the contract. The duties to cooperate shall include, in particular, that the Customer provides all necessary information and documents in a timely and complete manner, that the Customer creates the necessary conditions for the performance of services on its premises, such as, in particular, IT and communications infrastructure, appropriate premises and office services, and provides an appropriate number of specialist personnel to ensure the performance of the services to be performed.
4.3 The Customer shall be obliged to maintain an IT security concept in accordance with the current state of the art and to ensure that the appropriate protective measures are always kept up to date.
4.4 Further duties to cooperate may be agreed.
5 Acceptance for work services
5.1 If work performances are to be rendered, Futura GmbH shall declare its readiness for acceptance to the customer in writing.
5.2 The Customer undertakes to declare acceptance after successful inspection of the work performed in accordance with the contract. In particular, the review also requires to check the parts to be used at the end of the month, at the end of the year or otherwise only occasionally.
5.3 The declaration of acceptance shall be made in writing in an acceptance report. However, the unconditional use of the work performance (live operation) is equivalent to acceptance. Acceptance shall also be deemed to have been declared if no significant defects have been reported in writing by Futura GmbH after the expiry of 20 working days since the declaration of readiness for acceptance. Futura GmbH shall point out this period when declaring readiness for acceptance.
5.4 The following defect classes apply to the acceptance procedure:
– Defect class 1: The contractual use is unreasonably restricted or excluded.
– Failure class 2: The contractual use is restricted, but the acceptance procedure can be carried out.
– Defect class 3: The contractual use is not or only insignificantly restricted by the defects.
5.5 The Customer shall be entitled to refuse the declaration of acceptance if defects of defect class 1 are present. The elimination of errors in error class 2 takes place as far as possible during the acceptance procedure. Deviations of defect class 2 and 3 do not entitle the customer to refuse acceptance. These defects remaining after acceptance shall be remedied by Futura GmbH within the scope of the warranty according to clause 9 in accordance with a schedule to be agreed by the parties.
5.6 The above acceptance procedure shall also apply to partial services agreed in the contract.
5.7 If Futura GmbH does not succeed in providing the agreed performance features in accordance with the contract for reasons for which it is responsible within a reasonable period of grace set by the customer, the customer may withdraw from the contract in whole or in part. In this case, the Client shall pay remuneration only for those parts of the services rendered that are usable for him.
6 Remuneration / Terms of Payment
6.1 The amount of remuneration shall be specified in the contract.
6.2 The remuneration shall be agreed as a fixed price or as remuneration according to time and effort.
The expense is calculated on the basis of the number of consultant days or the cost of materials incurred.
One consulting day, calculated – according to the qualification of the assigned employee – according to the agreed daily rate, comprises eight working hours.
6.3 In addition, there shall be incurred expenses in accordance with individual contractual regulations and travel expenses. Payment is due according to the payment schedule, otherwise after performance of the service and invoicing. Expenses and travel costs are due when the claim arises.
All remunerations are to be paid within 14 days net without deductions, plus the applicable statutory sales tax shown on the invoice.
In the event of default in payment, interest on arrears shall be charged at a rate of 4% p.a. above the prime rate of the European Central Bank applicable at the time. Further rights remain unaffected by this.
6.4 Offsetting against claims of Futura GmbH is only permitted with undisputed or legally binding claims.
6.5 The right to use the work performances according to clause 7 shall pass to the customer after full payment of the remuneration due to Futura GmbH.
6.6 Until its claims have been settled in full, Futura GmbH shall have a right of retention to the documents provided to it, the exercise of which, however, shall be contrary to good faith if the retention would cause disproportionately high damage to the customer which cannot be justified when both interests are weighed up.
6.7 All goods, materials and IT systems delivered shall remain the property (reserved goods) of Futura until all claims have been fulfilled, even if payments are made for specifically designated claims.
7 Rights of use/inventions
7.1 The Customer shall receive the non-exclusive right, transferable within the Customer’s company, unlimited in time and limited in location to the Federal Republic of Germany, to use the work results agreed in the contract for the intended purpose.
Futura GmbH shall remain entitled to use its work results, tools and aids, which it has used or developed for the performance of the services, as it wishes. Standard software programs from Futura GmbH that are provided on the basis of software license agreements are not the subject of this right of use.
7.2 The following shall apply to inventions which were created or developed during and in the course of the performance of services by one of the contracting parties and for which property rights have been registered:
Inventions by employees of the customer belong to the customer and those by employees of Futura GmbH belong to Futura GmbH. The parties, including their affiliated companies, grant each other a non-exclusive, irrevocable, worldwide and royalty-free license to these inventions and to any industrial property rights granted in respect thereof.
Inventions made jointly by employees of both contracting parties and industrial property rights granted in respect thereof shall belong to both parties. Each Party shall have the right to license such inventions to third parties or to transfer its rights without notifying the other Party or making payments to it.
8 Indemnification in case of infringement of property rights
8.1 Futura GmbH shall defend and indemnify the customer against claims based on the fact that the work results infringe industrial property rights, provided that:
– the Client notifies the claim in writing within 30 days – or sooner if required by applicable law,
– Futura GmbH reserves the right to legal defense and settlement negotiations, and
– the customer provides Futura GmbH with the information and support required for the legal defense and grants Futura GmbH corresponding power of attorney.
8.2 Indemnification is excluded if the infringement is based on work results that are no longer current or have been changed, provided that the infringement could have been avoided if the customer had used a current, unchanged version of the work results provided by Futura GmbH. This presupposes that the customer could reasonably have been expected to use it for the purpose of avoiding damage.
8.3 If the work results are infringing or Futura GmbH considers them to be infringing, Futura GmbH may, at its own discretion and expense:
– modify the work results so that they are no longer infringing, or
– provide the client with a license for further use of the work results.
If none of the options can be considered with an economically justifiable effort, Futura GmbH shall be entitled to reimburse the customer for the remuneration paid for the work results. This Clause conclusively regulates the entire scope of the indemnification and the claims of the Customer, unless otherwise provided by mandatory statutory provisions or the effective limitations of liability agreed in the contract.
8.4 The indemnification shall be excluded if the Principal
– uses a work product that has not been approved by Futura GmbH, or
– the work result has changed, or
– uses the work result with programs not licensed by Futura GmbH or under conditions of use other than those agreed in the contract, unless the infringement would also have occurred irrespective of the existence of one of these conditions.
8.5 Only the customer shall be liable for the legality of the transfer and/or use of programs and/or documents which the customer hands over to Futura GmbH. Futura GmbH is not obliged to check the legality of the use. Should Futura GmbH be held liable by third parties for injunctive relief or damages due to the provision or use of such programs and/or documents, the customer shall indemnify Futura GmbH against all claims.
9 Warranty for work performance
9.1 Futura GmbH warrants that the accepted work performances comply with the agreed service description and are not afflicted with defects that nullify or significantly reduce their suitability in comparison.
9.2 The limitation period for claims for defects shall be 12 months calculated from the transfer of risk. This does not apply in the case of claims for damages.
9.3 The Customer’s warranty claims shall not extend to work performances which the Customer modifies or which it does not use in the contractually agreed system environment; unless the Customer proves that this use is not the cause of the reported defect. No warranty is assumed in particular in the following cases: Unsuitable or improper use, faulty assembly or commissioning by the ordering party or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, chemical, electrochemical or electrical influences, unless Futura GmbH is responsible for them. A further prerequisite for warranty claims is the reproducibility or detectability of the defect.
9.4 The customer shall support Futura GmbH within the bounds of what is reasonable in eliminating errors, in particular by sending Futura GmbH a data carrier with the program concerned and providing work equipment at Futura GmbH’s request. Insofar as software creation is concerned, Futura GmbH shall correct the error, depending on its significance, either by supplying an improved software version or by providing information on how to eliminate or circumvent the effect of the error.
9.5 Futura GmbH is obliged to remedy defects that do not insignificantly reduce the value and suitability of the work performance and that the customer has reported in writing within a reasonable period of time in a comprehensible form.
9.6 If a defect is not remedied within a reasonable period of time, the Customer may set a reasonable deadline for the remedying of the defects. If the defects cannot be remedied after the expiry of the reasonable period of time, the Customer may demand a reduction of the remuneration or, if the value or the suitability of the work performance is considerably reduced, the rescission of the contract.
9.7 The warranty shall end within the scope of the statutory provisions. This also applies to all delivered goods, materials and EDP systems.
9.8 Futura GmbH may demand remuneration of its expenses insofar as it has taken action on the basis of a defect report without there being a defect.
9.9 The warranty shall expire prematurely if the ordering party makes changes or repairs without third parties without the prior written consent of Futura GmbH or if the ordering party, if a defect has occurred, does not immediately take all appropriate measures to mitigate the damage and notify Futura GmbH of the defect and give Futura GmbH the opportunity to remedy the defect. Defects discovered during the warranty period must be notified to Futura GmbH in writing without delay, but at the latest within five working days. Costs for rectifications carried out at Futura GmbH’s works shall be borne by Futura GmbH. If the rectifications are not to be carried out at Futura GmbH’s works and are possible, the customer shall be obliged to bear the associated costs insofar as they exceed the usual transport, personnel, travel and accommodation costs as well as the costs for the installation and removal of the defective parts.
9.10 If the errors complained of by the customer are neither detectable nor reproducible during troubleshooting, Futura GmbH shall be entitled to charge the customer for the costs associated with the search for the errors.
10.1 Futura GmbH shall be liable, irrespective of the legal grounds, for damage caused intentionally or by gross negligence, for expressly warranted characteristics and for defects which it has fraudulently concealed or the absence of which it has guaranteed and in accordance with the Product Liability Act. Further claims are excluded.
10.2 In the event of loss of data Futura GmbH shall only be liable for the reconstruction effort required if backup copies are available. The client is responsible for the creation of backup copies.
10.3 In the event of default Futura GmbH shall be liable for the proven damage for which Futura GmbH is exclusively responsible. The compensation for this shall be limited to 0.5% per full week of delay, but not more than 5% of the remuneration for those parts of the services that were not completed on time.
10.4 The above limitations of liability shall not apply in the event of liability for culpable injury to life, limb or health.
11 Secrecy obligation / data protection
11.1 The contracting parties shall be obligated to maintain secrecy about all business, technical and scientific knowledge or business and trade secrets that become known to them in the course of the performance of the contract and that are marked as such or are obviously recognizable.
The obligation of confidential treatment does not apply to ideas, concepts, know-how and techniques as well as to data which are already known to one of the parties or were known outside the contractual relationship.
Disclosure to third parties not involved in the execution of the contract may only take place with the written consent of the respective party.
11.2 Futura GmbH is authorized to process the personal data entrusted to it within the scope of the purpose of the individual contract or to have it processed by third parties in compliance with the data protection provisions.
11.3 Futura GmbH is entitled to include the name of the customer in a reference list. All other references to the client as a customer are agreed with the client in advance.
11.4 The contracting parties undertake to treat as confidential all items (e.g. software, documents, information) which they receive or become aware of from the other contracting party prior to or during the performance of the contract and which are legally protected or contain business or trade secrets or are marked as confidential, also beyond the end of the contract, unless they are publicly known without any breach of the duty of confidentiality. The contractual partners shall store and secure these items in such a way that access by third parties is excluded.
The Customer shall make the subject matter of the contract accessible only to those employees and other third parties who require access in order to perform their duties. He shall instruct such persons as to the confidentiality of the items.
12 Return of documents
12.1 After settlement of its claims arising from the contractual relationship, Futura GmbH shall, at the request of the customer, hand over all documents which the customer or a third party has handed over to it for this reason. This shall not apply to correspondence between the parties and to simple copies of reports, organization charts, drawings, lists, calculations etc. made within the scope of the contract, provided the customer has received the originals.
12.2 Futura GmbH’s obligation to retain the documents shall expire six months after delivery of the written request to the customer to collect them, otherwise three years, in the case of documents retained in accordance with clause 6.6 five years after termination of the contractual relationship.
12.3 The customer shall not have a right of retention to the tools and programs and the like brought into the project by Futura GmbH that are not part of the scope of services owed.
13.1 If the customer fails to cooperate in spite of a reminder and setting of a deadline, Futura GmbH shall be entitled to terminate the contract without notice. Irrespective of this right of termination, Futura GmbH shall be entitled to compensation for the damage or additional expenses incurred as a result of the failure to cooperate.
13.2 The minimum contract term is 12 months. The client may terminate the contract with a notice period of 3 months to the end of the contract. If not cancelled, existing contracts are automatically extended by 12 months.
14.1 Rights arising from the contractual relationship may only be assigned with the prior written consent of Futura GmbH.
14.2 Services or Technical Support offered by Futura GmbH are offered separately from program licenses. The customer can purchase program licenses without services.
14.3 The law of the Federal Republic of Germany shall apply. The UN Convention on Contracts for the International Sale of Goods (C.I.S.G.) is excluded.
14.4 The place of jurisdiction for all disputes arising from the contract shall be Paderborn.
14.5 The Customer undertakes to comply with the provisions and regulations of the Export Administration Act of the USA as well as the relevant German export regulations (“Export Laws”) and shall ensure that neither the programs / work results including technical data nor direct products thereof are exported directly or indirectly in violation of the Export Laws or are used for a purpose prohibited by Export Laws, in particular for the proliferation of nuclear, chemical or biological weapons. This obligation shall also apply after fulfillment of the respective contract.
15 Written form clause
Amendments and supplements to these General Terms and Conditions must be made in writing and must be expressly marked as such. Verbal collateral agreements have not been made.
- Customer information
- Identity of the seller
Rudolf Diesel St. 35
Alternative Dispute Resolution:
The European Commission provides a platform for out-of-court online dispute resolution (ODR platform), available at https://ec.europa.eu/odr.
- Information on the conclusion of the contract
The technical steps for the conclusion of the contract, the conclusion of the contract itself and the possibilities of correction are carried out in accordance with the regulations “Conclusion of the Contract” of our General Terms and Conditions (Part I.).
- Contract language, contract text storage
3.1. Contract language is German .
3.2. The complete contract text is not stored by us. Before sending the order via the online shopping cart system, the contract data can be printed out or electronically saved using the browser’s print function. After receipt of the order by us, the order data, the legally required information for distance contracts and the general terms and conditions will be sent to you again by e-mail.
3.3. In the case of quotation requests outside the online shopping cart system, you will receive all contract data as part of a binding offer sent in text form, e.g. by e-mail, which you can print out or save electronically.
- Codes of conduct
4.1. We have submitted to the code of honor of Trusted Shops GmbH, which can be viewed at: http://www.trustedshops.com/tsdocument/TS_QUALITY_CRITERIA_de.pdf.
- Essential characteristics of the goods or services
The essential characteristics of the goods and/or services can be found in the respective offer.
- Prices and payment methods
6.1. The prices listed in the respective offers as well as the shipping costs represent total prices. They include all price components including all applicable taxes.
6.2. The shipping costs incurred are not included in the purchase price. They can be called up via a correspondingly designated button on our website or in the respective offer, are shown separately in the course of the ordering process and are to be borne additionally by you, unless free shipping has been promised.
6.3. If the delivery is made to countries outside the European Union, additional costs may be incurred for which we are not responsible, such as customs duties, taxes or money transfer fees (transfer or exchange rate fees of credit institutions), which are to be borne by you.
6.4. Any costs incurred for the transfer of funds (transfer fees or exchange rate fees of credit institutions) shall be borne by you in cases where the delivery is made to an EU member state but the payment was initiated outside the European Union.
6.5. The payment methods available to you are shown under a correspondingly designated button on our Internet presence or in the respective offer.
6.6. Unless otherwise specified in the individual payment methods, the payment claims arising from the concluded contract are due for payment immediately.
- Delivery conditions
7.1. The delivery conditions, the delivery date as well as any existing delivery restrictions can be found under a correspondingly designated button on our website or in the respective offer.
7.2. If you are a consumer, it is regulated by law that the risk of accidental loss and accidental deterioration of the sold item during shipment only passes to you upon delivery of the goods, regardless of whether the shipment is insured or uninsured. This does not apply if you have independently commissioned a transport company not named by the entrepreneur or a person otherwise designated to carry out the shipment.
If you are an entrepreneur, the delivery and shipment is at your risk.
- Legal liability for defects
Liability for defects is governed by the “Warranty” provision in our General Terms and Conditions (Part I).
These terms and conditions and customer information have been prepared by the lawyers of the Händlerbund, who specialize in IT law, and are constantly checked for legal compliance. Händlerbund Management AG guarantees the legal security of the texts and is liable in the event of warnings. For more information, please visit: https://www.haendlerbund.de/agb-service.
last update: 08.04.2022