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The General Terms and Conditions of BUTSCH Group

(Stand 20.09.2012)

Chapter I: General conditions

§ 1 Area of application

(1)  These General Term and Conditions refer to all contracts that are concluded by and between BUTSCH GmbH or BUTSCH Dienstleistungs GmbH (hereinafter jointly referred to as: „BUTSCH“) and their contractual partners, and they regulate the provision of the services that are defined in detail in the specific contracts. These General Terms and Conditions refer to all the contracts that are concluded by and between BUTSCH and the companies, public law legal persons and public law foundations corresponding to Section 14 of the BGB (German Civil Code).

(2) The services defined in detail in the specific contacts will be provided exclusively on the basis of this General Terms and Conditions. The General Terms and Conditions are an integral part of the specific contracts, and by awarding the contract they are deemed as having been accepted. In the case of continuous business relationships, they also do refer to the future contracts. BUTSCH does not acknowledge the contradictory conditions and the conditions deviating from this of the contractual partner, except if BUTSCH had them expressly approved in writing. The current contractual conditions are also effective if BUTSCH provides services or accepts payments in the knowledge of the contradictory or deviating conditions of the contractual partner.

§ 2 The offer and the signing of the contract; the subject matter of the contract

(1)  The offers of BUTSCH may always change and they are indicative.

(2) The contract will be established after BUTSCH and its contractual partner signed the offer, the Service Order (in an online or printed form) had been filled in and the confirmation of the order was received by BUTSCH.

(3) The subject matter of the contract is the activity that is defined in the specific contracts.

(4) In the area of quality control and additional work, reports have to be sent to the Customer each day through email, which Customer has to check. If within the deadline of eight working days no objection is received in connection with the report, then it has to be deemed to have been accepted. The acceptance is qualified as the full acceptance of the service.

§ 3 Co-operation obligation

The contractual partner of BUTSCH shall ensure its performing the co-operation services needed for performing the specific contracts in due time and free of charge of BUTSCH. The co-operation obligations of the contractual partner include especially the following:

  • prior to starting the implementation of the specific contract, it has to name one or more contact keeping persons, who are responsible/entitled to make decisions, who will be available to the colleagues of BUTSCH, and who are entitled to issue such binding statements on behalf of the contractual partner, which are needed within the framework of implementing the specific contracts;
  • the procurement of the information and/or documents that are needed for performing the specific contact, including especially the technical data and facts and the information that are connected to hardware and software required for performing the maintenance related services;
  • it shall provide access for the colleagues of BUTSCH to the rooms and facilities of the company needed for the purpose of performing the specific contract;
  • it shall prepare security copies of the saved data in the interest of security and retrievability;
  • if BUTSCH has to have the performance of the specific contract done with the involvement of a third party based on the instruction of the contractual partner, the contractual partner shall ensure that the third party will fulfil the co-operation obligations.

§ 4 Delivery time, scope of delivery

(1) The delivery and service providing deadlines given by BUTSCH are not binding, in case no agreement deviating from this was signed expressly in written form. In addition to this, in connection with each delivery and service provision deadline it is a prerequisite that BUTSCH has to perform the deliveries appropriately and by the due time, and the contractual partner has to fulfil its co-operation obligations given in Section 3 of these stipulations.

(2) In the case of a Force Majeure event or any other unforeseeable and/or extraordinary event that is beyond the control of BUTSCH and which leads to the late performance of the delivery or of the provision of service, the delivery and service provision deadline is extended with an appropriate extent. These events include primarily wars, insurrections, strikes, exclusion from work, events of fire, floods, and other unforeseeable operation disturbances that occur at the suppliers of BUTSCH. BUTSCH shall send information without delay about these events to the contractual partner.

(3) BUTSCH is entitled to perform partial deliveries and partial performances at any time, and it is entitled to account them appropriately, provided they are acceptable for the contractual partner. This does not involve in harmony with Paragraph 1 the stipulations that are recorded in the contract concerning the entire delivery concerning the delivery and service providing deadline.

§ 5 Remuneration/due date

(1) The remunerations defined in the specific contracts will be applied. If the specific contracts do not include an agreement in this respect, then the general remuneration will be the basis of the agreement.

(2) Each price is given in EUR, and they are encumbered with the VAT corresponding to the prevailing law.

(3) The disbursals have to be performed without any deductions straight away after receiving the invoice, provided the specific contract does not contain an agreement that deviates from this.

(4) BUTSCH is entitled to account the disbursals of the contractual partner primarily against the oldest debts of the contractual partner. If costs and interests have already occurred, BUTSCH is entitled to account the payments first in respect of the costs, then in respect of the interests and finally in respect of the main performance.

(5) BUTSCH is entitled to refuse to perform the deliveries and services, if after the signing of the contract it is revealed that there is the danger of the lack of performance capability, primarily in the form of late payment. The right to refuse the service is not enforced if the contractual partner provides a counter-service, it pays an advance money or provides a collateral. BUTSCH is entitled to cancel certain or all of its contacts fully or partially in case the counter-service or the advance payments or the performance of the provision of the collateral does not occur even after the expiry of the relevant appropriate deadline.

(6)  If a third party has to be involved into the performance of the specific contract in line with the instructions of the contractual partner, the contractual partner is not entitled to retain its payments due to BUTSCH in the case of the delays in payments, non-payments or the insolvency of the third partner. The same has to be applied for the case if the third party demands any claims from the contractual partner of BUTSCH, especially if it enforces warranty or compensation demands and/or if it retains its payments and/or it decreases them, and/or it cancels the performance of the contract.

(7)  BUTSCH is entitled to transfer the claims that will arise from the business relationship.

§ 6  Right to take into consideration/to retain

(1) The right to take into consideration will be available to the contractual partner, if the counter-claims had been awarded in a legally binding manner in a verdict issued by a judge, or if they are not debated or if BUTSCH have acknowledged them.

(2) Contractual partner may enforce the retention right exclusively if its claims have arisen from the very same contractual legal relationship.

§ 7   Liability

(1) The claims of the contractual partner concerning compensation or the payment of the costs that occurred depend on these rules irrespective of the legal nature of the claim.

(2) BUTSCH has an unlimited liability for those damages that are connected to the harming of life, physical integrity of people or health, which may be traced back to the negligent obligation violation of BUTSCH, or to the intentional or negligent obligation violation of any of the lawful representative or performance agents of BUTSCH.

(3) In the case of claims that are based on the remaining responsibility, BUTSCH has an unlimited liability exclusively in the case of a lack of a guaranteed procurement, or the intentional or serious negligence of its lawful representatives and leading officers. For the obligation violation of its other performance agents, BUSCH has liability exclusively for less serious negligence in line with Paragraph 4 of this section on liability.

(4) For less serious negligence BUTSCH will be exclusively liable if such an obligation is violated, the observation of which has an extreme importance from the aspect of achieving the purpose of the contract (cardinal obligation). In case such a cardinal obligation is violated, the liability is limited to damages that are based on the contract and which are foreseeable at the time of signing the contract.

(5) Liability for data losses is restricted to those typical restoration costs, which would have occurred, if the safety copies would have been prepared regularly in in line with the risks.

(6) The above rules are also effective in respect of the employees of BUTSCH.

(7) This has no impact on the liability that corresponds to the German law on product liability (Produkthaftungsgesetz).

§ 8      Confidentiality

Both parties shall manage confidentially the operation and business secrets it learns in the course of the business relationship, and which are marked accordingly, or which are obviously detectable as being such. This also refers to the period that will follow the ending of the business relationships.

§ 9   Data protection

Both parties shall manage the information and the parties’ personal data confidentially and these may be saved, processed, used, or handed over to any third party exclusively up to the extent that is needed in the framework of performing the contract, for enforcing a claim at the court and for nursing client relationships. BUTSCH observes the relevant data protection legislation.

§ 10    Prohibition of soliciting to another workplace / taking over / workforce mediation

The contractual partner is not entitled to solicit those employees of BUTSCH to another workplace, whom it gets acquainted with in the course of the existing business relationships and in the course of awarding the contract to BUTSCH. It is possible to take over any workforce also exclusively after a preliminary discussion taking place between BUTSCH and the contractual partner. If within 6 months after the awarding of the specific contract, an employment relationship is established between the partner or an undertaking associated with it according to Section 15 of the German Act on shareholding companies (AktG) and the employee of BUTSCH, it will be qualified a workforce mediation for which a fee has to be paid. The amount of the fee that will become due immediately after the signing of the employment contract that is established between the contractual partner and the person involved will be 25 % of the actual annual gross earning of the solicited/taken over employee.

The same refers to the case when contracting partner employs the former employees of BUTSCH again or further through another service provider within four months after the ending of the related assignment that is established between the contractual partner and BUTSCH.

§ 11    Written form

All the modification and supplementing of the specific contracts have to be made in a written form. The statements made by the representatives of BUTSCH or the assisting persons connected to it are binding if BUTSCH issues a written approval in respect of them.

§ 12    Choice of law

Contracting parties agree that the law of the Federation Republic of Germany will have to be applied in respect of all their legal relationships arising from their specific contractual legal relationship.

§ 13    Jurisdiction

In the case of all the legal disputes that will arise in the framework of implementing the specific contracts related legal relationship parties agree in the jurisdiction of the court of the registered seat of BUTSCH (Heßheim).

Chapter II:    Supplementary conditions concerning the provision of maintenance services and/or the delivery of hardware and software in line with the agreement.

If BUTSCH provides maintenance services and/or delivers hardware and software. the following supplementary conditions will refer to the provision of maintenance services and/or the delivery of hardware and software.

§ 14    Subject matter of the contract, instruction issuing rights

(1) The subject matter of the contract is the provision of services defined in the specific contracts and/or the delivery of hardware and software defined in the specific contracts.

(2) According to these General Terms and Conditions, the maintenance services mean especially the reinstallation, administration, configuration and customary maintenance of hardware and software.

(3) The contractual partner has no authority to issue instructions in connection with the implementation of the specific contract, especially in respect of the maintenance services.

(4) Selecting and delegating the employees for providing the services are the task of BUTSCH. This refers primarily to ordering the working time and the overtimes, the defining of the leaves and the supervision of the work processes.

(5) The employees of BUTSCH will not establish an employment relationship with the contractual partner even if they implement their works at the site of the contractual partner.

§ 15    Scope of maintenance services

(1) Implementing the maintenance service to be done by BUTSCH will take place exclusively on the basis of a prevailing specific contract or a subsequent written agreement.

(2) The method of providing the maintenance services belongs under the judgement scope of BUTSCH, except if the given specific contract contains a provision that expressly deviates from this. BUTSCH may carry out the maintenance service at the contractual partner, at the site, or through phone. Based on the discussions carried on with the contractual partner the maintenance services may be implemented in the form of remote maintenance, however, in this case, BUTSCH does not undertake any liability for the operation capability and security of the remote maintenance cables that are outside the scope of its business activity, except if a different agreement was made in writing.

(3)  The deadlines defined in the agreement concerning the provision of maintenance services have a binding force for the contractual partner. If the contractual partner cancels or terminates a deadline or assignment stipulated in an agreement, it is obliged to pay to BUTSCH the remuneration corresponding to the agreement together with the expenditures, except the expenditures that are saved. BUTSCH is entitled, but not obliged to accept a new deadline or assignment.

§ 16    Transfer of the risk of damages, delay in acceptance

(1)  If an agreement was made in the specific contracts about the delivery of hardware and software, then the risk of the accidental destroying and accidental deterioration of the goods to the delivered are transferred to the contractor transporting the goods to be transported or to the contractual partner with the handing over of the goods. If delivery is late due to circumstances that are attributable to the contractual partner, the risk of damages is transferred to the contractual partner with the reporting of the transport ready condition of the goods.

(2) If contractual partner is late with acceptance at the time when the hardware and software are delivered, or it infringes its any of its other co-operation obligations, BUTSCH is entitled to store the goods to be delivered in an appropriate manner at the risk and cost of the contractual partner.

§ 17    Warranty

If warranty rules have to be applied based on the services that are to be performed according to the specific contract, the following provisions will be in force:

(1) If in connection with the delivered hardware and software any deficiency is established, including the manuals and the other documents, BUTSCH will correct them within the one-year liability undertaking period after delivery after being appropriately informed by the contractual partner. This will be implemented in line with the decision of BUTSCH either with correcting the deficiency (subsequent correction) or with the delivery of a deficiency free hardware and/or software (supplementary delivery).

(2)  If it is not possible to remediate the deficiencies within an appropriate deadline, or subsequent correction or supplementary delivery is to be deemed unsuccessful due to other reasons, then contractual partner according to its own decision is entitled to decrease the price, or to cancel the contract, or to demand compensation or the refunding of the costs that incurred. The last two mentioned claims are regulated by Section 7 of the General Terms and Conditions. Cancelling the contract does not exclude the right to compensation.

(3) Subsequent repair or supplementary delivery has to be considered to be unsuccessful, if they provided an appropriate opportunity for BUTSCH for subsequent repair or supplementary delivery, but the desired result could not be achieved, if there is no possibility for subsequent repair or supplementary delivery, or if BUTSCH refuses them or delays them in an irrational manner, or there are well-founded doubts as regards their chance of success, or if irrationality exists due to any other reason.

§ 18    Inspection obligation, obligation to object

(1) When hardware and/or software are delivered, contractual partner shall inspect the delivered hardware and software including also the documentation within 8 working days after delivery. Inspection will cover first of all the operation capability of the essential functions of the program. The deficiencies established or that may be established in the course of this inspection have to be reported in writing to BUTSCH within an additional 8 working days. The complaint about deficiencies has to contain the detailed description of the defect as far as possible.

(2) The deficiencies that may not be established in the course of the described inspection carried out properly have to be reported within 8 working days of their detection with observing the requirements that refer to complaints and which are given in Paragraph 1.

(3)  If the inspection and complaining obligation is violated, the delivered hardware and/or software have to be considered approved from the aspect of the related deficiency.

§ 19    Reservation of title

(1) When delivering hardware and/or software, BUTSCH reserves itself the title to the hardware and/or software delivered until all its claims arising from the specific contract are fully paid (hereinafter referred to as: „goods with reserved title”). This refers to all future deliveries, even if BUTSCH will not expressly draw the attention to this.

(2) BUTSCH in the case of the contract violating behaviour of the contractual partner, especially in the case of payment delay or if the obligations defined in Paragraph 4 are violated, is entitled to cancel the contract and to demand the returning of the goods with reserved titles.

(3)  The contractual has to act with due diligence when handling the goods with reserved title until the title to the goods with reserved title is not transferred to the contractual partner.

(4)  If the transfer of the title has not taken place yet, then the contractual partner has to send a notification without delay in writing if the goods with reserved title have been confiscated or if they are exposed to any other intervention done by any third party. If the third party is not in a position to refund to BUTSCH the court and other costs of a litigation, then according to Section 771 of the ZPO (German Code of Civil procedure) the contractual partner is liable towards BUTSCH for the losses endured.

(5) Contractual partner is entitled to resell the goods with reserved title in the form of a normal business procedure. The contractual partner already now transfers to BUTSCH all its claims that will arise from the reselling the goods with reserved title to any third party. BUTSCH accepts this transfer. If the selling of the goods with reserved title are sold after utilisation, integration or mixing then the transfer of the claims arising from the reselling will be exclusively effective up to the amount of the value of the goods with reserved title are invoiced to the contractual partner of BUTSCH. Contractual partner is entitled to collect its claims even after this transfer. This has no impact on the right of BUTSCH to collect the claims itself. At the same time, BUTSCH will not collect the claims while contractual partner meets its payment obligations from the revenues received, while it is not late with its payments, and especially if they did not initiate the starting of an insolvency procedure, or the performance of payments is not suspended.

(6) In the case of utilising, integrating or mixing the goods with reserved title, contractual partner will always turn to BUTSCH. If the goods with reserved title are utilised, integrated or mixed with assets that are not owned by BUTSCH, BUTSCH will acquire a partial ownership in the new asset proportionally to the ratio of the invoice value of the goods of reserved title and the invoice value of the other utilised goods valid at the time of utilisation, integration or mixing.

(7) BUTSCH shall release the collaterals being at its disposal upon the request of the client, when their value exceeds with more than 20 % the value of the claims that belong to the collateral.