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Standard Terms and Conditions of Futura Retail Solutions GmbH and Futura Software AG


Futura Retail Solutions GmbH
Harburger Schloßstr. 28
DE-21079 Hamburg


Futura Software AG
Seestrasse 227
CH-8810 Horgen

both referred to hereinafter as “Futura”

1. Definition of Terms

The  following  definitions  of  terms  are  employed  in  all contractual relationships of Futura:

1.1 Software:
Futura  business  software  solutions  for  merchandise management,  cash  desk,  business  intelligence,  sales
assistant, etc.

1.2 Licensee:
A customer who has entered into a licensing agreement with Futura for use of the Software.

1.3 Update:
Modification,  correction  of  errors  and  extension  of existing  Software  at  the  customer’s.  This  does  not include   a   new   software   product   of   Futura,   which generally has a new name.

2. Contracting Partner of Customer

Where   no   contracting   partner   of   the   customer   is expressly  mentioned  below,  the  agreement  relates  to  both  Futura  Retail  Solution  GmbHand  Futura Software AG. Decisive for the customer is the contracting partner identified   in   the   software   licensing   and   update agreement.  The  customer’s contractual   rights   and obligations   relate   exclusively   to   that contracting partner.

3. Bringing About and Content of the Agreements

3.1 All agreements between the parties shall be brought about by concurring statements of intent issued by both sides.

3.2 A written agreement bearing the valid signature of both parties is required for the software licensing and
update agreement to be brought about and for all hotline and support contracts. Details of such agreements shall be regulated in the relevant agreements as such. 

3.3 Contractual  documents may  be  exchanged by post or by e-mail.

4. Subject-Matter of Agreements

4.1 The contracting parties shall agree on the cooperation according to the specific, individual agreements (software licensing and update agreement, maintenance  contracts, contracts  for  services,  etc.)  in Clause 5. An employment contract is explicitly not intended orbrought about by the parties.

4.2 Futura shall be responsible for contributions to social welfare insurance and for tax matters, and shall indemnify the customer against any such obligations.

5.Types of Contract

Futura shall provide the following performance against payment: 

5.1 Delivery of Software:
The  customer  purchases  or  leases  a  use  right  to  the business Software of Futura. This Software is a standard program which is also sold or leased to other customers any  number  of  times.  This  contractual  relationship  is governed by the law on sales and rental. The customer shall  also  enter  into  a  licensing  agreement  with  Futura on  the  right  to use the Software.  The  contents  of  the agreement shall be defined by the offer and by the sales or rental agreement brought about.

5.2 Update and Maintenance Services
Futura shall provide services within the context of update and maintenance contracts. The contents of the contract shall  be  defined  by  a  separate  update  and  support agreement.

5.3 Consultancy, Installation, Configuration, Data Transfer, Training and Other Services
Services  in  connection  with  operation  of  the Software. The extent of services owed shall be defined by the offer and the specification of performance.

5.4 Programming of Additional, Customized Modules:
The contents of the agreement shall be defined by the requirements and specifications signed by the customer according to Clause 6.

5.5 Delivery of Hardware and Other Third-Party Products:
The customer shall purchase or rent hardware and other third-party products for operation of the Software. The  contents of the agreement shall be defined by the offer and by the sales or rental agreement brought about.

5.6 Other Performance
Futura shall provide performance within the context of a contract for services or an ordinary order.


6. Customized Programming

6.1 Upon a customer’s request additional modules and functions shall be developed for the Software by Futura, according to the customer’s specifications.

6.2 If such developments are incorporated into the general standard of the Software, they shall be supported by Futura under the software update agreement. Otherwise the customer shall enter into a separate agreement in this respect with Futura. 

6.3 Customer-specific additional modules and functions shall be described and specified in detail by the customer. This includes specification of the input -and output data,the exact functionalities with all desired results, the user interface and its operation. 

6.4 If the customer is unable or unwilling to draw up such specification itself, Futura shall do so within the context of services provided against payment. The customer shall sign the specifications after they have been drawn up, as a sign of its agreement. A final result is owed by Futura. 

6.5 The programming of customized additional modules for the Software of Futura shall not change the nature of the Software as standard software.

7. Delivery and Default on Delivery

7.1 The delivery of Software, hardware and services shall take place on a jointly agreed delivery date or during a jointly agreed delivery period. 

7.2 As a rule, a project plan shall be developed for each customer project, which shall define deliveries of the individual project components. 

7.3 A fixed  delivery  date  with apresumption  of  waived delivery by the customer in case of failure to comply only applies if that date was expressly agreed in writing and signed by both sides. Otherwise the customer shall first send a default notice to Futura and grant a reasonable extension for delivery.

7.4 Licensed Software of Futura is standard software. As a rule it shall be delivered ready for operation by way of a download from Futura servers.


8. Acceptance and Default on Acceptance

8.1 The customer shall be in default on acceptance if it fails to accept the products or services supplied, without justification, or if it fails to take necessary precautions for the acceptance, for example making available of  the necessary  hardware, the necessary personnel or the like. 

8.2 The customer shall examine the products (software and  hardware) immediately after delivery as to their completeness and freedom from defects.

8.3 Obvious defects shall  be notified promptly by the customer, at the latest 2 weeks after delivery. If a defect that is not obvious arises, notification shall be made promptly after the defect is discovered. 


9. Rectification of  defects or provision of a replacement product

9.1 In case of defects, Futura shall fulfill the warranty by rectifying the defect or by providing a replacement product, at its discretion. 

9.2 Within the context of a claim for rectification of defects or provision of a replacement product, Futura shall be given the opportunity to investigate the cause of the complaint. If the investigation establishes that Futura is not responsible for the defects, the customer shall bear the costs of the investigation.

9.3 If the rectification of defects is unsuccessful, the customer may at its  discretion demand a price reduction or withdraw from the contract. 

9.4 The rectification of defects shall be deemed to have failed after an unsuccessful second attempt unless the nature of the item especially or of the defect or other circumstances indicate otherwise. 

9.5 Claims for the rectification of defects or provision of a replacement and warranty claims shall lapse, in particular,  if the defects were caused by inappropriate handling, unless this can be attributed to Futura.

9.6 The claim for the rectification of defects or provision of a replacement shall also lapse if the customer has interfered with the performance of Futura. 


10. Liability

10.1 Futura is liable according to the statutory provisions, unless otherwise agreed below. Claims for damages against Futura or its statutory representatives or vicarious agents shall accrue to the customer solely in case of a culpable injury to life, limb or health, a breach of a material contractual duty or in case of an intentional or grossly negligent breach of duty by Futura, its  statutory representatives or vicarious agents, or in case of fraudulent concealment of a defect in an investigation. In case of  damage  caused by a negligent breach of material contractual duties, Futura shall only be liable for foreseeable damage typical for the type of contract. The amount of damages shall be limited to the total amount of the agreed net remuneration of the purchase price for the software licence. The customer is permitted to prove that no damage or reduction in value at all arose or that it  was  significantly  lower  than  the  net  remuneration amount. Compensation is excluded for indirect damage and unforeseeable consequential damage.

11. Provision of Services

11.1 As a matter of principle, support and maintenance services shall be provided by remote maintenance on the premises of Futura. Each party shall bear its own communication costs.

11.2 All other services and deliveries shall be provided at the contractually agreed place.

11.3 Futura uses the remote maintenance software Netviewer and Teamviewer for support purposes. Use of that software is included in all contractual services. The customer shall create all necessary technical prerequisites for the use of Netviewer and Teamviewer. 

11.4 If  the customer wishes to use a different remote maintenance software, it shall bear the non-recurrent costs of installing such software at Futura and, if appropriate, the costs of operating the software at Futura.

11.5 If support via remote maintenance at the customer ’s is not possible, the customer shall bear the travel expenses and costs of time spent travelling according to the price list.

11.6 Futura is entitled to avail itself of third parties in order to fulfil contractual obligations for the cust omer, in which respect Futura shall be liable for the fulfilment of such obligations as  if it had  provided the performance itself.


12.Retention of Title

12.1 All products (Software, hardware, etc.) shall remain theproperty of Futura until payment in full. If the customer does not duly satisfy its payment obligations, then Futura may take the goods subject to a reservationof title into safe-keeping, while having recourse to the courts.

12.2 The taking back of goods shall not be deemed to be withdrawal from the contract.

13. Prices

13.1 Software,  hardware, services (consulting, installation or configuration,  training and introductions, programming  etc.) and other performance (travel  costs etc.)  shall be charged according to the commission awarded by the customer.

13.2 All prices are subject to statutory VAT.

13.3 Futura is entitled to adjust  the prices for update, support and hotline contracts to new cost factors subject to observance of six months notice to the beginning of a new calendar year.


14. Invoicing

14.1 Services shall be invoiced monthly based on time and materials. Hardware and software licences shall be invoiced upon delivery. Subsequent orders for existing systems shall be invoiced at the rate of 100% upon placing of the order. The invoice may be sent by post or by e-mail.

14.2 If  the customer intends to finance a project via leasing, it shall  inform Futura no later than the date on which the order is placed. 

14.3 If the customer wishes to change the financing form after confirmation of the order, it shall owe a flat fee of EUR 100 to Futura for expenses

14.4 In case of leasing, the customer also agrees to sign the  leasing  acceptance protocol to the attention of the Futura project  manager immediately after the initial installation of the Software.


15. Payments

15.1 The customer shall check invoices issued by Futura for accuracy within 5 working days of their receipt and shall transfer the net amount to an account indicated by Futura on the  invoice, in  the  invoiced currency within 10 days.

15.2 Discounts or other deductions such as bank expenses etc. are not permitted and will be re-invoiced.

15.3 The customer may revocably authorize Futura to collect fees due by way of the direct debit procedure. 

15.4 The customer may not refuse to pay fees in whole or in part in due time and may not demand the reimbursement of  fees in case of failure to exercise performance that was provided by Futura according to the agreements, for whatever reason.

15.5 All payments shall be made by the customer even if it makes warranty claims with regard to performance provided or products delivered by Futura. 

15.6 Differences  of  opinion shall  not entitle the customer to postpone payments or to unilaterally amend terms of payment.  The parties also agree to refrain from setting off mutual claims without the written consent of the other party respectively.

15.7 The customer may only make a setoff against 5 counter-claims  if those claims  are undisputed or have been established by final  judgment.  Counter-claims arising underthe same contractual  relationship are exempted from the ban on a setoff.

16. Default on Payment

16.1 Futura shall first send a payment reminder. If an outstanding amount then remains unpaid,  a written overdue notice shall be issued.  

16.2 In order to cover our additional expenses EUR 20 damages are payable upon the first overdue notice.

16.3 The customer defaults on payment as soon as the due date for payment has passed. No separate overdue notice is required.

16.4 If a customer defaults on payment, it owes default interest at the rate of 8% p.a. above the basic interest rate. 

16.5 In  individual cases Futura reserves the right to provide performance solely against advance payment. 

17. Warranties

17.1 It is warranted that at the time the risk passes the Software has no defects that eliminate or significantly reduce the value of the contractual Software or its fitness for the contractually required purpose.

17.2 Unless otherwise agreed, the warranty period shall commence upon receipt of the delivery and shall run for one (1) year. 

17.3 Warranties within the context of individual agreements according to Clause 5 shall be regulated exhaustively within those agreements.

17.4 The liability of Futura is limited in all cases to the net purchase price of the software licences. 

18. External Products (Hardware and Software)

If  the  customer  purchases or  rents  external  products (hardware  or  software)  that  were  not  manufactured  by Futura but were purchased solely for trade purposes, the warranty for such products shall depend on the manufacturer’s liability provisions.

19. Applicability

19.1 These standard terms and conditions are applicable to all business relations between the customer and Futura. 

19.2 The current version of the standard terms and conditions will be provided to every customer in writing after the first order is placed, and can be viewed on the Futura website at any time thereafter. 

19.3 Upon placing of  an order the customer shall expressly agree to the version of the standard terms and conditions in force at that time.

20. Amendments to the Standard Terms and Conditions

20.1 Futura reserves the right to  adjust  these standard terms and conditions at  any  time.  The most  recent version at any time shall be offered by future on the website for downloading for information  purposes. The standard terms and  conditions shall be deemed accepted by the customer unless it raises objections in writing within 30 days of publication of the most recent version.

21.Safeguard Clause

Should individual provisions of this Agreement be or become invalid, they shall be replaced by valid provisions the purpose of which comes closest to the originally pursued purpose.

22. Applicable Law and Venue

22.1 German substantive law applies to contractual relations with Futura Retail Solutions GmbH in Hamburg, Germany, to the exclusion of the provisions of the UN CISG and the provisions of German private international law. The venue is Hamburg.

22.3 Swiss substantive law applies to contractual relations  with Futura Software AG in Horgen, Switzerland, to the exclusion of the provisions of the UN CISG  and  the  provisions  of Swiss private  international law.

The venue is Zurich

As at 1. November 2016


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