Standard Terms and Conditions of Futura Retail Solutions GmbH and Futura Software AG
Futura Retail Solutions GmbH
Harburger Schloßstr. 28
Futura Software AG
both referred to hereinafter as “Futura”
1. Definition of Terms
The following definitions of terms are employed in all contractual relationships of Futura:
Futura business software solutions for merchandise management, cash desk, business intelligence, sales
A customer who has entered into a licensing agreement with Futura for use of the Software.
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.
10.1 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.
13.1 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.
14.1 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.
15.1 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.
17.1 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.
19.1 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.
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