General Terms and Conditions (GTC) of ComputerBUTLER Germany UG (haftungsbeschränkt)
Preamble
These General Terms and Conditions (GTC) form the legal framework for all deliveries and services (hereinafter “Services”) of ComputerBUTLER Germany UG (haftungsbeschränkt). They are an integral part of a modular contractual system that is supplemented by individual offers, specific terms and conditions of service and business (LGBs) and, if applicable, an order processing contract (AVV) in order to meet the specific requirements of the respective service and the applicable legislation.
§ 1 Definitions
For the purposes of these GTC and all related contractual documents, the following terms shall have the following meanings:
- “AGB” refers to these General Terms and Conditions.
- “Provider” or “ComputerBUTLER” refers to ComputerBUTLER Germany UG (haftungsbeschränkt), Schlieper 35, 13507 Berlin.
- “API” refers to a programming interface (application programming interface) that enables data exchange and interaction between different software systems.
- “AVV” refers to the order processing agreement to be concluded separately in accordance with Art. 28 GDPR, which regulates the processing of personal data by ComputerBUTLER on behalf of the customer.
- “Services” or “Services” means the entirety of the contractual deliveries and services provided by ComputerBUTLER for the customer, in particular, but not exclusively, IT consulting, project management, software and web development, cloud services, managed IT services, IT security, data protection consulting and the provision of AI solutions and enterprise applications. The exact scope is set out in the respective contract.
- “Third-party services” means services, software, content or interfaces that are provided by third parties and interact with ComputerBUTLER’s services, but for which the respective third-party provider is solely responsible.
- “Force majeure” means an external, unforeseeable event that cannot be averted by reasonable care, as defined in more detail in § 13.
- “Customer” means the company within the meaning of Section 14 of the German Civil Code (BGB), the legal entity under public law or the special fund under public law that concludes the contract with ComputerBUTLER.
- “Customer data” means all data, information and materials transmitted to ComputerBUTLER by or on behalf of the customer or stored, processed or created in the course of using the services.
- “LGB” refers to the specific terms and conditions of service and business that apply to a certain category of services, supplement these GTC and take precedence over them in the event of a conflict.
- “Partner” or “Reseller” means a company authorized by ComputerBUTLER that resells or brokers services to end customers in its own name and for its own account.
- “Service Level Agreement” or “SLA” refers to the quality of service agreement defined in an LGB or individual contract, which specifies performance parameters such as availability, response times and recovery times.
- “Software” means computer programs in object or source code form, including associated documentation, which are provided, licensed or developed for the Customer as part of the Services.
- “Contract” means the entirety of the legally binding agreements between the parties, consisting of (in order of priority of validity): the individual offer or the order confirmation, the GCU, the respective LGBs and these GTC.
- “Contracting parties” are ComputerBUTLER and the customer together.
- “Confidential information” means all information marked as confidential or which can be recognized as confidential from the circumstances, in particular business secrets, customer data, technology and price information.
- “Text form” corresponds to the definition of § 126b BGB. E‑mails and faxes satisfy this requirement.
2 Scope of application, conclusion of contract and order of precedence
(1) Scope of application: These GTC govern the entire business relationship between ComputerBUTLER and the customer. They shall also apply in their currently valid version to all future contracts for the provision of services without the need for renewed reference. ComputerBUTLER’s offer is aimed exclusively at entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law.
(2) Exclusivity: These GTC shall apply exclusively. Conflicting, deviating or supplementary general terms and conditions of the customer shall not become part of the contract unless ComputerBUTLER expressly agrees to their validity in text form. This requirement of consent shall apply in any case, for example even if ComputerBUTLER performs the service to the customer without reservation in the knowledge of the customer’s GTC.
(3) Conclusion of contract: Unless expressly marked as binding, ComputerBUTLER’s offers are subject to change and non-binding. The commissioning of services by the customer shall constitute a binding contractual offer. The contract shall come into effect upon ComputerBUTLER’s acceptance of this offer. Acceptance may be effected either by an express declaration in text form (e.g. order confirmation by e‑mail) or by the actual commencement of the provision of services. ComputerBUTLER may accept an offer from the customer within fourteen (14) days of its receipt.
(4) Order of precedence of the contractual documents: If and insofar as the provisions of the various contractual documents contradict each other, the following order of precedence shall apply (the higher-ranking provision shall take precedence over the lower-ranking provision):
- The individual agreement in the offer or in the order confirmation;
- The respective order processing contract (AVV);
- The respective specific terms and conditions of service and business (LGB);
- These General Terms and Conditions (GTC).
The customer’s general terms and conditions shall not apply and shall not become part of the contract.
§ 3 Scope of services and changes to services
(1) Scope of services: The specific scope, quality and characteristics of the services to be provided by ComputerBUTLER are conclusively set out in the respective contract, in particular in the individual offer and the applicable LGBs. ComputerBUTLER shall provide the services properly and professionally in accordance with the current state of the art.
(2) Changes to services by the customer (change request): If the customer wishes to change or extend the agreed scope of services after conclusion of the contract, this shall require an application in text form. ComputerBUTLER shall review this request and inform the customer of the resulting effects, in particular on remuneration, schedules and other contractual content, in the form of a supplementary offer. The amendment shall only become effective upon mutual acceptance of this supplementary offer in text form. ComputerBUTLER shall continue to provide the services in accordance with the originally agreed scope of services until the supplementary offer is accepted.
(3) Performance adjustments by ComputerBUTLER: ComputerBUTLER shall be entitled to adapt the manner in which services are provided if this is necessary due to the further development of technology, changes in legal or regulatory requirements or to improve the security and stability of the services. The prerequisite is that the adjustment is reasonable for the customer, the contractually agreed service quality is not impaired and no additional costs arise for the customer. ComputerBUTLER shall inform the customer of any significant adjustments in good time in text form.
(4) Subcontractors: ComputerBUTLER shall be entitled to use third parties (subcontractors) to fulfill its contractual obligations. ComputerBUTLER shall remain the customer’s sole contractual partner in this respect and shall be liable for the services provided by subcontractors in the same way as for its own actions.
§ 4 Use of third-party services and APIs
(1) Contractual relationship for third-party services: If ComputerBUTLER’s services enable the use or integration of third-party services, a contract regarding these third-party services shall be concluded exclusively between the customer and the respective third-party provider. ComputerBUTLER shall not become a party to this relationship and shall merely act as a technical intermediary or provide the technical integration option. The customer is solely responsible for checking and complying with the third-party provider’s terms of use and license conditions.
(2) Exclusion of warranty and liability: ComputerBUTLER assumes no warranty, liability or responsibility for the functionality, availability, security, content or privacy practices of third party services. Any liability for damages resulting from the use, unavailability or changes to third-party services is excluded. This also applies if ComputerBUTLER has recommended the integration of a particular third-party service.
(3) Responsibility for data transmission: By connecting a third-party service, the customer is solely responsible for and authorizes the data exchange between ComputerBUTLER’s services and the third-party service that is necessary for the function. The customer must ensure that such data transfer complies with the applicable data protection laws and its own data protection guidelines.
(4) Use of APIs of the provider: If ComputerBUTLER provides the customer with its own APIs, the customer is obliged to use these in accordance with the applicable documentation and the principles of fair use (“Fair Use Policy”). The customer must keep all access data provided to it (e.g. API keys) safe and protect them from access by third parties. Any misuse or excessive use that jeopardizes the stability of ComputerBUTLER’s infrastructure is prohibited and may result in the immediate blocking of access.
§ 5 Obligations and cooperation of the customer
(1) General cooperation: The customer acknowledges that the successful and timely provision of the services requires the timely and qualified cooperation of the customer. The obligations to cooperate set out in this paragraph and in the respective contract are essential contractual obligations (cardinal obligations) of the customer.
(2) Information and provision obligations: The customer is obliged:
a) to provide ComputerBUTLER with all information, data, documents and access (e.g. to systems, servers, premises) necessary for the provision of services in good time, in full and in the required quality.
b) to designate one or more qualified and authorized contact persons and their representatives who can be reached by ComputerBUTLER during normal business hours.
c) to maintain the hardware and software environment and other technical infrastructure used by it in a functional condition suitable for the services.
(3) Data backup: Unless expressly agreed as a service of ComputerBUTLER (e.g. as part of managed services), the customer shall be solely responsible for the regular and proper backup of its data and programs (backup) in accordance with the state of the art. This applies in particular before ComputerBUTLER carries out maintenance or installation work.
(4) Obligations to give notice of defects and to investigate: The customer shall immediately inspect the services provided by ComputerBUTLER for compliance with the contract and immediately report any obvious defects in text form. The customer shall document and report faults and defects in a comprehensible manner, stating the information known to it and useful for remedying the defect.
(5) Consequences of breached obligations to cooperate: If the customer fails to perform an obligation to cooperate, fails to do so on time or fails to do so in the agreed manner, the resulting consequences, such as in particular delays, additional expenses and damages, shall be borne by the customer. ComputerBUTLER shall not be responsible for any resulting disruptions to performance. ComputerBUTLER’s liability shall be excluded in this respect. ComputerBUTLER shall be entitled to charge for any additional expenses incurred as a result in accordance with the applicable price list. Further statutory rights of ComputerBUTLER shall remain unaffected.
§ 6 Remuneration and terms of payment
(1) General price bases: The remuneration to be paid by the customer is based on the respective contract. All prices are quoted net in euros, plus the applicable statutory VAT. Unless otherwise agreed, travel and ancillary costs shall be invoiced separately on a time and material basis.
(2) Terms of payment for hardware and projects:
a) Payments for Hardware deliveries 100% are due in advance when the order is placed. The hardware will not be ordered from the supplier until payment has been received.
b) For services in the area of Software and web development Unless otherwise agreed, a down payment of 50% of the agreed total remuneration is due when the order is placed. The remaining 50% shall be due after acceptance or upon delivery of the work.
(3) Terms of payment for ongoing services: Ongoing, flat-rate remuneration for services such as Managed Services or Cloud services are to be paid monthly in advance, unless otherwise agreed, and are due on the first of each month.
(4) Terms of payment according to expenditure: Services that are billed on a time basis (e.g. IT consulting, support) shall be invoiced on the basis of the proof of activity submitted. ComputerBUTLER is entitled to invoice the services provided promptly, generally at 7 or 14-day intervals, but no later than the end of a calendar month.
(5) Maturity: All invoices are, unless otherwise regulated under (2) to (4), immediately after receipt of invoice without deduction due for payment.
(6) Default of payment: If the customer defaults on a payment, ComputerBUTLER shall be entitled to charge default interest at the statutory rate. If the customer is in default with the payment of a not insignificant amount, ComputerBUTLER shall also be entitled to suspend the provision of the services after prior warning until the remuneration owed has been paid in full. This shall not affect the right to claim further damages for default.
(7) Objections: Objections to an invoice must be raised by the customer in text form with ComputerBUTLER within six (6) weeks of receipt of the invoice. Failure to raise objections in good time shall be deemed approval of the invoice. ComputerBUTLER shall draw the customer’s attention to the significance of this deadline in the invoices. The customer’s statutory claims in the event of objections after expiry of the deadline shall remain unaffected.
(8) Right of set-off and retention: The customer may only offset undisputed or legally established claims. The customer may only assert a right of retention if it is based on the same contractual relationship.
§ 7 Granting of rights and restrictions of use
(1) Principle of the rights holder: All copyrights, performance rights and other intellectual property rights to the services and work results provided by ComputerBUTLER and made available under the contract, in particular to software, concepts, designs and documentation, shall remain the sole property of ComputerBUTLER or its licensors.
(2) Granting of rights of use: Unless expressly agreed otherwise in an LGB or in the individual contract, the customer shall receive a simple, non-exclusive, non-transferable and non-sublicensable right to use the work results provided to him. This right is limited to the duration of the contract and to the contractually agreed purpose. More specific provisions, in particular regarding the granting of extended or exclusive rights (e.g. in the case of individual software development), are set out in the respective LGBs.
(3) Condition of full payment: The granting of all rights of use to the customer is subject to the condition precedent that the agreed remuneration is paid in full and on time. Until full payment has been made, ComputerBUTLER shall only tolerate use by the customer on a revocable basis.
(4) Restrictions on use: The customer is prohibited from using the services and work results provided to him:
a) to reproduce, rent, sublicense or otherwise make available to third parties, unless this is absolutely necessary or expressly permitted for the contractual use;
b) to reverse engineer, decompile or disassemble, unless this is mandatorily permitted under applicable law;
c) to remove or alter copyright notices, trademarks, serial numbers or other identifying features.
(5) Open source and third-party software: If ComputerBUTLER’s services contain software or components from third-party providers, including open source software, the respective license terms of the third-party provider or the open source license shall take precedence for these components. ComputerBUTLER shall inform the customer of the relevant license terms upon request.
§ 8 Partner programs and resale (resellers)
(1) Requirement of a partner agreement: The authorization to resell or broker services to third parties (end customers) requires a separate, written partner agreement between ComputerBUTLER and the partner. The specific rights and obligations of the partner are conclusively regulated in this partner agreement and the associated partner GTCs.
(2) Legal relationship with the end customer: The Partner acts in its own name and for its own account. The contract for the use of the services is concluded exclusively between the partner and the end customer. No direct contractual relationship shall arise between ComputerBUTLER and the partner’s end customer as a result of this resale.
(3) Obligations of the partner: The partner is obliged to contractually obligate its end customers to comply with the terms of use applicable to the respective services, in particular the provisions of these GTC and the applicable LGBs. The level of protection afforded to ComputerBUTLER by these obligations must at least correspond to the provisions that ComputerBUTLER has agreed with the partner.
(4) Indemnification: ComputerBUTLER assumes no liability for actions, assurances, support services or omissions of the partner vis-à-vis its end customers. The partner shall indemnify ComputerBUTLER against all claims asserted by end customers against ComputerBUTLER in connection with the distribution or provision of the services by the partner, unless these are based on intentional or grossly negligent fault on the part of ComputerBUTLER.
§ 9 Liability for defects (warranty)
(1) Contractual quality: ComputerBUTLER warrants that the services provided correspond to the quality agreed in the respective contract and are free from defects that nullify or significantly reduce their suitability for use in accordance with the contract. An insignificant reduction in suitability shall not be taken into account.
(2) Specific regulations in the LGBs: Detailed agreements on the quality of service, in particular on availability, response and recovery times (service level agreements), as well as specific regulations on liability for defects for individual services (e.g. for software or work services) are primarily set out in the applicable LGBs.
(3) Subsequent performance: If there is a defect, ComputerBUTLER shall initially be entitled to subsequent performance. Subsequent performance shall be effected at ComputerBUTLER’s discretion either by remedying the defect (rectification) or by providing a defect-free service (subsequent delivery). The customer shall grant ComputerBUTLER the time and opportunity required for subsequent performance.
(4) Notice of defects: The customer is obliged to inspect the services provided immediately after delivery or provision and to report obvious defects in text form immediately, but at the latest within seven (7) days. Hidden defects must be reported immediately after their discovery. In the event of a breach of the obligation to inspect and give notice of defects, the service shall be deemed to have been approved with regard to the defect in question.
(5) Statute of limitations: The customer’s warranty claims shall expire twelve (12) months after the start of the statutory limitation period. Excluded from this shortening are claims for damages due to injury to life, body or health as well as claims arising from intent or gross negligence.
§ 10 Liability
(1) Unlimited liability: ComputerBUTLER shall be liable without limitation for damages resulting from injury to life, limb or health that are based on an intentional or negligent breach of duty by ComputerBUTLER or an intentional or negligent breach of duty by a legal representative or vicarious agent of ComputerBUTLER. ComputerBUTLER shall also be liable without limitation for other damage resulting from an intentional or grossly negligent breach of duty or fraudulent intent, as well as in cases of liability under the Product Liability Act and in the event of the assumption of a guarantee.
(2) Liability for breach of material contractual obligations: In the event of a slightly negligent breach of material contractual obligations (cardinal obligations), the fulfillment of which is essential for the proper execution of the contract and on the observance of which the customer may regularly rely, ComputerBUTLER’s liability shall be limited to compensation for foreseeable damage typical of the contract.
(3) Exclusion of liability in other respects: Any further liability on the part of ComputerBUTLER — irrespective of the legal grounds — is excluded.
(4) Liability for data loss: Liability for the loss of data shall be limited to the typical recovery costs that would have been incurred if the customer had regularly made backup copies in accordance with the risks involved. This limitation of liability shall not apply if ComputerBUTLER has contractually assumed responsibility for data backup or if the requirements of paragraph 1 are met.
(5) Liability for third-party services: ComputerBUTLER shall not be liable for damage caused by disruptions or non-availability of third-party services, unless the damage is due to an intentional or grossly negligent breach of duty by ComputerBUTLER in the selection or integration of such services.
(6) Validity for employees and agents: The above liability provisions shall also apply in favor of ComputerBUTLER’s legal representatives, employees and vicarious agents.
§ 11 Contract term and termination
(1) Term: The term of the contract begins on the date agreed in the individual contract. Unless otherwise agreed, contracts for continuing obligations (e.g. managed services, cloud services) have a minimum contract term of twelve (12) months.
(2) Automatic renewal: After expiry of the minimum contract term, the contract is automatically extended by a further twelve (12) months in each case, unless it is terminated by one of the contracting parties with three (3) months’ notice to the end of the respective contract term.
(3) Ordinary termination: Ordinary termination before expiry of the agreed minimum contract term is excluded for both parties.
(4) Extraordinary termination: The right of both contracting parties to extraordinary termination for good cause shall remain unaffected. ComputerBUTLER shall be deemed to have good cause in particular if:
a) the customer is in arrears with the payment of a not insignificant part of the remuneration for two consecutive dates;
b) the customer seriously violates essential contractual obligations, in particular the restrictions on use pursuant to § 7, despite a warning;
c) insolvency proceedings are opened against the customer’s assets or the opening of such proceedings is rejected for lack of assets.
(5) Form: Any termination must be in text form to be effective (§ 126b BGB).
§ 12 Confidentiality and data protection
(1) Confidentiality: Both contracting parties undertake to keep secret for an unlimited period of time all Confidential Information of the other party that comes to their knowledge in the course of the performance of the contract and to use it only for the purposes of this contract. Confidential information may only be made accessible to third parties if it is subject to professional secrecy or has previously been subject to an equivalent confidentiality obligation. This obligation shall not apply to information that is public knowledge or becomes public knowledge through no fault of the receiving party.
(2) Data protection: The contracting parties undertake to comply with all applicable data protection laws, in particular the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG). The employees of both parties shall be obliged to maintain data secrecy.
(3) Order processing: If ComputerBUTLER processes personal data on behalf of the customer as part of the provision of services, the parties are obliged to conclude an order processing agreement (AVV) in accordance with the requirements of Art. 28 GDPR before processing begins. ComputerBUTLER shall provide a corresponding template for this purpose. Without an effectively concluded DPA, ComputerBUTLER shall not process personal data on behalf of the customer.
(4) Customer data: The customer shall remain the sole owner of the customer data and shall be solely responsible for its legality, in particular with regard to data protection issues. ComputerBUTLER shall only access customer data to the extent that this is necessary for the provision of the contractually owed services or is required by law. Customer data will not be passed on to third parties without the customer’s express consent, unless there is a legal obligation to do so.
§ 13 Force majeure
(1) Disclaimer: None of the contracting parties shall be obliged to fulfill their contractual obligations if and as long as fulfillment is made impossible by a force majeure circumstance. Force majeure includes in particular, but is not limited to, war, terrorism, natural disasters, pandemics, epidemics, strikes in supplier companies, the failure of essential communication networks or other unforeseeable, serious events for which the parties are not responsible.
(2) Duty to inform and adaptation: The party affected by force majeure must inform the other party immediately of the occurrence and the expected duration of the event. The contracting parties shall adjust their obligations to the changed circumstances in good faith.
(3) Right of termination: If the force majeure event lasts longer than three (3) months, each contracting party shall be entitled to terminate the affected contract extraordinarily. Services already rendered shall be remunerated accordingly.
§ 14 Final provisions
(1) Applicable law: This contract and all disputes arising therefrom shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) Place of jurisdiction: If the customer is a merchant, a legal entity under public law or a special fund under public law, Berlin is agreed as the exclusive place of jurisdiction for all disputes arising from or in connection with this contract.
(3) Text form: Amendments, supplements and the rescission of this contract or individual provisions must be made in text form to be effective. This also applies to the amendment of this text form requirement itself. Verbal collateral agreements do not exist.
(4) Severability clause: Should any provision of these GTC or the contract be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the contracting parties undertake to replace the invalid provision with a valid provision that comes closest to the economic purpose of the invalid provision. The same applies to any loopholes.