General Terms and Conditions

1. Scope

These General Terms and Conditions apply to all deliveries and services provided by Bücker IT-Security GmbH and exclude any conflicting terms and conditions of the contractual partner. Deviating provisions are only binding for us when we have expressly confirmed them in writing or if they correspond with mandatory laws.

The invalidity of any individual provision in these General Terms and Conditions shall not affect the validity of the remaining provisions. In accordance with the principle of good faith and the extent reasonable, the contractual partners are obliged to replace the invalid provision with one that most closely resembles the invalid provision insofar as doing so does not result in a significant change to the content of the contract. The same applies in the case of any situation requiring regulation that has not been expressly agreed.

2. Contract Conclusion and Content

Bücker IT-Security’s offers are non-binding and are valid for a period of 30 days. Customer offers are considered accepted upon written confirmation by us, e.g. through an order confirmation, within a maximum of two weeks of being made. For electronic transactions, confirmation may also be an e-mail with an activation or access code that facilitates use of the purchased service.

The features cited in our offers as well as the information included in brochures, adverts, etc. are only to be considered as approximations. Any deviations considered to be within a reasonable tolerance and/or insignificant, which do not impact usability, remain reserved. For products to be delivered 4+ months after the conclusion of the contract, the prices at the time of delivery shall apply. Our prices are in EUR and exclude statutory VAT.

Should installation, assembly and/or configuration be required in order for the products delivered by Bücker IT-Security to become fully operational, these services shall be invoiced separately. The Bücker IT-Security price lists valid at the time of the order are decisive. The same applies to all other support services we offer and which the contractual partner would like to make use of, in particular demonstration of operability, instruction, training and consultation.

3. Delivery

Binding delivery periods can only be agreed in writing. Unless otherwise agreed in the contract, the delivery period begins upon conclusion of the contract. Delivery periods shall be extended accordingly should we be affected by labour conflicts, particularly strikes and lockouts, or in the event of unforeseeable circumstances beyond our control, e.g. traffic and operational disruptions, energy shortages, non-availability of products from upstream suppliers, etc.

The same applies when the contractual partner subsequently requests amendments or additions.

If delivery is delayed by more than four months for the above-mentioned reasons beyond our control, we may withdraw from the contract. For consumers, this shall only apply if we immediately informed them about the non-availability and have reimbursed the contractual partner’s service. All other rights to withdraw remain unaffected.

Should Bücker IT-Security GmbH exceed the agreed delivery period, for every full week of delay the contractual partner may demand compensation of 0.5 % (up to max. 5%) of the price for those goods that could not be put into service as a result. Other claims for damages made by the contractual partner due to delivery delays or in lieu of performance are excluded. This does not apply in the event that we have acted with intent or gross negligence, there has been a negligent breach of contractual obligations, or for injuries to life, limb or health arising from a negligent breach of obligation by Bücker IT-Security GmbH or from the intentional or grossly negligent breach of obligation by a legal representative or agent of Bücker IT-Security GmbH. The contractual partner may only withdraw from the contract if Bücker IT-Security GmbH bears responsibility for the delay. The above provisions do not constitute a reversal of the burden of proof to the disadvantage of the contractual partner. Upon request by Bücker IT-Security GmbH, the contractual partner is obliged to state within a reasonable period of time if they want to withdraw from the contract or not.

If the contractual partner decides not to accept the contractual service offered, this is deemed a default of acceptance. In this case, we can request 20% of the agreed price for the service offered as damages without providing any evidence. The customer has the opportunity to provide evidence that actual damages were significantly less or non-existent, We reserve the right to claim damages if these are actually higher. If shipping or delivery is delayed at the request of the contractual partner, we shall be entitled to invoice at least 0.017% of the price of the products included in the delivery per day commenced for the costs resulting from warehousing. This entitlement applies from the first month after notification that the goods are ready for dispatch and may not exceed 5% of the price. Both parties reserve the right to show evidence of higher or lower warehousing costs.

4. Transfer of Risk

The risk shall pass to the customer when goods are handed to them. The same applies as soon as the goods are handed over to the commissioned delivery person or leave the warehouse for purposes of delivery. Should delivery be delayed due to the contractual partner, risk of loss is borne by them as soon as notification that the goods are ready for dispatch has been sent. If the customer is a consumer, the transfer of risk shall pass to the customer when the goods are handed to them.

5. Payment, Set-off, Default

Invoices are payable in full to the paying agent immediately upon receipt or when due. Payment is due upon delivery.

In the event of culpable late payment, we reserve the right to charge a late-payment fee of 8% (5% for consumers) on top of the base interest rate in accordance with Section 247 of the German Civil Code (BGB).

If the customer is in default with a significant proportion of the payment, bills or cheques are protested or condition for granting of credit are no longer met, payment shall immediately be due in full. This also applies for originally deferred invoices as well as bills or cheques due at a later date.

Should the customer’s financial position deteriorate considerably after conclusion of the contract, or if the bad financial position only becomes known after conclusion of the contract, we are entitled to refuse the delivery of any outstanding services or demand adequate pre-payment or security provisions.

The contractual partner may only set off those counter-claims that are undisputed or have been established with legal effect. The right of retention can only be invoked insofar as it relates to claims from the same contractual relationship.

We reserve the right to transfer contractual rights and responsibilities to third parties. We shall inform the customer of the responsibilities to be transferred and the name of the third party. If the customer is a consumer, they have the right to withdraw from the contract within two weeks of being informed of the transfer. If the customer is not a consumer, the transfer is effective without the agreement of the customer when their is a legitimate interest in doing so and the customer’s interests are not affected.

6. Retention of Title

All undelivered products remain the property of Bücker IT-Security until all claims, including future and conditional claims, have been fulfilled. This also applies when payments have been made for specifically designated claims. The customer is entitled to resell the delivered items within the ordinary course of its business and assign the receivables from the resale to us provided we accept such an assignment. The customer remains authorised to recover this claim even after the assignment. Our right to collect payment ourselves remains unaffected. As long as the contractual partner fulfils its payment obligations, we shall not collect payment ourselves. If, however, this is not the case, we can withdraw this right to resale.

The customer may not pledge the delivered items nor use them as security. We are to be notified immediately if the items are seized, confiscated or disposed of in any other way by a third party.

7. Liability for Material Defects

The statute of limitations for claims for material defects expires after one year. This does not apply to longer periods of time prescribed by law in accordance with Section 438 Para 1 No. 2, Section 634 a Para. 1 No. 2., Section 475 Para. 2 and Section 479 Para. 1 of the German Civil Code (BGB). The statute of limitations will also not be shortened in the event that we have acted with intent or gross negligence or claims for injury to life, limb or health resulting from the negligent breach of obligation or the negligent or intentional breach of obligation by our agents or the breach of material contractual obligations.

In the event of defects, the customer has the right to a primary cure within the scope of Section 439 of the German Civil Code (BGB). If the contractual partner is not a consumer, we can choose between curing the defect and delivering a replacement.

If the contractual partner has installed the delivered items and then makes a claim for defects, we are only liable when the installation has been carried out professionally. The customer bears the burden of proof for this. In the event that the contractual partner is a consumer, claims for defects can only be considered when the obligations to inspect and disclose report in accordance with Section 377 German Commercial Code (HGB) have been complied with.

Complaints must be made to us within ten working days. In the event of hidden defects, these must be reported immediately upon discovery. If the customer fails to do so, the items shall be deemed to be accepted.

We shall only bear the costs for expenses incurred for the cure such as transportation, travel, labour and material costs insofar as expenses increase because the item purchased was transported, after delivery, to a location other than the customer’s business establishment unless such transport is required for the proper use of the item.

We are liable for damages in accordance with statutory provisions in the event that the contractual partner makes claims that we have committed a fraudulent breach of contractual obligations or acted with intent or gross negligence. If we are not charged for the intentional breach of contract, we shall only be liable for typical, foreseeable damage. Liability for damage that has not occurred to the delivered item is excluded unless there have been injuries to life, limb or health as a result of our grossly negligent breach of obligation or the negligent or intentional breach of obligation by our agents. Furthermore, the contractual partner’s claims for damages are excluded. The above provisions do not constitute a reversal of the burden of proof to the disadvantage of the customer.

The customer only has the right of recourse against Bücker IT-Security GmbH within the scope of Section 478 German Civil Code (BGB) insofar as the customer has not reached an agreement with its client that goes beyond the statutory claims for defects. Within the framework of this entrepreneurial right of recourse, the customer has no right to assert a claim for damages.

8. Final Provisions

All contracts are subject to German law. The contract language is German.

If the Customer is a merchant, corporate body under public law or special fund under public law, the place of jurisdiction is the location of Bücker IT-Security GmbH’s registered office. The place of performance is also the location of Bücker IT-Security GmbH’s registered office.

9. Data Protection

9.1. Provision of software – Standard software

9.1.1. Software Warranties

Bücker IT-Security GmbH draws attention to the fact that software issues cannot be completely excluded under all application conditions Bücker IT-Security GmbH has no warranty obligations to ensure there are no issues with programs or program components changed by the customer themselves, unless the customer proves that these changes are not the reason for the issue. The customer may only install software products on approved systems. Otherwise, a warranty ensuring no issues is excluded unless the customer can prove that the use of unapproved data processing systems is not the cause of the issue. If the cures carried out by Bücker IT-Security GmbH prove unsuccessful, the customer may only request to annul the contract if it is reasonable for a program user to do so. It is particularly decisive if it is not only the use of a function, but of the product in its entirety that is impacted. In the event the contract is annulled, the customer is obliged to choose between either destroying or returning original data media and all copies of software, including any amended copies and other written materials to Bücker IT-Security GmbH.

Within two weeks of the handover or request to destroy, the customer is obliged to confirm in writing to Bücker IT-Security GmbH that all material, including copies, has been handed over or destroyed. Bücker IT-Security GmbH may also fulfil its obligations to provide a cure by providing a new program version, made available to the customer via the internet. Until the issue can be resolved by providing a new program version, Bücker IT-Security GmbH is entitled to provide the customer with an alternative solution when this is reasonable for the customer. If a third party claims damages on the grounds that its property rights have been violated through delivery of the product, Bücker IT-Security GmbH shall exempt the customer from any such claims of the third party. In the case of ordinary negligence, Bücker IT-Security GmbH is not liable for compensation for other damage, such as due to the non-usability of the products or the preparation for the use of another product, unless there has been a material contract obligations.

9.1.2. General Usage Rights

Bücker IT-Security GmbH does not owe the delivery of source programs or manufacturer documentation, but provides software products as object programs. The customer acknowledges the eligibility for protection under copyright law of the software products including user documentation and other documents delivered by Bücker IT-Security GmbH or the respective manufacturer. The customer acknowledges that the products delivered by Bücker IT-Security GmbH are the intellectual property of Bücker IT-Security GmbH or the respective manufacturer. Upon delivery of the products, the customer merely receives the non-transferable and non-exclusive right to use the programs, services and products. Transfer to third parties is only permitted with the express permission of Bücker IT-Security GmbH, unless it is stipulated in the contract that the products delivered may be transferred, the customer wishes to transfer its full usage rights for the object programs delivered, the customer has been sold hardware and proprietary system software as a bundle by Bücker IT-Security GmbH, the customer would like to resell duplicated items to a third party, relinquishes the use of the programs and the third party obligates itself in writing to Bücker IT-Security GmbH to protect the program and to comply with the limits of the usage rights for duplicated items applicable to the customer. If the latter is the case, the customer must inform Bücker IT-Security GmbH immediately of its intention to sell and the name of the potential purchaser. The customer may only make adjustments to the products delivered to them by Bücker IT-Security GmbH with its agreement. The customer may only make copies or duplicates of the software products for its own in-house use and only for their intended use. The customer is only entitled to the resolution of software issues when the warranty has expired and the customer has not concluded a maintenance contract with Bücker IT-Security GmbH.

9.1.3. Scope of Usage Rights

The customer may use the products delivered by Bücker IT-Security GmbH on no more than the maximum number of data processing systems and central units and for the maximum number of users stipulated in the licence / purchase agreement. If the maximum number is exceeded, it is essential to purchase additional usage rights. Additional licences shall be added to the purchase agreement in accordance with Bücker IT-Security GmbH’s currently valid price list. Usage rights may only be for a limited period of time.

9.1.4. Program Protection

When the usage rights expire, the customer is obliged to return all original software products including any amended versions to Bücker IT-Security GmbH or destroy them and confirm to Bücker IT-Security GmbH in writing when requested that this has been done. If the customer does not comply with this provision, Bücker IT-Security GmbH is entitled to prohibit the use of the program immediately or at the end of a notice period. In this case, the customer’s usage rights are no longer valid. If Bücker IT-Security GmbH has also delivered a source program and/or manufacturer documentation with the standard software, the following applies to the customer: The customer is not permitted to share information about the software products delivered by Bücker IT-Security GmbH, their source programs or vendor documentation to a third party, unless this would be grossly unfair to the customer (for example, Bücker IT-Security GmbH prematurely terminates support or the customer expresses its right to extraordinary termination; after expiry of a support obligation should Bücker IT-Security GmbH have no more interest in confidentiality). As a general rule, Bücker IT-Security GmbH provides software products as object programs. The customer is not permitted to decompile or recompile the program or parts thereof in any form.

9.1.5. Subscriptions

If the customer has a software subscription, Bücker IT-Security GmbH is liable for errors that existed before the conclusion of the contract only when Bücker IT-Security GmbH is at fault. The customer may not lease out Bücker IT-Security GmbH software products without prior consent.

9.1.6. Software Manufacturer Licensing Conditions

The manufacturer’s specific licensing conditions also apply to all products. These are included with the products or, in the case of online products, can be accessed online where the products themselves are made available. In the event of conflicts between these Terms and Conditions and the respective licensing conditions, the latter take precedence.

Hille, January 2002



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