The blu Experience

Terms & Conditions

blu Systems GmbH, Keltenring 11, 82041 Oberhaching (hereinafter referred to as “blu“)

Date: February 2023

These General Terms and Conditions (GTC) apply to all business relationships between blu and the respective contractual partner. The contractual partner must be an entrepreneur according to § 14 BGB, a legal entity under public law, or a special public fund, unless individual deviating agreements have been made.
These terms and conditions apply to these as well as to all future business relationships with the contractual partner. These terms and conditions are deemed accepted at the latest upon acceptance of the service. Counter-confirmations from the contractual partner referring to its terms and conditions are hereby objected to.
All agreements made between blu and the contractual partner require written form.

The offers made by blu are non-binding and subject to change. Declarations of acceptance and all orders require written or telefax confirmation by blu to be legally effective. Declarations of intent can also be effectively transmitted by email, unless stricter legal requirements apply. Services provided by blu itself or by subcontractors (including freelancers) accepted by the contractual partner are carried out in accordance with recognized rules of technology or, alternatively, properly and (including all offers etc.) exclusively subject to these terms and conditions. blu is entitled to make partial deliveries and partial services at any time, unless partial delivery or performance is unreasonable for the contractual partner. Detailed performance and/or quality descriptions included in offers or other written documents are only guaranteed properties if explicitly confirmed in writing by blu. The information provided by a potential employee is solely compared by blu with the job profile of the contractual partner for consistency; blu is not obliged to verify the accuracy of the information provided by a potential employee presented by blu to the contractual partner or to validate the authenticity of the documents submitted by this potential employee.
The contractual partner undertakes to appoint a contact person for blu no later than upon conclusion of the contract, whose decision-making authority includes the usual business transactions between the contractual partner and blu. The contractual partner’s contact person must provide blu with the necessary information (in writing and/or orally) in a timely and complete manner at its own expense, or alternatively to a reasonable extent, for the proper conclusion of the contract (including pre- and post-processing actions) and to assist blu in fulfilling its performance obligations. If the contractual partner does not cooperate or does not cooperate properly, especially not in a timely manner, and/or requests contract changes from blu, agreed deadlines are deemed extended to a reasonable extent. If special legal or operational safety regulations must be observed by the contractual partner in work at the company, the contractor’s employees will be informed of these regulations and provided with them in a timely manner before starting work. The contractual partner shall provide suitable office space, work equipment, system access, network connections, printer access, and telephone facilities for the project work as required to fulfill the contract.
If a specific term has been agreed, the individual order is conclusively concluded for this term. If no specific term has been agreed, the respective individual order is concluded for an indefinite period. It can be terminated with a notice period of 4 weeks to the end of the month, unless otherwise agreed in the individual order. Termination without notice for good cause remains unaffected. Good cause exists in particular if there is a significant deterioration in the financial circumstances or other financial circumstances of the contractual partner or if there is a threat of such deterioration, endangering the fulfillment of obligations resulting from the business relationship towards the terminating contractual partner, or if insolvency proceedings or another judicial or extrajudicial procedure for debt settlement have been initiated against its assets. If the client terminates the contract before the agreed term expires or before the contractual performance is completed, the client shall reimburse blu for the expenses incurred by blu in reliance on the existence of the contract or on the complete provision of services or which blu is still unavoidably obliged to incur, or which blu has to incur for the dissolution of contracts in the subcontractor chain. This does not apply if the client terminates for reasons attributable to blu. If the contractual performance consists of the production of a work success, §648 BGB shall apply instead of the regulation according to sentence 1. In the context of software license transactions of any kind carried out by blu on behalf of the manufacturers as a contact partner (reseller), paragraph 4. (3) does not apply. In the case of license transactions without support or provision of other services, the terms and conditions of the respective manufacturer are binding.
All prices are net prices, plus the applicable statutory value-added tax unless otherwise stated. Unless otherwise stated, blu is bound by the prices contained in its offers for 90 days from the date of the offer. The prices stated in the order confirmation by blu are decisive. Additional deliveries and/or services will be charged separately. If the payment for the services provided by blu is billed on a time and materials basis, a daily rate with eight working hours and a month with 174 working hours will generally be charged, unless otherwise agreed (e.g., fixed price). Services provided by blu or its subcontractors that exceed this will be remunerated proportionally. The daily working hours correspond to those of the contractual partner, alternatively to the day shift in the contractual partner’s operation, alternatively, these are between 8:00 am and 6:00 pm. Services provided by blu or its subcontractors outside these shifts will be invoiced with surcharges – also cumulatively: evening surcharge from 6:00 pm to midnight is 50%, night surcharge from midnight to 8:00 am is 100%, Saturday surcharge is 100%, Sunday/holiday surcharge is 100%. The place of actual employment of the employee is relevant for holidays. For services not provided by blu or its subcontractors at the blu’s premises, travel costs, travel times, expenses, and accommodation costs are invoiced based on effort. Travel time is considered working time. blu invoices the contractual partner monthly based on the services actually provided. The time/ performance recording on which the invoices are based is communicated to the contractual partner at the beginning of the month following the performance provision. The transmitted time/performance recording is deemed accepted by the contractual partner if he does not object in writing within a period of 10 working days, from receipt and notification of the consequences of any untimely objection. If a service catalog has been processed within the framework of fixed-price projects and this has been reported to the contractual partner as completed in writing, acceptance must be declared by the contractual partner within 14 days. If the contractual partner does not declare acceptance, acceptance is deemed to have been granted upon expiry of this period.

If blu owes a (contractual) success, the statutory provisions regarding defects apply, with the limitation that the limitation period is shortened to 12 months from acceptance; partial acceptances are permissible. The limitation period starts and ends independently for each accepted partial work. The limitation period shortening does not apply to claims under Section 8.1.
If the delivered product is defective, blu can first choose whether to remedy the defect (repair) or to deliver a defect-free product. Its right to refuse subsequent performance under the statutory conditions remains unaffected.
The contractual partner may only withdraw if blu’s attempts to rectify the defect have failed twice or if blu definitively refuses to rectify the defect.
blu is entitled to make the owed subsequent performance dependent on the contractual partner paying the due price. However, the contractual partner is entitled to retain a part of the price corresponding to the defect.

Invoices are due for payment within 30 days of receipt of the invoice by the contractual partner and are payable without deduction to the existing business accounts of blu unless otherwise agreed. Notwithstanding any differing provisions of the contractual partner, blu is entitled to credit payments to the contractual partner’s older debts first and will inform the contractual partner of the nature of the set-off made. If costs and interest have already been incurred, blu is entitled to credit the payment to costs first, then to interest, and finally to the main performance. If the contractual partner is in default, blu is entitled to demand interest from the respective point in time at a flat rate of 9% above the base rate as lump-sum damages. This is to be reduced if the contractual partner proves a lower burden. The proof of a higher damage by blu is permissible. blu’s employees, subcontractors, and freelancers are not authorized to collect cash. Payments can be made with discharging effect only directly to blu or to a bank account specified by blu. The contractual partner is only entitled to set-off, retention, or reduction, even if defects are complained of or counterclaims are asserted, if the counterclaims have been legally established or are undisputed. This does not apply to the contractual partner’s right of retention for claims arising from the same contractual relationship.
blu is liable without limitation for damages caused intentionally or through gross negligence by blu, as well as by its legal representatives and vicarious agents, for damages resulting from injury to life, body, or health, according to the Product Liability Act, and in cases of fraudulent behavior or guaranteed quality. blu is liable for damages caused by slight negligence only insofar as they result from a breach of an essential contractual obligation, limited to the typical, foreseeable damage. Essential contractual obligations are those whose fulfillment enables the proper performance of the contract in the first place and on whose observance the contractual partner regularly relies or may rely, or whose breach jeopardizes the achievement of the purpose of the contract. blu is only liable for data loss or similar damage if the contractual partner has ensured through proper data backup that this data can be reconstructed at reasonable expense and if data backup is not part of the contractually agreed services. The liability is limited to the amount of the restoration effort. The liability limitations resulting from paragraphs 8.1. to 8.3. also apply to legal representatives and vicarious agents of blu.
The contracting parties undertake to maintain confidentiality regarding confidential information, not to disclose this information to third parties, and to use it only for the purpose of contract processing. (Link to the confidentiality agreement) “Confidential information” within the meaning of section 9.1. includes all economic, technological, scientific, patent-related, and other internal information of the contracting parties regarding business strategies, protective rights, development, production, and use of similar data of the contracting parties, which have already been disclosed or will be disclosed during the term of this contract. Excluded from the obligation of confidentiality are information of a contracting party that, were already in the possession of the other contracting party before transfer by that contracting party, were already publicly known at the time of transfer, become publicly known after their transfer by publication or otherwise, unless this is done by a breach of the confidentiality obligation regulated in the present contract by one of the contracting parties. The contracting parties are obliged to comply with the provisions of data protection laws. (Link to the privacy notice of blu Systems GmbH for customers) To the extent that blu processes or uses personal data on behalf of the contractual partner, blu will process this data in accordance with Art. 28 GDPR.
The contractual partner undertakes not to employ any employees or freelancers of blu or to engage them in independent or freelance activities during the term and within one year after termination of the contractual relationship – or, if individual project contracts are concluded, also for at least twelve months after the termination of the last individual project contract – and also not to participate in or participate in such poaching or poaching attempts. In the event of a breach of this obligation under section 10.1., a contractual penalty of € 10,000 is forfeited and due for payment immediately. Further claims for damages are not excluded.
Oral collateral agreements require written form to be effective. For these GTC and all legal relationships between blu and the contractual partner, the law of the Federal Republic of Germany applies. The provisions of the UN Sales Convention do not apply. The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the place of performance, Munich. blu is entitled to bring legal action at the place of performance of the delivery obligation in all cases, in accordance with these GTC or a prior individual agreement, or at the general place of jurisdiction of the contractual partner.
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