Buuky Terms of Service

Status: April 2023

For the legal interpretation of the provisions of these Terms of Use only the German version shall prevail.

1.1 General provisions, validity of the Standard EULA

The “Buuky” software solution (hereinafter referred to as “software”) is provided by viadee Unternehmensberatung AG, Anton-Bruchausen-Strasse 8, 48147 Muenster, Germany (hereinafter referred to as “provider”) exclusively to users, who are entrepreneurs, (Section 14 BGB [German Civil Code]), legal entities under public law or a special fund under public law (hereinafter referred to as “licensee” or “user”).

By making the software available as an online service, the provider effects the provision of the software to the licensee. By creating an account, the licensee accepts these Terms of Service and declares that it is not a consumer (Section 13 BGB) - otherwise the licensee may register an account, license, and use the software. The source code of the software is not the object of the contract and shall not be provided to the licensee.

These Terms of Service and the documents referred to herein apply exclusively. Different, conflicting, or supplementary General Terms and Conditions and Terms and Conditions of Purchase of the Licensee shall become an integral part of the contract only if and to the extent that the provider has expressly consented to their validity in writing. This consent requirement shall apply in any case, for example also if the provider, having knowledge of the licensee’s General Terms and Conditions and Terms and Conditions of Purchase, begins to provide the service to the licensee without reservation.

The provisions of these Terms of Service apply accordingly to the provision of user documentation as well as the provision of patches, updates, upgrades and new releases and versions of the software to the licensee within the scope of rectification or software support.

1.2 Handling of provision of the software, installation of the software, range of functions

Provision and billing of the license fees for the software purchased by the licensee are handled via direct billing or through an online payment service. As the software is provided as an online service, there is no installation required. Necessary configurations in the licensee’s environment to access the service must be performed by the license.

Unless expressly agreed, the provider shall owe no further services, in particular no installation, set-up, consulting, adaptation and/or training services. Other information on the software e.g., in brochures, on the provider’s website or in connection with verbal presentations is not information on quality unless such information is also expressly stated in the product description. The range of functions of the software and the technical conditions for use are determined in the product description for the software. The information in the product description is not, however, to be understood as guarantee of quality for the software unless expressly designated as such in the product description.

1.3 Rights of Use

The provider or the provider’s respective licensors exclusively are entitled to all rights to the software. The software is protected by copyright and international agreements to protect intellectual property.

For the license period purchased, the provider grants the licensee the non-exclusive, non-transferable right to use the software provided for the purposes determined in the product description.

The licensee may use the software only for the number of users specified during installation. Making the software available temporarily or permanently for third parties (e.g., as “software as a service”) and rental are not permitted.

If the licensee is authorized mandatorily under existing law to provide the software purchased by the licensee permanently to a third party, the following shall apply: the licensee shall notify the provider of the provision to the third party, stating its name and address immediately in writing. Furthermore, the licensee shall provide the software to the third party only fully and uniformly for the licensed period. In addition, the licensee shall abandon its use of the software completely in a manner that is proven to exclude any recovery of the software.

The licensee may not modify or further develop the software. Decompilation of the software supplied as well as any other reverse engineering or modification by the licensee are not permitted. Editing, reverse engineering or decompiling the software within the scope of mandatory statutory regulations (Section 69d (2), (3) and Section 69e UhrG [German Copyright Act]) shall remain unaffected.

The user may reproduce the software only to the extent necessary for use in accordance with the contract.

Use of the software by the licensee is permitted simultaneously only on hardware, which is either owned by the licensee or the use of which the licensee can otherwise legally control. The licensee must protect the software against access or use by third parties.

The software uses components of “open source software”, the use of which is governed by the respective open source license terms. The list of the open source software components, the authors thereof and the applicable license terms are attached to this Terms of Service. These license terms apply to the open source software components used in the software respectively if they apply by priority over these Terms of Service in accordance with the respective license terms.

1.4 Documentation, Recommended Browsers

The software shall be provided to the licensee together with the related user documentation (online). Information on the essential functions and applications of the software can also be found on the provider’s website (https://www.buuky.app). Further information on use can be obtained in addition from the provider.

The software may only be used for applications determined in the above-mentioned user documentation.

To ensure the optimal and error-free function of the software, use of the respectively current versions of the following browsers is recommended: Firefox, Chrome, Edge or Safari. The software can also be used in principle with other browsers, but the provider cannot give a warranty for error-free operation of the software where other browsers are used or versions of the recommended browsers are used which are not current versions.

1.5 Warranty

In the case of software defects, for which the licensee is not responsible, the provider shall provide the warranty to the licensee according to the following provisions:

A software defect exists if (a) the software, when used according to the contract, does not provide the functionalities determined in the product description or (b) is not suited for the use provided under the contract or (c) is not suited for customary use and does not have the quality which is customary for software of the same type and which the licensee can expect from the type of software. A defect does not exist (in particular) if

the existence of one of the above-mentioned conditions (a)-(c) has only an insignificant effect on the use of the software.
a malfunction was caused by incorrect handling of the software (e.g., failure to comply with the user documentation).
the cause of a malfunction does not lie with the software but is the result of other causes which are not within the provider’s sphere (e.g., system crash, defects in third-party software).

The licensee shall report defects immediately to the provider, indicating the information known to it and relevant for identifying them. The licensee shall take the measures, which may reasonably be expected to facilitate the identification of the defects and their causes. The report must include the following information:

the symptoms which have occurred, the program functionality concerned.
the number of users concerned.
the description of the system and hardware environment and, where applicable, simultaneously loaded third-party software.

The user shall notify defects via the support channels made available by the provider (e.g., the ticket system designated by the provider).

The nature and manner of remedying defects shall be at the reasonably exercised discretion of the provider. If the provider offers new software parts, especially patches, bug fixes or new versions, especially updates, upgrades, new releases etc., to prevent or remedy defects, the timing of their installation shall be determined exclusively by the provider. A defect can furthermore also be eliminated in the form of workarounds or other instructions to the licensee. The licensee shall follow such instructions.

Claims for defective software shall become statute-barred within one year of the software being first used by the licensee. In the case of intent or gross negligence of the provider, fraudulent concealment of a defect, personal injury or defects of title within the meaning of Section 438 (1) No 1a BGB [German Civil Code] and in the case of guarantees (Section 444 BGB), statutory limitation periods shall apply, likewise in the case of claims under the Produkthaftungsgesetz [German Product Liability Act].

1.6 Limitation of Liability

The provider shall be liable without limitation for damages caused intentionally or due to gross negligence, for damages resulting from injury to life, limb and health, as well as for damages, which constitute a compensation obligation in accordance with Section 1 ProdHaftG [German Product Liability Act].

In the case of ordinary negligence, the provider shall be liable only if it is a violation of material contractual obligations, the fulfilment of which makes the due performance of the provision contract at all possible in the first place and compliance therewith the licensee could rely on. Furthermore, liability for damages caused due to slight negligence shall be excluded. The provisions in the first sub-paragraph of this paragraph 1.6 remain unaffected.

In the case of violation of material contractual obligations by the provider due to ordinary negligence, the compensation obligation shall be limited to the foreseeable damage typical for the contract. Foreseeable damage typical for the contract is damage which the provider, when concluding the contract, has foreseen as possible consequence of a violation of the contract or which the provider should have foreseen when applying due diligence. Indirect damages and consequential damages resulting from a service provision, which is not in accordance with the contract, shall also only be reimbursable if such damages are typically to be expected when the software is used as intended. The provisions in the first sub-paragraph of this paragraph 2.6 remain unaffected.

In the event of data loss or data destruction, the provider shall be liable only to the extent that the provider caused the destruction intentionally, due to gross negligence or due to a violation of a material contractual obligation. Liability of the provider shall be limited in amount to the damage that would also have arisen in the event of a proper data backup by the licensee.

The foregoing provisions on the limitation of liability shall also apply to the personal liability of the employees, representatives and bodies of the provider.

Claims for damages and claims for compensation for wasted expenditure by the licensee shall become statute-barred within one year. Regarding commencement of the limitation period, Section 199 (1) BGB [German Civil Code] shall apply. This shall not apply to claims for damages due to injury to life, limb or health, claims under the Produkthaftungsgesetz [German Product Liability Act] and in the case of violation of a guarantee of quality. Furthermore, this shall not apply to claims based on an intentional or grossly negligent breach of duty by the provider resp. a legal representative or vicarious agent of the provider.e

1.7 Support services

At the same time as the software is purchased, the licensee shall conclude a support contract for the software with the provider. The support contract is valid for the same time as the license period purchased and shall end automatically when the license period ends.

The support services include the following services:

The licensee can report malfunctions in the software to the provider via the ticket system designated by the provider or email. The provider shall respond to this within a period of three working days and support the licensee in analysis of the malfunction and identification of workarounds. The support services shall only be provided in English and German.

In addition, the licensee shall receive updated versions of the software with bug fixes, potential feature enhancements and software changes, directly through the online service. The frequency of version updates and the timing of their installation shall be determined exclusively by the provider.

The provider is not obliged to adapt the software to changing legal framework conditions (i.e., mandatory laws, regulations, supervisory requirements) or due to changing requirements in the licensee’s sphere.

Support in the case of bug fixes further requires that the licensee is using current versions of the Firefox, Chrome, Edge or Safari browsers at the time support is provided.

The support services do not include the following services:

end user support (e.g., questions on the operation of the software)
software training

The provider can offer the foregoing services based on a separate agreement.

Claims for defective support services shall become statute-barred within one year. In the case of intent or gross negligence of the provider, fraudulent concealment of a defect, personal injury or in the case of guarantees (Section 444, 639 BGB [German Civil Code]), the statutory limitation periods shall apply, likewise in the case of claims under the Produkthaftungsgesetz [German Product Liability Act].

1.8 Evaluation Period

The provider allows users to test the software free of charge for an evaluation period of 30 days based on an evaluation license. Purchase of this license is only permitted via online registration (“Try it free” function). The following provisions apply to use of the evaluation license:

The right of use according to paragraph 2.3 is limited to 30 days. After expiry, all functionalities to use the software shall be disabled.
The provider shall be liable in the case of material defects for damages directly caused by a defect, which the licensee, incurs because a material defect in the software was fraudulently concealed from the licensee and in the case of consequential harm caused by a defect, which is based on intentional or grossly negligent conduct of the provider. A further warranty for material defects is excluded. The provider shall be liable in the case of defects of title only for damages incurred by the licensee because a defect of title of the software was fraudulently concealed from the licensee. A further warranty for defects of title is excluded.
The provider shall be liable only for intent and gross negligence. Further claims for damages and for reimbursement of expenses of the licensee, for whatever legal reason, especially for breach of duty arising from the obligation and arising from unlawful act, are excluded. This shall not, however, affect liability according to the Produkthaftungsgesetz [German Product Liability Act].

1.9 Confidentiality, Data Protection

The licensee undertakes to treat as confidential for an indefinite period all company information designated as confidential and all other confidential information and company secrets of the provider and to use this only for the purposes of implementing this contract. The foregoing obligation does not apply to confidential information which (i.) is already publicly known at the time of its transmission or proven to be known to the licensee, (ii.) has become publicly known after its transmission through no fault of the licensee, (iii.) has been made accessible to the licensee after its transmission by a third party lawfully and without limitation in relation to confidentiality or exploitation, (iv.) has been developed by the licensee independently, without using the provider’s company secrets, (v.) must be published pursuant to the law, official order or judicial decision, provided that the licensee informs the provider of this immediately and supports the provider in averting such orders resp. decisions, or (vi.) if the licensee is permitted to use or disclose the confidential information based on mandatory statutory provisions or by the provider.

The privacy policy in the provider’s privacy statement, which is available at

https://www.viadee.de/en/privacypolicy

applies to any processing of personal data which may arise in the negotiation, implementation, and processing of the contract. If the provider processes personal data of the licensee in providing the support services, the provider shall act on behalf of the licensee. The provider shall therefore process the personal data only within the scope of providing the services owed under the contract or other written instructions of the licensee and in accordance with data protection regulations. The parties shall determine the details of commissioned data processing in a separate “Contract on Commissioned Data Processing”. This shall take precedence in its scope of application over the provisions of these Terms of Service.

1.10 Reference

The provider has the right to refer to the contractual relationship with the licensee in appropriate form in brochures and publications (e.g., reference lists). If the licensee is not in agreement with this, the licensee shall accordingly indicate this to the provider by email to marketing@viadee.de.

1.10 Final Provisions

The law of the Federal Republic of Germany shall apply. The provisions of Private International Law and the UN Convention on Contracts for the International Sale of Goods shall not apply. All disputes arising from this agreement shall be settled before a competent court of law at the location of the provider’s registered office in Muenster, Germany.

Amendments to and modifications of these Terms of Service and other declarations in relation to the contract which produce a legal consequence (e.g., the setting of time limits) shall only be valid when given in writing.

Should individually provisions of these Terms of Service be or become legally invalid or the Terms of Service are found to have a gap, this shall not affect the validity of the other provisions of these Terms of Service.