General Terms and Conditions of mediCAD Hectec GmbH, Landshut
1. General
1. The following terms and conditions are an integral part of the contract concluded with mediCAD Hectec. For any subsequent transactions, these terms and conditions shall apply in their latest version even if they are not expressly referred to again in individual cases, provided that mediCAD Hectec and the customer are in an ongoing business relationship.
2. Any terms and conditions of purchase of the customer shall not apply unless they are expressly recognized in writing by mediCAD Hectec.
3. Should individual provisions of these terms and conditions be invalid, this shall not affect the validity of the remaining provisions and the contract as such. The invalid provision shall be deemed to be replaced by a provision that is suitable for realizing the economic purpose of the invalid provision.
4. The entire legal relationship with the customer shall be governed exclusively by German law to the exclusion of all rules of private international law. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
5. Place of fulfilment and jurisdiction is Landshut. At the discretion of mediCAD Hectec, the customer can also be sued at his general place of jurisdiction.
2. Offers, order confirmation, written form, prices
1. Offers are non-binding in terms of quantity, price and delivery time
2. mediCAD Hectec reserves the right to technical and design deviations from descriptions and information in brochures, catalogues and written documents as well as model, design and material changes in the course of technical progress, without any rights being derived from this, as long as this is reasonable for the customer.
3. Orders are only binding for mediCAD Hectec if and insofar as mediCAD Hectec has issued an order confirmation. Changes and additions to the contract must be made in writing. This also applies to changes to the written form clause.
4. All prices are net prices. They are quoted ex warehouse Landshut or – in the case of direct shipment – ex German border or German port of entry plus the VAT applicable on the day of delivery.
3. General and special subject matter of the contract
1. The contract signed by both parties or the order confirmation from mediCAD Hectec is decisive for the content, scope, type and quality of the deliveries and services. Other specifications or requirements only become part of the contract if the parties agree this in writing or mediCAD Hectec has confirmed this in writing.
2. Product descriptions and illustrations in test programs are performance descriptions, but not guarantees. A guarantee requires a written declaration or written confirmation by mediCAD Hectec.
3. The delivery of software is limited to the object code (executable form) with the intended documentation and installation and usage instructions. Only the installation instructions printed in the documentation are authoritative for the installation of the software. It is the responsibility of the customer to provide the system requirements (hardware or other software) necessary for the proper execution of the installation. 4.
4. The customer is responsible for regular data and software backups. Please note that it may be necessary to delete data carriers in the event of repairs.
4. Rights of the customer to the software
1. The software (program and user manual) is legally protected. The copyright, patent rights, trademark rights and all other ancillary copyrights to the software as well as to other objects that mediCAD Hectec provides or makes accessible to the customer in the context of the initiation and execution of the contract are exclusively due to mediCAD Hectec in the relationship of the contractual partners. Insofar as third parties are entitled to the rights, mediCAD Hectec has corresponding exploitation rights.
2. The customer acquires the software in order to use it himself in his own business for his own purposes on a permanent basis (simple right of use). All data processing devices (e.g. hard disks and central processing units) on which the programs are copied or transferred in whole or in part, temporarily or permanently, must be located on the customer’s premises and be in his direct possession. The possibility of use may be available at a maximum of the contractually agreed number of workstations. mediCAD Hectec hereby grants the customer the rights to the programs that are necessary for these purposes of use, including the right to copy the programs to RAM or hard drives. The customer may make the backup copies of the programs required for secure operation. The backup copies must, as far as technically possible, be labelled with the copyright notice of the original data carrier. Copyright notices may not be deleted, changed or suppressed.
3. The user manual and other documents provided by mediCAD Hectec may only be copied for internal purposes.
4. Passing on the software to third parties requires the express written consent of mediCAD Hectec. This also applies to other acts of utilization, in particular renting, lending and other distribution in physical or non-physical form.
5. Dispatch
1. Deliveries are made ex warehouse, unless otherwise agreed. Dispatch is at the discretion of mediCAD Hectec at the expense and risk of the customer.
2. The risk of loss or deterioration shall pass to the customer when the goods are handed over to the forwarding agent, carrier or other – also own – transport person. This also applies to deliveries free domicile.
3. If dispatch is delayed due to circumstances for which mediCAD Hectec is not responsible, the risk of loss or deterioration shall pass to the customer upon notification of readiness for dispatch.
4. If ‘ex German border’ or ‘ex German port of entry’ has been agreed for services, the onward shipment shall be at the expense and risk of the customer at the discretion of mediCAD Hectec.
5. The goods shall only be insured against transport damage at the express request and expense of the customer.
6. Delivery, cancellation
1. Delivery periods must be agreed in writing. They shall commence at the earliest on the date of the order confirmation, but not before the customer has provided the documents, authorizations and approvals to be procured and an agreed advance payment has been received. The delivery period shall be deemed to have been met upon dispatch of the goods.
2. Partial deliveries are permissible.
3. If the delivery becomes impossible or excessively difficult due to unforeseeable events, in particular force majeure, official measures, plant shutdown, strike or similar circumstances (also with suppliers), mediCAD Hectec is released from the delivery obligation for the duration of the hindrance and its after-effects. These events entitle mediCAD Hectec to withdraw from the contract. In the event of non-delivery, late or insufficient delivery by suppliers, mediCAD Hectec is released from its delivery obligations in whole or in part. This only applies if mediCAD Hectec has taken the necessary precautions to procure the goods to be delivered. mediCAD Hectec is obliged to notify the unavailability of the goods immediately and to refund any consideration already paid.
4. In the event of a delay in delivery, the customer can only demand compensation for the direct damage caused by the delay to the exclusion of all other and further claims, except in the case of a fixed-date transaction. Any liability for delays during transport is excluded.
5. If the customer is in default of acceptance, the goods can be stored at the expense and risk of the customer or utilized in a manner deemed suitable by mediCAD Hectec at the expense of the customer without the need for prior notice.
6. mediCAD Hectec provides all deliveries and services according to the state of the art.
7. Retention of title
1. The delivered goods remain the property of mediCAD Hectec until full payment of the purchase price claim and all other mediCAD Hectec claims against the customer. The retention of title remains in force even if individual claims are included in a current invoice and the balance is drawn and recognized
2. If the reserved goods are treated or processed by the customer, the treatment or processing is carried out for mediCAD Hectec as ‘manufacturer’ within the meaning of § 950 BGB.
3. If the reserved goods are combined, mixed or processed together with the customer’s own goods or with third-party reserved goods, mediCAD Hectec shall acquire co-ownership of the new item or the mixed stock. mediCAD Hectec has no claim to the increase in value brought about in the ratio of the value of the reserved goods to the other goods at the time of combining, mixing or processing.
4. The customer hereby assigns to mediCAD Hectec his claim with all ancillary rights from the resale of our reserved goods as well as the goods owned or co-owned in accordance with clause 2 or clause 3 as security for all claims to which mediCAD Hectec is entitled against the customer at the time of resale.
5. In the event of resale of the goods which are co-owned in accordance with clause 3, however, only that part of the claim which corresponds to the value of the co-ownership share shall be deemed assigned.
6. If the customer has sold the claim from the resale in the context of real factoring, he assigns the claim against the factor to mediCAD Hectec.
7. mediCAD Hectec hereby accepts the above assignments.
8. If the value of the claims assigned as security exceeds the claims against the customer by more than 20 %, mediCAD Hectec is obliged to release existing securities at the request of the customer.
9. The customer is authorized to collect the assigned claims. However, this authorization expires if the customer is in default of payment to mediCAD Hectec. In this case, mediCAD Hectec is authorized to inform its customers of the assignment on behalf of the customer. The customer is obliged to provide mediCAD Hectec with the necessary information to assert the rights against his customers, in particular to name the customers and to hand over the necessary certificates and documents.
10. The customer is entitled to resell the reserved goods as well as the goods owned or co-owned in accordance with clause 2 only in the ordinary course of business and only on condition that the purchase price claim from the resale is transferred to mediCAD Hectec in accordance with clause 4
11. The customer is obliged to adequately insure the reserved goods as well as the goods owned or co-owned in accordance with clause 2 or clause 3 against loss and damage due to fire, theft, water or similar risks and to provide proof of insurance cover on request. The customer hereby assigns to mediCAD Hectec his claims for compensation to which he is entitled against insurance companies or other parties liable for compensation – if applicable on a pro rata basis.
12. Any impairment of the reserved goods as well as the goods owned or co-owned according to clause 2 or according to clause 3 must be reported immediately as well as access by third parties. In the event of access by third parties, in particular in the event of enforcement measures against the reserved goods, the customer is also obliged to immediately inform the person enforcing the enforcement about the retention of title.
13. mediCAD Hectec takes back the object of purchase due to the retention of title, this is not considered a cancellation of the contract. mediCAD Hectec can satisfy itself freely from the repossessed reserved goods.
8. Payment
1. Invoices are payable net immediately upon receipt.
2. mediCAD Hectec is entitled to offset payments first against the customer’s older debt, despite any provisions of the customer to the contrary. If costs and interest have already been incurred, the payments shall first be offset against the costs, then against the interest and finally against the main service.
3. If the payment deadline is exceeded, the customer shall pay interest at a rate of 9% above the base rate, but at least 10%. This shall not affect the right to claim damages for delay.
4. mediCAD Hectec is entitled to declare the entire remaining debt due if the customer does not fulfil his payment obligations in accordance with the contract or if he suspends his payments or if other circumstances become known that call the creditworthiness of the customer into question. § 321 BGB shall apply with the proviso that the defense provided for therein shall also apply if the customer’s financial situation was already poor at the time of conclusion of the contract, but this was not known. 5.
5. The exercise of a right of retention or offsetting against claims is excluded, unless the counterclaim or counterclaim is undisputed or has been legally established.
9. Warranty
1. The subject matter of the contract is exclusively the goods sold with the properties and features as well as the intended use according to the product description. Other or more extensive properties and/or features or an intended use going beyond these shall only be deemed to have been agreed if they have been confirmed in writing.
2. The customer is obliged to inspect the delivered goods for obvious defects that are readily apparent to the average customer. Complaints due to obvious defects in the goods can only be made in writing immediately, but at the latest within 14 days of receipt of the goods. Hidden defects must be notified in writing within 14 days of their discovery, but at the latest within one year of receipt of the goods.
3. In the event of a breach of the obligation to inspect and give notice of defects, the goods shall be deemed to have been approved with regard to the defect in question.
4. mediCAD Hectec provides warranty at its discretion by repair or replacement. If rectification and replacement delivery fail, the customer may, at his discretion, demand a reduction of the remuneration (reduction) or withdraw from the contract. A failure of the rectification is only to be assumed if mediCAD Hectec has been given sufficient opportunity for rectification or replacement delivery without the desired success having occurred. An equivalent new program version or the equivalent previous program version, which did not contain the error, is to be accepted by the customer if this is reasonable for him.
5. The customer will support mediCAD Hectec in the error analysis and elimination of defects by specifically describing problems that occur, informing mediCAD Hectec comprehensively and granting it the time and opportunity necessary for the elimination of defects. mediCAD Hectec can carry out the elimination of defects at its discretion on site or in its business premises. mediCAD Hectec can also provide services by remote maintenance. The customer must ensure the necessary technical requirements at his own expense and provide mediCAD Hectec with access to his computer system after appropriate prior notice.
6. A warranty for defects that do not or only insignificantly affect the usability is excluded.
7. mediCAD Hectec can demand the additional costs arising from the fact that the software has been modified, used outside the specified environment or operated incorrectly. It can demand reimbursement of expenses if no defect is found. The burden of proof lies with the customer. § Section 254 BGB applies accordingly.
8. The limitation period is one year.
10. Liability
1. Liability for slightly negligent breaches of duty by mediCAD Hectec or its vicarious agents is excluded, provided that this breach of duty does not affect any essential contractual obligations, damages resulting from injury to the body, life or health of affected persons or guarantees or claims under the Product Liability Act.
2. In the event of a merely negligent breach of duty, liability shall be limited to the foreseeable damage typical of the contract. This is regularly represented by the purchase price.
11. Intellectual property rights and copyrights
1. The customer shall inform mediCAD Hectec immediately in writing if he is informed of the infringement of industrial property rights or copyrights by a product supplied by mediCAD Hectec. mediCAD Hectec alone is entitled and obliged to defend the customer against claims of the owner of such rights and to settle these claims at its own expense, insofar as they are based on the direct infringement by a product supplied by mediCAD Hectec. In principle, mediCAD Hectec will endeavor to provide the customer with the right to use the product.
2. Conversely, the customer shall defend or indemnify mediCAD Hectec against all claims of the owner of such rights arising from the fact that mediCAD Hectec has followed the customer’s instructions or the customer modifies the product or integrates it into a system.
3. Programs and associated documentation provided are only intended for the customer’s own use within the framework of a simple, non-transferable license, and exclusively on products supplied by mediCAD Hectec. The customer may not make these programs and documentation accessible to third parties without the written consent of mediCAD Hectec, not even when reselling hardware. Copies may only be made – without assumption of costs or liability – for archiving purposes, as a replacement or for troubleshooting. If originals bear a note indicating copyright protection, this must also be affixed by the customer to copies.
12. Confidentiality / Data protection
1. The contracting parties undertake to treat confidentially all objects (e.g. software, documents, information) which they receive or become aware of from the other contracting party before or during the execution of the contract and which are legally protected or contain business or trade secrets or are designated as confidential, even after the end of the contract, unless they are publicly known without breach of the obligation of confidentiality. The contracting parties shall store and secure these items in such a way that access by third parties is excluded.
2. The customer shall only make the contractual objects, insofar as software is concerned, accessible to employees and other third parties who require access in order to perform the service tasks granted to them. He shall instruct these persons about the confidentiality of the objects.
3. mediCAD Hectec stores the customer’s data required for business transactions in compliance with data protection regulations.
13. Training
1. If training courses are agreed independently, these will take place at the customer’s premises or at another location to be determined in consultation with the customer, at mediCAD Hectec’s discretion. In the case of training at the customer’s premises, the customer shall provide appropriate premises and technical equipment after consultation with mediCAD Hectec. In the case of training at another location, the customer shall provide the necessary premises and provide the necessary hardware and software on site.
2. If booked training courses are cancelled by the customer within 48 hours before the start of the training, all costs incurred will be passed on to the customer by mediCAD Hectec.
3. mediCAD Hectec may cancel agreed training dates for good cause. mediCAD Hectec will inform the customer of the cancellation of a date in good time and offer alternative dates.
14. Export
The export of goods delivered by mediCAD Hectec to non-EU countries requires the written consent of mediCAD Hectec, irrespective of the fact that the customer is responsible for obtaining any official import and export licenses that may be required.
mehr lesen
