General Business Conditions of mediCAD Hectec GmbH, Landshut
1. General Conditions
1. The conditions hereafter are a part of the contract concluded with mediCAD Hectec GmbH. They are applicable for follow-up transactions in their latest valid version even if not explicitely referred to, as long as mediCAD Hectec GmbH and the customer are in an ongoing business relationship.
2. Any conditions of purchase on the customer’s side are void, except for when mediCAD Hectec GmbH specifically acknowledges such conditions in writing.
3. Should any one provision of these conditions be invalid, this shall remain with no influence on the validity of the remaining provisions as well as the contract as such. The invalid provision shall be replaced by a provision that is appropriate for achieving the purpose of the invalid provision.
4. For all legal relationships with the customer, only German law applies to the exclusion of all allocation rules of private international law. The application of the CISG is excluded.
5. Place of performance and jurisdiction is Landshut. By choice of mediCAD Hectec GmbH, customers can also be sued in their own place of jurisdiction.
2. Quotations, order confirmation, written form, prices
1. Offers are subject to quantity, price and delivery time.
2. Technical and creative deviations from descriptions and information in brochures, catalogs and written documents as well as changes of design, construction and material in the course of technical progress are reserved. No rights can be derived from this, as long as it is reasonable for the customer.
3. Orders placed with Hectec are binding only if and to the extent of an order confirmation being issued by the mediCAD Hectec GmbH. Changes and additions to the contract must be made in writing. This also applies to changes made to the requirement of written form.
4. All prices are net prices. They are ex stock Landshut or – in direct shipping – from the German border or German port of entry plus applicable VAT on the day of delivery.
3. General and specific object of the contract
1. The mutually signed contract or the order confirmation by mediCAD Hectec GmbH is binding with respect to content, extent, nature and quality of goods and services. Other information or requirements are only part of the contract, if the parties agree in writing or if Hectec has confirmed those in writing.
2. Product descriptions and images in test software are a description of services, but no guarantees. A guarantee requires a written statement or written confirmation by mediCAD Hectec.
3. When releasing software, the delivery is limited to the object code (executable form) with the provided documentation, and installation and usage instructions. The printed installation manual contained in the documentation is exclusively applicable for the installation of software. It is up to the customer to comply with the system requirements (hardware or other software) for proper installation.
4. The customer is responsible for a regular data and software backup. It is pointed out that deletion of data storage devices may be required in case of repairs.
4. Rights of the customer to the software
1. The software (program and user manual) is protected by law. Copyrights, patents, trademarks and all other ancillary rights to the software and to other objects, which mediCAD Hectec provides or makes available to the customer as part of contract negotiations and contract execution, belong solely to mediCAD Hectec with regard to the contractual relationship of the parties. If any rights belong to third parties, Hectec was granted the corresponding exploitation rights.
2. The customer is purchasing the software for continuous use in his own business for his own purposes (basic right of use). All data processing devices (e.g. hard disks and CPUs), on which the programs are fully or partially, temporarily or permanently, copied or transferred, must be located in areas of the customer and be in his immediate possession. Usage may only be made available on the contractually agreed number of workstations. mediCAD Hectec GmbH grants the customer such rights to the program that are necessary to its usage, as well as the right to copy the program to memory or hard drives. The customer may perform all backups necessary for safe operation of the programs. The backup copies must, if technically possible, be labelled with the copyright notice of the original volume. Copyright notices may not be deleted, modified or suppressed.
3. The user manual and other documents provided by mediCAD Hectec may be copied for internal purposes only.
4. A transfer of the Software to any third party requires expressly written consent of mediCAD Hectec. This also applies to other acts of exploitation, particularly rental, lease or other distribution of any tangible or intangible form.
5. Shipping
1. Deliveries are, unless otherwise agreed, ex stock. Shipping is carried out at the discretion of Hectec at the expense and risk of the customer.
2. By handing over the goods to the shipper, carrier or another – including own – conveyance person, the risk of loss or deterioration passes over to the customer. This also applies to free deliveries.
3. If delivery is delayed due to circumstances not within the responsibility of mediCAD Hectec, the risk of loss or deterioration passes over to the customer when readiness for shipment is stated.
4. If services are agreed “from German border” or “from German port of entry”, the re-dispatch is carried out at the discretion of mediCAD Hectec at the expense and risk of the customer.
5. Insurance of the goods against damage is only made at the explicit request and expense of the customer.
6. Delivery, withdrawal
1. Delivery deadlines must be agreed to in writing. They begin at the earliest on the date of order confirmation, but not before receiving any documents, permits and approvals to be procured from the customer, as well as an agreed deposit. The delivery deadline is met with dispatch of the goods.
2. Partial deliveries are permitted.
3. If delivery is made impossible or excessively complicated by unforeseeable events, particularly acts of God, governmental actions, factory shutdowns, strikes or similar circumstances (including suppliers), Hectec is released from the delivery obligations for the duration of the delay and its consequences. These events entitle mediCAD Hectec to withdraw from the contract. In the case of non-delivery, late delivery or insufficient delivery by suppliers, mediCAD Hectec is released from the delivery obligations in whole or in part. This only applies if mediCAD Hectec has made the necessary arrangements for the procurement of the goods to be delivered. mediCAD Hectec is obligated to report the non-availability of the goods immediately and to reimburse any payment already made.
4. In case of default, except in case of a fixed date, the customer can only claim immediate damages for delay, excluding all other and further claims. For delays during shipping, liability is excluded.
5. In case of default in acceptance by the customer, the goods can be stored at the expense and risk of the customer, or be reused on the customer’s account in a way deemed appropriate by mediCAD Hectec, without prior announcement.
6. mediCAD Hectec provides all deliveries and services according to current state of the art.
7. Retention of title/ownership
1. Until full payment of the purchase price and all other claims of mediCAD Hectec against the customer, the delivered goods remain the property of mediCAD Hectec. The retention of title/ownership shall also apply 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 working or processing is made on behalf of mediCAD Hectec as “manufacturer” for the purpose of § 950 BGB.
3. If the reserved goods are combined, mixed or processed together with the customer’s own goods or a third party’s reserved goods, mediCAD Hectec acquires joint ownership of the new object or the mixed inventory. Hectec rises no claim on the ratio of raised value between the reserved goods and the other goods at the time of combination, mixing or processing.
4. The customer conveys his claims and all ancillary rights arising from the resale of our reserved goods as well as all goods in ownership according to subparagraph 2 or co-ownership according to subparagraph 3 as collateral for all due claims of mediCAD Hectec against the customer at the time of resale.
5. In the case of resale of goods in co-ownership according to subparagraph 3, only such a portion of the claim shall be deemed collateral, which equals the value of the co-ownership share.
6. If the customer has sold the claims from the sale within the scope of legitimate factoring, the claims against the factor taking their place are ceded to mediCAD Hectec.
7. mediCAD Hectec herewith accepts the above-mentioned cessions.
8.If the value of the assets or collateral exceeds the claims against the customer by more than 20%, mediCAD Hectec is obligated to release any collateral in excess on request by the customer.
9. The customer is entitled to collect the ceded claims. This authorization shall expire, however, if the customer is in default of payment towards Hectec. In this case mediCAD Hectec is entitled to inform the buyer of the customer about the cession. The customer is required to provide all necessary information about his buyers in order for mediCAD Hectec to enforce their claim. In particular, provide the buyers’ names and hand over all necessary documents and records.
10. The customer is entitled to resale of the reserved goods as well as goods owned according to subparagraph 2 or co-owned according to subparagraph 3 only within the scope of his usual business operations and only under the condition, that the claim for the purchase price passes on to Hectec according to subparagraph 4.
11. The customer is obligated to sufficiently insure the reserved goods as well as the goods owned according to subparagraph 2 or co-owned according to subparagraph 3 against loss or damage due to fire, theft, water or similar hazards and, upon request, provide proof of insurance coverage. The customer hereby fully or partially cedes his damages claims against insurance companies or any party obligated to compensation to mediCAD Hectec.
12. Any damage or impairment of the reserved goods as well as the goods owned according to subparagraph 2 or co-owned according to subparagraph 3, as well as third party access to those goods, shall be disclosed promptly. In case of third party access, especially in case of foreclosure/legal enforcement measures, the customer is also obligated to inform the foreclosing/enforcing party immediately about the retention of title/ownership.
13. If mediCAD Hectec takes back any goods based on the retention of title/ownership, this shall not be considered a withdrawal from the contract. Hectec can satisfy any claims freehand by using the reserved goods.
8. Payment
1. Invoices are payable immediately upon receipt.
2. mediCAD Hectec is entitled, notwithstanding any provisions of the customer, to offset payments against older debt. If costs and interest incurred, payments are applied first against the costs, then the interest and finally against the main item. If exceeding the payment deadline, the customer shall pay interest at the rate of 9% over the base interest rate, but at least 10%. The enforcement of delay damages remains unaffected.
3. If exceeding the payment deadline, the customer shall pay interest at the rate of 9% over the base interest rate, but at least 10%. The enforcement of delay damages remains unaffected.
4. If the customer does not fulfill the payment obligations in accordance with the contract or if payments are stopped or if other circumstances become known questioning the solvency of the customer, mediCAD Hectec is entitled to the entire balance due. § 321 of the German Civil Code is applicable, on the condition of entitlement to the statutory objection herein even if the financial situation of the customer has already been bad at time of contract signing, but has not been known.
5. The right of retention or offset against claims is excluded, unless the counter-claim is undisputed or established legally binding.
9. Warranty
1. The contractual item are only the goods sold with the properties and characteristics as well as the intended use according to the product description. Other or further properties and/or features or an additional intended use shall only be considered as agreed upon if confirmed in writing.
2. The customer is obligated to examine the delivered goods for obvious defects, apparent to an average customer without much ado. Complaints concerning obvious poor quality of the goods can be only made in writing immediately or no later than 14 days after receiving the goods. Hidden defects must be asserted in writing within 14 days after their discovery, but no later than one year after receiving the goods.
3. When the obligation of investigation and reprimand is violated, the goods are deemed approved with regard to the respective defect.
4. mediCAD Hectec can choose repair or replacement at their own discretion. If repair and replacement fail, the customer can either claim a reduction of payment or cancel the contract. Failure of repair can only be assumed when Hectec was given reasonable opportunity to repair or replacement, without the desired result. An equal new program version or the equivalent previous version not containing the defect is to be accepted by the customer, if reasonable.
5. The customer will help Hectec with determining the cause and remedy of defects by specifically describing any arising problems, comprehensively inform mediCAD Hectec and grant the necessary time and opportunity to remedy the defect. mediCAD Hectec can perform the remedial measures on site or in their offices at their own discretion. mediCAD Hectec can also provide services via remote maintenance. The customer must provide the necessary technical requirements at his own expense, as well as provide mediCAD Hectec access to his computer system after appropriate prior notice.
6. Warranty is excluded for defects which do not or only insignificantly affect the usefulness.
7. mediCAD Hectec may require additional costs from the fact that the software is modified, used outside the specified environment or was operated incorrectly. They may demand compensation if no defect is found. The burden of proof lies with the customer. § 254 of the German Civil Code shall apply accordingly.
8. The statute of limitations is one year.
10. Liability
1. Liability for negligent breach of duty by Hectec or their agents shall be excluded, provided that such breach does not concern any contractual obligations, damages resulting from injury to the body, life or health of people affected or guarantees or claims under the Product Liability Act.
2. In the case of a mere negligent breach of duty, liability is limited to typical and foreseeable damages. This is regularly represented by the purchase price.
11. Trade mark rights or copyrights
1. The customer will inform mediCAD Hectec immediately in writing, if he is pointed to the infringement of intellectual property or copyright by a product supplied by mediCAD Hectec. mediCAD Hectec alone is entitled and obligated to defend the customer against claims of the holder of such rights and settle such claims at own expense, as long as they are based on a direct violation from a product supplied by mediCAD Hectec. In general, mediCAD Hectec will endeavor to provide the customer with the right to use the product.
2. In reverse, the customer will defend and indemnify Hectec against all claims of the owner of such rights, which arise because mediCAD Hectec complied with instructions of the customer or the customer made changes to the product or integrated it into a system.
3. Programs and all corresponding documentation are provided for the personal use of the customer only, in a simple, non-transferable license, solely on products provided by mediCAD Hectec. The customer may not make these programs and documentation available to third parties without written consent from mediCAD Hectec, also not in case of any resale of hardware. Copies may be made for archival purposes, as substitution or for troubleshooting only – without assuming costs or liability. If originals bear a remark pointing out a copyright, the customer is obligated to attach such remark to copies as well.
12. Confidentiality / Privacy
1. The contractual parties commit to confidentiality with regard to all items/materials (e.g. software, documents, information) known or submitted by the other party before or during the execution of the contract, which are legally protected or contain business or company secrets or are designated confidential, even beyond the expiration of the contract, unless they are publicly known without breach of contract. The parties will store and secure these items in a way excluding access by third parties.
2. The customer will make the contractual items only available to those employees and third parties who need the respective access in order to perform their professional duties. He will instruct those persons about the confidential status of the items.
3. mediCAD Hectec stores the data required for purpose of business with the customer in compliance with data protection regulations.
13. Training
1. If training is arranged independently, it will take place at mediCAD Hectec’s discretion either at the customer or a venue to be determined in consultation with the customer. When training takes place at the customer, he will provide appropriate premises and technical equipment in consultation with mediCAD Hectec. When training takes place at another venue, the customer takes care of the necessary facilities and will provide the necessary hardware and software at the venue.
2. In case of cancellations of booked training less than 48 hours prior to the appointment, all incurring costs will be passed on from mediCAD Hectec to the customer.
3. Important reasons may cause mediCAD Hectec to cancel training appointments. Hectec will notify the customer of the cancellation in time and offer alternative dates.
14. Export
The export of goods delivered by mediCAD Hectec into non-EU countries requires the written consent of Hectec, regardless of the customer being solely responsible for obtaining any possibly required official import and export approvals.
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