§ 1. Validity

(1) These General Terms and Conditions apply to all business transactions between MEDEORA GmbH and the contractual partner (entrepreneur). The General Terms and Conditions in the version valid at the time of the conclusion of the contract shall apply in each case. They shall also apply to all future deliveries, services or offers to the contractual partner, even if they are not separately agreed again. Additions and amendments to the agreements made, including these terms and conditions, must be made in writing in order to be effective.

(2) Terms and conditions of the contractual partner or third parties shall not apply, even if MEDEORA GmbH does not separately object to their validity in individual cases. Even if MEDEORA GmbH refers to a letter that contains or refers to the terms and conditions of business of the contractual partner or a third party, this shall not constitute agreement with the validity of those terms and conditions of business.

3) Individual agreements shall remain unaffected by the above provision.

§ 2. Conclusion of contract

(1) The contract between MEDEORA GmbH and the contractual partner shall be concluded by MEDEORA GmbH confirming the conclusion of the contract in writing or verbally, by telex (which also includes e-mail) or by telephone. Written offers (letter, fax, e-mail) on the part of MEDEORA GmbH are binding for a period of 30 days from the date of the offer. Offers in the online area (Internet homepage: www.medeora.de or www.medeora.com) are non-binding. MEDEORA GmbH can be commissioned via the homepage, provided that offers with a special ordering functionality (selection by clicking with the mouse) are available. By clicking on the order, the contractual partner places a binding order for the service with MEDEORA GmbH. The same applies if the contractual partner places an order in person or by telephone or transmits it in text form (e.g. letter, fax, e-mail).

(2) MEDEORA GmbH may accept orders or contracts within fourteen days of receipt. Acceptance can be declared by the provision of the service, or, if the content of the order is the delivery of goods, by the delivery of the goods, or in all cases also by MEDEORA GmbH confirming acceptance of its order to the contractual partner in some other way. The contract shall be deemed to have been concluded upon acceptance.

(3) Information provided by MEDEORA GmbH on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components with equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.

(4) MEDEORA GmbH retains ownership or copyright of all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the contractual partner. The contractual partner may not make these items available to third parties, either as such or in terms of content, disclose them, use them itself or through third parties or reproduce them without the express consent of MEDEORA GmbH. At the request of MEDEORA GmbH, the contractual partner shall return these items to MEDEORA GmbH in full and destroy any copies made if they are no longer required by it in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

§ 3. Services and prices

(1) MEDEORA GmbH may use third parties to fulfil its service obligations. The services provided by MEDEORA GmbH are service contracts (3.1. to 3.3.) pursuant to § 611 et seq. BGB. MEDEORA GmbH reserves the right to withdraw from the contract in the case of service contracts and may refuse further performance if the contractual partner is in default of acceptance or breaches its contractual duties to cooperate, for example fails to meet agreed deadlines or fails to provide or communicate access data and passwords required for installation work. In this case MEDEORA GmbH shall be entitled to demand compensation for the resulting and arising damage, including any additional expenses.

(2) MEDEORA GmbH shall be bound by the written offer prices (letter, fax, e-mail) for 30 days. For standard services, the price list at the time the order is placed by the contractual partner shall be authoritative. Price quotations are exclusive of value added tax. Travel expenses, courier services, shipping, proofreading, legal review shall be borne by the contractual partner. Additional expenses shall be invoiced after prior consultation.

(3) MEDEORA GmbH shall be entitled to make or provide outstanding deliveries or services only against advance payment or the provision of security if, after the conclusion of the contract, it becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the contractual partner and as a result of which the payment of MEDEORA GmbH’s outstanding claims by the contractual partner arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies) is jeopardised.

§ 3.1 Installation services

The service is provided by MEDEORA GmbH at the place of installation of the unit, via the Internet by remote software control, via verbal instructions via telephone or via e-mail instruction. The prerequisite for installation is the unrestricted operability of the hardware system and the enclosed software. If a successful installation is not possible due to goods that were already defective at the time of installation, the work performed up to that point (travel + working time) shall be invoiced. This also applies if an installation cannot be completed because the existing environmental conditions (hardware equipment, software, spatial distances, etc.) do not meet the defined minimum requirements on the part of the product and service provider. If additional work is necessary to create the minimum requirements (e.g. virus removal, upgrading the system, additional cabling, performing a data backup, etc.), this work and additional expenses (e.g. multiple trips to the contractual partner) will be invoiced additionally. Excluded from the aforementioned cases is direct fault (intent or gross negligence) by MEDEORA GmbH.

§ 3.2 Repair and maintenance services

The service shall be provided at the place of installation of the device or in a workshop authorised by MEDEORA GmbH. For the services provided by MEDEORA GmbH, the travel and working time services rendered – irrespective of the result – shall be paid in any case. This shall also apply if a fault cannot be rectified, insofar as this is due to a circumstance for which MEDEORA GmbH is not responsible. In this respect MEDEORA GmbH can only be charged with intent or gross negligence. The time spent shall be charged in each case,

if the defect complained of does not occur during the inspection
a necessary spare part or software can no longer be obtained
the contracting party was not present on the agreed date or/and did not allow access to the equipment
the order was cancelled and MEDEORA GmbH was already on its way to the contractual partner
or / and the order is cancelled during execution
dhe working conditions are not perfectly given due to a circumstance for which the contractual partner is responsible.

(2) The contractual partner is obliged to carry out regular data backups and to keep its backup copies up to date (daily copies). MEDEORA GmbH shall not be liable for data loss and/or data changes during or after repair or maintenance services. When placing the order, the contractual partner shall expressly confirm that it is in possession of an up-to-date data backup and shall declare to MEDEORA GmbH if this is not the case.

§ 3.3 Consulting services, training, briefings

(1) If required, the contractual partner is offered briefings and training on the installed products. In some cases, the costs for these brief instructions are already included in the installation flat rates. MEDEORA GmbH shall inform the contractual partner in advance about associated services. All services beyond this will be invoiced according to the respective price offer.

(2) In case of doubt, the contractual partner is obliged to provide comprehensive and truthful information about the purchase, installation or / and modifications of a device in advance of a consultation. Otherwise the claim for compensation expires. A claim for compensation shall also lapse if the consultation is free of charge. If a contractual partner or its personnel to be trained fails to attend one or more training courses, this shall not affect MEDEORA GmbH’s claim to a fee. The risk of being prevented from attending shall be borne by the contractual partner. If the withdrawal takes place during the training/consulting, this shall apply accordingly, but with the proviso that the part of the services provided shall be invoiced separately in accordance with the stipulations in the contract.

(3) Telephone consultation is basically working time and shall be invoiced according to the respective valid price list, unless otherwise agreed in writing. MEDEORA GmbH shall inform the contractual partner in advance of the valid price and the calculation of the consultancy service. In case of doubt, a consultancy agreement for advice given by telephone shall already be concluded when the contractual partner calls MEDEORA GmbH. Unless otherwise agreed, the costs incurred for a cost estimate shall be reimbursed separately after invoicing.

§ 4. Delivery, delivery time, transfer of risk and acceptance

(1) Deliveries are made ex works. The method of dispatch and the packaging shall be at the discretion of MEDEORA GmbH.

(2) Deadlines and dates for deliveries and services promised by MEDEORA GmbH shall always be approximate unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.

(3) MEDEORA GmbH may, without prejudice to its rights arising from default on the part of the contractual partner, demand an extension of delivery and performance deadlines or a postponement of delivery and performance dates from the contractual partner by the period in which the contractual partner fails to fulfil its contractual obligations towards MEDEORA GmbH.

(4) MEDEORA GmbH shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the agreement (e.g. MEDEORA GmbH shall not be liable for impossibility of delivery or for delays in delivery caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. disruptions of operations of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the non-delivery, incorrect delivery or late delivery by suppliers) for which MEDEORA GmbH is not responsible. Insofar as such events make it considerably more difficult or impossible for MEDEORA GmbH to deliver or perform and the hindrance is not only of temporary duration, MEDEORA GmbH shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the contractual partner cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by means of an immediate written declaration to MEDEORA GmbH.

(5) MEDEORA GmbH shall only be entitled to make partial deliveries if

die Teillieferung für den Vertragspartner im Rahmen des vertraglichen Bestimmungszwecks verwendbar ist,
die Lieferung der restlichen bestellten Ware sichergestellt ist und
dem Vertragspartner hierdurch kein erheblicher Mehraufwand oder zusätzliche Kosten entstehen (es sei denn, die MEDEORA GmbH erklärt sich zur Übernahme dieser Kosten bereit).

(6) If MEDEORA GmbH is in default with a delivery or service or if a delivery or service becomes impossible for MEDEORA GmbH, for whatever reason, MEDEORA GmbH’s liability for damages shall be limited in accordance with § 7 of these General Terms and Conditions of Delivery..

(7) The risk shall pass to the contractual partner at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or MEDEORA GmbH has assumed other services (e.g. shipping or installation). If dispatch or handover is delayed as a result of a circumstance the cause of which lies with the contractual partner, the risk shall pass to the contractual partner from the day on which MEDEORA GmbH is ready for dispatch and has notified the contractual partner of this.

(8) The consignment shall only be insured by MEDEORA GmbH against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the contractual partner and at its expense.

(9) Objects or software supplied for testing or on loan, as well as goods provided on a rental basis, shall remain with the contractual partner at his risk; he shall be responsible for their proper use and accidental destruction. Upon request, the goods shall be insured at the expense of the contractual partner.

Insofar as acceptance is to take place, the delivery shall be deemed to have been accepted when

the delivery and, if MEDEORA GmbH also owes the installation, the installation has been completed,
MEDEORA GmbH has notified the contractual partner of this with reference to the fiction of acceptance in accordance with this § 4 (10) and has requested acceptance,
15 working days have elapsed since delivery or installation or the contractual partner has started to use the purchased item (e.g. has put the delivered system into operation) and in this case six working days have elapsed since delivery or installation
the contractual partner has failed to accept the goods within this period for a reason other than a defect notified to MEDEORA GmbH which makes the use of the delivered item impossible or significantly impairs it.

§ 5. Information requirements

(1) The contractual partner is obliged to provide truthful information when placing an order. If his data relevant for the business transaction changes, in particular name, address, e-mail address, telephone number, bank details, he is obliged to inform MEDEORA GmbH of the changed data without delay.

(2) If the contractual partner fails to provide this information or provides incorrect data from the outset, MEDEORA GmbH may withdraw from the contract. The contractual partner shall be obliged to bear the costs incurred by it (e.g. travel, booking costs, etc.) insofar as they were incurred through its fault. The withdrawal shall be declared in writing. The written form shall also be deemed to have been complied with by sending an e-mail.

§ 6. Payment obligations

§ 7. Warranty and liability

(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance.

(2) Within the statutory warranty period, the contractual partner shall be entitled to subsequent performance (rectification of defects or replacement delivery). If the supplementary performance fails, the contractual partner shall be entitled to demand a reduction of the remuneration (abatement) or to withdraw from the contract at its discretion.

(3) The delivered items shall be carefully inspected immediately after delivery to the contractual partner or to the third party designated by the contractual partner. They shall be deemed to have been approved if MEDEORA GmbH has not received a notification of defects with regard to obvious defects or other defects which were recognisable during an immediate, careful inspection within seven working days of delivery of the delivery item, or otherwise within seven working days of the discovery of the defect or the point in time at which the defect was recognisable for the contractual partner during normal use of the delivery item without closer inspection, in the form specified in § 2.

(4) The contractual partner shall be obliged to allow MEDEORA GmbH to inspect the defective performance and remedy the defect.

(5) MEDEORA GmbH’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contractual negotiations and tort, shall be limited in accordance with the following provisions, insofar as fault is relevant in each case.

(6) MEDEORA GmbH shall not be liable for

in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents,
in the event of gross negligence on the part of its non-managerial employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the goods on time and free of defects as well as advisory, protective and custodial obligations which are intended to enable the contractual partner to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the contractual partner’s personnel or third parties or the contractual partner’s property from significant damage.

(7) Insofar as MEDEORA GmbH is liable on the merits for damages in accordance with paragraph (5), this liability shall be limited to damages that MEDEORA GmbH foresaw as a possible consequence of a breach of contract at the time of the conclusion of the contract or should have foreseen taking into account the circumstances that were known to it or that it should have known when exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation insofar as such damage is typically to be expected when using the delivery item as intended.

(8) In the event of liability for simple negligence, MEDEORA GmbH’s obligation to pay compensation for damage to property or personal injury shall be limited to an amount of EUR 3,000,000 per case of damage, even if this involves a breach of material contractual obligations.

(9) The above exclusions and limitations of liability apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of MEDEORA GmbH.

(10) Insofar as MEDEORA GmbH provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by MEDEORA GmbH, this shall be done free of charge and to the exclusion of any liability.

(11) The limitations of the aforementioned provisions shall not apply to MEDEORA GmbH’s liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.

(12) The warranty shall not apply if the contractual partner modifies the delivery item or has it modified by a third party without the consent of MEDEORA GmbH and the rectification of defects becomes impossible or unreasonably difficult as a result. In any case, the contractual partner shall bear the additional costs of remedying the defect resulting from the modification.

(13) Any delivery of used items agreed with MEDEORA GmbH in individual cases shall be made to the exclusion of any warranty.

§ 8. Retention of title

(1) MEDEORA GmbH retains ownership of the goods delivered by it until the invoice amount has been paid in full.

(2) In the event of default in payment on the part of the contractual partner, MEDEORA GmbH shall be entitled to withdraw from the contract and take back the goods delivered by it. Any further damage caused by default shall remain unaffected by this.

(3) As long as the reservation of title to the delivered goods exists, these may neither be pledged to third parties nor transferred by way of security. If MEDEORA GmbH’s rights are impaired or threatened by third parties, the contractual partner must notify MEDEORA GmbH immediately and provide all information suitable for safeguarding MEDEORA GmbH’s rights. In this case, the contractual partner shall be obliged to point out MEDEORA GmbH’s rights. If the third party is not in a position to reimburse MEDEORA GmbH for the court or out-of-court costs incurred in this connection, the contractual partner shall be liable to MEDEORA GmbH.

§ 9. Property rights

(1) MEDEORA GmbH warrants in accordance with this § 9 that the delivery item is free of industrial property rights or copyrights of third parties. Each contractual partner shall notify the other contractual partner in writing without delay if claims are asserted against it due to the infringement of such rights.

(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, MEDEORA GmbH shall, at its discretion and at its expense, modify or replace the delivery item in such a way that the rights of third parties are no longer infringed but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the Customer by concluding a licence agreement. If it does not succeed in doing so within a reasonable period of time, the contractual partner shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the contractual partner shall be subject to the restrictions of § 7 of these General Terms and Conditions.

(3) In the event of infringements of rights by products of other manufacturers supplied by MEDEORA GmbH, MEDEORA GmbH shall, at its discretion, assert its claims against the manufacturers and upstream suppliers for the account of the contractual partner or assign them to the contractual partner. Claims against MEDEORA GmbH shall only exist in these cases in accordance with this § 9 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, for example due to insolvency.

(4) The contractual partner warrants and is liable vis-à-vis MEDEORA GmbH that it has rightfully acquired the data checked by MEDEORA GmbH and any underlying software in accordance with the relevant licence conditions and other statutory provisions and is authorised to use them and that it is also authorised to make this data accessible to MEDEORA GmbH within the scope of the order. MEDEORA GmbH points out that personal data are stored by EDP in order to ensure the proper course of business. In accordance with Chapter III DSGVO, we hereby inform you of the storage or transmission of personal data. MEDEORA GmbH undertakes to comply with the provisions of data protection law to the effect that it will not take over any data of the respective contractual partner, use it itself or pass it on to third parties unless it is legally obliged to do so.

§ 10. Jurisdiction and final provisions

(1) The place of performance for all claims arising from the contractual relationship shall be the registered office of MEDEORA GmbH. Insofar as the contractual partner is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a public special fund, the place of jurisdiction shall be the registered office of MEDEORA GmbH. MEDEORA GmbH shall, however, also be entitled to sue the contractual partner at the court of its place of residence. The law of the Federal Republic of Germany shall apply.

(2) No verbal subsidiary agreements have been made. Subsidiary agreements and amendments to this contract shall only be legally effective if they are confirmed in writing by MEDEORA GmbH. The cancellation of this written form clause must also be in writing.

(3) MEDEORA GmbH is entitled to transfer all rights and obligations under this contract to third parties. The contractual partner shall then also remain fully obligated under this contract until its expiry.

(4) Should one or more of the provisions of this contract be invalid, this shall not affect the validity of the legal provisions of this contract. In such a case, the parties undertake to agree to a new provision which comes as close as possible to the economic purpose of the invalid provisions and which they would have agreed if they had known of the invalidity.

Nutzungsbedingungen

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