terms and conditions
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General terms and conditions of the EDV.Service.Calek GmbH (as of: 19 Nov 2015)

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§ 1 Validity of the terms and conditions

 

All goods and services offered by the EDV.Service.Calek GmbH are provided exclusively on the basis of these general terms and conditions. They also apply to any future business relations without any further express statement. They take priority over all differing purchasing or other conditions of the customer. Deviations, supplements and special warranties need to be in written form to be effective.

§ 2 Offer and conclusion of contract

I) The offers of the EDV.Service.Calek GmbH are non-binding and subject to confirmation. Notice of acceptance and orders have to be confirmed by the EDV.Service.Calek GmbH in writing or by telex.

II) Drawings, figures, measures, weights and other performance data are only binding if expressly agreed on in writing.

III) Salespeople and technicians are not authorized to orally arrange  additional agreements or to give oral assurances which exceed the contents of the written contract.

§ 3 Prices

Unless specified otherwise, the prices stated in quotations are binding for 4 weeks starting from the date of the quotation. The prices stated in the order confirmation or in the EDV.Service.Calek GmbH's offer confirmed by the customer plus the respective legal added value tax are decisive. Additional deliveries and services will be calculated seperately.

§ 4 Time of delivery and performance

I) Execution and delivery dates which are not assured in writing by the EDV.Service.Calek GmbH are subject to the contractual goods' availability of stock.They are therefore non-binding. The EDV.Service.Calek GmbH cannot be held responsible for difficulties in delivery or prevention of delivery which arise for example because of unforeseen restrictions, interruption of operations, difficulties in processing or transport at the EDV.Service.Calek GmbH or its subsuppliers. Such disruptions do not entitle the customer to withdraw from the contract. Has an in writing guaranteed execution or delivery date been exceeded by more than three weeks, the customer's withdrawal from the contract is only permissible if the customer sets a three-week period of grace in written form and threatens the withdrawal from the contract in case of exceedance of that period of grace. Other claims of the customer, especially claims for compensation, are excluded in this case.

II) The seller is always entitled to render partial performances and deliveries.

III) The compliance with delivery and performance obligations implies the timely and proper fulfilment of the customer's duties.

§ 5 Transfer of risk

The risk of accidental loss or the accidental deterioration of the delivery items passes after dispatch to the customer, also in case of deliveries free of charge. The same applies in case of direct dilivery by a subsupplier of the EDV.Service.Calek GmbH. Deliveries may on request be insured against common transport risks. The insurance costs will be borne by the cusomer.

§ 6 Customer's obligation to co-operate

I) The customer must ensure that the delivery items and services of the EDV.Service.Calek GmbH can be properly delivered at the date of delivery and execution. The customer of the EDV.Service.Calek GmbH must ensure access to the according premises and facilities, to provide the necessary system environment, especially to provide the power supply and the according wiring or network access for connection to the existing system during normal business hours to enable integration of the delivery items and the performance of other contratual services.

II) The customer is furthermor obliged to care for the backup of all his data before the integration of the delivery items, unless the EDV.Service.Calek GmbH has expressively been commissioned to do so.

§ 7 Acceptance

The performance of a service is considered fulfilled and confirmed by the customer - as far as no earlier confirmation of acceptance is given - 10 days after the notification of completion, as long as he does not expressively object in writing during that period of time.

§ 8 Warranty; obligation of inspection and rejection

I) The customer is obliged to immediately inspect the deliveries and services for obvious deficiencies.

II) Obvious deficiencies must be rejected within a week starting immediately upon delivery or upon completion of the service by the EDV.Service.Calek GmbH. After the expiration of that period of time the service is deemed to be fulfilled. In case of supplementary performance, the EDV.Service.Calek GmbH is allowed to choose between improvement and subsequent delivery. During supplemenary performance, reduction of the price and withdrawal from the contract by the customer are not possible. Does the customer want to demand compensation instead of the service or opt for self-repair, failure of the improvement is only given after the second failed attempt. Claims for defects do not exist in case of minor deviations from the agreed quality or minor impairment of usability.

III) The customer must reject not obvious deficiencies within a week of them being discovered.

IV) Is the obligation of inspection and rejection not complied with, the delivery items are deemed to be approved in respect of the deficiency concerned.

V) Warranty claims and other compensation claims become time-barred one year after delivery or performance of the service.

VI) In case of intent or gross negligence on the part of the EDV.Service.Calek GmbH or its vicarious agents, in case of fraudulent concealment of a deficiency, personal injuries or defects of title in accordance with § 438 Abs. 1 Nr. 1a) BGB as well as  in case of guarantees (§ 444 BGB), the statutory period of limitations shall apply. The same applies for claims in accordance with the German product liability law.

§ 9 Retention of title

I) Until the customer's payment has been made in full, the EDV.Service.Calek GmbH reserves the right of property for all goods delivered. The customer is obliged to treat the delivery items with care. He is in particular during the retention of title obliged to insure the delivery items at his own expense.

II) In the event of access by a third party to goods subject to retention of title, especially distraints, the customer must indicate the property of the EDV.Service.Calek GmbH and inform the EDV.Service.Calek GmbH immediately so it can assert its ownership rights. If the third party cannot reimburse the judicial or out of court costs arising in this context, the customer shall be liable.

III) In case of the customer acting contrary to contract, especially delay in payment, the seller is entitled to take back the goods subject to retention of title or, where appropriate, to demand the assignment of the surrender claim of the customer against the third party. The withdrawal and seizure of the goods subject to retention of title by the EDV.Service.Calek GmbH does not mean the withdrawal from the contract.

§ 10 Payment

I) Unless otherwise agreed, invoices of the EDV.Service.Calek GmbH shall be paid without deduction within 10 days after issuing the invioce. The EDV.Service.Calek GmbH is entitled to first charge payments to older debts despite other regulations and will inform the customer about such offsetting

II) The payments is only deemed effective ahen the EDV.Service.Calek GmbH can dispose of the payment. In case of receipt of cheques the payment is deemed effective after the cheque has been cashed.

III) If circumstances become known to the EDV.Service.Calek GmbH which question the credetworthiness of the customer, especially when a cheque is not chashed or he stops his payments, the EDV.Service.Calek GmbH is entitled to declare the whole of the remaining debt due for payment, also if the EDV.Service.Calek GmbH accepted cheques. The EDV.Service.Calek GmbH is in this case also entitled to demand advance payments or securities.

IV) The customer is only entitled to offset, retention or reduction, also in case of complaints counterclaims are being brought to notice, if such counterclaims have been legally established or are undisputable.

§ 11 Secrecy

The EDV.Service.Calek GmbH commits itself to keep secret all information made accessible in connection with its commissioning, especially patient information, to comply with the requirements of the German Federal Data Protection Act and to - as far as not necessary to achieve the purpose of the contract - neither enter the information in data processing equipment nor to pass it to third parties, except for the use in its internal IT system for the purpose of customer service, the processing of orders ond/or customer advisory services.

§ 12 Limitation of liability

I) Compensation claims resulting from a positive violation of contract and from an unlawful act are excludet both against the EDV.Service.Calek GmbH and against its agents, provided no intentional or gross negligent action has been performed. This also applies to compensation claims due to non-fulfilment, but only inasmuch as the compensation of indirect or consequential damage is demanded, unless the liability is based on an assurance which is made to protect the customer against the risk of such damages.

II) The EDV.Service.Calek GmbH is only liable for the cost of loss or damage of data which arises from the cost of the retrieval of the data from appropriate existing backup-copies. This limitation is not apply in case of intentional or grossly negligent actions.

III) Any liability is limited to the damage predictable upon conclusion of the contract. A liability of the seller according to the German Product Liability Act and other claims from the producer's liability remain unaffected.

§ 13 Applicable law, place of jurisdiction, partial invalidity

I) The law of the Federal Repubilc of Germany applies for all business and legal relations between the EDV.Service.Calek GmbH and the customer

II) Provided the customer is an entrepreneur according to § 14 BGB, a registered trader after the German Commercial Code, a legal entity under public law or a fund under public law, Potsdam shall be the only place of jurisdiction for all disputes resulting directly or indirectly from the contractual relationship.

III) Shoud a clause in these terms and conditions or a clause within the framework of other agreements be or become invalid, the validity of all other clausees or agreements remains unaffected. An invalid or incomplete clause shall be replaced by another which comes closest to the economic purpose of the invalid regulation and is valid on its part.

 

 

[Note: The English translation exclusively serves informational purposes; solely the German version is legally binding.]