Terms and Conditions
As of November 2009
§ 1. Applicability of the General Business Conditions
We carry out our performances exclusively on the basis of these General Business Conditions. These Conditions apply to all performances relating to the order, insofar as the concluded contract does not explicitly lay down a different or special provision in this regard. By signing the contract, the client acknowledges these General Business Conditions as binding. General business conditions of the client shall not be applicable, even if we have not explicitly objected to the inclusion thereof.
§ 2. Offer and placing an order / formalities
The prices and information about the scope of the order given in the offer shall be binding for a period of three months from the date of the offer. The contract shall come into force when a written contract or the offer is signed by the client in a legally binding manner. Verbal subsidiary agreements shall not be valid unless they are confirmed in writing. Amendments or supplements to the contract must be laid down in writing in order to be valid.
All declarations by act of the parties relating to the contract and the execution thereof must be made in writing in order to be valid, insofar as this contract does not provide otherwise.
§ 3. Scope of performance
The contract describes the terms of reference and the scope of performance conclusively and in full. We are entitled to make changes to the subject of the contract and the scope of performance if this does not materially impair the interests of the client, in particular where the software has been updated between the placing of the order and the performance of the contract or where ordered products are replaced by components of equal value.
The performance of the standard and customised software and/or the hardware depends on the other software used by the client (operating system, user programmes, applications etc.) and on the nature and performance of the other hardware components used, especially in the case of networks. The contractually agreed performance profile is based on the hardware and software environment fulfilling specific prerequisites. These have been specified outside the contract and shall be sent to the client free of charge on request.
Should we deliver standard software, the client shall only be entitled to the software performance arising from the manufacturer's product description. If the client acquires software, we shall have fulfilled our duty to perform with the installation and handover of the software laid down in the contract on a suitable data carrier as well as the handover of the documentation or operating instructions (also on data carriers). The client has the right to assert more extensive claims against the manufacturer.
If the client acquires hardware (computers, cables, printers, accessories etc.), we shall have fulfilled the terms of the purchase, rental or leasing contract if the hardware is suitable for the use stipulated in the contract and has the qualities warranted by us in writing. The client has the right to assert more extensive claims against the manufacturer. We shall not be bound by the manufacturer's product descriptions. When delivering to the registered office of the client, we shall take out transport insurance at the expense and risk of the client.
Further performances (e.g. adapting software, building and installing hardware, setting up the network, the server or data backups etc.) shall only be carried out pursuant to a separate order and subject to an additional fee.
If the client has ordered customised software (adaptation of standard software or client-specific software programming), the performance profile shall be derived from the separate contract to be concluded and the software specifications drawn up by the client. We shall have fulfilled our duty to perform on the acceptance of the customised software and the handover of any necessary documents.
§ 4. Prices and terms of payment
All the prices given in the offer are to be understood as exclusive of the statutory VAT applicable when the performance is carried out.
We shall send the client a progress payment invoice at appropriate intervals for all performances carried out by us. Our invoices must be paid within 14 days of receipt of the respective invoice. Payment must be made in cash at our registered office. We shall only accept means of payment other than cash (cheques, bills of exchange etc.) as conditional payment.
Should the client be in arrears, interest shall be charged on the payment owed, with effect from the due date, at a rate of 8% above the base rate of the European Central Bank applicable at that time. At the same time, any extension of the time for payment granted by accepting a cheque or bill of exchange shall be deemed to have been revoked. We reserve the right to assert further claims for compensation.
Should the client allow a payment period granted to the client in writing to expire without making payment, we shall, once this period has expired, also be entitled – without prejudice to our other rights – to withdraw from the contract, to demand payment for any part performances carried out and/or work already commenced and to assert claims for compensation. In such a case, our loss shall be set at a lump sum of 70% of the contractually agreed remuneration for the (part) performances not carried out. The client shall however have the right to prove that our loss was less than this. Part performances and work already commenced shall be handed over to the client step by step against settlement of our claim, insofar as this is possible given the nature of the object of the performance. The client may only set his own claim off against our claims if the claim the client wishes to set off is undisputed or has been finally and conclusively established.
§ 5. Execution of the contract
To make it possible for the contract to be executed, the client must ensure that we are granted, without delay, unhindered access to the premises and equipment, as well as the technical systems such as hardware, network, electricity supply, telephone connections, data transmission lines etc. with adequate capacity and that we have full access to the system software.
The client shall be obliged to appoint a project manager for the duration of our performances, who shall be our contact person for all matters relating to the contract and who is authorised to issue the declarations required for the execution of the contract.
The client shall be obliged to formally accept our performances after installation and notification of operational readiness. In this regard, the functionality of our performance shall be tested in the presence of the project manager and one of our employees, and laid down in a report. This shall be followed by testing at the practice for a period of up to four weeks.
The client is asked to note that the objects of the performance (hardware and/or software) may not be used in normal practice operations unless the client has a sound knowledge of the hardware/software functionality and the system as a whole. Please refer to the separate statements in this regard in the contract.
Our performances shall be regarded as having been carried out in accordance with the contract if the client uses the software and/or hardware when dealing with patients in his normal practice operations, even if the test period has not yet expired, or if the client does not formally accept the performance even after having been given a reasonable period within which to do so or does not report any significant deviations from the contractual performance profile in writing during the test phase. Deviations from the performance profile (cf. clause 3 above) shall only give the client the right to complain if they substantially impair the suitability of the hardware and/or software for the usual or contractually agreed purpose (more than 10% reduction in performance) or otherwise burden the client to an unreasonable extent.
Deviations from the agreed performance profile may arise if the hardware and software already in use at the client do not comply with our specifications and requirements. We shall be responsible for proving the existence of a deviation from the specifications. The client shall be required to prove that an established deviation from the specifications has not caused the performance deficit. Should defects be reported, the client shall be obliged to give us sufficient opportunity to investigate the cause and, if necessary, to remedy the defect, and to grant us access to the object of the performance for this purpose.
§ 6. Rights arising from defects
The period of limitation for rights arising from defects shall commence on acceptance of the performance in accordance with the contract. This legal consequence shall be explicitly pointed out to the client, in bold print, in the request for acceptance. The period of limitation for any claims against us shall be one year.
Should the performance carried out by us contain a defect, we shall be entitled to make two attempts to remedy the defect or make subsequent delivery (supplementary performance), at our discretion. We shall be released from this obligation should the client not give us sufficient opportunity to effect supplementary performance. Should our attempts to effect supplementary performance be unsuccessful, the client shall be entitled to withdraw from the contract. The same shall apply if the client cannot reasonably be expected to accept supplementary performance or a reasonable period granted to us to effect supplementary performance has expired without result.
The client shall be obliged, without prejudice to his other rights, to retain or accept that part of our performances which is free from defects and to pay the contractually agreed remuneration for this, unless the part performance is of no interest to the client.
Performances carried out by third parties, in respect of which we act merely as an intermediary (hardware, third party software), shall be subject to the provisions relating to the liability of the manufacturer and our secondary liability.
The client's claims for compensation shall be limited in accordance with clause 9.
§ 7. Period of performance
Any period of performance stated in the offer is given as a guideline only. We shall only be bound by this if we have explicitly confirmed, in writing, that this is binding. Should the order be changed, any period of performance previously agreed as binding shall cease to apply.
Where we have agreed a period of performance, this period shall only start once the client has given us the opportunity to execute the contract and has provided the licences, documents and information to be obtained by the client. This shall apply in particular to the agreed payments or other obligations referred to in the contract which the client must fulfil before the performance can be carried out. A period of performance shall be deemed to be suspended for so long as the client has failed to fulfil the aforementioned obligations, even if such obligations only arise during the period in question or if we are in default. Should it become apparent during the course of the work that we will be unable to carry out the performance within the given period, we shall notify the client of this immediately.
Should we exceed a period of performance agreed as binding by us, for reasons attributable to fault on our part, the client shall be entitled to withdraw from the contract if the delayed execution of the contract is, taking into account the performances already carried out, of no interest to the client, in particular where the achievement of the contractually agreed purpose has been thwarted or significantly impeded as a result of the delay.
The client's claims for compensation shall be limited in accordance with clause 9.
§ 8. Default and impossibility / part performance
Should it become impossible for us to carry out all or part of the performance incumbent upon us, or to carry this out within the agreed periods, we shall immediately inform the client of this. Should our inability to carry out the performance, or to carry this out on time, be caused by force majeure (natural disasters, war, strikes – also at our suppliers etc.), we shall be entitled to make delivery to the client within a reasonable additional period, unless the client cannot reasonably be expected to accept this delay. We shall furthermore not be responsible for such circumstances even if these arise when we are already in default.
Should our inability to carry out the performance, or to carry this out on time, be caused by facts and circumstances attributable to the client (e.g. the client is unable to fulfil his prior performance obligations), we shall be entitled to withdraw from the contract or to terminate the contract, and to require payment for any part performances carried out and/or work already commenced. In such a case, our loss shall be set at a lump sum of 70% of the contractually agreed remuneration for the (part) performances not carried out. The client shall however have the right to prove that our loss was less than this.
The same shall apply should the client be in default, by more than 30 days, with the fulfilment of his prior performance obligations, and we announce that we will withdraw from the contract with a notice period of at least 14 days, and then, after the expiry of this period, withdraw from the contract or declare the contract to have been terminated.
The client shall be obliged, without prejudice to his other rights, to retain or accept the respective part of our performances and to pay the contractually agreed remuneration for this, unless the part performance is of no interest to the client.
Both parties shall be obliged to cooperate in respect of any amendment of the contract that may be required to avert loss or damage, insofar as they can reasonably be expected to do so, and shall have a right of extraordinary termination without notice for good cause with regard to any long-term contractual relationship into which they have entered. Should the client give rise to the termination, the above paragraph 2 shall apply mutatis mutandis, otherwise paragraph 5 shall apply mutatis mutandis.
The client's claims for compensation shall be limited in accordance with clause 9.
§ 9. Compensation
We shall only be obliged to pay compensation should we or our vicarious agents have acted intentionally or with gross negligence. Our obligation to effect compensation shall in any event be limited to loss or damage which we foresaw or could have foreseen on reasonable reflection at the time of our breach of duty, and which we have or could have insured by means of insurance approved in Germany by the German Federal Supervisory Office for Insurance, under conditions in line with the applicable set tariffs. Any liability for damages is in particular excluded, insofar as it would have been possible for the client to prevent their occurrence by means of daily software or data backups.
§ 10. Secrecy
The parties undertake vis-à-vis one another to treat the information designated as confidential or secret which either party has received from the other party as confidential both during the contractual relationship and thereafter, and not to make this available to third parties. This shall not apply to information which is generally available or in respect of which it has been indicated that this need not be treated confidentially.
§ 11. Other obligations of the client
The client must immediately inform us of any change to his name or company name, place of residence or registered office, invoice address, legal form and, where a direct debit mandate has been granted, his bank details. The client shall not be permitted to assign the claims arising from the business relationship with us, unless our consent has been obtained for this. We shall however give our consent unless there is a risk of such assignment harming our rightful interests.
The client is aware that the exchange of data over the Internet entails a degree of risk. This includes the access to, or transmission of, data stored in medavis RIS (or other medavis products), via the Internet or other electronic media (fax, SMS etc.) The client is responsible for taking any necessary precautionary measures. The client acknowledges that medavis GmbH accepts no liability for misdirected, untransmitted or erroneously transmitted data, or the contents thereof (excepting cases of intent or gross negligence). As the transmission of data or access to contents through medavis is not continuously encrypted, it is not possible to rule out any interception or monitoring of the data. In this respect also, medavis GmbH accepts no liability (excepting cases of intent or gross negligence).
§ 12. Separability clause
Should a provision of this contract be or become invalid, this shall not affect the validity of the remaining provisions. Where part of the content of an invalid provision is still valid, however, and this can be detached from the provision as a whole to function as an independent part of the agreement, this part of the invalid provision shall remain in force. Should the invalidity be based on specifications relating to time, value or measurements, the invalid specifications shall be replaced by valid specifications which come as close as possible to the economic outcome of the invalid provision.