General Terms and Conditions of medavis GmbH

I. Scope of Application

1. These General Terms and Conditions (hereinafter “GTC”) apply to deliveries and services of medavis GmbH and of medavis GmbH acting as reseller for software solutions of third-party companies.

All deliveries and services provided by medavis GmbH (hereinafter “Contractor” or “CN”) under purchase or rental agreements, including services within the meaning of Section 650 of the German Civil Code (BGB), as well as work and service agreements – in particular in connection with the licensing of standard software (hereinafter “Software”), the creation, modification or adaptation of standard software or products and other work results, installation, implementation, data migration, consulting services and training – are provided exclusively on the basis of these GTC.

2. These GTC supersede all previous GTC of the Contractor and shall also apply to all future business relationships, even if they are not expressly agreed upon again.

3. These GTC apply exclusively. Terms and conditions of the Client (hereinafter “CL”) shall not apply. The Contractor expressly objects to any counter-confirmation by the Client referring to its own terms and conditions.

4. These GTC apply only to the extent that no overriding deviating agreement has been made in the offer with the Client.

II. Offers, Order Placement, Formal Requirements

1. Offers from the Contractor are non-binding and subject to change unless they are expressly designated as binding or contain a specific acceptance deadline.

2. The offers are directed exclusively at companies (Section 14 BGB), not at consumers.

3. Offers and order confirmations from the Contractor are generated automatically and are legally binding without a signature.

4. All declarations, notifications, additions/amendments and contracts with the Contractor require written form to be effective; unless expressly provided otherwise in these GTC, compliance with electronic form (Section 126a BGB) or text form (Section 126b BGB) is sufficient for this purpose. If the Client invokes verbal ancillary agreements or verbal contractual assurances, these shall only become part of the contract if the Contractor confirms them to the Client in the order confirmation.

5. The order/acceptance of the offer by the Client constitutes a binding contractual offer. This offer may be accepted by the Contractor by (a) written counter-confirmation (order confirmation or separate contract) or (b) performance of the contractual services. A contract (hereinafter “Individual Contract” or “Contract”) is thereby concluded between the parties.

6. The Contractor is entitled to have individual services performed by third parties. Where necessary for the proper fulfilment of contractual obligations, documents, information and data of the Client may be made accessible to such third parties within the framework of the applicable data protection regulations.

III. Subject Matter of Contract

The scope of services is determined by the offer. The services may be further specified by additional data sheets, product information and service descriptions listed in the offer (hereinafter “Service-Specific Terms”). These apply in addition to and take precedence over the provisions of these GTC. The respective usage rights and licence terms are governed by Section IV.

Services of the Contractor include in particular:

1. Licence Rental (on-prem)
The Contractor grants the Client the right to use the current version of the Software in accordance with the conditions set out in the offer. The functional scope of the Software as well as the operating conditions and system requirements are conclusively set out in the data sheets, documentation/operating instructions, and any further descriptions, which can be viewed and downloaded via the medavis Service Center (link: https://servicecenter.medavis.com/helpdesk/). The Contractor shall also install the Software in a ready-to-run state.

2. Licence Rental (SaaS)
a. Subject Matter of Services
The Software is provided as Software-as-a-Service (hereinafter “SaaS”). The functional scope of the Software as well as the operating conditions and system requirements are set out in the data sheets and any further descriptions, which can be viewed and downloaded via the medavis Service Center (link: https://servicecenter.medavis.com/helpdesk/).

b. Hosting
(1) The Contractor makes the Software available to the Client for use via the internet.
(2) The Contractor makes the Software available to the Client at the data output point of the data centre’s routing equipment where the server hosting the Software is located (“Interface”) and shall maintain this availability to ensure that both the Software and the Client’s data stored on the server are accessible via the internet.
(3) Establishing the connection between the Interface and the Client’s IT system, as well as successful access to individual contents stored on the server, are not part of the Contractor’s performance obligations. The Client is solely responsible for providing the technical and legal prerequisites necessary for this purpose.

3. Custom Software
When the Client commissions the development of custom software (adaptation of standard software or bespoke software programming), the agreed scope of services is determined by the separately concluded contract and the specifications document (Pflichtenheft) to be prepared jointly by the Contractor and the Client. The Contractor’s performance obligation is fulfilled upon acceptance of the custom software and delivery of any required documentation to the Client.

4. Licence Purchase
The Contractor makes the software described in the offer permanently available to the Client for use for a fee. The Contractor shall also install the software and deliver it in a ready-to-run state, together with the documentation/operating instructions, which can be viewed and downloaded via the medavis Service Center (link: https://servicecenter.medavis.com/helpdesk/). Installation is carried out by the Contractor via remote data transmission (download).

5. Demo Version
The Contractor grants the Client free-of-charge and time-limited access to the Software for demonstration purposes within the scope of the intended use. The demo version may be subject to functional limitations. Any use is at the Client’s own risk. The Contractor assumes no warranty liability of any kind in connection with the provision of the demo version for testing purposes, including with respect to the presence of specific features.

6. Maintenance
a. Subject Matter of Services
(1) The Contractor provides maintenance and support services for the licensed Software. The Contractor maintains the Software in accordance with the SLA provisions.
(2) For technical problems and questions regarding the use of the services, the Client has access to the Service Portal and, in emergencies, to the Hotline Service. Contact details and operating hours can be viewed and downloaded via the medavis Service Center (link: https://servicecenter.medavis.com/helpdesk/). The Hotline Service and Service Portal are a service offering; they do not extend the Contractor’s warranty obligations pursuant to Section VII. Software upgrades (new major versions) are only owed if this has been expressly agreed.

b. SLA
Maintenance and support services are set out in the Contractor’s maintenance and support regulations. Further details, such as service hours, response times, and recovery times, are governed by the Contractor’s Service Level regulations, which can be viewed and downloaded via the medavis Service Center (link: https://servicecenter.medavis.com/helpdesk/).

c. Client’s Obligations
The Client is obligated to install updates and patches without undue delay insofar as this is required for operational security and compatibility.

d. Remote Maintenance
(1) If remote maintenance services are agreed contractually, access shall be made exclusively via secure connections authorised by the Client.
(2) The Client shall ensure that appropriate protective measures (firewall, VPN, user authorisations) are in place.
(3) The Contractor undertakes, when accessing the Client’s systems, to perform only those actions necessary for error analysis and remediation.

7. Reseller
a. Subject Matter of Services
(1) The subject matter of this contract is exclusively the procurement of a usage licence for the software products of a third-party manufacturer listed in the offer (hereinafter “Third-Party Software”).
(2) Third-Party Software is not part of the maintenance contract unless otherwise agreed in the maintenance services.

b. Warranty
(1) The Contractor assigns to the Client all warranty and defect rights to which it is entitled against its upstream suppliers, manufacturers or other third parties – including any ancillary and secondary rights (in particular the right to rectification, price reduction, withdrawal, and compensation for consequential defect losses) – insofar as they relate to the subject matter of the contract.
(2) The assignment becomes effective upon full payment of the contract fees. Before the Client asserts claims against the Contractor due to defects in the software, it must first attempt to assert its claims directly against the manufacturer.

IV. Usage Rights / Licence Terms

1. Licence Rental (on-prem)
Upon payment, the Client receives simple (i.e., non-sublicensable and non-transferable) rights, limited in time to the duration of the contract, to use the services agreed upon for the intended purpose.

2. Licence Rental – SaaS
Insofar as the Software runs exclusively on the servers of a commissioned service provider, the Client does not require copyright usage rights to the Software, and the Contractor does not grant any such rights. However, the Contractor grants the Client, upon payment, for the duration of the contract, the non-exclusive, non-transferable right, limited to the duration of the contract, to load the user interface of the Software into the working memory of the end devices used for this purpose in accordance with the contract, for display on screen, and to make the copies of the user interface thereby created.

3. Licence Purchase / Custom Software
Upon full payment, the Contractor grants the Client the non-exclusive, time-unlimited right to use the Software for the intended purpose.

4. Demo Version
a. If the Contractor grants the Client time-limited access to the Software for demonstration purposes, the Client’s right to use the Software is limited to internal use for evaluation purposes within the scope of the intended purpose and to the period determined by the Contractor.
b. Any productive use is strictly prohibited. The usage right expires automatically at the end of the period determined by the Contractor.
c. The Contractor is entitled to unilaterally modify the Client’s usage rights and the scope of services during the trial period at any time.

5. Reseller
a. The Client is expressly informed that the Contractor is not the licensor with respect to these products but merely arranges the usage licences. The manufacturer’s licence terms, which are to be agreed separately with the manufacturer, shall apply.
b. The rights and obligations under this licence agreement are not transferable without the consent of the licensor.

6. General Provisions
a. The Software is protected by copyright.
b. The Contractor has the right to audit the number of licences granted to the Client pursuant to Section IV. If the Contractor discovers a discrepancy from the contractually owed number of licences during such audit, the Contractor is entitled to invoice the Client for any licence over-use.
c. The Client is prohibited from editing, processing, decompiling, reverse engineering, disassembling, translating, or otherwise attempting to derive the source code of the Software, except as expressly permitted by law (Sections 69d and 69e of the German Copyright Act – UrhG).
d. The Client may only use the Software within the scope of its own business activities and for the intended purpose by its own personnel. The Client is not permitted to use the Software beyond this scope.
e. The Client is not entitled to make the Software available to third parties, whether for remuneration or free of charge, and must prevent unauthorised access to the Software by taking appropriate precautions. The Client shall immediately notify the Contractor if it becomes aware of any such access attempts. Unauthorised access constitutes a licence violation.
f. The usage right granted to the Client may only be transferred to a third party by the Client upon complete relinquishment of its own rights. The onward sale of the Contractor’s Software to third parties may only take place after the Contractor’s consent. The Client is obligated to notify the Contractor in writing of the full name and address of the new user/company. In the event of an approved onward sale, the Client must ensure that the third party accepts all licence conditions of the Contractor and inform the Contractor of the purchaser’s complete contact details. Temporary transfer of the Software to third parties is not permitted and constitutes a licence violation.
g. The Contractor shall only maintain the Software for the acquirer on the basis of a new service agreement with the acquirer; the Contractor is under no obligation to enter into such an agreement.
h. The source code of the Software is not disclosed.
i. Temporary use of the Software by third parties (account sharing) is not permitted and constitutes a licence violation.
j. The Client will be separately informed about open-source licence terms and third-party licence terms (e.g., in Service-Specific Terms). The Client undertakes to comply with the relevant licence terms. The Contractor makes open-source software from third parties available solely as a reseller.
k. Liability for third-party software is excluded to the maximum extent permitted by applicable law. In particular, the Contractor provides no warranty for the freedom from defects or continued availability of open-source software.
l. The Client is liable for all damages incurred by the Contractor due to the Client’s infringement of copyright law.

V. Services

1. Unless otherwise agreed, the Contractor provides its additional services as service-type (Dienstvertrag) obligations and therefore does not owe any specific result. This applies in particular to training in the use of the Software and data migration. The respective service is defined in the respective offer.

2. The general place of performance for services is the Contractor’s business premises, unless the services imperatively require the Contractor’s presence at the Client’s site or a corresponding place of performance has been agreed.

3. The procedure and concrete sequence of migration depend in each individual case substantially on the system environment used by the Client and in particular on the legacy software being replaced. The parties shall specify the procedure in a project plan and adapt it further as the migration progresses if necessary. The Contractor’s services shall be remunerated according to actual expenditure in accordance with the offer.

4. Employees deployed by the Contractor are not subject to the Client’s instructions when carrying out the tasks assigned to them. The deployed employee is free in the organisation of his/her activity (time, duration, nature and location of work). However, the deployed employee must take into account specific operational concerns and requirements in connection with the activity. The deployed employee is also not bound with respect to place or time of work. Project-specific time requirements of the Client must, however, be observed after coordination (e.g., meeting dates).

5. The Client shall issue either a written approval or a substantiated objection. In the latter case, the parties shall jointly endeavour to find a solution.

6. The Client may declare acceptance either expressly or through conclusive actions that imply acceptance. The service shall be deemed approved in particular if the Client:
a. uses the result of the service productively, or
b. does not raise a substantiated objection within 14 calendar days of completion of the service.

VI. Contract Work Services

1. Insofar as work-type (Werkvertrag) services are rendered, the provisions of this Section VI shall apply.

2. Acceptance shall be carried out jointly by the Contractor and the Client and shall be recorded in an acceptance protocol (hereinafter “acceptance test”).

3. After acceptance of the contractual service by the Client, the limitation period for any defects shall commence. The Client shall be expressly informed of this legal consequence in the acceptance protocol.

4. The Client may declare acceptance either expressly or through conclusive actions that imply acceptance. The service shall be deemed accepted in particular if the Client:
a. uses the result of the service productively, unless the use serves exclusively the purpose of the acceptance test; or
b. has not refused acceptance or raised substantiated objections to the acceptability of the service within 14 calendar days of the service being made available for the acceptance test on grounds of not merely insignificant defects.

VII. Warranty

1. The Contractor warrants that the services provided to the Client for remuneration correspond to the respective service description agreed in accordance with Section III. This includes ensuring that the contractually agreed quality of the Software and its maintenance are preserved during the term of the contract, and that the contractual use of the Software is not impeded by third-party rights. The Contractor shall remedy material and legal defects in the rented item within a reasonable period of time in accordance with this Section VII. The Contractor also fulfils its obligation to remedy defects by making updates equipped with an automatic installation routine available for download via the medavis Service Center and offering the Client telephone support for any installation problems that may arise, unless this leads to unreasonable impairments.

2. The Contractor does not warrant secure, uninterrupted or defect-free operation of the services; this applies expressly also to SaaS services. Restrictions on availability may arise in particular in the event of disruptions and maintenance.

3. A warranty for the suitability of the services for the intended purpose is only assumed insofar as this purpose has expressly become part of the offer.

4. In the event of deviations from the service description, the Contractor shall take the necessary measures to remedy the deviations within a reasonable period of time. The Contractor shall only be liable for deviations that were already present when the service agreement became legally effective if the Contractor is at fault.

5. The Client is obligated to inspect the service for obvious defects immediately upon receipt, to the extent that an acceptance test is not already required.

6. The Client shall notify the Contractor of any defects without undue delay and shall indicate in a reproducible manner how and under what circumstances the defect or error occurs. The Client shall actively support the Contractor in fault diagnosis and shall in particular provide all further necessary documents and data that the Contractor requires for analysing and remedying the defect. If notification is omitted, the services shall be deemed approved in this respect.

7. If, following examination of a defect notification, it transpires that the defect did not arise within the Contractor’s area of responsibility, the Contractor may invoice the Client for the costs of the examination at the applicable rates. This shall not apply if the Client could not have recognised, even with the required diligence, that the disruption did not lie within the Contractor’s area of responsibility.

8. The Client must first assert the right to subsequent performance. The specific type of defect remedy lies at the Contractor’s discretion. If subsequent performance fails twice, the Client shall be entitled to further defect rights.

9. Without prejudice to its other rights, the Client is obligated to retain or accept the defect-free part of its services and to pay the contractually agreed remuneration for this, unless the partial service is of no interest to the Client.

10. Warranty for only insignificant reductions in the suitability of the service is excluded. The application of Section 536a(2) BGB (tenant’s right of self-help) is excluded. The application of Section 536a(1) BGB (landlord’s obligation to pay damages) is also excluded insofar as the provision provides for strict liability independent of fault. The Client may not reduce current payments pursuant to Section VIII in the event of defects; any existing right to reclaim paid remuneration under reservation shall remain unaffected.

11. Warranty and indemnification claims are excluded:
a. for services provided free of charge, unless the Contractor or a vicarious agent has fraudulently concealed a deviation from the service description;
b. if the Client makes modifications to the Software without the Contractor’s consent, unless the Client demonstrates that the modifications had no influence on the defect;
c. insofar as the breach of the Client’s cooperation obligations or the failure to notify a deviation from a service description without undue delay and in detail was a (contributing) cause of damage, or the deviation from a service description can no longer (or can no longer fully) be remedied as a result; the requirements referred to in Section VII No. 4 shall remain unaffected.

12. The limitation period for defect claims is one year from provision or acceptance of the respective service. This shall not apply in cases of fraudulent intent, wilful misconduct or gross negligence, or in the event of injury to life, body or health.

VIII. Prices and Payment Terms

1. The amount of the remuneration owed in each case is determined by the type of service ordered in the offer. All prices are subject to the applicable statutory value added tax. The Client shall pay any taxes that arise – such as foreign withholding tax, use tax, property tax, excise tax, service tax or similar taxes, customs duties and other charges. If the Contractor is obligated to pay such taxes, the Client shall reimburse the Contractor for these and all associated costs, expenses, interest and penalties.

2. By granting a corresponding SEPA mandate, the Client authorises the Contractor to collect the invoice amount from the specified account. The direct debit collection shall take place at the due date in accordance with the agreed billing interval.

3. Unless separate payment terms are agreed in the respective offer, the Contractor’s invoices are due for payment within 10 days of the invoice date without deduction.

4. If the Client falls into payment default, the Contractor is entitled, from the due date, to charge interest on the outstanding payment at a rate of 9% above the respective applicable base rate of the European Central Bank. The assertion of further-reaching damages by the Contractor is not excluded.

5. If the Client allows a written payment deadline set by the Contractor to expire without payment, the Contractor is entitled, without prejudice to its other rights, after the deadline has expired, to withdraw from the contract, to demand remuneration for partial services rendered and/or work commenced, and otherwise to claim damages. In this case, the damage shall be assessed as a lump sum of 70% of the contractually agreed remuneration for the services not yet rendered (in part). The Contractor reserves the right to demonstrate that a lesser loss has arisen. Partial services and work commenced shall be handed over to the Client concurrently against settlement of the Client’s claim, insofar as this is possible given the nature of the subject matter.

6. The Contractor is entitled to increase the remuneration (rental / maintenance) for the first time after the expiry of twelve months from the conclusion of the contract, with three months’ written notice to the end of a calendar quarter. The Client has the right to terminate the contractual relationship within a period of four weeks of receipt of the notice of a fee increase to the end of the current calendar quarter.

7. The Client may only set off its counterclaim against a payment claim by the Contractor, or assert a right of retention, if its counterclaim:
a. is undisputed,
b. is subject to a legally binding decision of a competent court, or
c. in the case of a right of retention, arises from the same contractual relationship as the Contractor’s claim in respect of which the Client asserts its rights.

IX. Execution Deadlines (Dates, Delivery Times)

1. Execution deadlines stated in the offer shall be regarded as indicative and subject to reservation. Execution deadlines only become binding if they have been expressly agreed with the Contractor and confirmed by the Contractor in writing in the order confirmation, and if the Client has fulfilled the cooperation obligations referred to in Section X in full and without delay. If the Client fails to fulfil the aforementioned obligations, any agreed execution deadlines shall be suspended.

2. Any change to the order confirmation/order shall result in the cancellation of any bindingly agreed execution deadlines.

3. If circumstances become apparent during the provision of services that will delay the agreed execution deadlines, the Contractor shall notify the Client of the delay without undue delay.

4. The Client is obligated to accept partial deliveries, provided that no disadvantages for use result therefrom.

5. If the Contractor culpably exceeds a bindingly agreed execution deadline, the Client has the right to withdraw from the order if the delayed contractual performance, taking into account the state of services already rendered, is of no interest to the Client – in particular if the contractually required intended purpose is frustrated or materially impeded by the delay. The Client’s claims for damages are limited in accordance with Section XIV.

X. Client’s Cooperation Obligations

1. The Client undertakes to provide all cooperation services required for the provision of services in a timely, complete and cost-free manner for the Contractor. A detailed list can be viewed and downloaded via the medavis Service Center (link: https://servicecenter.medavis.com/helpdesk/).

2. The Client shall provide the Contractor with all information and documents necessary for the fulfilment of the contract in due time, and shall grant the required approvals and releases.

3. The Client shall notify the Contractor without undue delay of any change to its name, company, place of residence or business, billing address, legal form, and – in the case of direct debit collection – bank account details.

4. The Client is responsible for ensuring the compatibility of the systems used by the Client with the contractual products. The Client shall in particular observe the technical requirements and system prerequisites transmitted by the Contractor, as set out in the Contractor’s technical operating manuals. The technical operating manuals can be viewed and downloaded via the medavis Service Center (link: https://servicecenter.medavis.com/helpdesk/).

5. The Client shall always use the current version of the Software.

6. The Client is aware that the exchange of data via the internet carries risks. This includes the access to, or transmission of, data stored in the medavis RIS (or other products of the Contractor) via the internet or other electronic media (fax, SMS, etc.). The Client is solely responsible for carrying out regular and adequate data backups, unless a data backup by the Contractor has been separately commissioned (in particular in the case of hosting by the Contractor).

7. The Client must protect and safeguard the access credentials transmitted to it from access by third parties. The Client shall ensure that use takes place only within the contractually agreed scope. The Client shall immediately inform the Contractor if there is a suspicion that access credentials and/or passwords may have become known to unauthorised persons. Unauthorised access must be reported to the Contractor without undue delay.

8. If the Client breaches its cooperation obligations, the Contractor is entitled to invoice the Client additionally for any resulting delays and additional expenditure.

9. In the event of a not insignificant breach of obligation by the Client or in the event of payment default, the Contractor is entitled to suspend the provision of services in whole or in part for the duration of the breach/default and/or to restrict the Client’s access to the services in whole or in part. Further claims and rights of the Contractor shall remain unaffected. In the event of a suspension, the Client is released from its payment obligation for the period of suspension.

10. The Client shall indemnify the Contractor against all claims, demands, reasonable expenses, costs and damages arising from culpable, attributable acts or omissions of the Client in breach of its obligations. The Client shall immediately notify the Contractor in writing of any claims made or threatened and shall, upon request, defend the Contractor against such claims or provide reasonable support.

XI. Default and Impossibility / Partial Performance

1. If the owed service becomes wholly or partially impossible, or cannot be rendered within the agreed deadlines, the Contractor undertakes to inform the Client of this without undue delay. If the inability or delay in performance is attributable to force majeure (war, civil war, export or trade restrictions due to changes in political circumstances, strikes, lockouts, operational disruptions, operational restrictions, natural disasters and similar events of force majeure, as well as failure of upstream suppliers to deliver on time, making it impossible or unreasonable for the Contractor to fulfil the contract), the Contractor has the right to supply the Client with a reasonable extended deadline, unless the delay is unreasonable for the Client. The Client shall be notified immediately of the occurrence of such an event. The contractual parties undertake to adjust their mutual obligations to the changed circumstances in accordance with the principle of good faith.

2. If the inability or delay in performance is attributable to a circumstance for which the Client is responsible (e.g., impossibility of a pre-performance obligation incumbent on the Client), the Contractor may withdraw in accordance with Section VIII No. 5.

3. The same applies if the Client is more than 30 days in default in fulfilling its pre-performance obligations and the Contractor announces withdrawal with at least 14 days’ notice and then withdraws from the contract or gives notice of termination after the deadline has expired.

4. Without prejudice to its other rights, the Client is obligated to retain or accept the part of the services rendered by the Contractor and to pay the contractually agreed remuneration for this, unless the partial service is of no interest to the Client.

5. Both parties are obligated to cooperate in any necessary contract adjustment to avert damage, insofar as this is reasonable, and are entitled to extraordinarily and without notice terminate a potentially ongoing contractual relationship for good cause. If the Client provides grounds for termination, Section VIII No. 5 shall apply accordingly; otherwise, Section XI No. 5 shall apply accordingly.

XII. Subsequent Changes to Services

1. Changes to the scope of services after conclusion of the contract (“change requests”) are only effective if agreed in text form.

2. The Contractor shall examine the Client’s change requests within a reasonable period of time for feasibility and shall submit a corresponding offer to the Client regarding the additional or reduced costs and the impact on deadlines.

3. If the Client commissions additional services in connection with this contract that are not covered by the tasks originally assigned to the Contractor under the contract, such services of the Contractor shall be remunerated according to actual expenditure in accordance with the Contractor’s current price list. The Contractor shall invoice the Client for such services on a monthly basis; remuneration shall be due 10 working days after the invoice date. The Contractor shall, upon request, provide the Client with a breakdown of the services rendered and the time incurred.

4. Without a corresponding agreement, the originally agreed scope of services shall remain. Changes to the contractually owed scope of services/subject matter are permitted insofar as the interests of the Contractor are not materially impaired thereby, in particular in the case of software updates between order placement and service delivery, or the replacement of ordered products with equivalent components.

XIII. Termination

1. Terminations of services contracted under Section III by the Client towards the Contractor must be made in writing.

2. Contracts for rental products, in particular licence rental and Software-as-a-Service (SaaS), may be terminated by the Client, after expiry of the initially agreed contract term in accordance with the individual agreement, at the latest one month before the end of the current calendar quarter with effect from the beginning of the next calendar quarter, or individual services may be cancelled.

3. Maintenance contracts for purchased software may be terminated by the Client with three months’ notice to the end of a calendar year. The notice of termination must reach the provider no later than 30 September of a calendar year.

4. The right to extraordinary termination for good cause shall remain unaffected.

5. At the agreed date of termination, the Contractor shall cease rendering services to the Client in respect of the terminated subject matter.

6. The Client is prohibited from further use of the originally agreed service. If the Client fails to comply with the non-use obligation in respect of the service it has terminated, the Contractor shall be entitled to damages in the amount of the last contractually agreed maintenance costs/rental costs. This claim shall subsist beyond the termination period.

7. The Client bears the responsibility for performing a data backup of the data to be secured before the contract ends. The Contractor may, subject to a separate agreement, support the Client in this regard.

XIV. Liability

1. Claims for damages against the Contractor, regardless of the legal basis, are excluded unless the damages are based on an intentional or grossly negligent breach of duty by the Contractor, its vicarious agents or legal representatives, or on the breach of essential contractual obligations. Essential contractual obligations are those whose fulfilment enables the proper execution of the contract in the first place, and on whose observance the Client regularly relies and may rely. In the case of a slightly negligent breach of essential contractual obligations, liability shall be limited in amount to the typical, foreseeable damage at the time of conclusion of the contract.

2. If the services agreed between the parties are limited to a rental relationship, the Contractor’s liability, regardless of the legal basis, shall not exceed the amount of the rental agreed for the preceding calendar year.

3. The Contractor’s liability for damages arising from injury to life, body or health, and for any assumption of a guarantee as to the quality of the services by the Contractor, or insofar as the Contractor has fraudulently concealed a defect, shall remain unaffected. Any mandatory statutory liability, in particular under the German Product Liability Act (Produkthaftungsgesetz) and the German Medical Devices Act (Medizinproduktgesetz), shall also remain unaffected.

4. Liability for damages is excluded in particular insofar as the Client could have prevented their occurrence by carrying out daily software or data backups.

5. If a third party asserts claims against the Client based on the allegation that the services give rise to an infringement of the third party’s copyright or industrial property rights for which the Contractor is responsible, the Contractor shall indemnify the Client against all finally and legally imposed damages and costs, provided that the Contractor was notified in writing without undue delay of the assertion of such a claim and the Client provides comprehensive information and reasonable assistance. A further prerequisite is that the Contractor is granted the exclusive authority to defend or settle the asserted claim.

6. The Contractor shall only be liable to the Client for an infringement of third-party rights caused by its services if the services are used by the Client in accordance with the contract, in particular in the contractually intended use environment. Liability for the infringement of third-party rights is further limited to rights of third parties within the European Union and the European Economic Area and at the location of the contractual use of the service.

7. Section VII No. 11 shall apply accordingly for grounds of exclusion.

8. Insofar as the Contractor’s liability is excluded or limited, this shall also apply to the personal liability of the representatives, employees and other vicarious agents of the Contractor.

XV. Confidentiality

1. “Confidential Information” means all trade and business secrets of the parties as well as all information and data. This encompasses in particular data of the Contractor, evaluations based thereon, and knowledge that the parties exchange in connection with the provision of services and that are designated as “confidential” or similar, or that by their nature are to be regarded as confidential.

2. Each party undertakes to treat the other party’s Confidential Information as confidential and not to make it accessible to third parties. This means in particular using the Confidential Information only for the performance of the contract or disclosing it to advisers, in particular lawyers, applying the same care as with respect to its own trade and business secrets of similar importance, and at a minimum taking an appropriate level of technical and organisational confidentiality measures. The Contractor’s authorities pursuant to Section XVI shall remain unaffected.

3. Members of affiliated companies within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG) shall not be deemed third parties.

4. If Confidential Information of the disclosing party is breached within the receiving party’s area of responsibility, or if the receiving party becomes aware of such breaches, the receiving party shall immediately notify the disclosing party and take all necessary measures to stop the respective breach.

5. The confidentiality obligation does not apply to Confidential Information:
a. that was already lawfully known to the receiving party before its disclosure without any obligation of confidentiality;
b. that is or becomes publicly accessible without this being attributable to the receiving party, provided that Confidential Information does not qualify as publicly accessible merely because individual parts thereof are publicly accessible;
c. that is lawfully communicated or disclosed to the receiving party by a third party without any confidentiality obligation, provided that, to the receiving party’s knowledge, the third party does not breach its own confidentiality obligation upon handing over the information;
d. that have been developed by the receiving party independently and without recourse to Confidential Information; or
e. that must be disclosed pursuant to a binding official or judicial order or mandatory legal provision, provided that the other party has been informed of the disclosure in writing.

XVI. Data Protection, Data Security, Data Backup

1. The parties undertake to comply with the applicable data protection regulations, in particular the GDPR and the German Federal Data Protection Act (BDSG).

2. The Client remains the data controller within the meaning of data protection law for all personal data processed in connection with the use of the Software.

3. If the Contractor processes personal data of the Client in the course of rendering services, this shall take place in accordance with the data processing rules of medavis GmbH, which can be viewed and downloaded via the medavis Service Center (link: https://servicecenter.medavis.com/helpdesk/) and any further specification in the offer. By concluding the contract, the Client consents to the terms of the data processing agreement. The right to use data without establishing any personal reference for the purpose of improving and developing new services shall remain unaffected.

4. The Client shall implement appropriate technical and organisational measures to ensure an adequate level of protection, and undertakes to operate the Software exclusively in a system environment that complies with the applicable data protection and IT security requirements, and to install all security updates provided by the Contractor without undue delay.

5. The Client grants the Contractor, for the purposes of contract performance, the right to duplicate the data to be stored by the Contractor on behalf of the Client, insofar as this is necessary for the provision of the services owed under these GTC.

XVII. Place of Performance, Jurisdiction, Applicable Law

1. This contract and its interpretation shall be governed by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

2. The exclusive place of jurisdiction for all disputes arising from rights and obligations under this contract, including its validity, shall be the registered office of the Contractor.

XVIII. Medical Devices and Regulatory Requirements

1. If the licensed Software is classified as a medical device within the meaning of Regulation (EU) 2017/745 (MDR), this shall be expressly stated in the respective product description.

2. The Contractor confirms that the software solutions declared as medical devices have been developed, tested and labelled in conformity with the MDR and bear a valid CE marking.

3. The Client undertakes to report to the Contractor without undue delay all incidents, serious adverse events or other safety-relevant events that come to its knowledge in connection with the use of the Software. The Client also undertakes to carry out only those updates and configuration changes authorised by the Contractor.

4. The Client is obligated to use the Software only within the intended purpose framework and to observe all relevant notices and instructions for use.

5. The Client must ensure that updates or modifications to the Software are carried out only in compliance with the applicable regulatory requirements. Unilateral modifications or unauthorised adaptations may result in a loss of conformity, for which the Contractor assumes no liability.

XIX. Reference Listing

The Contractor may include the Client as a reference in its sales and marketing materials. This may include use of the Client’s logo and a link to its website. If the Client objects to this, the Contractor shall immediately cease the relevant activities.

XX. Final Provisions

1. All notices and declarations to the Client are to be directed to the contact details provided at the time of order, or alternatively to the Client’s registered business address. Notices and declarations affecting all or multiple clients may also be published as client notices (release notes) via the Software.

2. The assignment of rights and obligations under this contract is only permissible with the prior written consent of the Contractor.

3. Should individual provisions of this contract be wholly or partially invalid or unenforceable, the validity of the remaining provisions shall not be affected. The parties shall immediately replace the invalid or unenforceable provision with one that comes as close as possible to the legal and economic purpose of the invalid or unenforceable provision. Until then, such a provision shall be deemed to have been agreed. The foregoing shall apply accordingly to the filling of any contractual gaps.