General Terms and Conditions of Business
Section 1 Validity of the terms and conditions of contract
(1) In the absence of agreements to the contrary, solely these General Terms and Conditions of Business apply to the sale of standard software, pre-contractual obligations, training and compiling the data analysis in commercial transactions. Other terms and conditions of contract shall not become the content of the contract, including if the User, JSI medical systems GmbH (“JSI”), does not expressly object to them.
(2) If similar contracts are entered into and these General Terms and Conditions of Business are not once again referred to, the General Terms and Conditions of Business of JSI as stated in the version that can be viewed at www.jsi-medisys.de in the case of the Buyer issuing a declaration shall apply exclusively unless the contracting parties agree on something to the contrary in writing.
(3) Sections 1 to 10 and Sections 13 to 17 of these General Terms and Conditions of Business, supplemented by Sections 433 et seq. BGB (German Civil Code), apply to the supply of the standard software and to other pre-contractual obligations. Sections 1, 2, 11 and Sections 13 to 17 of these General Terms and Conditions of Business, supplemented by Sections 635 et seq. BGB apply to the data analysis. Sections 1, 2 and Sections 12 to 17 of these General Terms and Conditions of Business, supplemented by Sections 611 et seq. BGB, apply to the training.
Section 2 Entering into a contract
(1) JSI’s offers are subject to change without notice and non-binding unless the offer is described in writing as binding. Legally binding force shall only be brought about by way of a contract signed by both parties or written confirmation of order by JSI, in addition by the fact that JSI commences the rendering of services as per agreement.
(2) Separate contracts are to be entered into for other types of deliveries and services (e.g. hardware supply, setting up and installing the software).
Section 3 Subject matter of contract and performance scope in the case of a software contract
(1) The subject matter of this contract is the supply of standard software and the granting of utilisation rights in accordance with Section 4.
(2) Prior to entering into the contract, the Buyer has checked that the software specification corresponds with its wishes and requirements. The Buyer is aware of the key functional characteristics and conditions of the software.
(3) The contract being signed by both parties or the confirmation of order by JSI or JSI’s offer are authoritative for the scope, type and quality of the deliveries and services. Other details or requirements shall only become an integral part of the contract if the contracting parties agree on this in writing or JSI has confirmed it in writing. Subsequent amendments to the performance scope are subject to a written agreement or written confirmation by JSI.
(4) Product descriptions and illustrations in test programmes are performance descriptions but not, however, guarantees. A guarantee shall be subject to a written statement by the management of JSI.
(5) The Buyer shall receive the software made up of the machine programme and the user manual. The technology of supplying the software shall be based on the agreements. In the absence of an agreement to the contrary, the programme shall be downloaded via the internet and the manual shall be supplied. The Buyer has no entitlement to the surrender of the source programme.
(6) JSI shall provide all deliveries and render all services in line with the latest technological developments.
Section 4 Buyer’s rights to the software
(1) The software (programme and manual) is legally protected. Solely JSI is entitled to the copyright and all other performance protection rights to the software and to other items that JSI surrenders or makes available to the Buyer as part of initiating and executing the contract in relation to the contracting parties. JSI shall have corresponding utilisation rights provided third parties are entitled to the rights.
(2) The Buyer shall acquire the software to personally use it permanently at its own enterprise for its own purposes (basic utilisation right).
(3) The manual and other documents surrendered by JSI may only be copied for internal company purposes.
(4) Section 15 applies to the start and end of the Buyer’s rights.
(5) All other utilisation acts, in particular hiring out, lending or disseminating in physical and non-physical form are not permitted without prior, written approval by JSI.
(6) JSI’s subject matter of contract, documents, proposals and test programmes etc. that are made available to the Buyer prior to or after entering into a contract shall be deemed intellectual property and business and company secrets of JSI and are to be kept secret in accordance with Section 16.
Section 5 Performance time and delays
(1) Details about delivery and performance times are non-binding unless JSI has given a written assurance that they have binding force. JSI may render partial services provided the supplied parts can be separately used in a meaningful manner by the Buyer.
(2) Delivery and performance periods shall be extended by the period in which the Buyer defaults in payment based on the contract and by the period in which X-AG is prevented from providing a delivery or rendering a service, for reasons that are not its responsibility, and by a reasonable start-up period following the end of the reason for the hindrance. These circumstances also include force majeure industrial action and lacking or faulty collaboration on the part of the Buyer.
(3) If the contracting parties subsequently agree on additional services that have an effect on agreed periods, these periods shall be extended by a reasonable period.
(4) Warnings and the setting of periods on the part of the Buyer are subject to the written form in order to be deemed valid. A subsequent period must be reasonable. A period of less than two weeks shall only be deemed reasonable in the event of particular urgency.
Section 6 Commitment to and end of a contract
(1) The end of the additional exchange of goods and services (e.g. in the event of withdrawal, termination for good cause, reduction or compensation of damages instead of performance) must at all times be threatened by way of stating the reasons and setting a period for elimination (normally at least two weeks) and may only be stated within two weeks following expiry of the period. Setting a period may be inapplicable in the cases set out in Section 323(2) BGB. The party that is wholly or largely responsible for the disruption may not request reversal.
(2) Any statements in this respect shall be subject to the written form in order to be deemed valid.
Section 7 Remuneration and payment
(1) The agreed remuneration falls due for payment by the Buyer without any deductions and within 14 days prior to downloading the software (in the case of training after providing the training).
(2) Travelling costs, expenses, accessories, shipping costs and telecommunications costs are to be remunerated additionally according to the costs incurred. Services additionally requested by the Buyer (e.g. consulting and support in the case of installing programmes) shall be invoiced in each case in accordance with JSI’s current price list.
(3) Turnover tax shall be added to all prices.
(4) The Buyer may only set off by way of claims that are not disputed by JSI or those that have become res judicata. Apart from the area of Section 354 a HGB, the Buyer may only assign claims resulting from this contract to third parties following prior, written approval by JSI. The Buyer may only exercise a right of retention with regard to the respective contract.
Section 8 Obligations on the part of the Buyer
(1) The Buyer undertakes to inspect all JSI's delivery items without delay from delivery in line with the commercial law regulations (Section 377 HGB (German Commercial Code) and provide notification of defects in writing of identified defects by way of a precise description of the defect. The Buyer shall thoroughly test each module in respect of usability in the specific situation before starting to use it for its operations. This also applies to programmes that the Buyer receives as part of the warranty and a potential care contract.
(2) The Buyer shall take appropriate precautions in the event that the programme fails to work properly in full or in part (e.g. by way of data saving, fault diagnosis or regular review of the results). Safeguarding the operation of the programme working environment falls within the Buyer’s area of responsibility.
Section 9 Material defects
(1) The software shall have the agreed characteristics, shall be suitable for the use presupposed by way of the contract and otherwise for the customary use and have the customary quality in the case of software of this type. However, it shall not be fault-free. A fault in the software function resulting from hardware faults, environmental conditions or fault operation and the like shall not be deemed a defect. An inconsiderable reduction in quality shall not be taken into consideration.
(2) In the case of material defects, JSI can initially provide subsequent performance. The subsequent performance shall be provided at JSI’s discretion by way of rectifying the defect, by supplying a programme that does not contain the defect or by the fact that JSI shows options of avoiding the effects of the defect. An equivalent new programme status or the equivalent previous programme status that does not contain the defect is to be assumed by the Buyer if this is acceptable for the Buyer.
(3) The Buyer shall support JSI in the case of analysing faults and rectifying defects in that it shall describe arising problems in detail, inform JSI comprehensively and grant JSI the necessary time and opportunity to rectify the defect. JSI may rectify defects at its own discretion on site or at its business premises. JSI may also render services by way of remote maintenance. The Buyer is to ensure that the necessary technical preconditions are met at its own cost and following a corresponding, prior announcement grant JSI access to its EDP system.
(4) The contracting parties agree on the following error classes and reaction times:
a) Error Class 1: Defects that prevent operations. The error prevents business operations at the Buyer’s premises. A workaround is not available. JSI shall immediately commence, at the latest within four hours following the reporting of an error, with the rectification of the error and shall continue such work forcefully up until the error has been eliminated provided this is also acceptable outside customary working hours.
b) Error Class 2: Defects that hinder operations. The error considerably hinders business operations at the Buyer’s premises. However, use is possible by way of workarounds or by way of restrictions or difficulties that are acceptable on a temporary basis. If an error is reported before 10.00 a.m., JSI shall commence rectifying the error on the same day, in the case of reporting the error later it shall commence rectifying the error on the following day and shall continue such work forcefully up until the error has been rectified during customary working hours. JSI can initially show a workaround and rectify the error at a later date if this is acceptable for the Buyer.
c) Error Class 3: Other defects: JSI shall commence work on rectifying the error within one week or shall only eliminate the error with delivery of the next programme status if this is acceptable for the Buyer.
(5) The periods in accordance with sub-section 4 shall commence with notification of an error in accordance with Section 8. Section 5 applies to calculating the period. In the case of differences of opinion about allocating an error to classes in accordance with sub-section 4, the Buyer may request classification to a higher error class. The customer shall reimburse JSI for costs if it does not furnish proof that its classification was correct.
(6) JSI may request additional costs because the software has been altered, used outside the specified environment or incorrectly operated. It may request reimbursement of expenses if a defect is not identified. The burden of proof lies with the Buyer. Section 254 BGB applies accordingly.
(7) If JSI ultimately refuses to provide subsequent improvement or if it ultimately fails or is unacceptable for the Buyer, the Buyer may withdraw from the contract in accordance with the regulations set out in Section 6 or reduce the remuneration accordingly and claim for damages or the reimbursement of expenses in accordance with Section 13. The claims shall fall under the statute of limitations in accordance with Section 14.
Section 10 Defects in title
(1) JSI guarantees that use of the software by the Buyer as per agreement does not conflict with any third party rights. In the case of defects in title, JSI guarantees, at its discretion, that it shall provide the Buyer with a legally fault-free option to use the software or to use equivalent software.
(2) The Buyer shall inform JSI without delay in writing if third parties assert industrial property rights (e.g. copyrights or patent rights) against the Buyer. The Buyer authorises JSI to manage the dispute with the third party alone. If JSI makes use of this authorisation, the Buyer may itself not acknowledge the third party claims without approval by JSI. JSI shall at its own cost ward off the third party claims and render the Buyer exempt from all costs associated with the warding off of such claims provided such claims are not based on conduct on the part of the Buyer in breach of its duties (e.g. use of the programmes in breach of contract).
(3) Section 9(2) to (5) and (7) apply accordingly. Section 6 applies to abandoning the exchange of goods and services. Section 13 applies to the liability while Section 14 applies to the period of limitation.
Section 11 Data analysis/warranty
(1) Upon acceptance of a data analysis order, JSI undertakes to analyse the data from the forwarded files or the obtained raw data by way of the software it has developed and forward this analysis to the Principal. The Principal shall be required to pay the agreed remuneration to JSI in that respect. The Principal is to ensure that the data satisfy the customary quality requirements and permit a data analysis. In the event of inadequate quality, JSI shall be entitled to exclude entire raw data files or partial areas of individual raw data files from the analysis. Assessing the data quality is incumbent upon JSI.
(2) JSI shall, at its discretion, initially provide a guarantee for faults in the data analysis by way of subsequent improvement and new manufacture. Insofar as JSI seriously and ultimately refuses to perform, refuses to eliminate the defect and provide subsequent performance regarding disproportionately high costs, the subsequent performance fails or if it is unacceptable for the Principal, the Principal may, at its own discretion, only request a reduction in remuneration or reversal of the contract and claim for damages as part of the limitation on liability (Section 13 of these General Terms and Conditions of Business) instead of the performance.
(3) Insofar as JSI is not responsible for the violation of an obligation in the form of a defect, the Principal shall not be entitled to withdraw from the contract.
Section 12 Training
(1) The training shall be provided at JSI’s discretion at the Buyer’s premises or at another location to be determined following consultation with the Buyer. In the case of training staged at the Buyer’s premises, following consultation with JSI the Buyer shall make available corresponding rooms and technical equipment. In the case of training staged at another location, the Buyer shall hire the rooms and make the necessary hardware and software available on site.
(2) JSI may allow a training appointment to lapse in vain for good cause. JSI shall notify the Buyer of the cancellation of a training session in good time and offer substitute dates.
(3) In the event that the Buyer’s lacking satisfaction is justified, JSI shall have the opportunity to bring about remedial action. In other respects, Section 6 applies.
(1) JSI shall provide compensation for damage or reimburse expenses incurred in vain, irrespective on whichever legal grounds these are based (e.g. legal or similar obligations, violation of an obligation or unlawful acts) only to the extent set out below:
a) Liability in the case of intent and resulting from a guarantee is unlimited.
b) In the case of gross negligence, JSI shall be liable in the sum of typical damage that is foreseeable upon entering into a contract.
c) Bin the case of negligent violation of an obligation that is key to the extent that achieving the contractual purpose is jeopardised (cardinal obligation), JSI shall be liable in the sum of damage that is typically foreseeable in the case of entering into a contract, at most however at EUR 50,000.00 for each case of damage and EUR 150,000.00 for all cases of damage overall.
(2) JSI is free to object to contributory negligence. The Buyer/Principal undertakes, in particular, to save data and ward off viruses in accordance with the latest technological developments.
(3) The statutory regulations apply in the case of the loss of life, physical injury and detrimental effects on health and in the case of claims resulting from the German Product Liability Act.
Section14 Period of limitation
(1) The period of limitation is as follows:
a) For claims for the repayment of the purchase price from withdrawal or reduction one year from the downloading of the software but not, however, less than three months from issuing the valid withdrawal or reduction statement;
b) One year in the case of other claims resulting from material defects;
c) In the case of claims from defects in title one year if the defect in title is not attributable to a third party tortious right on the basis of which the third party may request the return of the items stated in Section 3(5).
d) In the case of other claims for damages or reimbursement of expenses incurred in vain one year starting from the time at which the Buyer gained knowledge justifying the claim or should have gained knowledge without gross negligence. The period of limitation shall commence at the latest upon expiry of the maximum periods set out in Section 199 BGB.
(2) However, the statutory regulations shall apply in the case of compensation for damage and reimbursement of expenses resulting from intent, gross negligence, guarantee, fraudulent intent and in the cases set out in Section 13(3).
Section 15 Start and end of the Buyer’s rights
(1) However, ownership of the supplied items and the rights in accordance with Section 4 shall only pass to the Buyer upon payment in full of the purchase price. Before that, the Buyer shall only have a temporary utilisation right, governed by the law of obligations, which may be revoked in accordance with sub-section 2.
(2) JSI may revoke the rights in accordance with Section 4 for good cause under the preconditions set out in Section 6. Good cause shall be deemed to apply, in particular, if the Buyer fails to pay the remuneration or seriously violates Section 4 irrespective of a written warning.
(3) If the utilisation right in accordance with Section 4 does not arise or ends, JSI may request that the Buyer returns the surrendered items or request a written assurance that they have been destroyed, in addition the deletion or destruction of all copies and the written assurance that this has occurred.
Section 16 Secrecy
(1) The contracting parties undertake to treat in confidence all items they receive from the respective other contracting party, or of which they gain knowledge in the case of executing the contract (e.g. software, documents and information), which are legally protected or contain business or company secrets or are described as confidential, including beyond the end of the contract unless they have been placed in the public domain without violating the obligation to maintain secrecy. The contracting parties shall safeguard and secure these items such that access by third parties is excluded.
(2) The Buyer shall make the subject matter of contract available only to employees and other third parties who require access to it to perform the company tasks that have been assigned to them. The Buyer shall instruct these persons in respect of the requirement to maintain secrecy regarding the items.
(3) JSI shall save the customer’s data required to process the business transaction in compliance with the data protection law requirements.
Section 17 Conclusion
(1) Amendments to and supplementary information regarding the contract are subject to the written form in order to be deemed valid. Forwarding in text form, in particular by fax or e-mail, are also deemed to honour the written form.
(2) The Buyer consents to the fact that JSI shall save and process the Buyer’s data as part of the business activity. JSI shall comply with the data protection law requirements.
(3) The law of the Federal Republic of Germany applies by way of exclusion of the UN Sales Law. The court with jurisdiction for the JSI's registered office is deemed the place of performance and place of jurisdiction for all claims resulting from and in conjunction with this contract in the case of contracts entered into with merchants.
(4) The contracting parties agree in the case of any differences of opinion resulting from or in conjunction with this contract, contractual extensions or supplements that they cannot resolve amongst themselves to have recourse to the Arbitration Department of Deutsche Gesellschaft für Recht und Informatik (www.dgri.de) to resolve a dispute in full or in part, temporarily or finally based on that institution’s rules of arbitration valid at that time as stated in the version valid at the time of instituting arbitration proceedings. The period of limitations for any claims resulting from the disputed life event shall be suspended from the application filed for arbitration up until the end of the arbitration proceedings.