General terms and conditions of cardioscan GmbH

1. General

   The deliveries, services and offers of cardioscan GmbH (hereinafter "CS") are made exclusively on the basis of these terms and conditions. They also apply to all future business relationships, even if they have not been expressly agreed again. At the latest when the goods or services are accepted these conditions as accepted. Counter-confirmations of the buyer with reference to his business or purchase conditions are hereby rejected.

2. Quotation and conclusion of contract

   1. The quotations from CS are subject to change and non-binding. Declarations of acceptance and all orders require the written or telex confirmation of CS to be legally effective. Is the buyer's order itself as an offer in accordance with To qualify § 145 BGB, this is binding and can be accepted by CS within 4 weeks by sending an order confirmation or by sending the ordered goods to the customer within this period.
   2. Drawings, illustrations, dimensions, weights or other performance data are only binding if this is expressly agreed in writing. For development contracts of all kinds, the subject of the contract is the agreed service, not the success.
   3. The sales staff of CS are also not authorized to make verbal side agreements or to give verbal assurances that go beyond the content of the written contract.

3. Prices

   1. The agreed purchase price is the price stated in the order confirmation. For orders with an agreed delivery time of more than 4 months, CS reserves the right to calculate the prices applicable on the day of delivery or to increase the prices in accordance with the cost increases that have occurred, if the increase is more than 5% of an agreed price, so the customer has a right of termination.
   2. All prices are exclusive of VAT, the statutory amount is shown separately on the invoice on the day of invoicing.
   3. The prices generally apply to delivery from the headquarters in CS, excluding packaging, expenses for installation or assembly, instruction in software as well as transport and travel expenses are always calculated separately. All prices are in euros.

4. Delivery

   1. Delivery dates or deadlines that are regularly agreed without obligation require the written form or the written confirmation. In any case, CS is only obliged to meet these dates or deadlines as best as possible. The delivery is made to the agreed delivery address.
   2. CS is entitled to partial deliveries and partial services. We reserve the right to limit the quantity delivered or the scope of delivery due to our own non-delivery or limited supply of the CS as well as other unusual events. If it is unreasonable for the customer, he has the right to terminate the contract.
   3. Delays in delivery and performance due to force majeure and events that make delivery difficult or impossible for CS - this includes, in particular, strikes, lockouts, official orders, etc., even if they occur at suppliers of the seller or their subcontractors - CS also has not legally agreed deadlines and dates. They entitle CS to postpone the delivery or service by the duration of the impediment plus a reasonable start-up time or to withdraw from the contract in whole or in part because of the part not yet fulfilled. If the hindrance lasts longer than three months, the customer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the unfulfilled part. A grace period of 4 weeks is appropriate. If the delivery time is extended or CS is released from its obligation, the purchaser cannot derive any claims for damages from this, provided CS has notified the purchaser immediately of the circumstances mentioned.
   4. If CS is responsible for non-compliance with bindingly agreed deadlines and dates or is in default, the purchaser is entitled to compensation for default of up to 5% of the invoice value of the deliveries and services affected by the default. Claims beyond this are excluded unless the delay is based on at least gross negligence on the part of CS.
   5. Compliance with the delivery and performance obligations of CS requires the timely and proper fulfillment of the obligations of the buyer.
   6. If the customer does not meet his acceptance obligation or does not do so in good time, CS reserves the right to store the goods at the customer's cost and risk or to claim damages for non-performance. With the occurrence of the delay in acceptance, the risk of accidental deterioration or accidental loss passes to the customer. After setting a grace period of a maximum of 14 days, CS is entitled - without prejudice to further legal claims - to withdraw from the contract or to claim damages.
   7. The customer has to take all precautions necessary for a smooth delivery. In the event of delays, the waiting times and additional travel costs are borne by the customer.

5. Transfer of Risk

   1. Unless otherwise stated in the order confirmation, delivery is agreed "from the seat of CS". The risk passes to the customer as soon as the shipment has been handed over to the person carrying out the transport or has left CS's warehouse for the purpose of dispatch the shipment becomes impossible without CS's fault, the risk passes to the customer upon notification of readiness for dispatch.
   2. If the customer so desires, CS will cover the delivery with a transport insurance. The customer bears the costs incurred.

6. Payment

   1. Unless otherwise agreed in writing, all payments are due without deduction within 30 days of the invoice date. The written payment agreements apply to commercial and international transactions. Decisive for compliance with the payment period is the time of receipt of payment in cash or as a credit to a business account of CS.
   2. CS is not obliged to accept checks or bills of exchange. If these are nevertheless accepted on account of performance, the costs of payment and discounting will be borne by the customer. Accepted checks or bills of exchange can be returned without justification with the claim for the provision of cash.
   3. In the event of late payment or deferral after the payment period has expired, CS is entitled to demand interest from the due date in the amount of 5% above the base rate of the European Central Bank as compensation. The right to further damages remains unaffected.
   4. If compliance with the purchaser's payment obligations or the enforceability of CS's claims is jeopardized due to the circumstances set out below - unsatisfactory credit information, non-compliance with payment dates agreed with CS, existing enforcement measures against the purchaser - CS can provide security, advance payment or immediate due date of all claims at any time desire. If the customer does not comply with such a request within 6 days, CS is entitled to withdraw from the contract or to claim damages. Even if the right of withdrawal is chosen, CS is entitled to demand expenses and costs incurred, the lost profit and a remuneration for the use of the delivered goods. Subject to proof of a higher amount, CS is entitled to charge the lost profit at a flat rate of 25% of the agreed purchase price.
   5. The customer is only entitled to offset, even if complaints or counterclaims are asserted, if the counterclaims have been legally established, are undisputed or have been recognized in writing by CS. The customer is also entitled to retention due to counterclaims from the same contractual relationship.

7. Warranty

   1. CS is obliged to carry out the orders placed carefully and professionally and to protect the interests of the customer appropriately. The customer is advised that, based on the current state of technical development, temporary and insignificant errors, particularly in software products, cannot be completely excluded. In any case, the purchaser must check the contractual conformity of the delivered goods and services immediately upon receipt.
   2. Complaints will only be recognized if they are notified to CS in writing of any obvious and recognizable defects, but no later than 14 days after delivery of the goods or performance of the service. Hidden defects that could not be alleviated after the immediate inspection can only be asserted against CS if the notice of defect is received by CS within 6 months after the service has left the place of performance, § 377 HGB otherwise applies accordingly ,
   3. Warranty claims exist only in the event of timely notification of defects and provided that no interventions (in particular repairs) on the goods were carried out by the customer or third parties. The defective delivery items must be kept ready for inspection by CS or third parties commissioned by CS in the condition in which they are at the time the defect is discovered. If the goods are inspected due to a complaint that there is no defect, CS is entitled to demand a reasonable remuneration for the inspection in addition to the transport and travel costs incurred.
   4. If a defect is recognized, CS will deliver or repair at its own discretion, excluding any other warranty claims of the customer. Multiple repairs are permitted. In the event of rectification of the defect, CS is obliged to bear all expenses required for this purpose, in particular transport, travel, labor and material costs, unless this increases due to the fact that the purchased item has been moved to a location other than the agreed delivery location.
   5. If the rework or replacement delivery fails after a reasonable period of time, the customer can choose to reduce the purchase price (reduction) or to cancel the contract (change). CS is only liable for defects in the order components not provided by CS itself but sourced from third parties up to the amount of its own claims against the respective supplier. In this case, CS assigns any warranty or damage claims to the customer to third parties, which means CS itself is released from liability. CS is liable as a guarantor if the claims against the third party do not exist or are not enforceable. Warranty claims against CS will be revived if the third party has not been able to fulfill the warranty obligation or has failed due to no fault of the customer, or if the third party has finally refused the warranty or culpably delayed it.
   6. In the case of goods that were sold under a factory or manufacturer's guarantee, the customer is obliged to contact the manufacturer, whose written address has been given to CS at the same time, to the manufacturer, whose address the customer will be given immediately upon request becomes. Only if the manufacturer refuses the guarantee is CS obliged to guarantee in compliance with the above provisions, whereby the customer must immediately present the letter of refusal from the manufacturer.

8. Retention of title

   1. CS retains ownership of all goods delivered by it or on its behalf from third parties to the customer or on his instructions to third parties (reserved goods) until all claims from the current or future business relationship with the customer have been completely fulfilled. Insofar as the realizable value of the collateral exceeds the claims to be secured by more than 10% or the nominal amount by more than 50%, CS will release the collateral to which it is entitled at the request of the purchaser, at its option.
   2. The customer may sell or process goods subject to retention of title in the ordinary course of business as long as he is not in default with one of CS's existing obligations. Pledging or transfer by way of security of reserved goods is not permitted. As a precaution, the customer assigns to CS any claims it may have against its customers or third parties regarding the goods subject to retention of title from the resale or another legal reason (insurance, unlawful act), regardless of the agreed gross purchase price (including VAT) whether the object of sale has been resold without or after processing. CS revocably authorizes him to collect the claims assigned to her for her account in her own name. This direct debit authorization can only be revoked if the customer does not properly meet his payment obligations.
   3. In the event of seizures, confiscation or other dispositions by third parties, the customer must notify CS immediately so that CS can assert its property rights. If the third party is unable to reimburse CS for the judicial or extrajudicial costs incurred in this connection, the purchaser is liable for this.
   4. If the orderer behaves contrary to the contract, in particular in the event of a delay in payment, CS is entitled to take it back after a reminder and the orderer is obliged to return it. In the event of a request for surrender due to reserved property, the customer already waives the right of ownership and allows the employees of CS to collect the reserved goods and to enter or drive on business premises and premises for this purpose. In such a withdrawal, there is only a withdrawal from the contract if this has been expressly declared in writing.

9. Design changes

   1. CS reserves the right to make design changes at any time; however, it is not obliged to make such changes to products that have already been delivered.

10. Confidentiality

    1. The sale of software products is subject to a license fee for unlimited use, unless otherwise agreed. The software products are the intellectual property of CS. The customer undertakes to use the products only in accordance with the agreement, in particular not to make any copies in order to pass them on to third parties against payment or free of charge. If third parties illegally appropriate the products, the customer must immediately notify CS of this and ensure that the original condition is restored, if this is possible and reasonable for him. The customer is not entitled to change or remove the company name or any other information provided by CS on a software product without their express written consent. Information about the software products must be kept secret unless it has to be made available when it is sold.
    2. CS reserves the property rights and copyrights to illustrations, drawings, calculations and other documents. They may not be made accessible to third parties. This applies in particular to such written documents, which are designated as "confidential". Before being passed on to third parties, the customer requires the express written consent of CS.
    3. The customer undertakes not to use the information provided by Cardioscan itself without prior written consent, to reproduce it for its own commercial purposes and / or to pass it on to third parties. The customer acknowledges that Cardioscan is the sole and unrestricted holder of the rights to the information and / or documents communicated. This obligation of the customer also applies if the intended contract does not come about. In the event that a contract is concluded, this obligation continues until 5 years after the contract has ended. If the customer violates this obligation, Cardioscan is entitled to claim damages in accordance with the statutory provisions.

11. Limitation of liability

    1. Claims for damages from positive breach of claim, from fault at the conclusion of the contract and from unlawful acts are excluded both against CS and against its vicarious agents, unless deliberate or grossly negligent acts are involved. This also applies to claims for damages due to non-fulfillment, but only insofar as the replacement of indirect or consequential damage is demanded, unless the liability is based on an assurance that is intended to protect the customer against the risk of such damage. The above limitations of liability do not apply to the culpable violation of essential contractual and cardinal obligations. Any liability is limited to the foreseeable and typical damage at the time the contract was concluded. A liability of CS according to the product liability law and other claims from producer liability remain unaffected.

12. Place of performance, place of jurisdiction, applicable law

    1. The place of fulfillment and jurisdiction for all liabilities from the contractual relationship with the customer is the location of the CS headquarters, provided the customer is a businessman or has no general place of jurisdiction in Germany. However, CS is also entitled to sue the customer at his place of residence.
    2. The law of the Federal Republic of Germany applies exclusively to the business relationship between CS and the customer.

13. Final provisions

    1. All changes, additions and cancellations of contracts between the parties must be in writing. Subsidiary agreements as well as the modification of this written form clause also require the written form.
    2. Should individual provisions of the contract including these "General Terms and Conditions" be ineffective, the effectiveness of the remaining provisions will not be affected. Instead, the ineffective provision will be replaced by a replacement regulation that comes as close as possible to the purpose of the ineffective provision. The same applies, if a contractual gap becomes apparent in the course of the business relationship.