General Terms and Conditions of Business
Valid as of May 1st, 2018
1.1 The following terms and conditions apply to all contractual relationships between Image Instruments GmbH (hereinafter “Licensor”) and its customers (hereinafter “Licensees”).
1.2 Conflicting general terms and conditions of the Licensees are not part of the contract, unless the Licensor has expressly agreed in writing to do so. However, individual agreements of the parties have in any case priority over the general terms and conditions.
1.3 In particular, the Licensor has the exploitation rights to the OnyxCeph³™ computer programs, including optional modules and associated utilities and system programs. Licensees wishes to use one or more of the foregoing Software products.
1.4 The Parties agree that the Software provided by the Licensor is a technical tool in accordance with its intended purpose and that the Licensees may never derive diagnostic and therapeutic decisions on a priority basis or solely on the basis of the information obtained using the Software.
1.5 If the Software provided by the Licensor is classified as a medical device in accordance with the legislation applicable to the Licensees, both contracting parties are legally obliged to distribute or use corresponding products with a declaration of conformity or certification.
2. Subject of the Contract
2.1 Subject of the contract is the provision of Software products of the Licensor for use by the Licensees on its own data processing system (hereinafter “DP unit”) as a standalone or client/server solution against payment of a one-time or annual license fee.
2.2 Subject of the contract is also maintenance and updating of the Software products by the Licensor as well as the provision of support for technical questions regarding installation, hardware replacement, troubleshooting and data protection against payment of an annual update fee.
2.3 Only if explicitly agreed in a separate support contract the subject of the contract is also the provision of user support against payment of an annual support fee.
2.4 In addition, if additionally agreed between the parties by the Licensor, services such as installation, training, consultancy, etc. may also be provided against payment of a fee specified in the valid price list.
3. Obligations of the Licensor
3.1 The Licensor provides the Licensees with the Software products specified in his order as an installation routine. At the option of the Licensor, this may be fulfilled either by transfer on data storage device or by electronic provision via the Internet (download). Correct installation of the Software is a prerequisite for activating the functionality specified in the order. If no appointment has been made, the activation code will be provided within max. 7 working days after receipt of the information to be provided for the proper execution of the contract by the Licensees.
3.2 The functionality of the Software products corresponds to the activated program version and related program descriptions provided by the Licensor.
3.3 The Licensor submits documents to the extent mentioned at the latest together with the Software activation. Instructions and manuals can also be provided electronically. In addition, a so-called online help is integrated in the program.
3.4 The Licensor grants the Licensees the non-exclusive and non-transferable right to use the Software products. This right applies to the use of the Software products by the Licensees on the contracted DP unit of the Licensees to the agreed extent. Rights and obligations of Licensor and Licensees are defined in the End User License Agreement, which Licensees must agree to prior to installation, purchase and activation. Insofar as the Licensees is provided with a test activation, only the limited scope of use stipulated in this regard applies. The test activation is for testing purposes only and does not entitle to use within the scope of the regular field of application.
4.1 The Licensor warrants that the Software has the features set forth in the Program Descriptions and is free of defects that may invalidate or diminish its value or suitability for the intended use.
4.2 The Licensees is informed that the correct system requirements apply to the correct use of the Software. For complex cases, the conditions are agreed between the parties. The same applies to the use of the Software in networks. Compliance with the system requirements is incumbent on the Licensees and does not entitle the holder to assert claims for defects in the event of a breach.
4.3 However, the parties are aware that it is fundamentally not possible with the state of the art to create Software in such a way that it works flawlessly in all applications and combinations. Subject of the contract is therefore expressly only the Software, which is specified in the sense of the program description and usable in the extent mentioned.
4.4 The warranty period is 24 months after activation of the Software. The Licensor will correct any errors in the Software products during this time.
5. Obligations of the Licensees
5.1 The Licensees will designate to the Licensor an employee who oversees the performance of the agreed services and who is the contact person for the technical licensing agent for the issues related to the handling.
5.2 The reproduction of the activated Software products, in whole or in part, on another computer system is not permitted without the express permission of the Licensor. This does not apply to the provision of backup copies by the Licensees to the extent necessary for the restoration in the event of the failure of the computer system. The backup copies may only be used by the Licensees if the original program can no longer be used as a result of damage or destruction.
5.3 Licensees may not distribute Software products to third parties or make them available in any other form without Licensor’s consent.
5.4 Full or partial retranslation of the Software into the form of a source program is not permitted.
6.1 The fee for the right to use the Software products (license fee) is paid in the absence of any other regulation of the contractual partners by payment of a one-time or annual license fee.
6.2 The remuneration for the regular provision of updates and upgrades as well as support for technical questions regarding installation, hardware replacement, troubleshooting and data backup takes place upon payment of an annual update fee. Regular telephone costs of the respective telephone provider of the Licensees may be charged separately. The provision of updates via the internet is free of charge. Submitting updates on data storage devices will incur additional charges.
6.3 The remuneration for the provision of support for use questions for the application takes place, if agreed, against payment of an annual support fee. Regular telephone costs of the respective telephone provider of the Licensees may be charged separately.
6.4 The compensation of special services such as installations, training, consultations, which the Licensor provides on request of the Licensees according to a separate order, takes place, if agreed, against payment of a fee according to the valid price list.
6.5 The remuneration according to para. 6.1 and 6.2 are valid for at least 12 months from activation. Increases must be notified to Licensees at least three months prior to their entry into force. They entitle the Licensees to terminate the contract with one month’s notice from the effective date of the increase (special right of termination of the Licensees). Modified remuneration is valid for at least 12 months from the date of entry into force of the amend.
6.6 The above-mentioned fees are in each case plus the statutory value added tax in the amount applicable to the Licensees. Within the EU, the so-called MOSS procedure is applied. Invoices are sent exclusively electronically.
7. Execution and Duration of the Support Contract
7.1. The Licensor undertakes to ensure that the house rules and safety regulations of the Licensees are adhered to by his employees. Incidentally, with regard to data protection and data security, the provisions of sections 8.1., 8.2 apply. and 13.1. and 13.2. of these provisions.
7.2. The term of a support contract is at least 24 months and begins with the agreed start of the contract. The contract can be terminated in writing at the end of the minimum contract term, subject to a notice period of three months. The term is extended by a further 12 months, unless the contract is terminated in writing at least three months before the end of the (contract) year.
7.3. The right of extraordinary termination for cause remains unaffected. An important reason for a termination by the Licensor is especially if
the Licensees is in default of payment of the fee due for two consecutive months,
the opening of insolvency proceedings has been requested for the assets of the Licensees,
the Licensees otherwise seriously violates his contractual obligations.
8. Liability, Insurance
8.1 For the recoverability of data after Software failures, the Licensor is only liable if the data protection provided by the Licensees has been duly backed up.
8.2 The Licensees is therefore recommended in his own interest for regular (as a rule, daily) data backup.
8.3 The Licensor expressly points out that the Licensor’s programs are intended for the purpose of administering and measuring two-dimensional and three-dimensional images by professionally qualified personnel in dental applications and diagnostic and subsequent therapeutic statements may not be derived primarily or exclusively from the measurement results and that this medical purpose presupposes the proper registration and activation of the Software by the user.
Unregistered or registered trial versions of the Software are only for familiarization with the use and not the use according to the purpose mentioned above. A liability or guarantee for the accuracy and completeness of the delivered calculated results of analyzes and evaluations will not be accepted.
8.4 The Licensor is fully liable for damages resulting from injury to life, limb or health, which are based on a culpable breach of duty by the Licensor or a legal representative of the Licensor. Incidentally, the liability for other damages is limited to the grossly negligent or intentional breach of duty of the Licensor or his legal representative.
8.5 Furthermore, the Licensor is not liable for:
expenses related to any necessary updates, modification of operating systems, standard software or hardware – even after changes to the programs or the data structure of the Licensor’s Software,
the operability of other programs with the Licensor’s Software,
expenses incurred by Licensees following power outages or hardware failure.
9. Property Right Infringements
9.1 In the case of infringement of property rights of third parties, the Licensor may make changes which, while safeguarding the interests of the Licensees, ensure that an infringement of property rights no longer exists or acquire the rights of use required for the Licensees.
9.2 Upon termination of the contract, the Licensees is obliged to return all data carriers and user documentation provided to him in fulfillment of the contract if the parties have not agreed on a permanent assignment. In addition, the Licensees undertakes in the case of termination of the contract to completely delete the Licensed Software, as far as this was agreed upon conclusion of the contract.
10. Protection of the Licensed Material
10.1 The Licensees undertakes to keep unchanged the proprietary notices contained in the Licensed Material, such as copyright notices and other legal reservations, as well as to reproduce in full or in part all copies of machine-readable Licensed Material produced by the Licensees.
10.2 The Licensees undertakes to keep the Software secure in such a way that copying of the program by unauthorized third parties is excluded as far as possible. On request, the Licensees must provide information on the number of copies and their installation.
10.3. The Licensees undertakes not to make the Software available to third parties, either in the original or in the form of complete or partial copies, without the express written consent of the Licensor. This also applies to the case of a complete or partial dissolution of the practice, group practice, practice group or similar. Third parties are not employees of the Licensees or other persons as long as they stay with the Licensees for the contractual use of the Software.
10.4. The Licensees is responsible for the complete destruction of Licensor Software stored in it prior to the destruction, sale or otherwise transfer of machine-readable media, data storage devices or data processing equipment.
11. Modifications / Ineffective Provisions
11.1 Changes and additions to the contractual agreements between the parties must be made in writing.
11.2 If individual provisions are legally ineffective, the contract between the parties remains binding in its other parts. If a provision should be wholly or partially ineffective, then the contracting parties shall immediately strive to achieve the economic success sought by the ineffective provision in another, legally permissible manner.
12. Jurisdiction / Place of Fulfillment / Applicable Law
12.1 The exclusive place of jurisdiction for disputes arising from the performance of this contract and the place of fulfillment for deliveries and services is the registered office of the Licensor, provided that the Licensees is a registered trader, a legal entity under public law or a special fund under public law and is acting as a commercial or self-employed professional.
12.2 It is only the law of the Federal Republic of Germany. Contract language is German.
13. Data Protection
13.1. The parties are aware that the information collected by the Licensees with the help of the Software is subject to the applicable laws and regulations in the respective country for data protection, in particular for the protection of personal data and it is the responsibility of the Licensees to implement the associated obligations. The Licensor hereby supports the Licensees by providing suitable functions within the Software.
13.2 In the case of Licensor’s support measures commissioned by the Licensees, in particular in connection with Software maintenance, troubleshooting or any other desired or required technical support measures, the Licensees must ensure that the Licensor is not granted access to personal data collected in the Software. The Software provides suitable functions for this purpose.
13.3 In the case of Licensor’s support measures commissioned by the Licensees, in particular in connection with Software maintenance, troubleshooting or any other desired or required technical support measures, the Licensees must ensure that the Licensor is not granted access to personal data collected in the Software. The Software provides suitable functions for this purpose. If, in the exceptional case of support measures in exceptional cases, the Licensees nevertheless gains access to personal data, this does not constitute a contractual relationship between the Licensees and the Licensor in terms of order data processing, as there is neither an offer from the Licensor nor a commission from the Licensees. Rather, in such an exceptional case, the regulations of the data protection confidentiality agreement provided by the Licensor apply.