General Terms and Conditions
General Terms and Conditions
for orangedental – GmbH & Co. KG
I. Validity
The terms and conditions listed here apply to business dealings with companies, legal entities or government-owned funds under public law and corresponding foreign contractual partners. They apply for all deliveries and services of the company orangedental GmbH & Co. KG (hereinafter orangedental), insofar as other provisions are not expressly agreed in individual written contracts. Terms and conditions of the contracting party (hereinafter Buyer) that are contradictory or divergent from our conditions do not apply, except when we have agreed to them individually, expressly and in writing. This also applies if we, in awareness of the fact that the Buyer's terms and conditions are contradictory to or divergent from our own, approve orders or services without reservation.
II. Conclusion of contract
1. Offers from orangedental are always subject to change.
2. Conclusions of contracts, supplements thereto, assurances and other agreements must be in writing to be valid.
3. The documents submitted by orangedental in its offer, such as illustrations, drawings, weight and mass data are only approximations unless expressly designated as binding
III. Delivery and performance period
The deadlines and time frames stated by orangedental are nonbinding, unless stated otherwise in writing.
IV. Shipping and transfer of perils
1. The risk of loss and/or damage to the goods is transferred to the Buyer when the shipment leaves the warehouse. The Buyer accepts the risks of shipping; the cost of shipping insurance is borne exclusively by the Buyer and is only provided under special agreement. The goods are always packaged with all due care. Moreover, orangedental selects the mode of transport, when in doubt, according to the lowest price.
2. If the shipment is delayed at the behest of the Buyer or for reasons advanced by him, the risk for the time of the delay is transferred to the Buyer. In this case, the shipment continues to be designated ready for shipment.
3. If, by fault of orangedental, a delivery time is not met, the Buyer has the right to withdraw from the contract only after an appropriate grace period is applied, during which time delivery is still not successfully completed.
4. orangedental may make partial deliveries.
V. Title retention
1. The delivered goods remain the property of orangedental until payment for them is received.
2. The buyer may not pledge the goods under title retention as collateral, nor may he transfer them as security. If the goods are pledged as collateral or confiscated or otherwise made available to a third party, the Buyer must indicate that he does not own the goods and inform orangedental immediately. The costs which orangedental incurs through intervention shall be borne by the Buyer.
3. orangedental has the right, at the cost of the buyer, to insure the delivered goods under title retention against fire, water and other damages, provided the Buyer cannot prove that he has purchased such insurance himself and transferred the right to claim to orangedental.
4. If the Buyer falls into arrears or becomes unable to pay, orangedental may demand the return of goods in its property. To this purpose, the Buyer grants orangedental herewith irrevocably the right to access his facilities or premises and to collect the delivered goods.
5. If goods under title retention must be collected by orangedental, the costs are borne by the Buyer. Subject to addition damages, orangedental has the right to charge 15% of the proceeds from sale, unless the Buyer can prove that orangedental incurred no damages or significantly lower damages than the fee.
VI. Payments
1. Invoices are payable in full within 30 days of receipt. For payments within 8 days of invoice receipt, the Buyer can apply a 2% discount.
2. Differing payment conditions must be agreed in writing.
3. orangedental has the right to allocate payments to the Buyer's oldest outstanding invoice from previous business dealings.
4. If, after concluding a contract, orangedental recognizes a deterioration of the Buyer's financial circumstances, or if the Buyer falls into arrears, orangedental has the right to demand advance payment or security for open deliveries or services; if advance payment and/or security is/are not received after the appropriate grace period has expired, orangedental can withdraw from the contract entirely or in part irrespective of other rights.
5. orangedental expressly reserves the right to refuse checks or bills of exchange. Acceptance always occurs exclusively at time of settlement. Discount and bill of exchange charges are charged to the Buyer and are immediately payable.
6. For late payments, the Buyer must pay orangedental a late payment charge of 8 percentage points above the prime lending rate on the day payment is due. orangedental reserves the right to apply a demonstrably higher interest claim.
7. The Buyer only has the right to withhold payments or to offset with possible counterclaims, if these claims are undisputed or have been legally determined or are based on gross violations of contract on the side of orangedental.
VII. Warranty
1. The Buyer is obligated to inspect goods for obvious defects, for completeness and especially for correctness of type and quantity without delay and no later than 10 days after delivery, and to inform orangedental within the same deadline about any deficiencies discovered. The acceptance of the notice of defect by orangedental is decisive. Concealed defects must be announced to orangedental in writing and without delay, no later than 2 weeks after their discovery.
2. If the Buyer fails to notify orangedental according to Point 1., the delivered goods are considered approved with due regard for the defect in question.
3. For defects covered by warrantee, orangedental has the right to make repairs or to replace the defective part or the supplied item in its entirety as it sees fit at no cost to the Buyer. The Buyer shall grant orangedental the necessary time and opportunity to repair or replace the item in question.
4. Should orangedental replace parts, the parts replaced become the property of orangedental.
5. If the repair or replacement of a defective item covered by the warrantee fails, the Buyer can choose to withdraw from the contract or to demand a corresponding price reduction.
6. Warrantee claims only apply to the Buyer and are nontransferable.
7. The limitation period begins with delivery of goods and ends one year thereafter. The limitation period does not restart with rectification of defects or replacement delivery.
8. Section 478 f. of the German Civil Code is unaffected.
9. orangedental accepts no liability for defects or their consequences which occur or could occur due to natural post-delivery wear and tear; inappropriate handling, cleaning or repairs; noncompliance with maintenance, operating or connection guidelines; corrosion; contaminants in the air supply; or chemical or electrical influences, that are unusual or not permitted by factory specifications.
VIII. Liability
1. The Buyer is only entitled to compensation for damages, if the damages are caused by willful intent or gross negligence by orangedental, its legal representatives or its employees. In the case of gross misconduct by employees as well as of neglect of obligations, whose fulfillment is necessary for the proper execution of the contact and in whose compliance the Buyer may regularly trust (so-called material contractual obligations), orangedental only accepts liability for the typical, foreseeable damages.
2. The abovementioned liability limitations do not apply to injuries to life, limb or health.
3. Liability according to the provisions of the Product Liability Act and to other obligatory legal liability legislation as well as to any guarantee issued remains unaffected.
IX. Intellectual property rights
1. orangedental only transfers to the Buyer the use rights to the programs and documentation delivered to him.
2. An additional transfer of the software, including hardware, may only occur with the prior consent of orangedental.
3. For a further transfer to persons who are active in the medical field (e.g., when the practice is sold to another doctor), consent may be anticipated. A transfer to competitors of orangedental is not permitted.
4. In the case of a culpable violation of the aforementioned conditions, the Buyer shall pay a contractual penalty of €20,000 to orangedental for each violation. orangedental reserves the right to assert additional claims and the Buyer has the right to prove that a smaller loss occurred.
5. Copies can only be made for own use. Insofar as originals bear a copyright notice, this must also be fixed by the Buyer to the copies.
X. Additional services
Should a software maintenance contract be concluded, the following supplementary conditions apply:
1. The software maintenance contract is concluded for an unspecified period of time. The term of the contract begins with the month in which the program is delivered to the Buyer. It can be terminated by either party with a three month cancelation period at the end of each calendar year. orangedental has the right to terminate the contract early without observing the cancellation period, if a material reason exists, especially if the Buyer falls into arrears by more than one monthly payment for updates and/or the Buyer makes changes to the program without prior consent. The right of orangedental to assert claims for damages remains unaffected hereby.
2. Changes to the software programs supplied, which become necessary due to legislative changes within the Federal Republic of Germany, will be made by orangedental within an appropriate period of time and integrated into the software programs. An appropriate period of time means a duration of up to eight weeks after the change is announced. In addition, the Buyer receives the improved versions of the program or program parts, provided these are based on the program or program parts previously obtained by the Buyer. The program changes undertaken are made available to the Buyer in the form of diskettes, CD-ROM, a download from the orangedental website (http://www.orangedental.de) or by reloading onto the hard drive. For any necessary reloading onto the hard drive, the Buyer shall pay the equivalent of a monthly update fee depending on actual expenditures, but not exceeding EUR 800.00 plus VAT.
3. The Buyer ensures at his own expense, that his computer corresponds to the requirements of the updated program.
4. The agreed fee for software maintenance plus VAT shall be charged to the Buyer's bank account on the 15th of each month. The Buyer shall provide bank collection authorization for this purpose. If the bank account of the Buyer does not have the funds required to cover the charge, orangedental is released of the obligation to update the software until all due fees are paid. orangedental has the right to increase the fees for updating the software in order to keep pace with general price increases; it must announce such fee increases two months in advance.
XI. Place of Performance, Place of Jurisdiction and Applicable Law
1. The place of performance for both parties is Biberach/Riß.
2. The exclusive place of jurisdiction for all disputes arising from the contractual relationship including bill of exchange and check proceedings is the court responsible for Biberach/Riß; orangedental, however, has the right to bring action against the Buyer in any court of law.
3. The law of the Federal Republic of Germany applies under exclusion of the German conflict of laws, insofar as it refers to foreign legal systems and under exclusion of the uniform sales law of the UN (CISG) as well as other international conventions governing the sale of goods.
XII. Escape clause
If one or more of the provisions of the contract are or become invalid, the validity of the remaining provisions is unaffected hereby. The parties will conduct negotiations in good faith in order to replace the invalid provisions with valid ones that come as close as possible to fulfilling the business purposes of the invalid provisions.
(As of June 2011)