The following general terms and conditions apply to all contracts, deliveries, performances, orders and contracts, also from future business transactions of the company MHGS and its contracting partners (in the following also named "customers") for the areas of Software and Web development, DICOM Performances, and Consulting and Training.
|Offers, Deals and Prices
| All offers are not-binding and without obligations, they are merely prompts on the submission of offers.
|Authoritatively for the content of the contract are the confirmation of MHGS and these general terms and conditions. From this divergent agreements always need an explicit written confirmation of MHGS.
| Divergent regulations, in particular purchase conditions of the customers, are not accepted, even if they are not expressly contradicted. If these general terms and conditions collide with other conditions, not the common civil and commercial laws will apply, but these general terms and conditions, unless it concerns compelling lawful regulations.
| The prices named by MHGS are authoritative plus the legal value added tax (VAT) valid by delivery.
| The prices count from residence of MHGS.
| The expenses for packaging and transport are borne by the customer.
| Delivery time, Delivery and Danger Crossing
| Stated delivery times begin with sending the purchase or, however, not before entrance of an agreed deposit.
| The delivery date is kept if up to its expiry the object of delivery left the house of MHGS or the dispatch readiness is announced.
|If the delivery owed by MHGS is delaid by unpredictable blameless circumstances (e.g. operational disturbances, transport obstacles, official measures - in each case also with presuppliers - as well as not timely selfsupply), so MHGS is entitled to withdraw all or part from the contract or to push out the delivery at the duration of the impediment after choice. With excess of the originally agreed delivery time during more than 6 weeks and delay, the customer is also entitled to withdraw from the contract. Compensation claims are excluded.
| A breach of contract culpable for the case to the customer being entitled claim to damage substitute is delimited to the cases in which the customer into expectation of the fulfilment of the contract closed with MHGS has come the own performance liabilities towards third parties and out of this for the case of the delay or the impossibility damage claims for damages of the third parties against the customers have originated. Nevertheless, in any case the liability limitation of par. 4 of these general terms and conditions will apply.
|The deliveries take place principally from residence of MHGS. The danger decline or the damage of the subject matters of the contract goes over at the time on the customers in which MHGS the subject matters of the contract have passed to a forwarding agent or carrier, at the latest however, with abandonment of the house; this applies also if MHGS has taken over the delivery of the subject matters of the contract with the customer by request of the customers by a forwarding agent or by the own staff. If the product is ready for sending and is the sending or the acceptance delayed for reasons of which MHGS is not responsible, the danger goes over in report of the dispatch readiness on the customers. By promotion by the own staff MHGS is liable only for coarse fault of its employees.
| Partial deliveries are allowed.
| The licensee has the right, if required (e.g. data loss)= to request a new program version. For this only a fee of 25.00 EUR is charged plus dispatch business expenses.
|If the customer omits the communication of a new address, statements, communications and program deliveries count towards him in each case with the submission to the post office to the last announced address. The transport risk lies with the customer. This also applies to occured delivery delays which are caused by strikes. MHGS reserves itself claims of recourse by offense against this agreement.
| It is pointed out to the fact that it is not possible to develop software so that it is faultless for all application conditions. Under this restriction MHGS performs the guarantee that software is usable within the meaning of the valid program description - at the time of the delivery to the customer - and shows the properties assured there. An unimportant decrease of the usefulness remains except consideration.
|MHGS guarantees that the software or files respectively are recorded on an examined data carrier properly. Excluded from this are preinstalled programs.
|If software turns out for the purposes of par. 3.1 to be not useful or for the purposes of par. 3.2 to be faulty, a taking back of the supplied software by MHGS shall occur and an exchange against new software of identical title shall occur within a 6-month guarantee term which begins with the handing over of the software, . If this software also turns out for the purposes of par 3.1 not to be useful or for the purposes of par. 3.2 to be faulty and MHGS does not manage to produce the usefulness with adequate expenditure and within an adequate period, the customer or user after his choice has the right on decrease of the purchase price or return of the software and restitution of the purchase price.
|A further guarantee duty does not exist. In particular no guarantee insists for the fact that software satisfies the special requirements of the customer or user. The customer bears the sole responsibility for choice, installation and use as well as for the intended results. There is further no guarantee for versions of software, worked on or changed by the customer, until it is proved that existing faults stand in no connection with the changes or adaptations.
|Recognizable defects must be reprimanded immediately after delivery by the customer within 10 days in writing and the appearance described in detail. Hidden defects can be taken into consideration within the lawful guarantee only if they are indicated immediately after discovery likewise in writing and the appearance described in detail. The date of the delivery and the date of the entrance of the deficiency denouncement count for the calculation of the period.
| When delivering of programs, that are not specially built for the customers (standard software), as well as from data carriers MHGS is obliged with entitled and timely denouncements after its choice to the finishing touches or replacement delivery - against return of the complained subject matters of the contract. The customer can ask only for failed finishing touches or replacement delivery for guarantee by lowering of the paymentor cancellation of the contract after his choice.
|An own removal of the defect by the customers is accepted by MHGS only if its basic responsibility has expressly been agreed for the defect before, as well as the height of the discount of the purchase price desired by the customer.
|The warranty period begins for standard and adaptation-software, as well as for data carriers with files when delivering the subject matters of the contract.
|Guarantee claims are cancelled if the customer or third party carry out changes or other interventions in the subject matters of the contract. Also the guarantee is excluded for damages and disturbances which are not to be gone back on operating error or improper use, unusual demand and extremely long use, insufficient maintenance, use of auxiliary facilities, fittings, or consumption parts, that are not recommended by the manufacturer or MHGS, on data transfer lines and their inlets, as well as on accident, water damages of all kind, fires, short circuit, bolt of lightning and other cases of higher violence.
| The preceding sales regulate in conclusion the guarantee and exclude further guarantee claims as well as damage claims for damages from positive breach of contract, also for consequential damages - until certain properties have been assured for certifying against this-, as well as in legally protected rights of third parties to damages resulted including lossed profit from, unless intentional or roughly negligent behavior of our employees or intentional behavior of our other fulfilment assistants exists.
| For damages because of legal defects and absence of assured properties MHGS is liable unrestrictedly. The liability for initial incapacity is delimited to the 5-fold of the purchase price / license price or production price as well as to such damages on whose origin must be reckoned typically within the scope of a software cession, provided that MHGS does not prove that a damage or a depreciation did not originate at all or is substantially less than the flatrate is.
| For the rest MHGS is liable unrestrictedly only for intention and coarse negligence also of its lawful representatives and employees. MHGS is liable for the fault of further fulfilment assistants only in the circumference of the liability for initial incapacity after the previous paragraph.
| For simple negligence MHGS is liable only, provided that a duty is violated whose observance is for the reaching of the contract purpose of special importance (cardinal's duty).
| The liability for data loss by MHGS must be expressly arranged in the area of data protection of a contract. With non-arrangement any liability for data loss counts as excluded. With arranged data protection by MHGS the liability for data loss is limited to the typical recovery expenditure which would have entered by regular backup suitable to dangers (3-generations system and month storage). Nevertheless, MHGS is not liable for the re-procurement of data if their loss was caused by viruses, Trojan horses etc. which come through network nodes of telecommunication service providers or by using programs or files, that were not checked by MHGS, to contact with the software.
|The preceding regulations also apply in favour of the employees of MHGS.
|A possible liability according to the product liability law remains untouched from this.
|Copyright of Software
| The customer may copy the supplied software, as far as the respective duplication is necessary for the use of the software. To the necessary duplications count the installation of the software from the original data carrier on the bulk storage of the used hardware as well as the loading of the software to the working memory.
|Besides, the customer can carry out a duplication for backup purposes. Nevertheless, it may be produced basically only one single backup copy and be kept. This backup copy is to be marked as such of the supplied software
|If for reasons of data security or securing of a quick reactivation of the computer system after a complete blackout, the regular backup of the complete data including the used software, is essential, the customer may produce backup copies in the compellingly necessary number. The concerning data carriers are to be marked accordingly. The backup copies may be used only for purely archiving purposes.
|The customer is obliged to prevent the unauthorized access of third parties to the software as well as the documentation by suitable precautions. The supplied original data carriers as well as the backup copies are to be kept in place, that is protected against the unauthorized access of third parties. The employees of the customer are to be pointed clearly to the observance of the present conditions of the contract as well as the regulations of the copyright.
|The customer must not produce further duplications, which also include the output of the program code on a printer as well as photo-copying the manual. If necessary additional manuals, required for employees, are to be obtained from the supplier.
|Multiple Usage and Network Use
| The customer may use the software on a hardware available to him. If the customer changes the hardware, he must delete the software from the hardware used up to now.
|A simultaneous storing, holdsing in stock or using on more than only one hardware is inadmissibe. If the customer wants to use the software on several hardware configurations at the same time, possibly by several employees, he must acquire a suitable number of program packages.
|The operation of the supplied software within a network or an other multiple-station computer systems is inadmissible, provided that thus the possibility of simultaneous multiple usage of the program is created. If the customer wants to use the software within a network or other multiple-stations computer systems, he must prevent a simultaneous multiple usage by access protection mechanisms or pay a special network fee, whose height depends on the number of the users connected to the computer system, to MHGS. The operation in the network is allowed only after the entire payment of the network fee.
|Passing on of Software
| The customer is entitled to deliver software in the original state and as a whole together with a copy of this contract to the subsequent user. This permission does not extend to passing on of copies or partial copies of software and also not on passing on of changed or edited versions or of produced copies or partial copies.
|With the delivery of software the permission on usage goes over to the subsequent user who thus replaces -for the purposes of this contract- the customers. At the same time the permission of the customer expires to the usage.
| With the passing on the customer has to delete all copies and partial copies of software as well as modified or edited versions and copies and partial copies of these immediately and completely or to destroy them in other manner. This also applies to all backup copies.
|The paragraphs from 5.3.1 to 5.3.3 also apply if the passing on consists of an occasional surrender. The renting / licensing of software or from parts of the software is excluded without preceding written consent of MHGS.
|For the passing on of software by the respective user to the following user, this one replaces the preceding user.
|All further rights for the usage and utilization of the objects of the agreement are reserved. In particular neither the customer nor the following users have the right to spread duplicated pieces of software in original version or in modified or edited versions, even if such duplicated pieces are restricted on essential parts of the modified versions. The exploitation rights of the customer on the programs which were developed or run using the software - regarding the regulations -, and on all other results of finished works which were constructed using the software, remain untouched.
|After availability of a new version of the software the customer has the right to exchange the software with suitable objects of the contract of the new version for an update price listed by MHGS. The exchange must include the software as a whole as it was acquired by the customer. At the date of the exchange the permission of the customer expires on the usage of the respective old program states of the software.
| In addition the respective terms and conditions or agreements of the contract of the manufacturers or supplier of software and hardware apply.
|Installation of Software by MHGS
|If MHGS carries out the installation of software - on account of separate order -, operation tests are carried out after the installation. This includes checking and completeness control of the software and documentation, tests of average performance with standard and adaptation-software as well as tests of the warm restart free of disturbance of the programs after an abnormal termination
|A renunciation of the tests or of single test phases by the customers falls in his risk range and does not entitle to a refusal to inspect or accept.
|If the customer delays the operation tests MHGS can put a term of 7 days to the customer within which the tests are to be carried out. If the customer is quiet at this request, this counts as an approval of the installation of the software.
|Unless agreed otherwise the supplied products are to be paid immediately without reduction in cash.
|Possibly granted discount payment reductions are inadmissible if more debts exist of a previous bill. Incoming payments are always credited on the older debt. Discount payment reductions are granted only on the gross amount arising after reduction of possible credits.
| The acceptance of drafts, which MHGS principally rejects, always needs a special arrangement. The customer is chargeed on all expenses, that originate with the collection of drafts or checks, or other costs. Such expenses and costs are due immediately.
|A payment counts only as commited when MHGS can dispose of it finally. Payments by crossed check count only when the final credit on the account of MHGS is performed.
|The customer is only entitled to the accumulation, retainment or decrease of the price, even if deficinecy denouncements or counterclaims are asserted, if the counterclaims were been ascertained by a German court legally or are indisputable.
|The customer ows interests on delays at the rate of 8 percent above the respective base interest rate of the European Central Bank, provided that the customer does not prove a lower or MHGS a higher damage.
|All bills of debt ore owed in Euros.
|If the customer does not follow - in spite of reminder - to his bills of debt duties or if an essential property deterioration exists with the customer, or lacking bonity existed when the contract was concluded, which was not known by MHGS and could not be known, but for reasons MHGS is not answerable for, MHGS is entitled to maturize the complete residual debt, even if already drafts or checks were accepted. Moreover, in this case MHGS is entitled to require pre-payment or margin, and to refuse the fulfilment of its obligations up to pre-payment or margin. If this demand is not fulfilled within an adequate term set by MHGS, MHGS is entitled to withdraw from the contract and / or to request compensation because of non-fulfillment. With payment setting or insolvence of the customers the requirement of setting of an extendet term is cancelled.
|Retention of Title
The supplied objects of the agreement remain up to payment of the contract price and erasure of all demands existing from the business connection, as well as the demands still originating in connection with the objects of the agreement as a reservation product the property of MHGS. The setting of single demands in a current bill calculation or the balance drawing and their recognition do not cancel the retention of title.
As far as MHGS takes back objects of the agreement whose return MHGS is not answerable for, a credit occurs only for flawless objects of the agreement at the rate of 75% of the invoice amount, unless the customer proves that a damage
or a depreciation did not originate at all or is substantially lower than the flatrate.
Program extensions occur according to demand with individual conditions. The licensee has no claim to the free supply of updates, provided that these do not serve the mere error removal (Bug-fixes). A modification of the programs in the organizational structure and in the program flow lies in the judgement of MHGS. Claims on bug-fixes expire 3 months after terminating the distribution of the acquired software.
If offending against the regulations of these terms and conditions, regardless of any compensation claims, a contract punishment at the rate of 10,000 EUR (in words: ten thousand) for any case of the offense, becomes due to the immediate payment to MHGS.
|Sole place of fulfilment for all payments and deliveries is the residence of MHGS.
|Exclusive legal venue is the residence of MHGS for all disputes that arise from the contractual relationship directly or indirectly. Besides, MHGS is entitled to sue the customers in his general legal venue.
|The customer knows that in connection with contract negotiations and business transactions with MHGS person related data are stored and processed. The customer renounces a notification after the BDSG.
| For the business relations and the whole complete legal relations between the parties exclusively the law of the Federal Republic of Germany applies excluding the UN-purchase law (CISG).
|If any regulation in these terms and conditions or within the scope of further agreements should be or become ineffective the effectiveness of all remaining regulations or agreements is not touched through this.
|As far as in ineffective clauses contain an effective, adequate part, this one shall be maintained. By now the parties oblige to consent on a substituting regulation which comes next to the economic outcome of the left-out clause.