General sales and terms and conditions of DDHT GmbH & Co. KG for the sale of CaviTAU® medical devices
The operator of the online shop and your contractual partner is Digital Dental & Healthcare Technology GmbH & Co. KG
Tatzelwurmweg 5, D-82031 Grünwald Managing Director Dr. Dr. (Phd-UCN) Johann Lechner, Robert Huber
Commercial register district court Munich HRB 206425
VAT identification number DE 29 09 22 069
Telephone: +49 (0) 89 - 244 15 44 60
Fax: +49 (0) 89 - 244 15 44 69
Website: www.cavitau.de / www.shop.cavitau.de
- DDHT GmbH is hereinafter referred to as "DDHT", "we" or "us" -
§ 1 scope
(1) These General Terms and Conditions of Sale (hereinafter: “GTC”) apply to all of our business relationships with our customers (“Buyers”). Our offer is aimed exclusively at entrepreneurs within the meaning of Section 14 of the German Civil Code (such as dentists, dental professional associations, clinics), legal entities under public law or a special fund under public law. We do not conclude contracts with consumers within the meaning of § 13 BGB.
(2) These General Terms and Conditions apply in particular to contracts for the sale and / or delivery of movable goods (“goods”), regardless of whether we manufacture the goods ourselves or buy them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the terms and conditions in the version valid at the time of the order of the buyer or in any case in the version last communicated to him as a framework agreement also apply to similar future contracts without us having to refer to them again in each individual case.
(3) Changes to these terms and conditions will be communicated to the buyers in writing, by fax or by email. If the buyers do not object to a change within four weeks after receipt of the notification, the changes are deemed to have been approved by the buyer. Buyers are separately informed of a right of objection and the legal consequences of silence if these terms and conditions change.
(4) Our terms and conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer only become part of the contract if and to the extent that we have expressly agreed to their validity. This consent requirement applies in any case, for example, even if we conclude a contract knowing the terms and conditions of the buyer or carry out the delivery to him without reservation.
(5) Individual agreements made with the buyer in individual cases (including side agreements, additions and changes) always take precedence over these terms and conditions. Subject to evidence to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.
(6) Legally relevant declarations and notifications by the buyer in relation to the contract (e.g. setting a deadline, notification of defects, withdrawal or reduction) must be made in writing, ie in writing or text form (e.g. letter, email, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declarant, remain unaffected.
(7) References to the validity of legal regulations within the framework of these terms and conditions are only of clarification. Therefore, even without such a clarification, the statutory provisions apply, unless they are directly changed or expressly excluded in these terms and conditions.
§ 2 Formation of a contract through the online shop
§§ 2.1 Registration as a user
(1) Before you place your first order in our online shop, you must register under the "Register" button. The data required for registration are to be provided completely and truthfully by the buyer. When registering, the buyer enters an email address as a user name and a password. The username must not violate the rights of third parties, other naming and trademark rights or common decency. The buyer is obliged to keep the password secret and not to inform this third party. Admission to our trading system is only possible for entrepreneurs within the meaning of § 14 BGB. We are entitled to request evidence from the buyer that he is an entrepreneur within the meaning of § 14 BGB.
(2) The medical products, products and the associated training services offered on our website may only be used for (dental) medical purposes by members of the medical and dental health professions and, as far as legally permissible, by (dental) medical assistant professions in compliance with the statutory provisions will.
(3) Apart from the approval of these terms and conditions for goods to be completed, registration for the buyer is not associated with any obligations. The buyer can delete his entry at any time on the website "www.cavitau.de" under "My account". After deleting the account, all data stored in the account will be deleted.
(4) The buyer is responsible for updating his personal data in his account under "My account" and for checking that the entries he has made are correct.
§ 2.2 Conclusion of contract
The following rules apply to ordering our products:
(1) Our product and service offers are subject to change and non-binding. Smaller deviations and technical changes compared to our pictures or descriptions are possible. This also applies if we have given the buyer online catalogs, technical documentation (e.g. drawings, plans), other product descriptions or documents in electronic form, in which we reserve the property rights and copyrights. We do not submit a contract offer with the presentation and application of individual products and services; it is rather an invitation to the buyer to submit an offer to conclude a purchase contract (so-called invitatio ad offerendum).
(2) After creating a customer account, the buyer can select products in our online shop by placing them in a digital shopping cart by clicking on the "ADD TO CART" button. To complete the ordering process, the customer goes to the "SHOPPING CART" and is guided from there through the further ordering process. After selecting the item and specifying all the necessary order and address data, the buyer can complete the order process by pressing the "GO TO CASH REGISTER" button. In the next step, the buyer sees an overview in which the items placed in the shopping cart with the price including the legally applicable sales tax and any additional costs (e.g. shipping costs) and the selected payment method are summarized. Up to this point, the buyer can correct entries or refrain from submitting an offer. In this step, the buyer can also select a billing and delivery address and the payment method. By clicking the button "Order with costs", the buyer submits a binding offer for the products contained in the shopping cart.
(3) The completion of the ordering process is confirmed immediately at the end of the ordering process by an advertisement on the website. We save the data of the buyer and the order and immediately send the buyer an order confirmation to the email address provided by the buyer ("confirmation of receipt"). Sending the confirmation of receipt does not constitute acceptance of the order by us, but only confirms receipt of the buyer's offer. The confirmation of receipt can be saved in a reproducible form. If the products ordered by the buyer are no longer in stock or the contract is not accepted for other reasons, we will inform the buyer of this via email. A contract is not concluded in this case.
(4) A purchase contract between the buyer and us only comes into existence when we accept the order after completing the ordering process on the website by means of a separate e-mail to the buyer and thereby confirm the conclusion of the contract ("order acceptance"). Upon receipt of the order acceptance, a contract is concluded based on these terms and conditions for the products and services selected by the buyer.
(5) For the processing of the order, we use, save and process the data provided by the buyer in the ordering process.
§ 2.3 Special features when buying CaviTAU starter kits - prior product training required
(1) When purchasing "CaviTAU Starter KITs" (CaviTAU Starter KIT Light / CaviTAU Starter KIT PRO / CaviTAU Starter KIT Pro +), handing over or dispatching the Starter KIT to the buyer before prior instruction and product training by qualified specialist staff is excluded.
(2) If a contract for a "CaviTau Starter KIT" (CaviTAU Starter KIT Light / CaviTAU Starter KIT PRO / CaviTAU Starter KIT Pro +) is concluded between the buyer and us, the buyer must use and use the aforementioned products for the first time instruction and training of the CaviTAU Starter KIT are carried out by our qualified specialists in accordance with the following conditions; The CaviTAU Starter KIT is only handed over after this instruction and training has been carried out.
(3) After the conclusion of the purchase contract for a Starter KIT, we will contact the buyer within three working days to arrange a training date. All training courses are held in our training rooms on Grünwalderstr. 1 carried out in Munich. We are obliged to offer the buyer two alternative training dates within 90 days of the conclusion of the contract at the latest, whereby we point out that our training courses are currently usually carried out on Friday or Saturday.
(4) The buyer is entitled to take part in the agreed training date with up to three people after prior registration. The costs of the training are included in the purchase price for the Starter KIT, the costs for arrival and departure of the participants named by the buyer, as well as any accommodation costs and costs for the remuneration of the named participants are borne by the buyer.
(5) To ensure that our products (CaviTAU Starter KIT Light / CaviTAU Starter KIT PRO / CaviTAU Starter KIT Pro +) are not used without training when they are used for the first time, our products will only be used on the same day after the training Hand over to buyer. Upon request, the buyer can arrange for the Starter KIT to be dispatched to the buyer after payment of the training.
(6) For buyers who have already carried out qualified training for the Starter KIT (CaviTAU Starter KIT Light / CaviTAU Starter KIT PRO / CaviTAU Starter KIT Pro +) with a previous purchase of a Starter KIT, a fee can be paid at the buyer's request Shipping of the Starter KIT to the buyer can be organized by us without the need for repeated training by qualified personnel. In this case, the shipping costs incurred are listed in the ordering process in our online shop and are shown separately on the invoice. The buyer chooses the preferred shipping method (eg via DHL) before completing the order process. In this case, we will not reimburse the buyer for the training that was not used.
§ 3 delivery period and delay in delivery
(1) The delivery time is agreed individually or specified by us when the order is accepted. If this is not the case, the delivery period is a maximum of 4 weeks from the conclusion of the contract.
(2) If we are unable to meet binding delivery times for reasons for which we are not responsible (unavailability of the service), we will inform the buyer of this immediately and at the same time notify the expected new delivery time. If the service is not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already paid by the buyer. The case of non-availability of the service in this sense is in particular the late delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure the goods in individual cases.
(3) If the delivery is extended due to official measures to protect against infection or due to border closures, we are not responsible for these delays, even if corresponding measures were already ordered or foreseeable at the time the contract was concluded.
(4) The occurrence of our delay in delivery is determined by the statutory provisions. In any case, a reminder from the buyer is required. If we are in default of delivery, the buyer can demand flat-rate compensation for his damage caused by delay. The flat rate for damages is 0.5% of the net price (delivery value) for each completed calendar week of the delay, but in total no more than 5% of the delivery value of the goods delivered late. We reserve the right to provide evidence that the buyer has suffered no damage or only significantly less damage than the above flat rate.
(5) The rights of the buyer according to Section 8 of these terms and conditions and our legal rights, in particular if the obligation to perform is excluded (e.g. due to the impossibility or unreasonableness of the service and / or subsequent performance), remain unaffected.
§ 4 delivery, transfer of risk, acceptance, default of acceptance
(1) The delivery takes place from the warehouse in Grünwald, where the place of performance for the delivery and any subsequent performance is.
(2) At the request and expense of the buyer, the goods will be shipped to another destination (dispatch purchase). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. If the buyer orders several products, we are entitled to make partial deliveries.
(3) The risk of accidental loss and accidental deterioration of the goods passes to the buyer at the latest when the goods are handed over. In the case of mail order purchases, the risk of accidental loss and deterioration of the goods and the risk of delays pass to the freight forwarder, the carrier or the person or institution otherwise responsible for carrying out the shipment as soon as the goods are delivered.
(4) If the buyer is in default of acceptance, fails to cooperate or our delivery is delayed for other reasons for which the buyer is responsible, we are entitled to demand compensation for the damage resulting from this, including additional expenses (e.g. storage costs). For this we charge a flat-rate compensation of EUR 20.00 per calendar day, starting with the delivery period or - in the absence of a delivery period - with the notification that the goods are ready for dispatch. Proof of higher damage and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the flat rate is to be offset against further monetary claims. The buyer is allowed to prove that we have incurred no damage or only significantly less damage than the above flat rate.
§ 5 prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time the contract is concluded, which are displayed in the online shop, apply ex warehouse, plus statutory sales tax.
(2) In the case of a mail order purchase (Section 4 (2)), the buyer bears the transport costs from Munich and the costs of any transport insurance requested by the buyer. The buyer bears any customs duties, fees, taxes and other public charges.
(3) All purchase contracts are only concluded against prepayment. The full purchase price is due immediately upon receipt of the acceptance of the contract offer by us and debited by us according to the payment method chosen by the buyer. We use an "SSL connection" for the encryption of the personal buyer data. Domestic buyers can pay by credit card (VISA ® / Mastercard ®), direct debit, via the payment service provider PayPal © or by Sofort-Überweisung ®. For foreign buyers, we only offer payment by credit card (VISA ® / Mastercard ®). In deviation from sentence 3, we reserve the right not to offer certain payment methods and / or (additionally) to refer to other payment methods for each order.
(4) If the buyer is in arrears with the payment of the purchase price, the purchase price is to be paid interest during the delay at the applicable statutory default interest rate. We reserve the right to claim further damage caused by delay. Our entitlement to commercial maturity interest (§ 353 HGB) remains unaffected.
(5) The buyer is only entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the buyer's counter-rights remain unaffected.
(6) If it becomes apparent after the conclusion of the purchase contract (for example, by requesting the opening of insolvency proceedings) that our right to the purchase price is endangered by the inability of the buyer to perform, we are legally obliged to refuse performance and - if necessary after setting a deadline - to withdraw authorized by the contract (§ 321 BGB).
§ 6 retention of title
(1) We reserve ownership of the goods sold until all of our current and future claims from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to retention of title may neither be pledged to third parties nor fully transferred as security before the secured claims have been paid in full. The buyer must immediately notify us in writing if an application is made to open insolvency proceedings or if third parties (eg attachments) access the goods belonging to us.
(3) If the buyer behaves contrary to the contract, especially if the purchase price is not paid, we are entitled to withdraw from the contract in accordance with the statutory provisions and / or to demand the goods based on the retention of title. The request for surrender does not include the declaration of withdrawal; we are rather entitled to only demand the goods and reserve the right to withdraw. If the buyer does not pay the purchase price due, we may only assert these rights if we have previously unsuccessfully given the buyer a reasonable period for payment or if such a deadline can be dispensed with in accordance with the statutory provisions.
(4) The buyer is authorized until further notice according to (b) below to resell the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply. Any processing, mixing and / or connection of the delivered goods is expressly prohibited.
(a) The claims against third parties arising from the resale of the goods are hereby assigned to us by the buyer as a whole. We accept the assignment. The buyer's obligations mentioned in paragraph 2 also apply to the assigned claims.
(b) The buyer remains authorized to collect the claim next to us. We undertake not to collect the claim as long as the buyer meets his payment obligations to us, there is no defect in his performance and we do not exercise the retention of title by exercising a right pursuant to Claim paragraph 3. If this is the case, however, we can request that the buyer notify us of the assigned claims and their debtors, provide all the information necessary for collection, hand over the associated documents and notify the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the buyer's authorization to resell the goods subject to retention of title.
(c) If the realizable value of the collateral exceeds our claims by more than 10%, we will release collateral of our choice at the request of the buyer.
§ 7 warranty
(1) The statutory provisions apply to the rights of the buyer in the event of material and legal defects (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below.
(2) The basis of our liability for defects is above all the agreement made on the quality of the goods. All product descriptions and manufacturer information that are the subject of the individual contract or that were made public by us (in particular in catalogs or on our website) at the time of the conclusion of the contract are deemed to be an agreement on the quality of the goods.
(3) If the condition has not been agreed, it is to be judged according to the legal regulation whether there is a defect or not (§ 434 Abs. 1 S. 2 and 3 BGB). We do not assume any liability for public statements by other third parties (e.g. advertising statements, test reports), to which the buyer has not indicated that they were decisive for the purchase.
(4) The purchaser's claims for defects presuppose that he has complied with his statutory inspection and notification obligations (Sections 377, 381 HGB). If there is a defect in the delivery, the inspection or at any later point in time, we must be notified immediately in writing. In any case, obvious defects must be reported in writing within 14 days of delivery and defects that are not recognizable during the inspection within the same period of time from discovery. If the buyer fails to properly inspect and / or report defects, our liability for defects that are not reported, not reported in time or not properly, is excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, we can first choose whether we provide supplementary performance by eliminating the defect (rectification) or by delivering a defect-free item (replacement delivery). Our right to refuse supplementary performance under the legal requirements remains unaffected.
(6) We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a reasonable part of the purchase price in relation to the defect.
(7) The buyer must give us the time and opportunity necessary for the supplementary performance owed, in particular to hand over the rejected goods for inspection purposes. The buyer is also obliged to cooperate with our employees in troubleshooting, for example by installing software or operating remote maintenance software. In the case of a replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions.
(8) The buyer must always return or return objectionable devices only in the DDHT transport case and with an RMA number to be obtained in advance from CaviTAU.
(9) In urgent cases, e.g. in the event of a threat to operational security or to prevent disproportionate damage, the buyer has the right to remedy the defect himself and to request compensation from us for the objectively necessary expenses. We are to be informed of such self-execution immediately, if possible in advance. The right of self-exemption does not exist if we were entitled to refuse a corresponding supplementary performance according to the legal regulations.
(10) If the subsequent performance has failed after two attempts at subsequent performance or a reasonable period of time to be set by the buyer for the subsequent performance has expired without success or is dispensable according to the statutory provisions, the buyer can withdraw from the purchase contract or reduce the purchase price. In a minor defect, however, there is no right of withdrawal.
(11) Claims of the buyer for damages or reimbursement of futile expenses, even in the case of defects, only exist in accordance with § 8 and are otherwise excluded.
§ 8 Other liability
(1) Unless otherwise stated in these terms and conditions, including the following provisions, we are liable in the event of a violation of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We are liable for damages - regardless of the legal reason - within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we are only liable, subject to statutory liability restrictions (e.g. care in our own affairs; insignificant breach of duty).
a) for damage from injury to life, limb or health,
b) for damages from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the observance of which the contractual partner regularly trusts and may rely); in this case our liability is limited to the replacement of the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 also apply to breaches of duty by or in favor of persons whose fault we are responsible for according to legal regulations. They do not apply insofar as we maliciously concealed a defect or assumed a guarantee for the quality of the goods and for claims by the buyer under the Product Liability Act.
(4) Due to a breach of duty that is not a defect, the buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the buyer (especially according to §§ 650, 648 BGB) is excluded. The legal requirements and legal consequences also apply.
§ 9 limitation
(1) In deviation from Section 438 (1) No. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from the transfer of risk. If an acceptance has been agreed, the limitation period begins with the acceptance.
(2) The above limitation period also applies to contractual and non-contractual claims for damages on the part of the buyer based on a defect in the goods, unless the application of the regular statutory limitation (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the buyer in accordance with § 8 Paragraph 2 Clause 1 and Clause 2 (a) as well as under the Product Liability Act are subject to the statute of limitations only after the statutory limitation periods.
§ 10 Legal information for medical devices
We would like to point out that the products we offer are medical devices and the handling, use and regular checking of these products are subject to special statutory and legal provisions (including the Medical Devices Act, Medical Device Operator Regulation, Radiation Protection Regulation, X-ray Regulation, etc.). The buyer is obliged to inform himself about the legal provisions relevant to the use of the respective product and to ensure compliance with them. Any violations in the handling, application, storage, commissioning and disposal of our products after the transfer of risk are the sole responsibility of the buyer.
§ 11 software
(1) If software is included in the scope of delivery of our products, the buyer is granted a non-exclusive, non-transferable right to use. This is a single license, unless the granting of a multiple license is explicitly mentioned in the purchase contract. This means that the software can only be used by the buyer on one device. The buyer is permitted to make a copy for backup purposes only.
(2) All rights of the software provided to the buyer remain with DDHT. DDHT is entitled to use the know-how acquired in connection with the execution of the contract without restrictions for its own business purposes.
(3) If software is supplied as part of a product, the buyer may only use this software with the product specified in the contract. Use of another product must be expressly approved by DDHT in writing, unless the buyer temporarily uses the software with an identical replacement device due to a defect in hardware sold by DDHT.
(4) Except in the case of § 69 e UrhG, the buyer is not entitled to change, reverse engineer, translate, extract parts or link to other programs.
(5) In addition, the buyer is not entitled to rent or lend software to third parties or to grant sublicenses. Software purchased together with a device may only be resold together with the associated device. The buyer may only resell software to third parties, insofar as the third party is not granted any further rights to use the software than we have granted the buyer. The buyer may not keep a copy of the software in the event of resale. Multiple licenses may only be resold in total.
(6) The buyer is obliged to carefully store the software, including any documentation, so that misuse is excluded.
(7) The purchase of software does not include DDHT's obligation to provide software services. These require a separate agreement.
(8) The buyer is obliged to ensure that the software used by him is updated if we provide an update.
(1) If a PC or notebook (hereinafter referred to as “computer”) is included in the scope of delivery of our products (Starter KIT), this computer is supplied with an operating system.
(2) The computer is only intended for the operation of the CaviTAU product. The computer may not be used for other purposes.
(3) The files on the computer that are saved during operation with a CaviTAU product (ultrasound device) must be saved on an external data carrier on a daily basis. If there is a loss of data on the computer, we are not liable for data loss. The buyer is responsible for the protection of patient data on the external data storage according to the legal regulations.
§ 13 data protection
(1) All personal data provided by the buyer (title, first name, last name, email, telephone, fax, VAT ID) will be saved, processed or used in any other way only in accordance with the provisions of the applicable data protection law.
(2) The personal data of the buyer, insofar as this is necessary for the establishment, implementation and termination of the contractual relationship, will only be used to process the sales contracts concluded between the buyer and us. Any further use of the buyer's personal data for the purposes of advertising, market research or to tailor our offers to the needs requires the buyer's express consent.
§ 14 export control
(1) The fulfillment of the services is subject to the proviso that there are no obstacles due to national or international regulations of export and import law as well as no other legal regulations.
(2) Delays due to export inspections or approval procedures invalidate deadlines and delivery times.
(3) If DDHT is unable to fulfill the contract due to non-granted permits, the contract with regard to the goods concerned is deemed not to have been effectively agreed from the start. Damage claims or reimbursement of expenses of the buyer do not arise from this.
(4) The purchaser is responsible for obtaining any import authorization that may be required.
$ 15 Compliance, Anti-Corruption Act
(1) The buyer warrants that he will act in accordance with the applicable legal provisions, in particular regulations to combat corruption and money laundering as well as other criminal law provisions.
(2) If there is reasonable suspicion that the buyer may have violated the above obligations, we are entitled to withdraw from a contract if we cannot reasonably be expected to continue to adhere to the contract.
§ 16 Severability clause
(1) Changes or additions to these terms and conditions must be made in writing. This also applies to the lifting of the writing requirement.
(2) Should individual provisions of these terms and conditions be ineffective, this does not affect the validity of the other provisions. The ineffective provision will be replaced by the contracting parties by mutual agreement with a legally effective provision which comes as close as possible to the economic meaning and purpose of the ineffective provision. The above provision applies in case of loopholes accordingly.
§ 17 Applicable law, place of jurisdiction
(1) For these terms and conditions and the contractual relationship between us and the buyer, the law of the Federal Republic of Germany applies, excluding international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods.
(2) If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our place of business in Grünwald. The same applies if the buyer is an entrepreneur within the meaning of § 14 BGB. The place of performance for delivery obligations under this contract is Grunwald. In all cases, however, we are also entitled to file suit at the place of performance of a priority individual agreement or at the general place of jurisdiction of the buyer. Priority statutory regulations, in particular regarding exclusive responsibilities, remain unaffected.
As of: 13.04.2020