General Terms & Conditions

1. General Terms and Conditions of Delivery of ConnectedCare GmbH
2. Product Warranty of ConnectedCare GmbH
3. Terms of Use and Warranty for ConnectedCare Software – Customer of ConnectedCare GmbH
4. General Terms and Conditions of ConnectedCare GmbH for the Supply of Multimedia Content for Use on ConnectedCare Multimedia Systems
5. General Terms and Conditions of Purchase of ConnectedCare GmbH
6. Terms of Use – End User License of ConnectedCare GmbH
7. Terms and Conditions for System Maintenance of ConnectedCare GmbH
8. Terms and Conditions for Training of ConnectedCare GmbH
9. Terms and Conditions for System Projects of ConnectedCare

 

I. Placing of Order

1. By placing an order with ConnectedCare GmbH, Telgte, (hereinafter referred to as "We" or "ConnectedCare";) the Buyer (i.e. the party who buys from us; hereinafter also referred to as "Customer") exclusively accepts our Terms and Conditions of Sale, Delivery and Payment, at the latest, however, upon acceptance of our goods or services, irrespective of the form in which such order is placed.

2. They shall apply to all future business relations, even if they are not expressly agreed again.

3. We object to any counter-confirmation by the Customer insofar as it refers to its own terms and conditions of sale, delivery and / or payment (GTC).

4. Deviations from our contractual conditions are only effective if we agree to them in writing. A prohibition of assignment in the general terms and conditions of the Buyer is hereby expressly rejected.

 

II. Conclusion of Contract

1. Our offers are subject to change and non-binding. Our written order confirmation, actual delivery or invoice shall be decisive for the object and scope of delivery.

2. If the wording of the order does not clearly indicate otherwise, it shall be a binding offer within the meaning of § 145 German Civil Code (BGB). We may accept this offer at our discretion within two weeks. This acceptance can be accepted either by sending an order confirmation or by us dispatching the order for delivery within this period.

3. All orders and declarations of acceptance must be confirmed by us in writing in order to be legally effective and binding; the same applies to amendments or ancillary agreements.

 

III. Tender Documents

1. Contracts for the delivery of goods shall exclusively concern the ordered goods themselves. Insofar as manufacturing specifications and other specifications, calculations or documents were provided to our customers before, during or after the conclusion of the contract, these shall remain our property. They may not be made accessible to third parties. This applies in particular to such written documents which are designated as "confidential". The Buyer must obtain our express written consent before passing them on to third parties.

2. The conclusion of the contract does not imply the granting of rights of use and exploitation of our copyrights, patents, trademarks or business and trade secrets. The granting of such rights requires a mutually signed written agreement in order to be effective.

 

IV. Pricing

1. The prices quoted by us shall only apply to the individual order. Repeat orders are considered as new orders.

2. Should wage or material cost increases occur which are unforeseeable for us until the execution of the order, we reserve the right to adjust our prices accordingly without also charging increased profit. We further reserve the right to increase our prices appropriately at the earliest 8 weeks after conclusion of the contract, if cost increases occur after conclusion of the contract, in particular due to collective wage agreements or price increases for precursor products – in the case of imported goods also due to changed foreign exchange rates. Any increase in governmental charges after conclusion of the contract shall in any case be borne by the Buyer. Reductions shall lead to a corresponding reduction.

3. Our prices are ex works, excluding packaging and plus the applicable statutory value added tax.

 

V. Terms of Payment

1. Payments shall be made directly to us and immediately net cash (without deduction) from the date of invoice. The bank details can be found in the note on the invoices.

2. Cash discount or other special conditions are granted only by special agreement and written confirmation.

3. If the Buyer is in default with a payment, all outstanding claims against this Buyer shall become due immediately.

4. Any payment shall only be deemed to have been made if the payee has unrestricted access to the payment amount. Payments by check shall be deemed to have been made only when the check has been cashed and the payee has unrestricted access to the amount.

5. The Buyer (debtor) shall automatically be in default if payment has not been made or has not been made in full by the 31st calendar day from the date of invoicing. A special reminder is not required to trigger the consequences of default.

6. In the event of default in payment, we shall be entitled to charge default interest in the amount of 5% above the respective base interest rate published by the Deutsche Bundesbank (§ 247 BGB). This shall not affect the assertion of further damages caused by default.

7. Bills of exchange shall only be accepted on the basis of an express agreement and only on account of payment (zahlungshalber), with the usual discount charges and other bill of exchange costs being charged.

8. If, after conclusion of the contract, there is a significant deterioration in the financial circumstances of the Buyer or if, after conclusion of the contract, we become aware of circumstances which are likely to reduce the creditworthiness of the Buyer, all our claims shall become due for payment immediately. In addition, in this case we shall be entitled to make outstanding deliveries only against advance payment or provision of security and shall be entitled to withdraw from these contracts if the Buyer has not provided its consideration (payment) within a reasonable period set by us or has not provided sufficient security.

9. Offsetting by the Buyer with counterclaims is excluded, unless the counterclaims are recognized by us in writing or have been legally established by a final and binding court decision.

10. The assertion of a right of retention by the Buyer is excluded, unless it is based on the same contractual relationship and has been recognized by us in writing or has been legally established by a final and binding court decision.

11. We are entitled to assign the claims arising from our business relations to third parties.

 

VI. Retention of Title

We only deliver on the basis of the reservation of title described in more detail below. This shall also apply to all future deliveries, even if we do not always expressly refer to this.

1. The goods shall remain our property until full payment of our claims, including the balance existing in our favor on current account.

2. The processing or transformation of the object of sale by the customer shall always be carried out for us. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale to the other processed objects at the time of processing. In all other respects, the same shall apply to the product/object created by processing as to the purchased product/object delivered subject to reservation of title.

3. The Buyer is entitled to resell the reserved goods only in the ordinary course of business. The Buyer is not permitted to pledge or assign the goods as security. In the event of a pledge or any other impairment of our rights by third parties, we must be notified immediately and supported in the pursuit of our rights.

4. Claims of the Buyer from the resale of the goods subject to retention of title are already assigned to us now as security. The Buyer is authorized to collect the claims in the ordinary course of business.

5. We shall release the securities to which we are entitled at the request of the Buyer to the extent that the value of our securities exceeds the claims to be secured by more than 10%. The selection of the securities to be released shall be incumbent upon us.

6. The Buyer is obliged to treat the purchased products with care; in particular, he is obliged to sufficiently insure it at his own expense against fire, water, and theft damage at the nominal value. The existence of the insurance shall be proven to us upon request.

7. As long as the ownership is not yet completely transferred, the Buyer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of a lawsuit pursuant to § 771 of the German Code of Civil Procedure (ZPO) or its foreign equivalent, the Buyer shall be liable for the loss incurred by us.

8. The assertion of rights of retention of title, as well as any seizure of our goods by us shall not be deemed a rescission of the contract.

(9) We shall be entitled to assert our rights arising from the reservation of title – in particular to take back into possession the goods delivered under reservation of title – without prior rescission of the respective purchase contract.

 

VII. Delivery

1. Stated delivery periods are non-binding unless this has been expressly agreed in writing.

2. In the event of force majeure, strike, lockout as well as operational disruptions and delays in material deliveries which we could not foresee and for which we are not responsible, the delivery period shall be extended accordingly. If, on the other hand, we are in default and allow a period of grace of 6 weeks to expire unused, the Buyer may rescind only the part of the contract not yet fulfilled. Claims for damages by the Buyer due to delay and/or non-performance due to delay shall only exist if we are in default caused by at least gross negligence.

3. We shall be entitled to make partial deliveries to a reasonable extent; each partial delivery shall be legally deemed to be an independent contract.

4. The Buyer is obliged to inspect the goods immediately after delivery and to notify us of any defects within 8 calendar days after delivery at the latest. After expiry of this period, the goods shall be deemed to have been accepted free of defects.

 

VIII. Shipping and Passing of Risk

1. The risk of loss and accidental destruction shall pass to the Buyer at the latest upon dispatch of the goods to be delivered. This also applies if we take over the transport of the goods.

2. If the shipment is delayed due to circumstances for which we are not responsible, the risk shall pass to the Buyer from the day of readiness for shipment.

3. The shipment shall be for the account of the Buyer. The packing will be charged.

 

IX. Default of Acceptance of the Buyer

1. If the Buyer does not accept the ordered goods on the agreed date or at the time of notification of readiness for delivery from the agreed anticipated delivery date, we shall be entitled to either

(a) to set a reasonable grace period and, after its expiry, to dispose otherwise of the goods not accepted; or

(b) to invoice him immediately for the goods and to store them at the risk and expense of the Buyer.

2. Our rights to rescind the contract and/or to claim damages after the prerequisites have been met shall remain unaffected.

 

X. Warranty and Liability for Defects of the delivered Goods

In deviation from § 434 BGB, a defect shall only exist if the object of purchase does not meet the subjective requirements, i.e. it does not have the agreed quality and/or is not suitable for the use presupposed according to the purchase contract and/or was not handed over/delivered with the agreed accessories, including assembly, installation and operating instructions. A warranty in case of non-existence of the objective requirements, i.e. if the object of purchase is not suitable for the usual use or does not have the usual condition, is excluded.

 

(A) Warranty for Defects

1. The warranty and guarantee conditions specifically tailored and granted by us for the respective product shall, insofar as they deviate, take precedence over the following warranty conditions.

2. If the delivered product is defective, the claims of the Buyer shall initially be limited – according to our discretion – to removal of the defect or delivery of a product free of defects (subsequent performance).

3. The Buyer shall grant us the reasonable time and opportunity necessary to remedy the defect. If the Buyer refuses this, we shall be released from the obligation to remedy the defect.

4. If the defect is not remedied within a reasonable period of time or if the attempt to remedy the defect fails, the customer shall have the right to reduce the purchase price or to rescind the contract, at its option.

5. The prescription period for claims for defects shall be one year, calculated from the date of the passing of risk (i.e. in the case of timely acceptance: delivery). For this purpose it is assumed that the delivered product was demonstrably unusable or its usability was significantly impaired as a result of a circumstance that occurred prior to the transfer of risk, in particular due to defective design, poor materials or defective workmanship. The discovery of such defects must be reported to us in writing without delay.

6. The warranty for defects does not include deterioration due to natural wear and tear, nor does it cover damage that occurs after the transfer of risk as a result of incorrect or improper handling, excessive stress, unsuitable operating and maintenance care materials or chemical, electrochemical or electrical influences that are not clearly to be presumed as being suitable for the purpose under the contract.

7. The warranty for defects shall also not extend to cases in which the Buyer does not use the purchased item as intended, uses it in a system that does not comply with the applicable safety and protection rules and/or are installed incorrectly. Claims based on defects shall be excluded in the event of improper modifications or repair or maintenance work carried out by the Buyer or third parties and in the event of breach of integrity seals.

8. Damage caused by lightning, water, fire, war and force majeure are not subject to warranty and guarantee.

9. We shall be entitled to refuse rectification or new delivery for as long as the Buyer is in arrears with the fulfillment of its payment obligations arising from contractual relationships with us in an amount that exceeds the reduced value of the purchased or delivered product that is caused by the defect.

 

(B) Liability for Defects & General Liability

10. We shall only be liable for damages arising from tort, culpa in contrahendo, breach of implied contract terms (pVV), impossibility of performance, or delay, if we have caused such damages intentionally or by gross negligence. This also applies to claims for compensation for indirect damages and/or consequential damages. This partial exclusion of liability does not include:

• Cases of initial inability to perform the contract;
• The violation of essential contractual obligations (cardinal obligations);
• Cases of strict liability, e.g. under the Product Liability Act;
• Cases in which a Guarantee provided by us is intended to protect the Buyer from consequential damage caused by a defect.

11. Insofar as we have excluded or limited our liability, this shall also apply to the personal liability of our employees, workers, staff or other persons used by us when performing the contract, without prejudice to the provisions of Section 831 (1) sentence 2, BGB.

12. If we negligently breach a material contractual obligation (cardinal obligation), in the event of liability our liability to pay compensation for damage to property or personal injury shall be limited to the amount covered by our product liability insurance, notwithstanding the preceding -paragraphs.

13. We shall not be liable for damages that do not affect the delivered product as such. In particular, we are not liable for lost profits or other financial losses of the Buyer. Moreover, liability for loss of data and downtime caused by this loss is also excluded. Not included in this exclusion are claims for damages due to personal injury based on mandatory statutory law.

14. The Buyer is obliged to inform us in writing of foreseeable special risks of damage in its sphere before conclusion of the contract. If it fails to do so, it shall be partly responsible (liable) for the occurrence of such a risk and its consequences, which may reduce or even nullify claims against us that would otherwise be justified.

15. Any liability is limited to the damage foreseeable at the time of conclusion of the contract.

 

XI. Copyright Protection

Our designs, samples, models and the like shall be deemed to be our intellectual property and may not be imitated or used in any other way by the Buyer for the purpose of reproduction, even if no special registered intellectual property rights exist in this respect. Any infringement thereof shall render the Buyer liable for damages.

 

XII. Data protection

To the extent required by law, the Buyer gives its consent that its personal data necessary for the business transaction, including data of its employees who are involved in the performance of tasks concerning us, are stored, processed and used by us in our EDP system, at least as long as the business relationship exists. We will use such data exclusively for internal purposes and shall pass them on exclusively to the extent required for the collection of receivables. We shall not pass on personal data to other third parties without the express written consent of the Buyer. Upon written request of the Buyer, its personal data and those of the Buyer's employees shall be deleted as soon as the purpose underlying their transmission to us has ceased to exist.

 

XIII Data Analysis

We collect and process data, which is not personal data, during the operation of system components (hardware and software) originating from us on a data network for the purposes of defect prevention/elimination, system maintenance, improvement and development of products, and services and their efficient use by customers. If and insofar as this data allows conclusions to be drawn about natural persons, it shall be anonymized on the occasion of collection in such a way that no conclusion can be drawn about the natural persons concerned. The Buyer agrees to this to the extent required by law.

 

XIV Code of Conduct

We are part of the Phoenix Mecano Group and observe its Code of Conduct, which can be viewed on our website.

 

XV. Final Provisions

1. The Buyer may transfer its rights under these General Terms and Conditions to third parties only with our prior written consent.

2. The place of performance for all deliveries and services is Münster (Germany).

3. To the extent permitted by law, Münster (Germany) is agreed as the place of jurisdiction. We are also entitled to take legal action at the Buyer's place of business.

4. German law shall apply exclusively, unless mandatory statutory provisions conflict therewith. The application of the Uniform International Sales Law, the Uniform UN Sales Law or other conventions on the law of the sale of goods is excluded.

5. Should any provision of these Terms and Conditions of Sale, Delivery and Payment be or become invalid, the validity of the remaining provisions shall not be affected thereby. In this case, a valid provision shall be deemed agreed which comes closest to the economic meaning of the invalid provision.

 

Status 15 January 2024

 

I. Scope

This independent warranty undertaking (hereinafter referred to as "manufacturer's warranty" or "warranty") is granted by ConnectedCare GmbH (hereinafter referred to as ConnectedCare), Orkotten 65, 48291 Telgte (Germany). It is in addition to the legal warranty rights of the first purchaser or the subsequent owner of the guaranteed product during the warranty period (hereinafter referred to as "Customer") against the Seller and does not limit them. Only the first purchaser of a newly manufactured product is entitled to accept this manufacturer's warranty.

 

II. Manufacturer's Warranty

ConnectedCare warrants to the first purchaser or the subsequent owner of the product during the warranty period in accordance with the following provisions that the ConnectedCare multimedia terminals, mounts, and other ConnectedCare hardware products (hereinafter referred to as the "Product") delivered to the Customer will be free from defects in material or workmanship or damage to material or workmanship within a period of one year (12 months) from the date of delivery to the first purchaser (warranty period). An independent right to rescind the concluded purchase contract or to reduce the purchase price beyond the statutory scope of liability for defects in terms of subject matter or time is not granted under this manufacturer's warranty.

ConnectedCare shall remedy the defects claimed hereunder at its own discretion and at its own expense by repair or delivery of new or reconditioned parts. The customer shall not owe any remuneration for the assertion and performance of justified warranty claims under this warranty. Other claims of the customer, in particular for damages, against the ConnectedCare are excluded from this warranty. However, the contractual or statutory rights of the customer against the respective seller are not affected by this warranty.

 

III. Specific Warranty Limitations

ConnectedCare does not give any further warranties or guarantees of any kind in this manufacturer's warranty other than those expressly stipulated. For software, the manufacturer's warranty within the scope of the aforementioned shall only extend to the redelivery of a data carrier replacing the data carrier with the defective software. ConnectedCare does not provide any manufacturer's warranty for software, in particular that the operation of software will be uninterrupted, error-free or in accordance with any agreements with the seller. The separately agreed contractual conditions (license conditions) apply to software.

Claims derived from any advertising statements (e.g. see § 434b (1) BGB) are excluded vis-à-vis entrepreneurs. This applies in particular insofar as the advertising is not directly attributable to ConnectedCare, but is carried out by subordinate parties in the distribution chain. For products, e.g. wearing parts, whose normally assumed service life is less than the legally regulated warranty period, warranty claims are not applicable to the entire warranty period and shortened to the usual life cycle of such product. In the case of rechargeable batteries, for example, performance declines after 12 months of normal use, which is why warranty claims regarding rechargeable batteries, in particular with regard to performance, are generally only recognized within 12 months as of the original delivery.

In the event of a defect in a TFT display, the warranty conditions and periods specified by the respective display manufacturer apply. Displays are installed according to ISO 13406-2 defect class 2 (- bright dots: Warranty applies from 3 defective dots. - Black dots: Warranty applies from 6 defective dots. - Total number of dot defects: Warranty applies from 8 defective dots. - One line of defective dots: immediate warranty. The following test conditions apply: - Not less than 30 cm distance [direct line] between screen and test person. - Room temperature: 20° C – 40° C. - Lighting: between 300 and 500 lux).

Claims under this warranty exist only if

• the product does not show any damage or signs of wear caused by use deviating from the normal purpose and the manufacturer's specifications (according to the user manual);
• the product does not have any features that indicate repairs or other interventions by workshops not authorized by the manufacturer or other third parties. This does not apply if the repair was carried out properly (as would have been done by the manufacturer or authorized workshops) or is not (co-)causal for the warranty case and does not prolong the subsequent repair or make it more cost-intensive;
• only accessories authorized by the manufacturer have been incorporated into the product;
• the product has not been improperly transported or packaged and has been damaged or rendered inoperable as a result; or
• the product has not been used for purposes other than those for which it was intended, the user instructions in the user manual supplied with the product have been observed and it has not otherwise been misused, for example by operating the product together with devices or programs whose compatibility ConnectedCare has not expressly stated in text form.

Claims under this warranty are conditional upon the customer contacting their local customer service department prior to returning the product and giving this  service the opportunity to perform a fault analysis (by telephone or network) within a period of five days. Claims under the warranty can then only be made by handing over or sending the product to the repair center specified by the customer service. The customer shall bear the costs of sending in the product to the extent permitted by law. ConnectedCare shall bear the costs of returning the product. If warranty claims are asserted and it turns out during the inspection of the product by ConnectedCare or the responsible customer service that there was no defect or that the warranty claim does not exist for one of the above-mentioned reasons, ConnectedCare is entitled to charge the costs incurred during the processing and/or repair on the basis of the applicable rates of ConnectedCare, unless the customer proves that it could not have recognized under the circumstances that the warranty claim did not exist.

A prerequisite for the warranty claim is furthermore the presentation of the original invoice/delivery bill with the date of purchase/delivery, if ConnectedCare so requires.

This warranty shall apply to the extent and under the conditions stated above to any subsequent future owner of the product residing in the EU, provided that he also has the original invoice.

 

IV. No Separate Basis of Liability from this Warranty Undertaking

Claims for damages that could arise from any defective delivery or the improper performance of any other service by ConnectedCare in connection with the handling of warranty or guarantee repairs on the basis of this manufacturer's warranty are expressly excluded; in particular, any liability for loss of data and loss of profit of the Customer. These limitations of liability shall not apply insofar as the damage was caused by ConnectedCare intentionally or through gross negligence, in the event of a breach of essential contractual obligations, insofar as a commercial fixed transaction was agreed, insofar as damage is caused by the absence of a quality which ConnectedCare has guaranteed, for damage to life, limb and health and for claims based on the Product Liability Act.

 

V. Law

This warranty is governed by the laws of the Federal Republic of Germany.

 

VI. Contact Information

For warranty claims or support questions, customers can contact ConnectedCare GmbH, Support, Orkotten 65, 48291 Telgte (Germany), Tel. +49 2504 7337-0, Fax. +49 2504 7337-190, e-mail: info@connectedcare.net or contact via the website (www.ConnectedCare.net).

 

VII Code of Conduct

We are part of the Phoenix Mecano Group and observe its Code of Conduct, which can be viewed on our website.

 

Status 15 January 2024

 

valid between

ConnectedCare GmbH
Orkotten 65
48291 Telgte

(hereinafter "ConnectedCare") and their customers (hereinafter "CUSTOMER") who use modules of the ConnectedCare Platform in their facilities.

 

Preliminary Remarks:

ConnectedCare manufactures innovative network-based multimedia terminals for patients in hospitals and care facilities and distributes them internationally. Applications, services and/or application programs (hereinafter referred to as "modules") can be loaded via networks onto these multimedia terminals and/or the users' own terminals and used with a ConnectedCare server infrastructure. Furthermore, ConnectedCare provides an application that patients can install on their private handheld devices for unlimited use in order to use functions of the ConnectedCare System described above that are licensed by ConnectedCare at the time of the respective access.  In addition, ConnectedCare has been granted the possibility by the respective rights holders by way of sublicensing to make available to its customers for use by their patients on the multimedia terminals a wide variety of multimedia content in electronic format for locally limited consumption. The system is modular and is offered by ConnectedCare as a ConnectedCare platform.

CUSTOMER is interested in using certain modules of the ConnectedCare platform and making multimedia content available to patients.

ConnectedCare is ready to enable the CUSTOMER to do so under the following conditions.

 

§ 1 General

(1) The following contractual terms and conditions (the/these Terms or Agreement) shall apply exclusively with respect to their subject matter. ConnectedCare does not recognize any deviating terms and conditions of the CUSTOMER unless ConnectedCare expressly agrees to their applicability in writing. These contractual terms and conditions shall also apply if ConnectedCare performs a service without reservation in the knowledge of deviating terms and conditions of the CUSTOMER.

(2) No verbal ancillary agreements have been made with respect to the subject matter of the contract described below. All ancillary agreements or deviations from these Terms must be in writing to be effective. The written form requirement can only be waived by written form.

 

§ 2 Start of Validity

(1) Unless otherwise agreed, the contractual relationship between ConnectedCare and the CUSTOMER relating to the subject matter of the contract shall come into existence either

(a) by the conclusion of an agreement of the CUSTOMER with ConnectedCare in text form relating to the subject matter of the contract and referring to these Terms; or

(b) by an order confirmation in text form by ConnectedCare to the CUSTOMER

relating to the subject matter of the contract and referring to these Terms; or

(c) by a declaration of consent submitted electronically

in the password-protected online access of ConnectedCare using the identification and password of the CUSTOMER. This is based on a dedicated role concept.

(2) If ConnectedCare confirms a verbally placed order in text form, the contract shall be concluded with the content of the order confirmation including these Terms, unless the CUSTOMER objects to the content in text form within three weeks after receipt of the order confirmation.

 

§ 3 Subject Matter of the Contract & Services

(1) The subject matter of the services under these Terms shall be the acquisition and use by the CUSTOMER of the application programs (also referred to as: modules) installed electronically by ConnectedCare via a network for the CUSTOMER's purposes of use and those of the end users during the term of the contract.

(2) During the term of the Agreement, ConnectedCare shall provide the CUSTOMER with separate programs (modules) for patient-oriented individualization via the ConnectedCare platform, which can be accessed remotely, for downloading (subject to a charge or free of charge), installation and use on activated end devices (contractual devices) to the extent licensed in each case.

(3) The license and warranty conditions of ConnectedCare for the modules offered on the ConnectedCare Platform can be displayed and downloaded on the ConnectedCare Platform in the version applicable at the time of licensing. The CUSTOMER is obliged to read and take note of these terms and conditions before taking a license on the ConnectedCare Platform and agrees to them by using them.

(4) Insofar as the modules do not originate from ConnectedCare but from third party providers, ConnectedCare shall provide the possibility of downloading and licensing in their name and on their behalf and shall broker the program licenses for these third party providers.

(5) The scope of services and the license terms of each module shall be governed by the description provided by and for which the Provider is responsible, which is also available on the ConnectedCare Platform via a web browser. The CUSTOMER is obliged to read and take note of these terms and conditions before taking a license on the ConnectedCare Platform and agrees to them by using them.

(6) Subject to deviating license provisions that can be called up or selected on the ConnectedCare platform, the licensing of a module is effected as a single device license that entitles the CUSTOMER to use the module for its intended purpose on one contractual device without other restrictions in time during which this module is compatible with the system environment. This single device license does not entitle CUSTOMER to use the module at any time on a greater number of devices than those for which a license fee has been paid. An upgrade or update authorization as well as an obligation for program maintenance on the part of the Provider are not connected with the licensing according to these Terms, but follow from a separate agreement or mandatory law, if applicable. However, in the event of an update or upgrade, these Terms shall also apply to it.

(7) The downloading, installation and use of modules of the CUSTOMER which the CUSTOMER has placed or had placed on the ConnectedCare Connected Care Platform for its own use shall not be subject to this Agreement but to a separate agreement between ConnectedCare and the CUSTOMER.

(8) The following provisions shall apply to software installed on servers at the Customer's premises in connection with the modules, which is used in the operation of the ConnectedCare Platform and is provided by ConnectedCare:

(8.1) The CUSTOMER shall be entitled to use each properly licensed copy of the program as intended on the hardware that is intended for use with the program according to ConnectedCare's product specifications. The use of the program for a larger number of end devices than that agreed upon requires a separate device-related license in each case and is not covered by this authorization of use.

(8.2) The right of use granted in No. 8.1 is a simple, non-exclusive license without the right to sublicense or otherwise transfer use to third parties, unless sublicensing is expressly agreed in text form.

(8.3) ConnectedCare shall make backup copies of the licensed software available for download. A transfer of rights to backup copies or the right to make a backup copy is not permitted. Unless otherwise mandated by law, the CUSTOMER is not entitled to make copies of the program or to rent, lease or lend the program, to provide commercial hosting services with it or to transfer the program electronically from one computer to another or via a network, unless this is agreed separately in the contract between it and ConnectedCare.

(8.4) Beyond the mandatory legal scope of actions provided for in Sections 69 d, 69 e of the German Copyright Act, CUSTOMER shall not be entitled to reverse engineer, decompile, disassemble, generally reverse engineer or otherwise attempt to discover the source code of the Software, except and only to the extent that applicable law does not prohibit such restriction.

(8.5) For the use of programs or program components marked as update or upgrade, the CUSTOMER must have a valid license for the previous version. After installing the update or upgrade, the CUSTOMER is no longer entitled to use the original software, which is the prerequisite for the CUSTOMER for the update or upgrade, except as part of the program as supplemented with the update or upgrade. The latter shall not apply if the update or upgrade does not function properly. In this case, the end user is entitled to reinstall the previous latest version, which will revive the license existing on the old version.

(8.6) Intellectual property rights and copyrights: All rights not expressly granted to the CUSTOMER under this Agreement shall remain with ConnectedCare. ConnectedCare's software is protected by copyright laws and by other laws and agreements on intellectual property. ConnectedCare or its development and/or distribution partners hold title and copyright to the software. The terms of this Agreement do not grant the CUSTOMER any rights to trademarks or other identifications of ConnectedCare or its development and/or distribution partners.

(8.7) Test Licenses entitle the CUSTOMER to use the Software exclusively for testing and evaluating the Software during the test period. CUSTOMER shall not be entitled to any further use. Exceptions to this may be agreed in writing between CUSTOMER and ConnectedCare by special agreements.

(8.8) Software is licensed by ConnectedCare, i.e. provided for use for a limited period of time to the agreed extent.

(8.9) Insofar as the software/module is used in connection with data services, such as the subscription of multimedia content (e.g. podcasts, streaming services, digital publications, TV-on-demand, etc.), this agreement does not grant any rights to the multimedia content. The use of the multimedia content is subject to separate terms and conditions of the respective rights holder (provider), which form the basis for their purchase.

 

§ 4 Interoperability, Interfaces and Software Integration

(1) Modules provided on the ConnectedCare Platform for download by the CUSTOMER and other programs subject to this Agreement have been tested and certified on behalf of the provider for their functionality within the version of the system software environment existing at the time of submission for testing by the provider and are thus basically executable/usable in this system environment.

(2) Before downloading and licensing a module or other software, it is the CUSTOMER's responsibility to view on the ConnectedCare Platform the overview of the dates for updates of the system software as well as the information on the system software version for which this module is certified and to decide on the basis of this information whether the acquisition of this version of the module is appropriate, because its basic functionality in the software environment is only warranted for the version for which certification has taken place. As a rule, however, ConnectedCare will ensure basic upward compatibility in the event of updates to the system software for a period of two years from certification of a module, but the CUSTOMER has no claim to this.  Should a module have been downloaded and installed by mistake, or should an online procurement of a module violate procurement law requirements, the CUSTOMER shall have the right to cancel the procurement within 14 days from the procurement act. Thus, any right of use of the CUSTOMER for this module is cancelled. Any separate remuneration for this module shall not apply and any invoices already issued in this respect shall be credited to the customer. This does not apply, if the CUSTOMER uses this module for more than 2 hours within the 14 days, unless it can prove that it is not responsible for this use. The contractual relationship and its subject matter as such shall not be affected thereby.

(3) Modules offered by ConnectedCare itself shall be regularly adapted by ConnectedCare to the current status of the system environment and may be licensed, downloaded, and installed by the CUSTOMER at the desired time (i.e. simultaneously, if applicable) with an update of the system software at the prices stated on the ConnectedCare Platform.

(4) For modules licensed in by third parties, ConnectedCare shall have no obligation to update and establish interoperability with updates of the system software. Insofar as such updates of modules are made by third party providers, these can then be licensed in, downloaded and installed at the third party from certification onwards at the prices specified in the ConnectedCare Platform.

(5) Insofar as the CUSTOMER is entitled on the basis of mandatory law to take measures to establish interoperability itself and should take such measures, ConnectedCare points out that the entire Internet-based management system and also the software installed on the contractual equipment is designed in such a way that the intended use of all components installed on the contractual equipment is normally stable and error-free according to human capability. The CUSTOMER therefore acknowledges that any such measures are taken by or for the CUSTOMER at the CUSTOMER's own expense and risk. If incompatibilities, errors or operational malfunctions arise as a result of such a measure, ConnectedCare or the third party supplier of the module concerned shall have no obligation whatsoever to remedy them. Excluded from this is the case that a component designated by ConnectedCare as a standardized interface does not comply with the current standard applicable to the standardized interface (missing security patch and/or missing update adjustments to the specification of the standard). Also excluded is the case that the measure initiated/performed by the CUSTOMER was carried out appropriately and properly. If ConnectedCare is commissioned with the elimination of these incompatibilities, errors or malfunctions and accepts this commission, the CUSTOMER shall reimburse ConnectedCare for the expenses incurred in the course of the error analysis and other processing in accordance with their respective current price list for services. ConnectedCare shall be entitled to remove the modified module causing the malfunction from the CUSTOMER's terminal equipment temporarily or permanently if, in ConnectedCare's judgment, this is the appropriate means of rectifying the error.

 

§ 5 Liability for Material Defects and Defects of Title

(1) ConnectedCare provides the CUSTOMER with a warranty for defects with respect to modules offered by ConnectedCare itself that are properly licensed and used in accordance with the intended purpose in accordance with the statutory provisions, unless this warranty is expressly and effectively regulated otherwise in the agreed license terms.

(2) Within the scope of the preceding paragraph (1), ConnectedCare warrants to the CUSTOMER the usability of the respective modules for the contractually required use (integration service) during the statutory warranty period from the date of license acceptance on the ConnectedCare Platform; i.e. the use of the module for the purpose specified for it on the ConnectedCare Platform on contractual devices under the version of the operating system specified by ConnectedCare for this purpose, the connected hardware and its specified version.

(3) A defect shall be deemed to exist if the software, in the system environment contractually intended for it, does not perform the functionalities described in the description for the contractually underlying purpose and if this has a more than insignificant effect on the suitability of the software for use in accordance with the contract. Thus, in deviation from § 434, § 475b of the German Civil Code (BGB), a defect shall only exist if the software does not meet the subjective requirements, i.e. it does not have the agreed quality and/or is not suitable for the use assumed under the purchase/license/service Agreement and/or was not handed over/delivered with the agreed accessories, including assembly, installation and operating instructions. A warranty in case of non-existence of additional objective requirements is excluded, e.g. if the software is not suitable for the usual use or does not have the usual condition.

(4) Defects shall be reported immediately via the ConnectedCare hotline, stating the priority. ConnectedCare undertakes, upon receipt of a proper fault report from the CUSTOMER, to initiate measures to eliminate the fault within a reasonable and customary response time. At the same time, ConnectedCare shall provide the CUSTOMER with an estimate of the time expected to be required for the elimination of the fault. The work to eliminate the fault shall be carried out within the scope of ConnectedCare's reasonable possibilities, taking into account its contractual obligations. A claim to the elimination of the fault within a certain time does not follow from the agreement of the response times. ConnectedCare shall be entitled, but not obligated, to remedy malfunctions outside its and the CUSTOMER's business hours; this, however, only if the CUSTOMER provides its cooperation to a sufficient extent.

(5) ConnectedCare shall first be granted a reasonable period of time to remedy the defect (subsequent performance). ConnectedCare may remedy any defects that occur at its own discretion by the following measures:

a) Elimination of defects via remote access to the CUSTOMER's systems;

b) Proposal to the CUSTOMER to circumvent the defect or to eliminate the defect;

c) In the event that the aforementioned measures are not possible or not promising, by eliminating the defect on site, whereby the specific measures to be taken shall be at ConnectedCare's discretion;

(6) If a measure requires the introduction of a new software version, the CUSTOMER shall be obliged to cooperate. The CUSTOMER shall accept reasonable functional enhancements that are commensurate with the effort involved and that are associated with a new release/update status as a measure to eliminate the defect. The CUSTOMER shall therefore in principle accept a new version of the software offered to it by ConnectedCare within the scope of the elimination of the defect. Basic upgrades which cause unreasonable consequential operating costs for the CUSTOMER shall be excluded from the acceptance.

(7) In the event of defects that do not significantly impede the operational process, the remedy may be postponed by providing software at the next suitable point in time at which ConnectedCare intended to provide other enhancements and/or modifications according to its planning.

(8) The software including the maintenance services, such as updates, may not be used for non-contractual purposes of third parties or made accessible to third parties. Any elimination of defects within the scope of software maintenance is reserved exclusively for ConnectedCare. Something else applies only in the event that ConnectedCare is not in a position to remedy a defect. Prior to the involvement of a third party, ConnectedCare's consent must be obtained in text form, which may not be arbitrarily refused.

(9) For modules which are directly licensed in by the CUSTOMER from third parties via the ConnectedCare platform, only these third parties shall provide warranty in accordance with the terms and conditions on which they based at the time of the conclusion of contract. Claims for material defects and damages against ConnectedCare due to defects of these third party modules do not exist. The CUSTOMER may assert such claims directly against the respective third party supplier.

(10) However, ConnectedCare has contractually obligated the third parties that offer modules via the ConnectedCare Platform to assume the warranty services vis-à-vis the CUSTOMER. The license and/or warranty conditions provided by the third party together with the module via the ConnectedCare Platform shall apply.

(11) Claims for defects with respect to third party software shall be asserted directly against the third party provider at the address specified in its license terms or deposited on the ConnectedCare Platform. Irrespective of this, ConnectedCare shall forward defect notifications received by its hotline, which should be as precise as possible, to the respective third party provider for taking action and shall support the CUSTOMER in asserting justified warranty claims against the third party provider to a reasonable extent if the latter does not comply with its warranty obligations and the CUSTOMER sufficiently informs ConnectedCare.

 

§ 6 License Fee

(1) The agreed license fees are to be paid in advance, subject to deviating special agreements, which require text form to be effective; regardless of whether the licensing is carried out by ConnectedCare or by a third party provider for whom ConnectedCare merely brokers the license and accordingly collects the license fees for the latter.

(2) The amount of the license fee to be paid in each case, which depends on the number of licensed contractual devices, results, subject to deviating special agreements, which require text form to be effective, from the prices displayed on the ConnectedCare Platform at the time the license is taken. They apply in each case plus statutory VAT.

(3) Insofar as they are not already stored in ConnectedCare's system, the CUSTOMER is obligated to provide all information required for proper invoicing, as required by the system, before accepting the license. This includes, among other things, the provision of the VAT number and the bank details through which the payment will be processed. The CUSTOMER promises that all this information is true and correct.

(4) Invoices may be issued to the CUSTOMER electronically if and to the extent that the electronically issued invoice complies with the formal requirements of the applicable (tax) law for electronic invoices at the time of issue and dispatch. If an electronically generated invoice does not comply with these requirements, the CUSTOMER shall notify ConnectedCare thereof without undue delay. Should this not occur, claims for damages due to this event shall be excluded.

(5) Payment of the invoice shall be made by bank transfer, by credit card, or PayPal or other payment services offered by ConnectedCare at the due date, or by direct debit authorization, unless payment by bank transfer has been agreed with the CUSTOMER in writing in the individual case. ConnectedCare is entitled to make the activation of the licensed modules for download dependent on the receipt of payment. The costs of return debit notes or of revocations shall be borne by the CUSTOMER, unless there is an error for which ConnectedCare is responsible.

(6) If, in deviation from the preceding paragraph (5), payment by bank transfer has been agreed, payment shall be due immediately. Upon expiry of the 30th day from the invoice date, default shall occur without further ado in the event of non-payment; reference is made to § 286 BGB.

(7) If the CUSTOMER defaults and does not pay the invoice in full despite a corresponding warning, which may also be sent electronically to an electronic address specified by the CUSTOMER, without there being a reported defect with respect to the modules, ConnectedCare shall be entitled, after issuing a reminder and setting a reasonable remedy period in text form, but no earlier than 3 months after the date of the reminder, to take the module concerned out of operation until payment has been made in full.

 

§ 7 Scope of Liability

(1) Any liability of ConnectedCare for modules which the CUSTOMER has created itself or has had created and installed on its devices via the ConnectedCare platform, as well as for the fact that these can be used faultlessly or compatibly with other programs installed on these devices, is excluded. This shall not apply if ConnectedCare has previously assured the functionality and compatibility in text form in response to a qualified inquiry by the CUSTOMER that contained a precise description of the project. However, ConnectedCare is in principle prepared to support the CUSTOMER against payment in the elimination of the problem or to arrange for such support.

(2) The liability of ConnectedCare for modules which the CUSTOMER has purchased (licensed) from third parties, technically mediated by ConnectedCare via the ConnectedCare platform, shall be governed by the applicable terms and conditions of the respective third party or the applicable law. Liability claims exist in this respect exclusively between the CUSTOMER and the third party mentioned. However, ConnectedCare is generally prepared to mediate between the CUSTOMER and the third party to an extent acceptable to ConnectedCare in order to promote the elimination of problems/errors. BEWAQTEC expressly points out that in the case of purchase/licensing of third party products, the Terms, e.g. in the form of end user agreements etc., of the third party shall also apply in addition to this contract and must be observed by the CUSTOMER.

(3) Advertising statements, program descriptions or specifications as well as verbal and other statements or promises with regard to modules of third parties are their statements and cannot be attributed to ConnectedCare unless ConnectedCare expressly and unequivocally adopts them as its own. ConnectedCare shall have no obligation to verify or monitor such statements and no obligation to provide information in this regard.

(4) Within the scope of the its performance duties under this Agreeemnt, ConnectedCare shall be liable in accordance with the degree of fault only in the event of intent and gross negligence. In the event of a breach of material contractual obligations, the fulfillment of which is a prerequisite for the proper performance of the contract and the observance of which the contractual partner may regularly rely on, ConnectedCare shall also be liable for negligent breach. ConnectedCare shall also be liable for negligent and intentional injury to life, limb or health. ConnectedCare shall not assume any liability for damage caused by third parties to the modules licensed by them in the course of remedying defects.

(5) In the event of liability, with the exception of damage caused intentionally by ConnectedCare, the liability shall be limited in amount as follows:

(a) in the case of a module licensed by ConnectedCare to the CUSTOMER, which is the attributable cause of the occurrence of the damage, to a maximum of the amount of the license fees paid by the CUSTOMER to ConnectedCare for this module in the period of three years, calculated at the time of the occurrence of the damaging event; or

(b) in the case of damage arising in connection with modules of third party suppliers, to a maximum of € 5,000.

(6) In any case, ConnectedCare's liability per case of damage shall be limited to the foreseeable direct damage typical for the contract.

(7) The CUSTOMER shall be obligated to perform regular data backups. ConnectedCare shall not be liable for the loss of data or programs to the extent that the damage is due to the CUSTOMER's failure to perform regular data backups and thus to ensure that lost data can be restored with reasonable effort.

(8) Insofar as ConnectedCare provides the CUSTOMER with software for a limited period of time, liability regardless of fault for defects that were already recognizable at the time the contract was concluded shall be excluded.

(9) The above provisions shall also apply in favor of the legal representatives, employees and vicarious agents of ConnectedCare.

(10) This Agreement is legally independent of any other contracts existing between the CUSTOMER and ConnectedCare. Termination of this agreement shall therefore not affect other contracts. If necessary, a separate written notice of termination must be given for these.

 

§ 8 Term of Contract, Termination

(1) For each individual module, this Agreement may be terminated with effect for the future by the CUSTOMER permanently by discontinuing the subscription to the relevant modules with optional notification in text form. If the CUSTOMER subsequently resumes the subscription of the modules by downloading them to its devices, these Terms shall again take effect immediately without further ado. The continued validity of these Terms for other modules shall not be affected thereby.

(2) In the same way, the CUSTOMER may terminate this Agreement for all modules with effect for the future by permanently discontinuing the subscription to all modules with optional notification in text form. If the CUSTOMER thereafter resumes the subscription of a module by downloading it to its devices, these Terms shall again enter into force immediately without further ado.

(3) A case of application of the preceding paragraph (1) or (2) shall not affect the license agreements concluded by the CUSTOMER with third party providers of the respective module on the occasion of the download. Termination, reversal and all other contractual claims for contracts concluded with third parties shall be governed by the legally independent agreements concluded with the third parties for the respective modules, so that the necessary declarations must be made to the respective third party provider. The validity of these Terms shall not be affected by the termination of contracts with third parties for the use of modules.

(4) This shall not affect the right of both parties to terminate these Terms for good cause. In particular, good cause shall also exist if, in the event of the opening of insolvency proceedings against the assets of the CUSTOMER, the insolvency administrator refuses to adhere to this Agreement.

 

§ 9 Assignments etc.

(1) The assignment of claims shall only be permissible with the prior written consent of the other contracting party. Excluded from this are claims of ConnectedCare for payment. Consent may not be arbitrarily refused. The provision of § 354 a HGB remains unaffected.

(2) A right of retention may only be asserted on the basis of counterclaims arising from the respective contractual relationship.

(3) The contracting parties may only offset claims that have been legally established or are undisputed.

 

§ 10 Data analysis

ConnectedCare collects and processes data, which is not personal data, during the operation of ConnectedCare system components (hardware and software) on a data network for the purposes of defect prevention/elimination, system maintenance, improvement and development of products and services and their efficient use. If and insofar as this data allows conclusions to be drawn about natural persons, it will be anonymized on the occasion of the collection in such a way that no conclusion can be drawn about the natural persons concerned. The CUSTOMER agrees to this, insofar as this is required by law.  The customer-related data collected in accordance with the preceding sentence, with the exception of personal data, shall be made available by ConnectedCare to the CUSTOMER in a format readable with the MATOMO analysis tool. By obtaining an analysis tool (MATOMO), the CUSTOMER is given the opportunity to use the data for himself in a three-stage concept up to 100%. ConnectedCare is not obligated to provide the CUSTOMER with such data that ConnectedCare does not collect for its own purposes pursued within the scope of § 10 sentence 1. The rights from the DSGVO remain unaffected.

 

§ 11 Applicable Law & Dispute Resolution

(1) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

(2) The parties shall seek to resolve differences of opinion through negotiation as soon as possible after they arise.

(3) The exclusive place of jurisdiction for all legal disputes arising from or in connection with this contract shall be Münster (registered office of ConnectedCare). However, ConnectedCare shall also be entitled to bring an action at the CUSTOMER's general place of jurisdiction.

 

§ 12 Code of Conduct

We are part of the Phoenix Mecano Group and observe its Code of Conduct, which can be viewed on our website.

 

§ 13 Final provisions

(1) The provisions of these Terms contain, with regard to their respective subject matter, all agreements made between the parties, unless special agreements have been made in writing. Verbal subsidiary agreements have not been made and must be in writing in order to become effective.

(2) Amendments and supplements to the contents of the contract agreed in these Terms must be made in writing. This formal requirement may only be waived by agreement in writing.

(3) The CUSTOMER agrees that ConnectedCare may include the CUSTOMER in its customer reference list and thereby advertise that the CUSTOMER makes use of ConnectedCare's offer and uses it in its facility. At the same time, the CUSTOMER is granted the right to advertise that it offers ConnectedCare equipment and services in its facility.

 

Status 15 January 2024

 

of

ConnectedCare GmbH
Orkotten 65
48291 Telgte

for business with customers (hereinafter "CUSTOMER") who use ConnectedCare multimedia systems in their facilities.

 

Preliminary Remarks:

ConnectedCare has been granted a sublicense by a so-called content aggregator which enables ConnectedCare to provide the CUSTOMER with a wide range of digitally available print, audio and video content (VoD, AoD, PoD) - for the purpose of consumption of this multimedia content by patients at the bedside.
For this purpose, the Content Aggregator will place the multimedia content on a server, the content of which will be mirrored 1:1 to a server installed at ConnectedCare and from there to a server installed at the CUSTOMER's premises.
The patients have access to all multimedia content at their bedside via the ConnectedCare multimedia terminals installed there. Software is installed on the hardware, via which the patients can select the desired multimedia content and consume it once. The respective use by the patients is recorded by the software. The billing of the accruing fees for the use takes place between the patient and the CUSTOMER via a prepaid chip card system or comparable systems of the CUSTOMER. CUSTOMER shall pay fees to ConnectedCare for each act of use by a Patient in accordance with this Agreement. That being said, ConnectedCare and CUSTOMER agree as follows:

 

§ 1 General

(1) The contractual terms and conditions set forth below shall apply exclusively. ConnectedCare does not recognize any deviating terms and conditions of the CUSTOMER unless ConnectedCare expressly agrees to their validity in writing. These contractual terms and conditions shall also apply if ConnectedCare performs a service without reservation in the knowledge of deviating terms and conditions of the CUSTOMER.

(2) No verbal side-agreements have been made with respect to the subject matter of the Agreement described below.

 

§ 2 Start of Validity

(1) Unless otherwise agreed, the contractual relationship between ConnectedCare and the CUSTOMER relating to the subject matter of this Agreement shall come into existence either

(a) by the CUSTOMER placing an order in text form relating to the subject matter of the Agreement and ConnectedCare accepting such order in text form; or

(b) by an offer in text form from ConnectedCare relating to the subject matter of the Agreement and placement of the order by CUSTOMER in text form; or

(c) by a declaration of consent submitted electronically in the password-protected customer area of ConnectedCare's website using CUSTOMER's identification and password.

(2) If ConnectedCare confirms a verbally placed order in text form, the Agreement shall be concluded with the content of the order confirmation, unless the CUSTOMER objects to the content in writing within three weeks after receipt of the order confirmation.

 

§ 3 Subject matter of the Agreement & services

The subject matter of the services under these General Terms and Conditions is the delivery and restricted personal use of multimedia content on ConnectedCare multimedia terminals supplied to the CUSTOMER.

 

§ 4 Definitions

(1) "Multimedia Content" means the print, audio and video content (VoD, AoD, PoD) in electronic format which ConnectedCare makes available to the CUSTOMER on the basis of the sublicense taken for use in accordance with this Agreement.

(2) "Licensed location" means the premise(s) of the CUSTOMER expressly named upon acceptance of the order and in which unlocked ConnectedCare end devices connected to a network are available.

(3) "Terminal Equipment" means the ConnectedCare multimedia terminal equipment of the CUSTOMER present and activated at the licensed location.

(4) "End Distribution Server" means CUSTOMER's server hardware unit at the licensed location that meets ConnectedCare's specifications, on which the server software is operated, in the system directory of which the multimedia content mirrored by ConnectedCare over the Internet is stored and accessed by patients on their end devices.

 

§ 5 Services of ConnectedCare

(1) For the term of this Agreement, ConnectedCare shall provide the CUSTOMER with the software for the end distribution server required for mirroring the multimedia content as well as distribution to the end devices for use in accordance with this Agreement, as well as the software provided for managing the payment/usage transactions.

(2) ConnectedCare shall maintain the aforementioned software in order to ensure the essentially smooth interoperability of the versions of the terminal equipment and the end distribution server installed at CUSTOMER during ongoing operation.

(3) ConnectedCare shall, depending on the multimedia content provided to it by the content aggregator for this purpose, update the multimedia content mirrored to the end distribution server in a format that the end devices can display or play and for which a charge can be made.

(4) ConnectedCare intends to keep the offer of multimedia content up to date and to expand it, if necessary. However, the CUSTOMER shall not have a claim to the provision of individual, specific contents, since these are dependent on the offer of the rights holders and ConnectedCare itself has little or no influence on the selection. The CUSTOMER also has no claim to regular updating of the program, which hall be done at ConnectedCare's reasonable discretion.

(5) By way of sublicense, ConnectedCare grants CUSTOMER for the term of this Agreement the simple, non-exclusive right, limited in time for the duration of the license fee payment, to transfer at the licensed location any number of multimedia contents from the final distribution server on demand by a user who has paid the fee for this in each case by technical means (e.g. prepaid chip card) to a terminal device and to temporarily store, display, and/or play them there for the consumption of this user.

(6) The rights of use granted pursuant to the preceding paragraph do not include the rights administered by collecting societies (e.g. GEMA, GVL, VG Wort, etc.). The Customer shall bear the obligation to pay all fees incurred thereby.

(7) The sublicense granted above does not entitle the CUSTOMER to make copies of Multimedia Content for other purposes, to transfer Multimedia Content to other than the aforementioned data storage devices, to edit Multimedia Content as well as to use it in any other way than agreed upon in this Agreement.

(8) Upon termination of this agreement, all rights shall automatically revert to the right's holder. The CUSTOMER shall no longer be entitled to use or to procure the use. At the time of termination of this Agreement, ConnectedCare shall be entitled to delete all duplicate pieces of multimedia content on the end distribution server and, if applicable, on the end devices and other data storage devices. If ConnectedCare fails to do so, the CUSTOMER shall be obligated to delete and shall provide evidence of such deletion by suitable means (e.g. by affidavit) upon ConnectedCare's request.

(9) ConnectedCare warrants that it has been granted a sublicense with sublicensing rights for the contractual use of the multimedia content by the CUSTOMER and that it is not prevented from concluding and fulfilling this Agreement by any other obligations. ConnectedCare has obtained a contractual assurance from the content aggregator that no copyrights or ancillary copyrights of third parties are infringed by the contractual use of the content. To the extent that the content aggregator nevertheless actually indemnifies ConnectedCare against copyright infringements asserted by third parties, ConnectedCare shall also warrant this to the CUSTOMER.

 

§ 6 Obligations of the CUSTOMER

(1) During the term of this Agreement, the CUSTOMER shall be responsible for providing the data network infrastructure that is technically necessary for ConnectedCare to fulfill its obligations. The CUSTOMER shall maintain and repair this data network infrastructure accordingly and ensure its basic permanent availability. A performance failure due to a circumstance for which the CUSTOMER is responsible or which is attributable to the CUSTOMER or which originates from the CUSTOMER's sphere of risk shall not release the CUSTOMER from its payment obligations.

(2) The CUSTOMER is obligated to take the precautions that are technically possible and necessary to ensure that its own employees or third parties present at the licensed location with the CUSTOMER's consent (patients, craftsmen, service providers, etc.) do not perform any unlicensed actions on multimedia content, in particular the actions specified in § 5(7).

(3) During the term of this Agreement, the CUSTOMER is obligated to refrain from loading or storing content (e.g., video-on-demand, audio-on-demand, e-books, and electronic journals) that is economically or functionally identical to the multimedia content on the distribution server and then transferring it from there to end devices. However, this does not apply to the intermediate storage of the multimedia content that can be freely accessed from the Internet by patients via a web browser, such as podcasts, games, YouTube content, radio or television broadcasts distributed via the Internet, etc.

(4) It is the responsibility of the CUSTOMER to take appropriate precautions in its sphere to ensure that no interventions are made to end devices and the end distribution server which could be suitable for impairing the function of the digital rights management system for the Multimedia Content and/or the usage recording and billing programs. In the event of a dispute, the CUSTOMER must prove that these precautions were taken and that the interference was nevertheless unavoidable.

(5) The CUSTOMER is obligated to always properly compensate the rights legally administered by collecting societies (e.g. GEMA, GVL, VG Wort, etc.). ConnectedCare shall be entitled to request information from the CUSTOMER in this regard; the CUSTOMER shall provide this information truthfully and promptly.

(6) In the event of a breach of one of the obligations under the preceding paragraphs (2) to (5) and if claims are asserted against ConnectedCare by third parties in this connection, the CUSTOMER shall indemnify ConnectedCare against such claims unless the CUSTOMER is not at fault for the circumstance that triggered the third party's claim against ConnectedCare and is also not otherwise attributable to the CUSTOMER or originates from the CUSTOMER's sphere of risk.

(7) The same shall apply in the event that the CUSTOMER or its vicarious agents or patients use the multimedia content covered by the Agreement beyond the scope granted.

(8) ConnectedCare is contractually obligated to provide the Content Aggregator with access to the end distribution server as well, so that the Content Aggregator can verify compliance with the obligations under the preceding paragraph (4), which have also been imposed on ConnectedCare accordingly. The CUSTOMER is therefore obligated to grant the Content Aggregator, as well as ConnectedCare, physical control of the end distribution server or control of remote access via the data network upon request to a reasonable extent and at reasonable intervals. The CUSTOMER shall support the Content Aggregator as well as ConnectedCare in exercising the right of inspection.

(9) As operator of the system with the terminal equipment, it is the CUSTOMER's responsibility to implement all regulations for the protection of minors. The CUSTOMER shall be obligated to notify ConnectedCare immediately after discovery of any multimedia content which it considers immoral or grossly offensive and which, in the opinion of the CUSTOMER, should not be retrievable in the system, so that ConnectedCare can remove it from the server.

(10) The CUSTOMER is obligated in its own interest to create backup copies of the server contents at regular intervals.

 

§ 7 Billing Modalities, Remuneration

(1) The end devices and the end distribution server are operated by the CUSTOMER under its own responsibility, i.e. at its own expense and risk. The same applies to the data carrier-supported prepaid payment system (chip cards, etc.), so that legally a contract between user (patient) and the CUSTOMER comes into being when consuming multimedia content. Accordingly, the CUSTOMER accepts the payments of the users at the prepaid machines or other payment facilities and accounts for them accordingly.

(2) This agreement thus exclusively regulates the rights and obligations between ConnectedCare and the CUSTOMER, which include the remuneration of ConnectedCare for the services according to § 5. This remuneration shall be paid on an ongoing basis for each individual act of use performed (retrieval of multimedia content by users/patients), whereby this act shall be linked on the software side to end devices, but in no case to personal data, by means of EDP. The CUSTOMER is not obliged to disclose any personal data of users (e.g. patients) to ConnectedCare and shall refrain from doing so.

(3) Prior to the conclusion of the agreement, the CUSTOMER had comprehensive opportunity to inform itself about the accounting system implemented on the software side, which records and accounts for the individual acts of use. During the term of this Agreement, the CUSTOMER shall have the opportunity (except in the event of operational disruptions) to access the acts of use logged there at the licensed location and the billing status via the internet portal ConnectedCare (BMS = ConnectedCare Management System), as described in the user documentation.

(4) The CUSTOMER shall be obligated to notify ConnectedCare in text form without undue delay of any discrepancies existing from the CUSTOMER's point of view during the inspection pursuant to the preceding paragraph (3) and to support ConnectedCare to the extent necessary in clarifying the respective facts. If, from the CUSTOMER's point of view, there is a discrepancy recognizable upon inspection and this is not objected to in text form within a period of one month, the data concerned shall be deemed to be correct unless the CUSTOMER proves otherwise.

(5) The amount of the remuneration to be paid by the CUSTOMER to ConnectedCare for a particular case of use shall be determined by the respective valid price list of ConnectedCare, which the CUSTOMER can view in the customer area of ConnectedCare on the Internet. ConnectedCare is entitled to adjust the remuneration rates annually. ConnectedCare may make an unscheduled adjustment if the content aggregator increases its remuneration. However, the increase vis-à-vis the CUSTOMER shall be limited to the amount of the increase, which shall be passed on by ConnectedCare on a 1:1 basis. Increases shall be announced by ConnectedCare at least 30 days prior to the occurrence of the increase. The announcement shall be made by ConnectedCare posting the price increase in the customer area of the Internet portal ConnectedCare with access by the CUSTOMER. ConnectedCare may also notify the CUSTOMER of price increases by mail or e-mail.

(6) ConnectedCare shall invoice the CUSTOMER for the fees monthly at the end of the month. The acts of use shall only be summarized in the invoice, since the individual uses can be viewed online by the CUSTOMER in accordance with paragraph (3) and are thus transparent. The invoice may also be transmitted electronically (e.g. by e-mail), provided that the electronic invoice complies with the formal requirements under tax law. In the event that the electronically transmitted invoice does not comply with the formal requirements, the CUSTOMER shall immediately notify ConnectedCare thereof in text form. Any claims of the CUSTOMER against ConnectedCare based on an invoice that does not comply with the formal requirements shall be excluded if the CUSTOMER fails to notify ConnectedCare immediately in text form.

(7) Invoices are due for payment immediately without deductions as soon as ConnectedCare has dispatched them or posted them in ConnectedCare.

(8) Payment shall generally be made on the billing date by direct debit on the basis of a direct debit authorization granted by the CUSTOMER for this purpose, unless a different payment agreement has been made in writing.

(9) Upon expiration of the 14th day from the invoice date, default shall occur and the statutory default interest shall be paid. Particularly in view of the fact that ConnectedCare is permanently liable to pay the Content Aggregator, the CUSTOMER's right of retention and/or set-off for remuneration is excluded, unless ConnectedCare has acknowledged the counterclaim or its existence has been legally established by a court.

 

§ 8 Interruptions

ConnectedCare shall be released from the obligation to deliver the multimedia content for the time during which any disruptions of the internal network exist at the licensed location at the CUSTOMER or on the Internet, which significantly impair or prevent the distribution of multimedia content to end devices. If the disruption that releases ConnectedCare from the obligation to perform in accordance with this § 8 is not the fault of the CUSTOMER, is not attributable to the CUSTOMER, does not originate from the CUSTOMER's sphere of risk, and the CUSTOMER cannot demand compensation for these costs from a third party in the event of payment despite the disruption, the CUSTOMER shall also be released from the obligation to perform on a pro rata basis for the duration of the disruption.

 

§ 9 Scope of Liability

(1) ConnectedCare shall be liable within the scope of the services under this Agreement depending on fault only in case of intent, gross negligence as well as in case of negligent violation of essential contractual obligations, the fulfillment of which enables the proper performance of the Agreement in the first place and on the compliance with which the contractual partner may regularly rely as well as in case of injury to life, limb or health. ConnectedCare shall not assume any liability for damage caused by third parties to the application software licensed by them to the CUSTOMER in the course of remedying defects.

(2) In the event of liability, with the exception of damage caused intentionally by ConnectedCare, liability shall be limited in terms of amount; namely, in the case of multimedia content licensed by ConnectedCare to the CUSTOMER which is attributable to the cause of the occurrence of the damage, to the amount of the license fees paid by the CUSTOMER to ConnectedCare for this multimedia content in the period of one year, calculated at the time of the occurrence of the damage event; or, in the case of damage arising in connection with application software of third party providers, to € 10.000,-.

(3) In any case, ConnectedCare's liability per case of damage shall be limited to the foreseeable direct damage typical for the Agreement.

(4) The CUSTOMER shall be obligated to perform data backups at regular intervals. ConnectedCare shall not be liable for the loss of data or programs to the extent that the damage is due to the CUSTOMER's failure to perform regular data backups and thereby to ensure that lost data can be restored with reasonable effort.

(5) Insofar as ConnectedCare provides the CUSTOMER with software for a limited period of time, liability without fault for defects that were already present at the time the Agreement was concluded shall be excluded.

(6) The above provisions shall also apply in favor of the statutory legal representatives, employees and vicarious agents of ConnectedCare.

(7) An error/defect does not exist if the software does not meet the objective requirements, i.e. if the software is not suitable for the usual use or does not have the usual quality. The decisive factor is the suitability for the contractual purposes.

 

§ 10 Term of Agreement, Termination

(1) This Agreement on the 'delivery' of multimedia content is initially concluded for a term of two (2) years from the date of the first provision of multimedia content on the end distribution server. Thereafter, the term of this Agreement shall be extended by one (1) additional year at a time unless terminated by either party in text form with two (2) months' notice to the end of each term year. Unless expressly stated otherwise in the notice of termination, the termination shall exclusively affect the rights and obligations under this Agreement; other agreements between the CUSTOMER and ConnectedCare shall continue to exist.

(2) For a period of one month from the announcement of a price increase, the CUSTOMER shall be entitled to terminate this Agreement in text form with a notice period of 14 days due to the increase. The timely dispatch of the notice of termination shall be sufficient to meet the deadline.

(3) The right of each party to terminate this Agreement for good cause shall remain unaffected. In particular, good cause shall also exist if, in the event of the opening of insolvency proceedings against the assets of the CUSTOMER, the insolvency administrator refuses to enter into this Agreement.

(4) This Agreement is legally independent of any other contracts existing between the CUSTOMER and ConnectedCare. Termination of this Agreement shall therefore not affect any other contracts. For these, if necessary, a separate termination must be made in text form.

 

§ 11 Assignments etc.

(1) ConnectedCare is entitled to have the fee for the use of the multimedia content collected by a collection or factoring company. In all other respects, the assignment of claims is only permissible with the prior written consent of the other contracting party. Such consent may not be arbitrarily withheld. The provisions of § 354a of the German Commercial Code (HGB) shall remain unaffected.

(2) A right of retention may only be asserted on the basis of counterclaims arising from the respective contractual relationship.

(3) The contracting parties may only offset claims that have been legally established or are undisputed.

 

§ 12 Applicable Law & Dispute Resolution

(1) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

(2) The parties intend to resolve disagreements by negotiation as soon as possible after they arise. Both parties declare their willingness, in the event of a dispute appearing to be insoluble in this way, to participate, at the request of the respective other party, in mediation proceedings in accordance with the Mediation Rules of the German Institution of Arbitration e.V. (DIS) with regard to all disputes arising from or in connection with this Agreement or one of its chapters. (DIS), the costs of which shall be borne 50% by each party. Each party shall attend at least one meeting with the mediator and the other party.

(3) The exclusive place of jurisdiction for all legal disputes arising from or in connection with this Agreement shall be Münster (registered office of ConnectedCare). However, ConnectedCare shall also be entitled to bring an action at the CUSTOMER's general place of jurisdiction.

 

§ 13 Code of Conduct

We are part of the Phoenix Mecano Group and observe its Code of Conduct, which can be viewed on our website.

 

§ 14 Final provisions

(1) The provisions of these General Terms and Conditions contain, with respect to their respective subject matter, all agreements made between the parties, unless special agreements have been made in text form. No verbal subsidiary agreements have been made.

(2) Amendments and supplements to the contents of the Agreement agreed in these General Terms and Conditions must be made in writing. This formal requirement may only be waived by agreement in writing.

(3) The CUSTOMER agrees that ConnectedCare may include the CUSTOMER in its customer reference list and thereby advertise that the CUSTOMER makes use of ConnectedCare's offer and uses it in its facility. At the same time, the CUSTOMER is granted the right to advertise that it offers ConnectedCare equipment and/or services in its facility.

(4) Should individual provisions of the contractual content agreed in these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.

 

Status 15 January 2024

 

§ 1 Applicability and Scope of Application

(1) ConnectedCare GmbH ("We" or "us") purchases/procures goods (including hardware and other products), software and services (including services) exclusively in accordance with the following General Terms and Conditions of Purchase ("GTCP") from Suppliers.

(2) General Terms and Conditions of Sale and Delivery or other deviating terms and conditions of a Supplier shall not apply unless they have been expressly accepted by us in text form. These GTCP shall also apply in all cases in which we accept the Supplier's deliveries without objecting to its terms and conditions deviating from these GTCP (regardless of whether we are aware of them or not). All references or references by the Supplier to the validity of its General Terms and Conditions of Sale and Delivery (e.g. in offers) or other deviating terms and conditions are hereby expressly rejected. These GTCP shall also apply to all future transactions with the Supplier.

(3) All agreements between the Supplier and us in connection with contracts for the delivery of goods, software and/or the provision of services must be in text form to be effective. The text form shall be deemed to have been complied with if the transmission is made by means of telefax, e-mail or by way of electronic data traffic.

(4) These GTCP shall only apply to entrepreneurs and legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).

 

§ 2 Conclusion of Contract

(1) Our inquiries with the Supplier about its goods, software and/or services and the terms and conditions of their delivery/performance or our requests for offers shall not be legally binding for us in any way until a final order is placed by us; in particular, such inquiries shall not constitute an offer within the meaning of § 145 BGB.

(2) Our order (whether placed independently or under a framework agreement incorporating these GTCP is an offer to the Supplier to purchase or obtain goods, software and/or services from it. Our orders shall only be binding if they are made in text form, by fax, e-mail or by way of electronic data traffic.

(3) A binding contract for the delivery of goods, software and/or the provision of services by the Supplier (hereinafter also referred to as "Supply Contract") including these GTCP (and, if any, on the basis of a framework agreement) shall be concluded by

(i) our order in text form submitted to the Supplier by us, and

(ii) the acceptance of the order by the Supplier in text form in the form of an order confirmation, which must be received by us within 5 calendar days after the date of the order.

After expiry of this period, we shall no longer be bound by our offer / order. An order confirmation received later or differing in content from the order shall be deemed a new offer for sale by the Supplier and must be accepted by us in text form.

(4) If the framework agreement or the purchase order or the supply agreement provides for the goods/software to be determined by us by means of delivery call-offs, these delivery call-offs shall become binding 3 working days after they have been transmitted to the Supplier, provided that the Supplier has not objected to them by then. The quantity divisions specified within the production release in the respective delivery call-off shall be deemed to be fixed order items. Quantity allocations exceeding this are non-binding, unless otherwise agreed in text form. A requirement establishing a duty to accept excess quantities is hereby expressly rejected to. Any order confirmations of the Supplier to the contrary shall be invalid.

 

§ 3. Prices, Terms of payment, Retention of Title

(1) The prices and terms of payment are bindingly stipulated in the framework agreement or individual contract. The agreed prices are fixed prices and include all services, such as packaging, handling, sorting and transport costs, required to fulfill the contract.

(2) The applicable statutory value added tax is not included in the price and shall be shown separately in the invoice. Likewise, the VAT ID of the Supplier shall be indicated, in particular for business transactions in the EU.

(3) Invoices shall be submitted separately from the Deliveries, stating the purchase order number specified in the purchase order, the purchase order date and our material number (if specified); the Supplier shall be responsible for all consequences arising from non-compliance with this obligation, in particular costs incurred by us as a result; this shall not apply if the Supplier is not at fault.

(4) Unless otherwise separately agreed, we shall make net payments within 30 days of receipt of the invoice, but not before delivery of the goods and/or software and/or performance of the service. Fees for international payment transactions shall be borne by the Supplier.

(5) Our payments do not imply any acknowledgement of the contractual conformity of the goods, software and/or services or regularity of the calculation.

(6) Even if the Supplier has assigned a claim against us to a third party, we may pay the Supplier with discharging effect.

(7) Upon full payment of the purchase price, the goods and/or software shall become our property in full. Any extended or expanded retention of title by the Supplier to the goods and/or software shall be voided upon payment of the agreed price.

(8) The offsetting of claims of the Supplier against us shall only be permissible in the case of undisputed or finally adjudicated claims. The Supplier may only exercise its right of retention against us if the Supplier's counterclaim on which it bases its right of retention is based on the same contract and is undisputed or has been finally adjudicated.

 

§ 4 Delivery and Transfer of Risk

(1) Delivery shall be made DDP (Incoterms 2010) to the delivery address stated in the order or in the framework agreement; unless we have expressly agreed otherwise.

In the case of works/software requiring acceptance, the risk shall only pass upon acceptance (cf. § 8).

(2) All goods and/or software must be properly packaged, labeled and shipped with due commercial care. The packaging must be reusable.

(3) The Supplier shall enclose the corresponding delivery bills with the deliveries. Our order number, the part number and the Supplier number shall be indicated on the delivery bills.

Unless otherwise agreed in the delivery contract, all markings shall be in German or English and as bar codes.

 

§ 5. Delivery Dates and Delay in Delivery, Force Majeure

(1) The delivery time specified in our order, the individual contract or delivery call-offs shall be binding and shall commence - unless a specific delivery date is specified - on the date of issue of the order. Decisive for compliance with the delivery time is the receipt of the contractual goods and/or software or the performance of the service by us or at the agreed place of use.

(2) Acceptance of deliveries at our plant in Telgte is only possible Monday - Thursday from 7:30-15:45 and Friday from 7:30-12:00. If these unloading times are not observed, the goods will only be accepted on the following unloading day. The resulting costs and the risk of accidental loss shall be borne by the Supplier. We shall not be in default of acceptance due to delivery outside these times; unless we are responsible for the failure to comply with the unloading time and it is not attributable to the Supplier and does not originate from its sphere of risk. Increased traffic volume must always be taken into account by the Supplier in his delivery times.

(3) We are not obliged to accept early deliveries, over-deliveries or partial deliveries not agreed upon. The Supplier shall bear the risk of loss for goods / software delivered before the delivery date. We may return over-deliveries at the Supplier's expense; the Supplier shall bear all packaging, handling, sorting and transport costs thereof. We may store any goods/software or over-deliveries delivered prior to the applicable delivery date under clause 5(1) at the risk and expense of the Supplier until the due delivery date, and no performance shall be effected by the early delivery in particular; such performance shall only occur on the agreed delivery date.

Even if we accept early deliveries or over-deliveries, the payment claim will be due on the due date according to the scheduled delivery date.

(4) The Supplier shall be obliged to inform us immediately in text form, stating the reason, if circumstances occur or become apparent to it which indicate that the agreed delivery time cannot be met. Acceptance of a delayed delivery shall not constitute a waiver of any further rights and claims; in all other respects, the statutory provisions shall apply.

(5) In the event of a delay in delivery, we may demand 0.2%, but not more than 5%, of the order value of the goods/software/service concerned as liquidated damages for each calendar day of delay commenced. However, the Supplier shall be entitled to prove that we have suffered less damage or no damage at all. Instead of the liquidated damages, we may assert our statutory claims. Further statutory claims shall remain unaffected by this provision.

 

§ 6. Quality Management and Work Safety, Health- and Environmental Protection

(1) The Supplier shall comply with the recognized rules of technology, the respectively applicable environmental and safety regulations, any standards (e.g. DIN, EN, UL, ETL, ETSI, etc.), the agreed technical specifications, and the agreements on the QM system.

Insofar as the Supplier has received drawings, samples or other regulations or documents from us, it shall comply with them as far as the design and the quality characteristics of the goods/software are concerned. At the same time, all rights to drawings, samples and the like shall remain with us and the Supplier shall only be permitted to use them exclusively for the performance of the contract.

(2) If the goods/software to be delivered by the Supplier are intended for use in countries other than the Federal Republic of Germany, these goods/software must comply with the statutory provisions of those countries in which they are to be used, provided that the place of final use is known to the Supplier. If the Supplier has reason to believe that this is a country other than the country of the delivery address, the Supplier shall be obliged to enquire with us accordingly. The Supplier shall comply with all legal, environmental, personnel and safety standards and requirements in the country where the goods/software are manufactured and purchased, and shall take into account the prevailing conditions in the areas of environment (climate), electricity and electromagnetic fields.

(3) The Supplier undertakes to analyze and check the specifications and drawings of the goods/software prior to the conclusion of the supply contract and to notify us immediately of any errors, discrepancies, etc. Upon request, the Supplier shall participate in all our or our customers’ quality and development programs.

(4) We may, upon reasonable notice, and during normal business hours at such intervals as we deem necessary, which shall not be unreasonable, make reasonable inspections of the facilities where the Supplier manufactures the goods/software. Upon prior agreement, our customers shall also be granted a corresponding right to audit, limited to the facilities at which the Supplier manufactures the relevant goods/software for the customer in question. The Supplier shall ensure that the same audit right is also given to us by its sub-suppliers.

(5) Any changes to the goods/software to be made on the basis of the result of the inspection shall also require our prior consent in text form.

(6) The delivery of the first series delivery of a new or somehow modified product/software may only be started after receipt of our release notice in text form, stating that the initial sampling is successfully completed in accordance with our quality requirements and specifications. Separate quality agreements that will take precedence may be required, depending on the complexity. The Supplier must ensure that this sampling can be carried out in good time so that delivery can be made within the delivery/call-off deadlines.

(7) If the Supplier intends to relocate its production facilities or its production site, it shall give us reasonable advance notice thereof; in doing so, it shall observe a period of at least 6 months until the start of the dismantling or relocation of production equipment and shall pre-produce goods/software in the necessary quantity. The relocation scenario shall be notified to us at the time of the relocation notification by the Supplier by means of a schedule. In all other respects, the Supplier shall consult with us on an ongoing basis about any effects on the production and delivery of the goods/software and, in particular, organize a new initial sample submission of the parts upon completion of such relocation.

(8) All quality-relevant documents, in particular release declarations, shall be kept for a period of at least 10 years after the end of series production of the relevant series.

 

§ 7. Notice of Defects

(1) If the purchase is a commercial transaction for both parties, we shall inspect the goods after delivery, as is feasible in the ordinary course of business, and, if a defect becomes apparent, notify the Supplier thereof.

(2) If we fail to give notice, the goods shall be deemed to have been approved, unless the defect was not recognizable during the inspection and did not remain undetected due to gross negligence.

(3) If such a defect is discovered later, the notification must be made after discovery; otherwise the goods shall be deemed approved also in view of this defect.

(4) The timely dispatch of the notification shall be sufficient to preserve our rights.

(5) If the Supplier has concealed the defect, it may not invoke these provisions.

 

§ 8. Acceptance

(1) Insofar as the Supplier owes a work or the delivery of a work that are non-fungible items, a formal acceptance within the meaning of § 640 of the German Civil Code (BGB) is required, for which an express declaration in text form is required. We shall prepare an acceptance report on the acceptance, which shall contain information on the time, place, any defects in the work delivered and other comments which shall be signed by us and the Supplier.

(2) If the inspection of the work requires commissioning or putting into use for test purposes, acceptance shall only take place after successful completion of the test.

(3) Payments on our part as such do not mean that the work delivered or the work performed is accepted by us.

 

§ 9. REACH Compliance and Information Requirements/RoHS EU Directive 2011/65/EC

(1) The Supplier undertakes to comply with the REACH Regulation (Regulation EC No. 1907/2006) with regard to the goods delivered to us including packaging. The Supplier guarantees in particular that the delivered goods/products and their packaging do not contain any substances of the respective current candidate list according to Art. 53 para. 1 of the Regulation in an amount exceeding 0.1 % by mass (SVHC substances). The Supplier is obliged to (pre-) register all substances delivered to us itself or by sub-suppliers, if it is subject to registration obligations according to REACH. If the Supplier itself is not subject to registration under the REACH Regulation, it shall oblige its suppliers to comply with their obligations under REACH who must also require their suppliers to do so. Upon request, we shall be provided with proof in text form of any registration made by the Supplier or its upstream suppliers with regard to the delivered goods.

(2) Supplier shall ensure that, if goods/products delivered by it or their packaging contain substances covered by REACH, they are registered in accordance with REACH. He undertakes to provide us with all information and documentation required by the Regulation (in particular pursuant to Art. 31 et seq. of the REACH Regulation) within the deadlines provided for in REACH or to forward the information of his upstream Supplier to us without delay.

(3) If claims are asserted against us by customers, competitors or authorities due to a violation of the REACH regulations which is attributable to goods of the Supplier, then we shall be entitled to demand that the Supplier indemnify us against such claims or compensate us for the damage caused by the non-existing REACH conformity.

(4) The above obligations apply accordingly (with the exception of the registration obligations) if the Supplier is based in a non-EU country. In particular, he must inform if a SVHC substance greater than 0.1% is contained or substances covered by REACH may be released during normal and foreseeable use.

(5) The Supplier shall fully comply with the environmental requirements under German and European law, including the EU Directive 2011/65/EC "Restriction of the use of certain hazardous substances in electrical and electronic equipment" and the Electrical and Electronic Equipment Act.

(6) Electrical and electronic equipment of each equipment category as well as components for these must comply with the substance prohibitions of the EU Directive 2011/65/EC and the laws, regulations, decisions and other provisions issued for its implementation. The Supplier must provide a declaration of conformity in text form for this purpose. This equipment must bear a CE mark and the symbol in accordance with Annex IV of EU Directive 2002/96/EC (WEEE).

(7) The Supplier warrants that all products comply with the requirements of the RoHS Directive in accordance with clauses 1 and 2 above. The Supplier shall reimburse all damages and expenses (including costs of legal prosecution) and for all claims of third parties based on a violation of the RoHS Directive or other applicable environmental regulations for which the Supplier is responsible.

 

§ 10 Material Defects

(1) The Supplier warrants that all goods/software delivered by it

(i) conform to our specifications, samples, drawings and other requirements for the product/software,

(ii) are free from defects (in particular in design, manufacture and materials),

(iii) are suitable for the purposes for which we ordered them, insofar as these purposes are known to the Supplier.

(iv) conform at all relevant times with the requirements of §§ 475b, 475c BGB (e.g. software updates must be made available during the product life cycle).

(2) If we discover goods/software prior to the start of production (i.e. processing, installation or the installation) that do not meet the requirements pursuant to Section 10(1) ("Defective Parts"), the following shall apply:

(i) The Supplier must, at our discretion, immediately deliver defect-free new goods/software (replacement parts) or remedy / repair the defects of the defective parts (jointly "subsequent performance"). The Supplier shall enable us to update software throughout the product life-cycle and make available to us an opportunity to allow our customers to update the products that were supplied by it to us. Any sorting work or other rectification work that may be required shall be carried out by the Supplier in consultation with us on our company premises.

(ii) The Supplier shall bear all costs incurred by it or us due to the delivery of the defective products (in particular costs for sorting, transport, the examination- including research and development expenses - of the causes for the defects, etc.).

(3) If a defect is detected after the start of production, the provisions in Clause 10(2) shall apply first; in addition, the following shall apply:

(i) If a defect is detected before our products are delivered to our customers, the Supplier shall additionally bear the costs for all rectifications (labor costs, material costs, etc.) that become necessary on our products.

(ii) If a defect is only discovered after our products have already been delivered to our customers, the Supplier shall additionally bear that part of the costs incurred for a return and/or field measures which correspond to the Supplier's contributory cause or fault. We shall notify the Supplier as soon as such defects occur and inform him of the further procedure and the measures to be taken.

(4) If the supplementary performance fails, is unreasonable for us or if the Supplier does not begin with it immediately, we may withdraw from the delivery contract without setting a further deadline and return the goods/software at the Supplier's risk and expense.

In these and other, urgent cases, in particular to avert acute danger or to avoid major damage, and if it is no longer possible to inform the Supplier of the defect and to set him a reasonable, albeit short, deadline for remedial action, we may remedy the defect ourselves or have it remedied by a third party at the Supplier's expense.

(5) In all other respects, the statutory provisions shall apply in addition (in particular with regard to our right to a reduction in price, compensation for damages and reimbursement of expenses).

(6) The limitation period for claims for defects is 36 months, calculated from the transfer of risk, except for the update duty in regard to which the statutory periods of prescription apply. This shall also apply to repaired or newly delivered parts. If the Supplier, with our consent, inspects the existence of a defect or remedies a defect, the expiry of the limitation period for defect claims shall be suspended, beginning with the date of receipt of the notice of defect by the Supplier, until the Supplier finally notifies us of the result of the inspection and/or declares the defect remedied or refuses to continue remedying the defect.

(7) In the case of contracts for work and services, Clause 10.6 shall apply accordingly.

 

§ 11 Liability, Indemnification, Insurance Coverage

(1) The Supplier shall be liable for damages incurred by us or a third party in the use of the goods/software in accordance with the statutory provisions.

(2) Insofar as the Supplier has caused a product defect and/or (depending on the underlying basis of the claim) is responsible for it, the Supplier shall be obligated to pay damages upon our first request or to indemnify us against all claims of third parties, provided that the cause of the claim lies within the control and organization of the Supplier and the Supplier would itself be liable to third parties. To the extent that there is contributory negligence or fault on our part, the Supplier may assert such contributory negligence or fault against us. In the relationship between us and the Supplier, the respective share of the damages shall be based on the corresponding proportionate contributory negligence (§ 254 BGB) and/or contributory causation.

The Supplier's obligations shall also include the costs incurred by us through the use of legal assistance or otherwise in connection with the defense against product liability claims. If we are subject to special rules on the burden of proof in relation to the injured party, these rules on the burden of proof shall also apply in relation from us to the Supplier, insofar as the circumstances to be proven are not attributable to our area of responsibility.

If we or our customer take measures to avert danger (e.g. recall action), the provisions of this clause shall apply accordingly.11

(3) The Supplier shall maintain product liability insurance [including recall insurance] with an appropriate amount of coverage to cover any claims for damages and shall provide us with evidence thereof in text form upon request.

 

§ 12. Granting of Usage Rights for Software

Depending on the software to be delivered or the performance of the service, the Supplier shall grant us at least the following rights:

(1) Software Purchase

(i) With regard to software delivered for permanent use, the Supplier grants us the simple, non-exclusive right, unlimited in time and territory, to use the software throughout the group of companies to which we pertain and, for this purpose, to make copies of the software, install, and run them on any hardware.

(ii) We are granted corresponding rights to any corrections, patches, updates, upgrades, new versions or the like provided as part of the elimination of defects, as well as to the respective updated documentation thereto, which replace or supplement the provided software.

(2) Delivered Work

The Supplier grants us the exclusive, irrevocable, transferable, sub-licensable right of use, unlimited in terms of usage type, time and territory, to the delivered work at the time of their creation and for all intermediate stages. The right of use includes the right to edit/alter. In the case of software services, this shall also apply to the source code and the accompanying documentation. The Supplier will assign all rights in inventions made by it (e.g. its employees and legal representatives, or agents) and arising from the performance of contract with us free of charge.

(3) Software Rental/Lease

(i) The Supplier grants us the simple, non-exclusive right, unlimited in time and territory for the duration of the lease and otherwise, to use the Software throughout the group of companies to which we pertain and, for this purpose, to produce copies of the Software and install and run them on any hardware.

(ii) We shall be granted corresponding rights to corrections, patches, updates, upgrades, new versions or the like provided as part of the elimination of defects, as well as to the respective updated documentation thereto, which replace or supplement the provided software.

(4) IT Services

(i) We shall acquire the exclusive, irrevocable, transferable, sub-licensable right of use, unlimited in terms of time, space and content/form of use, to all results which the Supplier achieves within the scope of the provision of the contractual services at the time of their creation. The right of use includes the right to edit.

(ii) The Supplier will assign all rights in inventions made by it (e.g. its employees and legal representatives, or agents) and arising from the performance of contract with us free of charge.

 

§ 13. Third Party Rights, Intellectual Property Rights, Defects in Title

(1) The Supplier warrants that we or our customers, by obtaining, possessing, offering, using, processing or reselling the goods/software, do not infringe any intellectual property rights of third parties, in particular no trademark, company, name, patent, utility model, design, equipment or copyright rights of third parties (including corresponding applications for property rights), design rights or copyrights of third parties (including corresponding applications for property rights) ("Property Rights") in the country of origin of the Supplier, as well as in the Federal Republic of Germany, the European Union, China, Canada, Australia, USA, United Arab Emirates, Singapore and the Commonwealth of Independent States (CIS). If the Supplier culpably violates this obligation, it shall indemnify us and our customers at our first request against any claims by third parties arising from such actual or alleged infringements of property rights and shall bear all costs and expenses incurred by us in this connection, in particular legal prosecution and defense costs on the one hand and costs resulting from compliance with a possible obligation to cease and desist on the other hand.

This shall apply with respect to intellectual property rights for claims based on foreign statutory provisions only if the Supplier is aware or should have been aware that we resell the delivered goods/software in the relevant territory relevant for the claims or use the services provided by the Supplier there.

(2) If contractual services infringe the rights of third parties (including intellectual property rights and copyrights), the Supplier shall do everything reasonable to establish a contractual condition by acquiring rights. If the acquisition of rights is unsuccessful, the Supplier shall provide us with equivalent contractual services and delivery items which do not infringe the rights of third parties (workaround solution). The workaround shall only be equivalent if it does not or only insignificantly restrict the agreed usability of the contractual services and delivery items by us. The Supplier shall bear the costs of the workaround solution as well as any necessary adaptation of the environment of the contractual services; unless he is not responsible for the infringement of the rights of third parties.

(3) Clause 13(1) shall not apply insofar as the goods/software have been manufactured according to drawings, models or other detailed information provided by us and the Supplier was neither aware nor should have been aware that this would infringe third-party intellectual property rights.

(4) The parties are obliged to inform each other without delay of any infringement risks and alleged cases of infringement that become known and shall counteract corresponding infringement claims by mutual agreement within the scope of what is reasonable.

(5) The limitation period for claims under this Clause 13 shall be 3 years from the conclusion of the relevant contract.

 

§ 14. Provision of Parts

(1) If we provide parts, raw materials or other materials to the Supplier for the production of goods/software, we shall retain title thereto ("Retained Title"). Processing or transformation of the reserved property by the Supplier shall be carried out for us. If our reserved property is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved property to the other processed items at the time of processing.

(2) If the reserved property provided by us is inseparably combined or mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved property to the other combined or mixed items at the time of combination or mixing. If the combination or mixing is carried out in such a way that the Supplier's item is to be regarded as the main item, it shall be deemed agreed that the Supplier transfers co-ownership to us on a pro rata basis; the Supplier shall store and keep the sole ownership or co-ownership for us in its name.

 

§ 15. Means of Production

(1) All tools, materials (dies, templates, measuring instruments, molds) or other equipment or items (including substitutions, additions, accessories) provided by us or acquired by the Supplier at our expense (and the acquisition costs of which have been reimbursed by us or have been included in the prices payable for the goods and have been paid in full) ("Production Equipment") shall remain or become our sole property. We shall also retain all rights to all designs, samples, drawings, templates, tracings, clichés, films, data, models or other information and documents ("Documents") provided by us. The Supplier shall not use the means of production and documents for the production or design of goods/software for third parties without our prior consent in text form.

(2) The Supplier shall hold the production equipment and documents as borrower and shall keep them separate and apart from any property of other persons and clearly mark them as our property. The Supplier shall bear the risk for the production equipment and documents as long as they are in the custody or under the control of the Supplier. They shall not be removed from the Supplier's premises without our instruction in text form, except for the purpose of contract performance. The Supplier shall carry out any necessary maintenance work at the usual intervals at its own expense. Any damage or malfunctions shall be reported to us without delay.

 

§ 16. Spare Parts Supply

(1) The Supplier undertakes to ensure a supply of spare parts during the whole intended life-cycle of the products for which the goods are to be used. For products comprising software this also applies to software updates. The minimum period is 15 years after the end of serial production of the goods.

(2) The price for the spare parts during the existence of the supply contract shall be the current price set in the supply contract. During the first 3 years of the 15-year period the price may not exceed the price from the last serial production, unless otherwise a case of disturbance of the basis of business would occur, which would entitle the Supplier to dissolve the contract. Starting from the 4th year, the price shall be determined on the basis of the prices valid at the end of the serial production, taking into account any additional costs that may arise, which must be transparently presented by the Supplier, between the Parties by mutual agreement.

 

§ 17. Open Source

(1) The use of open source software is only permitted with our prior consent in text form.

(2) If the Supplier uses open source without our prior consent in text form, the Supplier shall, at our request, do everything reasonable to replace the open source software with equivalent proprietary software.

(3) The Supplier shall indemnify us against all claims of third parties and associated costs due to the use of open source software by the Supplier without our prior consent; unless the Supplier is not responsible for the use; Section 11.2 sentence 2 shall apply accordingly.

 

§ 18. Source Code Transfer for Software Creation and Software Customization

(1) In the case of individual software and software adaptations developed for us, the Supplier shall provide us with the respective current source code (in the case of software adaptations of the respective part), including documentation describing and explaining this, the minimum scope of which shall be such that after a reasonable familiarization period an understanding of the structure and operation of the program is made possible. The corresponding documentation may be partially included in the source code (comment lines), but must not be limited to this alone, but must at least include a coherent overall overview in text form. We will specify further requirements for the documentation in a separate annex if necessary.

(2) Furthermore, the Supplier shall grant us all rights to the software developed for us comprehensively and unconditionally. We shall receive from the Supplier, at the time of creation as well as for all intermediate stages, the exclusive, irrevocable, transferable, sub-licensable right of use, unrestricted in terms of content, time and territory. The right of use includes the right to edit, modify and adapt. This shall also apply to the source code and the accompanying documentation. The Supplier shall ensure that all employee inventions arising from the performance of the contractual services are transferred to us free of charge.

 

§ 19. Source Code Escrow

(1) Insofar as the transfer of the source code is not owed in the case of software, the Supplier shall, at our request, in order to secure our investment, in particular to secure the maintenance and further development of the software in cases in which the Supplier is unable to do so, for whatever reason, or refuses to do so absolutely or at standard market conditions, immediately deposit the source code of the software with an independent depositary company and conclude a corresponding depositary agreement with the depositary company and us at appropriate standard market conditions.

(2) The Supplier shall keep the depository material up to date.

 

§ 20. Click/Shrink-wrap Licenses

Click-/Shrink-wrap license terms will not be effective against us in any case. Software license agreements are concluded by us exclusively in text form.

 

§ 21 Supplier Declarations, Proof of Origin, Export Control

(1) Separate Supplier's declarations in accordance with Regulation (EC) No. 1207/2001 of 11 June 2001 (OJ V. 21.06.2001, L 165/1) must be submitted for all goods delivered, stating the country of origin and customs tariff number. If long-term Supplier's declarations are used, changes in the information given in the long-term Supplier's declaration must always be reported to our export department immediately by separate letter. The obligation to submit Supplier's declarations indicating the country of origin and customs tariff number also applies to delivered goods without preferential origin.

(2) For Suppliers not located in the EU, preferential certificates of origin shall be submitted without being requested. Autonomous certificates of origin shall be submitted upon request.

(3) The Supplier undertakes to notify us of any existing export license requirements (including national export list number as well as that of the USA) for all delivered materials. The notification shall be made directly to our customs department together with the Supplier's declaration or the proof of origin. The Supplier shall bear all adverse consequences of incomplete or failed notification, unless the Supplier is not responsible for such consequences.

§ 22. Copyright Protection

We reserve all rights, in particular property rights and copyrights, to illustrations, drawings, calculations, samples, models and other documents which the Supplier has received from us. They must be kept secret, we refer to § 24. They may not be made accessible to third parties without our express consent in text form. They are to be used exclusively for the performance of the contract concluded with us, i.e. e.g. production on the basis of our order; after completion of the order they are to be returned to us unsolicited and free of charge. Copies are to be destroyed. We do not grant any licenses or other rights of use or exploitation beyond those necessary for the performance of the contract, not even by implication. A granting of rights of use requires the conclusion of a separate contract in text form. 

 

§ 23. Data Protection

(1) The Parties shall comply with the applicable data protection provisions in the performance of the Supply Contract.

(2) Upon request, Supplier shall grant an auditor commissioned by us the access to its premises and IT systems that is necessary to verify that Supplier complies with this obligation. This right shall be granted to the Supplier with regard to personal data of the Supplier and its employees stored by us.

(3) If the Supplier has to process personal data on behalf of the Customer and/or access to personal data cannot be excluded, the Supplier shall ensure that all provisions of data protection law, in particular the GDPR (EU) 2016/679, are complied with. The parties shall specify the content and scope of such processing in a separate agreement which shall at least comply with the requirements Art. 28 GDPR and Section 11 (2) BDSG.

 

§ 24. Confidentiality

Unless separate confidentiality agreements have been entered into by the parties, the following shall apply:

(1) The parties shall treat as confidential all information received directly or indirectly from the other party (whether in electronic or other form). Orders and all related commercial and technical details shall also be treated as confidential information, as shall personal data. In particular, all illustrations, graphics, drawings, photographs, calculations, specifications, calculations and similar items received shall be kept secret. Confidential information may only be reproduced and passed on within the scope of operational requirements. It may only be disclosed to third parties with prior consent in text form.

(2) The foregoing obligations shall not apply to such confidential information that is

(i) were generally available at the time of the notice or became generally available thereafter through no fault of any party;

(ii) were already in its possession at the time of the communication; this must be notified to the other party immediately after receipt of the confidential information;

(iii) has been made available to it by a third party without any obligation of confidentiality or non-use, provided that such third party has not received the information directly or indirectly from the other party;

(iv) are required by law to be disclosed to public authorities.

(3) The Supplier may use the confidential information disclosed to it by us exclusively for the intended purpose and for the performance of the respective contract.

(4) The Supplier shall oblige sub-Suppliers to maintain secrecy to the same extent.

(5) The confidentiality obligation shall survive the termination of the supply relationship as long as and to the extent that the confidential information has not yet been made available to third parties in a legal manner. After termination of the supply relationship, the Supplier shall return to us all confidential information received, insofar as it is embodied or stored on electronic storage media.

 

§ 25 Cancellation/Cancellation of Orders/Contracts

Insofar as the parties have agreed on a framework contract or other long-term supply contract on the basis of which we place orders with the Supplier for the supply of goods/software or the provision of services or it is a continuing obligation, the following provisions shall apply with regard to the term and termination:

(1) We have the right to terminate these contracts in text form with a notice period of two months, the Supplier with a notice period of 6 months.

(2) In cases where our customer cancels its order without justification or extraordinarily, we shall be entitled, without prejudice to our right of termination pursuant to Section 25(1), to agree together with the Supplier on another arrangement which takes these circumstances into account.

(3) Each party shall have the right to terminate a contract for good cause. In the event of termination of a supply contract, the Supplier shall return to us all items provided by us, including all drawings and other documents, equipment and tools.

 

§ 26. Change Management

(1) Changes to a delivery contract, including changes to quantities, shipping method, packaging, delivery time or delivery address, or changes to drawings or specifications, must be agreed in text form, taking into account and incorporating any resulting changes to costs or time required to fulfill the contract (if applicable).

For technical changes, in particular changes to drawings or specifications by us, the following provisions of this Clause 1 shall apply in addition.

(2) We may request technical changes to the goods/software at any time - also during serial production - and the Supplier undertakes to implement such changes within the scope of what is reasonable and in accordance with the following provisions. Immediately after receipt of our change request, the Supplier shall provide a cost estimate with regard to the possible increase or decrease in costs as well as information on deadline postponements and effects of the changes on function and quality. The Supplier is obliged to keep the costs caused by the changes requested by us as low as possible.

(3) The Supplier shall implement the requested changes as soon as the Parties have reached an agreement on all cost increases or reductions, deadline postponements and effects of the changes on function and quality.

(4) If, in the Supplier's opinion, technical changes or deviations are reasonable - e.g. due to more efficient production methods or for technical improvement of the goods/software or for adaptation to technical progress - the Supplier shall propose them to us; at the same time, information on the effects on the price, delivery dates, etc. must be provided. We shall examine these proposed changes without delay and may not arbitrarily refuse to accept them.

(5) The Supplier shall not make any technical changes until it has received our consent in text form.

(6) The technical documents, drawings and plans from us must be checked by the Supplier for completeness and freedom from defects before the start of processing or manufacturing. If, in the opinion of the Supplier, they are incomplete or contain errors or defects, the Supplier is obliged to inform us immediately (but in any case before the start of processing or manufacturing) in text form; any missing technical documents, drawings or plans must be requested immediately in text form. Technical documents, drawings and plans from us may not be passed on to third parties and must be returned to us as soon as we request them, but no later than upon completion of the order.

 

§ 27. Final Provisions

(1) The Supplier may not use subcontractors for the performance of the supply contract or any part thereof without our prior approval in text form.

(2) The place of performance for all deliveries and services shall be Telgte (Germany), unless expressly stated otherwise in the order.

(3)The exclusive place of jurisdiction shall be Münster (Germany). We shall also be entitled to file suit against the Supplier before any other court or otherwise assert claims against the Supplier in court.

(4) The contractual relations between us and the Supplier shall be governed by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention / CISG).

(5) The Supplier agrees that we may include it in its reference list and thus advertise that we make use of the Supplier's offer. At the same time, the Supplier is granted the right to advertise that it supplies us.

(6) Code of Conduct: We are part of the Phoenix Mecano Group and observe its Code of Conduct, which can be viewed on our website.

 

Status 15 January 2024

 

I. NOTES BEFORE PURCHASE AND/OR INSTALLATION:

1. Please read the following license terms and conditions carefully. If you do not agree with them, refrain from taking the license and/or installing and using the program and delete all program copies or program components that you have downloaded, obtained via data storage, or in any other way.

We would like to point out that before installing new software on your device, you should back up your data and the operating system to prevent possible loss of your data. If you have not yet made a backup, we strongly advise you to cancel the installation immediately, back up your data, and only then proceed with the installation.

 

II. LICENSE & WARRANTY PROVISIONS:

By using the ConnectedCare Program ("Program") you, the End User, accept the following license and warranty conditions with ConnectedCare GmbH, Orkotten 65, 48291 Telgte, Germany (E-mail: info@ConnectedCare.net, www.ConnectedCare.net) as also binding for you.

II. A) LICENSE CONDITIONS

1 This End User License Agreement is a legal agreement between you as a natural person (hereinafter "End User") and ConnectedCare GmbH (ConnectedCare), D-48291 Telgte.

2. By installing, copying, or using the program, the End User agrees to be bound by the terms and conditions of this End User License Agreement ("Agreement"). If you as End User do not agree, do not install, copy or use the Program.

3. This Agreement entitles you, i.e. the End User, to use the Program copy distributed via the internet with the consent of ConnectedCare on one end device that is intended for use with the program according to ConnectedCare's product specifications. The use of the Program for a larger number of end devices requires a separate device-related license in each case and is not covered by this single device permission to use.

4. The right of use granted in No. 3 is a non-exclusive license without the right to sublicense or otherwise grant use to third parties.

5 ConnectedCare shall provide backup copies of the licensed Program via suitable application stores. Transfer of rights to backup copies or of the right to make a backup copy is not permitted unless all rights to the software are transferred in accordance with No. 6.

6. The End User is entitled to transfer the program (including upgrades, updates and the documentation, if any) together with the End User license agreement and the respective end device on which the program copy is installed to another End User once and permanently, provided that the new End User receiving the program agrees to all provisions of this End User license agreement. The previous (i.e., the transferring) End User is obligated not to retain any copy of the Software unless she/he continues to use another end device on which the Program is installed and properly licensed for that other end device.

7. The End User is not entitled to make copies of the Program or to rent, lease, lend, provide commercial hosting services with the Program or electronically transfer the Program from one computer to another or over a network, except for the cases listed in No. 4 to 6 above.

8. Beyond the mandatory legal scope of actions provided for in §§ 69d, 69e German Copyright Act, the End User is not entitled to reverse engineer, decompile, disassemble, generally reverse engineer, or otherwise attempt to discover the source code of the Software.

9. For the use of programs or program components marked as update or upgrade, the End User must have a valid license for the previous version. After installing the update or upgrade, the End User is no longer entitled to use the (original) prior Software version, which is the End User's prerequisite for the update or upgrade, except as part of the Program as supplemented with the update or upgrade. The latter shall not apply if the update or upgrade does not run properly. In this case, the End User is entitled to reinstall the previous latest version, which will revive the license existing for the prior version.

10. Intellectual property rights and copyrights: All rights not expressly granted to the End User in this Agreement shall remain with ConnectedCare. ConnectedCare's software is protected by copyright laws and by other intellectual property laws and treaties. ConnectedCare or its development and/or distribution partners hold title and copyright to the Software. This Agreement does not grant the End User any rights to trademarks or other trade designations of ConnectedCare or its development and/or distribution partners.

11. Test licenses entitle the End User to use the software exclusively within the scope of testing and evaluating the software during the test period. The End User is not entitled to any further use.

12. The program is licensed, i.e. not sold, this means that only a simple right of use is granted and ownership is not transferred.

II. B) WARRANTY PROVISIONS:

1. Case A: You have purchased new, originally packaged ConnectedCare hardware with which you use the pre-installed program licensed here: In this case, defects in the hardware and software are covered under the warranty for the purchase of hardware. The details of this can be found in the law and the documents enclosed with the hardware.

2. In Case A of B. II) No. 1, ConnectedCare further warrants to the End User the usability of the Program for the contractually stipulated use on this hardware during the warranty period running for the ConnectedCare hardware used with the Program. This includes the use of the Program with the ConnectedCare hardware intended for this purpose by ConnectedCare under the operating system(s), associated hardware and their versions specified by ConnectedCare. Minor deviations from the agreed functions do not justify warranty claims. In the event of material defects in the Program, ConnectedCare shall, at the option of the End User, remedy such defects or deliver a new Program copy. This shall not affect any further warranty claims with regard to the new ConnectedCare hardware.

3. ConnectedCare does not guarantee on the basis of this agreement that the Program will function as intended on hardware on which further software is installed that affects the proper function of the Program or the proper function of which the Program affects. Excluded thereof are such errors which affect the compatibility of the Program with other programs or program versions that are compatible with the program according to the specifications published by ConnectedCare for the concerned version of the Program. In particular, ConnectedCare does not warrant in this Agreement the functionality of the program in future versions of operating systems or compatibility with future versions of programs of other suppliers.

4. ConnectedCare is not obligated under this Agreement to provide specific updates or upgrades of the Program; in particular, not at certain intervals. This shall be done voluntarily at ConnectedCare's discretion. After expiration of the warranty period specified in Case A, under B. II) No. 1, the End User shall have no claim under this Agreement for the removal of defects in updates or upgrades provided free of charge and voluntarily by ConnectedCare; this shall only be possible during the warranty period from the date of purchase. Rather, in the event of problems, the End User is referred to restore the program version installed before the update or upgrade in the program environment in which the program was running. In case of doubt, the system environment at the time of expiration of the warranty period mentioned in Case A in B. II No. 1 shall be decisive.

Case B: You want to use the program with other hardware than the one mentioned in Case A in B. II) No. 1: In this case, the program is owed as it is at the time of installation. The program is basically functional for the intended use in operating system environments intended for this purpose by ConnectedCare in their underlying version; no warranty is given for the functionality on hardware other than that mentioned for Case A in Section II) B. No. 1. Minor deviations from agreed functions do not justify warranty claims. In the event of material defects in the program, ConnectedCare shall remedy such defects by means of an update as soon as it becomes aware of the defect.

8. In this Agreement ConnectedCare does not guarantee that the program will work as intended on a device on which other software is installed that affects the proper functioning of the Program or on the proper functioning of which the Program affects. Excluded are such errors that affect the compatibility of the Program with other programs or program versions that are compatible with the Program according to the specifications published by ConnectedCare for the version of the Program. In particular, ConnectedCare does not warrant the functionality of the Program in future versions of operating systems of other suppliers or compatibility with future versions of programs of other suppliers.

9. ConnectedCare is not obligated under this Agreement to provide specific updates or upgrades of the Program; in particular, not at certain intervals. This shall be done voluntarily at the discretion of ConnectedCare. After the expiry of the statutory warranty, the End User shall have no claim under this Agreement for the removal of defects in updates or upgrades provided free of charge and voluntarily by ConnectedCare. Rather, in the event of problems, the End User is referred to restore the Program version installed prior to the update or upgrade in the program environment in which the Program was running. In case of doubt, the system environment at the time of expiry of the statutory warranty period shall be decisive.

(10) Further warranties of ConnectedCare may arise from other contracts concluded in relation to the ConnectedCare Platform.

In all other respects, the warranty and liability provisions set out in Sections 12 to 14 below shall apply.

12 LIMITATION OF WARRANTIES: All conditions, warranties and obligations of ConnectedCare other than those expressly stated in this Agreement are excluded to the extent permitted by law. In particular, ConnectedCare does not warrant that the Program will meet all of the End User's requirements or that the functions contained therein will operate uninterruptedly and error-free in any combination selected by End User.

13 Known software errors shall be cured by ConnectedCare in Program updates at its own discretion. However, ConnectedCare is not obliged to provide specific updates or upgrades of the Program; in particular not at certain intervals. This is done voluntarily at ConnectedCare's own discretion. After expiration of the warranty period specified in II. B) No. 1 for Case A, the End User shall have no claim under this Agreement for the removal of defects in updates or upgrades provided free of charge and voluntarily by ConnectedCare. Rather, in the event of problems, the End User is referred to restore the Program version installed prior to the update or upgrade in the program environment in which the Program was running.

14 LIMITATION OF LIABILITY: The following provisions shall apply to damages or compensation for futile expenses, or compensation for lost profits, irrespective of the legal grounds, including tort:

i) ConnectedCare shall be liable for claims under the Product Liability Act or for injury to life, body or health in accordance with the statutory provisions.

ii) ConnectedCare shall be liable for intent and gross negligence in accordance with the statutory provisions. In particular, ConnectedCare shall be liable for intent and negligence in case of injury to life, limb or health and for gross negligence and intent in case of breach of other obligations.

ii) ConnectedCare shall not be liable for slight negligence in all cases including tort, unless liability cannot be excluded for programs under mandatory applicable law (e.g. Germany) even for slight negligence, if ConnectedCare has breached a material contractual obligation. In such cases, the liability of ConnectedCare shall be limited to intent or gross negligence with respect only to all non-essential contractual obligations.

iv) Liability is only assumed during the statutory periods applicable to the individual circumstances of liability, including periods of limitation.

v) Liability for indirect damage or pure financial loss is excluded, unless mandatory law that cannot be excluded provides otherwise.

vi) In any case, the liability is limited to the compensation of typical and foreseeable damages.

15 TERMINATION: The End User may terminate this Agreement at the agreed time, otherwise at any time and without notice. Without prejudice to any other rights, ConnectedCare shall be entitled to terminate this End User License Agreement, if End User breaches any of its terms or conditions. In the event of termination, the End User shall cease use and destroy all copies of the Program and all of its components.

 

III. Data Use and License Monitoring:

1. ConnectedCare shall be entitled to collect and process technical data that is not personal or anonymized when collected and that is obtained in the course of use by the End User or from support services provided in relation to the Software, for the purpose of improving and redeveloping its products and providing user-related services or technologies to the End User and related customer support.

2. ConnectedCare is entitled to collect and store personal user data of the End User and to verify such data in the course of installation, registration, use or update in order to prevent unlicensed or illegal use of the software. The reason for processing is Art. 6 (1) b) GDPR.

3. ConnectedCare Is also entitled to collect and store personal user data of the End User and to check such data in the course of installation, registration, use or updating in order to ensure the proper use of payment services used by the End User with the help of the Software and to be able to perform usage billing. The reason for processing is Art. 6 (1) b) GDPR or Art. 6 (1) c) GDPR.

4. ConnectedCare shall also be entitled to pass on personal data of the End User to third parties to the extent absolutely necessary for the performance of the contract in order to be able to offer services. Personal data shall not be used for advertising purposes and shall be treated confidentially by the third parties and ConnectedCare shall work towards deleting this data from the third parties if it is no longer absolutely necessary for the performance of the contract.

5. Changes of purpose with regard to the use of personal data collected may only be made in the cases permitted under the GDPR in accordance with the procedures provided for therein.

6. With regard to the rights of data subjects to their personal information, reference is made to the ConnectedCare Privacy Policy.

7. The End User agrees with this procedure of ConnectedCare.

8. The above clauses do not affect the rights of the End User under the GDPR and the BDSG.

 

IV. Additional Software and Services:

1. This End User license agreement applies to updates and upgrades, supplements, add-on components or components of internet-based services of the software that ConnectedCare may provide or make available to the End User after the End User has acquired an original copy of the software, subject to separate provisions. ConnectedCare reserves the right to modify or discontinue, without notice, any Internet-based services provided to End User or made available through the use of the Software.

2. Insofar as the software is used in connection with data services, such as the subscription of multimedia content (e.g. podcasts, streaming services, digital publications, TV-on-demand, etc.), this agreement does not grant any rights to the multimedia content. The use of the multimedia content is subject to separate terms and conditions of the respective rights holder (provider), which form the basis of the subscription.

 

V. Export Restrictions:

The End User acknowledges that it may not export the Software to any country to which it is prohibited by applicable international and national export laws and regulations. In addition, the Software may not be exported to, or provided to a national or resident of, any country to which an embargo has been imposed as a result of existing national or international export controls. All rights to use the Software shall be forfeited if the provisions of this Agreement are not complied with.

 

VI Code of Conduct

ConnectedCare is part of the Phoenix Mecano Group and observe its Code of Conduct, which can be viewed on our website.

 

VII. General Provisions:

1. This Agreement, which constitutes a complete agreement between the parties with respect to the subject matter hereof, supersedes all prior agreements, representations, negotiations and proposals with respect to the subject matter hereof. Both Parties acknowledge that they have not been induced to enter into this Agreement as a result of any representations, warranties or covenants other than those expressly set forth in the Agreement.

2. No third party distributor, ConnectedCare representative or employee of ConnectedCare is authorized or empowered to make any agreements or representations or warranties other than those set forth in this End User License Agreement unless such modifications, representations or warranties are made in writing and signed by a duly authorized representative of ConnectedCare. Third parties may not enter into any binding obligations for ConnectedCare unless they submit a power of attorney validly granted by ConnectedCare in writing.

3. If any of the terms of this Agreement, whether in whole or in part, are or become invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect the validity of the remainder of the Agreement or the otherwise valid remainder of such provision.

4. Applicable Law: If you are a consumer End User and have purchased the Program in the European Union, Iceland, Norway or Switzerland, the law of the country in which you licensed/purchased the Program shall apply. Otherwise, this Agreement is governed by German law.

 

Status 15 January 2024

 

between

ConnectedCare GmbH
Orkotten 65
48291 Telgte
Deutschland

and the customer (hereinafter "CUSTOMER") of ConnectedCare who uses the ConnectedCare Platform and has it maintained by ConnectedCare.

 

§ 1 General

(1) The contractual terms and conditions for the care and maintenance of the ConnectedCare Platform set forth below shall apply exclusively. ConnectedCare shall not recognize any deviating terms and conditions of the CUSTOMER unless it expressly agrees to their validity in writing. These contractual terms and conditions shall also apply if ConnectedCare performs a service without reservation in the knowledge of deviating terms and conditions of the CUSTOMER.

(2) No verbal ancillary agreements have been made with respect to the subject matter of the Agreement described below.

 

§ 2 Start of Validity

These contractual Terms and Conditions shall come into force as an integral part of the Agreement at the time when the Agreement referring to them is concluded.

 

§ 3 Subject Matter of the Agreement & Owed Services

(1) The subject matter of the services shall initially be the repair of defective ConnectedCare hardware components at the Telgte plant. It shall be at ConnectedCare's discretion to replace defective components with new ones if necessary. However, the CUSTOMER shall have no claim to the replacement with newer models. Repair or replacement of components damaged by improper handling or other external influences (e.g. fire, liquids, mechanical damage, overvoltage, unauthorized intervention by third parties) shall be carried out against payment (for prices, please refer to the price list) at ConnectedCare's list prices valid at the time of repair. Core components will be repaired at the CUSTOMER's site. Mobile components will be sent to ConnectedCare. The CUSTOMER shall bear the costs of shipment to ConnectedCare, and ConnectedCare shall bear the costs of return shipment. The CUSTOMER shall grant ConnectedCare employees the access to its premises required for the hardware repair during normal working hours after agreement for the individual case. With regard to the warranty for defects, the ConnectedCare hardware is otherwise subject to the provisions of the respective contract and the General Terms and Conditions of ConnectedCare applicable to hardware deliveries.

(2) The subject matter of the services under these Terms and Conditions shall also be the maintenance and servicing of versions of the ConnectedCare Platform which are duly licensed to the CUSTOMER. During the term of the maintenance agreement subject to these Terms and Conditions, ConnectedCare shall maintain and service the latest version released for use by ConnectedCare as ready for series production for the system environment concerned to the extent licensed.

(3) Maintenance Services include:

• ConnectedCare function extensions, as of availability
• Bug fixes, as of availability
• Updating the ConnectedCare peripheral device software (firmware), as of availability.
• Update BWATEC ConnectedCare backend structures (MDM, monitoring, analytics, etc.), as of availability.
• Updating of ConnectedCare software modules in the event of changes to standards, as of availability
• Remote maintenance (e.g. database backup/database cleanup), within the monthly quota
• Technical support (by phone or online) within the monthly quota

The services of the first four categories shall be provided as soon as they have been programmed by ConnectedCare for the use of CUSTOMERS and released for use. There is no claim that these services will be provided at a certain frequency or at certain times. Warranty provisions are not affected hereby.

(4) The technical implementation of the device management and configuration options possible for the CUSTOMER as well as the technical scope of the functions of the programs or program modules are set forth in the user documentation which - unless delivered in printed form or on data carriers - can be viewed and downloaded by the CUSTOMER on ConnectedCare's platform accessible via secure remote access. Deviating or additional device management and configuration options or a deviating or additional technical scope of the functions of the programs or program modules shall not be owed under this Agreement.

 

§ 4 Program Maintenance, Updates & Defect Elimination

(1) The timing of the provision of updates and the scope of the respective update shall be at the discretion of ConnectedCare.

(2) The updating and maintenance according to paragraph (1) shall be performed exclusively by providing the updated program copy. These services (concerning program updates and maintenance) are not to be provided on site at the CUSTOMER. On-site services at the CUSTOMER's premises are generally not owed under this Agreement, except as provided in § 3 (1) of this Agreement. However, they may be offered and invoiced separately by ConnectedCare on the basis of the prices in the service price list applicable at the time of the offer.  

(3) ConnectedCare shall furthermore eliminate any errors in the software notified by the CUSTOMER within a reasonable period of time. There shall be no entitlement to the elimination of errors within a certain period of time.

(4) A defect shall be deemed to exist if the software does not perform the functional services described in the description of the functionalities in the system environment contractually intended for it and if this has more than a minor effect on the suitability of the software for use in accordance with the Agreement (subjective requirements for the software). A defect shall not exist if the software does not meet the objective requirements, i.e. if the software is not suitable for normal use or does not have the usual quality. The decisive factor is the suitability for the contractual purposes.

(5) Defects shall be reported immediately to ConnectedCare via the ticket system (Section [7.2]), stating the priority (see Section [7.8] below). The CUSTOMER shall describe defects and malfunctions of the software in as much detail as possible, including a description of the error symptoms, the conditions of use, previous instructions to the software, the number of installation workstations affected, a description of the system and hardware environment including any third-party software used. The report shall be made by creating a support ticket in ConnectedCare's online support system (ticket system) or by email or telephone. Claims of the CUSTOMER against ConnectedCare due to slow/delayed fault or defect rectification are excluded if the delay is due to the fact that the CUSTOMER did not provide any, not enough, or not sufficiently precise information via the ticket system which ConnectedCare needs for the fault or defect rectification and ConnectedCare had to search this information itself.

(6) The elimination of errors shall be carried out at the discretion of ConnectedCare on a regular basis by providing software ("bug fixes", "patches", "updates" or similar) in accordance with § 4 (2), which modifies and/or supplements the software designated in § 3 (1), including the provision of documentation of the modified and/or supplemented functions in a form to be selected by ConnectedCare, which may also be provided by way of online help. The CUSTOMER shall be obligated to accept a new version of the software offered to it by ConnectedCare within the scope of the elimination of the defect.

(7) If the defect is not remedied by providing modified software, ConnectedCare may also remedy any defects occurring at its own discretion by the following measures:

• Troubleshooting via remote access to the CUSTOMER's systems;
• Suggestion to the CUSTOMER to work around the error or to correct the error;
• On-site troubleshooting, in the event that the aforementioned measures are not possible or not promising.

However, the CUSTOMER shall only be entitled to any remedy of the defect under this Agreement and not to any specific measures. These shall be appropriately selected exclusively at ConnectedCare's reasonable discretion on the basis of special experience and knowledge.

(8) For the handling of the support the following applies:

(8.1) Hotline/Support - ConnectedCare shall advise and assist CUSTOMER via telephone with regard to the use of the Software and, in the event of defects, in the Software during the term of the Agreement ("Support").

(8.2) Service standby times and hotline and prioritization of support cases received.

Definition of terms:

Service Standby Time:

Monday to Friday, 07:00 -17:00 (CET) each day, with the exception of public holidays in Germany and North Rhine-Westphalia. These holidays are treated as Sundays. The service standby time defines the period during which work is carried out to solve the reported defects or faults.

Service Desk (Hotline):

The Service Desk can be reached at:
Phone: +49 (0 25 04) 73 37 - 777
Mail: support@connectedcare.net
Service-Portal http://support.ConnectedCare.net

(8.3) Unless otherwise agreed, the service shall be available on working days at the registered office of ConnectedCare during the service stand-by times under the hotline number, by email or support ticket (the latter Is preferred).

(8.4) If an extended service has been agreed, it shall be available to the CUSTOMER for reporting faults 24 hours a day, 7 days a week, regardless of any Sundays and public holidays, via the hotline.

(8.5) Fault reports received after 3:00 p.m. (CET) shall be processed on the following business day at the latest.

(8.6) ConnectedCare shall inform the CUSTOMER digitally (e-mail, message in the ticket system, etc.) with an interim status and / or after the fault has been rectified. The support message will be addressed to the Key User (MDM administrators - see §4[9]) specified administrators.

(8.7) The order of processing of the fault reports as well as the respective response times shall depend on the receipt of the report by ConnectedCare as well as the priority classification of the faults as shown below. The response time shall run from the receipt of the fault message of the CUSTOMER by ConnectedCare.

(8.8) If the fault message is received during the standby time, the following response times shall apply from the time of entry into the ticket system, within which fault rectification must be initiated:

Priority Description Response time

1 Failure of central components/total failure 4h

2 Partial failure (individual modules or stations) 6h

3 Failure of individual rooms/terminals 48h

(9) In the interest of efficient defect elimination and handling, the CUSTOMER shall name a responsible employee (so-called Key User) as well as corresponding deputies with in-depth knowledge (administrator knowledge) regarding the software to be maintained as contact persons for ConnectedCare. The CUSTOMER shall immediately notify ConnectedCare in text form of any changes to the aforementioned persons. 

(10) Upon receipt of a proper fault report from the CUSTOMER, ConnectedCare shall initiate measures to eliminate the fault within reasonable response times as specified in Clause (8.8). At the same time, ConnectedCare shall provide the CUSTOMER with a non-binding estimate of the time likely to be required for the elimination of the fault as well as any costs to be charged separately.

(11) The response times for initiating the elimination of errors are agreed upon in dependence on the priority of the error above under (8.8). Errors reported by the CUSTOMER in accordance with the Agreement shall then be eliminated by ConnectedCare within a reasonable period of time in each case. Reasonable is the period of time required by ConnectedCare, taking into account its order situation and the availability of suitable employees without negligent delay, to analyze and eliminate the reported error.

(12) At the request of the CUSTOMER, but without being obligated to do so, ConnectedCare may also remedy malfunctions/errors outside its service standby times and the business hours of the CUSTOMER. If ConnectedCare complies with the CUSTOMER's request, the price surcharges listed in Section 3 of the Appendix Compensation Support Services (Appendix 2) shall become due. In addition, the CUSTOMER shall provide ConnectedCare with special support in such cases. However, this shall not result in any claim of the CUSTOMER for troubleshooting also in the future outside the service stand-by times and the business hours of ConnectedCare.

(13) Should another provider discontinue support of standard software products used in connection with the ConnectedCare Platform during the term of the Agreement, ConnectedCare shall, if possible, propose an alternative product with a comparable scope of services. A replacement of the affected software is not included in the scope of services of this Agreement.

(14) ConnectedCare shall provide the services for the elimination of errors within the scope of the care customary in the industry. ConnectedCare does not assume any guarantee for the elimination of the errors at all or within a certain time. There is also no obligation to ensure a specific availability of the software.

(15) In the event of errors that do not significantly impede the operational process, the remedy may be effected by making software available with the next scheduled delivery of enhancements and/or modifications at the time at which ConnectedCare intends to make other enhancements and/or modifications available in accordance with its planning. Upon request by the CUSTOMER, ConnectedCare shall, if possible, provide information on when the next scheduled delivery will take place.

(19) The software including the maintenance services, such as updates, may not be used for non-contractual purposes of third parties or made accessible to third parties. The elimination of defects within the scope of software maintenance is reserved exclusively for ConnectedCare. Other provisions shall only apply in the event that ConnectedCare is not in a position to remedy a defect. ConnectedCare's consent must be obtained prior to the involvement of a third party, which may not be refused without reason.

 

§ 5 Further Developments

ConnectedCare endeavors to continuously develop the software. The provision of the software pursuant to § 4 (1) may therefore also lead to an extension and/or modification of the software that is not disadvantageous for the CUSTOMER, with the consequence that new functionalities are available, existing functionalities are optimized in the process and/or the user guidance or the data management is adapted to the state of the art (upgrade).

 

§ 6 Services Not Owed

(1) According to these General Terms and Conditions, there shall be no entitlement to the following benefits in particular but not conclusively:

a) The modification and/or supplementation of the Software, including the services provided under this Agreement, in a specific manner, provided that this does not merely result in the elimination of a defect.

b) The adaptation of the software to versions that are in use by other users or are distributed by ConnectedCare and that represent a customary, delimitable and therefore independent distribution service.

c) The rectification of defects for which the CUSTOMER or third parties are responsible. This rectification requires a separate written agreement.

d) A repair of the above-mentioned software which becomes necessary due to improper use or use contrary to the Agreement or force majeure. This exclusion also applies to repairs of the software that became necessary due to actions of third parties without ConnectedCare's prior consent to these specific actions.

(2) The list is not exhaustive. It cannot be concluded from the lack of mention of services that these services are the subject of ConnectedCare's contractual obligations. The enumeration is primarily intended to give examples of excluded services and thus to be indicative for further services not explicitly mentioned which, however, fit into this list by their nature and scope and are thus also excluded.

 

§ 7 Cooperation Obligations of the CUSTOMER

(1) A prerequisite for the provision of the maintenance services in accordance with these Terms and Conditions, in particular for error correction and handling as well as application support by ConnectedCare, is that the CUSTOMER uses the most recent version of the software, unless this would not be reasonable for the CUSTOMER, for example, because the respective latest software version is defective. The CUSTOMER shall inform ConnectedCare of this immediately in text form. If the CUSTOMER is not obligated to use the latest version of the software and does not do so, ConnectedCare's obligations under §§ 5 to 8 shall be suspended.

(2) It is the responsibility of the CUSTOMER to create the system environment in its sphere that enables the installation, maintenance, and servicing of the latest version of the software released by ConnectedCare as ready for serial usage. If there are obstacles on the part of the CUSTOMER, the CUSTOMER shall inform ConnectedCare thereof in text form immediately after the obstacle has been identified. The parties shall then seek a solution. If the CUSTOMER decides that no update is to take place, ConnectedCare may terminate the agreement on the basis of which these Terms and Conditions apply on an unscheduled basis subject to a notice period of 4 weeks if the system maintenance services are then no longer technically possible to a reasonable extent or are significantly restricted or if they can only be provided with significantly increased economic effort. A repayment of system maintenance fees for the current billing period will then not be made. The CUSTOMER has the possibility to agree to the updates in writing until the expiry of the aforementioned period of 4 weeks. If this is done, the termination by ConnectedCare shall not take effect. 

(3) A further prerequisite for the provision of the system maintenance services is that the CUSTOMER does not operate the software at a location and in the relevant system environment other than the location and the relevant system environment at the time of the conclusion of this system maintenance agreement without consultation with ConnectedCare.

(4) CUSTOMER shall support ConnectedCare in every respect in the performance of the system maintenance services under this Agreement.

(5) The Key Users will bundle and coordinate reports and inquiries from the CUSTOMER. Before passing on the messages and inquiries, they will first check them on the basis of their own expertise and decide whether and how they can help the affected users. If they are unable to solve the problems, they will forward the messages and inquiries to ConnectedCare via the hotline. Other employees of the CUSTOMER are not authorized to send reports and inquiries to ConnectedCare.

(6) The Key Users shall also support ConnectedCare during the fault elimination work, for example by transmitting test cases and/or test data, providing fault logs, screen shots and other measures conducive to fault elimination, to a reasonable extent, etc.

(7) The CUSTOMER shall provide ConnectedCare with access to the software via a communication network (e.g. Internet) to the technically required extent. If it is not possible to eliminate errors via remote data transmission because this access was not ensured and, as a result, an on-site visit is necessary, ConnectedCare shall charge for this according to the respective current price list plus travel costs and other expenses. Access by remote data transmission shall be made via a connection protected against unauthorized access by third parties. If such a connection to the CUSTOMER cannot be established due to obstacles for which the CUSTOMER is responsible or which are attributable to the CUSTOMER or which originate from the CUSTOMER's sphere of risk, and if fault rectification is only possible on site at the CUSTOMER's premises for this reason, the CUSTOMER shall bear the additional costs of fault rectification.

(8) If it turns out that an error reported by the CUSTOMER does not actually exist or is not attributable to the software (bogus error), the CUSTOMER shall reimburse ConnectedCare for the expenses incurred in the course of the error analysis and other processing in accordance with its current price list for services, unless the CUSTOMER proves that it could not have recognized the existence of such a bogus error even if it had exercised the necessary care.

 

§ 8 Inspection Obligations

(1) The CUSTOMER shall examine the system maintenance services, including any modified or supplemented documentation, without undue delay after delivery, in particular with regard to the completeness and functionality of basic program functions.

(2) ConnectedCare must be notified immediately in text form of any defects discovered in the process. If the CUSTOMER fails to comply with the obligation to inspect and give notice of defects, the maintenance service shall be deemed to have been approved in view of the defect in question. The notice of defects must contain a description of the defects that is as detailed and specific as possible, otherwise it may be rejected by ConnectedCare as being too imprecise with the consequence that the elimination of the defect will be delayed until the CUSTOMER provides a precise and specific description of the defect.

(3) Defects which could not be detected within the scope of the proper inspection described must again be notified in text form immediately after discovery. This notice of defects must also contain as detailed and specific a description of the defects as possible (§ 6 [4]).

 

§ 9 Remuneration

(1) The flat rate for the services for the ConnectedCare Platform in accordance with these Terms and Conditions shall be the amount stated in the order confirmation of ConnectedCare or in the Agreement signed by both parties. For extensions, the fees of ConnectedCare in effect at the time of the extension shall apply, which - if not known to the CUSTOMER - shall be made available by ConnectedCare at any time upon request. The fees are subject to the statutory value added tax applicable at the time. This shall apply irrespective of whether and how often system maintenance services are used.

(2) The system maintenance fee shall be due for payment in advance at the beginning of the respective system maintenance period and shall be payable within 30 days of the invoice date without deduction. Thereafter, default shall occur without further notice, in particular without further reminder. Reference is made to Section 286 (3) of the German Civil Code (BGB).

(3) ConnectedCare may change the maintenance fee for subsequent periods at its reasonable discretion and shall notify the CUSTOMER of any such changes within a reasonable period of time before they take effect. Changes entitle the CUSTOMER to terminate the Agreement without notice period. Notice of termination must be given in text form and may only be given until the change in the flat-rate care fee takes effect. A subsequent, extraordinary termination due to the change in the care flat rate is not permitted. The right to ordinary termination or extraordinary termination for good cause shall remain unaffected.

 

§ 10 Liability for Defects

(1) Material defects reported to ConnectedCare by the CUSTOMER during the term of the services on the basis of these Terms and Conditions shall be remedied by ConnectedCare within the scope of the fault elimination pursuant to § 4. Beyond that, there shall be no claims for subsequent performance for material defects during the term of the Agreement.

(2) If ConnectedCare does not succeed in rectifying or circumventing a significant software defect covered by the statutory warranty by way of supplementary performance, the statutory provisions shall apply, unless otherwise provided in this Agreement.

(3) In the event of an infringement of third party Intellectual property rights by the programs provided by it under this Agreement for which ConnectedCare is responsible, ConnectedCare may at its own discretion either acquire at its own expense a right of use sufficient for the contractually agreed use in favor of the CUSTOMER or modify the programs concerned without, or only with, reasonable effects on their functions for the CUSTOMER or provide new programs in such a way that no third party property rights are infringed any longer.

(4) Claims for defects shall become time-barred within 12 months from the first installation of the program or program module that is afflicted with the defect. Excluded from the limitation of the statute of limitations are claims of the CUSTOMER due to intentional or negligent injury to life, limb or health as well as grossly negligent or intentional breach of other obligations.

 

§ 11 Scope of liability

(1) ConnectedCare shall be liable within the scope of the services according to these Terms and Conditions depending on fault only in case of intent, gross negligence as well as negligent violation of essential contractual obligations, the fulfillment of which enables the proper execution of the Agreement in the first place and on the compliance with which the contractual partner may regularly rely as well as in case of injury to life, limb or health.

(2) In the event of liability, with the exception of damages caused intentionally and attributable to ConnectedCare, liability shall be limited in terms of amount; namely in the first contractual year to the amount which would have to be paid in total as a lump sum, in the following contractual year and in each of the following years to the amount which, on the basis of these General Terms and Conditions, was paid in total by the CUSTOMER as a lump sum for the care services in the preceding care year, but not less than EUR 10,000. 

(3) In any case, ConnectedCare's liability per case of damage shall be limited to the foreseeable direct damage typical for the Agreement.

(4) The CUSTOMER shall be obligated to make backup copies of the software provided by ConnectedCare at regular intervals. ConnectedCare shall not be liable for the loss of data or programs to the extent that the damage is due to the CUSTOMER's failure to perform regular data backups and thereby to ensure that lost data can be restored with reasonable effort.

(5) Insofar as ConnectedCare makes hardware or software available to the CUSTOMER for a limited period of time within the scope of this Agreement, liability regardless of fault for defects that were already present at the time of conclusion of the Agreement shall be excluded.

(6) The above provisions shall also apply in favor of the legal representatives, employees and vicarious agents of ConnectedCare.

 

§ 12 Rights of Use

(1) To the extent that ConnectedCare makes software available to the CUSTOMER on a permanent basis under this Agreement, it shall grant the CUSTOMER rights of use thereto to the extent that they were granted by ConnectedCare to the duly licensed software at the beginning of the Agreement.

(2) The CUSTOMER agrees that ConnectedCare may include the CUSTOMER in its customer reference list and thereby advertise that the CUSTOMER makes use of ConnectedCare's offer and uses it in its facility. At the same time, the CUSTOMER is granted the right to advertise that it offers ConnectedCare equipment and services at its premises.

 

§ 13 Term of Agreement, Termination

(1) These Terms and Conditions for Software Maintenance and Support are initially concluded for the term specified in the order confirmation of ConnectedCare or in the Agreement signed by both parties. Thereafter, the term of these General Terms and Conditions shall be extended by one (1) additional year in each case unless terminated by one of the contractual partners in text form with a notice period of three (3) months to the end of each maintenance period of one year. Unless expressly stated otherwise in the notice of termination, the termination shall exclusively affect the rights and obligations under these Terms and Conditions for Software Maintenance and Support. The continued validity of any other agreements between the CUSTOMER and ConnectedCare shall not be affected by a termination unless they are expressly terminated in text form.

(2) This shall not affect the right of both parties to terminate this Agreement for good cause. In particular, good cause shall also be deemed to exist if, in the event of the opening of insolvency proceedings against the assets of the CLIENT, the insolvency administrator refuses to enter into this Agreement.

(3) A rescission, cancellation or similar restructuration (termination date) of the Software Usage Agreement (License) concerning the Software designated in § 3 (1) shall initially not affect the existence of this Agreement. In such a case, the Agreement shall end at the next possible point in time at which the CUSTOMER could terminate the Agreement by ordinary notice of termination. For the remaining term of this system maintenance Agreement from the time of termination, the CUSTOMER shall owe a system maintenance fee reduced pro rata, insofar as system maintenance services are no longer provided. The right to terminate for cause shall also remain unaffected in this respect. Termination of the software usage agreement as such shall not in itself be deemed as being a good cause for termination.

 

§ 14 Data analysis

ConnectedCare collects and processes data, which is not personal data, during the operation of ConnectedCare system components (hardware and software) on a data network for the purposes of defect prevention/elimination, system maintenance, improvement and development of products and services and their efficient use by customers. If and insofar as this data allows conclusions to be drawn about natural persons, it shall be anonymized on the occasion of the collection in such a way that no conclusion can be drawn about the natural persons concerned. The CUSTOMER agrees to this, insofar as this is required by law. Rights from the GDPR and the BDSG are not affected by this.

 

§ 14 General

(1) The provisions of these General Terms and Conditions contain, with respect to their respective subject matter, all agreements made between the parties, unless special agreements have been made in writing. Oral subsidiary agreements have not been made and would need to be in writing to be effective.

(2) Amendments and supplements to the contents of the Agreement agreed in these General Terms and Conditions must be made in writing. This formal requirement may only be waived by written agreement.

(4) Should individual provisions of the Agreement content agreed in these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.

 

§ 15 Assignments etc.

(1) The assignment of claims shall only be permitted with the prior consent in text form of the other contracting party. Consent may not be arbitrarily refused. The provision of Section 354 a HGB shall remain unaffected.

(2) A right of retention may only be asserted on the basis of counterclaims arising from the respective contractual relationship.

(3) The contracting parties may only offset claims that have been legally established by a court of law or are undisputed.

 

§ 16 Applicable Law & Dispute Resolution

(1) The Terms and Conditions of Sale, Delivery and Payment of ConnectedCare GmbH shall apply subsidiary.

(2) The law of the Federal Republic of Germany shall apply.

(3) The parties intend to resolve disagreements by negotiation as soon as possible after they arise. Both parties declare their willingness, in the event of a dispute appearing to be insoluble in this way, to participate, at the request of the respective other party, in mediation proceedings in accordance with the Mediation Rules of the German Institution of Arbitration e.V. (DIS) with regard to all disputes arising from or in connection with this Agreement or one of its chapters. (DIS), the costs of which shall be borne 50% each by the parties. Each party will participate in at least one meeting with the mediator and the other party.

(4) The exclusive place of jurisdiction for all legal disputes arising from or in connection with this Agreement shall be the court having local and subject-matter jurisdiction for the registered office of ConnectedCare at the registered office of ConnectedCare in Münster. However, ConnectedCare shall also be entitled to bring an action at the general place of jurisdiction of the CUSTOMER.

 

§ 17 Code of Conduct

We are part of the Phoenix Mecano Group and observe its Code of Conduct, which can be viewed on our website.

 

Status 15 January 2024

 

1. Scope

The following Terms and Conditions for Training apply to all training services agreed between the customer (CUSTOMER) and ConnectedCare GmbH (ConnectedCare). The services of ConnectedCare shall be provided exclusively on the basis of these training conditions. They shall also apply to all future business relations with the Customer that concern training services, even if they are not expressly included again. Deviating provisions and general terms and conditions of the CUSTOMER must be expressly acknowledged in writing by ConnectedCare.

 

2. Registration

The registration must be made in text form on the basis of an offer and is considered as binding. With the registration, the CUSTOMER accepts the general training conditions listed here.

 

3. Confirmation

ConnectedCare confirms the CUSTOMER's registration in text form (order confirmation). This concludes the service Agreement.

 

4. Lead Time

From the date of the order confirmation at least three weeks lead time are required to organize the training.

 

5. Services

The scope of the owed training services results from ConnectedCare's respective offer or order confirmation. Additional services requested by the CUSTOMER in deviation there from and which are agreed upon shall be invoiced separately. Content-related and/or organizational changes, or other deviations can be made by ConnectedCare before or during the implementation of the training, provided that these do not significantly change the core features of the training and are reasonable for the CUSTOMER. If necessary, ConnectedCare shall be entitled to replace the designated instructor with another suitable person. Each course participant shall receive a certificate and the training documents in digital form upon completion of the training.

 

6. Participants

The training takes place, if at least one participant is registered in groups of not more than eight participants.

 

7. Cancellation / Rescheduling by the CUSTOMER

Confirmed training dates can be cancelled by the customer free of charge up to 14 days before the scheduled training measure at the latest. After this date, the training fee will be charged in full. The full training fee will also be charged if not all course days are attended.

 

8 Cancellation / Rescheduling by ConnectedCare

In case of force majeure, illness, or an accident of the training instructor, or for organizational reasons for which the CUSTOMER is not responsible and which make the implementation impossible, training events can be canceled by ConnectedCare. In the event of cancellation, an alternative date will be agreed with the CUSTOMER. Claims for damages are excluded, unless there is gross negligence or intent on the part of ConnectedCare.

 

9. Due Date of Payments

Unless otherwise expressly stipulated in the Agreement, the agreed fee for the training service shall be due for payment immediately without deduction upon receipt of the invoice. The bank details can be found in the note on the invoices.

 

10. Travel and Accommodation Costs

In the case of product assembly- and user- training the travel and accommodation costs of ConnectedCare's employees must be borne by the CUSTOMER and shall be proven and invoiced separately. In the case of sales- and system- training, the travel and accommodation costs of the CUSTOMER's employees are not included in the price and shall be borne by the CUSTOMER.

 

11. Copyright

All training documents are protected by copyright. The CUSTOMER is granted a simple, non-transferable, unlimited, right of use exclusively for his own internal use. Any transfer to third parties requires the prior approval of ConnectedCare in writing and, if necessary, separate remuneration. Any copyright notices, trade designations or trademarks may not be removed.

 

(12) Confidentiality

ConnectedCare undertakes to keep confidential beyond the termination of the contractual relationship any operational, commercial, or technical information of the Customer which becomes known to it through the business relationship and which is marked as confidential as well as any trade and business secrets of the Customer. This shall not apply to information which (i) is generally known or becomes known through no fault of ConnectedCare, (ii) was provided to ConnectedCare by a third party which was not obligated to maintain confidentiality, (iii) was independently developed by the ConnectedCare, (iv) must be disclosed by ConnectedCare due to judicial or official instructions.

 

13 Liability

13.1 ConnectedCare shall only be liable for damage caused intentionally or by gross negligence by itself or its vicarious agents. Liability for slight negligence or cases of force majeure shall be excluded. Excluded from this are damages resulting from the breach of a contractual obligation which is essential for the achievement of the purpose of the Agreement (cardinal obligation), as well as damages resulting from injury to life, body or health, for which ConnectedCare shall also be liable in the event of negligence. In the event of a breach of a cardinal obligation, the damage shall be limited to the foreseeable damage typically associated with the breach of duty.

13.2 Claims of the Customer arising from a breach of duty by ConnectedCare or its vicarious agents shall become time-barred one year after performance of the service. Excluded from this are claims for damages based on an intentional or grossly negligent breach of duty by ConnectedCare or its vicarious agents, and claims for damages due to injury to life, body or health, also insofar as they are based on a slightly negligent breach of duty by ConnectedCare or its vicarious agents; the statutory limitation periods shall apply to these claims for damages.

 

14. Data Protection

The CUSTOMER gives its consent that its personal data necessary for the business transaction, including the data of its employees and agents who fulfill tasks in relation to the Agreement with ConnectedCare, are stored, processed, and used by ConnectedCare in its EDP system, at least as long as the business relationship exists. ConnectedCare shall use the data exclusively for internal purposes and shall pass them on exclusively to the extent necessary for the collection of receivables, which shall also be subject to the GDPR. ConnectedCare shall not pass on personal data to other third parties without the express written consent of the CUSTOMER. Upon written request of the CUSTOMER, its personal data and those of the employees of the CUTOMER shall be deleted as soon as the purpose underlying their transmission to the CUSTOMER has ceased to exist, but no later than 12 months after the last business contact. The rights from the GDPR and the BDSG remain unaffected.

 

15. Code of Conduct

ConnectedCare is part of the Phoenix Mecano Group and observe its Code of Conduct, which can be viewed on our website.

 

16 General Provisions

16.1 The place of performance and jurisdiction for all actions arising from or in connection with this Agreement shall be Münster, Westphalia. However, ConnectedCare shall also be entitled to sue the Customer at the latter's place of business.

16.2 These Terms and Conditions and the entire business relationship between ConnectedCare and the CUSTOMER shall be governed by German law.

16.3 Should any provision of these Terms and Conditions of Training or any provision within the scope of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.

16.4 The Customer agrees that ConnectedCare may include it in its customer reference list and thereby advertise that the Customer makes use of ConnectedCare's offer and uses it for further training purposes. At the same time, the Customer is granted the right to advertise that it uses ConnectedCare's training courses.

 

Status 15 January 2024

 

valid between the

ConnectedCare GmbH
Orkotten 65
48291 Telgte (ConnectedCare)

and customers (hereinafter "CUSTOMER") of ConnectedCare who will use components and modules of the ConnectedCare System in their facilities.

 

Preliminary Remark:

ConnectedCare manufactures innovative network-based multimedia terminals for patients in hospitals and care facilities and distributes them internationally. Application programs and services for information and entertainment or patient communication (modules) can be installed and operated on these multimedia terminals via networks. These hardware and software components are assembled modularly according to customer requirements and installed as ConnectedCare System. ConnectedCare plans, sells, and delivers these ConnectedCare Systems to CUSTOMERS such as hospital owners (legal entities legally operating or owning hospitals), or hospital operators commissioned by hospital owners. ConnectedCare also plans, rents, installs, and maintains such systems for CUSTOMERS.

These Terms and Conditions govern the mutual rights and obligations of ConnectedCare and the CUSTOMER in connection with the planning, installation, and commissioning of ConnectedCare systems specified in more detail in the offer and acceptance of offer or confirmation of order and their attachments.

Having said this, the Parties agree as follows:

 

§ 1 General

(1) The following contractual terms and conditions shall apply exclusively with respect to their subject matter. ConnectedCare does not recognize any deviating terms and conditions of the CUSTOMER unless ConnectedCare expressly agrees to their validity in writing. These contractual terms and conditions shall also apply if ConnectedCare performs a service without reservation in the knowledge of deviating terms and conditions of the CUSTOMER.

(2) No verbal ancillary agreements have been made with respect to the subject matter of the Agreement described below.

 

§ 2 Start of Validity

These contractual terms and conditions shall come into force as an integral part of the Agreement at the time when the Agreement referring to them is concluded.

 

§ 3 Subject Matter of the Agreement

(1) The subject of the Agreement is the planning, delivery and installation of the ConnectedCare System specified in the individual Agreement (hereinafter also referred to simply as: System) under the following conditions.

(2) Further services shall only be owed if they are agreed either (a) in a supplement to this Agreement or (b) in a separate agreement. In case of doubt, they shall not be covered by the remuneration agreed in this Agreement.

(3) All ownership rights and exploitation rights to the system and its respective components including the codes shall remain with ConnectedCare, unless expressly agreed otherwise in text form.

 

§ 4 Preparation of the Project Implementation

(1) For the planning, delivery and installation of the system, the CUSTOMER shall provide all relevant information in text form, i.e. in particular the following, no later than immediately after conclusion of the Agreement, unless this has already been done in advance during the offer phase

• Building plans, wiring diagrams, and other documents to be considered by the customer for the system setup;
• if available, a complete and accurate documentation of the network infrastructure already existing on site, including the specifications of the hardware present in it (in particular switches, media feed devices, etc.);
• Details of the special legal requirements to be observed in the object for the installation and operation of the system (e.g. fire protection, technical safety, etc.);
• Binding information on the number of patient beds (points of care) at which the system's end-user terminals are to be installed and operated;
• Details of the software programs and applications as well as services (modules) from the range of services offered by ConnectedCare that are to be available in the system and installed and operated via the end user terminals;
• Information about special requirements for the system.

The CUSTOMER shall be responsible for ensuring that the aforementioned information is up-to-date and correct. The CUSTOMER guarantees the correctness of information on the number of beds, which must be reported immediately in text form in the event of subsequent changes.

(2) In coordination with CUSTOMER, ConnectedCare shall be given sufficient and appropriate access to the object in which the system is to be installed in order to validate CUSTOMER's information and to obtain other knowledge useful for the delivery and installation of the system.

 

§ 5 System components covered by the Agreement

(1) The agreed ConnectedCare system components shall be installed and operated for use in the building(s) covered by the Agreement.

(2) The scope of delivery for initial installation, determined on the basis of the information pursuant to § 4, is specified in the offer or the order confirmation (if different from the offer).

(3) Based on the specification of requirements pursuant to § 4, the modules listed in the offer or the order confirmation (if different from the offer) shall be provided and operated on the user terminals belonging to the system.

(4) Subsequent changes to the scope of services shall be documented in text form in an addendum.

(5) The software system components are provided only for use in accordance with the Agreement. They shall remain the property of ConnectedCare and may only be used as contractually intended by the patients and the personnel deployed for operation. Interventions or modifications shall be made exclusively by ConnectedCare or with the consent of ConnectedCare in text form. Copies of the software or parts thereof may not be made and, above all, may not be distributed.

 

§ 6 System Setup

(1) ConnectedCare shall set up the system specified in the offer or the order confirmation (if different from the offer) at the agreed location within the schedule provided for this purpose upon conclusion of the Agreement. The CUSTOMER shall ensure that ConnectedCare's employees have the unobstructed access to all premises on site required for setting up the system according to the time schedule and shall ensure adequate timely support by its own IT specialist personnel available in order to enable the smooth integration of the system into the already existing IT infrastructure.

(2) ConnectedCare and the CUSTOMER shall each appoint a project manager who shall perform the project management tasks for the project implementation in the sphere of the respective Party.

(3) The persons responsible for the project shall support each other mutually in the implementation of the schedule, and shall adapt it to the needs of the project to the extent necessary, e.g. if unexpected difficulties arise or if the proper ongoing operation at the agreed location requires this. The project managers document malfunctions and other circumstances that may affect the subsequent smooth operation of the system in accordance with the Agreement already during the set-up phase and work together to swiftly find solutions to them. Such malfunctions and circumstances are included in a "to-do" list kept in written form and updated as required, which includes a categorization according to A (severe), B (medium severe), C (light) and D ("nice to have"), as well as a provisional schedule within which the item is to be technically resolved.

(4) After the system has been set up on site and any test phase provided for in the current schedule has been completed, the system shall be accepted as being in compliance with the Agreement. For this purpose, an acceptance protocol shall be drawn up in text form, which shall list all points still to be worked on according to the to-do list (§ 4 [3]), errors or problems detected at the time of acceptance with a provisional schedule for their elimination. The CUSTOMER is obliged to cooperate. Acceptance may not be refused in the case of defects of categories (B) to (D), unless there are so many defects that, weighted together, they qualify as a functional impairment of category (A). If the CUSTOMER fails to actively participate in the acceptance and puts the system into operation, it shall be deemed to have been accepted and only the justified items of categories (A) to (C) listed in the then current To-Do List shall be worked through by ConnectedCare within a reasonable period of time.

(5) Prior to or on the occasion of the acceptance, ConnectedCare shall instruct, at a time to be agreed upon, a limited number of employees of the CUSTOMER, who shall also be agreed upon, in the user handling and component maintenance (cleaning, etc.) of the system and its components.

 

§ 7 System Operation & Updates

(1) Unless otherwise agreed, the CUSTOMER shall operate the system at its own expense and risk.

(2) From the time the system is successfully set up, however, the CUSTOMER shall have the option to manage the associated software components and, to the extent technically and contractually provided for, the terminal devices via ConnectedCare's access-protected customer portal.

(3) ConnectedCare is not obliged to provide updates or upgrades of the program. This shall be done voluntarily at the discretion of ConnectedCare. After expiration of the warranty period, the CUSTOMER shall not be entitled to have defects in updates or upgrades provided free of charge and voluntarily remedied by ConnectedCare. Rather, in the event of problems, the CUSTOMER is referred to restore the program version installed before the update or upgrade in the program environment in which the program was running. In case of doubt, the system environment at the time of expiry of the warranty period shall be decisive.

(4) The aforementioned services relate exclusively to the system installed by ConnectedCare with its hardware and software components to the extent specified in the Agreement. Services provided by ConnectedCare which are caused by interventions of the CUSTOMER or third parties, even if these have an (indirect) effect on the system or individual components thereof, are not covered. Such services are to be remunerated to ConnectedCare at the hourly and expense rates applicable at the time of performance of the service against invoicing. This shall also apply if the circumstances only become apparent subsequently on the occasion of the provision of services by ConnectedCare. Changes in the scope of ConnectedCare's aforementioned services shall be documented by the Parties in text form with effect for the future.

(5) At the request of the CUSTOMER, ConnectedCare shall be prepared to negotiate extensions of the subject matter of the Agreement (new hardware models, additional or newer services, etc.) that are then part of the respective existing range of services and products of ConnectedCare and shall submit a corresponding offer. However, this shall only be done if the CUSTOMER commits to a corresponding extension of the minimum contract term in an extended (amended) Agreement to be concluded.

 

§ 8 Usage Rights

(1) The contractual software running on the system hardware may only be used for its intended purpose and with the scope of functions available at the time of conclusion of the Agreement. This Agreement does not grant any claims for changes, such as functional extensions.

(2) Intellectual property rights and copyrights: All rights not expressly granted to the CUSTOMER in this Agreement shall remain with ConnectedCare. ConnectedCare's software is protected by copyright laws and by other laws and agreements on intellectual property. ConnectedCare or its development and/or distribution partners hold property rights and copyrights to the software. This program usage agreement does not grant the end user any rights to trademarks or other identifications of ConnectedCare or its development and/or sales partners.

(3) The CUSTOMER may not sell, give away, lend or rent the contractual software to third parties. The CUSTOMER shall not be entitled to remove or circumvent existing protective mechanisms of the software against unauthorized use or, even in the absence of such protective mechanisms, to use the software without authorization or to expose it to unauthorized use.

(4) Copyright notices, serial numbers and other features serving to identify the program may also not be removed or changed. The same applies to suppression of the screen display of the corresponding features.

(5) The rights to third party modules available in the system are held by the legally entitled party. Separate agreements shall be made regarding their transfer to end users for use on ConnectedCare multimedia terminals, the distribution of the modules via platforms of ConnectedCare and all other related issues. Therefore, the CUSTOMER cannot derive any claim against ConnectedCare in connection with the third-party software from the present Agreement.

(6) The CUSTOMER agrees that ConnectedCare may include the CUSTOMER in its customer reference list and thus advertise that the CUSTOMER makes use of ConnectedCare's offer and uses it in its facility. At the same time, the CUSTOMER is granted the right to advertise that it offers ConnectedCare equipment and services in its facility.

 

§ 9 Ownership

(1) ConnectedCare retains ownership of the software belonging to the system delivered under this Agreement, including data carriers.

(2) In the event of a breach of the Agreement, in particular in the event of default in payment with respect to the remuneration, ConnectedCare shall be entitled to take back the items handed over. The taking back does not constitute a declaration of withdrawal (rescission/termination) from the Agreement.

 

§ 10 General Performance Disruptions

(1) If the CUSTOMER has set a deadline for performance or subsequent performance, it may use the unsuccessful expiry of this deadline to withdraw (rescind/terminate) from the Agreement or to claim damages instead of performance only, if it has notified ConnectedCare when setting the deadline that it no longer intends to make use of the ConnectedCare's performance after the unsuccessful expiry of the deadline. If the CUSTOMER has issued a warning instead of setting a deadline, he shall also inform ConnectedCare at the same time as the warning that he no longer intends to make use of ConnectedCare's performance after the warning has not been successful. In all other respects, the provisions of the German Civil Code (BGB) and the German Commercial Code (HGB) shall apply.

(2) The CUSTOMER may only withdraw (rescind/terminate) from the Agreement due to an existing unreasonable breach of duty, if ConnectedCare is responsible for this breach of duty and has not remedied this breach of duty within a reasonable period of time upon request.

 

§ 11 Liability for Material Defects and Defects in Title

(1) Technical data, specifications and performance data in public statements, in particular in advertising material, are not quality data. The functionality of software is based on the description in the user documentation and the supplementary agreements made in this regard. A defect does not exist if the software does not meet the objective requirements, i.e. if the software is not suitable for the usual use or does not have the usual quality. The decisive factor is the suitability for the contractual purposes.

(2) ConnectedCare does not warrant that the software will function as intended on a device on which other programs are installed that affect its proper function or on whose proper function the program affects. Excluded are such errors which affect the compatibility of the program with other programs or program versions which are compatible with the program according to specifications published by ConnectedCare for the version of the program. In particular, ConnectedCare does not guarantee the functionality of the software in future versions of operating systems or the compatibility with future versions of programs of other suppliers or the functionality of applications created with the software for other ConnectedCare multimedia terminals or ConnectedCare multimedia terminals that will be introduced to the market when ready for serial production after the expiration of the period specified in the following paragraph (3).

(3) Claims for defects shall become statute-barred 12 months after delivery of the software, unless the defect was fraudulently concealed or the defect is a so-called hidden defect that was not readily detectable even after careful inspection. The enforcement of claims for liability for defects is dependent on defects being reported in text form within one week of their first detection.

(4) ConnectedCare shall not be liable in cases in which the CUSTOMER has made changes to the deliveries/services provided by ConnectedCare, unless these changes were without influence on the occurrence of the defect.

(5) The CUSTOMER shall support ConnectedCare in the determination and elimination of the defect and shall immediately grant ConnectedCare inspection of the documents and access to the facilities from which the detailed circumstances of the occurrence of the defect result. If this is not done, the CUSTOMER shall not be entitled to assert any further rights against ConnectedCare, in particular but not limited to: damage caused by delay due to longer repair time, suspension of the statute of limitations for the duration of the repair if the repair would have been shorter with the cooperation of the CUSTOMER pursuant to § 5 sentence 1 of this agreement.

(6) If an alleged defect cannot be attributed to a defect warranty obligation of ConnectedCare after appropriate investigation (apparent defect), ConnectedCare may charge the CUSTOMER for the services rendered by ConnectedCare for verification and elimination of the defect at the respective valid rates of remuneration plus the expenses incurred, unless the CUSTOMER could not have recognized the apparent defect even if it had exercised due care.

 

§ 12 Liability in Other Respects

(1) ConnectedCare shall be liable for intent and gross negligence. ConnectedCare shall only be liable for slight negligence in the event of a breach of a material contractual obligation (cardinal obligation), the fulfillment of which is a prerequisite for the proper performance of the Agreement and on the observance of which the CUSTOMER may regularly rely, as well as in the event of damage resulting from injury to life, body or health.

(2) ConnectedCare owes the care customary in the industry. In determining whether ConnectedCare is at fault, it must be taken into account that software cannot be technically created without errors.

(3) In the event of slight negligence, liability shall be limited to the amount of the foreseeable damage, the occurrence of which must typically be expected; however, this liability shall be limited to a maximum of € 5,000,000 per case of damage and to a total of € 10,000,000 from the contractual relationship.

(4) ConnectedCare shall not be liable for the loss of data and/or programs to the extent that the damage is due to the CUSTOMER's failure to perform data/software backups and thereby to ensure that lost data can be restored with reasonable effort.

(5) The above provisions shall also apply in favor of ConnectedCare's vicarious agents.

 

§ 13 Data- and Secrecy Protection

(1) For all tasks in which employees of ConnectedCare could come into contact with personal data, in particular patient data, in the sphere of the CUSTOMER on the occasion of the execution of the Agreement, ConnectedCare shall exclusively use employees who have undertaken to maintain data secrecy. In addition to the statutory German/EU provisions, the agreements from the Agreement to be concluded separately for the implementation of data protection shall apply to data protection.

(2) The parties shall treat as confidential all information received directly or indirectly from the other party (whether in electronic or other form). Orders and all related commercial and technical details shall also be treated as confidential information, as shall personal data. In particular, all illustrations, graphics, drawings, photographs, calculations, specifications, calculations and similar items received shall be kept secret. Confidential information may only be reproduced and passed on within the scope of operational requirements. It may only be disclosed to third parties with prior consent in text form.

(3) The foregoing obligations shall not apply to such confidential information that is

(i) were generally available at the time of the notice or became generally available thereafter through no fault of any party;

(ii) were already in its possession at the time of the communication; this must be notified to the other party immediately after receipt of the confidential information;

(iii) has been made available to it by a third party without any obligation of confidentiality or non-use, provided that such third party has not obtained the information directly or indirectly from the other party;

(iv) are required by law to be disclosed to public authorities.

(4) However, ConnectedCare shall be entitled to name the CUSTOMER in its list of reference customers.

 

§ 14 Code of Conduct

ConnectedCare is part of the Phoenix Mecano Group and observe its Code of Conduct, which can be viewed on our website.

 

§ 15 Final Provisions

(1) Should individual provisions of this Agreement be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The parties agree already now for this case that the invalid provision shall be replaced by a valid provision which comes as close as possible to the economic purpose of the invalid provision. The same shall apply to any loopholes in the agreement.

(2) The assignment of claims shall only be permitted with the prior consent of the other contracting party in text form. Consent may not be unreasonably withheld. ConnectedCare shall nevertheless be entitled to assign payment claims within the framework of factoring. The provision of § 354 a HGB remains unaffected.

(3) A right of retention may only be asserted on the basis of counterclaims arising from the respective contractual relationship.

(4) The contracting parties may only offset claims that have been legally established by a court of law or are undisputed.

(5) There are no ancillary agreements to this Agreement. Amendments and supplements to this Agreement must be made in text form. This formal requirement may only be waived by agreement in text form.

(6) The terms and conditions of sale, delivery and payment of ConnectedCare GmbH shall apply in addition.

(7) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

(8) The exclusive place of jurisdiction for all legal disputes arising from or in connection with this Agreement shall be the registered office of ConnectedCare in Münster. However, ConnectedCare shall also be entitled to bring an action at the CUSTOMER's general place of jurisdiction.

 

Status 15 January 2024