General terms and conditions of business for remote maintenance
§ 1 Scope
By order of the customer ("client"), KaVo Dental GmbH („contractor“) will carry out remote maintenance of the systems and devices of the client . The general terms and conditions of business regulated here are exclusively applicable for contracts concluded with the client. Deviating regulations are explicitly contradicted. Regulations other than such defined in this contract shall only be effective with the explicit acceptance of the contractor.
These contractual terms and conditions will also apply to future business relations including contractual amendments and modifications, even if they are not explicitly and separately stipulated.
§ 2 Remote maintenance service
The object of the maintenance work is the maintenance of the device or system on the premises of the client (contractual object), whereby details will be defined in the order form.
The contractor will ensure the interference-free functioning and functioning capability of the system by means of regular inspections of the contractual object (hardware and software in accordance with service certificate) as well as by servicing and care of the IT system in accordance with the following provisions.
The servicing of the hardware comprises as maintenance the checking of the significant components of the hardware and the associated consumables as listed in the service certificate (annex 1).
§ 3 Manner of the performance of remote maintenance measures
The contractual services will basically be provided by data remote transmission and remote maintenance in so far as this is technically possible. Services that cannot be provided via remote access will be provided by the contractor on the premises of the client.
The contractor will take all reasonable measures to provide support to the client. This includes the preliminary review via the telephone instruction of an employee of the client by the contractor. If this does not produce a remedy, the contractor will obtain remote access or provide the service on client premises if necessary.
The client will independently make a complete data backup prior to any access from the contractor.
It will be verified whether this data backup has taken place at the beginning of the remote maintenance services. This can take place by telephone contact to the the person responsible for the client's system or by means of remote diagnosis. If this has not happened, a data securing will firstly be instigated by the contractor via remote access. The corresponding technical opportunity must then be provided. Thereupon an attempt will be made to rectify the disturbance via remote access or by visiting the the premises if necessary.
The remote access begins when employees of the client enable access to the network. They should be able to interrupt the remote maintenance or control the running processes and modifications. To achieve this purpose, the procedure of the maintenance work and the work required to rectify disturbance must be designed in such a way that the running processes on the system can be followed.
Prior to the beginning of the actual remote maintenance, the employee of the contractor will complete a registration procedure with authentification.
If the remote access does not produce a remedy, the contractor must provide the service on client premises. The client will grant the contractor access to his business rooms and system for the maintenance work.
The contractor will finally provide a documentation of the conducted maintenance work and the work involved involved to rectify the disturbance. This consists of a report of the conducted work in text form. The contractor himself will retain a report for information purposes for a period of at least one year.
The contractor will record the begin, duration, type and extent of the performed servicing and remote maintenance work as well as the devices affected in a servicing logbook. In case of servicing work, the contractor will additionally enter the time and content of the error message, the determined error source, the action arranged by telephone, the remote maintenance services, the maintenance work conducted on client premises and the time of the operational readiness. During servicing measures, the contractor will record which software has been adapted to the changed requirements and how. The client will confirm the provided services in the service logbook.
The client shall check that the service has been carried out properly within a period of 10 days from receipt of the written communication of the rectification of the malfunction or 10 days after the date for the regular maintenance. The client will accept the the orderly service from the contractor within a reasonable inspection period. If the declaration about the completion of the work and the availability of the system is not received by the client, the point in time when the client should justly have been expected to take note of the services will apply instead of the date of the notification.
§ 4 Obligation of the client to cooperate
The client should note the circumstances of the malfunction every time it occurs. On the announcement of the malfunction to the contractor, the circumstances of the malfunction should have already been communicated.
The client will create the necessary technical prerequisites for a remote maintenance at his own cost and will provide a cable in case of disturbance or for maintenance. The client shall agree to enable the establishment of connection or the remote maintenance release in the operating or application system, e.g. by the operational readiness of the connection and system, activation of the user ID for the servicing. The client shall bear the costs for a necessary connection. If the connection is not use for a period od 30 minutes, the client can discontinue the connection setup or remote maintenance release, otherwise immediately after the end of the maintenance work.
§ 5 Prices
The prices contained in the order form for the remote maintenance action to be performed shall be applicable.
All amounts are net prices and are subject to VAT at the applicable rate.
Unless explicitly stated otherwise, invoices shall be due for payment within 30 days of the invoicing date and in full with no deductions and free of charges to be made by bank transfer, direct debiting or payment in cash. The timeliness of payments made by bank transfer shall be governed by the data of availability to the contractor.
§ 6 Default of payment by the contractual parties
In the case of default of payment on the part of the client, the contractor shall be entitled to demand default damages amounting to 8 % p.a. over the base interest rate. The right to further legal claims shall be reserved. The client shall have the right to prove that no damage or only minor damage has been incurred by the contractor as a result of the default. The default damages to be paid will then be reduced accordingly.
If the provision of spare parts is dependent on the contractor or on a third party and timely provision thereof should fail for reasons for which neither party is responsible, the client shall not be entitled to compensation for this reason. The same shall apply when, due to force majeure or other occurrences, the provision is significantly complicated or impossible and the contractor is not responsible for this. Such occurrences comprise in particular fire, flooding, labour disputes, breakdowns, strikes or administrative orders which are not operational risks.
If the client's duty of participation is omitted or delayed and he is responsible for the obstruction, the periods and deadlines will be extended. As a rule, it is reasonable to accept an extension of the time limit by the duration of the delay.
§ 7 Compensation for damages
The contractor shall not be held liable for compensation or the rectification of damage e.g. on account of loss or erroneous processing of data in so far as the contractor has not caused the damage wilfully or due to grave negligence. The contractor likewise shall not be held liable, regardless of the legal grounds, for lost profit, not realised savings, damages from the claims of third parties, other indirect damages or consequential damages, in so far as the contractor has not caused these damages wilfully or due to grave negligence.
The limitations to liability shall not apply in case of violation of the contractual duties, in case of liability according to the product liability law or when danger to life, limb or health or a warranty is affected. In case of slightly negligent violation of duty, the contractor shall only be held liable if foreseeable damage has occurred.
The contractor shall not be held liable for damage that could not be foreseen in the scope of this contract.
§ 8 Data protection and confidentiality
All personal data collected by the contractor and existent in his databases will be treated confidentially for an unlimited period. The data required for business processing will be saved and, in the necessary framework of the execution of the order, transferred to affiliated companies and suppliers or to banks for settlement.
The contractor shall ensure that any employees assigned to and entrusted with the remote maintenance or coming into contact with the remote maintenance are informed of the regulations concerning data protection and have submitted a written declaration on their adherence to such regulations. In particular, the employees shall be committed to the observation of the data confidentiality and obligated to never pass on any information they have obtained in the course of remote maintenance to uninvolved third parties. The contractor shall document the technical and organisational data protection measures he has taken.
It must be ensured that no access to application data is possible for normal maintenance, servicing and diagnostic work unless the maintenance, servicing and diagnosis would otherwise be impossible. The solution to problem cases must primarily take place in test environments. If access to the application data be necessary, this must take place following consultation with and under the control of the client's employee who is responsible for the system and with a special user ID. The contractor shall obtain the permission of the appointed person responsible for the system or the data protection officer prior to access or insight into any personal data.
Data transmitted during the remote maintenance will not be made accessible or transferred to third parties. They will be used exclusively for servicing purposes and deleted immediately after completion of the servicing or error search so that they cannot be reproduced. Produced security backups and copies must be handed over to the client. If these are required for further servicing, maintenance or diagnostic work, they will be kept by the client on communication in a manner that is accessible for the contractor.
§ 9 Final provisions
The contractual partners agree on the application of German law, with the exclusion of the UN Sales Convention, with regard to all legal relations resulting from the contractual relationship, present and also future after fulfilment of the contract.
The contractual language is German.
It is agreed that the registered officer of the client will be the place of performance for all mutual services resulting from this contract.
The place of jurisdiction is agreed to be the court which is competent for the place of performance if the client belongs to merchants in the sense of § 38 ZPO, is a legal entity subject to public law or special public law fund or does not have a general place of jurisdiction in the Federal Republic of Germany.
If individual provisions or obligations of this contract and the annexes or further modifications or communications should be mutually contradictory, the provisions of the contract shall take precedence. This shall not apply if modifications or communications consensually modify the contract or annexes and the obligations specified therein.
If any provision of this contract should be or become invalid , this shall not affect the validity of the rest of the contractual terms and conditions.
KaVo Dental GmbH