1. General
(1) The following general license terms and conditions of sale (“Terms and Conditions”) shall apply to all sales of products and services of Hint-ELs GmbH (“Hint-ELs”) as well as the granting of the right to use the Hint-ELs software running on or delivered with the products (“Software”) including user documentation, manuals, etc. as well as any so-called demo versions. This right of use comprises the lasting use of the Software for the Customer's own purposes within the framework of these Terms and Conditions (non-exclusive right of use).
(2) Conflicting conditions or conditions deviating from these Terms and Conditions or conditions of the Customer which change the contract are herewith rejected; they shall only be valid vis-à-vis Hint-ELs if Hint-ELs agrees to such changes in writing. This shall also apply in particular in the event that an order is placed with reference to the Customer’s general terms and conditions.
(3) The Hint-ELs Terms and Conditions shall also be the basis for all future transactions between the Customer and Hint-ELs.
(4) The Software corresponds to the current level of technology. Hint-ELS points out that in accordance with this level of technology, it is not possible to develop software in a way that it is free of any defects in all applications and/or combinations. Therefore, only the Software which is fundamentally usable within the meaning of the Software description and the Customer documentation shall be subject matter of this contract.
2. Offers, Confirmations of Orders
(1) Offers by Hint-ELs shall not be binding and be subject to change without notice until confirmed in writing by Hint-ELs. If Hint-ELs does not confirm the order in writing, the contract of delivery shall come about with the delivery of the goods by Hint-ELs; in this case, the shipment of the goods shall be deemed to be confirmation of the order.
(2) Information in offers made by Hint-ELs pertaining to dimensions, materials, colors, designs and other features shall be non-binding; such information shall only be binding through a written confirmation by Hint-ELs.
(3) Hint-ELs reserves the right to alter warranted qualities, insofar as this is not unacceptable for the Customer.
3. Prices and Consideration
(1) Hint-ELs prices are net prices. The statutory value-added tax in Euro applicable on the date of delivery will be added to the net prices.
(2) Insofar as a delivery period that is longer than four (4) months as of the conclusion of the contract is agreed, the prices valid on the date of delivery shall apply. Prices are understood to be for unpacked goods ex works.
(3) For deliveries abroad, the customs and customs clearance costs shall be borne by the Customer.
(4) In the event that the exchange rate of the foreign currency being the basis of the offer of Hint-ELs has changed compared to the required currency of the Customer at the time of invoicing for +/- 2%, Hint-ELs shall be entitled to accordingly modify the sales price in such invoice vis-à-vis the Customer.
4. Terms of Payment
(1) Payments are to be made to Hint-ELs’ pay office within the agreed time allowed for payment and without any deductions, or if nothing else has been agreed, payments are to be made promptly and net and without any deductions. The date on which Hint-ELs is unconditionally credited with the payment shall determine compliance with the period for payment as well as with any other agreed terms of payment.
(2) If the Customer does not comply with a notice to pay from Hint-ELs which is sent after the expiration of any agreed time allowed for payment, the Customer shall be in default by virtue of the notice. If a calendar day has been contractually stipulated for the payment, the Customer shall be in default without having received a notice to pay, if the Customer does not pay on time. In the event of default, Hint-ELs may insist on interest in the amount of 8 % over the base (lending) rate per annum. If Hint-ELS is able to prove higher losses as a result of the default, Hint-ELs shall be entitled to assert such higher losses. However, the Customer is entitled to prove to Hint-ELs that no losses or much lower losses were incurred by Hint-ELs as a consequence of the default in payment. Hint-ELs’ statutory rights remain unaffected hereby.
(3) In the event of defaults in payment, the onset of payment difficulties or the commencement of insolvency proceedings, Hint-ELs shall have the right to declare all of the amounts owed out of the business relationship to be due for payment immediately, even if they have been deferred. In case of a default in payment by the Customer, moreover, Hint-ELs shall be authorized, without prejudice to any other rights, to set a grace period with the threat of rejection, and to withdraw from the contract and to insist on the return of the goods or on compensation due to non-performance.
(4) It is solely up to Hint-ELs to choose the manner in which payments received shall be set off against which receivables. If costs and interest have already been incurred, Hint-ELs shall be entitled to apply payments first to the costs, then to the interest and lastly to the principle receivable.
(5) The Customer may only offset such receivables which are uncontested or have been finally adjudged and may only assert rights of retention, insofar as they are based on the same contractual relationship.
5. Reproduction Rights and Access Protection for Software
(1) The Software is protected by German copyright laws and by international copyright treaties, as well as by other laws and intellectual property agreements.
(2) The Customer may reproduce the Software supplied to the extent that the respective reproduction is needed to use the Software. Necessary reproductions include the installation of the Software from original media onto the mass storage of the hardware deployed and downloading the Software into the main memory.
(3) In addition, the Customer may reproduce the Software for back-up purposes. However, only one single back-up copy may be made and kept as a matter of principle. This back-up copy is to be labelled as such using the manufacturer's sticker enclosed with the Software documentation.
(4) If for reasons of data security or to ensure a rapid reactivation of the computer system after a complete failure the regularly scheduled backup of the whole data set, including the Software used, is indispensable, the Customer may make as many back-up copies as are necessary. The corresponding media are to be marked accordingly. The back-up copies may only be used for archival purposes.
(5) The Customer is obligated to prevent unauthorized third-party access to the software and to the documentation by taking suitable measures. The original media supplied and the back-up copies are to be stored in a place secured against unauthorized access by third parties. Compliance with the foregoing contract terms and the provisions of copyright law are to be emphasized to the Customer’s employees.
(6) Other reproductions, which also include the print out of the Software code using a printer and photocopying the manual, may not be made by the Customer. Any additional manuals that might be necessary for employees are to be obtained from Hint-ELs.
6. Multiple Use and Network Use of Software
(1) The Customer may use the Software on all hardware available to the Customer. If the Customer changes the said hardware, however, the Customer must delete the Software from the previously used hardware.
(2) The contemporaneous roll-in, storage or use on more than one system of hardware is not permitted. If the Customer would like to contemporaneously use the Software on several hardware configurations, e.g. by several employees, the Customer must acquire a corresponding number of Software packages.
(3) The use of the Software within a network or any other multi-station computer system is not permitted, insofar as the possibility of contemporaneous multiple use of the Software is created hereby. If the Customer wishes to use the Software within a network or other multi-station computer systems, the Customer must prevent contemporaneous multiple use through access protection mechanisms or pay Hint-ELs a special network fee, the amount of which is determined by the number of the users connected with the computer system. Hint-ELs will inform the Customer immediately of the network fee to be paid in each case as soon as the Customer states the planned network use, including the number of users to be connected, to Hint-ELs in writing. Deployment in such a network or multi-station computer system is only permitted once the network fee has been completely paid.
(4) With the registration of the Software, the Customer receives a personal registration code, comprising its name and a registration number calculated here from. The Customer is entitled to use its registration code on a computer. The Customer is not entitled to lend, lease, rent or otherwise transfer the registration code to another user, unless this happens as part of a permanent transfer of the Software pursuant to Section VIII.
7. Decompilation and Software Modifications
(1) The back translation of the Software code transferred into other code forms (decompilation) and other types of reverse engineering of the various manufacturing stages of the Software including Software modifications are permitted for the Customer’s own use, in particular for the purpose of eliminating defects or expanding the scope of functionality. In particular, the private use by the Customer is considered to be own use in this sense. In addition, own use also means the professional or use serving profit-earning purposes, insofar as this is limited to own use by the Customer or its employees and is not intended to be commercially exploited outwardly in any way.
(2) The removal of copy protection routines or similar protection routines is only permitted insofar as the disruption-free use of the Software is impaired or prevented by such protective mechanism. The burden of proof for the impairment or preventive of disorder-free usability by the protective mechanism lies with the Customer. Section XIV (3) of these license terms is to be taken into consideration.
(3) The corresponding actions pursuant to sub-section (2) above may only be left to commercial third-parties who are potential competitors of Hint-ELs, if Hint-ELs do not wish to undertake the desired Software modifications in exchange for an appropriate remuneration. Hint-ELs is to be granted an adequate period of time to review the possibility for taking on such an assignment and must be informed of the name of the third party.
(4) Insofar as the cited actions are undertaken for commercial reasons, they are only permitted if they are indispensable for the creation, maintenance or functioning of an independently created interoperable Software and if the necessary information has not yet been published or is otherwise accessible, or can be inquired of the manufacturer. Please see the front cover sheet of the Customer manual for the manufacturer's address.
(5) Copyright notices, serial numbers and other features serving to identify the Software may not be removed or changed under any circumstances whatsoever.
8. Resale and Release
(1) The Customer may – to the exception of Section XV (2) – permanently sell or give away the products or Software, including user manual and other accompanying materials to third parties, provided that the acquiring third party agrees to the continued validity of these license terms and conditions in respect of itself. In the event of such a sale or gift, the Customer must transfer all of the copies of the Software, including any back-up copies and updates, as well as the Software documentation to the new user or destroy any copies not turned over. The Customer’s right to use the Software ceases as a result of such a sale or gift. The Customer agrees to comply with the duty to provide information in accordance with Section XIV (1) of this contract.
(2) The Customer may temporarily transfer the Software, including the Software documentation, to third parties, insofar as this is not for the purpose of renting the Software to make a profit or for leasing purposes and the said third party declares its consent to the continued validity of these terms and conditions in respect of itself. The Customer must transfer all of the copies of the Software, including any back-up copies and updates, as well as the Software documentation, or destroy any copies not turned over. For the period during which the Software is relinquished to such third party, the Customer does not have the right to use the Software for his own use. Rentals for profit-making purposes or leasing are not permitted.
(3) The Customer may not transfer the Software to third parties if there is a well-founded suspicion that the said third party will breach these terms and conditions, and in particular, make unauthorized reproductions. This also applies to any employees of the Customer.
9. Time of Performance, Delays
(1) Information on delivery and performance times is non-binding, unless it has been confirmed by Hint-ELs in writing as being binding. Hint-ELs shall be entitled to make partial deliveries, to the extent that the parts delivered can be used in a meaningful way as such by the Customer.
(2) If Hint-ELs does not comply with the delivery period, the Customer may reject the performance of the contract after sending a warning and setting an appropriate grace period with the threat of rejection of performance. In this case, the Customer’s claim to damages is excluded, unless the delay is due to willful or grossly negligent conduct on the part of Hint-ELs or any statutory representative or vicarious agent of Hint-ELs. The aforesaid exclusion of liability shall not apply to liability due to death or injury to body or health.
(3) Deliveries shall categorically be made by Hint-ELs for the Customer’s account and at the Customer’s risk, unless something else has been agreed in writing.
(4) Hint-ELs reserves the right to choose the shipping route; in particular, Hint-ELs may commission a third-party carrier, if required.
(5) Delivery and performance periods shall be extended by the period of time in which the Customer is in arrears of payment under the contract and by the period of time in which Hint-ELs is prevented from making delivery or performance for reasons over which Hint-ELs has no control and by a reasonable start-up period after the end of the reason for the impediment. Such circumstances shall also include force majeure, labour disputes, and the Customer’s lack of or insufficient cooperation, if necessary. In the event of force majeure, Hint-ELs is entitled to withdraw from the contract, if performance is actually or economically impossible. Force majeure shall include but is not limited to strikes, lockouts, other unforeseen breakdowns, stoppages, delays, interruptions of service or equipment failure and all losses that were unforeseeable on the date on which the contract was concluded. This shall also apply in commercial transactions, if Hint-ELs in turn does not receive deliveries within an appropriate period. In the cases cited in this section, Hint-ELs shall not be entitled, however, to withdraw from the contract, if Hint-ELs is responsible for the obstacles.
(6) If the Customer is in default with regard to acceptance, Hint-ELs shall be entitled to reject performance of the contract, after the expiration of a grace period to be set by Hint-ELs and the corresponding threat to do so. Compensation shall amount to 30 % of the purchase price, but the Customer has the right to prove that a loss did not occur or was not as high. Hint-ELs is permitted to prove a higher loss.
(7) If the parties to this contract subsequently agree to additional performance which has an impact on the time limits agreed the said time limits shall be extended by a reasonable period of time.
(8) Requests and time limits must be made or fixed in writing to be valid. A grace period must be reasonable. A time limit of less than two (2) weeks is only reasonable in cases of particular urgency.
10. Warranty, Liability
(1) Defects in the Software can never be completely excluded in accordance with the current level of technology. The Customer herewith takes note of this. Functional impairments of the Software arising from hardware defects, environmental conditions, operational errors, or similar causes, is not a defect. An insignificant reduction in quality remains without consideration. And Hint-ELs also does not warrant the continuance, suitability or freedom from error of any transmission lines used by the Customer or from the Customer’s own data communication devices.
(2) Product descriptions and representations in the Software or demo versions hereto as well as the User documentation are performance specifications but not guarantees. A guarantee requires a written declaration by the management.
(3) Defects in the products or Software supplied, including the manuals and other documents, are to be rectified by Hint-ELs within the period of limitation of one year as of delivery after a corresponding notification by the Customer. Such defects will be rectified at Hint-ELs option either by remedying the defect or making a replacement delivery. In the event of a replacement delivery, the Customer is obligated to return the defective product or Software. The parts replaced as part of the supplementary performance shall become the property of Hint-ELs. If Customer has combined the goods delivered by Hint-ELs with other items, Hint-ELs shall not be liable for the costs of the installation or dismantlement of the defective goods or the installation of the subsequently delivered replacements. The Customer must give Hint-ELs an opportunity to conduct an inspection or to comment in writing, before the other party dismantles goods from Hint-ELs.
(4) The Customer is obligated not to use defective devices any more and once defects are known, to take immediate measures to prevent or limit consequential damage or loss.
(5) As long as Hint-ELs complies with its obligation to make supplementary performance, in particular to rectify defects or to supply flawless products or Software, the Customer will not have any right to demand a reduction of the purchase price or to declare its withdrawal from the contract, unless such supplementary performance fails. Hint-ELs will have two attempts to make supplementary performance. After that, such supplementary performance is deemed to have failed.
(6) Liability for normal wear and tear is excluded. If Hint-ELs’ operational or maintenance instructions are not complied with, alterations are undertaken to the product, parts are replaced or if materials which do not correspond to the original specifications are used, claims for defects shall be excluded, unless the Customer refutes a correspondingly substantiated claim that it was precisely one of these circumstances that led to the defect. In the event of an insignificant deviation from the agreed quality or insignificant impairment of the usefulness of the goods, any claims for defects on the part of the Customer shall likewise be excluded.
(7) Hint-ELs is liable in accordance with the statutory provisions, insofar as the Customer asserts claims for damages based on willful intent or gross negligence, including willful intent and gross negligence of agents or other persons employed by Hint-ELs. To the extent that Hint-ELs is not charged with a deliberate breach of contract, liability for damages will be limited to the typical damage foreseeable at the time the contract was entered into.
(8) In the event of minor negligence, Hint-ELs will only be liable in the event that a duty is breached, the compliance with which is of particular importance (cardinal duty); in this case liability for damages is limited to the typical damage foreseeable, but no more than the contract amount/value of the contract agreed between the Customer and Hint-ELs on which the said damaging event or all damaging events are based.
(9) Insofar as the Customer has a claim to reimbursement of loss instead of performance, liability is also limited within the framework of (3) above to replacement of the typical damage foreseeable at the time the contract was entered into. Liability for loss of data will be limited to the typical recovery expenses which would have been incurred if backup copies in accordance with this risk had been regularly made.
(10) Liability in accordance with the German Product Liability Act remains unaffected hereby (Section 14 ProdHG). Furthermore, liability for damage or loss arising from death, bodily injury or injury to health remains unaffected hereby; in this case, the liability of Hint-ELs is unlimited.
(11) Hint-ELs may demand additional costs from the Customer due to the fact that the product or Software was modified, deployed outside of the intended environment or improperly used. Hint-ELs may demand reimbursement of expenses if no defects are found. The burden of proof pursuant to the German Civil Code (BGB) shall apply accordingly.
(12) If the Customer amends or expands the Software or parts of it or allows the same to be under-taken by third parties, the warranty shall expire to this extent, unless the Customer is able to prove that this is not the (co-)cause of the defect. Hint-ELs will not take the responsibility for errors, disruptions or damage due to improper operation, use of unsuitable operating resources or unusual operating conditions.
(13) Warranty with respect to hardware:
Warranty entitlements are also voided when the purchaser uses materials other than those delivered by the seller for the fabrication of dental products. In this case the seller is entitled to demand payment of a license fee in the amount of 0.5 % (in words, zero point five percent) of the Hint-ELs® purchase price for every started calendar month of system utilisation with materials not provided by the seller (see also § 21 License fee, about this).
11. Joint and Several Liability
(1) Liability for damages other than provided for in Section X above is excluded – without consideration of the legal nature of the claim asserted. This applies in particular to claims for damages for culpa in contrahendo, due to other breaches of duty or due to tortuous claims for compensation for damage for actual loss pursuant to Section 823 German Civil Code (BGB).
(2) To the extent that Hint-ELs' liability for damages is excluded or limited, this shall also apply with respect to the personal liability for damages of its salaried employees, other employees, agents or persons employed in the performance of this contract.
(3) The plea of contributory negligence on the part of the Customer remains unaffected hereby. In particular, the Customer has the duty to secure its data and to defend its computer system against viruses in accordance with the current level of technology.
12. Duty to Inspect the Goods and Requirement to Give Notice of Defects
(1) The Customer is obligated to inspect the products and the Software, including the documentation, supplied, in particular with respect to the completeness of the media and manuals and the functionality of basic product or Software functions without undue delay on arrival for transport damage or loss. Section 377 German Commercial Code (HGB) shall apply. Obvious defects ascertained or ascertainable hereby must be reported to Hint-ELs in writing within the said period by means of a registered letter using the form enclosed with the documentation. The notice of defects must contain as detailed a description that the Customer, using its best efforts, can produce. The dispatch of this notice within the 14-day period will satisfy compliance with the said period. Defective delivery items are to be kept on hand in the condition in which they were on the date the defect was ascertained, for inspection by Hint-ELs or by the respective manufacturer.
(2) Defects which are not ascertainable within the framework of the described proper inspection (invisible defects) must be reported within 8 working days after their discovery in compliance with the requirements for such notice set forth in (1) above.
(3) In the event of a breach of this duty of inspection and/or the requirement to give notice of defects, the Software and the products shall be deemed approved with regard to the defect concerned.
13. Returns
(1) Return shipments of goods shall only be permitted with the prior consent of Hint-ELs, which is granted through the indication of a return number (RMA Number). The Customer will be sent a return shipment form (RMA Order) by Hint-ELs. The return shipment form is to be enclosed with return shipments with a detailed description of the fault(s).
(2) The return must be made to the place determined by Hint-ELs for the return shipment. This shall be the place of performance for the return and with the proper acceptance, the place at which the risk passes to Hint-ELs.
14. Duties to Provide Information
(1) In the event of a resale or other transfer of the Software permitted in accordance with Section VIII of these Terms and Conditions, the Customer is required to notify the manufacturer in writing of the name and the complete address of the buyer or user, respectively.
(2) Insofar as the said Software is software with a purchase price of more than € 2.500.00 that has been especially adapted to the Customer’s hardware, the Customer will also be required to notify Hint-ELs in writing of any change in hardware. The same applies in the event that the Customer would like to use the respective Software within a network.
(3) Independent of the value of the said Software, the Customer is required to notify Hint-ELs in writing of any removal of copy protection or similar protective routines from the Software code. Disruption of the use of the Software permitted for this type of Software modification must be described by the Customer as precisely as possible. This duty comprises a detailed depiction of the disruption symptoms that occurred, the presumed cause of the disruption and in particular, a comprehensive description of the undertaken Software modification.
15. Retention of Title
(1) Hint-ELs retains title and ownership to the Software supplied to the Customer until the complete payment of all of the receivables arising from this contractual relationship existing on the date of delivery or later or until any checks or bills of exchange used in payment have been cashed.
(2) The resale of the products or Software is only permitted if Hint-ELs’ reservation of title is passed on. In the event that the Customer does not pass on the reservation of title with the resale of the products or Software, the Customer herewith assigns its claims against the acquirer to Hint-ELs.
(3) If the product or Software being sold is installed, commingled or processed, so that the reservation of title is lost, the Customer herewith assigns its claims against third parties which result herefrom to Hint-ELs in the amount of the invoice.
(4) Pledges of delivery items or assignments thereof as security for debts prior to the full payment of the purchase price are not permitted. In the event of pledges, seizure or other third-party measures, Hint-ELs is to be notified without undue delay. The Customer shall bear the costs of such measures. The sheriff is authorized to hand over the goods to Hint-ELs after the cancellation of the pledge.
(5) The Customer is obligated to properly store and duly insure Hint-ELs goods.
(6) In the event of any arrears of payment on the part of the Customer or any considerable breach of the duties of care, the assertion of retention of title by Hint-ELs will not be deemed to be a withdrawal from the contract, unless Hint-EL expressly so informs the Customer.
(7) In the event of the assertion of retention of title by Hint-ELs, the Customer’s right to continue to use the Software lapses. All of the copies of the Software made by the Customer must be deleted.
16. Items Manufactured to Order
(1) Unless otherwise agreed, one-third (1/3) of the estimated costs shall be due for payment upon receipt of the confirmation of the order from Hint-ELs.
(2) Tools, molds, etc. shall be the sole property of Hint-ELs, even if they are invoiced to the Customer.
(3) The Customer shall indemnify Hint-ELs against all claims which could be asserted against Hint-ELs or the Hint-ELs’ supplier by virtue of industrial property rights, copyrights, trademarks, etc., at first request and without limitation as to the amount for goods manufactured to the Customer’s requirements, specifications, etc. The same shall apply if the other party uses goods from Hint-ELs without the consent of Hint-ELs so that third-party rights can be infringed.
17. Transferability
(1) Hint-ELs shall be entitled to assign and transfer any rights and claims arising from or pertaining to the business relationship with the Customer to a third party.
(2) The Customer’s rights arising from business transacted with Hint-ELs shall not be transferable. § 354a German Commercial Code (HGB) shall remain unaffected hereby.
18. Written Form
All agreements containing amendments, additions or the specification of these Terms and Conditions, including any waiver of the requirement of the written form, as well as special warranties and agreements must be made in writing to be valid. If such are declared by Hint-ELs agents or persons employed in the performance of this contract, they shall only be binding if Hint-ELs gives its written consent hereto.
19. Confirmation
The Customer knows that Hint-ELs is using the foregoing Terms and Conditions. The Customer has had the opportunity to take note of the contents of such Terms and Conditions in a reasonable way.
20. Product Support
Product support for the Software will be provided by Hint-ELs for a period of 30 (thirty) days as of the receipt of the Software or of the registration code, respectively. The Customer may use the support number given under www.hintel.com in order to receive product support. Insofar as the Customer has questions concerning this contract or if the user wishes to contact Hint-ELs for other reasons, the Customer may use the address indicated in the documentation.
21. License fee
1. Utilization rights for the Hint-ELs software apply exclusively for use with original Hint-ELs materials and tools.
2. Use of materials and/or tools other than original Hint-ELs products voids software usage rights without license fee. This applies from the point in time when other products came into use.
3. For further utilization, the seller is entitled to demand a license fee in the amount of 0.5 % (in words, zero point five percent) of the purchase price for every started calendar month of actual usage beyond the point in time that license protection under Section 2 was voided.
4. Use of materials and tools other than original Hint-ELs materials and tools voids all warranties for the products subject to this sales contract, including the Hint-ELs software.
22. Final Provisions
(1) The laws of the Federal Republic of Germany shall apply to these Terms and Conditions to the exclusion of the UN Sales Convention. With regard to contracts with businesspeople, legal entities under public law or special funds under public law, the place of performance will be Frankfurt am Main; the venue for any and all disputes arising in connection with these Terms and Conditions will be the courts in Frankfurt am Main, which will have jurisdiction over any and all such disputes.
(2) If any provision of these Terms and Conditions is or becomes invalid or unenforceable, this shall not affect the validity of the remaining Terms and Conditions.
