General Terms & Conditions
General Terms and Conditions of Sale, Delivery and Payment ("GTC") of Baumann Dental GmbH / Remchingen–Germany
1 Status: August 2022
2 Baumann Dental GmbH - also referred to in the following as "Baumann Dental”, "Supplier", "Entrepreneur“ -.
(1) The following provisions shall apply exclusively to the business relationships between Baumann Dental GmbH (entrepreneur) and the customer (also entrepreneur). They explicitly shall not apply to legal transactions of Baumann Dental with a consumer according to § 13 BGB [German Civil Code]. They shall also not apply to construction and property development contracts.
(2) The GTCs shall apply in particular to contracts for the sale and/or delivery of movable items ("Goods"), regardless of whether Baumann Dental manufactures the goods itself or purchases them from suppliers (§433, 651 BGB).
(3) Unless otherwise agreed, the GTCs in the version valid at the time of the contractual partner's order shall also apply as a framework agreement for similar future contracts without Baumann Dental having to refer to them again in each individual case.
(4) The GTCs of Baumann Dental shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the contractual partner shall only become part of the contract if and to the extent that Baumann Dental has expressly agreed to their validity. This requirement of consent shall apply in any case, for example also if Baumann Dental performs delivery to the contractual partner without reservation having knowledge of the contractual partner's GTCs.
(5) Individual agreements made with the contractual partner in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GTCs. Subject to proof to the contrary, the content of such agreements shall be governed by a contract in text form or confirmation by Baumann Dental in text form.
(6) Legally relevant declarations and notifications by the contractual partner with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
(7) References to the applicability of statutory provisions shall be for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTCs.
2. Conclusion of contract
(1) Offers from Baumann Dental are subject to change and non-binding. This shall also apply if Baumann Dental has provided the contractual partner with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN/EN standards), other product descriptions or documents - also in electronic form - to which Baumann Dental reserves property rights and copyrights.
(2) Ordering of the goods by the contractual partner shall be deemed to be a binding offer of contract. Unless stated otherwise in the order, Baumann Dental shall be entitled to accept this contractual offer within 14 calendar days after receipt by Baumann Dental.
(3) Acceptance by Baumann Dental may be declared in writing, in text form (e.g. by order confirmation) or by delivery of the goods to the contractual partner.
(4) Conclusion of contract in online trading
a. The presentation or promotion of goods in our online shop does not constitute a binding offer to conclude a purchase contract.
b. In the online shop, the order of the customer is sent to us after pressing the button "Order subject to payment".
c. The order (b.) of the customer constitutes a legally binding offer to Baumann Dental to which the customer shall be bound for 14 calendar days.
d. After receipt of the order by Baumann Dental, we shall immediately confirm receipt of the order to the customer by e-mail. The order confirmation does not constitute acceptance of the contractual offer unless acceptance is simultaneously and expressly declared.
e. The languages German and English are available to the customer for the conclusion of the contract.
f. Before submitting a binding order in the online shop, it is possible to save the text of the contract. Baumann Dental itself does not store the text of the contract concluded with the customer. The contractual provisions are normally sent to the customer at the e-mail address provided in the ordering process. The customer has the option of viewing and downloading the GTCs at https://www.baumann-dental.de/ at any time.
3. Delivery, transfer of risk, acceptance
(1) Delivery is ex works/warehouse, which is also the place of performance for the delivery and any arising subsequent performance. At the request and expense of the contractual partner, the goods can be shipped to another destination (mail order shipment). Unless otherwise agreed, Baumann Dental shall be entitled to determine the method of shipment (specifically, the transport company, shipping route, packaging). If the goods are dispatched on reusable pallets or one-way pallets, these shall be charged to the customer at their customary purchase price.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the contractual partner no later than upon handover. However, in the case of a mail order shipment to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass to the carrier, the freight forwarder or any other person or institution designated to perform shipment upon delivery of the goods. In all other respects, the statutory provisions of the law on contracts for work and services shall apply to an agreed acceptance. Handover or acceptance shall be deemed equivalent if the contractual partner is in default of acceptance.
(3) On a case-by-case basis, the separate Incoterms provisions pursuant to Clause 15 (10) shall apply to Clause 3 (1), (2).
(4) If the contractual partner is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the contractual partner is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). Our legal entitlements (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected.
4. Remuneration, payment, interest, performance protection,
deadlines (delivery period and delay in delivery)
(1) Unless otherwise agreed, remuneration shall be charged on a time and material basis at the supplier's prices generally applicable at the time of conclusion of the contract, ex works or ex warehouse. Remuneration is always at net prices plus the statutory value added tax. In the case of mail order shipment to a place other than the place of performance, the contractual partner shall bear the transport costs ex works or ex warehouse and the costs of any transport insurance requested by the contractual partner. Any customs duties, fees, taxes and other public charges shall be borne by the buyer (see supplementary Clause 15). Baumann Dental may invoice the services rendered to the contractual partner on a monthly basis. If services are remunerated on a time and material basis, Baumann Dental shall document the type and duration of the activities and submit this documentation together with the invoice.
(2) All invoices are to be paid in principle and at the latest 30 calendar days after receipt free of charges and without deduction (in particular cash discount). Baumann Dental shall grant the customer a cash discount exclusively in cases where a cash discount has been expressly agreed at least in text form, and at the latest at the time of the conclusion of the contract. The customer shall not be entitled to a cash discount. The date of credit to the account of Baumann Dental shall be decisive for the timeliness of payment. Within the scope of the business relationship, Baumann Dental shall be entitled at any time to make a delivery in whole or in part only against advance payment or a down payment in an appropriate amount. Baumann Dental shall declare a corresponding reservation with the order confirmation.
(3) Invoices may be sent by post or e-mail at the discretion of Baumann Dental. The customer shall agree to receive invoices by electronic means. Electronic invoices shall be sent to the customer by e-mail in PDF format to the e-mail address provided by the customer for the purpose of receipt. The customer shall be obliged to create the technical conditions to enable him/her to access the invoice as agreed. The customer shall immediately give notice of any change in the e-mail address designated for electronic invoicing. In the event of an incorrect or culpably omitted notification of change of the designated e-mail address, the customer shall reimburse the damage caused by ascertaining the address. The electronic invoice shall be deemed as having been received upon receipt of the e-mail to which the electronic invoice is attached. The customer shall be entitled to revoke consent to the electronic sending of invoices in writing at any time.
(4) Upon expiry of the aforementioned term of payment, the contractual partner shall be in default. During the period of default, the purchase price shall bear interest at the statutory default interest rate applicable at the time. Baumann Dental reserves the right to assert further damages caused by the delay. With respect to merchants, our claim to the commercial due date interest (§ 353 HGB) [German Commercial Code] shall remain unaffected.
(5) The customer may only offset or withhold payments due to defects to the extent that he is actually entitled to payment claims due to material defects or defects in title regarding the performance. With regard to other claims based on defects, the customer may only retain payments to a proportionate extent relating to the defect. Clause 7.2 shall apply accordingly. The customer shall have no right of retention if his claim for defects is time-barred. In all other respects, the customer may only set off or exercise retention against undisputed or legally established claims.
(6) Baumann Dental retains ownership and rights to be granted to the performance (in particular from purchase contracts, work contracts and contracts for work and materials) until full payment of the remuneration owed, whereby justified retentions of defects pursuant to Clause 4.5 Sentence 2 shall be taken into account. Furthermore, Baumann Dental shall retain ownership until all its claims arising from the business relationship with the customer have been fulfilled.
Baumann Dental shall be entitled to prohibit the customer from further use of the performance for the duration of a default in payment. Baumann Dental can only assert this right for a reasonable period of time, as a rule for a maximum of 6 months. This does not constitute a withdrawal from the contract. § 449 (2) BGB shall remain unaffected.
If the customer or its customer returns the performance, the acceptance of the performance shall not constitute a rescission by Baumann Dental, unless Baumann Dental has expressly declared the rescission. The same shall apply to the seizure of the reserved goods or of rights to the reserved goods by Baumann Dental.
The customer may neither pledge nor assign as security items subject to retention of title or the reservation of rights. The customer shall only be permitted to resell the goods in the ordinary course of business as a reseller on the condition that the customer has effectively assigned to Baumann Dental its claims against its customers in connection with the resale and that the customer transfers ownership to its customer subject to payment. By concluding this contract, the customer assigns its future claims in connection with such sales against its customers to Baumann Dental as security, which hereby accepts this assignment.
Insofar as the value of the supplier's security interests exceeds the amount of the secured claims by more than 20%, Baumann Dental shall release a corresponding share of the security interests at the request of the customer.
(7) In the event of a permissible transfer of rights of use to deliveries and services, the customer shall be obliged to impose their contractually agreed restrictions on the recipient.
(8) If the customer does not settle a due claim in full or in part by the contractual payment date, Baumann Dental shall be entitled to revoke agreed payment terms for all claims. Baumann Dental shall be entitled to perform further services only against advance payment or against security in the form of a performance bond issued by a credit institution or credit insurer authorised in the European Union. The advance payment shall cover the respective billing period or - in the case of one-off services - their remuneration.
(9) In case of economic inability of the customer to fulfil its obligations towards Baumann Dental, Baumann Dental may terminate existing exchange contracts with the customer by rescission, continuing obligations by termination without notice, also in the case of the customer filing for insolvency. The customer shall inform Baumann Dental in writing at an early stage of any impending insolvency. § 321 BGB shall remain unaffected. In the case of contracts for the manufacture of specific items (custom-made products), Baumann Dental may declare rescission immediately; the statutory provisions on the dispensability of setting a time limit shall remain unaffected.
(10) The delivery period shall be agreed individually or given by Baumann Dental upon acceptance of the order. Insofar as Baumann Dental is unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the performance), Baumann Dental shall inform the contractual partner of this without delay and at the same time inform the contractual partner of the expected new delivery deadline. If the performance is still not available within the new delivery period, Baumann Dental shall be entitled to withdraw from the contract in whole or in part; Baumann Dental shall immediately reimburse any consideration already paid by the buyer. A case of non-availability of the performance in this sense shall in particular be deemed to be the non-timely delivery by our supplier if Baumann Dental has concluded a congruent covering transaction, if neither Baumann Dental nor our supplier is at fault or Baumann Dental is not obliged to procurement in the individual case.
5. Cooperation, duties to cooperate, confidentiality
(1) The customer and Baumann Dental shall each appoint a responsible contact person. Unless otherwise agreed, communication between the customer and Baumann Dental shall take place via this contact person. The contact persons shall take all decisions relating to performing the contract without delay. The decisions shall be documented in a binding manner.
(2) The customer shall be obliged to support Baumann Dental to the extent necessary and to create all conditions required for the proper execution of the order within its sphere of operation. To this purpose, he shall in particular provide the necessary information and, insofar as technically possible, enable remote access (e.g. TeamViewer) to the customer's system. If remote access is not possible for security reasons or other reasons, the affected deadlines shall be extended appropriately; the contractual partners shall agree on an appropriate arrangement for further effects. The customer shall further ensure that qualified personnel are available to support Baumann Dental.
Insofar as it is agreed in the contract that services can be performed on site at the customer's premises, the customer shall provide Baumann Dental with sufficient workplaces and work equipment free of charge at Baumann Dental's request.
(3) Unless otherwise agreed, the customer shall provide for proper data backup and failure precautions for data and components (such as hardware, software) commensurate with their type and importance.
(4) The customer shall report defects in writing without delay in a plausible and detailed form, stating all information useful for the identification and analysis of the defect (obligation to examine and give notice of defects within the meaning of §§ 377, 381 of the HGB). In particular, the work steps that led to the occurrence of the defect, the manifestation and the effects of the defect shall be stated. (For more details, see Clause 7 (3))
(5) The customer shall provide Baumann Dental with appropriate support upon request in the examination and assertion of claims against other parties involved in connection with the provision of the performance. This applies in particular to recourse claims of Baumann Dental against sub-suppliers.
(6) The contractual partners shall be obliged to maintain secrecy about business secrets and other information designated as being confidential (e.g. in documents, records, data files) which become known in connection with the performance of the contract and neither to use nor disclose these beyond the purpose of the contract without the written consent of the other contractual party.
The respective receiving contractual partner shall be obliged to take appropriate confidentiality measures for business secrets and for information designated as being confidential. The contractual partners shall not be entitled to obtain business secrets of the other contractual party by observing, examining, reengineering or testing the subject matter of the contract. The same shall apply to other information or objects received during performance of the contract.
Business secrets and other information designated as being confidential may only be disclosed to persons who are not involved in the conclusion, implementation or execution of the contract with the written consent of the other contractual partner.
Unless otherwise agreed, the obligation to maintain confidentiality for other information designated as being confidential shall end after the expiry of five years after the respective information has become known, but in the case of continuing obligations not before their termination. Business secrets shall be kept secret for an unlimited period of time. The contractual partners shall also impose these obligations on their employees and any third parties involved.
(7) The contractual partners are aware that electronic and unencrypted communication (e.g. by e-mail) is fraught with security risks. In this type of communication, they will therefore not make any claims based on the absence of encryption, unless encryption has been previously agreed. Nevertheless, the customer's e-mail includes the name and e-mail address of the sender, the time of sending (date and time) and a reproduction of the sender's name as conclusion of the message. An e-mail received within the context of the above provisions shall be deemed to originate from the other partner, subject to proof of the contrary.
6. Disruptions in the provision of performance
(1) If non-compliance with agreed delivery dates and delivery periods is due to force majeure or other unavoidable events for which Baumann Dental is not responsible (operational disruptions, delays in delivery by upstream suppliers, non-performance or poor performance by suppliers, terrorist attacks, war, epidemics and pandemics, floods, earthquakes and other natural events, import and export restrictions, strikes - including those affecting upstream suppliers), the delivery periods and delivery dates provided for the execution of the deliveries plus a reasonable start-up time shall be extended accordingly, under exclusion of warranty claims, claims for the avoidance of errors and claims for damages. Insofar as these circumstances last for an expected period of three months, Baumann Dental shall also be entitled to cancel the contract. This shall also apply if the events occur at a time when Baumann Dental is already in default.
(2) If expenditure increases due to a disruption, Baumann Dental may also demand payment for the additional expenditure, unless the customer is not responsible for the disruption and its cause lies outside his area of responsibility.
(3) If the customer is entitled to withdraw from the contract due to Baumann Dental's improper performance and/or to claim damages in lieu of performance or alleges such, the customer will, upon Baumann Dental's request, declare in writing within a reasonably set period of time whether it asserts these rights or continues to wish provision of the performance. In the event of withdrawal, the customer shall reimburse the supplier for the value of previously existing possibilities of use; the same applies to deterioration due to intended use. If Baumann Dental is in default with the providing the performance, the customer's compensation for damages and expenses due to the default shall be limited to 0.5% of the price for the part of the contractual performance that cannot be used due to the default for each full week of the default. The liability for default is limited to a maximum of 5% of the remuneration for all contractual services affected by the default; in the case of continuing obligations, liability shall be limited to the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed upon conclusion of the contract shall apply. This shall not apply insofar as a delay is due to gross negligence or intent on the part of Baumann Dental.
(4) In the event of a delay in performance, the customer shall only have a right of withdrawal within the context of the statutory provisions if Baumann Dental is responsible for the delay. If the customer justifiably claims damages or reimbursement of expenses instead of performance due to the delay, he shall be entitled to demand 1% of the price for the part of the contractual performance that cannot be used due to the delay for each full week of the delay, but not more than a total of 10% of this price; in the case of continuing obligations, in relation to the remuneration for the respective affected services for the full calendar year. In addition and with priority, a percentage of the remuneration agreed upon conclusion of the contract shall apply.
7. Defects and reimbursement of expenses
(1) The statutory provisions shall apply to the rights of the contractual partner in the event of material defects and defects of title (including incorrect and short delivery), unless otherwise stipulated in the following. In all cases, the special statutory provisions for supplier's recourse shall remain unaffected.
(2) Baumann Dental shall warrant the contractually owed quality of the performance. All product descriptions which are the subject of the individual contract and which have been made public shall be deemed to be an agreement on the quality of the goods. Insofar as the condition has not been agreed, the statutory regulation shall be used to assess whether a defect exists or not. However, Baumann Dental accepts no liability for public statements made by the manufacturer or other third parties (e.g. promotional statements).
(3) The customer is aware that there may be deviations in the manufacture of products, for example for technical, mechanical or other factual reasons. The customer shall not have any claims for defects for insignificant deviations in the performance of Baumann Dental from the contractual quality ("tolerance").
(4) The customer is also informed that defect-free products, e.g. any products using of a 3D printer at the customer's site, can only be achieved if the customer uses an end device (for example a 3D printer) compatible with state-of-the-art technology and the performance of Baumann Dental at the time of production. The customer shall ensure that the end devices used by him (for example a 3D printer) are properly maintained and properly calibrated and adjusted to the services of Baumann Dental. Deviations resulting in particular from incorrectly calibrated or adjusted terminal equipment shall not be the responsibility of Baumann Dental. Maintenance and/or calibration services on a customer's terminal equipment are only a subject matter of the contract if they have been expressly so agreed. In this regard, the customer's attention is additionally drawn to the provision of Clause 1 (3), Sentence 2 of the Special Terms and Conditions of Baumann Dental GmbH for the provision of software.
(5) The customer shall report defects in writing without delay in a plausible and detailed form to Baumann Dental, stating all information useful for the identification and analysis of the defect (obligation to examine and give notice of defects (cf. §§ 377, 381 of the HGB)). In particular, the work steps that led to the occurrence of the defect, the manifestation and the effects of the defect shall be stated. If a defect becomes apparent upon delivery, inspection or at any later time, Baumann Dental must be notified thereof in writing without delay. In any case, obvious defects shall be notified in writing within three (3) working days from delivery at the latest and defects which were not recognisable upon inspection within the same period after discovery. If the contractual partner fails to duly inspect and/or notify defects, Baumann Dental's liability for the defect not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions.
(6) Claims due to defects also shall not exist in the event of excessive or improper use, natural wear and tear, failure of components of the system environment. The same shall apply in the event of software errors that cannot be reproduced or otherwise proven by the customer. This shall also apply to damage due to special external influences which are not assumed under the contract. Claims due to defects shall also not exist in the event of subsequent modification or repair by the customer or third parties.
(7) If the delivered item is defective, Baumann Dental shall initially be entitled to choose whether we provide subsequent performance by remedying the defect (rectification) or by delivering an item free of defects (replacement). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(8) Baumann Dental shall be entitled to make the subsequent performance owed dependent on the contractual partner paying the due purchase price. However, the contractual partner shall be entitled to withhold an appropriate part of the purchase price in relation to the defect.
(9) The contractual partner shall give Baumann Dental the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the buyer shall return the defective item to us in accordance with the statutory provisions.
(10) If the supplementary performance has failed or a reasonable deadline to be set by the contractual partner for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the contractual partner may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal. Clause 9 shall apply in addition to claims for damages and reimbursement of expenses.
(11) The period of limitation for material defect claims is one year from the statutory commencement of the limitation period. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. The statutory periods for recourse according to § 478 BGB shall remain unaffected. The same shall apply insofar as longer periods are prescribed by law pursuant to § 438 (1) No. 2, § 634a (1) No. 2, § 444, 479 BGB, in the event of a deliberate or grossly negligent breach of duty on the part of the supplier, in the event of fraudulent concealment of a defect as well as in cases of injury to life, limb or health as well as claims under the Product Liability Act. The processing of a customer's material defect notification by Baumann Dental shall only lead to the suspension of the statute of limitations insofar as the legal requirements for this are met. This shall not result in a new start of the limitation period. Subsequent performance (new delivery or rectification) can only affect the limitation period of the defect which triggers the subsequent performance.
(12) Claims under a right of recourse in the case of contracts for digital products pursuant to § 327u BGB shall remain unaffected by Clauses 7.2 and 7.9. If a buyer asserts a possible claim against the customer which may lead to a recourse claim, the customer shall immediately inform Baumann Dental about the asserted claim and the further information necessary as well as useful for its assessment. The customer shall provide Baumann Dental with the opportunity to satisfy the claim asserted by the customer's buyer, unless this is unreasonable for the customer. The customer and Baumann Dental shall coordinate and cooperate with the aim of satisfying a justified claim of the customer's buyer as economically and cost-effectively as possible.
(13) If the customer, with the necessary consent of Baumann Dental, takes actions to remedy defects by itself, which Baumann Dental would have been obliged to do according to the above provisions, the customer shall not be deemed to be a vicarious agent of Baumann Dental in this respect. Baumann Dental shall only be liable for the consequences of self-performance insofar as the customer has acted in accordance with Baumann Dental's instructions. Baumann Dental shall reimburse the customer for the costs of self-performance up to the amount of the expenses that Baumann Dental would have had to bear if the customer had not exercised self-performance. Baumann Dental will not reimburse any further expenses.
(14) The supplier may demand remuneration for his expenses insofar as
a. he acts in response to a report without there actually being a defect, unless the customer could not with reasonable effort have discovered that there was no defect, or
b. that a reported fault is not reproducible or otherwise proven by the customer as a defect, or
c. that additional expenses are incurred due to the customer's failure to properly meet his obligations (see also Clauses 5.2, 5.3, 5.4, and 8.2).
(15) Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of performance owed by us, this shall be performed free of charge and to the exclusion of any liability.
(16) In the case of the purchase of used goods, liability for defects is excluded, unless otherwise agreed.
8. Defects of title
(1) Baumann Dental shall only be liable for infringements of third party rights through its performance insofar as the performance is used in accordance with the contract and in particular in the contractually agreed or intended environment of use without modification.
The supplier shall only be liable for infringements of third party rights within the European Union and the European Economic Area as well as at the place of contractual use of the performance, Clause 7.2 Sentence 1 shall apply accordingly.
(2) If a third party asserts against the customer that a service of the supplier infringes its rights, the customer shall immediately notify Baumann Dental. Baumann Dental and, if applicable, its sub-suppliers shall be entitled, but not obliged, to defend the asserted claims at their own expense to the extent permissible. The customer shall not be entitled to acknowledge claims of third parties before he has given Baumann Dental reasonable opportunity to counter the rights of third parties by other means.
(3) If the rights of third parties are infringed by a performance of Baumann Dental, Baumann Dental will, at its own discretion and at its own cost
a. procure the right for the customer to use the performance or
b. make the performance free of infringement or
c. take back the performance with reimbursement of the remuneration paid for same by the customer (less reasonable compensation for use) if Baumann Dental cannot achieve any other remedy at reasonable effort. The interests of the customer shall hereby be given appropriate consideration.
(4) Claims by the customer due to defects of title shall become statute-barred in accordance with Clause 7.9. Clause 9 shall apply in addition to claims for damages and reimbursement of expenses by the customer; Clause 7.10 shall apply accordingly to additional expenses incurred by the supplier.
9. General liability of the supplier
(1) Baumann Dental shall always be liable to the customer
a. for damage caused by him or his legal representatives or vicarious agents intentionally or through gross negligence,
b. according to the Product Liability Act and
c. for damages arising from injury to life, limb or health for which the supplier, its legal representatives or vicarious agents are responsible.
(2) Baumann Dental shall not be liable in the event of slight negligence, except insofar as it has breached a major contractual obligation, the fulfilment of which is a prerequisite for the proper performance of the contract or the breach of which jeopardises achieving the purpose of the contract and on the compliance of which the customer may regularly rely. In the case of property damage and financial loss, this liability shall be limited to the foreseeable and typical damage for this type of contract. This shall also apply to lost profits and foregone savings. Liability for other remote consequential damages shall be excluded. For a single case of damage, liability shall be limited to the contract value. Clause 7.9 shall apply accordingly to the period of limitation. The contractual partners may agree in writing on further liability at the conclusion of the contract and at the expense of the customer. Priority shall be given to an individually agreed liability sum. Liability according to Clause 9.1 shall remain unaffected by this paragraph. In addition and and with priority, the liability of the supplier due to slight negligence arising from the respective contract and his implementation for damages and reimbursement of expenses, irrespective of the legal grounds, is limited in total to the percentage of the remuneration agreed in this contract at the time of conclusion of the contract. Liability according to Clause 9.1 b shall remain unaffected by this paragraph.
(3) The supplier shall only be liable for damages arising from an independent guarantee declaration if this was expressly assumed in the guarantee. In the event of slight negligence, this liability shall be subject to the limitations set out in Clause 9.2.
(4) In case of necessary restoration of data or components (such as hardware, software), Baumann Dental shall only be liable for the expenditure required for restoration to the extent of proper data backup and failure precaution by the customer. In the case of slight negligence on the part of Baumann Dental, this liability shall only apply if the customer has carried out data backup and failure precaution appropriate to the type of data and components prior to the incident. This shall not apply insofar as this is agreed as a performance by Baumann Dental.
(5) Clauses 9.1 to 9.4 shall apply accordingly to claims for reimbursement of expenses and other liability claims of the customer against Baumann Dental. Clauses 6.3 and 6.4 shall remain unaffected.
10. Extension of the limitation period
Our contractual partner as an entrepreneur for his part undertakes to waive the defence of limitation for a further six months after the expiry of the respective warranty period in the case where a component is supplied, in order to grant us the possibility of recourse.
The assignment of claims to which the contractual partner is entitled against Baumann Dental from the business relationship shall be excluded.
(1) Drafts, samples, models, tools and similar are the intellectual property of Baumann Dental and may neither be imitated nor used in any other way for replication by the customer, even if no particular protective rights exist in this regard, nor are they to be given to third parties for free or for a fee, or used in any other manner than that stated as part of the agreement.
(2) The customer is liable in the event of ordering according to the customer’s requirements (including drawing, samples). In this case, trademark rights are not infringed upon.
(3) Copyright notices
The customer shall grant Baumann Dental the right to incorporate the logo of Baumann Dental and an imprint into the customer's websites and to link these with each other and the website of Baumann Dental. The customer shall adopt all protective notices such as copyright notices and other reservations of rights unchanged. This shall also apply in particular for references to the author made in the programme code.
Baumann Dental reserves the right to use performances rendered such as designs and objects, even if they are based on customer drafts, for presentation purposes, in particular to include the customer's website in a reference list for promotional purposes and to set corresponding links.
14. Data protection
(1) In the context of initiating and concluding the contract, Baumann Dental stores the necessary personal data of the customer. Baumann Dental processes these personal data, among other things, on the basis of a legitimate interest, namely to ensure the traceability of the business relationship and to support communication in the handling of the contractual relationship.
(2) For the initiation and processing of contracts as well as for subsequent services, Baumann Dental transmits employee contact data to the customer to enable orderly communication and performance processing. The customer may only use these data for conducting the respective contractual relationship with Baumann Dental.
(3) Connecting a network to the Internet creates the possibility of data misuse. The customer shall therefore protect sensitive data in particular from unauthorised access through own security measures.
(4) Both contractual partners will treat confidentially marked information that becomes known to them within the context of the contract. Software-related documents such as documentation and in particular the source code must be protected from unauthorised access.
(5) We wish to point out that, according to current state-of-the-art technology, it is not possible to prevent the copying of works, in particular of graphics or other visual or acoustic means of design, which are placed online.
15. International business, Incoterms 2020
(1) In particular, Baumann Dental reserves the right to make deliveries outside the Federal Republic of Germany exclusively against advance payment.
(2) Each contractual partner shall be entitled to refuse performance of the contract insofar as this is impaired or prohibited by foreign trade regulations (in particular national and international [re-]export control and customs regulations, including embargoes and other state sanctions) which - in accordance with these regulations - are applicable to this contract (hereinafter "foreign trade regulations"). In these cases, each contractual partner shall be entitled to terminate this contract to the extent required.
(3) If fulfilment of the contract is delayed due to approval, authorisation or similar requirements or due to other procedures in accordance with foreign trade regulations (hereinafter collectively referred to collectively as "approval"), agreed delivery periods and delivery dates shall be extended/postponed accordingly; liability of the contractual partners in connection with the delay shall be excluded. Should approval be refused or not be granted within 12 months of application, we shall be entitled to withdraw from the contract, at least insofar as fulfilment of the contract requires approval.
(4) The contractual partners shall inform each other immediately after becoming aware of any foreign trade regulations which may lead to the restrictions, prohibitions or delays referred to in Clauses 15 (2) and 15 (3).
(5) The contractual partner shall be obliged to provide Baumann Dental upon request with all information and documents required for compliance with foreign trade regulations or which are requested by authorities in this respect. These duties may include, in particular, information on the final customer, the destination and the intended use of the deliveries. Baumann Dental shall be entitled to withdraw from the contract or to refuse performance if the contractual partner does not provide Baumann Dental with such information and documents within a reasonable period of time.
(6) Any liability of Baumann Dental for damages in connection with or due to the refusal to fulfil the contract or due to termination of this contract by Baumann Dental is - as far as is legally permissible - excluded.
(7) Should import and/or export licences, foreign exchange permits or similar permits be required for the performance of the contract, the contractual partner responsible for obtaining them shall be obliged to make all reasonable efforts to provide the necessary licences or permits in good time.
(8) In the event of export of the purchased goods, the contractual partner shall be obliged to arrange for the necessary export and customs permits and equivalents at his own expense and to hand the originals over to Baumann Dental. Baumann Dental shall not be liable for the admissibility of the export of the goods and their compliance with the legal and technical regulations of the importing country, and also not for their compliance with the technical status in the importing country. The contractual partner shall indemnify and hold Baumann Dental harmless against any shipping and customs costs incurred.
(9) Any customs duties, fees and/or other charges shall be borne by the contractual partner of Baumann Dental.
(10) Unless otherwise agreed, Baumann Dental's shipping deliveries shall be made in accordance with Incoterms 2020 EXW - EX Works.
(11) Baumann Dental reserves the right in individual cases to include other Incoterms 2020 clauses in the contractual relationship as an alternative or supplement, in particular "CPT - Carriage Paid to" and "FCA - Free Carrier".
(12) Identification of the alternative or supplementary Incoterms 2020 clause included in the contractual relationship is generally communicated to the customer on the order confirmation, or at least in text form. Within the context of an ongoing business relationship, Baumann Dental shall be entitled to delete or amend individual Incoterms 2020 clauses. Baumann Dental shall inform the business partner in this respect.
(13) Insofar as it is agreed that Baumann Dental shall insure the transport, this shall only cover the transport from the manufacturer's works to the boundary of the customer's premises.
16. Applicable law
(1) German Law applies. Applying the UN Convention on Contracts for the International Sale of Goods (CISG) and German private international law is excluded.
(2) Insofar as trade clauses in accordance with the International Commercial Terms (Incoterms) have been agreed, the Incoterms as amended in 2020 shall apply.
17. Place of jurisdiction
If the contractual partner is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in PLACE. However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTCs or a priority individual agreement or at the general place of jurisdiction of the buyer. Overriding statutory provisions, in particular on exclusive competences, shall remain unaffected. Our place of jurisdiction is Pforzheim Germany.
18. Written form
Changes and amendments to this contract shall only be agreed in writing. Insofar as written form is agreed (e.g. for notices of termination, withdrawal), text form is not sufficient.
19. Special Terms and Conditions for the provision of software
Certain services and deliveries are provided with software. In this regard, the special provisions of the "Special Terms and Conditions of Baumann Dental GmbH for the Provision of Software" shall apply in addition to the General Terms and Conditions of Sale, Delivery and Payment ("GTC") of Baumann Dental GmbH.
20. Severability clause
The contract shall remain binding in its remaining parts even if individual points are legally invalid. The ineffective provisions, if any, shall be replaced by the statutory provisions. However, insofar as this might constitute an unreasonable hardship for one of the contractual partners, the contract as a whole shall become invalid.
Special Terms & Conditions of Baumann Dental GmbH for the provision of software
The special provisions of the "Special Terms and Conditions of Baumann Dental GmbH for the Provision of Software" shall apply supplementary to the General Terms and Conditions of Sale, Delivery and Payment ("GTC") of Baumann Dental GmbH for software-related supplies and services by Baumann Dental GmbH.
1. Subject matter of the contract
(1) The quality and performance scope of the software, including functionality and compatibility, as well as the approved operating environment result from the respective program description, as well as from the operating instructions, unless otherwise agreed. The security of the software shall be governed by the rules of technology tested on the market at the time of the transfer of risk, unless otherwise agreed or prescribed by law. Public statements can only be decisive for the owed quality insofar as they concern specific properties of the specifically agreed software.
(2) The software is only supplied in executable form including an operating manual (user documentation or online help) and the installation instructions. The operating manual and the installation instructions can also be provided to the customer electronically. Further instructions shall only be supplied if this has been specifically agreed, for example in a parts list. Prior to any permissible decompilation, the customer shall first request the necessary information from Baumann Dental. Insofar as interfaces exist in the Baumann Dental software to software not to be supplied by Baumann Dental, § 69d of the German Copyright Act shall apply.
(3) Unless otherwise agreed, the software shall be installed and put into operation by the customer. All further services provided by Baumann Dental at the request of the customer (in particular preparation for use, installation and demonstration of successful installation, instruction, training and advice) will be remunerated on a time and material basis.
(4) The customer's attention is expressly drawn to the technical and actual functional interrelationships of the software and end device (such as, for example, a 3D printer) pursuant to Clauses 7 (3), (4) of the General Terms and Conditions of Sale, Delivery and Payment of Baumann Dental GmbH.
2. Rights of use to software and protection against unauthorised use
(1) Upon full payment of the agreed remuneration, Baumann Dental grants the customer the right to use the agreed software to the extent stipulated in the contract. If the scope is not agreed in the contract, this is a simple, non-exclusive right of use for permanent usage. This only entitles the customer to use the software on one computer by a single user at the same time. The right of use only covers the use for internal purposes of the customer. Extended use must always be contractually agreed before doing so. Remuneration shall be based on the extent of the right of use.
(2) A transfer of the rights of use to third parties is only permissible with complete relinquishment of the customer's rights. The customer shall be obliged to impose the obligations and restrictions of use that apply to him on the third party. This applies in particular to the duties under Clause 3.5. The customer shall confirm the cessation of his own use in writing at the request of the supplier.
(3) The customer may only copy software insofar as this is necessary for use in accordance with the contract. Copyright notices in the software may not be altered or deleted.
(4) Baumann Dental shall be entitled to take appropriate technical measures to protect against non-contractual use. Application of the software on a fallback or successor configuration must not be significantly impaired by this.
(5) Ownership of provided reproductions shall be reserved until full payment of the remuneration owed. Insofar as individual rights of use have been granted beforehand.
(6) The supplier may revoke the customer's right of use to a quite considerable extent if the customer violates restrictions on use or other regulations to protect against unauthorised use (see also Clauses 3.4 and 3.5). The supplier shall set the customer a grace period for remedy beforehand. In the event of repetition and in the event of special circumstances which, after weighing up the interests of both parties, justify immediate revocation, the supplier may issue revocation without setting a deadline. The customer shall confirm discontinuation of use to the supplier in writing after revocation. The supplier shall restore the right of use to the customer after the customer has stated and assured in writing that there are no longer any violations of the right of use and that previous violations and their consequences have been remedied.
3. Duties of the customer
(1) The customer shall ensure that qualified personnel are available to support Baumann Dental and the use of the software no later than at the time of delivery.
(2) The customer shall inform Baumann Dental immediately of any changes in the operating environment. Clause 1.1 shall remain unaffected.
(3) The customer shall support Baumann Dental as far as necessary in the elimination of defects, in particular, upon Baumann Dental's request, send a data carrier with the relevant software and provide working materials.
(4) The customer shall acknowledge that the software, together with the operating instructions and other documents - also in future versions - are protected by copyright. Furthermore, these may be trade secrets in whole or in part. Source programs in particular are trade secrets of Baumann Dental, unless they are freely available or otherwise stipulated in individual contracts. The customer shall take unlimited precautions to ensure that source programs are not made accessible to third parties without the supplier's consent. In addition, the provisions under Clause 5.6 of the GTCs shall apply.
The transfer of source programs requires the consent of the supplier, which may not be refused contrary to good faith. Baumann Dental shall only deliver source programs based on an express agreement.
(5) The customer shall not undertake any actions that could encourage unauthorised use. Specifically, he may not attempt to decompile the programs unless he is legally entitled to do so. The customer shall inform Baumann Dental without delay if he has knowledge that unauthorised access is imminent or has occurred in his area.
4. Defect claims of the customer
(1) Baumann Dental shall warrant that the software complies with the agreements pursuant to Clause 1.1 when used in accordance with the contract. The limitation period for claims due to defects begins with the delivery or - if Baumann Dental carries out the installation - with completion of the installation. An extension of the scope of use (Clause 2.1 (2)) has no influence on the course of the limitation period. Clause 8 of the GTCs shall apply additionally to defects of title.
Clause 7 of the GTCs shall apply additionally to material defects in accordance with the following provisions in Clauses 4.2 - 4.4. § 475a BGB shall remain unaffected.
(2) The customer shall only have claims for defects if reported defects are reproducible or otherwise proven by the customer. Clause 5.4 of the GTCs shall apply in particular to the notification of defects.
(3) If the customer is entitled to claims for defects, he shall initially only have the right to subsequent performance within a reasonable period. Subsequent performance shall include, at the supplier's option, either rectification of defects or the delivery of replacement software. The interests of the customer shall be given appropriate consideration when choosing the option. The customer shall allow Baumann Dental reasonable access to the software for the purpose of subsequent performance. The customer shall enable the supplier to install and remove the goods within the scope of subsequent performance, unless this is unreasonable for the customer. The customer shall consult Baumann Dental before taking own actions to remedy the defect. If the customer has a claim for reimbursement of expenses, this shall only exist to a reasonable extent, taking into account the value of the performance concerned in a defect-free condition and the significance of the defect.
(4) If subsequent performance fails or cannot be carried out for other reasons, the customer may reduce remuneration, withdraw from the contract and/or - within the scope of Clause 9 of the GTCs - claim damages or reimbursement of expenses under the statutory conditions.
If subsequent performance is delayed, Clause 6.4 of the GTCs shall apply to damages and reimbursement of expenses by Baumann Dental.
The customer shall exercise a right of choice to which he is entitled with regard to these defect claims within a reasonable period of time, as a rule within 14 calendar days from the possibility of the customer becoming aware of the right of choice.