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General Terms & Conditions

mbits imaging GmbH

Table of Contents

GTC - Version 07/2024

§ 1 Subject, Scope

  1. These GTC apply to all contracts between the Provider and its Customers (hereinafter also referred to as "Customer"; jointly or individually also referred to as "Contracting Parties" or "Parties") for the provision of software for a fee. This particularly includes contracts where the software is made available for a specified period against a one-time payment.

  2. The business relationship between the above-mentioned Provider and the Customers is governed exclusively by these GTC in their version valid at the time of the order. These GTC also apply to subsequent transactions without needing to be expressly mentioned or agreed upon when concluded. The Provider expressly rejects any counter-confirmations, counter-offers, or other references by a Customer to their terms and conditions. These GTC also apply if the Provider performs the order without reservation, knowing of contrary or differing conditions of the Customer. Deviations from these GTC are only valid for a particular contract and not for future contracts unless expressly agreed otherwise.

  3. These GTC do not apply to consumers.

  4. References to the applicability of statutory provisions are for clarification purposes only. Therefore, the statutory provisions apply even without such clarification, as long as they are not directly modified or explicitly excluded in these GTC.

  5. "Written form" or "in writing" within the meaning of these GTC includes the text form.

§ 2 Conclusion of Contract, Software Delivery

  1. The contract is concluded in text form. The Provider's offers are non-binding. Customer orders are binding for 7 working days and can be accepted within this period.

  2. The Provider may deliver the software either on a data carrier or make it available for download on its homepage, an app store, or another agreed medium. The Customer will be provided with the access information required for using the software (in particular, license keys or login data).

§ 3 Installation, Cooperation, Consequences of Failure to Cooperate

  1. Unless otherwise agreed, the Provider is not obliged to install the software on the Customer's systems; the Customer is solely responsible for this. However, if the Provider's cooperation is necessary, the Provider will support the Customer accordingly.

    1. The Customer shall timely provide the Provider with all information, materials, devices, documents, processes, etc., necessary for executing the order, free of charge, orderly, current, clear, and complete, and make these available to the Provider at the Customer's expense if required.

    2. If the Provider works on the Customer's premises, the Customer shall grant the Provider's employees or appointed third parties free access to all premises, installations (hardware, software, networks, etc.), facilities, and other work resources necessary for the proper performance of services during normal business hours and within the operational access regulations. If needed, the Customer shall also provide the Provider's employees or appointed third parties with free functional workspaces.

    3. The Customer shall cooperate as required in executing the order.

    4. If the Customer fails to fulfil their cooperation duties, fails to do so timely or completely, and this leads to delays and/or additional expenses, the agreed timeframe is extended by a factor of 1.5, and the agreed fee is adjusted accordingly. The Provider reserves the right to claim further damages.

§ 4 Maintenance

  1. The Provider is obliged to maintain the contractually agreed condition of the software during the contract term ("Maintenance"). The contractually owed condition of the software is determined according to the respective software description and the agreements made. To fulfil their maintenance obligation, the Provider will perform the necessary maintenance and repair measures according to the state of the art.

  2. The Provider is only obliged to change or adapt the software if such change or adaptation is necessary for the maintenance of the software according to the state of the art. The Provider is only obliged to change, adapt, and further develop the software if the parties separately agree. Without such a separate agreement, the Provider is in particular not obliged to further develop the software.

§ 5 Grant of Rights & Number of Licenses, Examination

  1. Upon full payment of the fee and all due payment claims, the Provider grants the Customer the non-exclusive, non-transferable, and non-sublicensable right, limited to the contract term and geographically to the Federal Republic of Germany or the agreed country and the agreed number of licenses and locations, to use the software to the agreed extent. Contractual use of the software includes downloading, installing, loading into memory, displaying, and executing the provided software.

  2. The Customer is entitled to reproduce or download the delivered software multiple times if required for contractual use. The loading of the software into memory in particular is considered a necessary reproduction for contractual use. The Customer may make one backup copy ("backup copy") and mark it as such, provided that the software cannot be downloaded again, and this fulfils the backup purpose.

  3. The Customer is not entitled to further reproduce the software beyond what is necessary for contractual use, unless legally permitted otherwise.

  4. The Customer is not entitled to sell the software, including the backup copy, and documentation, or to otherwise transfer it to third parties (especially through renting or lending). An exception to the prohibition on resale and transfer to third parties is the transfer of the software to third parties who are not granted independent usage rights and are subject to the Customer's instructions regarding the use of the software.

  5. The Customer is not entitled to modify or edit the software unless the modification or editing is necessary to correct a defect for contractual use, with which the Provider is in default. This applies for the duration of the default.

  6. The Customer acquires the same rights to modified, extended, or newly created software as to the agreed standard software and the corresponding functionality. The Provider may charge a reasonable fee for extensions, to be agreed separately, or limit or exclude the use of extensions. The GTC sections on amendments apply accordingly. If changes replace the new software, the rights to the previous software expire when the new items are usable.

  7. Regarding the specific functionality for the appropriate use of personal licenses for the medical department license, the agreed conditions apply. Unless otherwise agreed, the following applies:

    1. Hospitals with fewer than 500 beds receive 20 personal licenses for a medical department.
    2. Hospitals with 500 to 850 beds receive 30 personal licenses for a medical department.
    3. Hospitals with more than 850 beds receive 60 personal licenses for a medical department.

      A medical department is a specialised unit within a hospital or medical facility focusing on treating specific diseases or conditions (e.g., urology, surgery). These departments are usually organised by specialty and managed and supervised by medical directors or physicians with the relevant expertise.

  8. The Customer shall immediately notify the Provider in text form if contract-relevant changes, especially those according to § 5 (7), occur, are likely to occur, or have already occurred. All circumstances necessary to determine adjusted prices, including the timing of changes, must be disclosed. The newly calculated price will then be communicated to the Customer. Price increases take effect no later than the beginning of such restructuring or changes and may be invoiced retroactively. Price adjustments downward are possible each subsequent calendar month with two weeks' notice before the respective month.

  9. To ensure proper use of the software and maintain a high-quality experience for all Customers, the Provider reserves the right to occasionally review the use of the software. If it is found that the conditions are not being met, the Provider may take corrective measures. This may include temporarily blocking access to the software if no agreement can be reached.

§ 6 Remuneration, Due Date

  1. The amount of the remuneration is determined by the respective agreement. Prices are generally subject to the applicable VAT.

  2. Payments are due in advance upon the provision of the software. If the Customer breaches the duty to cooperate in setting up the software and this results in a delay in the setup of the software, payment is due one month after the order is placed, but no earlier than the agreed date for the provision of the software. The aforementioned one-month period is extended if the delayed setup of the software is caused by the provider.

  3. Unless otherwise agreed, an annual payment interval applies for the provision of software. If a monthly payment interval is agreed, the rent is due on the first of each month. If the software is provided for a period shorter than a full calendar month, the remuneration is reduced proportionately.

  4. Unpaid fees are to be remunerated according to the statutory interest rate. Further claims remain unaffected.

  5. The Customer is not entitled to offset claims against the provider unless the Customer’s counterclaims have been legally established or are undisputed. The Customer is also entitled to offset claims against the provider if defects or counterclaims arising from the same contract are asserted.

§ 7 Duty of Care

  1. The Customer is obligated to take suitable measures to ensure that unauthorised third parties do not gain access to the software, backup copies, documentation, and other accompanying materials.

  2. The Customer is particularly obliged to store the original data carrier, all existing copies of the software including the backup copy, and all associated documentation in a location protected from unauthorised access by third parties. The Customer bears the costs of storage.

§ 8 Warranty

  1. If the Customer identifies defects in the software or documentation, they must notify the provider in writing without delay.

  2. The provider is obliged to remedy the reported defects in the software and documentation within a reasonable period. As part of defect rectification, the provider has the right to choose between rectification and replacement.

  3. The Customer must enable the provider to access the software and documentation as required for the purpose of defect rectification.

  4. The Customer is not entitled to claim a reduction by deducting the reduction amount from the ongoing remuneration independently. The Customer’s right to reclaim the overpaid part of the remuneration due to a justified reduction remains unaffected.

  5. In the event of repeated failure to rectify the defect as owed, the Customer is entitled to a reduction in particular, unless the defects are insignificant.

  6. The Customer must inform the provider in writing without delay if third parties assert protection rights (e.g., copyright or patent rights) to the software. The provider supports the Customer in their defence against third-party claims through advice and information.

§ 9 Liability; Indemnification

  1. The provider is liable without limitation:

    • for fraud, intent, or gross negligence;

    • under an expressly assumed guarantee;

    • for damages arising from injury to life, body, or health;

    • for the violation of a material contractual obligation, the fulfilment of which enables the proper execution of this contract in the first place and on the compliance with which the Customer regularly relies and may rely ("cardinal obligation"), but limited to the damage that was reasonably foreseeable at the time of conclusion of the contract;

    • according to the provisions of the Product Liability Act.

  2. Otherwise, the provider’s liability is excluded. In particular, the provider is not liable for defects already present at the time of the conclusion of the contract, unless a case under § 9 paragraph 1 applies.

  3. The above liability rules apply accordingly to the behaviour of and claims against the provider's employees, legal representatives, and vicarious agents.

  4. It is explicitly noted that the aforementioned liability limitations do not entail a reversal of the burden of proof.

§ 10 Contract Duration, Termination

  1. Rights to the software are granted for a limited period unless expressly agreed otherwise. The contractual relationship comes into effect upon conclusion of the contract. Unless otherwise agreed, it has a fixed term of 2 years. Thereafter, the contract term is automatically extended by another 12 months, unless terminated by either party with six months' notice at the end of the respective contract term.

  2. The right of both parties to terminate the contract at any time for a good cause without notice remains unaffected. A good cause is deemed to exist in particular if the provider or Customer intentionally or negligently violates a material obligation under the contract, making it unreasonable for the terminating party to continue the contract. The provider is particularly entitled to extraordinary and immediate termination of the contract if the Customer violates the provisions of § 5 of this contract and does not cease their violation within a reasonable period after being warned by the provider to stop the violation.

  3. The termination of this contract must be in writing.

§ 11 Return and Deletion

  1. Upon termination of the respective contractual relationship, the Customer is obliged to immediately cease using the software and return the software and all program copies (including the backup copy), as well as all provided documentation, materials, and other documents to the provider. The return is at the Customer's expense.

  2. If the provider has made the software available to the Customer via download, the provider may waive the return and instead require the Customer to delete the software and other program copies and destroy the provided documentation, materials, and other documents.

  3. Additionally, the Customer is obliged to completely and permanently delete all installed program copies and any stored documentation from all their servers.

  4. Any use of the software after the termination of the respective contractual relationship is prohibited.

§ 12 Confidentiality

  1. The parties agree to treat all confidential information that becomes known to them during the execution of the contract as confidential and to use it only for contractual purposes. Confidential information within the meaning of this provision includes information, documents, data, and facts that are designated as such or are to be considered confidential by their nature. Prices and offers must always be treated confidentially. Both parties are obliged to have their employees sign a corresponding confidentiality agreement at the request of the other party and to present it to the other party. The parties will not file protective rights applications for the confidential information of the other party.

  2. If a public authority requests confidential information in the aforementioned sense, the party concerned must inform the other party without delay and before disclosing the information to the public authority, as far as legally permissible.

  3. The rights and obligations under (1) and (2) remain unaffected by the termination of this contract. Both parties are obliged to return or destroy confidential information of the other party at the end of this contract, as chosen by the other party, unless properly consumed. 

§ 13 Data Protection

  1. The parties comply with data protection regulations.

  2. The parties will conclude a data processing agreement (Art. 28 (3) GDPR) if required.

§ 14 Downtime

Unless caused by the Customer, the provider undertakes to ensure an average availability of the software servers of 95 percent annually, within its operational and technical capabilities, if these are operated by the provider or by third parties commissioned by the provider. To carry out updates, technical inspections, and maintenance work, the provider is entitled to shut down the software servers. The Customer agrees to all necessary or useful shutdowns for technical reasons, even if they are short-term and unannounced. In return, the provider will, where feasible and reasonable, perform such shutdowns during times when data retrievals are typically low.

§ 15 Final Provisions, Adjustments to GTC and Prices, Reference Customer

  1. Should any provision of these GTC or any provision later included be wholly or partially void or unenforceable, or should a gap in these GTC become apparent, the validity of the remaining provisions shall not be affected. The express intent of the contracting parties is to maintain the validity of the remaining provisions in all circumstances, thus excluding § 139 BGB entirely. In place of the invalid or unenforceable provision or to fill the gap, the legally and economically closest effective and enforceable regulation shall apply retroactively, which the parties would have agreed upon considering the purpose and intent of the contract. If the invalidity of a provision is based on a specific measure of performance or time (deadline or date), the provision shall be deemed agreed with the nearest legally permissible measure. If the substitution fiction is not possible, a provision or regulation must be made in the substantive sense of the preceding sentence. If the invalidity or gap concerns a notarisation requirement, the provision or regulation must be agreed upon in notarial form.

  2. Changes and additions to this contract, including this paragraph, must be in writing, unless otherwise specified.

  3. The parties may transfer this contract and rights and obligations under this contract to a third party only with the prior written consent of the other party.

  4. No oral or written side agreements to this contract exist. The applicability of the General Terms and Conditions of both the Customer and the provider is expressly excluded.

  5. The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is the seat of the provider. The provider remains entitled to sue at the general place of jurisdiction of the Customer.

  6. The parties agree to apply the law of the Federal Republic of Germany to all legal relationships arising from the contract, excluding its conflict of law provisions and the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (CISG).

  7. The provider reserves the right to change these GTC. In the event of a change, the Customer has the right to extraordinary termination, effective on the day of the GTC change. The Customer will be informed of this at least 6 weeks before the change takes effect. The change becomes effective if the Customer does not object to the change in writing within two weeks. The provider will inform the Customer of the planned change, the objection period, and the consequences of failing to object.

  8. The provider informs the Customer of upcoming price adjustments 6 weeks in advance and provides a date for the changeover. The provider emphasises that price adjustments are only made if they are essential to maintain high-quality maintenance services. If the Customer does not raise objections, the proposed price adjustment is considered accepted. However, if the Customer has concerns about the price adjustment, both parties are obliged to enter into constructive negotiations about alternative solutions.

  9. From the contract conclusion, the provider is entitled to name the Customer as a reference Customer. The Customer can revoke this right for a significant reason in writing. The contractor remains entitled to use already created promotional material. The indication can also be made online, e.g., on the provider’s company website, including the depiction of the client's company logo. The Customer grants the provider a simple, time- and place-unrestricted, non-transferable right of use for the necessary name and trademark rights for this purpose upon the conclusion of the contract.

  10. This contract is drawn up in German and English; in the event of discrepancies, contradictions, or the interpretation of individual clauses, the German version shall prevail.
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