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General Terms and Conditions – MotoSana GmbH

 

  1. Scope

I.1 All – including future – deliveries and offers of MotoSana GmbH shall be made on the basis of the General Terms and Conditions of MotoSana. These are an integral part of all agreements with MotoSana. They are also in effect, if they are not expressly referred to in the individual case.

I.2 An entrepreneur (§§ 14, 310 BGB) is any legal person under public law or special fund under public law. The customer is a consumer within the meaning of the following conditions if the purpose of the ordered deliveries and services cannot be attributed to his commercial or freelance activities.

I.3 Deviating agreements are only effective if they have been confirmed by MotoSana. If the customer is an entrepreneur, this confirmation must be in writing. General Terms and Conditions (AGB) of the customer do not apply, even if MotoSana does not object expressly. These also do not become a part of the agreement due to unconditional acceptance or performance of the contract.

 

  1. Provisions for purchasing

II.1 Delivery

1.1 The products shall be delivered by MotoSana or a third party commissioned by MotoSana.

II.2 Warranty and liability for purchasing

2.1 In the case of material defects, MotoSana may in the first instance, at its discretion, provide the customer with a new, fault-free performance or eliminate the defect by rectification. If subsequent fulfilment fail ultimately after the expiration of a period of grace to be set by the customer, which shall allow at least two attempts at subsequent fulfilment, then the customer may reduce the remuneration, claim compensation for damages and expenses, or withdraw from the contract or in accordance with §§ 434 et seq BGB.

2.2 If the customer is an entrepreneur and the fruitless expiration of a deadline or grace period set by the customer results in the dissolution of the contractual commitment or a reduction in remuneration, the customer must expressly warn of this upon setting of the deadline. The declarations above must be in written form to be effective. The warranty period is stipulated by legal provision.

2.3 MotoSana has unlimited liability in case of intent or gross negligence, for injury to life, limb, or health in accordance with the legal provisions and especially pursuant to the provsions of the product liability law.

2.4 If an obligation is violated, which is essential for achieving the contract purpose, MotoSana is liable in case of slight negligence, if the damage is foreseeable and typical for the kind of questionable transaction, whereas liability is limited to a maximum of 10,000 € for each individual damaging event and 20,000 € per contractual relationship.

2.5 MotoSana has no additional liability.

2.6 The liability limitation above is also in effect for the personal liability of employees, agents, representatives, and bodies of MotoSana.

 

III. Provisions for transfer

III.1 Delivery and pickup

1.1 The products shall be delivered by MotoSana or a third party commissioned by MotoSana.

1.2 After termination of the transfer agreement, MotoSana or a third party commissioned by MotoSana shall pick up the returned products after the end of the contract. If the customer terminated the contract relationship, he is obligated to assume the costs incurred due to the pickup.

1.3 If the customer does not return individual products after the end of the contractual relationship in spite of request by MotoSana, MotoSana shall retain the provided security. This does not preclude the assertion of additional damages by MotoSana.

III.2 Obligations of the customer

2.1 The customer is obligated to take care of the individual products. In particular, he must follow the instructions for use and operation that are included with the transferred products.

2.2 The products are intended only for use in accordance with the instructions. This is absolutely necessary for reasons of data protection and security and to prevent unintentional infection by harmful programs, etc.

2.3 The customer is not entitled to dispose of the objects transferred to him without prior written consent by MotoSana. This especially applies to transfer to third parties for use.

2.4 The customer will protect the products against encumbrances of any kind and immediately inform MotoSana in writing of any seizure by third parties, especially due to any liens providing all necessary information.

2.5 The customer is responsible for the expenses for all measures that are necessary to protect against seizure by third parties unless this is a seizure due to the activities of MotoSana.

2.6 The product must not be opened. Unlawful opening shall results in a fee-based inspection (in the amount of 500.00 €) by MotoSana. The customer shall be responsible for the expenses for inspection and repair. In case of unlawful use / change within the meaning of § 6 Section 2, the security deposit shall be retained in its entirety. No refund will be granted.

III.3 Liability of the customer

3.1 The customer is liable for any and all damages that are caused by the improper use of the objects of the contract, especially for damages that were caused by tempering or altering the products. He is also liable for accidental loss of or accidental damage to the products.

3.2 In case of a total loss or an accidental loss of the products, the customer must replace the market value of the products if a transfer relationship exists. If the damage was the fault of a third party, the customer shall assign all damage claims against the third party if MotoSana does not already have a direct right to them.

III.4 Warranty and liability

4.1 Pursuant to the provisions of the product liability law, MotoSana has unlimited liability in case of intent or gross negligence, for injury to life, limb, or health that the customer suffers due to the use of the products.

4.2 If an obligation is violated, which is essential for achieving the contract purpose, MotoSana is liable in case of slight negligence, if the damage is foreseeable and typical for the kind of questionable transaction, whereas liability is limited to a maximum of 10,000 € for each individual damaging event and 20,000 € per contractual relationship.

 

  1. Provisions for the use of the KMP software and wellengang software

IV.1 The KMP software and the wellengang software are innovative new products. These include changes, expansions, improvement, new versions, additions, supplements, derived versions, documentation, and accessories. The producers of the KMP software and the wellengang software each keep a team of specialists to contantly improve the functions of the softwares.

IV.2 Guaranty of the function of the KMP software and the wellengang software

The guaranty is based on the following provisions:

2.1 Proper function

In case of faulty internet-based data input / evaluation, the producers of the KMP software and the wellengang software will provide a remedy as soon as possible and make it possible to use the software properly. Any software updates will be installed on the central server and provided to the customer without delay.

2.2 Warranty

The KMP software and the wellengang software will be provided “AS IS” without any warranty or liability. The user bears any and all risk resulting from the use or application of the software. MotoSana is in no way liable for any damages or other consequences resulting from the use or any characteristics of the software even if MotoSana has been informed of the possibility of such damage.

IV.3 Promise of guarantee with regard to the KMP software

If the KMP Software is not available for one or more days (at least 24 hours) for reasons that are the fault of the producers of the KMP software, MotoSana is obligated to pay any use and service sum to be paid monthly in case of purchase for the days that the software is not available. No financial compensation shall take place in case of a simple transfer.

 

  1. Other provisions

V.1 Data protection

1.1 MotoSana processes the data of the customer that is necessary for business dealings following the applicable data protection regulations. The anonymized evaluation of certain data is also performed in accordance with data protection regulations.

1.2 Practice or business addresses of commercial customers may be published on the website of MotoSana, especially in the case of a databank or search function so that potential final customers / users of the products can see where these are available.

 

  1. Final provisions

VI.1 Changes and supplements to this contract that are not based on an individual agreement, must be in written form (fax included). This also applies to the waiver of the written form requirement. If provisions of these term and conditions are or become invalid, this shall not affect the validity of the remaining terms and conditions.

IV.2 The customer is not entitled to transfer the rights from this contract to third parties without our consent. For commercial customers, § 354 a HGB remains unchanged.

IV.3 German law applies exclusively with the exclusion of the UN Sales Convention. Our place of business is the place of performance and sole jurisdictional venue, also in case of warranty claims. We are, however, entitled to sue the customer at his place of residence.

 

Status of the General Terms and Conditions: 1 June 2015

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