Conditions of Use for digital products
NOTE TO ALL USERS OF DIGITAL PRODUCTS: PLEASE READ THE FOLLOWING CONDITIONS OF USE CAREFULLY BEFORE YOU PURCHASE OR PLACE AN ORDER.
BY ORDERING OR PURCHASING A DIGITAL PRODUCT, YOU DECLARE YOUR CONSENT WITH THESE CONDITIONS OF USE.
DO NOT ORDER OR PURCHASE THE DIGITAL PRODUCT; IF YOU DO NOT CONSENT TO THESE CONDITIONS OF USE.
These Conditions of Use govern the contractual relationship of the end-users of digital products and HEINE Optotechnik GmbH & Co. KG, Kientalstr. 7, 82211 Herrsching, Germany [hereinafter referred to as "HEINE"]
The end-user in the scope of these Conditions of Use is any legal entity and/or natural person aiming to use a digital product from HEINE provided this is not a consumer.
Digital products in the scope of these Conditions of Use are any products that have software for handling and proper use integrated into them and/or in which the end-user is advised of the present Conditions of Use before the purchase and/or which have the present Conditions of Use appended to them.
1. [SCOPE] These Conditions of Use are applicable unless product-specific Conditions of Use provide otherwise. Contradictory and/or deviating terms of the end-user shall not be effective.
2. [RIGHTS] HEINE is the owner of the copyrights and other protective rights concerning the digital product, in particular concerning the hardware and software. Changes of any kind to and/or any use of the digital product, including its software, other than specified in the instructions for use and/or operating instructions are explicitly prohibited.
3. If the digital product comprises a presentation and/or display function, HEINE wishes to point out explicitly that this function does in no case substitute for medical advice and/or diagnosis. The end-user is fully responsible for any interpretation, and any medical decision or treatment taking place shall be the responsibility of the end-user.
4. [SUPPORT] Unless noted or agreed differently, HEINE shall provide no support service or similar service. A support service can be agreed individually upon request.
5. [REGISTRATION] To be able to use the digital product, the end-user may need to register - depending on the type of the digital product. If this is the case, the end-user will be advised accordingly in due time before purchase.
6. [OBLIGATIONS OF THE END-USER] The end-user is obliged to
a. ascertain the suitability of the digital product for the end-user's concrete aims and intentions,
b. provide for the required hardware and software environment for use of the digital product, if applicable,
c. comply with the operating notes and/or operating instructions or similar instructions, and
d. support HEINE in any troubleshooting, for example by providing certain information and/or access to the premises.
e. If the digital product serves for recording, archiving, management of data or the like, the end-user is obliged to perform regular backups of such data.
f. If the end-user is held responsible by third parties for any violation of rights by the digital product, the end-user shall advise HEINE without delay of any claims made and discuss the further course of action with HEINE.
7. [BUG LIST] If the software of the digital product is known to include software errors, HEINE will advise the end-user of such software errors ahead of time. Any claim concerning liability for defects with respect to these errors will then be excluded.
8. [LIABILITY FOR DEFECTS/ WARRANTY] The (warranty) rights of the end-user in the case of defects are governed by the applicable legal provisions.
9. [LIABILITY] Concerning the liability of HEINE, the following agreements shall apply.
The liability of HEINE with respect to damages or reimbursement of expenses, regardless of the specific legal ground, shall be limited in accordance with the following provisions.
a. HEINE shall be liable without limitation in case of intent and gross negligence, in case of culpable injury to life, body or health, in accordance with the regulations of the product liability law, in the case of fraudulent intent and in the scope of any assurance of product characteristics assumed by HEINE.
b. Moreover, HEINE shall be liable for any negligent violation of essential contractual duties by HEINE or the company's organs, legal representatives, employees or other vicarious agents. Essential contractual duties shall be any duties that need to be performed since they are essential to the proper implementation of the agreement, whereby the end-user relies and can in fact rely on the performance of such duties (so-called cardinal duties).
In case of a minor negligent breach of the cardinal duties by HEINE or any of the company's organs, legal representatives, employees or other vicarious agents, the liability of HEINE shall in any case be limited to damage that is typical for this contract and is foreseeable. This limitation of liability shall not apply to personal injuries.
c. With the exception of cases covered in 9.a., HEINE shall not be liable for lost profits, missed savings, damage from claims of third parties and other indirect consequential damage.
d. Any further liability of HEINE shall be excluded.
e. HEINE shall be liable for complete or partial loss of data only in accordance with 9.a.-d., and it shall be noted again that the end-user has to perform data backups periodically (see 6.e.).
For clarification: In any case of doubt, the end-user has to provide proof that data backups have been done periodically.
10. [DATA PROTECTION] HEINE assures, as a matter of rule, to not have any access to any data of the digital product. This includes data of the end-user and/or data the user collects and/or archives, manages or processes in any way or manner in the scope of the use of the digital product. The end-user is obliged to protect the data from access of unauthorised third parties due to the use of the digital product and to comply with the data protection regulations applying to the end-user.
11. [APPLICABLE LAW, JURISDICTION] The contractual relations between the end-user and HEINE shall be subject to German law, while excluding the UN Convention on the Sale of Goods. The agreed jurisdiction shall be the business residence of HEINE.
12. [MISCELLANEOUS] No oral ancillary agreements have been made. If any provision of these Conditions of Use is or were to become invalid, this shall not affect the validity of the Conditions of Use. The invalid provision shall be replaced by a legal provision that approximates the purpose of the Conditions of Use and the will of both parties most closely.
13. [GT&CS] In addition, the General Terms and Conditions of HEINE www.heine.com/en/gtcs/ shall apply, but the present Conditions of Use for digital products shall take preference.
14. [CONTACT] HEINE Optotechnik GmbH & Co. KG
Phone: +49 8152 38-0
Fax: +49 8152 38-202