General terms of service and payment

General terms of service and payment

of

iNCU GmbH

§ 1 General, scope of validity

Our General Terms and Conditions of Business apply to all present and future business relations. Our deliveries and services are provided exclusively based on the following General Terms and Conditions.
Deviating, conflicting or supplementary general terms and conditions of business, even if we deliver with knowledge of such general terms and conditions of business, shall not become part of the contract unless we have expressly agreed to their validity in writing.

§ 2 Conclusion of the contract, binding period

Our offers are subject to change without notice but lose their validity 60 days after submission at the latest.
By placing an order, the customer makes a binding declaration that they wish to make use of the service ordered. The customer is bound to their order for 3 weeks after receipt by us. Within this period, we are entitled to accept the contractual offer contained in the order. Acceptance can either be declared in writing (also by fax or e-mail) or by carrying out the service. If acceptance is made by means of an order confirmation, the customer is obliged to check this immediately for any deviations from the order and to notify us of any such deviations without delay. Otherwise, the contract shall be deemed to have been concluded in accordance with the order confirmation.
Ancillary agreements and amendments to this contract shall require the written form to be effective. This requirement can only be waived in writing. Faxes and e-mails fulfil the written form.

§ 3 Services of iNCU/responsibilities/liability

iNCU ensures that the technical equipment made available by iNCU is tested before the respective use and can be put into operation in due time. Subsequently, the iNCU employee present on site will inform the customer about the stimulation and recording locations recommended by iNCU and will make appropriate adjustments with the surgeon, including placing the electrodes and needles and carrying out the stimulation and recording measures as instructed by the surgeon.
During the surgery, the iNCU employee will operate the monitoring device and continuously inform the surgeon about the status of the recorded signals. In consultation with the surgeon, the iNCU employee will set the parameters for the electrical stimulation.
If the customer themself provides the monitoring device to be used, iNCU will only provide the accompaniment of surgery and accessories in accordance with the contract. In this case, liability for the proper function of the device provided by the customer on the part of iNCU is excluded, unless the malfunction is due to culpable operating errors of the iNCU staff. In such a case, the liability regulations of § 7 apply.
Both parties to the contract are aware that the responsibility for all actions or omissions in relation to the operated patient lies solely with the customer and their staff, but not with iNCU and its staff. In particular, the customer alone is responsible for the medical decisions made by the customer based on the information provided by iNCU. Furthermore, in relation to the patient, only the doctors appointed by the customer are entitled and obliged to determine the beginning, type and duration as well as the termination of iNCU's service.
If iNCU employees directly influence the patient on the instructions of the surgeon, the customer is solely responsible to the patient for any resulting damage, unless iNCU is liable in accordance with the regulation in § 7.
The customer is further responsible to the patient for ensuring that – also with regard to iNCU equipment and staff – the safety and hygiene regulations are observed. The iNCU employees will comply with the customer's safety and hygiene regulations.
It is the sole responsibility of the customer to inform the customer's patient about intraoperative neurophysiological monitoring. The customer must also inform the patient that iNCU personnel are involved in the operation (including by invasively affecting the body, e.g. applying electrodes/needles/stimulation) and obtain the patient's consent.
The customer will receive documentation from iNCU in electronic form on the course of the neurophysiological monitoring shortly after completion of the operation. The customer is solely responsible for the proper storage of this data within the storage periods to be observed by the customer.

§ 4 Prices

The price is the price stated by us in the offer or, where this has not become the basis of the contract, the price negotiated with the customer. The prices exclude the respectively applicable VAT.
Discounts or other deductions are not permitted.
Any other costs, in particular the costs of monetary transactions, shall be borne by the customer.
If the remuneration is based on the duration of the iNCU assignment, the appearance of the iNCU employee at the customer's premises is considered the start of the assignment. The end of the assignment is the point in time at which the employee has left the customer with their equipment.
If the iNCU is working for a customer with several devices and employees at the same time to support operations running in parallel, the remuneration will be calculated separately for each operation. The same applies to successive operations, regardless of whether they are supervised by the same or different iNCU employees.
If the customer cancels an order placed, the remuneration of iNCU for the expenses incurred in the run-up to the operation as well as the damage is based on a flat rate according to the rates in the offer. The customer reserves the right to prove that the cancellation has caused no damage to iNCU or a lower damage than the cancellation fee.

§ 5 Payment, default, deterioration of assets

The due date for payment of our invoices shall be determined by the statutory regulation. All ancillary bank charges shall be borne by the customer.
We are entitled to demand payments on account and to render services only against advance payment.
If the customer is in default of payment, we are entitled to charge statutory default interest in the amount of 9 percentage points above the base interest rate. We reserve the right to claim higher damages.
If, after conclusion of the contract, a significant deterioration becomes apparent in the financial circumstances of the customer, which could jeopardise our claim to counter-performance, we may refuse our performance, even if there is an obligation to perform in advance, until counter-performance has been effected or security has been provided for it. If, after the expiry of a reasonable period of time set by us, the customer is not prepared to perform concurrently or to provide security, we are entitled to withdraw from the contract.

§ 6 Offsetting, right of retention

Offsetting against counterclaims of the customer is only permitted if and insofar as these are recognised by us as existing and due or their justification has been legally established.
The customer shall only be entitled to exercise a right of retention and to the extent that their counterclaim is based on the same contractual relationship.

§ 7 Liability

iNCU is liable without limitation for intent and gross negligence (also of its legal representatives and vicarious agents), as well as for damages resulting from injury to life, body or health, which are based on an intentional or (also slight) negligent breach of duty on the part of iNCU or an intentional or (also slight) negligent breach of duty on the part of its legal representatives. Likewise, iNCU is liable without limitation in the event of a breach of a guarantee given by iNCU, if a defect covered by such guarantee triggers the liability. There is also no limitation in case of liability due to dangerous facts (especially according to the product liability law).
In case of other culpable violation of essential contractual obligations (cardinal obligations), the remaining liability of iNCU is limited to the typical contractual foreseeable damage. Cardinal obligations are essential contractual obligations, i.e. those obligations which give the contract its character and on which the contractual partner may rely; these are thus the essential rights and obligations which create the conditions for the fulfilment of the contract and which are indispensable for achieving the purpose of the contract.
The liability of iNCU is excluded for the cases according to the above-mentioned paragraph 2. is limited to €1,000,000.00 (in words: one million euros) in each case.
Apart from that, liability – regardless of the legal basis (especially claims arising from the violation of pre-contractual main and secondary obligations, tort and other tortious liability) – is excluded.
An exclusion or limitation of liability also applies to the legal representatives and vicarious agents of iNCU.
In cases of surgery support using the equipment available on the customer's side § 3 clause 3 applies.

§ 8 Partial invalidity

Should one or several provisions of these terms and conditions of business be or become invalid, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision. The same shall apply in the event of a loophole in the provision.

§ 9 Place of jurisdiction, applicable law

The exclusive place of jurisdiction for all disputes arising from contracts concluded with us is Freiburg im Breisgau, Germany. We are however also entitled to sue the customer at their place of residence or the competent court for their subsidiary.
German law applies exclusively. Exclusive place of jurisdiction for all disputes arising from the contractual relationship is the registered office of iNCU. Place of performance of iNCU's obligation to perform is the customer's registered office, however, this does not constitute a place of jurisdiction. Place of performance for all other claims arising from this contract is the registered office of iNCU.