§ 1 General provisions
a) Scope
These Standard Business Terms, as in effect upon the conclusion of the respective contract, apply to all business relationships between Dr. Bart-Jan van Putten, Wallstrasse 5, 01067 Dresden (hereinafter referred to as SeniorWise) and the customer. Standard business terms of the customer that vary from the provisions hereof are expressly excluded. As used in these Standard Business Terms, customers refer solely to entrepreneurs within the meaning of § 14 German Civil Code (BGB).
b) Contractual agreement
The contractual language is English. SeniorWise will provide these Standard Business Terms, invoices and offers in German, English or Dutch at the customer’s request. Supplementary agreements must be made in writing.
c) Subsequent amendment to Standard Business Terms
SeniorWise is authorised to subsequently modify and amend the Standard Business Terms as applicable to existing business relationships to the extent required due to changes in law or legal interpretation by the courts or in the event other circumstances result in a more than minor impairment in the relationship between performance and consideration. A subsequent amendment to these Standard Business Terms becomes effective if the customer does not object within 6 weeks after notice of the respective amendment. Upon beginning of this period, SeniorWise will expressly inform the customer that its silence will be deemed to be acceptance of the amendment to the contract and will provide the customer the opportunity to submit an express declaration with regard to such amendment. If the customer objects within the period, both SeniorWise and the customer will have an extraordinary right of termination with regard to the contract.
§ 2 Description of services
SeniorWise helps its customers to design interactive products for seniors that are interesting, functional and user-friendly. SeniorWise customers comprise companies that make products exclusively for the needs of seniors, as well as companies that produce senior-friendly products for a broader target group. SeniorWise offers research, consulting and design projects (hereinafter referred to as a “project”) to the target customer groups as described above. SeniorWise designs new and improved products and tests products and prototypes in conjunction with their future user group. SeniorWise additionally offers reports on purchase as well as training courses.
§ 3 Contract formation
a) General terms
A contractual relationship is concluded with SeniorWise via the SeniorWise website or by means of individual agreement (offer and acceptance, e.g. orally, in writing, via e-mail or fax). The text of the respective contract will not be stored as the provisions of the contract are based on the agreements reached in each specific case.
b) Individually-tailored contracts for projects/training courses
The customer initially submits an inquiry to SeniorWise regarding a project or training course. SeniorWise confirms receipt of the inquiry and sends an offer to the customer. The customer is then free to accept this offer from SeniorWise. A contract between SeniorWise and the customer comes into effect upon acceptance by the customer (order confirmation).
c) Validity of the offer
Quotes made by SeniorWise are valid for 4 weeks. Orders placed based on an offer after this period will be considered a new offer to contract on the part of the customer that may be accepted by SeniorWise.
d) Ordering reports or fixed-price projects
Customers may order a report (digital file) or a fixed-price project via the SeniorWise website. The customer makes a binding order to contract upon placing an order. SeniorWise will immediately notify the customer of receipt of the order. Confirmation of receipt does not represent binding acceptance of the order. SeniorWise has the right to make a binding acceptance of the offer to contract contained in an order within 7 days of receipt. A contract is concluded between SeniorWise and the customer upon acceptance.
§ 4 Performance
a) Provision of services
SeniorWise is authorised to have the contract or parts thereof performed by third parties.
b) Partial performance
SeniorWise is authorised to provide partial performance to the extent this may reasonably be accepted by the customer.
c) Performance delays without fault
SeniorWise is not responsible for delays in performance due to force majeure incidents and due to extraordinary and unforeseeable events which could not be avoided by SeniorWise even with utmost care (this involves in particular strikes, administrative or court orders and cases of incorrect or improper supply having placed proper orders, illness, accident, etc.). Any of the foregoing circumstances entitle SeniorWise to postpone performance for the duration of the respective hindrance.
d) Revocation
SeniorWise may revoke the contract in the event of non-availability on the grounds described above. In such cases, SeniorWise undertakes to immediately notify the customer of non-availability and to immediately refund any payments already made.
e) Time of performance
The time of performance is individually agreed between the parties and is set out in the respective offer.
f) Languages
A separate agreement is required to the extent the customer wishes SeniorWise to supply goods or services in a specific language.
§ 5 Remuneration
a) General
All prices are understood to be exclusive of value added tax. In the case of projects/training courses, additional expenses to be borne by the customer include the costs of travel, accommodations and expenses incurred for meals to the extent not otherwise agreed.
b) Project prepayments
Agreed remuneration includes all services offered by SeniorWise in connection with completion of the project. The customer must pay one-half (50%) of the agreed remuneration upon order placement in order to provide financing for performance of the respective project. To the extent not otherwise agreed, the remaining remuneration is due for payment upon delivery of the project.
c) Payment terms for training courses
The attendance fee for training courses is due for payment within 14 days of receipt of the booking confirmation.
d) Payment terms for the purchase of reports/fixed-price projects
Invoices will be sent for the purchase of reports/fixed-price projects. Payment is due within 14 days of receipt of the invoice.
e) Subsequent change requests
SeniorWise reserves the right to separately bill subsequent change requests, additional requirements or special services (revisions, design or document changes) requested by the customer. Remuneration is based on the conditions stated in the offer as well as based on the amount of time expended. Delivery dates are to be modified by agreement in the event of delays that are unforeseen or for which SeniorWise is not responsible. Amendments shall be documented in writing and replace the previously applicable delivery date. SeniorWise reserves the right to charge the customer for costs accrued due to a delay in project start (e.g. planning, booking, set-up) provided the customer is responsible for any such delay.
f) Default of payment
The customer is in default if payment is not received by SeniorWise within 14 days of receipt of the invoice. In the case of a default of payment, interest shall accrue at a rate of 9% above the European Central Bank reference rate. SeniorWise reserves the right to charge dunning fees in the amount of €10.00 if a customer defaults in payment. This does not preclude the right to assert claims for any further damages. The customer has the right to submit evidence that SeniorWise incurred no damages or damages in a lesser amount.
g) Right of retention
The customer is authorised to exercise a right of retention solely with regard to counter-claims that have fallen due and that are based on the same legal relationship as the customer’s obligation.
§ 6 Cancellation fees for training courses
Dates booked by the customer may be cancelled in writing. The following provisions govern cancellation fees. Cancellation is without charge if made 30 days before the agreed beginning of training at the latest. Receipt by SeniorWise is the deciding factor when determining timeliness of the cancellation. In the event of cancellation at a later time, cancellation fees are tiered as set out below:
- 25% of the agreed invoice amount from the 29th to the 14th day before the booked date
- 50% of the agreed invoice amount from the 13th to the 8th day before the booked date
- 80% of the agreed invoice amount for a cancellation less than 8 days before the agreed date,
- 100% of the agreed invoice amount for non-attendance at the booked date.
This does not preclude the customer’s right to demonstrate that SeniorWise incurred no costs or costs in a lower amount.
The customer must additionally reimburse SeniorWise for any resulting travel costs.
§ 7 Confidentiality
SeniorWise will use data provided by the customer in the course of contract performance solely for performance of the contract and will not further transmit such data. SeniorWise and its employees, as well as third parties commissioned by SeniorWise in the context of contract performance, will maintain confidentiality at all times.
§ 8 Warranty
a) Warranty claims
Statutory warranty rights apply to the extent SeniorWise produces a work. If the work is defective and the customer demands cure, at its discretion SeniorWise may choose to cure the defect or to produce a new work. If defects are not cured even following at least two attempts, the customer shall be authorised to revoke the contract or to reduce the price.
b) Rights in case of minor defects
In the case of a minor defect, the customer is solely authorised to a reasonable reduction of the price. A right of revocation is excluded.
c) Compensation for defects
No guarantee is given for defects that are caused by improper treatment or use. Compensation for defects is to be paid solely in case of intent or gross negligence. This exclusion does not apply to the liability for damages to life, limb or health. The provisions of the German Product Liability Act (Produkthaftungsgesetz) remain unaffected by this exclusion of liability.
d) Transfer of risks
In the course of handling a warranty claim, the risk of accidental loss or deterioration of the work passes to the customer solely upon acceptance of the work. In case of entrepreneurs, the risk of accidental loss or deterioration of the work is transferred immediately upon delivery to the person engaged to provide transportation. Warranty claims lapse within one year after the transfer of risks.
e) Acceptance
Acceptance may not be refused for design or artistic reasons. SeniorWise enjoys freedom of design in connection with the project. Objections with respect to artistic design are precluded.
§ 9 Responsibility of the customer
a) Contents of the customer order
The customer is exclusively responsible for the contents and correctness of the data and information submitted on a customer order. In addition, the customer undertakes not to submit data the contents of which infringe third-party rights or infringe existing laws. By submitting data to SeniorWise, the customer confirms compliance applicable copyright rules and regulations. To the extent the customer wishes to quote a portion of the project report, such quotes must be marked as such and SeniorWise must be named as author of the project report.
b) Indemnification
The customer shall indemnify SeniorWise as against all claims that could be asserted by third parties for such infringements. This likewise includes reimbursement of costs for required legal representation. In addition, the customer shall indemnify SeniorWise as against all claims resulting from defects in a product to be tested. The customer is required to support SeniorWise in defending against such claims, in particular by providing all information required for such defence. The customer is obligated to compensate SeniorWise for damages it incurs in the event of a successful assertion of such claims by third parties. The customer is also obligated to indemnify SeniorWise as against all claims that are asserted against SeniorWise because the customer uses properly obtained results in an unlawful manner, whether intentionally or as a result of gross negligence, or uses them to advertise in a deceptive manner.
c) Contract performance
The customer is obligated to provide all documents required for contract performance to SeniorWise in a timely manner and to notify SeniorWise of all events and circumstances that are material to contract performance.
d) Product tests
It is the customer’s sole responsibility to ensure that all required chemical, medical, pharmaceutical or other technical tests, examinations, as well as analyses of the test product have been carried out. The customer is similarly responsible to ensure that the product is suitable for the test and that, during the test, there was no indication that the product might cause damage. The customer is required to provide SeniorWise all information required for the use of the product so that SeniorWise can forward such information to the test participants.
e) Non-disclosure
The customer is obligated to keep confidential all trade or business secrets disclosed by SeniorWise and/or of which the customer otherwise becomes aware in connection with contract performance and to treat such information as having been labelled confidential. These non-disclosure obligations remain valid for 36 months after termination of this contract.
f) Confidentiality regarding offers
The customer in deciding whether to conclude a contract with SeniorWise intends all offers submitted to the customer by SeniorWise solely for use. To the extent not otherwise agreed, the customer may only disclose the contents of an offer or transmit to a third party by mutual consent.
§ 10 Right to use as a reference
To the extent not otherwise agreed, SeniorWise is authorised to list the business relationship with the customer as a reference and to use this for promotional purposes. Within the scope of the foregoing, SeniorWise is also authorised to list training courses offered by SeniorWise as reference services. Unless otherwise agreed, SeniorWise reserves the right to recording images during training courses and to publish them in promotional materials, presentations, as well as on the SeniorWise website, provided consent has been given.
§ 11 Licence agreement
a) Copyright
All reports, drafts, documents and files created by SeniorWise, including all authorised copies, are the intellectual property of SeniorWise. This is also the case to the extent reports, drafts, documents and/or files created were based on suggestions by or collaboration with the customer.
b) Licence
Once the customer has paid all invoices related to the contract, SeniorWise will transfer to the customer all required rights of use and enjoyment to the extent agreed in the contract or to the extent suggested by the circumstances. In the event of doubt, SeniorWise will satisfy this obligation by granting non-exclusive rights of use and enjoyment in the Federal Republic of Germany. The license expires upon termination of the contract. To the extent not expressly agreed otherwise, the customer receives the results of the project exclusively for its own use. To the extent not otherwise agreed, project results may be published or transmitted to third parties solely with the consent of SeniorWise.
c) Copyright for training courses
The contents as well as the design of training courses organised by SeniorWise, and the related documents including all authorised copies, are the intellectual property of SeniorWise. Similarly, all texts, pictures and other works created by SeniorWise are the intellectual property of SeniorWise.
d) Licence agreement for training courses
Once the customer has paid the attendance fee, SeniorWise will transfer to the customer all required rights of use and enjoyment in training materials to the extent agreed in the contract. In the event of doubt, SeniorWise will satisfy this obligation by granting non-exclusive rights of use and enjoyment in the Federal Republic of Germany for the duration of the training course. The license fundamentally expires upon termination of the contract. The foregoing notwithstanding, the license survives the termination of the contract with regard to copies provided to the customer for its own use. Any further use requires the consent of SeniorWise. In particular, the contents of the training courses may neither be transmitted to third parties (sub-licensing or sale) nor copied, reproduced or stored on a magnetic medium or other form of media. Similarly, use of the contents, texts and exercises from a training course for internal training, seminars, courses or otherwise in relation to third parties is prohibited without express, written consent.
e) Compensation for damages
SeniorWise reserves the right to assert claims for damages for every infringement of the contractual licence terms, in particular in the event of a copyright infringement.
§ 12 Liability
a) Disclaimer
SeniorWise, as well as its legal representatives and agents, is liable solely in cases of intent or gross negligence. The foregoing notwithstanding, SeniorWise is also liable for simple negligence in the event material contractual obligations are affected (i.e., those obligations the observance of which is of particular importance to the achievement of the purpose of the contract). In such cases, liability shall be limited to foreseeable, typical, direct and average damages. In dealings with entrepreneurs, SeniorWise is liable for grossly negligent violations non-material contractual obligations solely up to the amount of foreseeable, typical, direct and average damages.
b) Limitations on disclaimers of liability
The above disclaimer does not affect liability for damages to life, limb or health. The provisions of the German Product Liability Act (Produkthaftungsgesetz) likewise remain unaffected by the exclusion of liability.
§ 13 Final provisions
a) Jurisdiction
The exclusive place of jurisdiction for all legal disputes arising under this contract shall be the location of the SeniorWise registered office in Dresden provided the customer is a merchant, a public-law legal entity or a special fund under public law or to the extent the customer does not have a place of general jurisdiction in the Federal Republic of Germany.
b) Applicable law
This contract is governed by the laws of the Federal Republic of Germany, subject to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) to the extent not otherwise required by mandatory provisions of law applicable in the customer’s place of residence.
c) Severability clause
These Standard Business Terms remain in full force and effect the invalidity of individual provisions hereof notwithstanding.