General Terms and Conditions

Status: 11.01.2023

§ 1 Scope of application

These General Terms and Conditions of DeepCare GmbH (hereinafter referred to as "GTC") apply to all contracts and pre-contractual obligations of Deep Care GmbH, Königsallee 43, 71638 Ludwigsburg (hereinafter referred to as "DEEP CARE") in connection with the sale and rental of products.
These GTC apply exclusively to entrepreneurs (Section 14 BGB), legal entities under public law and special funds under public law within the meaning of Section 310 (1) BGB (hereinafter referred to as "Customers").
These GTC shall also apply to all future deliveries to the customer in the version valid at the time of the customer's order, even if their validity is not separately agreed again.
The General Terms and Conditions of DEEP CARE shall apply exclusively. Deviating, conflicting or supplementary terms and conditions of the customer or third parties shall not apply, even if DEEP CARE makes deliveries without objecting to their validity. Even if DEEP CARE refers to a letter from the Customer (e.g. an order) that contains or refers to the Customer's or a third party's terms and conditions, this does not constitute agreement with the validity of such terms and conditions.
Individual agreements made with the customer in the offer or in other individual cases (including collateral agreements, supplements and amendments) shall in all cases take precedence over these GTC. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or written confirmation from DEEP CARE.
References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
Amendments to the contract as well as legally relevant declarations and declarations of intent relevant to the contract and declarations for the exercise of formative rights (e.g. setting deadlines, reminders, cancellation) must be made in writing. This also applies to the waiver of the written form requirement. The written form requirement can also be met by correspondence or (with the exception of cancellations) by electronically transmitted declarations (e.g. fax, e-mail, transmission of scanned signatures via e-mail). Mandatory statutory formal requirements and further evidence, in particular in the event of doubt as to the legitimisation of the declarant, shall remain unaffected.

§ 2 Conclusion of contract

All offers from DEEP CARE are subject to change and non-binding, unless they are expressly labelled as binding or contain a specific commitment period. A legal commitment is only established by the offer signed by both parties or by DEEP CARE's written order confirmation. DEEP CARE may request written confirmation of verbal contractual declarations by the customer.
In the case of an offer with binding effect, effective acceptance of a contractual offer from DEEP CARE by the Customer shall only take place by returning the signed, unamended offer to DEEP CARE. Any modified acceptance of the offer shall be deemed a new offer by the Customer. In this case, DEEP CARE reserves the right to accept the offer and a contract for the provision of the products shall only be concluded under the amended terms and conditions if DEEP CARE expressly accepts the Customer's amended contractual offer by written declaration to the Customer.

§ 3 Subject matter of the contract

The subject matter of the contract is the delivery of DEEP CARE products, in particular the Intelligent Seating Behaviour Assistant (ISA), and additional services in this regard as described in DEEP CARE's offer.
The customer has the option of using an app free of charge that enables long-term analyses of their own habits and progress. This app is not part of the delivery and can be obtained from the relevant manufacturer stores (e.g. Google Play or the Apple App Store). Separate terms and conditions apply; in particular, the app is provided "as is" without any warranty on the part of DEEP CARE, except in the case of defects caused by DEEP CARE intentionally or through gross negligence.
The ISA is installed by the customer in accordance with the instructions in the operating manual. DEEP CARE can also offer help videos, which it makes available to the customer. No separate installation, instruction or training will be provided by DEEP CARE.
Information provided by DEEP CARE on its products (e.g. weight, dimensions, load capacity, etc.) as well as the representations of the products (e.g. drawings and illustrations in catalogues or on the website), instructions for use, etc. do not constitute a guarantee by DEEP CARE for the quality of the respective product, unless DEEP CARE expressly declares this in writing.
DEEP CARE products may contain open source software. Different licence terms may apply to this open source software. An overview of the open source components contained in the respective deliveries and services as well as the corresponding licence texts are part of the delivery and can be viewed via the ISA menu or in the app.

§ 4 Prices and terms of payment

The remuneration is set out in the contract. All prices are quoted in EURO "ex works" plus packaging, dispatch and statutory VAT.
All prices are subject to the applicable statutory value added tax. The Customer shall bear all duties and taxes levied by any national, federal, state or local authority in connection with the contract (in particular if the products are exported or used in whole or in part outside the country of original purchase), with the exception of all taxes on DEEP CARE's sales, income or profits.
Payments are to be made no later than fifteen (15) days after the invoice date without deduction by bank, giro or postal transfer or by direct debit. In justified cases, DEEP CARE may demand advance payment to a reasonable extent.
The customer may only offset claims that are undisputed or have been recognised by declaratory judgement and may only base a right of retention on claims that are undisputed or have been recognised by declaratory judgement. He may not assign his claims to third parties - notwithstanding the provision of § 354 a HGB (German Commercial Code).
During the customer's default in payment, interest shall be charged on the purchase price at the applicable statutory default interest rate. DEEP CARE reserves the right to prove and claim higher damages caused by default.
DEEP CARE is entitled to make outstanding deliveries to the Customer only against advance payment or provision of security if circumstances become known which are likely to significantly reduce the Customer's creditworthiness and which appear to jeopardise payment of DEEP CARE's outstanding claims by the Customer arising from the respective contractual relationship.
In the case of rental of products, DEEP CARE shall be entitled to increase the rent for the first time after the expiry of twelve (12) months after conclusion of the contract with three (3) months' written notice to the end of the month, if and to the extent that its material and/or labour costs incurred for the maintenance of the rental item increase. The customer has the right to terminate the rental agreement within a period of six (6) weeks after receipt of the announcement of a rent increase (special right of cancellation). Otherwise, the new prices shall apply on the date specified in the notice.

§ 5 Delivery, dispatch and transfer of risk

All deliveries are "ex works". DEEP CARE shall select the mode of dispatch, route and packaging at its own dutiful discretion. DEEP CARE will only insure the shipment against theft, transport or other insurable risks at the customer's express request and expense.
If the ordered goods are unavailable, DEEP CARE may withdraw from the contract with immediate effect. DEEP CARE will inform the customer immediately of the unavailability of the product and refund any payments already made to the customer without delay.
Specified delivery times are non-binding unless a fixed deadline or a fixed date has been expressly agreed in writing.
DEEP CARE shall not be liable for the impossibility of delivery or for delays in delivery if these are caused by force majeure or other unforeseeable events (e.g. operational disruptions of all kinds, difficulties in procuring materials, strikes, lockouts, official measures) for which DEEP CARE is not responsible. Delivery periods shall be extended and delivery dates postponed by the period of the hindrance plus a reasonable restart time.
DEEP CARE shall only be entitled to make partial deliveries if (i) the partial delivery can be used by the Customer within the scope of the contractual purpose, (ii) the delivery of the remaining ordered products is ensured, and (iii) the Customer does not incur any significant additional work or costs as a result of the partial delivery.
The risk shall pass to the customer at the latest when the products are handed over to the forwarding agent, carrier or other person designated to carry out the shipment. If dispatch or handover is delayed as a result of circumstances for which the Customer is responsible, the risk shall pass to the Customer from the day on which the products are ready for dispatch and DEEP CARE has notified the Customer of this.
The Customer may only derive claims for delayed delivery if the delay in delivery is due to a wilful or grossly negligent breach of contract for which DEEP CARE is responsible or if, in the event of non-delivery, the Customer sets a grace period of four (4) weeks together with a threat of refusal.
If the customer is in default of acceptance or culpably violates other obligations to co-operate, DEEP CARE is entitled to demand compensation for the damages it incurs, including any additional expenses (such as storage and transport costs). Further claims or rights of DEEP CARE remain unaffected.
The customer shall unpack the delivery items immediately and check their functionality. Claims for defects by the customer presuppose that the customer properly fulfils his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code). Any defects discovered in the process must be reported immediately, even if they relate to the operating instructions. If the customer does not assert any defects, the delivery items shall be deemed to be free of defects upon delivery, insofar as the defect asserted later would have been recognisable if the agreed inspection had been carried out.

§ 6 Retention of title

If the contract is concluded as a rental agreement, the rental item remains the property of DEEP CARE. If the parties agree to purchase the product, DEEP CARE retains title to the purchased item until the purchase price has been paid in full (see § 449 BGB). The retention of title agreed below serves to secure all existing current and future claims of DEEP CARE against the customer arising from the supply relationship existing between the contracting parties.
The products delivered by DEEP CARE to the customer (hereinafter referred to as "reserved goods") remain the property of DEEP CARE until all secured claims arising from the business relationship between DEEP CARE and the customer have been paid in full. If DEEP CARE withdraws from the contract in the event of breach of contract by the Customer - in particular default of payment - DEEP CARE is entitled to demand the return of the reserved goods from the Customer.
The customer is obliged to treat the reserved goods with care as long as ownership has not been transferred to him. The Customer shall notify DEEP CARE immediately if the goods subject to retention of title are seized or exposed to other interventions by third parties; the Customer shall inform the third party of DEEP CARE's ownership.
In the event of purchase, the customer is authorised to resell the reserved goods in the normal course of business. The Customer hereby assigns to DEEP CARE by way of security the claims against the purchaser arising from the resale; DEEP CARE accepts the assignment. The Customer remains authorised to collect the claims against its customers in its own name even after the assignment. DEEP CARE's authorisation to collect the claims itself remains unaffected. However, DEEP CARE will not collect the claims against the Customer's customers as long as the Customer fulfils his payment obligations, is not in default of payment and no application for the opening of insolvency proceedings has been filed.

§ 7 Rental conditions

Rental period and cancellation period
1. The rental period shall be agreed individually in writing. Unless otherwise agreed, the minimum term is twelve (12) months from the conclusion of the contract. Thereafter, the contract shall be automatically extended by a further twelve months if it is not cancelled in writing with two (2) months' notice to the end of the respective minimum term or the respective contract extension.
2. Termination for good cause remains unaffected. A reason for extraordinary cancellation exists in particular if the customer pays the rent only irregularly or not at all and is more than 14 days in arrears with a rent that corresponds to the amount of the agreed payments for a quarter.
3. The cancellation must be made in writing. Text form is not sufficient.
4. At the end of the rental period, the rental items must be returned to DEEP CARE. If the customer is late in returning the goods or does not return the goods received at all, DEEP CARE is entitled to demand compensation for the duration of the withholding corresponding to the agreed rent or another contractually agreed amount.
Obligations of the customer
1. The customer must treat the rental items with the care of a prudent businessman, which he is used to applying in his own affairs. The customer shall provide adequate instruction and training or otherwise ensure that its vicarious agents use and operate the rented items in accordance with their normal use.
2. DEEP CARE shall mark the rented items as its property by means of reasonable labelling. Neither this labelling nor manufacturer information, serial numbers, seals, software licence information, etc. may be removed or altered by the customer without the prior consent of DEEP CARE.
3. The customer must grant DEEP CARE access to the rented items for the purpose of repair and maintenance work as well as care services, which must be carried out at the installation site, in accordance with its safety and access guidelines.
4. The customer must notify DEEP CARE immediately of any defects or damage to the rented items.
5. The customer is obliged to change the installation site only with the prior consent of DEEP CARE. This is not required for mere changes to the location of the workstations at the installation site.
Maintaining suitability for use
1. DEEP CARE must maintain the rented items in a condition suitable for the contractually agreed use for the entire duration of the rental period. To this end, it must carry out the necessary maintenance and repair measures itself or have them carried out by third parties it has commissioned. Additional costs incurred for additional work requested by the customer outside normal working hours or as a result of handling the rented property contrary to the contract shall be borne by the customer.
2. DEEP CARE shall provide the customer with contact details via which the customer can report defects in the rented items. Defects are regularly remedied by means of rectification, i.e. support in circumventing defects. DEEP CARE has the choice of whether it first attempts to rectify the defect by telephone or by remote maintenance. DEEP CARE is obliged to restore the contractually agreed usability within a reasonable period of time.
3. In the event of defects, the customer shall only be entitled to withdraw from the contract if DEEP CARE has not exercised its right to deliver a functionally equivalent item or if two attempts at repair have failed. If the repair is ultimately unsuccessful, the customer is entitled, at his discretion, to remedy the defect or to terminate the rental contract with regard to the defective rental item. The customer shall only be entitled to terminate the entire rental agreement if a significant number of the rental items are not available for the contractually agreed use.
4. The limitations of liability described in § 8 of the GTC shall apply to any claims by the customer for compensation for expenses or damages due to defects.
5. Customer claims for defects shall become time-barred after twelve (12) months, unless (i) DEEP CARE has fraudulently concealed the defect or caused it intentionally or through gross negligence, or (ii) DEEP CARE has assumed a guarantee for the lack of quality, or (iii) the Customer's claims are based on personal injury. The limitation period shall commence upon delivery of the products to the customer.

§ 8 Liability

DEEP CARE shall be liable for damages within the scope of fault-based liability, regardless of the legal grounds (e.g. from a contractual relationship of trust, from contract or tort) - also due to impossibility or delay as well as in the case of defects in the deliveries - only to the following extent:
- in the event of intent and gross negligence in the full amount;
- in cases of simple negligence only in the event of a breach of a material contractual obligation (an obligation whose fulfilment is essential for the proper performance of the contract and on whose fulfilment the customer therefore regularly relies and may rely), and only to compensation for typical and foreseeable damage, but limited to a maximum of the order value.
The aforementioned limitations of liability shall not apply to claims of the customer under the Product Liability Act or to damages resulting from injury to life, limb or health or in cases in which DEEP CARE has assumed an express guarantee.
In the case of rental, the landlord's strict liability pursuant to Section 536 a (1) BGB for defects in the rental products already existing at the time of conclusion of the contract is expressly excluded.
The above limitations of liability shall apply to the same extent in favour of the executive bodies, legal representatives, employees and other vicarious agents of DEEP CARE.

§ 9 Conditions of purchase

Warranty for defects
1. DEEP CARE shall not be liable for damage caused by improper handling or use of the products by the customer or its customers. DEEP CARE only warrants that the products comply with the product and service description and that the contractual use does not conflict with any third-party rights.
2. If there is a defect, DEEP CARE is entitled, at its discretion, to subsequent fulfilment in the form of rectification of the defect or delivery of a new defect-free product. DEEP CARE is obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the products have been taken to a place other than the place of performance.
3. If the subsequent fulfilment finally fails, the customer may, at his discretion, demand a reduction of the remuneration (reduction) or withdraw from the contract. Withdrawal from the contract is excluded in the case of only insignificant defects. Claims for damages due to defects in the deliveries are subject to § 8 of the GTC.
4. Customer claims for defects shall become time-barred after twelve (12) months, unless (i) DEEP CARE has fraudulently concealed the defect or caused it intentionally or through gross negligence, or (ii) DEEP CARE has assumed a guarantee within the meaning of § 443 BGB for the lack of quality, or (iii) the Customer's claims are based on personal injury or defects of title within the meaning of § 438 para. 1 no. 1 a BGB. The limitation period shall commence upon delivery of the products to the customer.

§ 10 Data protection and information security

The contracting parties shall process and use personal data of the other contracting party in compliance with the provisions of the data protection laws and only for contractually agreed purposes. In particular, they shall protect this data against unauthorised access and only pass it on to third parties with the consent of the other contractual partner or the persons concerned.
Insofar as it is necessary for the performance of the contract that the customer grants DEEP CARE access to personal data, DEEP CARE will take appropriate organisational and technical measures to ensure the availability, integrity, authenticity and confidentiality of this data of the information systems, components and processes used in the context of the provision of services. The personnel deployed will be informed of their obligations under data protection law and obliged to comply with the provisions of data protection law.
If DEEP CARE processes the customer's data on behalf of the customer, the parties shall conclude an agreement on order processing in accordance with the relevant data protection laws prior to processing.

§ 11 Final provisions

The place of fulfilment for all deliveries is the registered office of DEEP CARE, unless the contracting parties agree otherwise. DEEP CARE reserves the right to dispatch goods from another location within Germany.
Amendments and additions to the contract or these GTC must be made in writing. This also expressly applies to the cancellation of this written form clause. This formal requirement is also met if the contract or the amendment to the contract is signed and transmitted electronically, including scans of signed documents or digital signatures.
The exclusive place of jurisdiction for all disputes arising from this contract is the registered office of DEEP CARE. However, DEEP CARE is also entitled, at its discretion, to file suit at the customer's registered office.
The law of the Federal Republic of Germany shall apply, excluding the conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods (CISG).
Should a provision in these GTC or any other agreement between the contracting parties be invalid or unenforceable, this shall not affect the remainder of these GTC. The contracting parties shall replace the invalid or unenforceable provision with a provision that comes closest to the meaning and purpose of the invalid or unenforceable provision and the intention of the contracting parties. The same applies to contractual loopholes.

Alternative dispute resolution in accordance with Art. 14 para. 1 ODR-VO and § 36 VSBG:

The European Commission provides a platform for online dispute resolution (OS), which you can access at https://ec.europa.eu/consumers/odr find. We are not obliged or willing to participate in dispute resolution proceedings before a consumer arbitration board.