1. Scope and General Provisions

 

1.1

 

The following General Terms and Conditions apply to all legal transactions of Smile Leaders Europe, Stendaler Str. 58, 40599 Düsseldorf (hereinafter referred to as "Smile Leaders"), with its contractual partner, hereinafter referred to as the "Principal". Deviating general terms and conditions of the principal shall not apply.

 

1.2

 

These General Terms and Conditions shall apply to contracts whose subject matter includes products and services to assist doctors (dentists and orthodontists) working in the dental industry in planning and carrying out treatments for dental and jaw malocclusions.

 

1.3

 

Agreements made between the contracting parties in individual cases (including subsidiary agreements, supplements, and amendments) shall in any case take precedence over these Terms and Conditions.

 

1.4

 

These provisions shall also apply to all future business relations, even if they are not expressly agreed upon again.

 

1.5

 

These General Terms and Conditions apply exclusively and thus to all offers, deliveries, and services of Smile Leaders to commercial customers and clients who are not consumers in the sense of § 13 BGB (German Civil Code).

 

2 Offer and Conclusion of Contract

 

2.1

 

Smile Leaders' offers are subject to change and are non-binding. Offers are made to the best of our knowledge and belief. Smile Leaders assumes no liability for the accuracy of the information provided. Declarations of acceptance and all orders must be confirmed by Smile Leaders in writing or by telex in order to be legally effective.

 

2.2

 

The presentation of individual products in the business premises, the online store, or in brochures or catalogs of Smile Leaders does not constitute a legally binding offer. Rather, these are merely non-binding presentations of the products.

 

2.3

 

Employees, representatives, and vicarious agents of Smile Leaders are not authorized to make verbal subsidiary agreements or to give verbal assurances that go beyond the content of the written contract.

 

3. Scope of Services

 

3.1

 

Treatment planning begins as soon as Smile Leaders has received the required documents from the treating physician or contractual partner. A prior case assessment by our dental experts is possible at any time and free of charge. The case assessment serves as an aid to answer questions regarding treatment duration and to determine the required Smile Leaders products.

 

3.2

 

Prior to any order for the preparation of an individual treatment plan proposal together with the corresponding dental splints, a cost estimate must first be obtained from Smile Leaders. To order a cost estimate, the treating dentist or orthodontist (hereinafter collectively referred to as the "Client") will send the complete documentation to Smile Leaders. An estimate for a treatment plan (laboratory note) can be requested from Smile Leaders either by mail, email, fax, or through the online portal. The aforementioned documentation must also include clinical photographs, impressions (impression trays or plaster casts), and an OPG. However, the Client may also commission Smile Leaders without sending all documents.

 

3.3

 

Events of force majeure, which make the performance considerably more difficult or temporarily impossible, or obstructions due to lack of cooperation by the client shall entitle Smile Leaders to postpone the performance of its service by the duration of the obstruction and a reasonable start-up time. Industrial disputes, pandemics, and similar circumstances shall be deemed equivalent to force majeure, provided that they are unforeseeable and severe. The parties shall notify each other immediately of the occurrence of such circumstances.

 

 

3.4

 

Since 01 June 2017, a planning flat rate of 35 EUR net has been charged for the cost estimate in Germany, which will not be credited to subsequent orders. These costs are not part of international distributor contracts.

 

3.5

 

On the basis of the transmitted data, Smile Leaders shall prepare the cost estimate for a corresponding treatment plan proposal and transmit it to the Ordering Party. This constitutes an offer to conclude a contract for the preparation of an individual treatment plan proposal, including the corresponding dental splints. Smile Leaders shall be bound by this offer for a period of 40 days from the date of the cost estimate.

 

3.6

 

The treating dentist can intervene in the treatment planning at any time and comment on and adjust the treatment goals and implementation by means of short descriptions on the portal. Smile Leaders will support the Client in order to grant the best possibility of using Smile Leaders products and services based on the information provided. These treatment planning services are provided in particular through the Portal.

 

3.7

 

Smile Leaders orthodontic treatment appliances are individually manufactured, and only certified materials are used for this purpose.

 

4. Changes to the Order

 

4.1

 

Changes and additions to the order must be made in writing.

 

4.2

 

As long as the changes are not in writing, Smile Leaders shall carry out the order and the consulting services without taking into account the requests for changes.

 

5. Obligations of the Principal to Cooperate

 

5.1

 

The Principal is obligated to support Smile Leaders to the best of its ability in the sense of a trusting cooperation and to create all necessary conditions in its sphere of operation for the proper execution of the order; in particular, the Principal must make available in a timely manner all documents and information that are necessary and significant for the execution of the order. The Client shall inform Smile Leaders without delay of all circumstances that arise in the course of the execution of the project and that may influence the processing.

 

5.2

 

In principle, any dentist/user can make use of Smile Leaders' services and products. Certification is not required; however, Smile Leaders offers a variety of online courses and lectures by experienced Smile Leaders users in order to become certified for Smile Leaders. Smile Leaders offers its products and services exclusively to dentists trained at the time of use.

 

5.3

 

Decisions regarding the assessment, diagnosis, planning, and treatment of patients must be made by the dentist on his or her own and exclusive responsibility and on the basis of comprehensive and complete patient information. The dentist's responsibility for orthodontic treatment expressly extends to the revision, evaluation, modification, and confirmation of the Smile Leaders proposal as part of treatment planning. It is the dentist's sole responsibility to implement Smile Leaders recommendations or to decide whether Smile Leaders products and services are suitable for use with a particular patient, for a particular use, or to achieve a particular result.

 

5.4

 

The user/dentist warrants that he/she is licensed as a dentist at the time of using the Smile Leaders services and products. When treating patients with statutory health insurance, the dentist must also ensure that he/she is licensed to participate in contractual dental care. He/she must observe the professional and contractual dental regulations, in particular those of the chamber law applicable to him/her, the Fifth Social Code, the Federal Mantel Agreements for Dentists, and the Orthodontics Guideline of the Joint Federal Committee.

 

6. Remuneration

 

6.1

 

The prices stated in the price lists of Smile Leaders or other communications are non-binding. Only the prices stated in the cost estimate and in the order confirmation from Smile Leaders are authoritative, plus the applicable statutory value-added tax and packaging, postage, and freight costs, if applicable.

 

6.2

 

Additional deliveries and services will be charged separately. With regard to packaging, postage, and freight costs, Smile Leaders is entitled to choose the most favorable delivery method

 

 for the Ordering Party.

 

6.3

 

An invoice issued by Smile Leaders is due for payment within 14 days of the invoice date without deduction of any discount.

 

6.4

 

Smile Leaders accepts cash and bank transfer as payment options. For first-time customers, Smile Leaders may limit the accepted payment options before accepting the order. Smile Leaders does not accept payments from patients.

 

6.5

 

Smile Leaders is entitled to first offset payments made by the Client against the Client's older debts, and will inform the Client of the nature of the offsets made. If costs and interest have already been incurred, Smile Leaders is entitled to offset the payment first against the costs, then against the interest, and finally against the main service. A payment is only considered to have been made when Smile Leaders can dispose of the amount. Offsetting and the assertion of rights of retention are only permissible if the counterclaim of the Principal is undisputed or has been legally established.

 

7. Delivery and Performance Time

 

7.1

 

The shipment of the cost estimate will take place within 3-5 business days from the receipt of the order confirmation (laboratory note) and the complete patient data and dental impressions unless Smile Leaders indicates other delivery times in individual cases. The shipment of the treatment proposal, including the dental splints individually manufactured on this basis, will take place within 10-12 working days, calculated from the conclusion and confirmation of the contract in this regard (by email, fax, or on the portal), unless Smile Leaders indicates other delivery times in individual cases.

 

7.2

 

If a treatment period of more than 4 months is recommended in the treatment plan proposal, the aforementioned delivery period may only refer to those dental splints whose use is recommended for the first treatment phase. Further deliveries can be made only after Smile Leaders has received the patient's current dental impressions reflecting the course of treatment.

 

7.3

 

The delivery of Smile Leaders products shall be made free carrier shipping point Düsseldorf at the expense and risk of the Customer using the most favorable shipping route at Smile Leaders' discretion. In case of special requests of the Customer, the additional costs will be charged separately.

 

7.4

 

Delivery dates or deadlines are only binding if they are expressly marked as binding in writing in the order confirmation.

 

7.5

 

The risk of accidental loss and accidental deterioration shall pass to the Customer when the consignment is handed over to the person or company carrying out the transport. If the shipment is delayed at the request of the Customer, the risk of accidental loss and accidental deterioration shall pass to the Customer upon Smile Leaders' notification that the goods are ready for shipment.

 

8. Warranty and Liability

 

8.1

 

The Purchaser shall inspect the goods received immediately upon receipt, insofar as this is possible in the ordinary course of business, and, if a defect is found, shall notify Smile Leaders immediately, at the latest within five working days of receipt. If the Client fails to make such notification, the goods shall be deemed to have been approved unless the defect was not recognizable during the inspection. If such a defect is discovered later, the notification must be made immediately after discovery; otherwise, the goods shall be deemed to have been approved also in view of this defect. In all other respects, § 377 of the German Commercial Code (HGB) shall apply. The timely dispatch of the notification shall be sufficient to preserve the rights of the customer. The period for asserting claims for defects shall be one year from delivery of the goods.

 

8.2

 

The limitation period for claims and rights due to defects in the treatment plan proposal or the dental splints - regardless of the legal reason - is one year. This limitation period also applies to all claims for damages against Smile Leaders related to the defect - regardless of the legal basis of the claim.

 

However, the one-year limitation period shall apply with the following provisos:

 

a) The limitation period does not apply in the event of intent or fraudulent concealment of a defect or if Smile Leaders has assumed a guarantee for the quality of the delivery item.

 

b) The limitation period for claims for damages also does not apply in the event of culpable injury to life, limb, or health; in the event of intentional or grossly negligent breach of duty; in the event of promises of guarantee, if agreed; in the event of culpable breach of essential contractual obligations not consisting of the delivery of a defective item; insofar as the scope of application of the Product Liability Act is opened.

 

c) The one-year limitation period shall also apply to the reimbursement of futile expenses. The limitation period for all claims shall commence upon delivery. Unless expressly provided otherwise, the statutory provisions on the commencement of the limitation period, suspension of the running of the limitation period, suspension, and recommencement of limitation periods shall remain unaffected. The above provisions of this clause shall apply mutatis mutandis to claims for damages that are not related to a defect. The above provisions do not imply a change in the burden of proof to the detriment of the Customer.

 

8.3

 

If, in the event of a defect, damages are claimed in lieu of performance and the item is to be repaired, the repair shall be deemed to have failed at the earliest after the second unsuccessful attempt. The right to withdraw from the contract or to reduce the purchase price shall only apply if the defective goods are not replaced within 4 weeks after proper notification of the defectiveness.

 

8.4

 

Smile Leaders shall be liable in cases of intent or gross negligence in accordance with the statutory provisions. Otherwise, Smile Leaders shall only be liable under the Product Liability Act, for injury to life, limb, or health or for culpable breach of material contractual obligations, e.g., in the event of fraudulent concealment of a defect or warranty promises, insofar as these have been agreed. However, the claim for damages for the violation of essential contractual obligations shall be limited to the foreseeable damage typical for the contract, the occurrence of which must typically be expected.

 

8.5

 

Even in cases of gross negligence, Smile Leaders' liability is limited to the foreseeable damage typical for this type of contract. Claims for loss of profit, saved expenses, claims for damages by third parties, as well as other indirect and consequential damages (compensation) cannot be demanded. A change of the burden of proof to the disadvantage of the Customer is not connected with the understanding regulations.

 

8.6

 

Insofar as the liability of Smile Leaders is excluded or limited, this also applies to employees, representatives, and vicarious agents of Smile Leaders.

 

9. Data Protection

 

9.1

 

In the portal of Smile Leaders, personal data and sensitive information of customers, patients (former, potential, and current) and physicians, if you have successfully registered via a customer account on www.smileleadersportal.com, are collected and stored.

 

The transfer and processing of personal and health-related data to or by Smile Leaders Europe GmbH, as well as the storage of such data by a third party on behalf of Smile Leaders, requires the effective consent of the patients concerned. This consent must be given to Smile Leaders prior to confirmation of the treatment plan. This consent is given by confirming the consent to data collection and data processing in the portal. In this regard, Smile Leaders refers in detail to the Privacy Policy of Smile Leaders Europe GmbH, which is available at the following link https://www.smileleaders-europe.com/data-privacy :

 

9.2

 

Smile Leaders assures that the personal data of the client will not be passed on to third parties outside our group of

 

 companies unless Smile Leaders is legally obliged to do so or the client has expressly consented to this in advance.

 

Any disclosure of personal data within the Smile Leaders group of companies is justified by the fact that Smile Leaders has a legitimate interest in disclosing the data for administrative purposes within the group of companies and that your rights and interests in the protection of your personal data within the meaning of Art. 6 Para. 1 lit f) DSGVO are not overridden.

 

10. Retention

 

10.1

 

Documents sent to Smile Leaders become the property of Smile Leaders. Smile Leaders is not obligated to return these documents to the Principal/Dentist. The Principal/Dentist is obligated to keep multiple copies of the documents in accordance with his or her professional and, if applicable, contractual dental documentation obligations and to retain them for the legally prescribed periods. Smile Leaders assumes no liability for the loss of documents and data due to transmission and processing. In this case, the Client/Dentist is obligated to transmit the corresponding documents and data to Smile Leaders once again, insofar as they are necessary for the proper processing of the order.

 

10.2

 

Physical documents such as impressions and study models will be kept by Smile Leaders as long as necessary for the proper fulfillment of the contractual relationship. They will subsequently be destroyed or archived at Smile Leaders' discretion. Smile Leaders may use records, including but not limited to, impressions, x-rays, photographs, films, and study models, etc., internally for orthodontic/dental consultations, continuing education, and research purposes, publications in professional journals, or for professional collateral materials, provided that an express written statement of consent from the Principal/Dentist is provided for this purpose or the relevant data and records are anonymized.

 

11. Written Form, Place of Jurisdiction, Applicable Law

 

11.1

 

The Customer shall not be entitled to assign its claims under the contract.

 

11.2

 

Offsetting or the assertion of a right of retention by the Customer shall only be permissible with or in the case of recognized counterclaims or counterclaims that have become res judicata.

 

11.3

 

Amendments and supplements to these terms and conditions or the contract must be made in writing and must be expressly marked as such.

 

11.4

 

The law of the Federal Republic of Germany shall apply. The place of performance and jurisdiction is Düsseldorf.