Terms

General Terms and Conditions of Supply of miha bodytec GmbH

§ 1 Application

(1) These terms and conditions of sale shall apply exclusively. Differing or contrary terms shall not apply except if expressly agreedupon in writing.
(2) These terms and conditions of sale shall also govern all future transactions between the parties and shall also apply if we performdelivery despite our knowledge of differing or contrary terms.
(3) These terms and conditions of sale shall only apply vis-à-vis merchants, governmental entities, or special governmental estateswithin the meaning of sec. 310 para. 1 BGB (German Civil Code).

 

§ 2 Offer, Acceptance

Insofar as the order constitutes an offer within the meaning of § 145 BGB we are entitled to accept the offer within two weeks.

 

§ 3 Prices, Payment

(1) Prices are ex works Augsburg (EXW, Incoterms 2010), exclusive of the respective statutory VAT and exclusive of costs for packaging,except as otherwise expressly agreed upon.
(2) The purchase price is due and payable net within 10 days from the date of the invoice. From the due date interest for delay of 8percentage points per year above the respective base interest rate p. a. will be charged. If the purchaser is in delay of payment andfails to pay the outstanding purchase price despite a reminder within a period of 15 days following the date of mailing the reminder,miha bodytec GmbH will be entitled to withdraw from the contract and to demand liquidated damages in an amount equal to 25% ofthe order value, provided that the customer has the right to provide evidence of lower damage. We reserve all rights to claim furtherdamages for delay.

 

§ 4 Offset, Retention

The purchaser shall be entitled to offset only insofar as the purchaser’s counterclaim is undisputed or has been finally determined by acourt. The purchaser is entitled to claim rights of retention only to the extent such rights are based on the same transaction.

 

§ 5 Delivery

(1) Delivery is conditioned upon timely and proper performance of all duties of the purchaser. Defences based on non-performanceof the contract are reserved.
(2) In case of default in acceptance or other intentional or negligent breach of duties to cooperate by the purchaser we are entitledto claim any resulting damage including but not limited to additional expenses, if any. Further damages are reserved. In this case,the risk of loss or damage to the products passes to the purchaser at the time of such default in acceptance or other breach of dutyto cooperate.
§ 6 Passing of Risk, Shipment
If the purchaser requests shipment of the products the risk of loss or damage to the products passes to the purchaser upon dispatch.

 

§ 7 Retention of Title

(1) We retain title to the products until receipt of all payments in full. In case of breach of contract by the purchaser including, withoutlimitation, default in payment, we are entitled to take possession of the products.
(2) The purchaser shall handle the products with due care, maintain suitable insurance for the products and, to the extent necessary,service and maintain the products.
(3) As long as the purchase price has not been completely paid, the purchaser shall immediately inform us in writing if the productsbecome subject to rights of third persons or other encumbrances.
(4) The purchaser may resell products subject to the above retention of title only in the course of his regular business. For this case,the purchaser hereby assigns to us all claims arising out of such resale, whether the products delivered by us subject to retention oftitle have been processed or not. Notwithstanding our right to claim direct payment the purchaser shall be entitled to receive thepayment on the assigned claims. To this end, we agree to not demand payment on the assigned claims to the extent the purchasercomplies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings orto any stay of payments.
(5) Insofar as the above securities exceed the secured claim by more than 10%, we are obligated, upon our election, to release suchsecurities upon the purchaser’s request.

 

§ 8 Instructions and Putting into Operation

The products may only be put into operation following instructions, i.e. after training on the proper use and the mode of operation ofthe product has been provided, and in compliance with safety procedures.

 

§ 9 Guarantee, Warranty, Wear and Tear

(1) Precondition for any warranty claim of the purchaser is the purchaser’s full compliance with all requirements regarding inspectionand objection established by sec. 377 HGB (German Commercial Code).
(2) A guarantee is given by miha bodytec GmbH to its direct contract partner that the electrical muscle stimulation device miha bodytecwill not have defects for a period of two years from the date of delivery. This guarantee is given solely to the direct contract partner ofmiha bodytec GmbH and is not attached to the device. As a consequence, the guarantee will expire in the event that the device is resold.In addition, the guarantee will expire if the device is improperly handled or installed or mechanically damaged (as a consequence ofexternally applied force). Upon expiration of the guarantee solely the warranty rights set forth in paragraphs 5-7 below shall apply.
(3) If a guarantee case arises within the guarantee period of 2 years, the defective device will be replaced by miha bodytec GmbH. Anyaccessory parts that were not part of the delivery shall not be covered by this guarantee.
(4) No guarantee is given by miha bodytec GmbH for accessories. The provisions governing the assertion of warranty rights set forthin paragraphs 5-7 below shall apply.
(5) Warranty claims shall be time-barred after 12 months of the passage of risk. Warranty claims may not be asserted in case of improperhandling or installation or mechanic damage (as a consequence of externally applied force)
(6) In case of non-conformity of the products the purchaser is entitled to alternative performance in the form of remedy of the defector delivery of conforming products. If such alternative performance has failed, the purchaser is entitled to reduce the purchase priceor to withdraw from the contract.
(7) The purchaser’s warranty rights shall be excluded for parts that are subject to wear and tear.

 

§ 10 Liability

(1) In case of intent or gross negligence on our part or by our agents or assistants in performance we are liable according to the provisionsof applicable law; the same applies in case of breach of fundamental contract obligations. To the extent the breach of contract isunintentional our liability for damages shall be limited to the typically predictable damage.
(2) Our liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected.
(3) Any liability not expressly provided for above shall be disclaimed.

 

§ 11 Applicable Law, Jurisdiction

(1) All transactions between the parties where these terms and conditions of sale are applicable shall be governed by the laws of theFederal Republic of Germany (excluding the UN Convention on Contracts for the International Sale of Goods).
(2) Place of performance for delivery and alternative performance and exclusive place of jurisdiction for all disputes arising out of or inconnection with this contract shall be Augsburg, Germany.
(3) In the event of any discrepancies between the provisions of the German language version and those of the English languageversion, the provisions set forth in the German language version shall prevail.