1 General Terms and Conditions
General Terms and Conditions
Section 1 Scope
(1) The following terms and conditions are an integral part of each purchase contract between CELLGYM Technologies GmbH | Knesebeckstraße 68/69 | D-10623 Berlin, Germany, represented by managing director Dr. Egor Egorov at the same address (hereafter, the Seller) and the other party to the contract (hereafter, the Purchaser).
(2) The Seller performs its services exclusively on the basis of these General Terms and Conditions. They also apply to all future deliveries, services or offers to the Purchaser, even if they are not separately agreed again. Deviations from these General Terms and Conditions are only permissible in exceptional cases and require separate agreement.
Section 2 Offer & Conclusion of Contract
(1) Orders are made on the basis of Seller’s lists of products and offers and the prices valid at the time of the order. All offers by the Seller are subject to confirmation and non-binding, unless they have been expressly marked as binding or contain a specific deadline for acceptance. Orders or contracts are accepted when the Seller sends an order confirmation or informs the Purchaser that the goods have been dispatched.
(2) A contract for certain devices, i.e. IHHT/IHHO, may only be concluded with health professionals, health providers or allied health professionals. For this purpose, the Purchaser must provide the Seller with written evidence of belonging to the applicable professional group by submitting a notarised copy of the license to practice certificate or applicable evidence of formal qualifications. For contracts with legal persons or partnerships, the managing director must satisfy the above conditions or provide evidence that the company employs a person who is suitably qualified and that the qualified person provides or continuously monitors therapy with a Cellgym device.
For all other products, a contract may be concluded with any person.
(3) The Purchaser of the devices listed in section 2 paragraph 2 undertakes to participate in training in how to use and operate the purchased product before using the applicable device. If the Purchaser acts in breach of this obligation, the Purchaser shall indemnify the Seller, on first request, against all claims by third parties that are based on such a breach of obligation.
(4) The documents included with the offer, such as illustrations, drawings, weights and dimensions, are only approximate, unless they have been expressly marked as binding in accordance with section 2 of these General Terms and Conditions. Modifications are unreasonable and the Purchaser is entitled not to accept them if they are more extensive than is customary. Performance values are stated as average values. They are not guaranteed quality characteristics, but descriptions or identifications of the goods or service. Customary deviations and deviations that are the result of statutory requirements or that represent technical improvements, as well as the replacement of components with parts of equal value, are permitted, as long as they do not impair usability for the purpose foreseen in the contract.
(5) If order or contract forms are used, they shall form an integral part of the contract.
Section 3 Delivery terms
(1) Unless agreed otherwise, delivery shall take place after receipt of payment on a date to be agreed between the Seller and Purchaser. The Seller’s order confirmation is definitive with regard to the exact dates and arrangements. All delivery obligations are subject to correct and timely prior delivery by the manufacturer to the Seller. Partial deliveries are permissible, unless they are unreasonable for the Purchaser.
(2) Delivery periods and deadlines are only bindingly agreed if they have been expressly marked as binding by the Seller.
(3) Force majeure, supply difficulties, political disturbances, disruptions at transport companies, operating and other disruptions at the Seller or its suppliers and the consequences of such conditions shall exempt the Seller from the obligation to deliver for the duration of the disruption and to the extent of its impact. Such events shall entitle the Seller to withdraw partially or in full from the contract without the Purchaser acquiring a right to damages. If a later delivery is not reasonable for the Purchaser, the Purchaser is also entitled to withdraw from the contract.
(4) If the Seller is in default with a delivery or if the Seller cannot perform a delivery or service, for whatever reason, the Seller’s liability for damages shall be limited in accordance with section 12 of these General Terms and Conditions.
(5) The Seller is not obliged to provide documents or certificates that have not been expressly promised. This applies in particular to documents that are necessary for export or customs clearance. Such documents are to be provided exclusively by the Purchaser.
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Section 4 Purchaser’s obligations on purchase of a device/collection
(1) The Purchaser is obliged to allow the goods purchased in accordance with section 2 paragraphs 2 and 3 only to be operated by persons who have been instructed in how to operate the device by the Seller, either on delivery of the device or at a later time.
(2) The Purchaser is obliged to observe the provisions in the manual delivered to the Purchaser as an integral part of the contract and in the technical specifications, whereby both the manual and the technical specifications are incorporated into this purchase contract as integral parts of the contract that impose obligations on the Purchaser with regard to proper handling of the purchased goods.
Section 5 Prices and payment
(1) The Purchaser shall pay the invoice amount in advance, unless otherwise agreed in writing. If payment on account has been agreed, invoice amounts must be paid within ten days without deduction, unless otherwise agreed in writing. Receipt by the Seller is definitive for the date of payment. Payment obligations shall be considered met only when the Seller can finally dispose of the value of its claims. All payments must be made free of charge. Payment instructions, cheques and bills of exchange shall only be accepted following separate written agreement and only as an undertaking to pay, taking into account all collection and discount charges.
(2) The prices specified by the Seller are ex warehouse without discounts or rebates, plus VAT. For export deliveries, customs tariffs, fees and other public charges must be paid by the Purchaser.
(3) All shipping costs, in particular packaging, transport costs, transport insurance and notifications, shall be at the Purchaser’s expense, unless separately agreed otherwise.
(4) The Seller is only bound to the agreed price for the agreed delivery period, but for not less than 4 months in any case. If delivery is to take place more than 4 months after conclusion of contract, the Seller is entitled to request negotiation to adjust the price, in the event of price increases by its suppliers or unexpected increases in wage and transport costs. The Seller may demand compensation from the Purchaser for the additional expenditure incurred by the Seller as a result of delay in acceptance by the Purchaser.
(5) In the event of default of payment, the Purchaser is obliged to pay the Seller default interest of 9 percentage points above the base interest rate.
(6) Irrespective of the minimum damages for default specified in (5), the Seller is entitled to provide evidence of greater damage caused by default or other damage.
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(7) The Purchaser is only entitled to offset or exercise a right of retention if the counterclaims are undisputed or have been legally established.
Furthermore, the Purchaser may exercise a right of retention to the extent that a counterclaim is based on the same contractual relationship.
(8) If a written agreement has been made in accordance with section 5 paragraph 1, the Seller shall be entitled to complete or to perform outstanding deliveries or services only against prepayment or provision of security, if circumstances become known to the Seller after the conclusion of the contract that significantly reduce the Purchaser’s creditworthiness and as a result of which there is a risk that the Purchaser will not pay the Seller’s outstanding claims under the applicable contractual relationship (including under any other individual contracts to which the same framework contract applies).
(9) Granted terms of payment shall not apply and outstanding claims shall become payable immediately if an application is made to initiate insolvency proceedings over the assets of the Purchaser or such an application is rejected for lack of assets. The same shall apply if the Purchaser has made incorrect statements regarding its creditworthiness or, without providing a justifiable reason, does not meet essential obligations owed to the Seller.
(10) The Purchaser declares that all the requirements for VAT treatment of deliveries outside Germany are met.
Section 6 Reservation of title
(1) The purchased goods shall remain the property of the Seller until payment in full. If performance consists of divisible parts, the reservation of title shall only expire when all claims related to the applicable contract have been met by the Purchaser.
(2) Where the purchased goods subject to the resolution of title are devices, the Purchaser is not entitled to pledge, assign as security or dispose in any other way of the purchased goods in such a way as to jeopardise the Seller’s ownership. For all other products purchased from the Seller, the Purchaser hereby assigns to the Seller the claim from resale of the products subject to retention; the Seller hereby accepts such assignment. The Purchaser is revocably authorised to collect the claims assigned to the Seller on behalf of the Seller in its own name on trust. The Seller may revoke such authorisation or the entitlement to resell the goods if the Purchaser is in default with essential obligations, such as the obligation of payment, vis-à-vis the Seller; in the event of revocation, the Seller shall be entitled to collect the claim itself.
(3) In the event of seizure or other interference by third parties with the supplied goods subject to retention of title, the Purchaser must inform the Seller immediately in writing and provide the documents necessary for an intervention (third-party proceedings instituted to prevent the execution of a judgment Section 771 ZPO).
5 General Terms and Conditions This also applies to impairments of any other kind. Notwithstanding, the Purchaser must notify third parties in advance of the existing rights in the products. If the third party is not in a position to reimburse costs, the Purchaser shall be liable for the court and out-of-court costs of the legal proceedings.
(4) The Seller undertakes to release the securities that have been assigned to the Seller, at the Purchaser’s request, to the extent that the realisable value of its securities exceeds the claims to be secured by more than 10%.
Section 7 Seller’s Property Rights
The Seller retains rights of ownership and copyrights in all the offers, training documents/content and cost estimates that it provides and all the drawings, illustrations, texts, calculations, brochures, catalogues and other documents made available to the Purchaser. The Purchaser is not entitled to reproduce, distribute, edit, make publicly available or otherwise use vis-à-vis third parties without the express written consent of the Seller. The Purchaser must return all such documents and resources to the Seller at the Seller’s request and destroy any copies that have been made if they are no longer required by the Purchaser in the ordinary course of its business or if negotiations do not result in conclusion of a contract. The following applies to the content of and documents for training: The training participant is only entitled to use such content for his or her own purposes if a purchase contract is concluded with the Seller.
Section 8 Transfer of risk
(1) The risk of destruction, deterioration and shipping shall be transferred to the Purchaser as soon as the purchased goods leave the Seller’s business or warehouse premises or such premises of a third party instructed by the Seller. If the purchased goods are shipped, risk shall transfer to the Purchaser on delivery of the purchased goods (for which the start of the loading process is definitive) to the forwarding agent; this shall also apply to deliveries carriage free. If dispatch of the purchased goods is delayed for a reason with a cause for which the Purchaser is responsible, the risk shall transfer to the Purchaser as soon as the goods are ready to be dispatched and notice has been given of readiness to dispatch. The same shall apply if the Seller exercises a right of retention.
(2) Storage costs following transfer of risk shall be borne by the Purchaser. If the goods are stored by the Seller, the storage costs are 0.20% of the invoice amount of the delivery items to be stored, per week or part thereof. The Seller shall be entitled to claim and provide evidence of higher storage costs. The Purchaser shall be similarly entitled to provide evidence of lower storage costs.
(3) The consignment shall only be insured by the Seller against theft, breakage, damage during transport, fire and water damage or other insurable risks at the Purchaser’s express request.
6 General Terms and Conditions
Section 9 Guarantee & material defects
(1) The Purchaser must inspect received purchased goods immediately after arrival for quantity, quality and guaranteed characteristics and must give notice immediately of obvious defects. If the contract for both parties is a commercial transaction, Section 377 HGB applies, provided that written notice is given of obvious defects to the Seller within 10 days.
(2) All parts that are found to be unusable or for which use is not insignificantly impaired as a result of a circumstance prevailing prior to transfer of risk – in particular as a result of faulty design, defective materials or poor workmanship – must be repaired or redelivered free of charge. The Seller shall be entitled to choose repair or redelivery in this case. Replaced parts shall become the Seller’s property. If the purchased goods are replaced entirely in order to rectify the defect, the Seller shall have a claim against the Purchaser for unlimited compensation for use. The compensation for use shall be based on the average lease rental charges for the goods that would have been charged during the period of use.
(3) The Purchaser’s right to assert claims arising from defects shall become time-barred for new purchased goods in 12 months from the date of transfer of risk. In the case of used purchased goods, the Purchaser shall only have claims for defects if expressly agreed in writing with the Seller.
(4) No liability is accepted for damage that has occurred for the following reasons: Unsuitable or inappropriate use, e.g. as a result of non-compliance with the specifications in the user manual, use by untrained personnel, incorrect assembly or commissioning by the Purchaser or a third party, neglected or inadequate maintenance, normal wear (in particular of wearing parts), incorrect or negligent handling, unsuitable operating equipment, replacement materials, defective construction work, unsuitable foundations, or chemical, electronic or electrical influences, as long as they are not the fault of the Seller.
(5) In the event of rectification of a defect, the Purchaser must set a reasonable deadline for the Seller to perform the necessary work. the Seller shall only have the right to instruct a third party to rectify the defect and to demand compensation from the Purchaser for the necessary costs in urgent cases where there is a risk of jeopardising operational safety and in order to avoid disproportionately greater damage, in which case the Purchaser must be informed immediately, or if the Purchaser is in default with rectification of the defect.
(6) Claims for defects shall become time-barred in 12 months for replacements and repairs.
7 General Terms and Conditions
(7) If the Purchaser or a third party modifies or repairs the goods incorrectly without the prior consent of the Seller, the Seller shall not be liable for any consequences as a result.
(8) If rectification or replacement delivery to be performed by the Seller fails despite three attempts, the Purchaser shall be entitled to withdraw from the contract (withdrawal) or to demand applicable reduction of the payment (reduction).
Section 10 Resale
(1) The purchased goods supplied by the Seller are branded goods that may only be sold in unaltered and intact original containers. Single items in a package must not be sold separately.
(2) Furthermore, devices may only be resold to purchasers who meet the personal requirements according to section 2 (2) and (3).
Section 11 Maintenance contract
The maintenance of products sold by Cellgym Technologies GmbH is regulated in a separate document.
Section 12 Exclusion of liability
(1) For damage other than injury to life, body and health, the Seller shall only be liable if such damage is the result of intent or gross negligence or the culpable breach of an essential contractual obligation (e.g. delivery and transfer of the purchased goods) by the Seller or one of its agents. This shall also apply to damage that arises from breach of obligations during contract negotiations as well as unlawful acts. Any greater liability to pay damages is excluded.
(2) Liability other than for injury to life, body and health or for intent or gross negligence of the Seller is also limited to damage that was typically foreseeable on conclusion of contract and the amount is further limited to the average typical contractual damages. This also applies to indirect and consequential damage. Indirect and consequential damage that is the result of defects in the delivery item shall also only be recoverable if such damage is typically to be expected when the delivery item is used as intended.
(3) The Seller is not liable for loss of profits, damage to reputation or consequential damage caused by semi-finished products, in the manufacture and/or processing of which the Seller had no role and/or the properties of which the Seller cannot influence.
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(4) In all other cases, damages for delayed or overdue delivery shall be limited to 0.5% for each complete week of delay up to a maximum of 5% and, for other breaches of obligation, to 100% of the value of the part of performance in breach of contract.
(5) The above exclusions and limitations of liability apply to the same extent in favour of the bodies, legal representatives, employees and other vicarious agents of the Seller.
(6) The provisions of Product Liability Act (ProdHaftG) remain unaffected.
Section 13 Applicable law/place of jurisdiction/place of performance
(1) The law of the Federal Republic of Germany with the exclusion of CISG applies.
Mandatory provisions of the state in which the Purchaser is habitually resident remain unaffected.
(2) Place of performance and exclusive place of jurisdiction for delivery and payments, as well as for all disputes that arise between the parties under the contractual relationship, provided that the Purchaser is a trader, is the Seller’s registered address.
Section 14 Final provisions
(1) Modifications or additions to these General Terms and Conditions and to the contract require written form to be valid. This also applies to cancellation of the requirement of written form.
(2) If a provision of these General Terms and Conditions is invalid or incomplete, the contract as a whole shall not thereby be invalid and the invalid provision shall be replaced by a provision that is valid and comes as closely as possible in economic terms to the meaning of the invalid provision. The same applies in case of an omission on conclusion of contract that requires a provision.
General Terms and Conditions – version: 11/2014