General Terms and Conditions of Business and Delivery

§ 1 Scope

The following terms and conditions form part of every purchase contract concluded between CellAir Construction GmbH, Oberer Marktplatz 2, D-73614 Schorndorf, represented by its Managing Director Mr Rainer Goytia (hereinafter: Seller), and the contractual partner (hereinafter: Buyer).
The Seller provides its services exclusively on the basis of these terms and conditions. They also apply to all future deliveries, services or offers made to the contractual partner, even if they are not separately agreed upon again. Deviations from these terms are only permissible in exceptional cases and require a separate agreement.

§ 2 Offer and Conclusion of Contract

Orders are placed on the basis of the Seller's product range and offer lists and the prices valid at the time of the order. All offers made by the Seller are subject to change and non-binding, unless they are expressly marked as binding or contain a specific period for acceptance. Orders are accepted when the Seller sends an order confirmation or notifies the Buyer that the goods have been dispatched.
The conclusion of a contract for devices, i.e. IHHT/IHCT, is only possible with members of the healing professions, the healing trades or the paramedical professions, and with sports scientists, provided that the systems in question are medical devices. For this purpose, the Seller may, prior to the sale, require the Buyer to provide written proof of membership of this professional group by submitting a certified copy of the licence to practise or a corresponding proof of training. In the case of contracts with legal entities or partnerships, the Managing Director must fulfil the aforementioned requirements, or prove that the company employs a correspondingly trained person who carries out or continuously supervises the therapy with a CellAir device. If these requirements are not met, the Seller may grant the Buyer an exemption following internal consultation with its expert team. With regard to all other products, the conclusion of a contract is possible with any party.
The Buyer of the devices mentioned in § 2 paragraph 2 undertakes to take part in the training for the handling and operation of the purchased product. The Seller assures that such training is held at regular intervals. If the Buyer acts contrary to this obligation, the Buyer shall indemnify the Seller on first demand against all third-party claims based on this breach of duty.
The documents belonging to the offer, such as illustrations, drawings, and details of weight and dimensions, are only approximate unless they are expressly designated as binding. Changes are unreasonable and need not be accepted by the Buyer insofar as they go beyond the customary commercial extent. Performance figures are stated as average values. They are not guaranteed characteristics, but descriptions or designations of the delivery or service. Customary commercial deviations and deviations that result from legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.
Insofar as order forms or order confirmations are used, these shall be deemed part of the contract.

§ 3 Delivery Terms

Unless otherwise agreed, delivery shall take place after receipt of payment on a date to be agreed between the Seller and the Buyer. The Seller's order confirmation is authoritative for the exact dates and agreements. All delivery obligations are subject to the correct and timely delivery to the Seller by the manufacturer. Partial deliveries are permissible unless they are unreasonable for the Buyer.
Delivery periods and dates are only binding if they have been expressly designated as such by the Seller.
Events of force majeure, supply difficulties, political entanglements, disruptions at transport companies, operational and other disruptions at the Seller or its suppliers, as well as their consequences, release the Seller from the obligation to deliver for the duration of the disruption and to the extent of its effects. Such events entitle the Seller to withdraw from the contract in whole or in part, without the Buyer having any right to compensation. If a later delivery is unreasonable for the Buyer, the Buyer is likewise entitled to withdraw from the contract.
If the Seller defaults on a delivery or is unable to make a delivery or perform a service, for whatever reason, the Seller's liability for damages is limited in accordance with § 11 of these General Terms and Conditions.
The Seller is not obliged to provide documents or certificates that have not been expressly assured. This applies in particular to documents required for export or customs clearance. The latter documents are to be provided exclusively by the Buyer.

§ 4 Obligations of the Buyer / Inclusion

The Buyer is obliged, in compliance with § 2 paragraphs 2 and 3, to have the purchased item operated only by persons who have been instructed in the operability of the device by the Seller at the time of delivery or at a later date.
The Buyer is obliged to observe the specifications of the manual of the purchased product handed over to him as part of the contract. The manual is deemed to be part of every purchase contract; the Buyer thus assumes the obligations for the proper handling of the purchased item.

§ 5 Prices and Payment

The Buyer shall pay the invoice amount in advance. Where payment on account has been agreed, invoice amounts are to be paid immediately without any deduction, unless otherwise agreed. The receipt by the Seller is decisive for the date of payment. Payment obligations are only deemed fulfilled when the Seller can definitively dispose of the countervalue of the claims. All payments are to be made free of charge. Payment orders, cheques and bills of exchange will only be accepted subject to a special written agreement and only on account of performance, with all collection and discount charges to be borne by the Buyer.
The prices stated by the Seller are understood to be without cash discounts or rebates, ex warehouse, plus the statutory value added tax. In the case of export deliveries, customs duties, fees and other public charges are to be borne by the Buyer.
All shipping costs, in particular packaging, transport costs, transport insurance and delivery, shall be at the expense of the Buyer, unless otherwise agreed.
The Seller is bound to the agreed price only for the agreed delivery time — however, at least 4 months. If delivery is to take place more than 4 months after conclusion of the contract, the Seller is entitled, in the event of price increases on the part of its upstream suppliers or unexpected increases in wage and transport costs, to request negotiations on a new price.
In the event of default in payment, the Buyer is obliged to pay default interest to the Seller at the rate of 6 percentage points above the base lending rate.
Irrespective of the minimum damages due to default mentioned in (5), the Seller reserves the right to prove higher damages due to default as well as other damages.
The Buyer is only entitled to set-off or to assert a right of retention if the counterclaims are undisputed or have been legally established. In addition, the Buyer may exercise a right of retention insofar as a counterclaim is based on the same contractual relationship.
If a written agreement pursuant to § 5 paragraph 1 exists, the Seller is entitled to carry out or provide outstanding deliveries or services only against advance payment or security if, after conclusion of the contract, circumstances become known which are likely to significantly reduce the Buyer's creditworthiness and which jeopardise the payment of the Seller's outstanding claims under the respective contractual relationship.
Granted payment terms lapse and outstanding claims become immediately due and payable if the opening of insolvency proceedings over the assets of the Buyer is applied for or refused for lack of assets. The same applies in the event that the Buyer has provided incorrect information regarding its creditworthiness or fails, without stating a justifying reason, to fulfil material obligations owed to the Seller.
The Buyer warrants that all requirements for the VAT treatment of deliveries outside Germany are met.

§ 6 Retention of Title

The purchased item shall remain the property of the Seller until full payment has been made. If the performance consists of divisible services, the retention of title shall only lapse when all claims arising in connection with this order have been settled by the Buyer.
The Buyer is not entitled to pledge the purchased items under retention of title, insofar as they are devices, to assign them as security or to make any other dispositions that endanger the Seller's ownership. For all other products purchased from the Seller, the Buyer hereby assigns to the Seller the claims arising from the resale of the goods subject to retention of title; the Seller hereby accepts this assignment. The Buyer is revocably authorised to collect the claims assigned to the Seller in trust for the Seller in the Buyer's own name. The Seller may revoke this authorisation as well as the right to resell if the Buyer is in default with material obligations such as payment towards the Seller; in the event of revocation, the Seller is entitled to collect the claim itself.
In the event of seizure or other third-party access to the purchased item delivered under retention of title, the Buyer must notify the Seller in writing without delay and provide the documents necessary for an intervention (third-party action against execution pursuant to § 771 ZPO). This also applies to impairments of any other kind. Irrespective of this, the Buyer must inform third parties in advance of the rights existing in the products. Insofar as the third party cannot reimburse the costs, the Buyer is liable for the judicial and extrajudicial costs of legal action.
The Seller undertakes to release the securities to which it is entitled at the request of the Buyer, insofar as the realisable value of its securities exceeds the claims to be secured by more than 10%.

§ 7 Copyrights of the Seller

The Seller reserves the property rights and copyrights to all offers, training documents/content and cost estimates submitted by it, as well as drawings, illustrations, texts, calculations, brochures, catalogues and other documents made available to the Buyer. The Buyer may not reproduce, distribute, edit, make publicly accessible or otherwise use these documents vis-à-vis third parties without the express written consent of the Seller. At the Seller's request, the Buyer must return the documents and aids to the Seller in full and destroy any copies made, if these are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. With regard to the content and documents of training courses, the following applies: the training participant is only entitled to use these contents for himself if a purchase contract is concluded with the Seller.

§ 8 Passing of Risk

The risk of loss, deterioration and dispatch passes to the Buyer as soon as the purchased item leaves the business or storage premises of the Seller or a third party commissioned by the Seller. In the case of dispatch of the purchased item, the risk passes to the Buyer upon handover of the purchased item to the carrier (whereby the start of the loading process is decisive); this also applies to deliveries carriage paid. If dispatch of the purchased item is delayed for a reason for which the Buyer is responsible, the risk shall pass to the Buyer upon notification of readiness for dispatch. The same applies if the Seller exercises a right of retention.
The Buyer shall bear storage costs after the passing of risk. In the case of storage by the Seller, the storage costs amount to 0.20% of the invoice amount of the items to be stored per commenced week. The Seller is entitled to assert and prove further storage costs. The Buyer is likewise free to prove lower storage costs.
The shipment will only be insured by the Seller against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Buyer and at the Buyer's expense.

§ 9 Warranty, Defects

The Buyer must inspect the received purchased item immediately upon arrival for quantity, condition and warranted characteristics and notify the Seller of any obvious defects without delay. If the contract is a commercial transaction for both parties, § 377 HGB applies with the proviso that recognisable defects must be reported to the Seller in writing within 10 days.
All parts that prove to be unusable or whose usability is significantly impaired as a result of a circumstance prior to the passing of risk — in particular due to faulty design, poor materials or defective workmanship — shall be repaired or replaced free of charge. The Seller has the right to choose in this respect. Replaced parts become the property of the Seller. In the event of replacement of the entire purchased item by way of subsequent performance, the Seller has a claim against the Buyer for unrestricted compensation for use of the returned item. The compensation for use is based on the average rental costs for the item that would have been incurred during the period of use.
The Buyer's right to assert claims for defects in respect of new items shall lapse 12 months from the time of the passing of risk. In the case of used purchased items, the Buyer shall only be entitled to claims for defects if this has been expressly agreed in writing with the Seller.
No warranty is assumed for damage arising from the following reasons: unsuitable or improper use, e.g. through non-observance of the specifications of the user manual, use by untrained personnel, faulty assembly or commissioning by the Buyer or third parties, omitted or inadequate maintenance work, normal wear and tear — in particular of wearing parts —, faulty or negligent handling, unsuitable operating materials, substitute materials, defective construction work, unsuitable building ground, chemical, electronic or electrical influences, unless they are attributable to fault on the part of the Seller.
In the event of remedying defects, the Buyer shall grant the Seller a reasonable period for the necessary work. Only in urgent cases of endangerment of operational safety and to avert disproportionately large damage, whereby the Seller must be informed immediately, or if the Seller is in default with the remedy of the defect, the Buyer has the right to have the defect remedied by third parties and to demand reimbursement of the necessary costs from the Seller.
For replacement parts and repairs, claims for defects lapse after 12 months.
Liability for the consequences arising from any modifications or repair work improperly carried out by the Buyer or third parties without prior approval of the Seller shall be excluded.
If subsequent rectification or replacement delivery to be carried out by the Seller fails despite several attempts, the Buyer may withdraw from the contract (withdrawal) or demand a corresponding reduction of the remuneration (reduction).

§ 10 Resale

The purchased items supplied by the Seller are branded items that may, as a matter of principle, only be sold in unaltered and undamaged original containers. The individual sale of parts of a pack is not permitted.
Furthermore, resale is only permissible to buyers who meet the personal requirements in accordance with § 2 (2) and (3).

§ 11 Limitation of Liability

For damages other than those arising from injury to life, body and health, the Seller is only liable insofar as these are based on intentional or grossly negligent conduct or on a culpable breach of a material contractual obligation (e.g. handover and transfer of ownership of the purchased item) by the Seller or one of its vicarious agents. This also applies to damages resulting from the breach of duties during contract negotiations as well as from the commission of unlawful acts. Any further liability for damages is excluded.
Except in the case of injury to life, body and health or intentional or grossly negligent conduct by the Seller, liability is limited to the damages typically foreseeable at the time of conclusion of the contract and otherwise limited in amount to the contract-typical average damages. This also applies to indirect damages and consequential damages. Indirect damages and consequential damages resulting from defects of the delivered item are furthermore only compensable insofar as such damages are typically to be expected when the delivered item is used for its intended purpose.
Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice does not form part of the contractually agreed scope of services owed by the Seller, this is done free of charge and under exclusion of any liability.
The Seller is not liable for loss of profit and non-material impairments, nor for consequential damages caused by semi-finished products in the manufacture and/or processing of which the Seller was not involved and/or whose properties cannot be influenced by the Seller.
In all other respects, the amount of damages for delayed or non-delivery is limited to 0.5% per full week of delay, up to a maximum of 5%, and for other breaches of duty to 100% of the value of the non-contractual service component.
The above exclusions and limitations of liability apply to the same extent in favour of the Seller's executive bodies, legal representatives, employees and other vicarious agents.
The provisions of the Product Liability Act remain unaffected.

§ 12 Applicable Law / Place of Jurisdiction / Place of Performance

The law of the Federal Republic of Germany shall apply, under exclusion of the UN Convention on Contracts for the International Sale of Goods. Mandatory provisions of the state in which the Buyer has its habitual residence remain unaffected.
The place of performance and exclusive place of jurisdiction for delivery and payments as well as for all disputes arising between the parties from the contractual relationship is the registered office of the Seller.

§ 13 Final Provisions

Amendments or additions to these General Terms and Conditions as well as to the contract must be made in writing. This also applies to the cancellation of the written form requirement.
If any clause of these General Buyer Terms and Conditions is invalid or incomplete, the entire contract shall not be invalid. Rather, the invalid clause shall be replaced by a clause that is valid and comes closest in economic terms to the meaning of the invalid clause. The same shall apply to the closing of any gap requiring regulation.

Version of the General Terms and Conditions: 10/2018