General Terms and Conditions of Sale and Delivery of novacare® gmbh
1. General
1.1. Our terms and conditions of sale apply exclusively, including for future transactions with the customer. Any acknowledgement of deviating terms and conditions of our business partners can only be made expressly and in writing.
1.2. To the extent that the terms and conditions of our foreign suppliers, which we will provide upon request, deviate from our General Terms and Conditions, these shall also apply to the customer.
1.3. Our General Terms and Conditions of Service (GTC-Service) apply to service, maintenance and repair services, without prejudice to the following provisions.
2. Offers, prices, payment terms
2.1. All offers are subject to change until the order is confirmed. Only the written content of the order confirmation applies; any verbal promises made during sales negotiations that deviate from this are irrelevant, as are any cost estimates that deviate from this. If there are indications that our claim is at risk due to our customer's inability to pay, we can refuse to provide our service until the customer has fulfilled his obligation to pay (e.g. advance payment). This also applies if the indications that gave rise to the concern were already known to us when the contract was concluded.
2.2. Illustrations and descriptions of the delivered goods in brochures, price lists, catalogues, etc. are not binding for the execution. This also applies to deviations in colour, surface gloss and cover material due to different material failures or technical reasons. Material-related or otherwise unavoidable tolerances are also possible. Deviations in the technical execution remain reserved.
2.3. Designs, plans and drawings remain our property and may not be reproduced or made available to third parties without our consent. If the order is not placed, they must be returned to us on request.
2.4. Our prices are based on the current price list and are in EURO plus the applicable VAT. Deliveries for the various product groups are made under the following conditions:
For all items in the range with a girth of up to 3 m for deliveries to Austria or 3.60 m for deliveries within Germany and a maximum weight of 31.5 kg, the delivery conditions listed in the current price list apply.
Deliveries with larger girths or of furnishings, e.g. therapy couches, Pilates equipment, training equipment are always made ex works. All freight costs such as cartage, area freight, delivery charges, etc. are to be borne by the recipient unless otherwise agreed. The choice of the cheapest shipping method is at our discretion.
2.5. Packaging resulting from shipping will only be taken back if the customer returns the packaging to us carriage paid.
2.6. The customer is only entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognised by us. In addition, the customer is only entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
3. Freight, packaging, transfer of risk
3.1. The risk shall pass to the customer upon handover to the forwarding agent or carrier, but at the latest upon leaving the factory or distribution warehouse.
3.2. Transport insurance will only be taken out on the instructions and at the expense of the customer.
3.3. The purchaser is responsible for securing and enforcing claims arising from transport damage. For this purpose, claims for compensation against the carrier are assigned to the purchaser, who accepts this assignment.
3.4. Paragraphs 3.1 to 3.3 only apply if the purchase is not a consumer goods purchase within the meaning of Sections 474 et seq. of the German Civil Code (BGB).
3.5. Furniture (e.g. therapy couches, Pilates equipment, training equipment) will be delivered free curbside. The customer must provide sufficient assistants at his own expense to unload the furniture and bring it into the practice rooms.
3.6. We are entitled to carry out the delivery in partial quantities and to invoice them. The customer may not reject partial deliveries. Any difficulties and delays in delivery resulting from the customer's sphere of influence and the resulting additional costs shall be borne by the customer, even if freight-free delivery was otherwise agreed.
3.7. Unless otherwise agreed, the installation, commissioning and assembly of delivered devices or components are subject to separate billing based on time and material costs. By the agreed delivery and assembly date, the preliminary work to be carried out on site must have progressed sufficiently so that assembly can be carried out unhindered and without interruption. Any additional work required for structural reasons is generally at the customer's expense. If assembly is made impossible, difficult or delayed through the customer's fault, the customer will bear the additional costs and damages incurred by us as a result. The cables laid on site must correspond to the connection drawings provided. We cannot accept responsibility for structural changes to existing electricity and water installations.
4. Delivery periods, delivery dates and impossibility
4.1. Delivery periods and delivery dates are non-binding unless expressly agreed otherwise in writing. Delivery periods begin on the date of the returned and signed order confirmation. Expressly guaranteed periods and dates only refer to the time of dispatch. They are met when we have reported readiness for dispatch. General terms and conditions of sale and delivery of novacare® gmbh.
4.2. The Purchaser is obliged to call off the quantities purchased under a framework agreement as evenly as possible over the period of the agreement, taking into account a corresponding delivery period of 4-6 weeks.
4.3. In the event of force majeure or other unforeseeable, extraordinary and unavoidable circumstances - e.g. operational disruption, strike, lockout, official intervention, energy supply difficulties, etc., even if these occur with sub-suppliers - if we are prevented from fulfilling our obligation on time, the delivery time shall be extended by the duration of the hindrance. If the delivery or service becomes impossible or unreasonable due to the circumstances mentioned, we are released from the delivery obligation and the customer cannot derive any claims for damages from this.
4.4 Compliance with our delivery obligation requires the timely and proper fulfilment of the customer’s obligations, in particular the agreed payment terms and the non-exceeding of the delivery credit limit granted to him.
4.5. We are liable for delays in performance in cases of intent or gross negligence on our part, our representatives or vicarious agents in accordance with the statutory provisions. In other cases of delays in performance, our liability for damages in addition to performance is limited to 50% of the value of the delivery and for damages instead of performance to 100% of the value of the delivery. Further claims by the customer are excluded - even after expiry of a deadline set for us to perform. The above limitation does not apply to liability for injury to life, body or health. The above provisions do not involve a change in the burden of proof to the detriment of the customer.
4.6. The customer is obliged to accept the delivery and assembly at the agreed acceptance location and date. If the customer defaults on acceptance or violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred by us, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the purchased item passes to the customer at the time at which the customer defaults on acceptance.
4.7. If delivery is impossible, the customer is entitled to claim damages in accordance with the statutory provisions. However, his claim to damages in addition to or instead of performance and to wasted expenditure is limited to 50% of the value of that part of the delivery which cannot be used due to the impossibility. Further claims by the customer due to the impossibility of delivery are excluded. This limitation
does not apply in cases of intent, gross negligence or injury to life, body or health. The purchaser's right to withdraw from the contract remains unaffected. The above provisions do not involve a change in the burden of proof to the detriment of the purchaser.
5. Retention of title
5.1. We retain title to the purchased item until all payments from the business relationship with the customer have been received. If the customer breaches the contract, in particular if he defaults on payment, we are entitled to take back the purchased item. Taking back the purchased item by us does not constitute a withdrawal from the contract unless we have expressly declared this in writing. Seizing the purchased item by us always constitutes a withdrawal from the contract. After taking back the purchased item, we are entitled to sell it. The proceeds from the sale are to be offset against the customer's liabilities - less reasonable disposal costs.
5.2. The purchaser is obliged to treat the purchased item with care and to insure it adequately against damage. The purchaser hereby assigns to us any claims against the insurance company.
5.3. In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can file a lawsuit in accordance with Section 771 of the Code of Civil Procedure. If the third party is not in a position to reimburse us for the legal and extrajudicial costs of a lawsuit in accordance with Section 771 of the Code of Civil Procedure, the customer is liable for the loss incurred by us.
5.4. The customer is entitled to resell the purchased item in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) that arise from the resale against his customers or third parties, regardless of whether the purchased item was resold without or after processing. The customer remains entitled to collect this claim even after the assignment; our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of bankruptcy or composition proceedings has been made or payments have been suspended. If the obligation not to collect is waived, we can demand that the customer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents and inform the debtors of the assignment.
5.5. The processing or transformation of the purchased item by the customer is always carried out for us. If the purchased item is processed with other items that do not belong to us, we acquire joint ownership of the new item in proportion to the value of the purchased item to the other processed items at the time of processing. In all other respects, the same applies to the item created through processing as to the purchased item delivered subject to reservation.
5.6. If the purchased item is inseparably mixed with other items that do not belong to us, we acquire joint ownership of the new item in proportion to the value of the purchased item to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer transfers proportionate joint ownership to us. The customer shall safeguard the resulting sole or joint ownership for us.
5.7. To secure our claim, the customer assigns all claims against third parties, including ancillary rights.
5.8. We undertake to release the securities to which we are entitled at the request of the customer to the extent that the value of our securities exceeds the claims to be secured by more than 20%; the selection of the securities to be released is at our discretion.
6. Warranty
6.1 The warranty is based on the statutory provisions.
6.2. Any warranty is also excluded if goods delivered by us have been processed, handled or modified without our consent or if our instructions for use have not been followed. If seals are damaged, we assume that such improper handling has occurred.
6.3. For medical devices within the meaning of Regulation (EU) 2017/745, the use of which is subject to regular maintenance (MPBetreibV), a guarantee can only be provided if regular maintenance intervals are observed.
6.4 We ourselves do not grant any guarantees to the customer.
6.5. If guarantees are listed in brochures, catalogues or other advertising materials, this is only an indication that the respective manufacturer offers such a guarantee in accordance with its terms and conditions. It is the responsibility of the purchaser to inform themselves independently about the relevant conditions of the respective manufacturer's guarantee.
6.6. Paragraphs 6.2 and 6.3 only apply if the purchase does not involve a consumer goods purchase within the meaning of Section 474 of the German Civil Code (BGB).
7. Liability, Limitation Period
7.1. We are liable in cases of intent or gross negligence on our part, that of our representatives or vicarious agents in accordance with the statutory provisions. Otherwise, we are only liable under the Product Liability Act, for injury to life, body or health, for the culpable violation of essential contractual obligations or insofar as we have fraudulently concealed the defect or have provided a guarantee for the quality of the purchased item.
7.2. The claim for damages for the violation of essential contractual obligations is, however, limited to the damage that is typical for the contract and foreseeable. Liability for damage caused by the purchased item to the purchaser's legal interests (e.g. damage to other items) is completely excluded. This (point 7.2 sentences 1 and 2) does not apply if there is intent or gross negligence or if liability is incurred due to injury to life, body or health or if we have fraudulently concealed the defect or have given a guarantee for the quality of the purchased item.
7.3. The provisions of the above paragraphs 7.1 and 7.2 extend to compensation in addition to performance and compensation instead of performance, regardless of the legal basis, in particular due to defects, the violation of obligations arising from the contractual relationship or from tort. They also apply to the claim for reimbursement of wasted expenditure.
7.4. Liability for delay is governed by point 4.5 of these terms and conditions, liability for impossibility is governed by point 4.7.
7.5. The above provisions do not involve a change in the burden of proof to the detriment of the customer.
7.6 To the extent permitted by law, all claims against us shall expire one year after the claim against us arises.
7.7. If the customer is a consumer within the meaning of Section 13 of the German Civil Code (BGB), liability in accordance with point 7.1 extends to the violation of any contractual obligations. Furthermore, the restrictions set out in sentences 1 and 2 of point 7.2 do not apply.
8. Early maturity and right of withdrawal
8.1 If, after acceptance of the order, we become aware of facts that give rise to reasonable doubts about the customer's ability to pay, we are entitled to demand full payment or appropriate security before delivery or to withdraw from the contract after setting a deadline without success. Bad information provided by a bank, credit agency, a company with which the customer has a business relationship or similar, which, in the opinion of a prudent businessman, is deemed to be proof of a significant deterioration in assets.
8.2 If delivery has already taken place, the invoice amounts in question shall become due for payment immediately, regardless of any agreed terms of payment, and possibly with the return of the acceptances.
9. Place of performance, place of jurisdiction, applicable law
9.1. The place of performance for delivery is the manufacturer's factory or our distribution warehouse. The place of performance for payment is our place of business. This (point 9.1.) does not apply to consumers. 9.2. The place of jurisdiction for merchants, legal entities under public law or special funds under public law is our place of business.
10. Alternative dispute resolution according to Art. 14 para. 1 ODR-VO and § 36 VSBG:
The European Commission provides a platform for online dispute resolution (OS), which you can find at http://ec.europa.eu/consumers/odr/. Consumers have the option of contacting [name, address, website of the arbitration board] to resolve their disputes. We are obliged to participate in dispute resolution proceedings before this body. We will participate in such proceedings. The General Consumer Arbitration Board of the Center for Arbitration eV, Straßburger Straße 8, 77694 Kehl am Rhein, https://www.universalschlichtungsstelle.de/ is responsible.
as of 11/2021
Supplementary General Terms and Conditions for Installment Purchase by easyCredit
1. Scope and general terms of use
The following supplementary general terms and conditions (hereinafter referred to as T&Cs) apply between you and the dealer for all contracts concluded with the dealer in which the installment purchase by easyCredit (hereinafter referred to as installment purchase) is used. In the event of a conflict, the supplementary T&Cs take precedence over any contrary general terms and conditions of the dealer. Installment purchase is only possible for customers who are consumers in accordance with Section 13 of the German Civil Code (BGB) and who are at least 18 years old.
2. Installment purchase
For your purchase, the retailer, with the support of TeamBank AG Nürnberg, Beuthener Straße 25, 90471 Nürnberg (hereinafter TeamBank AG), offers you the option of purchasing on installments as an additional payment option. The retailer reserves the right to check your creditworthiness. For further details, please refer to the data protection notice for purchasing on installments in the order process. If it is not possible to use the option due to insufficient creditworthiness or if the retailer's sales limit has been reached, the retailer reserves the right to offer you an alternative payment option. The contract for purchasing on installments is concluded between you and the retailer. There is no payout; instead, with the purchase on installments, you decide to pay off the purchase price in monthly installments. Monthly installments are to be paid over a fixed term, whereby the final installment may differ from the previous installment amounts. Ownership of the goods remains reserved until full payment has been made. The claims arising from the use of the option are assigned by the retailer to TeamBank AG as part of an ongoing factoring contract. Payments can only be made to TeamBank AG with a debt-discharging effect. Apart from the general trade supervision, the dealer is not subject to any supervision by a supervisory authority. You can send complaints to the dealer by letter or email.
3. Installment payment via SEPA direct debit
By issuing the SEPA direct debit mandate with the installment purchase, you authorize TeamBank AG to collect the payments to be made through the installment purchase from your current account specified in the order process at the credit institution specified there by means of a SEPA direct debit. The collection will take place on the date specified in the pre-notification/pre-announcement at the earliest. A later, timely collection can take place. If the purchase price is reduced between the pre-notification and the due date (e.g. through credits), the amount debited may differ from the amount stated in the pre-notification. You must ensure that your current account has sufficient funds at the time of the due date. Your credit institution is not obliged to honour the direct debit if there are insufficient funds in the current account. If there are insufficient funds in the current account due to an unauthorized
If a direct debit is returned due to an objection by the account holder or due to the closure of the current account, you will be in default even without a separate reminder, unless the direct debit is the result of a circumstance for which you are not responsible. TeamBank AG can claim costs charged by your bank to TeamBank AG for a direct debit returned by you as damages and must be reimbursed by you. You reserve the right to provide evidence of lesser or no damage to TeamBank AG. If you are in default, TeamBank AG is entitled to charge a reasonable reminder fee or default interest of five percentage points above the respective base interest rate of the European Central Bank for each reminder. Due to the high costs associated with a direct debit returned, we ask you not to object to the SEPA direct debit in the event of a withdrawal from the purchase contract, a return or a complaint. In these cases, the payment will be reversed in coordination with the merchant by transferring the corresponding amount back or by issuing a credit note.