Terms and Conditions for Institutions
Terms and conditions for institutions
§ 1 General, Scope
(1) These General Terms and Conditions for Online Sales (“Terms and Conditions”) apply to the purchase contract concluded between tVNS Technologies and the doctor, hospital or hospital (uniformly referred to as “doctor”) for the purchase of a NEMOS® Therapy Device and corresponding spare parts (” Products “) via the tVNS Technologies Onlineshop on www.t-vns.com (” Onlineshop “).
(2) The contracting party of the doctor is the
tVNS Technologies GmbH
Commercial Register District Court Fürth – HRB 17082
Registered office: Erlangen
Authorized Managing Directors: Prof. Dr. med. Armin Bolz and Lars-Oliver Bolz
– hereinafter referred to as either “we” or “tVNS Technologies”.
(3) Our terms and conditions apply exclusively. Divergent, conflicting or supplementary general terms and conditions of the doctor only become part of the contract if and insofar as we have expressly consented to their validity. This approval requirement applies in any case, for example, even if we carry out the delivery to him unconditionally with knowledge of the general terms and conditions of the doctor.
(4) In individual cases, individual written agreements between tVNS Technologies and the doctor (including ancillary agreements, additions and changes) take precedence over these GTC. For the content of such agreements, a written contract or our written confirmation shall prevail.
(5) Legally relevant declarations and notifications that are to be submitted to us by the doctor after the conclusion of the contract (eg deadlines, notification of defects, declaration of withdrawal or reduction) must be in writing.
(6) Indications of the validity of statutory provisions are only of clarifying significance. Even without such clarification, the statutory provisions apply, unless they are directly amended or expressly excluded in these Terms and Conditions.
§ 2 Conclusion of contract
(1) Illustrations of the products in our brochures, on our website or in other offer documents are only approximate, unless we have expressly designated the information there as binding.
(2) The ordering of products by the doctor is considered a binding contract offer.
(3) Unless otherwise stated in the order, we are entitled to accept this contract offer within 14 days of its receipt.
(4) The acceptance by us can be declared either in writing (for example by order confirmation) or by delivery of the NEMOS® therapy devices to the doctor.
§ 3 Delivery time and delivery delay
(1) The delivery period is individually agreed or specified by us when accepting the order. If this is not the case, the delivery time is approximately 2 weeks from receipt of the order from the doctor with us.
(2) If we are unable to comply with binding delivery deadlines for reasons for which we are not responsible (unavailability of the service), we will inform the doctor immediately and at the same time notify the expected new delivery deadline. If we culpably fail to meet this deadline or if we are in default for any other reason, the doctor may rescind the respective purchase contract after setting a reasonable additional respite. This does not apply in particular if the doctor has given tVNS Technologies an incorrect delivery address.
(3) The rights of the doctor acc. § 7 of these terms and conditions and our statutory rights, in particular in the case of an exclusion of the obligation to perform (eg due to impossibility or unreasonableness of performance and / or subsequent performance) remain unaffected.
(4) Subject to the provisions of § 8 below, tVNS Technologies shall be liable to the physician in accordance with the statutory provisions if the purchase contract is a fixed transaction or if the physician is entitled due to default in delivery, if tVNS Technologies is responsible, to call aside his interest.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Delivery is ex warehouse to the address indicated by the doctor. The doctor is responsible for providing tVNS Technologies with the correct delivery address. Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging). If and to the extent that the delivery address provided by the doctor is incorrect and tVNS Technologies delivers the products after return to a new address provided by the doctor, tVNS Technologies is entitled to charge the physician an administration fee of 25 EUR. The doctor is entitled to prove such an expense was not incurred or substantially lower than this lump-sum expense. After 3 unsuccessful attempts on the part of tVNS Technologies to send the products to a delivery address specified by the doctor, tVNS Technologies is entitled to resign from the contract of sale. This does not apply if and to the extent that the failure of the delivery attempts is based on an obstacle caused by tVNS Technologies.
(2) The risk of accidental loss and accidental deterioration of the products passes to the doctor at the latest with the handover. In the case of consignment purchase, the risk of accidental loss and accidental deterioration of the product as well as the risk of delay with the delivery of the product are transferred to the carrier, the carrier or the person or institution otherwise responsible for carrying out the consignment.
(3) If the doctor is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the doctor is responsible, we shall be entitled to demand compensation for the resulting damage, including additional expenses such as storage costs. For this, we charge a lump sum of 50 EUR starting with the delivery date or, in the absence of a delivery period, with the notification of readiness for shipment of the products. Proof of higher damages and our statutory claims, in particular compensation for additional expenses, reasonable compensation and termination, remain unaffected. The lump sum is to be credited to more extensive monetary claims. The doctor is allowed to prove that we have suffered little or no damage at all from the administration fee.
§ 5 Prices and Terms of Payment
(1) The total price to be paid by the doctor, including delivery and shipping costs, will be communicated during the ordering process. The prices include statutory VAT.
(2) The following payment methods are available to the doctor, which he can specify during the ordering process: Paypal, credit card (via PayPal) or direct debit. The payment of the total price is due immediately after the conclusion of the purchase contract. At this time, the selected payment method of the buyer will be charged with the total price. When paying by credit card, the total price may be blocked on the credit card at the time the purchase contract is concluded, so that at the time of payment, the required sum is available.
(3) Upon expiry of the payment period specified in the purchase contract form, the doctor will be in default. The purchase price shall be charged at the current statutory default interest rate of 5% above the respective base interest rate of the European Central Bank (ECB) during the default. We reserve the right to prove higher damage.
(4) The doctor is entitled to set-off or retention rights only insofar as his claim is legally established or undisputed, or the doctor asserts claims for defects or counterclaims from the same sales contract. The doctor may exercise a right of retention only if his counterclaim is based on the same contract of sale.
§ 6 Retention of title
(1) We reserve ownership of the products sold until full payment of all our present and future claims under the purchase agreement (secured claims).
(2) The products subject to retention of title may neither be pledged to third parties nor assigned as collateral prior to full payment of the secured claims. The doctor must notify us immediately in writing if and insofar as third parties have access to the products belonging to us.
(3) In case of breach of contract by the doctor, in particular in case of non-payment of the due purchase price, we are entitled to withdraw from the contract in accordance with the statutory provisions and to reclaim the product (s) on the basis of the retention of title and rescission. The request for publication does not at the same time include the explanation of the resignation; we are rather entitled to claim only the products and to reserve the right to resign. If the doctor does not pay the due purchase price, we may only assert these rights if we have unsuccessfully set a reasonable deadline for payment to the doctor or if such a deadline is dispensable according to the statutory provisions.
§ 7 Warranty and duty of care and cooperation of the doctor
(1) The statutory provisions apply for the rights of the doctor in case of material and legal defects (including wrong and short delivery), unless otherwise stated below. The doctor, in relation to his patients to whom he gives a NEMOS® Therapy Device, ensures that he knows the address of the patient and any change of address, or is informed about it so that tVNS Technologies can fulfill its legal obligations to recall the NEMOS® Therapy Device if the pertinent requirements are met.
(2) The physician will further ensure that the patient discusses therapy with the NEMOS® Therapy Device at regular intervals following his prescription. As part of his medical due diligence on the basis of medical indication, he decides with the patient whether and in what form the patient should use the NEMOS® therapy device – possibly deviating from the instructions for use. The doctor will comply with his legal and any professional obligations for education and instruction in the use of the NEMOS® therapy device. TVNS Technologies neither gives a recommendation nor does tVNS Technologies guarantee the success of the therapy.
(3) The NEMOS® therapy device is only intended for use with appropriate medical indication and should therefore not be passed on to a third party who are not patients of the doctor without a medical indication. If and to the extent that this occurs in individual cases, the doctor shall ensure that the NEMOS® therapy device is only passed on with its instructions for use and that the third parties are expressly advised of the warning and application instructions contained therein to avoid any damage to health or other damage. TVNS Technologies assumes no liability for any damage to health or other property which could have been avoided by following the instructions contained in the instructions for use. This does not apply if and to the extent tVNS Technologies is legally liable due to legal regulations. The doctor also ensures that the NEMOS® therapy device is only used in accordance with the medical indication and in accordance with the instructions in the operating instructions if the NEMOS® therapy device is to be used by a vulnerable third party, such as children or otherwise vulnerable persons, such as people with disabilities.
(4) If a NEMOS® Therapy Device is to be used by more than one patient, replacement of the ear electrode by a patient prior to delivery to another patient is mandatory if the transfer to another patient is not under the control of the physician as part of a therapy application he follows. If the NEMOS® therapy device is used by the patient alone or by the doctor or medical staff on the patient under the control of the doctor, the disinfection is sufficient. Should a disclosure be contrary to these regulations, tVNS Technologies assumes no liability for health or other damages, with the exception of the mandatory liability under product liability law. For damages to health or other damages, the doctor is exclusively liable under the relevant conditions. When using the NEMOS® therapy device, the physician will observe the relevant statutory regulations for medical devices.
(5) The basis of our liability for defects is primarily the agreement made on the nature of the NEMOS® therapy device. Agreements on the nature of the NEMOS® therapy device are product descriptions designated as such, which have been left to the physician prior to his order, or have been included in the contract in the same way as these terms and conditions.
(6) Insofar as the condition has not been expressly agreed in this way, it must be judged according to the legal regulation whether or not there is a defect (§ 434 (1) S 2 and 3 BGB). We assume no liability for public statements of third parties, for example, advertising statements that are not from us. If the doctor is a merchant within the confines of the German Commercial Code (HGB), he must inspect the NEMOS® therapy device immediately after delivery, at the latest within one week, and notify any deficiencies (§§ 377, 381 HGB). If there is a defect during the examination or later, tVNS Technologies must be notified immediately in writing. To meet the deadline, the timely dispatch of the notification is sufficient. Irrespective of this obligation to inspect and to give notice of defects, the doctor must notify us in writing of obvious defects (including incorrect delivery) within one day from the date of delivery, in which case the timely dispatch of the notification is also sufficient to meet the deadlines. Failure by the physician to properly inspect and / or report a defect shall exclude liability of tVNS Technologies for any defects not indicated unless tVNS Technologies has fraudulently concealed them.
(7) TVNS Technologies is neither responsible for nor does tVNS Technologies guarantee that a patient is suitable for therapy with the NEMOS® Therapy Device. TVNS Technologies does not warrant that the therapeutic effect of the application will be achieved, nor does tVNS Technologies accept any liability for the patient’s basic suitability for therapy with the NEMOS® therapy device. A warranty claim can not therefore rely on the fact that the desired therapeutic success in one or more patients has not occurred. This is a general use and therapy risk.
(8) If the NEMOS® Therapy Device is defective, the doctor may demand rectification of the defect as a remedy at first (rectification) or delivery of a defect-free device. If the doctor does not explain which of the two rights he chooses, we can set him a reasonable deadline. If the doctor does not make the choice within the deadline, the right to vote passes to us at the end of the period. Our right to refuse supplementary performance under statutory conditions remains unaffected.
(9) We are entitled to make the owed supplementary delivery dependent on the doctor paying the purchase price due. However, the doctor is entitled to retain part of the purchase price that is appropriate in relation to the defect.
(10) The doctor must give us the time and opportunity required for supplementary rectification, in particular to hand over the rejected NEMOS® therapy device for testing purposes. In case of replacement, the doctor has to return the defective NEMOS® therapy device according to the legal regulations.
(11) We bear the expenses necessary for the purpose of testing and supplementary rectification, in particular transport, travel, labor and material costs, if a defect actually exists. However, if the doctor’s request for remedial measures turns out to be unjustified, we may demand compensation for the resulting costs from the doctor.
(12) If the supplementary rectification has failed or if a reasonable period to be set by the physician for the supplementary rectification has expired unsuccessfully or is dispensable in accordance with the statutory provisions, the doctor may withdraw from the purchase contract or reduce the purchase price. In a minor defect, however, there is no right of withdrawal.
(13) Claims for damages or reimbursement of futile expenses may only be asserted by the physician in accordance with § 8 below.
§ 8 Other liability
The liability of tVNS Technologies is subject to the following provisions:
(1) TVNS Technologies shall be liable for damages caused intentionally or grossly negligently by it or its legal representatives or vicarious agents, unlimited in amount.
(2) tVNS Technologies shall also be liable for damages resulting from injury to life, body or health in the event of its own negligent breach of duty or that of its legal representatives or vicarious agents.
(3) In case of negligent breaches of duty, tVNS Technologies shall be liable for damages resulting from the breach of essential contractual obligations, without which the purpose of the contract is not possible, and compliance with which the physician regularly trusts, the amount limited to foreseeable damage in a contract-typical manner. This also applies to the negligent breach of material contractual obligations of the legal representatives, bodies or vicarious agents of tVNS Technologies.
(4) Except in the case of intent and gross negligence, tVNS Technologies is not liable for indirect damages, such as: Additional expenses, lost profits or missed savings.
(5) The foregoing limitations of liability in paragraphs (3) to (4) shall not apply if tVNS Technologies has fraudulently concealed a defect or has assumed a guarantee for the quality of the NEMOS® therapy device.
(6) Claims under the Product Liability Act remain unaffected.
§ 9 Alternative dispute resolution
Alternative dispute resolution pursuant to Art. 14 para. 1 ODR-VO and § 36 VSBG: The European Commission provides a platform for online dispute resolution (OS), which can be found at http://ec.europa.eu/consumers/odr/. We are ready to participate in an out-of-court dispute resolution.
§ 10 Choice of law and jurisdiction
(1) For these terms and conditions and all legal relationships between us and the doctor, the law of the Federal Republic of Germany applies to the exclusion of international sales law, in particular the UN Sales Convention.
(2) The place of jurisdiction for all disputes arising out of or in connection with this contract is, if the doctor is a merchant within the meaning of the HBG, the location of tVNS Technologies. This does not apply if and insofar as a deviating jurisdiction is mandatory.
Erlangen, as of 21.10.2018