Terms and Conditions for Consumers
§ 1 General, Scope
(1) These Terms and Conditions for Online Sales (“Terms”) apply to the purchase or rental agreement between tVNS Technologies and the Purchaser for the purchase or rental of a NEMOS® Therapy Device and related replacement parts (“Products”) through the TVNS Technologies Online shop on www.nemos.t-vns.com (“Online shop”).
(2) Contracting party of the buyer is
tVNS Technologies GmbH
Register Court Fürth – HRB 17082
Authorized Managing Directors: Prof. Dr. med. Armin Bolz and Lars-Oliver Bolz
– hereinafter referred to as either “us” or “tVNS Technologies”.
(3) In individual cases, individual agreements between tVNS Technologies and the buyer (including side agreements, additions and changes) have priority over these terms and conditions. For the content of such agreements, a written contract or our written confirmation shall prevail.
(4) Legally relevant declarations and advertisements which are to be submitted to us by the purchaser after the conclusion of the contract (eg deadlines, notification of defects, declaration of rescission or reduction) must be in writing.
(5) 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 Contractual Obligations
(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) Before submitting the order, the selected product, its total price including taxes and duties, if applicable, the method of calculating the total price, any additional freight, delivery, shipping and other costs as well as any additional services selected, will be displayed again in a window displayed for review. The buyer can then recognize possible input errors and correct them before the binding submission of his order. The contract terms including the terms and conditions can be recalled before conclusion of the contract and stored in a reproducible form. By pressing the button “Place binding order” the buyer gives his order and thus a legally binding offer for the purchase of the selected product subject to these terms and conditions.
(3) By ordering a NEMOS® Therapy Device, the buyer has to send tVNS Technologies, unless otherwise agreed in individual cases, a letter of recommendation from them or, if the buyer is not the same as the user, a recommendation letter from the doctor treating the user or surrender, which indicates that the purchaser or the user is suitable for therapy with the NEMOS® Therapy Device. This is an essential condition for the acceptance of the contract offer of the buyer by tVNS Technologies.
(4) TVNS Technologies will confirm receipt of the order by e-mail (“Order Receipt Confirmation”). However, this order confirmation does not constitute acceptance of the contract offer by tVNS Technologies. tVNS Technologies remains entitled to refuse the contract offer of the buyer even after the order confirmation has been sent.
(5) Unless otherwise stated in the order of the buyer, we are entitled to accept this contract offer within 14 days of its receipt.
(6) The acceptance by us can be declared either in writing (for example by order confirmation) or by delivery of the product to the buyer. Upon acceptance by tVNS Technologies, a binding purchase agreement between tVNS Technologies and the buyer will be made on the basis of these Terms and Conditions.
§ 3 Delivery time and delivery delay
(1) The delivery times and delivery dates are based on the information in the order process. Delivery times are only binding if the buyer has provided us with all the necessary information and documents.
(2) If we can not meet announced delivery times and delivery dates, we inform the buyer before we accept the order and ask the buyer if he wants to maintain his order on the basis of the new delivery times and delivery dates. If the customer confirms this, tVNS Technologies can accept the order according to § 2 (6). If we culpably fail to meet a binding delivery date or fall behind for any other reason, the buyer may rescind the purchase contract after the unsuccessful expiration of a reasonable additional respite. In particular, this does not apply if the buyer has given tVNS Technologies an incorrect delivery address.
§ 4 Delivery
(1) The buyer guarantees that he provides tVNS Technologies with the correct delivery address. Unless otherwise agreed, we are entitled to determine the type of shipment method (in particular transport company, shipping route, packaging). If and to the extent the delivery address provided by the Buyer is inaccurate and tVNS Technologies delivers the product to a new delivery address specified by the Buyer after receiving it back, tVNS Technologies shall be entitled to charge the buyer an administration fee of 25 EUR. The buyer is required to prove that such an expense was not incurred or substantially lower than this lump-sum expense. After 3 unsuccessful attempts by tVNS Technologies to send the product to a delivery address specified by the buyer, tVNS Technologies is entitled to rescind the purchase contract. This does not apply if the failure of the delivery attempts is based on an obstacle within the scope of tVNS Technologies.
(2) The risk of accidental loss and accidental deterioration of the product passes to the buyer upon delivery.
§ 5 Prices and Terms of Payment
(1) The total price to be paid by the buyer, 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 buyer, which he can specify during the ordering process: PayPal or direct debit. For all orders the payment of the total price is due immediately. For rental equipment, the one-time payment is due immediately, the monthly payments are collected each time the first of the month.
(2) Upon expiry of the agreed payment periods and, if necessary, a corresponding reminder, the buyer is 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 claim actually higher damages.
(4) The buyer shall only be entitled to withhold payment if his claim has been legally established, is undisputed or acknowledged by us. The buyer may exercise a right of retention only if his counterclaim is based on the same contract of sale.
(5) If, after the conclusion of the purchase contract, it becomes apparent that our claim to the purchase price is jeopardized by the purchaser’s inability to perform, we shall be entitled to withdraw from the purchase contract in accordance with the statutory provisions for refusal of service and, if applicable, after setting a deadline (§ 321 BGB).
§ 6 Retention of ownership
(1) The product remains our property until full payment of the purchase price.
(2) In the event of breach of contract by the buyer, in particular in the 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 demand the product on the basis of the retention of title and rescission. If the buyer 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 buyer or if such a deadline is dispensable according to the statutory provisions.
§ 7 Warranty and duty of care and cooperation of the buyer
(1) For the rights of the buyer in case of material and legal defects of the product, the statutory provisions apply, unless otherwise stipulated in these terms and conditions.
(2) The purchaser alone decides with his treating physician whether and in what form the NEMOS® therapy device is used for therapy. TVNS Technologies does not make a recommendation, nor does tVNS Technologies guarantee the success of the therapy.
(3) The NEMOS® therapy device is only intended for use in patients whose suitability for therapy by transcutaneous vagus nerve stimulation using the NEMOS® therapy device has been determined by a specialist, even if the buyer does not provide tVNS Technologies with a medical recommendation letter in individual cases. The NEMOS® therapy device may only be passed on to the user and not to third parties. If and insofar as the purchaser passes on the NEMOS® Therapy Device to a user without the aforementioned expert’s statement, the purchaser does this only with its instructions for use and, to prevent the user from any health or other damage, expressly refers to the warning and application instructions contained therein. TVNS Technologies assumes no liability for any damage to health or other property that could have been avoided by following the instructions contained in the instructions for use. This does not apply if and insofar as tVNS Technologies is legally liable due to legal regulations. The buyer also guarantees that the NEMOS® Therapy Device will only be used in accordance with medical prescriptions and in accordance with the instructions in the instructions for use, if the NEMOS® Therapy Device is to be used by a vulnerable third party, such as children by their parents or otherwise vulnerable persons, such as the disabled.
(4) TVNS Technologies does not endorse or warrant that the purchaser or the user is suitable for therapy with the NEMOS® Therapy Device. This is a conclusion the buyer / user must come to together with their physician. The buyer then supplies tVNS Technologies with the corresponding letter of recommendation from the physician, according to § 2 (2) of these terms and conditions with the order. Even if the purchaser’s basic fitness for therapy with the NEMOS® Therapy Device has been determined by a doctor, tVNS Technologies does not guarantee that the therapy’s intended use will be effective. This also applies if the buyer does not provide TVNS Technologies with a medical recommendation letter in individual cases. A warranty claim of the buyer can therefore not be based on the fact that the desired therapeutic success did not occur.
(5) We grant you a two-year warranty on the NEMOS® Therapy Device. For the ear electrode, this warranty is limited to 6 months. If the device or the electrode does not work within this time due to material or design errors, we will repair or replace the device. Improper handling and intervention by persons not authorized by tVNS Technologies will void this warranty.
§ 8 Limitation of Liability
The liability of TVNS Technologies is governed by 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) For slightly negligent breaches of duty, tVNS Technologies shall be liable for damages resulting from the violation of essential contractual obligations limited in amount to the contractually foreseeable damage. TVNS Technologies is not liable for the slightly negligent violation of non-essential contractual obligations. This also applies to the liability of the legal representatives or vicarious agents of tVNS Technologies.
(3) The above limitation of liability according to paragraph (2) shall not apply to culpable injury to life, limb or health or as far as tVNS Technologies has fraudulently concealed a defect or provided a guarantee for the quality of the NEMOS® therapy device.
(4) Mandatory claims of the purchaser under the Medical Products and Product Liability Act remain unaffected.
§ 9 Online 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 offer to participate in an out-of-court dispute resolution.
§ 10 Choice of law
For these terms and conditions and all legal relationships between us and the buyer, the law of the Federal Republic of Germany applies under the exclusion of international sales law, especially the UN sales law. Jurisdiction is Erlangen.
Erlangen, as of 21.10.2018