Terms and conditions – Association for Oxyvenation
General Terms and Conditions of the “International Society for Oxyvenation Therapy” association
I. Scope of application
1. The following terms and conditions apply to all contracts concluded between the customer and us for the delivery and, if applicable, Trial rental of goods and equipment. They also apply to all future business relations, even if they are not expressly agreed again. Deviating terms and conditions of the customer which we do not expressly acknowledge do not become part of the contract, even if we do not expressly disagree to them. The following terms and conditions also apply if we execute the customer’s order without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.
2. All agreements made between the customer and us for the execution of concluded contracts are written down in the contracts.
II. Terms of payment
1. Unless agreed otherwise in the contract, the prices stated in the contract apply, plus statutory value added tax and any incurring delivery/provision costs. These will be shown separately in the invoice at the statutory rate on the date of invoicing.
2. A cash discount deduction is only permissible with a special written agreement between us and the customer. The purchase price is due net (without deduction) immediately upon receipt of the invoice by the customer, unless a different payment term results from another order confirmation. A payment is only deemed to have been made if we can dispose of the amount. In the case of payments by check, payment is not deemed to have been made until the check is cashed.
3. If the customer is in default with a payment, the statutory provisions apply.
4. The customer is only entitled to offset, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established, recognized by us or are undisputable. The customer is only entitled to exercise a right of retention if its counterclaim is based on the same contractual relationship.
III. Time of delivery and performance / damages caused by delay
1. Delivery dates or deadlines that have not been expressly agreed as binding are exclusively non-binding information. The delivery time stated by us does not start until all technical questions have been clarified. Likewise, the customer must duly and timely fulfill all obligations incumbent upon him.
2. If the underlying contract is a transaction for delivery by a fixed date within the meaning of Section 286 (1) of the German Civil Code (HGB). 2 No.4 of BGB (German Civil Code) or of § 376 HGB, we are liable in accordance with the statutory provisions. The same applies if, as a result of a delay in delivery for which we are responsible, the customer is entitled to claim that they no longer have an interest in the further performance of the contract. In this case, our liability is limited to the foreseeable, typically occurring damage if the delay in delivery is not due to an intentional breach of contract for which we are responsible, whereas a fault on the part of our representatives or vicarious agents is attributed to us.
3. We are also liable to the customer in case of a delay in delivery in accordance with the statutory provisions if this is based on an intentional or grossly negligent breach of contract for which we are responsible, whereas fault on the part of our representatives or vicarious agents is to be attributed to us. Our liability is limited to the foreseeable, typically occurring damage if the delay in delivery is not due to an intentional breach of contract for which we are responsible.
4. In case a delay in delivery for which we are responsible is based on the culpable breach of a contractual obligation, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer regularly relies and may rely, whereby a fault on the part of our representatives or vicarious agents is attributable to us, we are liable in accordance with the statutory provisions with the proviso that in this case the liability for damages are limited to the foreseeable, typically occurring damage.
5. Otherwise, in case of a delay in delivery for which we are responsible, the customer may claim a lump-sum compensation in the amount of 3% of the delivery value for each full week of delay, but not more than 15% of the delivery value.
6. Any further liability for a delay in delivery for which we are responsible is excluded. The customer’s further statutory claims and rights to which they are entitled in addition to the claim for damages due to a delay in delivery for which we are responsible remains unaffected.
7. We are entitled to make partial deliveries and render partial services at any time, insofar as this is reasonable for the customer.
8. If the customer is in default of acceptance, we are entitled to demand compensation for the resulting damage and any additional expenses. The same applies if the customer culpably violates duties to cooperate. The risk of accidental deterioration and accidental loss passes to the customer upon the occurrence of default in acceptance or debtor’s delay.
IV. Transfer of risk – shipping
1. Loading and shipping are uninsured at the risk of the customer. We will do our best to take into account the wishes and interests of the customer with regard to the mode and route of shipment; any additional costs incurred as a result – even in the case of agreed freight prepaid delivery – are borne by the customer.
2. If the shipment is delayed at the request or through the fault of the customer, we store the goods at the expense and risk of the customer. In this case, the notification of readiness for shipment is equivalent to the shipment.
3. At the request and expense of the customer, we will insure the delivery by transport insurance.
V. Warranty / Liability
1. Claims for defects of the customer only exist if the customer has duly complied with his duties of inspection and notification of defects owed according to § 377 HGB (German Commercial Code).
2. In the event of justified notices of defect, we are obligated to provide subsequent performance, to the exclusion of the customer’s rights to withdraw from the contract or to reduce the purchase price (reduction), unless we are entitled to refuse subsequent performance on the basis of statutory provisions. The customer must grant us a reasonable period of time for subsequent performance. Subsequent performance may be carried out, at the customer’s option, by remedying the defect (subsequent improvement) or by delivery of new goods. In case of rectification of defects, we bear the necessary expenses insofar as these are not increased because the subject matter of the contract is located at a place other than the place of performance. If the subsequent performance has failed, the customer may, at his discretion, demand a reduction of the purchase price or declare their withdrawal from the contract. The rectification of defects is deemed to have failed with the second unsuccessful attempt, unless further attempts to rectify defects are reasonable and acceptable to the customer due to the subject matter of the contract. The customer may only assert claims for damages under the following conditions due to the defect if the subsequent performance has failed. The right of the customer to assert further claims for damages under the following conditions remains unaffected.
3. The customer’s warranty claims arising from a purchase contract expire two years after delivery of the goods to the customer, unless we have fraudulently concealed the defect; in this case, the statutory provisions apply. Our obligations under section VI clause 4 and section VI clause 5 remain unaffected by this.
4. Irrespective of the above and following limitations of liability, we are liable in accordance with the statutory provisions for damage to life, limb and health caused by a negligent or intentional breach of duty by us, our legal representatives or our vicarious agents, as well as for damage covered by liability under the Product Liability Act. For damages not covered by sentence 1 and which are based on intentional or grossly negligent breaches of contract as well as fraudulent intent by us, our legal representatives or our vicarious agents, we are liable in accordance with the statutory provisions. In this case, however, the liability for damages are limited to the foreseeable, typically occurring damage, unless we, our legal representatives or our vicarious agents have acted intentionally. To the extent that we have given a quality and/or durability guarantee with regard to the goods or parts thereof, we are also liable within the scope of this guarantee. However, we are only liable for damage based on the absence of the guaranteed quality or durability, but which does not occur directly to the goods, if the risk of such damage is obviously covered by the guarantee of quality and durability.
5. We are also liable for damages caused by a simple negligent breach of such contractual obligations, the fulfillment of which makes the proper execution of the contract possible in the first place and on the compliance with which the customer regularly relies and may rely. However, we are only liable to the extent that the damage is typically associated and foreseeable with the contract.
6. Any further liability is excluded irrespective of the legal nature of the asserted claim; this applies in particular to tortious claims or claims for reimbursement of futile expenses in lieu of performance; this does not affect our liability pursuant to section IV, clause 2 and clause 3 of these general terms and conditions. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives and vicarious agents.
VI. Retention of title
1. The delivered goods (reserved goods) remain our property until all claims, including all current account balance claims, to which we are entitled against the customer now or in the future have been satisfied. In case of the customer’s behavior contrary to the contract, e.g. default of payment, we have the right to take back the reserved goods, after having set a reasonable period of time in advance. If we take back the reserved goods, this constitutes a withdrawal from the contract. If we seize the reserved goods, this constitutes a withdrawal from the contract. We are entitled to utilize the reserved goods after taking them back. After deduction of a reasonable amount for the costs of realization, the proceeds of realization are set off against the amounts owed to us by the customer.
2. The customer must treat the reserved goods with care and insure them adequately at replacement value against fire, water and theft damage at his own expense. Maintenance and inspection work that becomes necessary must be carried out by the customer in reasonable time at their own expense.
3. The customer is entitled to use the reserved goods properly in everyday practice operations as long as they are not in default of payment. They are only authorized to resell the reserved goods with our prior written consent. Pledges or transfers of ownership by way of security are not permitted. The customer hereby assigns to us in full, by way of security, the claims arising from the resale or any other legal reason (insurance, tort) with regard to the reserved goods (including all balance claims from the current account); we hereby accept the assignment. We revocably authorize the customer to collect the claims assigned to us for their account in their own name. The direct debit authorization can be revoked at any time if the customer does not properly fulfill their payment obligations. The customer is also not authorized to assign this claim for the purpose of collecting the claim by way of factoring, unless the obligation of the factor is established at the same time to effect the counter-performance in the amount of the claims directly to us for as long as we still have claims against the customer.
4. Any processing or transformation of the reserved goods by the customer must in any case be carried out on our behalf. If the reserved goods are processed with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including value added tax) to the other processed items at the time of processing. The same applies to the new item created by processing as to the reserved goods. In case of inseparable mixing of the reserved goods with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including value added tax) to the other mixed items at the time of mixing. If the customer’s item is to be regarded as the main item as a result of the mixing, the customer and we agree that the customer transfers co-ownership of this item to us on a pro rata basis; we hereby accept the transfer. The customer must hold our sole or co-ownership of an item thus created in safe custody for us.
5. In case of access by third parties to the reserved goods, in particular seizures, the customer must point out our ownership and notify us immediately so that we can enforce our ownership rights. Insofar as the third party is not in a position to reimburse us for the judicial or extrajudicial costs incurred in this connection, the purchaser is liable for these.
6. At the customer’s request, we are obliged to release the securities to which we are entitled insofar as the realizable value of our securities exceeds the claims to be secured by more than 10%; in this context, we are responsible for selecting the securities to be released.
VII. Place of performance, place of jurisdiction, applicable law
1. The place of performance and jurisdiction for deliveries and payments (including actions on checks and bills of exchange) as well as any disputes arising between us and the customer from the contracts concluded between us and them is 49809 Lingen (Ems). However, we are also entitled to sue the customer at their place of residence and/or business.
2. The relations between the contracting parties is governed exclusively by the law applicable in the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
International Society for Oxyvenation Therapy
Phillipp-Sigismund-Allee 4D-49186 Bad Iburg
Lesumstoteler Str. 65