General Standard Terms and Conditions of MaRhyThe-Systems GmbH & Co. KG

Art. 1 Scope of application

(1) These General Standard Terms and Conditions shall apply exclusively in relation to companies within the meaning of Sec. 14 BGB (German Civil Code), to public-law entities or to separate funds under public law within the meaning of Sec. 310 (1) BGB.

(2) The order shall be carried out according to the currently applicable General Standard Terms and Conditions as at the date of the order. The current version of the General Standard Terms and Conditions are available on the homepage www.marhythe-systems.de under “General Standard Terms and Conditions”. We expressly reserve the right to make amendments and supplements. Conflicting General Standard Terms and Conditions or any provisions of the buyer which deviate from our General Standard Terms and Conditions shall not form an integral part of the contract unless we have explicitly consented to their application in writing.

Art. 2 Offer and conclusion of a contract, rescission

(1) Insofar as an order is to be deemed an offer under Sec. 145 BGB, we may accept it within two weeks. The acceptance may occur

– upon supply and invoicing,

– upon order confirmation and invoicing (in case of payment in advance), or

– upon order confirmation, citing the tentative delivery period.

(2) Insofar as the order has been preceded by an offer from us, the order shall be deemed to constitute an acceptance of the offer.

(3) We reserve the right to rescind in the event that the article will not be available for a period of at least four weeks or in the event of data errors which prevent us from carrying out the order. In such case, we shall immediately inform the buyer thereof and reimburse any payments it has made without delay.

Art. 3 Prices and payment, payment in the case of a trial period

(1) Unless otherwise agreed in writing, our prices shall apply ex works, exclusive of packing and plus value-added tax in the currently applicable amount. The packing and transport costs and statutory value-added tax in the currently applicable amount at the time of invoicing shall be shown separately on the invoice.

(2) The buyer may pay the purchase price by invoice, payment in advance or direct debit procedure, latter option only being available up to an order value of €3,500.00 (net). If the buyer has used the “three week trial period” order form, thereby reserving the right to return the equipment to us at its own expense within the trial period which ends four weeks after delivery (with the date on the delivery note being definitive) payment in advance shall be the only permissible mode of payment. The date of dispatch shall be definitive for determining the timeliness of the return delivery. Upon rescission, the purchase price shall be reimbursed after return consignment of the equipment and after deduction of a flat fee for usage of €350.00 plus 19% VAT.

(3) In the case of a delivery address abroad, payment in advance shall be the only permissible mode of payment. Furthermore, in the case of a delivery address abroad, the buyer shall not only bear the costs specified in Art. 3 (1), but shall additionally bear all further costs connected with delivery to a foreign country (customs duties, levies, taxes) as well as the bank transfer costs connected with payment.

(4) The purchase price shall be paid exclusively into our account as specified overleaf. From an order value upwards of €1,000.00 we shall grant a 3% early-payment discount in the case of payment in advance or a 2% early-payment discount upon payment of the purchase price within seven days of delivery; however, this shall not apply if the buyer has used the “three week trial period” order form, thereby reserving the right to return the equipment supplied to us within the trial period.

(5) Unless otherwise agreed, the purchase price shall be paid within 14 days of delivery. Interest in arrears shall be charged at a rate of 8% per annum above the base lending rate. We reserve the right to assert claims for greater damages caused by default.

Art. 4 Offsetting and rights of retention

The buyer shall only be entitled to offset if its counter claims are res judicata or undisputed. The buyer shall only be entitled to exercise a right of retention if its counter claim is based on the same contractual relationship.

Art. 5 Delivery deadline

(1) Compliance with our delivery commitment shall be conditional upon the buyer meeting its obligations in a timely and proper manner. We reserve the right to invoke the defence of non-performance of contract.

(2) Should the buyer fall into default of acceptance, we shall be entitled to demand compensation for any loss or damage we incur in connection therewith, including any additional expenditures. We reserve the right to assert further claims. Insofar as the above conditions are fulfilled, the risk of accidental loss or accidental deterioration of the equipment shall pass to the buyer at the time at which the latter falls into default of acceptance or payment.

(3) In the case of a delayed delivery caused by us, but not through deliberate intent or gross negligence, we shall be liable for each full week of delay on the basis of a flat-rate compensation for damage caused by delayed performance in the amount of 3% of the value of the goods to be delivered, but at maximum not more than 15% of the value of the goods to be delivered.

(4) Other statutory claims and rights of the buyer ensuing from delayed delivery shall not be affected.

Art. 6 Passing of risk upon dispatch

If the equipment is dispatched to the buyer at the latter’s request, then the risk of accidental loss or accidental deterioration of the equipment shall pass to the buyer upon dispatch to the latter and no later than at the time at which it leaves the works or the warehouse. This shall apply regardless of whether the equipment is dispatched from the place of fulfilment and of which party bears the transport costs.

Art. 7 Reservation of title

(1) We reserve title to the item supplied until such time as all receivables ensuing from the contract for delivery have been paid in full. This shall also apply to all future deliveries, even if we have not explicitly invoked this. We shall be entitled to repossess the equipment supplied if the buyer acts contrary to the terms of the contract.

(2) The buyer shall be obliged to handle the equipment with care until title has passed to it. Until such time as title has passed to the buyer, the latter must notify us in writing without delay if the item supplied is attached or otherwise subject to third-party intervention. Insofar as the third party is unable to reimburse us for the court fees and extra-judicial costs of any lawsuit in accordance with Sec. 771 ZPO (German Code of Civil Procedure) the buyer shall be liable for the loss we incur.

(3) Our permission (prior consent) shall be required for a resale by the buyer of the equipment subject to retention of title.

Art. 8 Manufacturer’s warranty, liability

Without prejudice to the buyer’s claims on us due to defects, we shall grant the buyer a manufacturer’s warranty on the following conditions:

(1) Equipment which reveals a defect due to manufacturing and/or material flaws within 24 months of purchase shall, at our option, be repaired free of charge or replaced free of charge with equipment meeting state-of-the-art standards. The warranty shall exclude wearing parts (e.g. wiring). The warranty period shall not be extended by as a result of the performance of warranty work.

(2) This warranty shall not apply insofar as the defect in the equipment was caused by improper handling and/or non-compliance with product information including the operating instructions. Furthermore, this warranty shall expire if the equipment is tampered with, including but not limited to the opening of the equipment.

(3) The purchase receipt with the date of purchase shall be accepted as proof of the warranty. Warranty claims shall be asserted within two months of discovery of a defect covered by the warranty.

(4) Ownership of equipment that has been replaced or components thereof which are returned to us for exchange shall pass to us.

(5) Other claims or further claims under this manufacturer’s warranty shall be excluded. We shall not be liable for business interruption or loss of profits. This exclusion of liability shall not apply in cases of strict liability, e.g. under the Product Liability Act, in cases of wilful intent, gross negligence, liability due to loss of life, physical injury or health impairment or due to breach of material contractual obligations. The entitlement to damages for breach of material contractual obligations shall, however, be limited to loss or damage which is foreseeable and typical for the type of contract concerned, except in cases of wilful intent or gross negligence, cases of liability for loss of life, bodily injury or health impairment or cases of liability under the Product Liability Act.

(6) The above provisions shall not constitute a modification of the rules concerning the burden of proof to the disadvantage of the buyer.

(7) Please contact us to assert a guarantee claim. Our contact details are on the cover sheet of the product information and the operating instructions for this equipment.

(8) Equipment returned to us shall always be sent in the original case along with all appurtenant components (control unit, MaRhyThe hand applicator including the resonator, mains cable and applicator cable); in such case, the equipment shall be carefully padded and the case carefully packed. Delivery costs within the warranty period shall be borne by us.

Art. 9 Repairs

In respect of repairs after the lapse of the warranty period, the return of the equipment to be repaired shall be deemed to constitute an irrevocable repair order, insofar as the repair costs do not exceed €200.00 (plus VAT) plus transport costs; in other cases, a written cost estimate shall first be drawn up. When returned for repair purposes, the equipment shall always be sent in the original case along with all appurtenant components (control unit, MaRhyThe hand applicator including the resonator, mains cable and applicator cable); in such case, the equipment shall be carefully padded and the case carefully packed.

Art. 10 Method of delivery

Returns of equipment ordered with a trial period or deliveries of equipment returned for repair orders or for the rectification of defects under warranty shall be sent via DHL within the EU, and via UPS when dispatched from non-EU countries.

Art. 11 Data privacy

The buyer consents to the storage, processing and use of the personal data it transmits to us in its order for our processing of its order. Any use of the personal data beyond this shall not be permissible unless otherwise agreed.

Art. 12 Applicable law, venue

(1) The parties’ legal relations shall be governed by the laws of the Federal Republic of Germany to the exclusion of the provisions of UN Convention on the International Sale of Goods (CISG).

(2) The place of fulfilment and exclusive venue for all disputes arising from the parties’ legal relations shall be the location of our registered head office unless otherwise specified in the order confirmation or the invoice.