General Terms and Conditions of Supply of

miha bodytec ems UK Ltd.


Definitions

“Customer” - the person or corporate entity who purchases the Products from the Supplier
“Supplier” - miha bodytec ems UK Ltd. (registered in the United Kingdom with company number 10487467)
“Products” - the products (or any part of them) set out in any order form submitted under these general terms and conditions


§ 1 Application

These terms and conditions of sale shall apply to all transactions between the Customer and the Supplier, whether current or future, and shall be to the exclusion of any other terms the Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, unless expressly agreed upon in writing between the parties.


§ 2 Offer, Acceptance

Any order submitted by the Customer shall constitute an offer by it to purchase Products from the Supplier in accordance with these terms and conditions and shall only be deemed to be accepted when the Supplier issues a written acceptance of such order.


§ 3 Prices, Payment

(1) The price of the Products shall be the price set out in the relevant order form and all such prices are provided on an Ex Works basis (EXW Incoterms 2010). All prices are also exclusive of value added tax (VAT) and any costs for packaging, except as otherwise expressly agreed in writing between the parties.

(2) The Supplier may invoice the Customer on or at any time after the completion of delivery.

(3) The Customer shall pay any invoice issued to it within 10 days of the date of the invoice.

(4) If the customer fails to make any payment by the relevant due date as per paragraph 3(3), the Customer shall pay interest on the overdue amount at the lesser of:

(i) 8 percentage points per annum above the Barclay’s Bank plc base rate; or

(ii) the highest rate allowed by law. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after any judgement by a court.

(5) The Supplier may terminate this agreement if the Customer is in default of its payment obligations set out in paragraph 3(3) and fails to remedy such default within 15 days of a notice being issued by the Supplier. Subsequent to any termination by the Supplier under this paragraph 5, the Customer shall pay the Supplier liquidated damages of an amount equal to 25% of the relevant order value (subject to the Customer’s right to provide evidence demonstrating a lower level of damage to the Supplier), and the Supplier reserves all rights to claim further damages for delay in respect of payment of any such liquidated damages.


§ 4 Offset, Retention

The Customer shall be entitled to offset payment only insofar as the Customer’s claim is either undisputed by the Supplier or has been finally determined by a relevant court.


§ 5 Delivery

(1) Delivery of any Products specified in an order is conditional upon the timely and proper performance of all relevant obligations of the Customer as specified under these terms and conditions. The Supplier retains all rights and defenses relating to or derived from non-performance of these terms and conditions by the Customer.

(2) In case of a failure by the Customer to accept delivery of Products at the location and on the date specified in any order, and without prejudice to any other remedies available to the Supplier, the Supplier shall be entitled to claim any resulting damages including, but not limited to additional expenses for re-delivery, if any. In any such case, the risk of loss or damage to the Products shall pass to the Customer at the time of the default in acceptance or any other breach of duty to cooperate with delivery.


§ 6 Passing of Risk, Shipment

If the Customer requests shipment of the Products, the risk of loss or damage to the Products passes to the Customer upon their dispatch from the Supplier.


§ 7 Retention of Title

(1) The Supplier shall retain full title to the Products until the Supplier receives full payment of all sums due to it in respect of those Products, at which point title shall transfer to the Customer.

(2) In the event of a material breach of these terms of conditions by the Customer, including but not limited to a default in payment, the Supplier shall be entitled to take possession of any Products to which it still retains the title.

(3) Until title to the Products has passed to the Customer in accordance with paragraph 7(1), the Customer shall:

(i) handle the Products with due care, maintain suitable insurance for the Products and, to the extent necessary, service and maintain the Products; and

(ii) immediately inform the Supplier in writing if the Products become subject to rights of third persons or other encumbrances.

(4) Provided that it is in the course of its normal business only, the Customer may resell the Products before title in them has passed from the Supplier to the Customer in accordance with paragraph 7(1). In such event, and only to the extent that payment is still due to the Supplier in relation to any Products that are resold, the Customer hereby assigns any and all rights to payment it obtains under such re-sale contracts with third parties Notwithstanding this obligation on the Customer and any ensuing rights for the Supplier to directly claim payment against any third parties to whom Products are resold, the Supplier hereby undertakes that it shall not exercise any such right unless and until the Customer is in default of any payment obligations under these terms and conditions or becomes subject to an application for insolvency or similar proceedings..

(5) Where the Supplier retains title in any Products pursuant to paragraph 7(1), the Supplier shall only be entitled to do so to the extent that the value of any title it retains is no more than 10% greater than the value of any outstanding payment due to it in respect of those Products. If at any point the value of the title retained by the Supplier is more than 10% greater than the value of any payment due to it in respect of those same Products, the Supplier shall select at its own discretion and then transfer to the Customer such title(s) in the Products as is/are necessary to reduce the delta in value to less than 10%.


§ 8 Instructions and Installation

In using or installing the Products, the Customer shall at all times act in accordance with any instructions, training and safety procedures as communicated to them by the Supplier from time to time.

 

§ 9 Warranties and Quality of the Products

(1) The provisions in paragraphs 2-8 below generally apply for all warranty claims under these terms and conditions except where the parties have separately entered into additional maintenance or warranty provisions relating to particular products, in which case such additional terms shall prevail as against these set out herein.

(2) The Supplier warrants that upon delivery and, (subject to paragraph 9(3) below) for a period of 2 years from the delivery date, the Products shall conform in all material respects with their description and be free from material defects in design, material and workmanship.

(3) For the avoidance of doubt, the warranty given under paragraph 9(2) is provided from the Supplier to the Customer exclusively and under these terms of sale only, and is not transferable to any third party upon the re-sale of any Products.

(4) Subject to paragraph 9(5), if:

(i) the Customer gives notice in writing to the Supplier during the warranty period and within a period of 12 months of discovery, that some or all of the Products do not comply with the warranty set out in 9(2); and

(ii) the Supplier is given a reasonable opportunity to examine such Products, the Supplier shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full.

(5) The Supplier shall not be liable for the Products’ failure to comply with the warranty set out in paragraph 9(2) in any of the following events:

(i) the defect arises because the Customer used the product incorrectly or failed to follow the Supplier’s oral or written instructions as to the storage, installation, use and maintenance of the Products;

(ii) the Customer alters such Products without the written consent of the Supplier;

(iii) the Customer makes any further use of such Products after giving notice in accordance with paragraph (9)4;

(iv) the defect arises as a result of combining the Products with accessories or cables that are not provided by the Supplier;

(v) the defect arises as a result of fair wear and tear, willful damage or negligence on the part of the Customer; or

(vi) the defect arise out of any force majeure events or natural disasters outside of the Suppliers control.


§ 10 Liability

(1) Subject to paragraph 10(2) and unless otherwise specifically set out in these terms and conditions, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any consequential, incidental, indirect, special or punitive damage or loss, even if it has been advised of their possible existence, arising under or in connection with these terms and conditions.

(2) Nothing in these terms and conditions shall limit or exclude the Supplier’s liability for:

(i) death or personal injury resulting from negligence; or

(ii) fraud, deceit, unlawful intent or gross negligence.

(3) Except as specifically set out in these terms and conditions, any liability, conditions, warranties and representations implied by statue, common law or otherwise (save for the conditions implied by section 12 of the Sale of Goods Act 1979), are excluded to the maximum extent permitted by law.


§ 11 Applicable Law, Jurisdiction

(1) All transactions between the parties where these terms and conditions of sale are applicable and any disputes or claims arising out of them shall be governed by and construed in accordance with the laws of England and Wales.

(2) The legal relationship created by and any dispute or claim arising out of or in connection with this agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the courts of England and Wales.