General Terms & Conditions of XBody Hungary Kft. - NewaveMED
General Terms for the purchase orders of the electro-muscle stimulation device NeWave MED (hereinafter: product or products), offered by XBODY HUNGARY Kft. (hereinafter: XBODY), the following general terms shall apply:
1. General provisions
1.1 Relevant company data of XBODY as supplier:
Corporate name: XBODY HUNGARY Kft.
Registered seat and contact address: 35-39. al. 52. György Aladár Str., H-1120 Budapest,Hungary
Registry no.: 01-09- 932128
tax ID: 11731324-2-43
EU tax-ID: HU11731324
1.2 The customer
On the grounds of these general terms, XBODY offers its products for its current and future customers. On the grounds of these general terms, XBODY shall not supply any products for natural persons acting for purposes which are outside their trade, business or profession (consumers).
By submitting the purchase order, the Customer declares, represents and warrants that he is not acting as a consumer and is intended to use and utilize the products ordered and purchased for trade, business or other professional purposes. In the process of submitting the purchase order, the Customer shall disclose his tax-ID, relevant for persons engaged in business activities (companies, entrepreneurs), therefore it is as well technically impossible, to supply any products for consumers.
By submitting the purchase order, the Customer declares, represents and warrants that meets all legal requirements for operating medical devices as the products are of medical character.
If the Customer is a legal entity, by announcing its intention to purchase, it declares, represents and warrants that the natural person acting in its name and on its behalf is entitled to represent such entity, to enter into contracts on its behalf and there is no exclusion or limitation in the memorandum or articles of association of the Customer that may limit or exclude the power of representation of the representative acting on behalf of such entity.
If the customer is a natural person without tax ID, by announcing his intention to purchase and by accepting this present Terms and Conditions, the customer declares, represents and warrants that he is not to be regarded as a consumer (end user) and is intended to purchase the device solely for commercial purposes and meets all legal requirements for operating medical devices.
If you are a consumer and intended to purchase any products marketed by XBODY, please inquire through the above email address on the special offers and the special information prescribed for consumers.
1.3 The force of the General Terms
The General Terms shall apply exclusively for direct orders from XBODY (including orders canvass solicited by our partners) and shall not be applicable for purchases through distributors.
2. Purchase Order
The Customer shall announce its intention to purchase in writing, by email or by a message sent throughhttp://www.xbodyworld.com/contact/, by adding full company data and marking the products in question, the quantity and the destination of the products. If the Customer was intermediated by a sales representative of XBODY to XBODY, the Customer shall add this detail also.
The Parties agree that the communication in email shall be regarded as valid communication in writing.
The announcement of the Customer’s intention to purchase shall not be regarded as an offer.
XBODY shall forward its quotation within 48 working hours, based on the Customer’s specification, to the email address specified by the Customer. The quotation contains the description and the quantity of the products ordered, the sale price and the payment terms. In case the Customer, after having checked the contents of the quotation, within five days from receiving such quotation, confirms or acknowledges such by email, the quotation shall be considered accepted and thus the Customer articulates that, being aware of the basic properties of the products, he is intended to purchase such products in accordance with the rules set forth in these General Terms.
After the quotation is accepted/confirmed/acknowledged by the Customer, XBODY sends, based on the accepted quotation, a sales order to the Customer.
The acceptance/ackowledgement/confirmation of the sales order shall be done by written email. After sending the acceptance/ackowledgement/confirmation to XBODY, the sales contract is considered final and concluded and may not be latered or amended. Within five days from the acceptance/ackowledgement/confirmation of the offer, XBODY shall send an electronic proforma invoice to the Customer and the Customer shall settle the outstanding amount within five days.
By the acceptance (ackowledgement, confirmation) of the sales order, the Customer, even without a separate declaration, declares and represents that the General Terms (as an inseparable part of the sales contract entered into by the Customer and XBODY) have been made known to him, has understood such General Terms and considers and declares the provisions set forth in the General Terms binding without reservation
XBODY shall arrange the transport of the products ordered within up to eight days from receiving the full payment of the sale price of the products ordered, depending on the quantity ordered. The projected date of shipment (with no binding effect) shall be indicated in the confirmation of the Customer’s order.
3. Transport Terms
XBODY shall forward the products ordered to the customer by a professional carrier. The Custumer accepts and understands that the time of delivery may vary by destinations. XBODY shall inform the Customer in advance on the expected date of delivery.
Transport costs shall be borne directly by the Customer. Unless otherwise specified by the Customer, XBODY shall apply the most preferential transport terms applicable for the destination country. Special requests are to be disclosed at the time of filing the invitation to tender.
The risk related to the products shall pass from XBODY to the Customer with the handing over of the products by XBODY to the carrier.
XBODY shall not be liable for any damages of the products that occur in the course of transportation. In case of necessity, and if the Customer expressly requests so in the process of submitting the order, insurance may be available on the products on the expense of the Customer. Regarding that the compliance with the delivery deadline may be affected by circumstances beyond the control of XBODY and XBODY is not intended reserve funds for potential damages nor to take such reserve into account as a factor of raising prices, XBODY expressly excludes and shall not bear all any any liability for the compliance of the delivery deadline by the carrier and the potantial damages arising from delay.
In case it is foreseeable that due to any reason the expected delivery date can not be held, XBODY shall notify the Customer by email.
XBODY forwards the goods under parity DAP, therefore XBODY is responsible for arranging carriage and for delivering the goods, ready for unloading from the arriving conveyance, at the named place. Risk transfers from XBODY to the Customer when the goods are available for unloading; unloading is at the Customer’s risk. The Customer is responsible for import clearance and any applicable local taxes or import duties.
Transport costs include the costs of insurance as XBODY ships the goods insured.
4. Retention of title
XBODY shall retain its title until the full payment of the sale price; until that the products remain in the sole ownership of XBODY.
The Customer shall handle the products with due care, insure the products for the period of the retention of title, and whenever necessary, arrange its maintenance in line with the contents of the user’s manual.
In case the products are, through outer inspection, visibly defective, deficient, not correlating either substantially or in quantity with the order, the Customer shall notify such to XBODY within eight days from delivery. The costs of the replacement or supplement shall be borne by XBODY. If the Customer fails to meet the above deadline, the order shall be considered flawlessly performed.
The Customer shall use and utilize the products properly, in accordance with the prescriptions set forth in the user’s manual. XBODY shall not be liable for any damages arising from or related to the improper use of the product or the breach of the provisions set forth in the user’s manual. In this case the rules on warranty shall not apply.
In case of defective performance the extent of the maximum liability of XBODY shall be limited to the value of the subject of the service performed.
By the acceptance of the General Terms, the Customer expressly understands, ackowledges and accepts the above limitation of liability.
6. The installation of the products shall be carried out in accordance with the prescriptions set forth in the user’s manual.
XBODY as manufacturer undertakes the following guarantee commitments for the below products:
- electronic muscle stimulator device (head unit): 24 months
- electrodes: 60 months
- cables: 6 months
The detailed rules on warranty are set forth in the user’s manual.
The starting date for warranty is the day which is indicated as the day of performance in the invoice issued by XBODY.
The presentation of the invoice and the warranty sheet issued by XBODY to XBODY and the resending of the defective item to XBODY (H-H-9028 Győr, Török Ignác u. 66.) is a precondition to the enforcement of warranty claims
The process of the enforcement of warranty claims is as follows:
In case of a rightful warranty claim announcement, XBODY shall provide an adequate solution to the Customer within 48 hour from receiving the defective item. Adequate solution is determined by XBODY and does not necessarily mean replacement of the defective item. The customer, however, may request immediate replacement of the defective item, which is subject to a daily fee of 49 € and in this case the Customer shall cover all transport costs.
Transport costs related to forwarding the defective item to XBODY shall be borne by the Customer, whilst transport costs for returning the item to the Customer shall be borne by XBODY.
The warranty applies for production defects. The warranty does not apply for defects arising from or related to improper use of the products or the natural attrition of such. In case of repairs stemming from warranty claims, the warranty period shall be extended with the time of repair. In case of head unit-replacements, the warranty period is restarted for the new unit.
XBODY shall be relieved from warranty obligations, if the Customer does not use or utilize the product properly and the defects are caused that way, or, during the warranty period, the Customer repairs the product himself or gets it repaired by a third party.
The muscle stimulator device is serial numbered, the training suit is chip coded, the cables are cable numbered, therefore the date of production and the date of purchase is retrospectively controllable.
8. Data register, data handling
XBODY is fully entitled to register, store and process the personal data of the Customer as client for the sake and to the extent of the performance of the orders, the claims of warranty, and the maintenance of business relations with the Customer.
9. Exclusion clause
If any provision of the present Agreement proves to be null and void or unenforceable, it does not affect the entire agreement, nevertheless the Parties covenant that in such a case they shall modify the content of the agreement in such a way that ensures the same result which is equivalent to the provision that proved to be null and void or unenforceable and is in accordance with the legal regulations in force. Based upon their mutual agreement, the Customer and XBODY may deviate from the rules set forth in the General Terms in common will.
10. Reporting and Tracking Obligations
The Customer shall file business reports to the Supplier on a monthly basis. The reports shall contain the following data: location of the Device (with serial number); name of the studio/operator of the Device with detailed contact data; person in charge for reporting obligations.
In case of any incidents, the Customer shall fill in the form of incident report, attached to thias General Terms Annex 1. within 24 hours from the occurence of the incident and file it to the Supplier.
The Customer shall bear full liability for breach or delay in completing the obligations set forth above.
11. Miscellaneous provisions
The Supplier hereby informs the Customer that the operation of the device requires basic level knowledge of anatomy and physical education, and its inappropriate or unprofessional use may result in slight, serious or even permanent health damage. By accepting these General Terms, the Customer understands, agrees and acknowledges that the Supplier excludes all liability and responsibility for damages arising out of inappropriate or unprofessional use of the device.
In addition to the the documentation of the Devices, the Supplier will provide the Customer the User Manual for the device, which describes the instructions, rules and method of operation in detail.
The Supplier calls the Customer’s attention to the fact that being aware of the user manual instructions does not substitute for the basic level knowledge of anatomy and physical education.
By accepting these General Terms, the Customer covenants to inform its buyers – both verbally and in writing – on the contents of the present section in the course of the sales of the Device(s).
The Supplier represents that has launched a professional training programme for trainers and users of the Device (XBody EMS Trainer Institute) through its affiliate. The Supplier represents and warrants that through its affiliate disposes of the necessary resources and know-how for the reliable operation of the training services. The Supplier highly recommends the Customer to enroll to a training course – for details visit www.emstrainerinstitute.net.
XBODY reserves the right to amend and modify the General Terms for the future unilaterally.
The rules of Hungarian law apply for the General Terms, the contract entered into on the basis of such and the rules on invoicing. For intra-EU transactions the Customer shall have a valid EU-tax ID. The Customer understands and accepts that without a valid EU-tax ID, XBODY shall sell the products with the addition of the applicable VAT of 27%.
The Contracting Parties seek to solve any legal dispute arising in the course of the performance of the present Agreement or relating to it primarily by way of negotiations. If the legal dispute may not be solved by way of negotiations within 30 days, for the settlement of the legal dispute the Parties stipulate the Hungarian jurisdiction, and subject themselves to the exclusive jurisdiction of the courts located in Győr, depending on court competence.
In force: from June 2016. until withdrawal