General terms and conditions of MYOact GmbH
Last updated: 24.07.2025
Table of Contents
Part A: General Provisions
1. Scope, Contracting Parties and Definitions
2. Conclusion of Contract and Contract Language
3. Remuneration and Terms of Payment
4. Support
5. Liability for Damages
6. Reference Listing
7. Confidentiality
8. Final provisions
Part B: Special provisions – Provision of the ‘myoact EMG Biofeedback Training’ software
1. Subject matter of the contract
2. Services provided by the provider and storage space
3. Changes to services
4. Registration
5. Support
6. Availability of the software
7. Obligations of the customer
8. Moderation and restriction of content
9. Granting of rights of use by the provider
10. Granting of rights of use by the customer
11. Remuneration and terms of payment
12. Liability for defects
13. Indemnification
14. Contract term and termination
15. Data protection
16. Amendment of the General Terms and Conditions
Part C: Special section – Hardware purchase
1. Subject matter of the contract
2. Delivery and transport damage
3. Prices and terms of payment
4. Liability for defects
5. Limitation period
6. Retention of title
Part D: Special section – Hardware rental
1. Subject matter of the contract
2. Transfer of the rental object
3. Rent and terms of payment
4. Use of the rental item, transfer of use to third parties
5. Obligations of the renter
6. Changes to the rental item
7. Maintenance obligation of the provider, rights of the renter in the event of defects
8. Liability for defects
9. Contract term, termination of the rental agreement
10. Return of the rental item
11. Other provisions
Part A – General Section
1. Scope, Contracting Parties and Definitions
1.1. The following General Terms and Conditions (hereinafter referred to as ‘GTC’) apply to all contracts between MYOact GmbH, represented by the managing directors Simon Roth and Philipp Piroth, Kaiserstraße 61, 60329 Frankfurt am Main, Germany, Tel.: +49 (0) 69 – 24751025, email: info@myoact.de (hereinafter referred to as the ‘Provider’) and the customer (hereinafter referred to as the “Customer”, collectively also referred to as the ‘Parties’). If the customer uses conflicting or supplementary terms and conditions, their validity and inclusion is hereby rejected, unless otherwise agreed between the parties.
1.2. The Provider’s General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Customer shall only become part of the contract if and to the extent that the Provider has expressly agreed to their validity. This requirement of consent applies in all cases, for example even if the Customer refers to its General Terms and Conditions in the context of providing the software and the Provider does not expressly object to this.
1.3. These General Terms and Conditions apply exclusively if the customer is an entrepreneur. According to Section 14 of the German Civil Code (BGB), an entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of their commercial or independent professional activity. In contrast, a consumer is, according to § 13 BGB, any natural person who enters into a legal transaction for purposes that are predominantly neither commercial nor self-employed.
1.4. Entrepreneurs within the meaning of these General Terms and Conditions are also authorities, corporations, institutions, foundations, legal entities under public law or special funds under public law that act exclusively under private law when concluding a contract.
1.5. The provider may therefore require the customer to provide sufficient proof of their entrepreneurial status before concluding the contract. This can be done, for example, by providing a VAT identification number of a Member State of the European Union and proof of residence or by other suitable means of identification (e.g. business registration, extract from the commercial register). The data required for proof of identity must be provided by the customer completely and truthfully.
1.6. Unless otherwise agreed between the parties, these General Terms and Conditions shall apply in the version valid at the time of the customer’s order or, in any case, in the version last communicated to the customer in text form as a framework agreement for similar future contracts, without the provider having to refer to them again in each individual case. Individual framework agreements or other contracts concluded with the customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence and shall only be supplemented by these General Terms and Conditions.
2. Conclusion of contract and contract language
2.1. The customer may submit a non-binding request for a quote to the provider by telephone, email, letter, via the online contact form provided on the provider’s website or via messenger service.
2.2. Upon request, the provider shall send the customer a non-binding and subject-to-change offer for the services selected by the customer by email or letter.
2.3. The order for the services previously selected by the customer is considered a binding offer. Unless otherwise stated in the order, the provider is entitled to accept the customer’s offer within the reasonable acceptance period specified by the provider in the offer after receipt by the provider.
2.4. Acceptance by the provider shall take place either
• by sending the customer a declaration of acceptance (e.g. by invoice) in writing or text form (e.g. by letter or email), with the relevant time being the time at which the declaration of acceptance is received by the customer, or
• by providing the customer with the ordered service by activating the account after receipt of payment on the provider’s business account.
If several of the above alternatives apply, the contract is concluded at the point in time when one of the above alternatives occurs first. The period for accepting the offer begins on the day after the customer sends the offer and ends with the expiry of the reasonable acceptance period specified by the provider in the offer, which follows the sending of the offer. If the provider does not accept the customer’s offer within the aforementioned period, this shall be deemed a rejection of the offer with the consequence that the customer is no longer bound by their declaration of intent.
2.5. The contract shall be concluded in German and English.
2.6. If the parties agree on special conditions, these shall not apply to current and future contractual relationships with the customer.
3. Remuneration and terms of payment
3.1. Unless otherwise stated in the provider’s offer, the remuneration stated is the net price plus the statutory value added tax applicable on the date of invoicing.
3.2. The payment methods are communicated to the customer in the provider’s offer. The customer can choose from the following payment methods:
3.3. The remuneration is invoiced by the provider in advance for the agreed service period at the agreed intervals and can be paid by the customer by bank transfer to the bank account specified by the provider. Unless otherwise stated in the invoice, the invoice amount is due for payment immediately without deduction.
3.4. The remuneration shall be invoiced by the provider at the agreed intervals and debited from the customer’s bank account by direct debit. The customer shall issue the provider with a direct debit mandate (SEPA) that can be revoked at any time. If the direct debit is not honoured due to insufficient funds in the account or because incorrect bank details have been provided, or if the customer objects to the debit even though they are not entitled to do so, the customer shall bear the fees incurred by the respective credit institution for the return debit if they are responsible for this.
3.5. If a payment method offered via the payment service ‘Stripe’ is selected, payment processing will be carried out by the payment service provider Stripe Payments Europe Ltd., 1 Grand Canal Street Lower, Grand Canal Dock, Dublin, Ireland (hereinafter ‘Stripe’). The individual payment methods offered via Stripe will be communicated to the customer on the provider’s website. Stripe may use other payment services to process payments, for which special payment terms may apply, which will be pointed out to the customer separately if necessary. Further information about Stripe is available on the Internet at https://stripe.com/de.
3.6. Upon expiry of the above payment period, the customer shall be in default. During the period of default, interest shall be charged on the outstanding amount at the applicable statutory default interest rate. The provider reserves the right to assert further claims for damages caused by default (e.g. reasonable costs of necessary legal defence, including all court and solicitor’s fees, costs for dunning procedures or debt collection). The provider’s claim to commercial interest on arrears (§ 353 HGB) against merchants remains unaffected. In the case of overdue claims, incoming payments from the customer shall first be credited against any costs and interest and then against the oldest claim.
3.7. The customer shall only be entitled to set-off rights if his counterclaims have been legally established or are undisputed and mutually linked to the provider’s principal claim or have been recognised by the provider.
3.8. The customer shall have no right of retention unless the customer’s counterclaim arises from the same contractual relationship and is undisputed or has been legally established. Written notification to the provider is required to assert this right.
3.9. If, after conclusion of the contract, it becomes apparent (e.g. through an application to open insolvency proceedings) that the provider’s claim to remuneration is at risk due to the customer’s inability to pay, the provider is entitled to refuse performance in accordance with the statutory provisions and, if necessary, to withdraw from the contract after setting a deadline (§ 321 BGB).
4. Support
4.1. The provider shall set up a support service for questions, complaints and objections from the customer. Enquiries to the support service can be made by email, contact form or messenger service. Enquiries shall be processed in the order in which they are received.
4.2. The customer shall describe the problems as precisely as possible.
5. Liability for damages
5.1. With regard to the services provided by the provider, the provider, its legal representatives and vicarious agents shall be liable without limitation
- in cases of intent, gross negligence or fraudulent misrepresentation,
- in cases of intentional or negligent injury to life, limb or health,
- in cases of warranty promises, insofar as these have been agreed between the parties,
- insofar as the scope of application of the Product Liability Act applies.
5.2. In the event of a breach of essential contractual obligations, the provider’s liability shall be limited to the foreseeable damage typical for this type of contract, unless unlimited liability applies in accordance with Part A, Section 5.1 of these General Terms and Conditions. Essential contractual obligations are those obligations which the contract imposes on the provider according to its content in order to achieve the purpose of the contract, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the customer may regularly rely (so-called cardinal obligations).
5.3. The provider shall not be liable for the loss of data insofar as the damage is due to the customer’s failure to perform data backups and thereby ensure that lost data can be restored with reasonable effort.
5.4. Otherwise, the provider’s liability is excluded.
6. Reference listing
6.1. The provider is entitled to list the customer as a reference customer with the customer’s prior written consent. The customer may only refuse to give their consent for good cause and may revoke consent once it has been given. In the latter case, the provider remains entitled to use any advertising material that has already been created.
6.2. The reference may also be made online, for example on the provider’s company website, including the display of the customer’s company logo. For this purpose, the customer grants the provider a simple, non-transferable right of use, unlimited in time and space, with regard to the name and trademark rights required for this purpose.
6.3. With the prior written consent of the provider, the customer is entitled to advertise that it provides services using the provider’s software and hardware in the course of its business activities. For this purpose, the provider also grants the customer a simple, non-transferable right of use, unlimited in time and space, with regard to the name and trademark rights required for this purpose.
7. Confidentiality
The provider undertakes to maintain confidentiality regarding all confidential information (including trade secrets) that comes to its knowledge in connection with this contract and its implementation, and not to disclose such information to third parties. Confidential information is information that is marked as confidential or whose confidentiality is apparent from the circumstances, regardless of whether it has been communicated in written, electronic, physical or oral form. The confidentiality obligation shall not apply if the provider is obliged to disclose the confidential information by law or on the basis of a valid or final decision by an authority or court.
8. Final provisions
8.1. The assignment of rights arising from the contract concluded between the parties requires the prior written consent of the other party.
8.2. The law of the Federal Republic of Germany applies to all legal relationships between the parties.
8.3. If the customer is a merchant within the meaning of the German Commercial Code, an entrepreneur within the meaning of Section 14 of the German Civil Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of the provider. In all cases, the provider is also entitled to bring an action at the place of performance of the obligation to perform in accordance with these General Terms and Conditions or a prior individual agreement or at the customer’s general place of jurisdiction. Overriding statutory provisions, in particular those relating to exclusive jurisdiction, remain unaffected.
Part B: Special section – Provision of the ‘myoact EMG Biofeedback Training’ software
Subject matter of the contract
1.1. This special part B of the General Terms and Conditions applies to the provision of the mobile application (hereinafter referred to as ‘app’) ‘myoact EMG Biofeedback Training’ (hereinafter referred to as ‘software’) by the provider in digital form at the customer’s company via the Internet for a fee and for a period limited to the term of the contract, as well as the provision of storage space on the provider’s servers.
1.2. The provider’s software can only be used via a Bluetooth connection with special EMG sensors for muscles, including a charging station (hereinafter referred to as ‘hardware’). For all contracts for the sale and/or delivery of hardware, the special provisions in Part C of these General Terms and Conditions shall apply in addition. For the temporary transfer of the hardware (rental), the special provisions in Part D of these General Terms and Conditions shall apply in addition.
1.3. The Provider also offers consulting, training or other support services (setup, configuration, data migration, installation, customisation, etc., hereinafter referred to as ‘Support Services’) for the software it offers. The content of the Support Services shall be agreed separately between the parties and shall be remunerated separately. Otherwise, Support Services are not subject to the contract.
1.4. The use of the software may be subject to different terms and conditions of the respective app store operator, which the customer may be notified of during the ordering process of the respective app store. Insofar as the terms and conditions of the app store operator deviate from these terms and conditions, the terms and conditions of the app store operator shall take precedence.
1.5. The software may contain links to third-party services. These GTC do not apply to such services that are not provided by the provider but by a third party. This also applies if the services are provided free of charge and/or if registration with the provider is required for their use. These services are governed exclusively by the terms and conditions used by the third-party provider or the statutory provisions governing the relationship between the customer and the third-party provider. In this respect, the provider merely facilitates technical access to these services.
2. Services provided by the provider and storage space
2.1. The provider shall enable the customer to access the software for the contractually agreed number of authorised users via the internet using the app. The software shall remain on the provider’s server.
2.2. The scope of functions and technical specifications of the software are described in more detail in the provider’s current service description in the software. The provider is only obliged to provide the software with the functionalities defined in more detail in the service description. In particular, the provider is not obliged to establish and maintain the data connection between the customer’s IT system and the provider’s server.
2.3. The provider’s services are purely services in accordance with Sections 611 et seq. of the German Civil Code (BGB) in the form of monitoring by fitness trackers. The provider is not obliged to provide services under a contract for work and services in accordance with Sections 631 et seq. BGB or medical treatments in accordance with Section 630a BGB (in particular diagnoses or therapies), and these must be agreed separately between the customer and their patients.
2.4. The customer may increase or reduce the number of authorised users of the software in accordance with the provider’s respective terms and conditions. The access data required for the corresponding number of authorised users will be sent to the customer in electronic form immediately after conclusion of the contract.
2.5. The software is updated by the provider at irregular intervals. Accordingly, the customer only receives a right to use the software in its current version. The customer has no claim to the creation of a specific state of the software.
2.6. The provider shall also provide the customer with operating instructions after conclusion of the contract. The operating instructions shall be provided to the customer in electronic form.
2.7. The provider is not obliged to adapt the software to the individual needs or IT environment of the customer.
2.8. The provider shall provide the customer with storage space on its servers for file storage and for the use of the software.
2.9. The provider shall take state-of-the-art measures to ensure data security. However, the provider shall not be subject to any duty of safekeeping or custody. The customer is responsible for ensuring adequate data backup.
2.10. The customer is the sole owner of the data stored on the provider’s servers. The customer may request the data to be returned at any time.
2.11. The provider is not obliged to ensure specific training success in relation to the use of the software by the customer vis-à-vis third parties.
3. Changes to services
3.1. The provider reserves the right to change the services offered or to offer different services, unless this is unreasonable for the customer.
3.2. The provider also reserves the right to change the services offered or to offer different services
• if it is obliged to do so due to a change in the legal situation;
• if it thereby complies with a court ruling or an official decision against it;
• if the respective change is necessary to close existing security gaps;
• if the change is solely advantageous for the customer; or
• if the change is purely technical or procedural in nature and has no significant impact on the customer.
3.3. Changes that have only an insignificant impact on the provider’s services do not constitute changes to services within the meaning of this clause. This applies in particular to changes of a purely graphic nature and the mere change in the arrangement of functions.
4. Registration
4.1. In order to activate and provide the software (activation), a successful online registration process (hereinafter referred to as ‘registration’) is required.
4.2. To register and create a profile, it is necessary to create a customer account. The data required for the customer account is specified in the input mask used for registration.
4.3. The customer may only register once. A customer account is not transferable to third parties or employees. In all other respects, Part B, Section 2.4 of these General Terms and Conditions applies.
5. Availability of the software
The provider’s software is offered subject to availability. 100 per cent availability is not technically feasible and therefore cannot be guaranteed to the customer by the provider. However, the provider shall endeavour to keep the service available as consistently as possible. In particular, maintenance, security or capacity issues, as well as events beyond the provider’s control (disruptions to public communication networks, power failures, hosting failures, hacking attacks, failures of telecommunications lines from the point of transfer to the internet, etc.) may lead to disruptions or temporary shutdowns of the service.
6. Obligations of the customer
6.1. The customer is obliged to use the provider’s software properly and exclusively for the purpose of conducting training courses. It is prohibited to offer own training courses for the use of the software without the prior consent of the provider.
6.2. The customer shall ensure that the software and hardware used by them, including workstation computers, routers, data communication devices, etc., meet the minimum technical requirements for the use of the currently offered software version.
6.3. The customer is obliged to protect and store the access data provided to them (so-called login data) in accordance with the state of the art against access by third parties. The customer shall ensure that use is only made to the extent contractually agreed. Unauthorised access by third parties must be reported to the provider immediately.
6.4. The customer may not store any data on the storage space provided whose use violates applicable law, official requirements or orders, the rights of third parties or agreements with third parties.
6.5. The content stored by the customer on the storage space designated for them may be protected by data protection laws. The customer is responsible for checking whether their use of personal data complies with data protection requirements.
6.6. The customer is responsible for regularly backing up the measurement data in an appropriate manner.
6.7. The customer is obliged to check their data and information for viruses or other harmful components before entering it and to use state-of-the-art measures (e.g. virus protection programmes) for this purpose.
6.8. The customer is obliged to keep their data (in particular invoice data) up to date at all times and, in the event of changes, to update their data themselves or to notify the provider of such changes.
6.9. The customer shall ensure that any programmes, scripts or similar installed by them do not jeopardise the operation of the provider’s server or communication network or the security and integrity of other data stored on the provider’s servers.
6.10. The customer is prohibited from obtaining confidential information by means of reverse engineering. ‘Reverse engineering’ refers to all actions, including observation, testing, examination and disassembly and, if necessary, reassembly, with the aim of obtaining confidential information. The authorisations for reverse engineering pursuant to Section 69d (3) and Section 69e of the German Copyright Act (UrhG) remain unaffected by this.
6.11. If programmes, scripts or similar installed by the customer endanger or impair the operation of the provider’s server or communication network or the security and integrity of other data stored on the provider’s servers, the provider may deactivate or uninstall these programmes, scripts, etc. If necessary to eliminate the risk or impairment, the provider is also entitled to interrupt the connection of the content stored on the server to the internet. The provider will inform the customer of this measure without delay.
7. Moderation and restriction of content
7.1. The provider is generally not obliged to proactively check the content posted by customers for its legality or compatibility with the rights of third parties or these General Terms and Conditions. Nevertheless, the provider reserves the right to check the legality of customer content on its own initiative in individual cases and to take measures in accordance with the following provisions in the event of identified violations.
7.2. Customers and affected third parties can report suspected illegal content to the provider using the contact information in the provider’s legal notice (e.g. by email to support@myoact.de). The provider is free to forward the content of a report to the customer who posted the reported content. The identity of the reporting person will only be disclosed to the customer if this is absolutely necessary.
7.3. In the case of reports and in the context of any checks carried out on the provider’s own initiative, human content control is always carried out. In individual cases, automated technical testing procedures may be used as a supplement.
7.4. If, following a report or as part of an inspection on the provider’s own initiative, the illegality of content published by the customer is determined, the provider is entitled, even without prior notice or contact, to take one or more of the following measures at its reasonable discretion:
- Warning the publishing customer,
- Temporary blocking or permanent deletion of the content concerned,
- Temporary or permanent suspension of the contractually agreed obligations,
- Termination of the contractual relationship (ordinary or extraordinary for good cause).
7.5. When choosing the measures to be taken, the provider shall take into account the principles of proportionality and weigh the interests of the customer concerned against its own interests in the unhindered, undisturbed and integrity-based continuation of its business activities. Criteria to be taken into account when imposing a measure are:
- the statement and meaning of the specific content and its potential for injury or danger,
- the frequency of publication of inadmissible content by the customer,
- the relationship between the publication of inadmissible content by the customer and their other use of services,
- if recognisable, the intentions pursued by the customer with the publication of inadmissible content,
- if recognisable, the existence and degree of fault on the part of the publishing customer.
7.6. If customers frequently submit reports or complaints that are obviously unfounded, the provider shall suspend the processing of reports and complaints from these customers for a reasonable period of time after issuing a prior warning.
8. Granting of rights of use by the provider
The provider is the owner of all rights of use required for the provision of the software. Unless otherwise specified in the service description in the provider’s software, the provider grants the customer the non-exclusive, non-transferable right to use the software itself or through an employee for the duration of the contract. Any use of the software beyond this, in particular the transfer of rights of use to other employees of the customer, is not permitted.
9. Granting of rights of use by the customer
The provider is entitled to use content and information provided to it by the customer for the service within the scope of its contractual obligations and whose processing is necessary for the proper provision of services. The customer grants the provider, free of charge, non-exclusively and for the duration of the contract, the rights of use required for this purpose, in particular the right to permanent provision and storage, the right to reproduction and the right to processing, and warrants that it is entitled to grant these rights of use.
10. Remuneration and terms of payment
The provider is entitled to adjust the prices for the services provided if and to the extent that the provider’s cost base demonstrably changes due to increased costs for licence fees, hosting, maintenance, personnel, legal or regulatory requirements. The price adjustment shall be made exclusively to the extent of the actual cost increase, whereby the provider shall provide suitable evidence of the relevant cost factors and their development at the customer’s request. The provider shall notify the customer of any price adjustments in writing (by email) at least four (4) weeks before they come into effect. The customer is entitled to object to the price adjustment in writing within two (2) weeks of receiving the notification. If the customer objects, the provider is entitled to terminate the contract with two (2) weeks’ notice to the effective date of the price adjustment. The customer shall be expressly informed of this right in the notification. Price adjustments shall apply exclusively to future billing periods and shall be limited to a maximum of 10% per calendar year. The provider shall review the price structure at least once a year, taking into account both increased and decreased costs. A price reduction shall be made if and to the extent that the cost base is significantly reduced.
11. Liability for defects
11.1. With regard to granting the use of the software and providing storage space, the warranty provisions of tenancy law (§§ 535 ff. BGB) apply.
11.2. The customer must immediately notify the provider of any defects, malfunctions or damage that occur.
11.3. The warranty for only insignificant reductions in the suitability of the service is excluded.
11.4. Strict liability pursuant to Section 536a (1) BGB for defects that already existed at the time of conclusion of the contract is excluded.
11.5. Termination by the customer due to non-granting of contractual use is only permissible if the provider has been given sufficient opportunity to remedy the defect and this has failed. Remedying the defect shall only be deemed to have failed if it is impossible, if it is refused or unreasonably delayed by the provider, if there are justified doubts as to the prospects of success, or if it is unreasonable for the customer for other reasons.
11.6. In all other respects, Part A, Section 5 of these General Terms and Conditions (Liability for Damages) shall apply accordingly.
12. Indemnification
The customer warrants that the content and data stored on the provider’s servers, as well as their use and provision by the provider, do not violate applicable law, official orders, third-party rights or agreements with third parties. The customer shall indemnify the provider against any claims asserted by third parties on the basis of a violation of this clause upon first request and shall reimburse the costs of reasonable legal action. This shall not apply if the customer is not responsible for the infringement. The customer shall inform the provider immediately if third parties assert claims against the provider that fall under the above indemnification obligation. The customer is obliged to provide the provider with all information available to them about the matter in question in a complete, truthful and timely manner in writing or text form (by letter or email). Any further claims by the provider remain unaffected.
13. Contract term and termination
13.1. The contract shall commence upon conclusion and shall be concluded for an indefinite period, but at least for the minimum term agreed between the parties.
13.2. In the case of a minimum monthly term, the contract may be terminated at any time at the end of the minimum term. If the contract is not terminated in due time at the end of the minimum term, it shall be automatically extended by one (1) further month and may then be terminated again at any time at the end of the minimum term.
13.3. In the case of a minimum term of one (1) year or more than one (1) year, the contract may be terminated with three (3) months’ notice to the end of the minimum term. If the contract is not terminated in due time, it shall be automatically extended by the minimum term agreed between the parties and may then be terminated again at the end of the respective contract term with three (3) months’ notice.
13.4. This shall not affect the right of either party to terminate the contract in whole or in part within a reasonable period of time after becoming aware of the reason for termination, without observing a notice period, if there is good cause. Good cause shall be deemed to exist if there are facts which, taking into account all circumstances of the individual case and weighing the interests of the contracting parties, make it unreasonable for the terminating party to continue the contract. If the important reason consists of a breach of a contractual obligation, termination shall only be permissible after the unsuccessful expiry of a deadline set for remedial action or after an unsuccessful warning, unless the setting of a deadline is dispensable in accordance with § 314 in conjunction with 323 (2) BGB.
13.5. The contract may be terminated in writing or in text form (e.g. by email or letter).
13.6. Services rendered up to the effective date of termination shall be remunerated; in the event of extraordinary termination by the customer due to culpable conduct on the part of the provider, this shall only apply insofar as the services rendered are usable for the customer.
13.7. The supplier shall irretrievably delete all customer data remaining on its servers ten (10) days after termination of the contractual relationship. However, the supplier shall, at the customer’s expense, reasonably support the customer in transferring back or securing the data after termination of the contract. The supplier shall have no rights of retention or liens over the data.
14. Data protection
14.1. The parties shall comply with the applicable data protection regulations applicable to them.
14.2. If and to the extent that the provider processes personal data on behalf of the customer in the course of providing services, the parties shall conclude a corresponding data processing agreement upon conclusion of the main contract. In this case, the Provider shall act as a processor within the meaning of Art. 28 (3) GDPR and shall process the relevant personal data solely in accordance with these provisions and the Customer’s instructions. In addition to this contract, the special provisions of the data processing agreement in accordance with the appendix shall apply.
15. Amendments to the General Terms and Conditions
15.1. The Provider reserves the right to amend these General Terms and Conditions at any time without giving reasons, unless this is unreasonable for the Customer. The Provider shall notify the Customer of any amendments to the General Terms and Conditions in writing in good time. If the customer does not object to the validity of the new General Terms and Conditions within a period of four (4) weeks after notification, the amended General Terms and Conditions shall be deemed to have been accepted by the customer. The provider shall inform the customer of their right to object and the significance of the objection period in the notification. If the customer objects to the changes within the aforementioned period, the contractual relationship shall continue to be governed by the original General Terms and Conditions.
15.2. The provider also reserves the right to amend these General Terms and Conditions
• if the provider is obliged to do so due to a change in the legal situation;
• if the provider thereby complies with a court ruling or an official decision against it;
• if the provider introduces additional, entirely new services or service elements that require a service description in the General Terms and Conditions, unless this adversely affects the existing contractual relationship;
• if the change is solely advantageous for the customer; or
• if the change is purely technical or procedural, unless it has a significant impact on the customer.
15.3. The customer’s right of termination remains unaffected by this.
Part C: Special section – Hardware purchase
1. Subject matter of the contract
This special section C of the General Terms and Conditions applies to all contracts for the sale and/or delivery of hardware and adhesive electrodes as movable goods (hereinafter referred to as ‘goods’), regardless of whether the supplier manufactures the goods itself or purchases them from suppliers (Sections 433, 650 of the German Civil Code (BGB)).
2. Delivery conditions and transport damage
2.1. Unless otherwise agreed between the parties, goods shall be delivered by post within the delivery area specified by the supplier to the delivery address specified by the customer. The customer’s delivery address specified during the order process shall be decisive.
2.2. The supplier is permitted to make partial deliveries, provided this is reasonable for the customer. In the case of reasonable partial deliveries, the supplier is also entitled to issue partial invoices.
2.3. If delivery of the goods fails for reasons for which the customer is responsible, the customer is obliged to bear the reasonable costs incurred by the supplier as a result.
2.4. The risk of accidental loss and accidental deterioration of the goods sold shall pass to the customer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. This shall also apply if the supplier bears the costs of transport. Transport insurance shall only be taken out at the customer’s special request and at the customer’s expense.
2.5. If the supplier is unable to meet binding delivery deadlines for reasons beyond its control (unavailability of goods), the supplier shall inform the customer of this immediately and at the same time notify them of the expected new delivery deadline. If the goods are still not available within the new delivery period despite all reasonable efforts on the part of the supplier, the supplier shall be entitled to withdraw from the contract in whole or in part; the supplier shall immediately reimburse any consideration already paid by the customer. In particular, the goods shall be deemed unavailable if the provider’s suppliers do not deliver on time or properly, provided that the provider has concluded a congruent covering transaction and neither the provider nor its suppliers are at fault.
3. Prices and terms of payment
If delivery is made to countries outside the European Union, additional costs may be incurred in individual cases. These costs shall be borne by the customer if the supplier is not responsible for them. These costs may include taxes, customs duties and other public charges, as well as costs for money transfers by credit institutions (e.g. transfer fees, exchange rate fees). Where applicable, some of the aforementioned costs may also arise for deliveries to countries within the European Union if the customer makes the payment from a country outside the European Union.
4. Liability for defects
4.1. Unless otherwise expressly agreed between the parties, the statutory liability for defects shall apply. Notwithstanding this, the following shall apply:
4.2. For new goods, the limitation period for claims for defects is one (1) year from the transfer of risk. The statutory limitation periods for recourse claims pursuant to Section 445a of the German Civil Code (BGB) remain unaffected.
4.3. The supplier shall initially provide the customer with a warranty at its discretion by remedying the defect (repair) or by delivering a defect-free item (replacement delivery). If a replacement delivery is made within the scope of liability for defects, the limitation period shall not recommence.
4.4. The quality of the goods shall be governed exclusively by the Provider’s own item or service description and the manufacturer’s specifications included in the contract; the Provider shall not be liable for public statements made by the manufacturer or other third parties (e.g. advertising claims).
4.5. An insignificant defect does not constitute a claim for defects and does not entitle the customer to refuse acceptance of the goods. If part of the goods has a non-insignificant defect, this does not entitle the customer to reject the entire delivery. This does not apply if the partial delivery is of no interest to the customer. Furthermore, the supplier is entitled to make the owed subsequent performance conditional upon the customer paying the due purchase price. However, the customer is entitled to withhold a proportionate part of the purchase price that is reasonable in relation to the defect. If goods are provided free of charge, the supplier shall only be liable for defects insofar as intent or gross negligence can be attributed to them.
4.6. Claims for defects also do not arise in the case of natural wear and tear or damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable operating materials, or due to special external influences not assumed under the contract. If the customer or third parties carry out improper modifications or repair work, there shall likewise be no claims for defects in respect of these or the consequences arising therefrom, unless the customer can prove that the reported defect was not caused by such modifications or repair work.
4.7. If the supplier delivers a defect-free item for the purpose of subsequent performance, the supplier may demand compensation for use from the customer pursuant to Section 346 (1) BGB. Other statutory claims remain unaffected.
4.8. The above limitations and reductions of periods do not apply to claims based on damages as defined in Part A, Section 5 of these General Terms and Conditions (Liability for Damages).
4.9. If the customer is a merchant within the meaning of Section 1 HGB, the inspection and notification obligations regulated in Sections 377 and 381 HGB shall apply. If a defect becomes apparent upon delivery, during inspection, or at any later time, it must be reported to the supplier immediately in writing. In any case, obvious defects must be reported in writing without delay from delivery, and defects not apparent during inspection must be reported within the same period from discovery. If the customer fails to carry out the inspection and/or defect notification, the goods shall be deemed approved, unless it is a defect that was not detectable during the inspection. This shall not apply if the supplier has fraudulently concealed a defect.
5. Statute of Limitations
Customer claims against the supplier – with the exception of the claims regulated under Part C, Section 4 of these General Terms and Conditions (Liability for Defects) – shall become time-barred one (1) year from the date on which the customer became aware of the facts giving rise to the claim, but no later than five (5) years after performance of the service, unless unlimited liability applies pursuant to Part A, Section 5 of these General Terms and Conditions (Liability for Damages).
6. Retention of Title
6.1. The supplier retains ownership of the delivered goods until full payment of all present and future claims of the supplier arising from the purchase contract and an ongoing business relationship (secured claims). The customer is entitled to resell the goods subject to retention of title in the ordinary course of business. All claims arising from the resale against third parties shall be assigned by the customer to the supplier in advance – irrespective of any combination or mixing of the goods subject to retention of title with new items – up to the amount of the respective invoice total, including VAT applicable on the invoice date. The customer shall remain authorized to collect these claims even after assignment. The supplier’s right to collect the claims itself remains unaffected. The supplier shall not collect the claims as long as the customer meets its payment obligations to the supplier, is not in default, and no application has been filed for the initiation of insolvency proceedings.
6.2. The customer is obliged to treat the goods subject to retention of title with due care until ownership is transferred. Furthermore, the customer is obliged, at their own expense, to adequately insure the goods subject to retention of title at replacement value against theft, fire, and water damage, insofar as this is reasonable or customary in the industry. The customer must also carry out any necessary maintenance and inspection work in a timely manner at their own expense.
6.3. The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The customer must notify the supplier in writing without delay if an application for the opening of insolvency proceedings has been filed or insofar as third parties (e.g., seizures) have access to goods belonging to the supplier.
6.4. In the event of conduct contrary to the contract by the customer, in particular non-payment of the due purchase price, the supplier shall be entitled, in accordance with statutory provisions, to withdraw from the contract and/or to demand the return of the goods on the basis of retention of title. The demand for return does not at the same time constitute a declaration of withdrawal. Rather, the supplier is entitled to demand only the return of the goods and reserve the right of withdrawal. If the customer fails to pay the due purchase price, the supplier may assert these rights only if the supplier has previously set the customer a reasonable deadline for payment without success, or such a deadline is dispensable under statutory provisions.
6.5. The customer is authorized, until revoked in accordance with Section 6.5.3 below, to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply.
6.5.1. The retention of title extends to products resulting from the processing, mixing, or combining of the goods at their full value, whereby the supplier shall be deemed the manufacturer. If, in the event of processing, mixing, or combining with goods of third parties, their ownership rights remain, the supplier acquires co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. Otherwise, the same provisions apply to the resulting product as to the goods delivered subject to retention of title.
6.5.2. The claims against third parties arising from the resale of the goods or the product shall already now be assigned by the customer to the supplier in their entirety or in the amount of the supplier’s co-ownership share pursuant to the preceding paragraph as security. The supplier accepts the assignment. The obligations of the customer set out in Part C, Section 6.4 of these General Terms and Conditions shall also apply in respect of the assigned claims.
6.5.3. The customer remains authorized, alongside the supplier, to collect the claim. The supplier undertakes not to collect the claim as long as the customer meets their payment obligations to the supplier, has no deficiency in financial capacity, and the supplier does not assert the retention of title by exercising a right under Part C, Section 6.5 of these General Terms and Conditions. However, if this is the case, the supplier may demand that the customer disclose to the supplier the assigned claims and their debtors, provide all necessary information for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment. In this case, the supplier is also entitled to revoke the customer’s authorization to resell and process the goods subject to retention of title.
6.5.4. The supplier undertakes to release the securities to which it is entitled at the request of the customer, insofar as the value of the securities exceeds the sum of all outstanding claims of the supplier from the business relationship by more than 10% (or by more than 50% in the event of a realization risk). The supplier may select the securities to be released at its discretion.
Part D: Special Section – Hardware Rental
1. Subject Matter of the Contract
This special Part D of the General Terms and Conditions applies to all rental agreements that the customer concludes with the supplier regarding the hardware presented on the supplier’s website (hereinafter referred to as the “rental item”). The inclusion of the lessee’s own terms and conditions is hereby rejected, unless otherwise agreed.
2. Provision of the Rental Item
2.1. The supplier provides the customer with the hardware, including the manufacturer’s operating instructions.
2.2. The provision of the rental item generally takes place by shipping to the delivery address specified by the customer. The delivery address indicated in the supplier’s ordering process shall be decisive, unless otherwise agreed.
2.3. If the shipping company returns the dispatched rental item to the supplier because delivery to the customer was not possible, the customer shall bear the costs of the unsuccessful shipment. This does not apply if the customer effectively exercises their right of withdrawal, if the customer is not responsible for the circumstances that made delivery impossible, or if the customer was temporarily prevented from accepting the offered service, unless the supplier had announced the service to the customer within a reasonable period of time beforehand.
3. Rent and Payment Terms
3.1. Any additional delivery and shipping costs incurred shall be specified separately in the supplier’s offer.
3.2. The rent includes compensation for the provision of the rental item as well as its maintenance and repair.
3.3. Adjustments and/or modifications of the rental item requested by the customer are to be remunerated separately, insofar as they are not necessary for the maintenance or repair of the rental item, or for ensuring its contractual use.
3.4. The rent shall be invoiced as follows:
- The rent is to be paid monthly in advance, unless otherwise agreed between the parties. The obligation to pay rent begins with the provision of the rental item to the customer. Any additional delivery and shipping costs incurred must be paid together with the first rent.
- For payment of the rent, the customer may choose between different payment methods specified on the supplier’s website. Any additional delivery and shipping costs incurred must be paid together with the rent.
3.5. In all other respects, Part A, Section 3 of these General Terms and Conditions (Remuneration and Payment Terms) shall apply.
4. Use of the Rental Item, Granting of Use to Third Parties
4.1. The rental item may only be used for the purposes contractually agreed upon.
4.2. The rental item is provided for the exclusive use by the customer or an employee of the customer to whom the supplier’s software is contractually made available pursuant to Part B, Section 2.4 (Supplier’s Services and Storage Space) and Section 9 (Granting of Rights of Use by the Supplier) of these General Terms and Conditions. Without the supplier’s permission, the customer is not entitled to grant use of the rental item to another employee or third parties, in particular to rent it out or lend it.
5. Customer’s Obligations
The customer must treat the rental item with care and protect it from damage. The customer shall follow the supplier’s maintenance, care, and usage instructions to the extent reasonably possible. Labels on the rental item, in particular signs, numbers, or inscriptions, may not be removed, altered, or made illegible.
6. Modifications to the Rental Item
6.1. The supplier is entitled to make modifications to the rental item, provided these serve its preservation. Improvements may only be made if they are reasonable for the customer and do not impair the contractual use of the rental item. The supplier must inform the customer of such measures in advance in due time. If the customer incurs expenses as a result of these measures, the supplier shall reimburse such expenses.
6.2. Modifications and additions to the rental item by the customer require the prior consent of the supplier. This applies in particular to attachments or installations as well as the connection of the rental item with other objects. Upon return of the rental item, the customer shall restore the original condition at the supplier’s request.
7. Supplier’s Duty of Maintenance, Customer’s Rights in Case of Defects
7.1. The supplier is obliged to maintain the rental item in a condition suitable for contractual use for the duration of the rental period and to carry out the necessary maintenance and repair work. These measures shall be performed at regular maintenance intervals as well as in the event of defects, malfunctions, or damage. The supplier must be granted the necessary access to the rental item for this purpose.
7.2. The customer must notify the supplier immediately of any defects, malfunctions, or damage that occur.
7.3. The remedy of defects shall be carried out by free rectification or repair of the rental item. The supplier must be granted a reasonable period of time for this. With the customer’s consent, the supplier may replace the rental item or individual components thereof for the purpose of remedying defects. The customer shall not unreasonably withhold such consent.
7.4. Termination by the customer pursuant to Section 543 (2) Sentence 1 No. 1 BGB due to failure to grant contractual use is only permissible if the supplier has been given sufficient opportunity to remedy the defect and this has failed. Remediation shall be deemed to have failed only if it is impossible, if it is refused by the supplier or unreasonably delayed, if there are justified doubts about the chances of success, or if unreasonableness exists for the customer for other reasons.
7.5. The customer’s rights regarding defects are excluded insofar as the customer makes or has made modifications to the rental item without the supplier’s consent, unless the customer proves that the modifications have no unreasonable impact on the analysis and elimination of the defect for the supplier. The customer’s rights regarding defects remain unaffected if the customer is entitled to make modifications, in particular within the scope of exercising the right of self-remedy pursuant to Section 536a (2) BGB, and if these were carried out properly and documented in a comprehensible manner.
8. Duration of Contract, Termination of the Rental Relationship
8.1. The rental relationship is concluded for a fixed term and ends automatically upon expiration of the agreed rental period. The rental period will be communicated to the customer in the supplier’s offer.
8.2. The rental begins with the provision of the rental item to the customer.
8.3. The customer’s right to extraordinary termination pursuant to Section 543 (2) Sentence 1 No. 1 BGB due to failure to grant contractual use as well as the right of either party to extraordinary termination for good cause remain unaffected.
8.4. In all other respects, Part B, Section 13 of these General Terms and Conditions (Term and Termination) shall apply accordingly.
9. Return of the Rental Item
9.1. Upon termination of the contractual relationship, the customer must return the rental item to the supplier in proper condition.
9.2. The customer shall bear the costs for restoring the rental item in the event of damages or defects attributable to the customer.
9.3. If the customer is obliged to return the rental item under the contract, the customer shall bear the costs for the return transport of the rental item, unless otherwise agreed between the parties.
9.4. If the agreed rental period is exceeded, the customer is obliged to pay the supplier an amount corresponding to the agreed rent for each day of the extension. The supplier expressly reserves the right to claim further damages.
10. Miscellaneous Provisions
In all other respects, Part B, Section 11 (Liability for Defects) and Section 15 (Amendment of the General Terms and Conditions) of these General Terms and Conditions shall apply accordingly.