General Terms and Conditions Austria
Status August 2016
The following "General Terms and Conditions of Business" shall apply to companies of the Physiotherm Group of Companies (Physiotherm for short), whereby the individual contractual partner of the customer shall result from the order/the individual contract.
Our terms and conditions of business shall apply exclusively to all our offers, deliveries and services. These shall also apply as a framework agreement for all future business with Physiotherm, even if no further separate reference is made to them in the following. Amendments to these terms and conditions shall be valid only if confirmed in writing. Any conflicting terms and conditions of purchase shall be subordinate and shall only apply if they have been expressly agreed. Verbal agreements are only binding if they are confirmed in writing.
Only persons who have full legal capacity and have reached the age of 18 shall be considered as customers. If these conditions are not met, Physiotherm shall be entitled to withdraw from the contract at any time.
Note consumer law
These Terms and Conditions shall also apply to consumers, unless mandatory statutory provisions conflict therewith.
1. conclusion of the contract:
The written order confirmation of the supplier is decisive for the contract. The dispatch of the goods ordered by the customer also effects the conclusion of the contract.
2. delivery time:
Delivery is generally possible to the following countries: Austria, Germany, Switzerland, Italy and Great Britain. Delivery outside these countries can be made - subject to individual verification - on the basis of individual requests. The delivery address must be an address where someone can be reached during the day.
The delivery of the ordered goods shall be carried out by the delivery service commissioned by Physiotherm within the delivery time stated in the web shop. Physiotherm shall not assume any liability whatsoever for compliance with delivery dates or delivery periods. As far as possible, the goods shall be delivered on a date specified by the customer. When purchasing an infrared cabin or similar product, "delivery without assembly" includes delivery to the curb. In the case of deliveries including installation by Physiotherm, the individual installation date shall be agreed directly with the customer by Physiotherm's Customer Service. The delivery deadline/assembly deadline shall apply subject to unforeseen obstacles that lie outside the sphere of Physiotherm. In the course of a later delivery date, Physiotherm reserves the right to make technical changes that have taken place between the placing of the order and the delivery.
Physiotherm shall in particular not be liable for delays in delivery due to force majeure and strike. If these events prevent the timely fulfilment of the contract, the delivery periods shall be extended accordingly. Claims for damages or cancellation of the contract due to delays in delivery shall be excluded in any case, unless Physiotherm has acted with gross negligence or intent.
If the customer has not taken over the goods as agreed (default of acceptance), Physioterm shall be entitled, after having set an unsuccessful grace period, either to store the goods itself, for which a storage fee of 0.1% of the gross invoice amount per calendar day or part thereof may be charged, or to store the goods at the expense and risk of the customer with an authorised tradesman. At the same time Physiotherm shall be entitled either to insist on fulfilment of the contract or, after setting a reasonable period of grace of at least 2 weeks, to withdraw from the contract and to dispose of the goods elsewhere and to claim damages from the Customer. If Physiotherm declares its withdrawal from the contract, the delivered goods shall be returned immediately at the Customer's expense. The customer shall reimburse Physiotherm for all expenses incurred in this connection. Notwithstanding mandatory legal provisions to the contrary, the Customer shall not be entitled to a right of retention or lien on the goods delivered by Physiotherm.
3. transfer of risk:
The risk shall pass to the Purchaser when the goods are handed over to the Purchaser by the carrier/forwarder or when the Purchaser collects the goods himself at the agreed place of handover in accordance with the order. Physiotherm usually ships the goods free domicile through a carrier/forwarding agent commissioned by it.
We reserve the right to make technical changes, price changes and design changes in the interest of improving quality.
5. retention of title:
The delivered goods shall remain the unrestricted property of Physiotherm until all claims of Physiotherm arising from the delivery plus any interest, expenses and costs have been paid in full, without prejudice to the earlier transfer of risk. The customer hereby assigns to Physiotherm by way of security his claims against third parties, insofar as these arise from resale, until all claims of Physiotherm against him have been satisfied. In the event of imminent attachment or other seizure by third parties, the latter shall be informed of the reservation of title and shall notify Physiotherm thereof without delay. Prior to the transfer of ownership to the customer, the goods may not be pledged, transferred by way of security, processed or transformed without the express consent of Physiotherm. The customer shall, on his own initiative and at his own expense, take all precautions necessary to preserve Physiotherm's retention of title to the delivered goods.
6. complaints, warranty:
The purchaser must inspect the delivery of goods in detail immediately upon receipt. Complaints shall only be considered if made in writing within 3 days of receipt of the goods, insofar as this does not conflict with statutory regulations. They do not entitle the customer to a reduction or retention of the purchase price. In the event of an acknowledged complaint, Physiotherm shall, at its discretion, only be obliged to supply faultless replacements or to improve the goods. The goods subject to complaint must be kept available on site for inspection by the supplier.
In all other respects, the general statutory warranty provisions shall apply. The warranty obligation includes the costs of working time and spare parts, but not wear parts and consumables or damage due to normal wear and tear.
The supplier does not assume any warranty for defects for which he is not responsible, in particular caused by improper assembly or operation by the supplier or by third parties; by force majeure, damage by the elements, water damage, fire, falling, etc.; modification of the delivered product by the customer or by third parties, installation of parts of foreign origin; non-compliance with the regulations on care and maintenance of the delivered product or disruption of the customer's own installations and equipment.
The supplier also accepts no liability for consequential damage resulting from the failure of the delivered product.
In the event of a warranty claim, the customer shall not be entitled to claim damages from Physiotherm. In the event that Physiotherm is liable under mandatory provisions of Austrian law, Physiotherm shall be liable with respect to financial losses incurred only for intent or gross negligence. Liability for slight negligence shall be excluded, unless personal injury is involved. Insofar as a more extensive exclusion of liability is legally permissible in an individual case, this shall also be deemed to be agreed herewith.
The supplier provides a lifelong guarantee for the functionality of Physiotherm infrared heating rods if they are used properly and in accordance with their intended purpose. This warranty claim must be made in writing to Physiotherm GmbH in A-6065 Thaur, Physiothermstraße 1 (Tel. +43 5223 54 777, www.physiotherm.com), accompanied by the original invoice.
Any additional costs in connection with the fulfilment of the warranty for delivery and installation of the spare part shall be borne by the Purchaser. Any spare parts thus replaced shall become the property of the supplier.
In the event of damage due to improper installation, handling or commissioning (e.g. overvoltage, chemical influences, etc.), the warranty is excluded. The supplier shall not be liable for any costs arising from anticipated repairs not approved by the customer in connection with this guarantee.
The general and special warranty provisions remain unaffected by this warranty promise.
All claims for damages are excluded in cases of slight negligence. This does not apply to personal injury. The existence of slight or gross negligence must be proven by the injured party, unless it is a consumer transaction. If the transaction is not a consumer transaction, the limitation period for claims for damages shall be 3 years from the transfer of risk. The provisions on damages contained in these terms and conditions or otherwise agreed shall also apply if the claim for damages is asserted in addition to or instead of a warranty claim.
Recourse claims within the meaning of § 12 of the Product Liability Act are excluded unless the person entitled to recourse proves that the defect was caused in the sphere of the Supplier and was at least due to gross negligence.
9. prices, terms of payment:
The prices are valid from the agreed place of delivery according to the order plus the statutory value added tax. Unless otherwise agreed in writing, the purchase price shall be due for payment without any deductions upon receipt of the invoice. If the provision applies that the delivery shall be free of freight charges, Physiotherm shall also bear the usual costs of transport insurance. Any additional special costs for packaging, freight and transport insurance shall be borne by the Purchaser and these costs shall be due together with the stated purchase price.
Payments by the Purchaser shall be deemed to have been made only upon receipt in the Supplier's business account. In the event of default in payment, the Supplier shall be entitled, at its discretion, to claim compensation for the damage actually incurred or default interest at the statutory rate. Interest on arrears shall be charged at 5% p.a. above the base rate for consumer transactions and 8% p.a. above the base rate for business transactions from the due date.
A reminder fee of at least € 20 plus VAT is agreed for each reminder made necessary by default in payment. Reminders sent by a lawyer will be charged according to the lawyer's tariff. The customer shall be obliged to notify any change of address during an ongoing, unfulfilled contractual relationship and shall bear all costs arising from a breach of this obligation.
In the case of outstanding claims, Physiotherm may set off payments made by the Customer against the Customer's outstanding claims as it sees fit, irrespective of any dedication by the Customer. In the event of non-payment of a claim against the customer, all other claims against the customer shall also become due immediately.
10. a) Right of withdrawal Consumer, Austria
If the customer is a consumer (hereinafter referred to as the consumer), he/she has a statutory right of revocation or withdrawal under certain conditions (rights of withdrawal). The information and details necessary for the identification of the contract within the meaning of the Distance and Foreign Transactions Act can be taken by the consumer from the order confirmation, the purchase contract, these GTC or the delivery note. The consumer's attention is drawn in particular to the following rights of withdrawal:
aa.) Right of withdrawal under the Consumer Protection Act (KSchG) and the Industrial Code (GewO)
Requirements, legal exclusion, deadlines
A consumer may withdraw from his application for a contract or from the contract if he does not make his contractual declaration. not
- in the premises permanently used by Physiotherm for its business purposes (business premises) or
- a stand used by Physiotherm for this purpose at a trade fair or market
has given. The consumer shall also have this right of withdrawal if Physiotherm or a third party acting in conjunction with it has
- in the context of a promotional trip, an excursion or a similar event, or
- by personally approaching him individually on the street to the premises used by Physiotherm for its business purposes.
This right of withdrawal is available to the consumer not entitled toif
- he himself has initiated the business relationship with Physiotherm or its representatives for the purpose of concluding this contract,
- the conclusion of the contract was not preceded by discussions between the parties or their representatives,
- the contract in which the mutual services are to be provided immediately and the agreed remuneration does not exceed € 25.00,
- the contract is subject to the Distance and Foreign Transactions Act (e.g. when ordering via the Physiotherm online shop),
- he has made contractual declarations in the physical absence of employees of Physiotherm or a third party attributable to it, unless he has been urged to do so by the aforementioned persons or Physiotherm.
The consumer may withdraw from the contract within the following time limits:
- At any time until the contract is concluded.
- Within 14 days after conclusion of the contract. This period begins with the delivery of the document as defined in § 3 KSchG (e.g. purchase contract with instructions, delivery note with instructions, etc.) to the consumer; in the case of purchase contracts for goods, however, at the earliest on the day on which the consumer obtains possession of the goods.
- If no document has been issued, the withdrawal period ends in any case 12 months and 14 days after conclusion of the contract or delivery of the goods.
The consumer may also withdraw from his contract application or from the contract under the above conditions if Physiotherm has violated regulations under trade law concerning the collection and receipt of orders for services (§ 54 GewO 1994), concerning the solicitation of private individuals and advertising events (§ 57 GewO 1994) or concerning the receipt of orders for goods from private individuals (§ 59 GewO 1994). In this case, the consumer has the right to withdraw from the contract even if he initiated the business relationship with the trader himself for the purpose of concluding the contract or if the conclusion of the contract was not preceded by discussions between the parties or their representatives.
The consumer may also withdraw from his contract application or from the contract if, without his instigation, circumstances relevant to his consent within the meaning of the KSchG, which Physiotherm has presented as probable in the course of the contract negotiations, do not occur or only occur to a considerably lesser extent.
The consumer has this right of withdrawal not if
- he already knew or should have known at the time of the contract negotiations that the relevant circumstances will not occur or will only occur to a significantly lesser extent,
- the exclusion of the right of withdrawal has been negotiated in detail or
- Physiotherm agrees to an appropriate adjustment of the contract.
In this case, withdrawal can be declared within one week. The period begins to run as soon as it becomes apparent to the consumer that the relevant circumstances within the meaning of the Consumer Protection Act do not occur or only occur to a significantly lesser extent. However, the right of withdrawal expires at the latest one month after the complete fulfilment of the contract by both contracting parties.
Form of the notice of withdrawal
The declaration of withdrawal is not bound to any particular form. The withdrawal deadline shall be deemed to have been met if the declaration of withdrawal is sent to Physiotherm within the deadline.
Consequences of the withdrawal
If the consumer withdraws from the contract by invoking the aforementioned rights of withdrawal, Physiotherm shall reimburse the consumer concurrently for all services received, including statutory interest from the date of receipt, and reimburse the consumer for the necessary and useful expenditure made by the consumer on the item, the consumer shall return the services received and pay Physiotherm an appropriate fee for the use(usage fee), including compensation for any associated reduction in the fair market value of the service. Physiotherm shall notify the consumer of this amount after the goods have been put on hold. The consumer undertakes to pay this amount to Physiotherm within 14 days, free of charges and deductions.
The costs for the restitution are to be borne by the consumer.
If it is impossible or impracticable for Physiotherm to return the services already rendered, the consumer shall compensate Physiotherm for their value, insofar as they are of clear and predominant advantage to the consumer.
ab.) Right of withdrawal according to Distance and Outward Transactions Act (FAGG)
Requirements, legal exclusion, deadlines
If the contract between the consumer and Physiotherm was concluded at a distance (e.g. online, by telephone, fax, etc.) or outside business premises, the consumer shall have a right of withdrawal in accordance with the FAGG.
This right of withdrawal is available to the consumer not entitled toif
- a contract is concluded away from business premises and the consideration to be paid by the consumer does not exceed the amount of € 50,
- contracts for services are concluded and Physiotherm - on the basis of an express request by the consumer as well as a confirmation by the consumer of his knowledge of the loss of the right of withdrawal in the event of complete fulfilment of the contract - has commenced performance of the service before the expiry of the withdrawal period and the service has then been fully performed,
- a contract is concluded for goods that are manufactured according to customer specifications or are clearly tailored to personal needs,
- a contract is concluded for goods that are delivered sealed and are not suitable for return for reasons of health protection or hygiene, provided that their seal has been removed after delivery,
- a contract has been concluded for urgent repair or maintenance work where the consumer has expressly requested Physiotherm to visit him in order to carry out this work.
The consumer may withdraw from a distance contract or an off-premises contract without giving any reason within the following time limits:
- At any time until the contract is concluded.
- Within 14 days,
in the case of service contracts, from the date of conclusion of the contract,
in the case of contracts of sale and other contracts for the acquisition of goods for consideration
- from the day on which the consumer or a third party not acting as a carrier and designated by the consumer acquires possession of the goods, or
- if the consumer has ordered several goods as part of a single order which are delivered separately, from the day on which the consumer or a third party not acting as a carrier and designated by the consumer acquires possession of the last goods delivered,
- in the case of delivery of goods in several instalments, from the day on which the consumer or a third party not acting as a carrier and designated by the consumer acquires possession of the last instalment,
- in the case of contracts for the regular delivery of goods over a fixed period of time, from the day on which the consumer or a third party not acting as a carrier and designated by the consumer acquires possession of the goods first delivered,
- If Physiotherm has not complied with its duty to inform, the withdrawal period shall be extended by 12 months, so that the maximum withdrawal period shall be 12 months and 14 days .
- If Physiotherm provides the information within 12 months of the day on which the period begins, the withdrawal period ends 14 days after the consumer has received the information.
Form of the notice of withdrawal
The declaration of withdrawal is not bound to any particular form, but must be clearly recognisable as a declaration of withdrawal. The withdrawal deadline shall be deemed to have been met if the declaration of withdrawal is sent within the deadline. The consumer may use the withdrawal form provided by Physiotherm for this purpose. However, this is not obligatory.
Consequences of the withdrawal
If the Consumer withdraws from the contract on the basis of the right of withdrawal pursuant to the FAGG, Physiotherm shall repay all payments that Physiotherm has received from the Consumer, including the delivery costs (with the exception of the additional costs resulting from the fact that the Consumer has chosen a type of delivery other than the most favourable standard delivery offered by Physiotherm), without delay and at the latest within 14 days from the day on which the declaration of withdrawal was received by Physiotherm. For this repayment, Physiotherm shall use the same means of payment that the Consumer used in the original transaction, unless expressly agreed otherwise with the Consumer. Under no circumstances will the Consumer be charged any fees for this repayment.
If the consumer withdraws from a purchase contract or any other contract for the acquisition of goods against payment, he shall return the goods received to Physiotherm without delay, but no later than 14 days from the date of the declaration of withdrawal. The deadline shall be deemed to have been met if the goods are dispatched within the deadline.
The direct costs of returning the goods shall be borne by the consumer. The return costs of goods that cannot be returned normally by post cannot reasonably be calculated in advance. The costs for the return shipment depend on the daily transport costs at the time of the return shipment. These depend in particular on the size, weight and quantity of the goods as well as the distance between the place of dispatch and the place of delivery. The average costs for the return of such goods within Austria are estimated at a maximum of approximately € 280 per pallet (1 infrared cabin or 1 heated lounger). Should the anticipated return costs exceed this amount, Physiotherm will inform the consumer of the higher return costs when the goods are delivered.
The consumer must compensate Physiotherm for any loss in value of the goods if this is due to handling that is not necessary for testing the quality, characteristics and functioning of the goods.
In the event of withdrawal from purchase contracts and other contracts for the acquisition of goods against payment, Physiotherm may refuse repayment until Physiotherm has received the goods back or the consumer has provided proof that he has returned the goods.
If the consumer has requested that the services commence during the withdrawal period, he shall pay Physiotherm a reasonable amount corresponding to the proportion of the services already provided up to the time the consumer notifies Physiotherm of the exercise of the right of withdrawal with respect to this contract in comparison to the total scope of the services provided for in the contract.
b) Consumer law in Germany:
Right of withdrawal for "doorstep selling" and consumer contracts at a distance: The consumer has a right of withdrawal and is no longer bound by his declaration of intent to conclude the contract if he has revoked it in due time. The revocation need not contain a reason and must be declared to Physiotherm in text form within two weeks. In the case of the delivery of goods, the period shall not commence before the day of their receipt by the recipient.
Consequences of withdrawal: If the consumer withdraws from the contract, he shall return the goods received or, at Physiotherm's discretion, keep them ready for collection. He shall pay compensation for the reduction in value caused by the intended use of the item. The customer can avoid the obligation to pay compensation by not damaging the original packaging of the product, by refraining from self-assembly and disassembly of the product and by not using the cabin.
Withdrawal is excluded if the goods have been manufactured according to customer specifications or are clearly tailored to personal needs.
Physiotherm has the health effects of its products and developments carefully examined in close cooperation with independent physicians. In connection with health-related questions and enquiries, Physiotherm makes corresponding efforts to address the individual information needs of the interested party. Nevertheless, Physiotherm must point out in this context that all information about its products and their effects are of a general nature and in no way replace individual medical advice, diagnosis or treatment methods for the customer's personal state of health or situation. For medical advice and treatment of personal health conditions, please be sure to consult a physician.
12. data protection
Physiotherm expressly declares that it will not pass on any personal data of customers to third parties unless this is necessary for the execution of the contract. In particular, the disclosure of data to suppliers of Physiotherm is necessary for the execution of the contract, insofar as these suppliers deliver the ordered goods directly to the customers. Furthermore, the necessary disclosure of customer data by Physiotherm to a collection agency or a lawyer shall be excluded.
Physiotherm is not liable for the content of data transmitted by the customer. You can find more detailed information under the point Data protection.
13. right of transfer
Physiotherm shall be entitled to transfer the rights and obligations arising from this contract to another company or a third party. Physiotherm shall be released from its obligations 4 weeks after notification of this legal successor, unless the Buyer raises a justified objection in writing by that time.
14 Jurisdiction, severability clause, applicable law:
For contracts with companies, the court with subject-matter and local jurisdiction for the registered office of Physiotherm (A-6065 Thaur) shall be exclusively agreed as the place of jurisdiction. For contracts with consumers from a member state of the EU, the consumer shall have the choice between his court of residence and the court of jurisdiction at the registered office of the company. The contracting parties agree on the applicability of Austrian law, insofar as no mandatory legal provisions conflict with this. The UN Convention on Contracts for the International Sale of Goods and all provisions relating to the UN Convention on Contracts for the International Sale of Goods are expressly excluded. The legal invalidity of individual parts of the contract shall not release the contracting parties from the contract, but the invalid provisions shall be replaced mutatis mutandis.
15. language clause
The specified contractual language is German. The English version of the website is for information purposes only, but does not change the applicability of Austrian substantive law.