General Terms and Conditions of VivoSensMedical GmbH for sales contracts concluded with consumers (private customers).
The following general terms and conditions (GT&C) apply for all sales contracts concluded via the online shop www.ovularing.com between VivoSensMedical GmbH, Limburgerstr. 74 C, 04229 Leipzig, Germany, telephone +49 341 355 820 99 (VivoSensMedical) and the buyer (hereinafter referred to as “you”).
1. SCOPE AND DEFINITION
1.1 The business relationship between VivoSensMedical ("us") and the customer ("you") is exclusively subject to the following GT&C in their version valid at the time of the online order. Deviating individual agreements shall only apply where these are agreed in writing.
1.2 Our offer is aimed at consumers as defined by § 13 BGB - German Civil Code. You are a consumer, to the extent that the purpose of the ordered goods and services cannot be primarily attributed to your commercial or independent professional activity. In contrast, you are a businessperson as per § 14 BGB if you are acting in your commercial or professional capacity at the time of concluding the contract.
2. PRODUCT DESCRIPTION, MANUFACTURER INFORMATION AND PERIOD OF APPLICATION
2.1 OvulaRing comprises a plastic ring, a biosensor, a reading device and the possibility to evaluate data via a web-based software. This evaluation software is made available to you on a virtual server at www.myovularing.com. The www.myovularing.com site is made available by us. Please note our data protection notice (figure 12) for use of the evaluation software.
We offer you starter or application extension packages for 3, 6 or 12 months at www.ovularing.com. With the monthly package you acquire the option of using OvulaRing including the evaluation software for 3, 6 or 12 months.
2.2 VivoSensMedical GmbH is the manufacturer of the OvulaRing. The company is registered in the commercial register of Leipzig District Court under HRB 27028.
2.3 In addition, we also market OvulaRing. Sales contracts in these countries that are concluded via the online shop www.ovularing.com come into effect between you and us.
2.4 With the delivery of the product package that you have selected, including instructions for use, you receive your access details for the personal account set up for you at “myovularing.com”.
(a) During your selected period of application you can upload your temperature data from your biosensor with the aid of the reading device and, should you choose so, add information to the evaluation software in order to include this in the evaluation of the temperature data. Following the completion of your selected period of application (3, 6or 12 months) the uploading or addition of information is no longer possible.
(b)The selected period of application (3, 6 or 12 months) begins on the day on which the first temperature data are recorded with the biosensor, at the latest one month after the date of shipping your OvulaRing package. If we ship the 3-month starter package that you have ordered on 15 June, the period of application (irrespective of when you utilise the biosensor for the first time and record temperature data) will consequently end on 15 October at the latest. If you begin utilising the biosensor directly after receiving the package, e.g. on 20 June, the period of application will end on 20 September.
(c) In the event of pregnancy or illness that renders your use of the OvulaRing impossible, you may suspend use in the scope of a 6 or 12-month package. This also applies to the purchase of a 3 month starter package and the subsequent purchase of a 3 month application extension. Suspension in the scope of a 3-month package is not possible. Pauses in application are only possible for full application months. For example, if you have ordered a 12-month package and your application commences on 15 July and you inform us on 25 September that you wish to suspend use, we will record suspended use from 15 October and credit you with a 9-month application period. If you inform us of the suspension of use by 15 September, we will credit you with a 10-month application period. Depending on the length of the pause, you may require a replacement sensor for a service fee of € 45.00 each. To suspend application please contact our customer service on the service telephone number +49 341 355 820 99 (Mon-Fri 9 am-4 pm) or via e-mail (firstname.lastname@example.org).
2.5 Following the ending of the period of application (see figure 2.4(b)) the temperature data shall be stored for a further 24 months and made available to you by the manufacturer via the evaluation software myovularing. You have the opportunity to store this data locally on your PC or a data carrier. On request we will be happy to make your temperature data available in a generally legible .csv format for your own use.
Following on from the aforementioned 24 months the cycle data collected shall be stored by VivoSensMedical GmbH for further research, without any personal reference. The reference to personal details of the user shall be deleted. The temperature data is subsequently only available in anonymised form, i.e. the attribution of the temperature data to a user is not possible from this time on
3. CONCLUSION OF CONTRACT
3.1 When ordering, please note the information on the screen that guide you through the ordering process. The ordering process functions as follows:
(A) Select an OvulaRing package and click the “Order” button. The product is then placed in your shopping basket.
(B) Select a method of payment and complete the “Invoice details” form.
(C) Now click the check box to confirm that you accept the GT&C and data protection terms and that you have read the cancellation policy.
(D) Only after confirming our GT&C, the data protection terms and the cancellation policy can you click “Buy now”.
With the clicking of the “Buy” button a sales contract comes into effect between us and you for the products contained in the shopping basket. The order preview, the GT&C, the cancellation policy and data protection notice may be saved electronically and/or printed out prior to sending your order.
3.2 We shall confirm the receipt of your order and the sales contract promptly electronically by sending an e-mail to the e-mail address stated in the order process. With this e-mail we shall send you the contract text (comprising the order and the applicable GT&C and data protection notice) again together with the cancellation policy as .pdf. Please note that on our website we only provide the respectively valid version of the GT&C and data protection notice, but that the GT&C and data protection notice applicable to you are the versions valid at the time point of your ordering. We do not save the contract text for your order.
3.3 Conclusion of contract is in German.
4. SHIPPING AND DELIVERY
4.1 We ship our products via DHL standard shipping. For orders from Germany we can generally ship our products within 1-3 working days (Monday-Friday) of receipt of payment. In any case, delivery occurs within the delivery time stated by us in the order confirmation (figure 3.2).
4.2 In the event of a delay that could not be foreseen by us at the time of concluding the contract and that we are also not responsible for, we shall inform you of this situation without delay and inform you when you can expect delivery. In this case the delivery period shall be extended accordingly by the length of the circumstances hindering delivery, to the extent that this is reasonably acceptable. At the latest when this delay continues for longer than 4 weeks both you and we shall be entitled to withdraw from the contract. In the event of us withdrawing, we shall naturally repay any payments already made to us without delay.
4.3 We are entitled to partial delivery and partial performance to the extent that this is reasonably acceptable to you. For the 12-month package two separate deliveries for 6 months each are sent, to ensure the durability of the products. The first delivery contains a biosensor, 6 plastic rings, 1 scanner and accessories; the second delivery contains a new biosensor, 6 plastic rings and accessories).
4.4 Shipping is free of charge within Germany. Shipping within Europe costs 10 euros per delivery.
5.1 The prices stated in our web shop are final prices in euros, including the statutory value-added tax.
5.2 In our web shop we state both the total price for your order and, to simplify price comparison, the subsequent monthly costs.
6. TERMS OF PAYMENT
6.1 For the processing of payment transactions via invoice, direct debit, credit card and payment instalments we work with the following providers:
Klarna AB (www.klarna.de), Sveavägen 46, Stockholm, Sweden
PayPal (Europe) S.à r.l. et Cie, S.C.A. (paypal.de) 22-24 Boulevard Royal L-2449 Luxembourg
6.2 Payment of the total amount for the 3 or 12-month packages can be made via the following payment options:
- Transfer in advance with 3% cash discount directly to the account of VivoSensMedical
- Direct debit, granting direct debit authorization to VivoSensMedica
- PayPal direct transfer
- Direct debit via PayPal
- Credit card via PayPal
- Purchase on account via Paypal
- Payment in instalments via Paypal plus charges depending on instalment amounts and duration
- Purchase on account via Klarna
- Direct debit via Klarna
- Credit card via Klarna
- Payment in instalments via Klarna plus charges depending on instalment amounts and duration
6.3 If you choose one of the payment options of the provider PayPal or Klarna, the respective GT&C and data protection notices of the provider apply. The GT&C and data protection notices of the providers can be found at the following links:
6.4 If you decide on the payment form instalments via Paypla or Klarna as provider, further charges are incurred. These depend on the individually-selected instalment amount and the individual duration of the instalment agreement. Detailed information regarding the conditions can be found here:
6.5 You shall only be entitled to rights to offset and retain payment where your counter claims have been legally determined or not disputed by us or recognised by us. In addition, you shall be entitled to offset and retain payments regarding our claims where you enforce notification of defects or counter claims from the same contract.
7. RETENTION OF TITLE
We retain title to the product until complete payment has been effected.
8.1 OvulaRing has been produced and tested in accordance with the statutory requirements applicable in Germany and thereby complies with all possibilities open to the manufacturer to avoid health risks.
To ensure safe use, please read and observe the instructions for use enclosed to the product. We shall not be liable for limitations to the system that are the result of improper use or incorrect operation or defective cleaning.
8.2 Where a defect exists we shall be liable in accordance with the terms of §§ 434 et seq. BGB, to the extent that no restrictions arise from the following clauses.
8.3 Should you note a defect, inform us of this without delay (see figure 11.2). We shall rectify the defect (improvement) or supply a product free from defects (subsequent delivery), at your discretion. This shall not apply where the requested form of supplementary performance cannot be reasonably expected of us, for example where it is associated with disproportionate costs. You must grant us a reasonable time period for supplementary performance. During this time you shall not be entitled to reduce the purchase price or withdraw from the contract.
8.4 If, despite two improvements, the defect has not been rectified, we do not intend to provide supplementary performance or are not able to do so, if this fails to occur within a reasonable period of time or if the supplementary performance fails for whatever reason, you may choose - where the defect is not merely insignificant – to withdraw from the contract or demand a corresponding reduction in the purchase price (reduction).
8.5 For the web-based evaluation software the following applies:
(a) We guarantee an annual average availability of the web-based evaluation software of 95%. Warranty claims do not exist in the case of short-term unavailability of the software. During the period of application we assume functioning access to your account and thereby the provision of performance on our part so long as you do not report a malfunction to us or the manufacturer.
(b) The availability rate of 95% does not include downtime arising from maintenance, service and updating work announced in advance in good time (at least 48 h) or from technical or other problems that are beyond our influence (e.g. force majeure, loss of network and services of the host). As a rule, maintenance, service and updating work takes place at the weekends between Saturday 12:00 and Sunday 12:00 or at night on any weekday in the time from 11:00 pm to 06:00 am the next morning. In exceptional cases a system maintenance may be carried out at all other times, whereby the impairment of use shall be kept as low as possible.
(c) We are entitled to limit access to the evaluation software services where this is necessary for the security of the network operation, the maintaining of network integrity (in particular the avoidance of significant disruptions in the network, the software or data stored).
8.6 In the event of loss or damage to the temperature sensor or scanner caused by the customer we offer the possibility to replace the temperature sensor and/or the scanner for the price of a service charge of € 45.00 each per loss and case of damage.
9.1 Our liability (including the liability for our legal representatives and agents) is limited to intent and gross negligence.
This does not apply
(a) in the case of damage to life, limb or health
(b) for claims against breach of cardinal duties, i.e. duties that arise from the nature of the contract and the breach of which endangers achievement of the contractual purpose
(c) for claims under product liability law and
(d) for claims based on wilful deceit.
9.2 In the case of breach of key contractual obligations, we shall only be liable for typical contractual and foreseeable damage where this has been caused negligently, unless this involves a claim for compensation on the part of the customer from damage to life, limb or health.
10. CUSTOMER SERVICE
10.1 For general queries regarding the product please contact our customer service on the service telephone number +49 341 355 820 99 (Mon-Fri 9 am-4 pm) or via e-mail (email@example.com).
10.2 In the case of complaints regarding the product that we have supplied, please provide us with the following details in your notification of defects, so that we may examine your claim for supplementary performance:
- Name, address and customer number
- Reasons for complaint
- Use-by date of product
- LOT no. of outer packing of the article(s) subject to complaint
You may send us an e-mail at firstname.lastname@example.org, call us (+49 341 355 820 99) or contact us via post (VivoSensMedical GmbH, Limburgerstr. 74 C, 04229 Leipzig, Germany).
10.3 If, following a notification of defect as per figure 10.3, we request that you sent us the product complained about, please send this directly to the business address stated above.
11. DATA PROTECTION
The data protection terms of VivoSensMedical GmbH apply for the processing of personal data. These may be found at https://ovularing.com/en/data-protection-and-privacy/. By agreeing to these GT&Cs the orderer expressly agrees to the collection, processing and use of personal data to a regulated extent.
12. SETTLEMENT OF DISPUTES
12.1 We are neither obliged nor prepared to participate in arbitration proceedings before a consumer arbitration body.
12.2 The European Commission provides a platform for the online out-of-court settlement of disputes, which can be accessed at www.ec.europa.eu/consumers/odr. Our e-mail address can be found in our legal information.
13. RIGHT OF REVOCATION
13.1 You are entitled to a statutory right of revocation, about which we inform you as follows, in accordance with the statutory terms:
You have the right to revoke this contract within fourteen days, without statement of reason.
The revocation period is fourteen days from the day on which you or a third party designated by you, who is not the carrier, have taken possession of the goods.
To exercise your right of revocation you are required to inform us, VivoSensMedical GmbH, Limburgerstr. 74 C, 04229 Leipzig, Germany, telephone +49 341 355 820 99, e-mail: email@example.com via a clear declaration (e.g. posted letter, fax or e-mail), of your decision to revoke this contract. You may use the enclosed sample revocation form for this purpose, but this is not obligatory.
To observe the revocation deadline it is sufficient for you to send us the notification of your decision to exercise your right of revocation before the ending of the revocation period.
Consequences of revocation
If you revoke this contract, we shall be obliged to repay all payments that we have received from you, including shipping costs (with the exception of the additional costs arising from the fact that you have selected a different form of shipping to the reasonably-priced, standard shipping that we offer), without delay and at the latest within fourteen days from the day on which we receive your notification of revocation of this contract. For this repayment we use the same form of payment that you have employed in the original transaction, unless otherwise expressly agreed with you; in no case will you be charged for this repayment.
We may refuse repayment until the goods have been received back or you have provided proof that you have sent the goods back, depending on which is soonest.
You are to send the goods back to us or hand them over without delay and in any case at the latest within fourteen days of the day on which you inform us of the revocation of this contract. The deadline is met where the goods are sent prior to the ending of the fourteen-day period.
You shall bear the indirect costs of returning the goods.
You shall only be required to bear any loss of value of the goods where this loss of value is due to treatment of the goods that is not required for the examination of quality, characteristics and function of the goods.
13.2 According to statutory requirements, we inform you of the sample revocation form as follows:
Sample revocation form
(If you wish to revoke the contract, please complete the enclosed form and return it to us.)
Limburgerstr. 74 C
Telephone: +49 341 355 820 99
I/we hereby revoke the contract that I/we have concluded for the purchase of the following goods…
Ordered on..., received on…
Name of consumer
Address of consumer
Signature of consumer
13.3 The right of revocation is excluded for the delivery of sealed products - here the plastic rings, the biosensor and the alcohol pads – that for reason of the protection of health or hygiene are not suitable for return if their seal has been removed after delivery.
14. MONEY-BACK GUARANTEE
If you use OvulaRing for at least 3 months and OvulaRing cannot detect any ovulation during your time of application use, you will get your money back.
In order to be eligible for the money back guarantee, the following conditions must be met:
- You must have worn OvulaRing continuously for at least 3 months.
- Recording gaps must not have been greater than one hour a day, with the exception of the time of your periods.
- In each cycle you have started using OvulaRing on the 6th day of the cycle at the latest.
- OvulaRing has not indicated even one ovulation during your time of application.
- You must not be older than 45 years.
- You have to request at least one cycle consultation and have released your cycles to the OvulaRing service.
If these conditions are met, the following procedure applies in order to be able to claim the right to the money-back guarantee. Write us an email with the subject money back guarantee to firstname.lastname@example.org no later than 4 weeks after the end your application time. Tell us the reason why you want to claim the money-back guarantee and send us your bank details or your PayPal account. We will review your case within 5 working days and will contact you again if we have any questions. If the conditions are met, we will transfer the money to you within 10 working days.
15. CONSENT TO DIRECT ADVERTISING
The customer agrees that VivoSensMedical GmbH may use its contact details for support and advertising exclusively for own purposes. I.e. the orderer may be sent news or current product information. The sending of information material may be objected to at any time via e-mail to email@example.com or post to VivoSensMedical GmbH, Limburgerstr. 74 C, 04229 Leipzig.
16. AMENDMENTS TO THESE GT&C
16.1 VivoSensMedical GmbH reserves the right to amend the GT&C at any time without statement of reasons. The amended GT&C shall be sent to all customers at the latest two weeks prior to their entry into effect, at the e-mail address provided. If a customer fails to object to the validity within two weeks of receipt of the e-mail, the amended GT&C shall be deemed to have been accepted. VivoSensMedical GmbH shall explicitly refer to the aforementioned deadline in the e-mail.
16.2 Id a customer objects to the amendments undertaken in the GT&C, the existing account at VivoSensMedical GmbH shall be closed. Repeat registration is possible at any time, however.
16.3 The previous version of the GT&C shall continue to apply for access undertaken prior to the time point of the amendment.
17. SEVERABILITY CLAUSE
If a term of these GT&C is invalid, this shall not affect the remainder of the terms. The invalid term is to be replaced by a valid term that approaches the meaning and economic purpose of the invalid term as closely as possible. The same applies for any loopholes.
Status: 08 May 2020