General business
conditions of
GAMMA Medizinisch-wissenschaftliche Fortbildungs-GmbH
(GAMMA)
Josef-Brenner Strasse 10, 3400 Klosterneuburg – AUSTRIA
In
principle, the contractual parties undertake to display mutual loyalty. GAMMA
requires that its co-workers comply with the provisions of the data protection
laws.
If
any individual conditions of this contract are, or should become void or
inoperative, this will not affect the remaining contents of this contract. The
parties will work together as partners towards an arrangement which approaches
the sense of the inoperative provision as nearly as possible.
1
Tending an offer and
conferring of contract
1.1
A contract is effected exclusively by means of written confirmation or
upon delivery of goods by GAMMA.
Collateral
agreements, changes and amendments of this contract require the written
confirmation of the contractual partners in order to be valid. The same applies
for any guarantees regarding features, as well as for any waivers regarding the
requirement for written confirmation.
Quotations
are, in principle, subject to change without prior notice.
2
Terms of payment, prices, taxes and charges
2.1
Prices are valid ex-warehouse Klosterneuburg, Austria, exclusive of all
incidental costs as well as of the statutory Value Added Tax and, unless
specifically noted otherwise, are given in Euros. Prices are valid only for the
order on hand.
In case
of failure to meet the term of payment, the client is obliged to pay the
customary bank interest charges on the buying price.
3
Right of detention, compensation, cession
3.1
The client may not refuse to meet his/her obligations on the basis of
any possible counter-claims, nor may the client withhold payment or make
pretension to compensation for costs that may be incurred, unless the grounds
and the extent of these claims are undisputed by GAMMA, or are legally
established and binding.
Cession
of a client’s claims against GAMMA is only possible with the express permission
of same.
4
Delivery date, Term of delivery
4.1
The delivery date begins when the client receives the
confirmation of order from GAMMA.
4.2
The term of delivery is
complied with if, before its expiry, the product has left the GAMMA warehouse
in Klosterneuburg, Austria (shipping date or postmark), or when written notice
is given that the product is ready to be shipped.
4.3
The term of delivery will
be extended as necessary in cases of labor disputes, in particular strikes and
lock-outs, or in case of unforeseen hindrances, which are beyond the control of
GAMMA, insofar as these hindrances can be demonstrated to have a considerable
influence on the production or delivery of the product. This also applies to
the sub-contractor, if such problems should materialize. Even if the
aforementioned circumstances occur at a time when there is already a delay, no
claims may be made on GAMMA. Any agreed-upon contractual penalty is invalid
under these circumstances.
4.4
The prerequisite for compliance with the term of delivery is that the client
fulfills all contractual obligations.
5
Devolution of risk and
receipt (of goods), compulsory inspection and compulsory complaint, acceptance
5.1
Risk is transferred
to the client, at the latest, with the dispatch of the shipment, even in the
case of a part-delivery, or when GAMMA has undertaken to perform other
services. Redeliveries are carried out at the risk of the client.
5.2
Part-deliveries are permissible,
§ 8.1 takes priority.
5.3
If the client
is a qualified merchant, he/she is required to inspect the goods immediately
and to inform GAMMA, in writing, within 10 days at the latest, of any
substantiated defects or deficiencies, i.e., wrong goods or wrong quantities.
After the expiration of this term, the product is considered to be accepted. In
cases of “hidden” defects, the client (qualified merchant) bears the burden of
proof.
5.4
In case of defects on
deliveries, caused during transport, the carrier has to be informed immediately
at time of takeover
5.5
Acceptance can only be refused in case of considerable defects or
deficiencies.
6
Proprietary rights
6.1
GAMMA retains proprietary rights to the product until all of the obligations of the
business transaction (including future business arrangements) have been settled
(including all balance payments due from account current).
6.2
The client may only utilize the product in the normal course of
business, and confers upon GAMMA the joint-ownership of any new product
resulting from the connection or combination of the GAMMA product with any
other products. Upon disposal (sale), the client will transfer to GAMMA, in
advance, for security reasons, the sum of the invoiced amount of its purchase
price, in accordance with the joint-ownership agreement. The transfer will be
accepted by GAMMA.
In
case of breach of contract on the part of the client, especially in cases of
default of payment, GAMMA has the right to reclaim the product(s), after a
default reminder, and the client is obliged to return the product(s).
7
Liability for wrong goods and/or wrong quantities
7.1
In principle, GAMMA is liable for damages, insofar as gross negligence or
intent can be demonstrated on its part, within the scope of legal provisions.
Liability for simple negligence is precluded. As far as legally allowed,
compensation is precluded, in any case, for consequential damages and property
damages, non-attained savings, loss of interest fees, and damages from claims
of a third party against GAMMA. GAMMA assumes liability for defects and/or
deficiencies in the shipment, including the absence of features which are
explicitly guaranteed, to the exclusion of further claims, notwithstanding § 8,
as follows, if the shipment is not considered to be accepted, in accordance
with § 5.3: all of these parts are to be
repaired, free of charge, or replaced with new ones, if they display defects
and/or deficiencies which can be attributed to GAMMA, within 2 years of
delivery on movable parts, within 3 years of delivery for non-movable parts,
and if GAMMA has received written notification of these defects and/or
deficiencies. All replacements remain the property of GAMMA.
7.2
After a written complaint
to GAMMA AG of wrong goods and/or wrong quantities, the client is obliged to
allow GAMMA the opportunity to carry out any and all repairs and/or shipments
of replacements, which it may deem necessary, according to its judgment and
responsibility; otherwise, GAMMA is free from any liability. Only in extreme
circumstances, involving a threat to the operational security and to prevent
excessive or disproportionately greater damage, whereby GAMMA must be informed
immediately, or if GAMMA is delayed in repairing a defect, does the client have
the right to repair a defect himself/herself, or to have a defect repaired by a
third party. In this case, the client may demand reimbursement from GAMMA, for
the necessary costs incurred.
7.3
GAMMA assumes the immediate
costs for the repairs and/or delivery of replacements- insofar as the complaint
proves to be valid- the costs of the replacement items, including shipment
charges, and reasonable costs for dismounting and installation; further,
according to individual circumstances, the costs which may actually be necessary
for engaging assemblers and assistants. Any other costs are borne by the
client.
7.4
The term of liability for
the replacement is 3 months, but this term must extend to at least the expiry
date of the original shipment’s term of liability. The term of liability for
wrong goods and/or wrong quantities will be extended for the amount of time of
interrupted operation, necessitated by the repairs.
7.5
GAMMA bears no liability
for the consequences of any possible inappropriate alterations or repair work,
carried out by the client or a third party, without previous, express
authorization from GAMMA.
8
The client’s right of
rescission and other liability of GAMMA
8.1
The client can rescind the contract, if it is clearly impossible for
GAMMA to provide complete service, prior to the devolution of risk. The same is
true for incapability on the part of GAMMA. The client can also rescind the
contract if, after placing an order for products of the same type, it is
finally impossible for GAMMA to deliver the required number of part of the
shipment, and the client has a legitimate interest in refusing part-delivery;
if this is not the case, the client may proportionately reduce the amount of
his/her obligation.
8.2
If this impossibility
arises during an already existent delay in acceptance or through the
encumbrance of debt on the part of the client, the client remains under the
obligation to pay.
8.3
The client has the right of
rescission, if GAMMA, in the absence of mitigating circumstances, allows the
expiration of two appropriately set term-extensions for repairs or the delivery
of replacements, relative to wrong goods or wrong quantities attributable to
GAMMA, in accordance with the conditions of delivery. The client is obliged to
allow two attempts at repairs. The client’s right of rescission is also valid
in other instances involving two unsuccessful attempts at repair or delivery of
replacements on the part of GAMMA.
All
further client claims are precluded, especially regarding conversion, price-reductions
and compensation for damages of any kind, including those damages not arising
on the product itself. This preclusion of liability is not valid in cases of
malicious intent or gross negligence on the part of the proprietor or
managerial employee, or in those cases in which liability for defects and/or
deficiencies in the product is assumed for personal injury and material damages
on units in private use. This preclusion also does not apply to missing
features, which are explicitly guaranteed, if the express purpose of said
guarantee is to protect the user against damages, not arising on the product
itself.
9
Copyright protection
9.1
Designs, models, software, tools, programs, documentations and the like, from
GAMMA, are the intellectual property of GAMMA and, although no specific
protection exists, they may not be copied by the client or used in any way for
reproduction, nor may they be ceded to a third party, neither free of charge
nor for remuneration, nor used in any manner other than within the scope of the
conditions agreed upon by GAMMA and the client.
In
the case of orders, according to the client’s own specifications (drawings,
designs, etc.) the client assumes liability. In this way, the patent rights
will not be infringed upon.
10
Installation
10.1
If installation of the
product is agreed upon in writing, GAMMA will install the product for the
client, in a state of operational readiness. The following constitute the
prerequisites for installation:
a. the client has, and
makes available, an appropriate location for the apparatus, including all of
the proper connections (water, electricity, etc.).
b. the apparatus may not have been altered by the client before installation.
10.2
The installed product is considered to be in
operational readiness after being subjected successfully to the GAMMA
functional testing process, and witnessed to by the client’s counter-signature
on the certificate of acceptance. If the client does not sign the certificate
of acceptance, despite a successful functional test, GAMMA will instruct the
client as to the consequences of exceeding the acceptance deadline and will
offer an extension of at least two weeks: if the client does not offer an
explanation before expiry of this extended term, operational readiness is
assumed as certified nevertheless, with the date of the functional test.
10.3
If, after delivery, the
agreed-upon installation of the product cannot be effected by GAMMA, for
reasons attributable to the client, GAMMA AG will instruct the client as to the
consequences of exceeding the deadline and offer the client a deadline of 30
days; if the installation has still not been carried out upon expiry of this
term, also for reasons attributable to the client, operational readiness is
considered as certified from the date of delivery.
10.4
GAMMA assumes no obligations
for connecting the product to any apparatus or appliance belonging to the
client, which has not been supplied by GAMMA.
11
Concluding stipulations
Unless otherwise agreed to, the
applicable legal provisions in effect between qualified merchants are
exclusively according to Austrian law, also when the contract is carried out in
another country. The territorial jurisdiction of the relevant court for the
registered seat of the GAMMA is the exclusive authority, in case of possible
disputes and/or litigation. The above-mentioned conditions are applicable to
consumer sales, within the intent of the consumer protection laws, only insofar
as the consumer protection laws do not specifically make other provisions.