GENERAL
TERMS AND CONDITIONS
P. PRELIMINARY REMARK:
P.1 healthfactories biotech GmbH, FN 472896k, based in Austria, hereinafter referred to as “HF”, is the manufacturer of various technical products. These products are used in veterinary medicine, human medicine and for non-medical applications on humans and animals.
1. SCOPE
1.1 These terms and conditions apply in particular to orders and service contracts, but also to other legal transactions between HF and the customer. If the customer is an entrepreneur, these GTC also apply to future supplementary or follow-up orders, even if no longer explicitly referred to.
1.2 If the customer is an entrepreneur within the meaning of the KSchG, the current version of the General Terms and Conditions of HF applies at the time of conclusion of the contract, available at www.healthfactories.com. If the customer is a consumer, the version that was explicitly agreed upon at the conclusion of the contract shall apply.
1.3 Terms and Conditions of the Customer or amendments or additions to our Terms and Conditions require the express written consent of the Customer to be valid. Terms and Conditions of Customers shall not be accepted, even if HF does not expressly object to them after receipt of the same.
2. ORDERS
This section (these are items 2 to 7) governs orders (purchase contracts and rental contracts), payment, delivery and legal issues related to the product and the order (warranty, transfer of liability, etc.). Particular reference is made to the warnings set out in this section, in particular those set out in points 3.3,
3.4 (warranty, warranty, high voltage) and 7 (remedies).
2.1 Products are ordered by means of an order form, which is issued by HF and signed by the customer. The order form contains the customer's data necessary for invoicing, type, quantity, type of financing (purchase, rental or leasing) and price of the product(s) to be ordered. If it is a rental, the rental period is also indicated. The order is valid if HF confirms the order signed by the customer in writing within a maximum of 14 days. Individual ancillary agreements in the order form take precedence over the provisions of these GTC.
2.2 Cancellation:
a) If the customer is a consumer within the meaning of the applicable legal provisions and the order was placed by distance selling, the customer is entitled – subject to more favourable legal provisions – to cancel his order within 14 days without penalty. In this case, the order must be returned free of charge for the customer.
b) HF is entitled, but not obliged, to cancel already confirmed orders without penalty, if the financing underlying the order (leasing transaction) is refused, an agreed down payment is not made or if the ordered product is a product for veterinary or human use and the ordering natural or legal person does not have the necessary expertise to use this product.
2.3. Unless otherwise stated in the order form, the prices quoted there plus VAT are valid. 20% VAT.
2.4. Purchase transaction: If the order is a purchase transaction and nothing else has been agreed in the order form (order form), within 14 days after the conclusion of the legal transaction pursuant to Art. Clause 2.1 to pay a deposit of 20% of the gross order value without any deduction to the account of HF. The invoicing of the remaining payment in the amount of 80% of the gross order value and – if agreed – the transport costs takes place within 7 days after dispatch of the product. If no delivery date is agreed on in the order form, the product will be delivered in accordance with point 4 (delivery and transport).
2.5 Rental business: If the order is a rental business and nothing else has been agreed in the order form (order form), the following shall apply:
a) HF rents and the customer rents the product specified in the order form (order form).
b) Products must be delivered to the customer within a maximum of 30 days.
c) The rental period is 36 months. The rental contract begins on the first of the month following the delivery of the product and ends at the end of the 36th month of the contract.
d) If the hiring party is a consumer, the latter is entitled to terminate the rental agreement subject to a notice period of six months. If the hiring party is an entrepreneur, he waives his ordinary right of termination and this fact has been taken into account in the amount of the rent payment.
e) The amount of the rental interest is determined from the order form. The rental rate is hedged according to the CPI 2015 (announced by Statistics Austria). Reference month is the day of the order.
f) The first rental payment is due on the first of the month following the delivery of the product to the customer with a respiro of 7 days in advance. HF is entitled but not obliged to invoice rental costs quarterly in advance. Payments are to be made in such a way that on the 1st of each quarter (1. 1, 1. 4, 1. 7. , 1. 9) or in the case of monthly payment, on the 1st of each calendar month in advance with a respiro of 7 days without any deduction and free of charge to the account of healthfactories biotec GmbH, at Raiffeisenbank Salzburger Seenland ,IBAN AT303504700075133215, BIC: RVSAAT2S047, free of charge and free of charge.
g) The product remains the property of HF and may be used for the rental period in accordance with the operating instructions.
h) The customer agrees that the rented product will not be sold outside the EU or the EU without the consent of HF. EEA may be moved.
i) After expiry of the rental agreement, the product shall be returned to HF in such a way that it will arrive there no later than 14 days after expiry of the rental agreement. Missing parts or equipment or damage that goes beyond natural wear and tear will be invoiced separately and will be borne by the customer.
i) HF is entitled to terminate the rental agreement before the expiry of the agreed period without observing any deadline if the customer is in arrears of payment for more than two months and HF warns the customer in a qualified manner.
j) For the duration of the rental contract, a service contract according to item 10 is deemed to have been concluded, whereby the service level is STANDARD. The cost of the basic fee for the service contract is already included in the rent.
2. 6 If the customer is an entrepreneur with registered office outside the Republic of Austria, but within the EU or the EEA, the customer must announce his UID HF at the latest at the same time as placing the order. In such cases, an intra-Community supply is effected by HF without any special provision for turnover tax. If the customer is an entrepreneur based outside the EU or the EEA, a delivery will be made as a “reverse charge” if the customer submits to HF a proof of his entrepreneurial status and his right to deduct VAT, which meets the requirements of the Austrian tax authorities. If these documents are not collected in time, i. e. in the case of purchase contracts before the first partial invoice or in the case of rental contracts before the first invoice, HF is entitled to invoice the customer for the service plus 20% VAT.
2. 7 If the customer is an entrepreneur, default interest acc. § 456 UGB as agreed. If the customer is a consumer, default interest of 5% is considered as agreed. We reserve the right to claim further damages due to delay, but only against consumers as customers if this has been negotiated in detail.
2. 8 The Customer shall only be entitled to set-off insofar as counterclaims have been established in court or recognised by HF. Consumers as customers also have the right to set off insofar as counterclaims are legally connected with the payment obligation of the customer, as well as in the event of insolvency of our company.
2. 9 If the payment deadline is exceeded, any compensation granted (discounts, deductions, etc. ) will be forfeited and will be charged to the invoice.
2. 10 In the event of default of payment, the customer undertakes to reimburse HF for the costs necessary and appropriate for the collection (reminder costs, collection costs, attorney's fees, etc. ).
2. 11 Insofar as in acc. Point 2. 1 of the order form provided nothing else has been agreed, a discount deduction is excluded.
2. 12 If, due to the legal provisions of the country in which the Customer has its registered office, a withholding tax has to be paid on an invoice of HF, the Customer must adjust the amount paid in such a way that the invoice amount is credited to the business account of HF without deduction.
3. WARRANTY, WARRANTY AND DEFECTS
3. 1 Warranty: As required by law, HF provides a warranty for its products for a period of two years. The warranty period begins on the day on which the respective device is received by the customer. It is noted that damage due to external influences or operating errors is not covered by the warranty. The customer was informed that the products of the equitron and omnitron classes contain components which – depending on the extent of actual use – have to be serviced professionally. Maintenance measures on the components described in clause 10. 2 do not constitute a warranty case. On the possibility to conclude a service contract acc. Point 8 has been mentioned.
3. 2 Warranty: HF grants a voluntary warranty (manufacturer's warranty) for its products that goes beyond the statutory warranty. HF guarantees the functionality of its devices for a period of 2 years. This warranty covers the primary device as well as the provisions in point 10. 2 para. 1 shown components. Wear parts within the meaning of point 10. 2 para. 2), as well as damage caused by external influences or operating errors, regardless of which component is affected by the damage. The warranty period begins on the day the device is handed over to the customer. If a warranty event occurs, the purchaser has to report this warranty event by presenting the takeover receipt HF and send the device to HF. If there is a warranty case, HF will arrange for the repair of the device at its own expense and return the device repaired to the customer within a reasonable period of time. The transport costs from Healthfactories to the end customer are covered by the manufacturer's warranty. For questions regarding the practical handling of a warranty case, please contact HF directly.
3. 3 HF furthermore warrants that all delivered products, insofar as a product authorisation is required by law, have a product authorisation valid for the country to which the product is delivered by HF. HF expressly points out to the customer that it may not be permissible to operate outside the country in which HF has delivered the product.
3. 4 WARNING.
THE PRODUCTS OF THE EQUITRON AND OMNITRON CLASSES USE HIGH VOLTAGE. DEVICES IN THESE PRODUCT CLASSES MAY ONLY BE USED AS DESCRIBED IN THE INSTRUCTIONS FOR USE PROVIDED. THE DEVICES ARE DESIGNED FOR USE BY QUALIFIED PERSONNEL, EVEN IF THEY ARE NON-MEDICAL VERSIONS. OPENING THE DEVICE CAN LEAD TO SERIOUS INJURIES AND EVEN DEATH.
3. 5 No defect is justified by the fact that the product is not fully suitable for the purchased use.
3. 6 If HF rectifies a defect claimed by the Customer, this does not constitute an acknowledgement of the defect claimed by the Customer, unless HF acknowledges the defect separately and in writing. In order to remedy the defect, HF must be allowed at least three attempts by the business customer.
3. 7 If the customer's claims of defects are unjustified, HF shall be entitled, but not obliged, to invoice the customer separately for the expenses incurred by HF for the determination of the absence of defects or the correction of defects.
3. 8 Defects in the delivery item which the business customer has discovered or should have discovered by inspection after delivery (e. g. obvious transport damage) must be reported to HF immediately, but at the latest within 14 days from the date of delivery, in writing. An email to service@healthfactories. com is a written notice within the meaning of this condition.
3. 9 If a complaint is not raised in time, the goods are deemed to have been approved.
3. 10 Any use or processing of the defective products, which threatens further damage or makes it difficult or impossible to ascertain the cause, shall be immediately discontinued by the customer, unless this is unreasonable.
4. DELIVERY, TRANSPORT, RETENTION OF TITLE AND DELAY IN ACCEPTANCE
4. 1 Unless otherwise agreed between the parties, the delivery of ordered goods shall take place no later than 21 days after receipt of the down payment invoice. If no down payment invoice has been agreed in the individual case, delivery will take place within 21 days after receipt of the order. If no separate delivery address is specified in the order form, delivery will be made to the invoice address.
4. 2 In the event of force majeure, strike, unforeseeable delay of suppliers for which HF is not responsible, or other similar events beyond the control of HF, the time limits and dates set out in point 4. 1 shall be postponed during the period during which the respective event continues. This shall not affect the right of the customer to withdraw from the contract in the event of delays that make a commitment to the contract unreasonable. The latter is to be accepted for delivery delays of more than 60 days.
4. 3 Section 7b KSchG applies to the transfer of risk when the goods are sent to the consumer. The risk passes to the corporate customer as soon as HF has the item of purchase ready for collection at the factory or warehouse, delivers it itself or hands it over to a carrier. The delivery of products of the product classes equitron and omnitron is insured if it is carried out by a carrier.
4. 4 The goods delivered or otherwise handed over by HF remain the property of HF until full payment has been made (reservation of title). A resale is only permissible if this has been notified to us in good time, stating the name and address of the purchaser and if HF agrees to the resale. In the event of consent, the purchase price claim of the entrepreneurial customer shall be assigned to HF.
4. 5 If a delivery of an ordered product has taken place in individual cases without prior full payment and the customer is in default of payment, HF shall be entitled to demand the reserved goods with a reasonable grace period. HF may only exercise this right vis-à-vis consumers as customers if at least one outstanding performance of the consumer has been due for at least six weeks and HF has unsuccessfully served a warning under threat of this legal consequence and with a grace period of at least two weeks.
4. 6 Unless otherwise agreed between the parties to the contract, the customer shall bear the transport costs in addition to the purchase price.
4. 7 Customs charges shall be borne by the customer.
4. 8 Default of acceptance: If the customer is in default of acceptance for more than 2 weeks (refusal of acceptance, delay with advance payments or otherwise), HF is entitled to store the goods and to invoice a storage fee in case of insistence on fulfilment of the contract. This shall not affect the right of HF to pay the price for the goods and to withdraw from the contract after a reasonable grace period.
5. INTELLECTUAL PROPERTY
5. 1 Product descriptions, operating instructions, logos and product names as well as sketches, illustrations, cost estimates and other documents provided by HF remain the property of HF.
5. 2 HF expressly points out that the products manufactured and marketed by HF are also protected by copyright unless they are protected by patent or trademark law. Any use or reproduction of supplied materials infringes the protected rights of HF or its licensor.
5. 3 healthfactories™, omnitron™ and equitron™ are registered trademarks of healthfactories GmbH, Freilassing, Germany.
6. LIABILITIES
6. 1 In the event of financial damage, HF shall only be liable for liability due to breach of contractual or pre-contractual obligations, in particular due to impossibility, delay, etc. in the event of financial damage in cases of wilful intent or gross negligence on the part of HF.
6. 2 Liability vis-à-vis corporate customers is limited to the maximum amount of any liability insurance taken out by us.
6. 3 This limitation also applies to damage to an item that we have taken over for processing. In the case of consumers, however, this only applies if it has been negotiated individually.
6. 4 Any claims for damages held by entrepreneurs must be asserted before court within two years; otherwise, they shall expire.
6. 4 Claims for damages of corporate customers shall be asserted in court within two years in the event of other forfeiture.
6. 5 The exclusion of liability also includes claims against our employees, representatives and vicarious agents due to damages they cause to the customer – without reference to a contract on their part with the customer.
6. 6 Our liability is excluded for damage caused by improper handling or storage, overuse, failure to comply with operating and installation instructions, incorrect assembly, commissioning, maintenance, maintenance by the customer or third parties not authorized by us, or natural wear and tear, insofar as this event was the cause of the damage. Likewise, there is an exclusion of liability for failure to perform necessary maintenance, unless we have contractually assumed the obligation to perform maintenance.
6. 7 If and insofar as the Customer is able to claim insurance services for damages for which we are liable by means of our own non-life insurance (e. g. liability insurance, hull insurance, transport, fire, business interruption and others), the Customer undertakes to claim the insurance service and our liability in this respect shall be limited to the remaining disadvantages incurred by the Customer as a result of the use of this insurance.
7. PROMISE OF REMEDIES
7. 1 It is noted that the equitron products manufactured and distributed by HF are intended for use in veterinary medicine and those in the omnitron product class are intended for use in human medicine (complementary medicine).
SPECIAL NOTE: Although the positive effect of the above mentioned
products for a wide range of applications including studies of medical and
veterinary universities, HF does not give any kind of
Promise of cure. Whether and under what circumstances the use of one of the
suitable and/or advantageous to humans and animals in individual cases
is to be clarified in individual cases by a doctor or veterinarian. HF is only
the manufacturer of the product.
7. 2 HAZARD STATEMENT
THE USE OF ALL PRODUCTS OF THE CLASSES EQUITRON AND OMNITRON, REGARDLESS OF WHETHER THEY ARE DESIGNED FOR VETERINARY OR HUMAN TREATMENT OR FOR NON-MEDICAL TREATMENT (WELLNESS), IS BASED ON THE PRINCIPLE OF MAGNETIC RESONANCE. THEY MUST NOT BE USED ON OR IN THE IMMEDIATE VICINITY OF ANIMALS WITH IMPLANTS OR ON OR BY HUMANS WITH KNOWN CONTRAINDICATIONS (PACOMIZERS, PREGNANCY, EPILEPSY, ETC. ). THE SUPPLIED OPERATING INSTRUCTIONS MUST BE FOLLOWED BEFORE COMMISSIONING. PRODUCTS DESIGNED FOR USE IN HUMAN MEDICINE MAY ONLY BE OPERATED BY PERSONS AUTHORISED AND LEGALLY AUTHORISED FOR THIS PURPOSE. THE LEGAL PROVISIONS APPLICABLE TO THE TREATMENT OF HUMANS AND ANIMALS IN THE RESPECTIVE COUNTRY OF TREATMENT MUST BE OBSERVED.
8. PROVISIONS FOR SERVICE CONTRACTS
The provisions of this section (i. e. items 8 to 12) govern the conditions of a service contract concluded by means of a form (service form) between HF and the customer. The provisions of the “Order” section shall apply in the alternative, unless this section contains separate arrangements for this purpose.
8. 1 Service contracts are concluded by means of a service form (service form), which is issued by HF and signed by the customer. The service contract contains the customer data necessary for invoicing, the product owner, type, serial number, maintenance price and selected service level. The service contract is valid if HF confirms the service form (service form) signed by the customer in writing within a maximum of 14 days.
8. 2 Warranty extension: The conclusion of a service contract leads to the extension of the manufacturer's warranty already described in section 3. 2. The promised manufacturer's warranty thus ends at the earliest with the expiry of an agreed service agreement.
8. 3 The customer is the owner of the equipment subject to maintenance. If the customer is not the owner of the equipment subject to maintenance, but is entitled to use it (lessee, tenant, etc. ), he hereby declares that he is entitled to conclude maintenance orders.
8. 4 The agreed service level was agreed in the service form (service form). If no service level has been agreed, the standard service level is deemed to have been agreed.
8. 5 The STANDARD variant involves the replacement of the standard in point 10. 2 para. 1 and para.
2) shown components, the cost of collection and return of the repaired device. The PREMIUM variant also includes the provision of a technically equivalent replacement device for the repair or maintenance period acc. Point 10. 4.
9. DURATION OF CONTRACT
9. 1 The contract begins on the first of the month following the signing of the service form on all sides and is concluded for a specified period of one year. It shall be renewed for a further year unless terminated in accordance with point 9. 2 or 9. 3.
9. 2 Both parties to the contract are entitled to terminate the service contract by observing a notice period of one month at the end of each contract year.
9. 3 HF is also entitled to terminate the service contract without observing any deadline if the customer is in arrears with payment by more than one month or the device has reached a service life of 10 years. The service life is determined by the year of construction.
10. SERVICE CASES
10. 1 A service case exists if a technical defect occurs on the service item that is not due to operating errors or external influences. In any case, a service case exists if one of the items listed in point 10. 2. Para. 1) or the components shown in para. 2) displayed wear parts, for whatever reason, is defective.
10. 2 para. 1) The following components are covered by the warranty:
(a) Primary equipment
b) PMS Power Board
(c) PMS main board
d) PMS controller board
e) High-voltage power supply DC/DC
f) AC/DC power supply
(g) Fans
h) Touch screen (except for breakage).
Para. 2) The following components are wear parts:
a) High voltage capacitor
(b) Treatment loop
10. 3 If there is a service case, the Customer shall report the service case by email to service@healthfactories. com stating the serial number of the device in question. HF will collect the device in question at its own expense from the customer (the customer's location according to the service form). If the customer has chosen the "PREMIUM" service level, HF will send the customer a technically equivalent device by express shipment to the customer location within 3 working days or, in individual cases, deliver it by its own employees.
10. 4 For the duration of this contract, HF is obliged to check all devices sent in within 3 working days whether the malfunction is due to a service case or not. If there is a service case, it must be repaired within a maximum of 7 working days, counted from the receipt of the device at the location of HF. Completion is deemed to be timely if HF hands over the equipment which is functional again to a forwarder for return to the customer by the end of the seventh day or delivers it itself on that day. If processing is not possible within this period, HF must send a replacement device to the customer, regardless of the service model chosen. Any replacement equipment provided must be returned by the customer to HF within 5 days from the date of receipt of the serviced original equipment.
10. 5 If there is no service case, it is a repair case. In the event of a repair, the malfunction is due to an operating error or an external influence (e. g. breakage of the touchscreen, water damage, etc. ). If there is a repair case, HF has to send a cost proposal within 3 working days to the email address from which the service message acc. Para. 10. 3. If the cost estimate is not accepted by the customer within 7 days, HF shall return the device to the customer without repair. The transport costs (collection and return) may be invoiced by HF to the customer. If the estimate is accepted, the repair shall be carried out within a reasonable period of time, but not more than seven working days. Any replacement device made available during this period must be returned to HF within 5 days at the latest from the date of receipt of the defective device. HF is entitled, but not obliged, to charge for the duration of the provision of a replacement device in the event of repair (i. e. without service in accordance with point 10. 3) costs analogous to point 10. 8.
11. COSTS
11. 1 The costs depend on the chosen service level. If no other costs have been agreed in the service form (service form) in the individual case, the annual costs for the standard service level amount to EUR 950,– plus VAT. 20% VAT, the annual costs for the service level PREMIUM EUR 1. 450,– plus VAT. 20% VAT.
11. 2 If there is not a service case, but a repair case (malfunction due to an operating error or due to external influences), the costs result from the cost estimate acc. Clause 10. 5, whereby also in this case, for the duration of the contract, the technician costs to be invoiced per commenced hour an amount of EUR 50,– plus VAT. 20% VAT may not exceed.
11. 3 HF is entitled to bill service costs quarterly in advance.
11. 4 All invoices in connection with service or repair cases must be paid within 14 days without any deduction and free of charge to the account at Raiffeisenbank Salzburger Seenland , IBAN: AT303504700075133215, BIC: RVSAAT2S047, free of charge and free of charge.
11. 5 Otherwise, the provisions of point 2. 4 et seq. shall apply mutatis mutandis.
11. 6 In the event that the customer acc. Item 10. 3 sent to HF independently, the customer shall bear the costs for such transport himself. The costs of sending the replacement device to the customer and returning a repaired device to the customer shall be borne by HF.
11. 7 In the event that HF does not return the device to the Customer repaired because the Customer has not accepted the cost estimate, HF is entitled to charge the Customer diagnostic costs in the amount of EUR 100,– net, as well as the costs of return transport.
11. 8 If the customer fails to return a replacement device in due time, HF shall be entitled, after expiry of a respiro of 2 working days, to a usage fee of EUR 100,– plus VAT per calendar day. VAT to be charged. The replacement device remains the property of HF.
11. 9 All the above amounts are value-added. The basis for the calculation of the hedge is the CPI2015, published by Statistics Austria. The reference month shall be the month in which this contract was signed by all parties.
12. SPECIAL WARRANTY PROVISIONS IN CONNECTION WITH SERVICE CONTRACTS
12. 1 HF guarantees the quality of its work within the scope of the statutory guarantee. The warranty period for installed components is two years. The reference date is the maintenance date according to the service report or, in the case of a chargeable repair, the invoice date.
12. 2 The customer is liable to HF for damage to the replacement device. If the replacement device provided is a veterinary or human medical device, the customer undertakes to have the device operated only by authorized and trained personnel. In addition, a replacement appliance may only be used in the country to which it was delivered. A transfer to a third country shall not be permitted. Reference is made once again to the retention of title. If HF detects damage to the replacement device, the customer is obliged to pay the corresponding repair costs.
13. COMMON FINAL PROVISIONS
13. 1 Applicable law: Austrian law to the exclusion of the right to purchase shall be deemed to have been agreed
13. 2 Data protection: HF undertakes to comply with the data protection provisions in accordance with the GDPR. Insofar as personal data are processed, these are processed by HF in accordance with the GDPR. A transfer outside the EU or the EEA will not take place. Personal data is stored for as long as it is necessary to comply with HF's legal obligations. Please refer to the applicable data protection declaration of HF at www. healthfactoring. com.
13. 3 The place of jurisdiction shall be the competent entity of HF, which shall be the District Court of Hallein or the Regional Court of Salzburg, depending on the amount of the dispute.
healthfactories biotech GmbH Version January 2021