General business conditions of
GAMMA Medizinisch-wissenschaftliche Fortbildungs-GmbH
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.
Tending an offer and conferring of contract
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.
Terms of payment, prices, taxes and charges
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.
Right of detention, compensation, cession
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.
Delivery date, Term of delivery
The delivery date begins when the client receives the confirmation of order from GAMMA.
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.
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.
The prerequisite for compliance with the term of delivery is that the client fulfills all contractual obligations.
Devolution of risk and receipt (of goods), compulsory inspection and compulsory complaint, acceptance
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.
Part-deliveries are permissible, § 8.1 takes priority.
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.
In case of defects on deliveries, caused during transport, the carrier has to be informed immediately at time of takeover
Acceptance can only be refused in case of considerable defects or deficiencies.
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).
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).
Liability for wrong goods and/or wrong quantities
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.
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.
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.
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.
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.
The client’s right of rescission and other liability of GAMMA
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.
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.
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.
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.
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.
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.
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.
GAMMA assumes no obligations for connecting the product to any apparatus or appliance belonging to the client, which has not been supplied by GAMMA.
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.