healthfactories biotech GmbH, Betriebsgebiet Nord 5, A-5412 Puch bei Hallein
GENERAL TERMS AND CONDITIONS
P. PRELIMINARY REMARK:
P.1 healthfactories biotech GmbH (hereinafter referred to as “HF”), based in Austria and entered in the Austrian Companies’ Register with the number 472896k, is a manufacturer of various technical products. These products are used in the fields of veterinary medicine and human medicine, as well as for non-medical applications on humans and animals.
1. SCOPE OF APPLICATION
1.1 These General Terms and Conditions particularly apply to orders and service contracts, but also to any other legal transactions concluded between HF and the Client. If the Client is an entrepreneur, these General Terms and Conditions shall also apply to any supplementary or follow-up orders placed in the future, even if no further explicit reference is made to this document.
1.2 If the Client is a Company within the meaning of the Austrian Consumer Protection Act (KSchG), the applicable version of the General Terms and Conditions of HF shall be the one in place at the time the contract is concluded, available at www.healthfactories.com. If the Client is a consumer, the applicable version shall be the one explicitly agreed at the time the contract is concluded.
1.3 Any terms and conditions of the Client – and any changes or additions made to our General Terms and Conditions – shall require our explicit consent to be legally effective; consent must be given in writing in the case of entrepreneurs. The Client’s terms and conditions shall not be acknowledged, even if HF does not explicitly object to them upon receipt.
This section (Points 2 to 7) governs orders (sales contracts and rental contracts), payment, delivery, and the legal issues associated with products and orders (guarantee, transfer of liability, etc.). Particular attention should be paid to the warnings contained in this section, particularly those detailed in Points 3.3, 3.4 (warranty, guarantee, high voltage) and 7 (promise of a cure).
2.1 Products must be ordered through an order form; this shall be issued by HF and signed by the Client. The order form must contain the Client’s billing details, as well as the type, quantity, means of financing (purchase, rental or leasing) and price of the ordered product(s). In the case of rented products, the rental period must also be indicated. Orders signed by the Client shall be valid if they are confirmed by HF in writing within 14 days. Any individual side agreements stipulated on an order form shall take precedence over the provisions of these General Terms and Conditions.
a) If an order is placed through distance selling and the Client is a consumer within the meaning of the applicable legal provisions, the Client shall be entitled to cancel the order without sanctions within 14 days, unless more favourable conditions are stipulated by law. In such cases, the order shall be rescinded for the Client free of charge.
b) HF shall be entitled – but not obliged – to cancel any confirmed orders without sanction if the financing underlying the order (leasing) is rejected, if the agreed down payment is not made, or if the ordered product is designed for use in veterinary or human medicine and the natural or legal person placing the order does not have the expertise required to use the product.
2.3. Unless stated otherwise on the order form, the applicable prices shall be those indicated there plus 20% VAT.
2.4 Sales: If the order is a sale, and unless otherwise agreed on the order form, a down payment of 20% of the gross order value must be made in full to HF’s account within 14 days after the transaction has been concluded in accordance with Point 2.1. The remaining payment of 80% of the gross order value and any agreed transport costs shall be invoiced within 7 days after the product is shipped. If no delivery date has been agreed on the order form, the product shall be delivered in accordance with Point 4 (delivery and transport).
2.5 Rentals: If the order is a rental transaction, and unless otherwise agreed on the order form, the following shall apply:
a) HF shall lease the product specified on the order form to the Client.
b) The product shall be shipped to the Client within 30 days.
c) The rental period shall be 36 months. The rental contract shall begin on the first day of the month following the delivery of the product and shall expire at the end of the 36th month of the contractual term.
d) If the renting party is a consumer, it shall be entitled to terminate the rental contract with a notice period of six months. If the renting party is an entrepreneur, this shall be taken into account when calculating the rental payment and the renting party shall waive its right to ordinarily terminate the rental agreement.
e) The rental price shall be calculated based on the order form. The rental price shall be adjusted in accordance with the Consumer Price Index 2015 (published by Statistics Austria). The reference month shall be the day of the order.
f) The first rental payment shall be due in advance on the first day of the month following the delivery of the product to the Client with a grace period of 7 days. HF
shall be entitled – but not obliged – to invoice rental fees in advance on a quarterly basis. Payments must be made in such a way that they are credited in advance – without any deductions or charges – to the account held by healthfactories biotech GmbH at Raiffeisenbank Salzburger Seenland
(IBAN: AT303504700075133215; BIC: RVSAAT2S047) on the first day of each quarter (1 January, 1 April, 1 July, 1 September) or, in the case of monthly payments, on the first day of each calendar month with a grace period of 7 days.
g) The product shall remain the property of HF and may be used during the rental period in accordance with the operating instructions.
h) The Client hereby acknowledges and agrees that the rented product may not be used outside the EU or EEA without the consent of HF.
i) At the end of the rental contract, the product must be returned to HF in such a way that it arrives within 14 days following the end of the rental contract. Any missing parts or equipment – and any damage beyond natural wear and tear – shall be charged to the Client in a separate invoice.
i) HF shall be entitled to terminate the rental contract without notice before the end of the agreed period if the Client is over two months in arrears and has been amply reminded by HF.
j) A service contract shall be concluded in accordance with Point 10 for the duration of the rental period; the agreed service level shall be STANDARD. The basic fee for the service contract shall be included in the rental price.
2.6 If the Client is an entrepreneur based outside the Republic of Austria but within the EU or EEA, it must share its VAT ID No. with HF when placing an order or even earlier. In such cases, the order shall be considered an intra-Community supply and VAT shall not be charged separately by HF. If the Client is an entrepreneur based outside the EU or EEA, the delivery shall be subject to a “reverse charge” if the Client can supply HF with proof of its entrepreneurial status and right to a VAT deduction, provided this evidence satisfies the requirements of the Austrian tax authorities. If these documents are not received by HF in good time (prior to the first partial invoice in the case of sale contracts and prior to the first invoice in the case of rental contracts), HF shall be entitled to include 20% VAT in its invoice to the Client.
2.7 If the Client is an entrepreneur, the default interest stipulated in Section 456 of the Austrian Commercial Code (UGB) shall apply. If the Client is a consumer, default interest shall be charged at a rate of 5%. HF reserves the right to assert further claims for damages caused by delayed payment but, if the Client is a consumer, such claims may only be asserted if this has been negotiated in detail.
2.8 The Client shall only be entitled to offset payments against any counterclaims that have been legally established or acknowledged by HF. If the Client is a consumer, it shall also be entitled to offset payments if its counterclaims are legally related to its payment liabilities, or if our company becomes insolvent.
2.9 If the Client fails to meet a payment deadline, any benefits that have been granted (e.g. discounts) shall be forfeited and added to the invoice.
2.10 In the event of late payment, the Client shall be obliged to reimburse HF for any necessary and reasonable costs incurred to recover the debt (e.g. dunning costs, collection charges, legal fees).
2.11 Unless otherwise agreed on the order form provided in accordance with Point 2.1, cash discounts shall not be offered.
2.12 If withholding tax has to be paid on an invoice issued by HF due to the legal provisions of the country in which the Client is based, the Client must adjust the payment amount in such a way that the invoice amount is credited to the business account of HF without deductions.
3. WARRANTY, GUARANTEE AND DEFECTS
3.1 Warranty: HF shall grant a two-year warranty for its products, as required by law. The warranty period shall begin on the day the respective device is received by the Client. Any damage caused by external influences or operating errors shall not be covered by the warranty. The Client has been informed that products in the equitron and omnitron ranges contain components which, depending on the scope of their actual usage, require expert maintenance. Maintenance measures carried out on the components described in Point 10.2 shall not constitute a claim under the warranty. The Client has been made aware that a service contract may be concluded in accordance with Point 8.
3.2 Guarantee: HF shall grant a voluntary guarantee (manufacturer’s guarantee) for its products in addition to the statutory warranty. HF shall guarantee the functionality of its devices for a period of two years. This guarantee shall cover both the primary device and the components described in Point 10.2 Paragraph 1. This guarantee shall not cover the wearing parts specified in Point 10.2 Paragraph 2, nor shall it cover any damage caused by external influences or operating errors, regardless of the components affected by the damage. The guarantee period shall begin on the day the device is handed over to the Client. In the event of a claim under the guarantee, the buyer must submit the claim to HF alongside the delivery receipt and send the device to HF. If the claim is accepted, HF shall repair the device at its own expense and return the repaired device to the Client within a reasonable period. Any costs incurred to transport the device from Healthfactories to the end client shall be covered under the manufacturer’s guarantee. Any questions regarding the practical handling of a claim under the guarantee should be sent directly to HF.
3.3 If product approval is required by law, HF shall also guarantee that all its delivered products have been approved for the country to which they are delivered. HF hereby explicitly informs the Client that it may be illegal to operate the product outside the country to which it is delivered.
PRODUCTS IN THE EQUITRON AND OMNITRON RANGES USE HIGH VOLTAGE. DEVICES IN THESE RANGES MAY ONLY BE USED IN THE MANNER DESCRIBED IN THE OPERATING INSTRUCTIONS PROVIDED. THESE DEVICES – INCLUDING ANY VERSIONS DESIGNED FOR NON-MEDICAL USE – ARE DESIGNED TO BE USED BY QUALIFIED PERSONNEL. OPENING THE DEVICE MAY CAUSE SERIOUS INJURY OR EVEN DEATH.
3.5 If the product is not fully suitable for the purpose for which it is purchased, this shall not constitute a claim for defects.
3.6 If HF remedies a defect alleged by the Client, this shall not constitute the acknowledgement of the alleged defect, unless HF acknowledges the defect separately in writing. If the Client is an entrepreneur, it must allow HF at least three attempts to remedy the defect.
3.7 If the Client’s claims for defects are unjustified, HF shall be entitled – but not obliged – to invoice the Client separately for the costs incurred to ascertain the lack of defects or to resolve the issue.
3.8 If the Client is an entrepreneur and detects defects in the delivered products through an inspection carried out within its normal course of business – or if it should have detected such defects (e.g. obvious transport damage) – HF must be immediately notified in writing, and no later than 14 days from the date of delivery. An email addressed to firstname.lastname@example.org shall be considered a written notification in this regard.
3.9 If defects are not reported in good time, the goods shall be deemed approved.
3.10 The Client must immediately stop using or processing the defective products in any way that might cause further damage or make it difficult or impossible to determine the cause of the defect, unless this cannot be reasonably expected of the Client.
4. DELIVERY, TRANSPORT, RETENTION OF TITLE AND DEFAULT OF ACCEPTANCE
4.1 Unless otherwise agreed between the contracting parties, the ordered goods shall be delivered within 21 days following receipt of the down payment invoice. If no down payment invoice has been agreed in an individual case, the goods shall be delivered within 21 days after receipt of the order. If no separate delivery address is indicated on the order form, the goods shall be delivered to the billing address.
4.2 In the event of force majeure, strikes, unforeseeable delays suffered by suppliers for which HF cannot be held responsible, or any other similar circumstances beyond the control of HF, the dates and deadlines specified in Point 4.1 shall be postponed for the duration of such events. This shall not affect the Client’s right to withdraw from the contract in the event of any delays that make it unreasonable to expect its continued commitment to the contract. This may be assumed if a delivery is delayed by over 60 days.
4.3 If the goods are delivered to a consumer, the provisions set forth in Section 7b KSchG shall apply to the transfer of risk. If the goods are delivered to an entrepreneur, the risk shall be transferred as soon as HF makes the purchased items ready for collection at its factory or warehouse, delivers the goods itself or hands them over to a carrier. If products in the equitron and omnitron ranges are delivered by a carrier, the delivery shall be insured.
4.4 HF shall retain ownership of any goods it delivers or otherwise hands over until payment has been made in full (retention of title). The goods may only be resold if HF is informed in good time, stating the name and address of the buyer, and if HF agrees to the sale. If the sale is approved, the claim to the purchase price held by the entrepreneur shall be assigned to HF.
4.5 If ordered goods are delivered before payment has been made in full and the Client is in default of payment, HF shall be entitled to demand the return of the goods held under retention of title following a reasonable grace period. If the Client is a consumer, HF may only exercise this right if at least one payment has been overdue for at least six weeks and the Client has been unsuccessfully reminded by HF, despite being warned of this legal consequence and receiving a grace period of at least two weeks.
4.6 Unless otherwise agreed between the contracting parties, the Client shall bear the transport costs in addition to the purchase price.
4.7 Customs duties shall be borne by the Client.
4.8 Default of acceptance: If the Client is in default of acceptance for over 2 weeks (refusal of acceptance, default of advance payments or otherwise), HF shall be entitled to store the goods and charge a storage fee if the fulfilment of the contract is insisted upon. This shall not affect HF’s right to demand payment for the goods and withdraw from the contract following a reasonable grace period.
5. INTELLECTUAL PROPERTY
5.1 HF shall retain ownership of any operating instructions, logos and product names it provides, as well as any sketches, illustrations, cost estimates and other documents.
5.2 HF hereby explicitly indicates that the products it manufactures and distributes are protected by copyright and may even be protected by patents or trademarks. Any use or reproduction of the delivered materials shall encroach on the proprietary rights of HF or its licensor.
5.3 healthfactories™, omnitron™ and equitron™ are the registered trademarks of healthfactories GmbH, Freilassing, Germany.
6.1 In the event of a breach of contractual or pre-contractual duties, particularly due to impossibility or delay, HF shall only be liable for financial losses in cases of intent or gross negligence.
6.2 If the Client is an entrepreneur, our liability shall be limited to the maximum amount covered by our liability insurance.
6.3 This limitation shall also apply to any damage to an object that we have accepted for processing. If the Client is a consumer, this condition shall only apply if it has been negotiated for the specific contract.
6.4 Any claims for damages held by entrepreneurs must be asserted before court within two years; otherwise, they shall expire.
6.5 This exclusion of liability shall also apply to any claims asserted against our employees, representatives or vicarious agents due to damage incurred by the Client through these parties – without reference to a contract concluded between the Client and these parties.
6.6 We shall not assume liability for any damage caused by improper handling or storage, overuse, failure to observe installation and operating instructions, incorrect assembly, commissioning, maintenance carried out by the Client or unauthorised third parties, or natural wear and tear. Likewise, we shall not assume liability if the Client fails to carry out necessary maintenance, unless we have assumed a contractual obligation to perform the maintenance work.
6.7 If the Client is entitled to payments through its own indemnity insurance taken out in its favour for any damage for which we are liable (e.g. liability insurance, comprehensive insurance, transport, fire, business interruption), the Client shall undertake to claim the insurance payment; our liability shall then be limited to the remaining disadvantages incurred by the Client as a result of its insurance claim.
7. PROMISE OF A CURE
7.1 The products manufactured and distributed by HF in the equitron range are designed for use in veterinary medicine, while products in the omnitron range are designed for use in human medicine (complementary medicine).
PLEASE NOTE: Although medical and veterinary universities have investigated the positive effects of the aforementioned products in numerous areas of application, HF cannot provide any promise of a cure. The suitability and/or benefit of using the aforementioned products on humans and animals must be clarified by a physician or veterinarian in each specific case. HF is merely the manufacturer of the products.
7.2 HAZARD WARNING THE USE OF ALL PRODUCTS IN THE EQUITRON AND OMNITRON RANGES – REGARDLESS OF WHETHER THEY ARE DESIGNED FOR TREATMENTS IN VETERINARY OR HUMAN MEDICINE OR NON-MEDICAL APPLICATIONS – IS BASED ON THE PRINCIPLE OF MAGNETIC RESONANCE. THEY MUST NEVER BE USED ON – OR IN CLOSE PROXIMITY TO – ANIMALS WITH IMPLANTS, OR ON OR BY HUMANS WITH KNOWN CONTRAINDICATIONS (E.G. PACEMAKER, PREGNANCY, EPILEPSY). PLEASE READ THE SUPPLIED OPERATING INSTRUCTIONS BEFORE COMMISSIONING. PRODUCTS DESIGNED FOR USE IN THE FIELD OF HUMAN MEDICINE MAY ONLY BE OPERATED BY LEGALLY AUTHORISED AND ACCREDITED PERSONS. THE LEGAL PROVISIONS FOR THE TREATMENT OF HUMANS AND ANIMALS MUST BE OBSERVED IN THE RESPECTIVE COUNTRY OF TREATMENT.
8. TERMS AND CONDITIONS FOR SERVICE CONTRACTS
The provisions set forth in this section (Points 8 to 12) govern the terms and conditions of any service contracts concluded between HF and the Client by means of a service form. The provisions set forth in the “Orders” section shall apply if no separate agreements are contained in this section.
8.1 Service contracts must be concluded through a service form; this shall be issued by HF and signed by the Client. The service contract must contain the Client’s billing details, as well as the product owner, type, serial number, maintenance price and chosen service level. Service forms signed by the Client shall be valid if they are confirmed by HF in writing within 14 days.
8.2 Extended guarantee: The conclusion of a service contract shall result in the extension of the manufacturer’s guarantee described in Point 3.2. The manufacturer’s guarantee shall therefore expire – at the earliest – at the end of the agreed service contract.
8.3 The Client shall be considered the owner of the device to be maintained. If the Client is not the owner of the device to be maintained but is authorised to use it (e.g. lessee), the Client hereby declares that it is authorised to enter into maintenance contracts.
8.4 The agreed service level shall be indicated on the service form. If no service level has been agreed, the STANDARD. service level shall be considered agreed.
8.5 The STANDARD version includes the replacement of the components described in Point 10.2 Paragraph 1 and 2, as well as any costs incurred to collect and repair the equipment. The PREMIUM version includes the provision of a technically equivalent replacement device during the repair or maintenance period specified in Point 10.4.
9. CONTRACTUAL TERM
9.1 The contract shall begin on the first day of the month after the service form has been signed by both parties; it shall be concluded for a period of one year. It shall be extended for a period of one year at a time if it is not terminated in accordance with Point 9.2 and 9.3.
9.2 Both contracting parties shall be entitled to terminate the service contract at the end of each contractual year with a notice period of one month.
9.3 HF shall also be entitled to terminate the service contract without notice if the Client is over one month in arrears or the device has reached a service life of 10 years. The service life is determined by its year of construction.
10.1 Servicing shall be deemed to have been carried out if the serviced item has a technical error that is not due to operating errors or external influences. In any case, servicing shall be deemed to have been carried out if any of the components described in Point
10.2 Paragraph 1 – or any of the wearing parts described in Paragraph 2 – are defective for whatever reason.
10.2 Paragraph 1) The following components are covered by the guarantee:
a) Primary device
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) Cooling fan
h) Touch screen (excluding breakage) Paragraph 2) The following components are wearing parts:
a) High-voltage capacitor
b) Treatment loop
10.3 In the case of servicing, the Client must report the case via email to email@example.com, indicating the serial number of the affected device. HF
shall collect the affected device from the Client (at the address specified on the service form) at its own expense. If the Client has chosen the PREMIUM service level, HF shall send a technically equivalent device by express delivery to the Client’s address within 3 working days or, in individual cases, have the device delivered by its own staff.
10.4 For the duration of this contract, HF shall be obliged to check whether any malfunctioning devices require servicing within 3 working days following their receipt. If servicing is required, the repair work must be processed within 7 working days following the arrival of the device at HF’s address. The completion of the work shall be deemed timely if HF hands over the functioning device to a carrier for its return to the Client by the end of the seventh day or personally delivers it by that day. If the work cannot be completed within this deadline, HF must send a replacement device to the Client, regardless of the chosen service model. Any replacement devices must be returned to HF within 5 days after the Client has received the serviced original equipment.
10.5 If servicing is not deemed to have been carried out, it shall be considered a repair. In the case of a repair, the malfunction shall be deemed to have been caused by an operating error or external influence (e.g. breakage of the touch screen, water damage). In the case of a repair, HF shall have 3 working days to submit a cost estimate to the email address from which the servicing was requested in accordance with Point 10.3. If the cost estimate is not accepted by the Client within 7 working days, HF shall return the device to the Client without repair. HF may invoice the Client for the transport costs (collection and return). If the cost estimate is accepted, the repair must be completed within a reasonable period, and within 7 working days at the latest. Any replacement device provided within this period must be returned to HF within 5 working days after the Client has received the defective device. In the case of a repair (i.e. not in the case of servicing pursuant to
Point 10.3), HF shall be entitled – but not obliged – to charge for any costs incurred during the provision of a replacement device in accordance with Point 10.8.
11.1 The costs incurred shall depend on the chosen service level. If no other costs have been agreed on the service form in each case, the annual costs for the STANDARD service level shall be 950 EUR plus 20% VAT, and the annual costs for the PREMIUM service level shall be 1,450 EUR plus 20% VAT.
11.2 If servicing is not deemed to have been carried out, but rather a repair (malfunction due to an operating error or external influences), the costs shall be those indicated in the cost estimate in accordance with Point 10.5; in such cases, the technician fees invoiced per hour or part thereof must not exceed 50 EUR plus 20% for the duration of the contract.
11.3 HF shall be entitled to bill servicing costs quarterly in advance.
11.4 All invoices issued in relation to servicing or repairs must be settled within 14 days – without any deductions or charges – through a payment made to our account at Raiffeisenbank Salzburger Seenland (IBAN: AT303504700075133215; BIC: RVSAAT2S047).
11.5 The provisions set forth in Point 2.4 et seq. apply mutatis mutandis.
11.6 In the event that the Client personally returns the device to HF in accordance with Point
10.3, the costs incurred for this transport shall be borne by the Client. The costs incurred to send a replacement device to the Client and return a repaired device to the Client shall be borne by HF.
11.7 If HF returns the device to the Client without repair because the Client does not accept its cost estimate, HF shall be entitled to invoice the Client for diagnostic fees amounting to 100 EUR net in addition to the return shipping costs.
11.8 If the Client fails to return a replacement device on time, HF shall be entitled to charge a usage fee of 100 EUR plus VAT per calendar day following a grace period of two working days. The replacement device shall remain the property of HF.
11.9 All the above amounts shall be adjusted in line with inflation. Any such adjustments shall be calculated based on the Consumer Price Index 2015 published by Statistics Austria. The reference month shall be the month in which this contract is signed by both parties.
12. SPECIAL WARRANTY CONDITIONS FOR SERVICE CONTRACTS
12.1 HF shall guarantee the quality of its work within the scope of the statutory warranty. The warranty period for any installed components shall be two years. This shall be determined by the maintenance date indicated in the service report, or the invoice date in the case of a paid repair.
12.2 The Client shall be liable to HF for any damage to the replacement device. If the replacement device is a device designed for use in veterinary or human medicine, the Client must ensure the device is only operated by authorised and trained personnel. A replacement device may only be used in the country to which it was delivered. It must not be shipped to a third country. Reference is hereby made once again to the retention of title. If HF detects damage to the replacement device, the Client shall be obliged to settle the corresponding repair costs.
13. FINAL COMMON PROVISIONS
13.1 Applicable law: Austrian law shall apply; the applicability of the CISG is hereby excluded.
13.3 The competent court of HF is hereby agreed as the place of jurisdiction; depending on the amount to be settled in the dispute, this shall be the District Court of Hallein or the Regional Court of Salzburg.
healthfactories biotech GmbH Last updated: January 2019.