GENERAL TERMS AND CONDITIONS
Geräte Erzeugungs- und Vertriebsgesellschaft m.b.H.
Commercial Court Vienna, FN
146/11/B1, 1030 Vienna, Austria
Tel.: +43 1 597 91 52
Version 5 22/11/2023
The following GTC are structured as follows:
I. General provisions for all types of agreement
II. Special regulations for the purchase of devices
III. Special regulations for the maintenance agreement
I. GENERAL PROVISIONS
1. Validity of the GTC
1.1. MTG Medizinisch-Technische Geräte GmbH (hereinafter referred to as the “Contractor”) provides its services exclusively on the basis of the following General Terms and Conditions (GTC). The following General Terms and Conditions (GTC) apply to all business relationships between the Contractor and the customer, even if no express reference is made to them in individual cases.
1.3. Any amendments to the GTC shall be notified to the customer and shall be deemed to have been agreed if the customer does not object to the amended GTC in writing within 14 days; the customer shall be expressly informed of the significance of silence in the notification.
1.4. These GTC are primarily aimed at customers who are contractors. They only apply to consumers (in particular contractors in the start-up phase) to the extent permitted by consumer protection law.
2. Subject matter of the agreement
2.1. Among other things, the Contractor sells ion induction devices under the name “papimi”. These devices induce electromagnetic impulses directly into somatic cells. The devices are medical devices. The current certificates shall be sent to the customer on request.
2.2. The company also sells products that are not classified as medical devices.
2.3. The customer acknowledges and agrees that, as the operator of a medical device, it is subject to extensive obligations under the laws governing medical devices. The customer is responsible for compliance with these operator obligations.
2.4. All permits required under public law for the installation and operation of the devices must be obtained by the customer; any related taxes, fees and charges shall be borne by the customer. The customer guarantees the Contractor that it fulfils the professional requirements for operating the devices. The Contractor is not obliged to check these requirements.
2.5. The customer undertakes to grant the Contractor access to the device at any time, subject to prior notification, and to enable the Contractor to make changes to the device, insofar as this is necessary for the implementation of medical device regulations or a higher classification.
2.6. For the purposes of tracking the devices, the customer undertakes to notify the Contractor of any change of location of the device and/or any change of owner or holder.
2.7. Marketing measures that include hallmarks of the products sold by the Contractor must be coordinated with and approved by the Contractor.
3. Services, order processing and the customer’s duty to cooperate
3.1. The scope of services to be provided by the contracting parties is set out in the service description in the agreement or any order confirmation.
3.2. Subsequent changes to the content of the agreement require the Contractor’s written confirmation.
3.3. The customer shall provide the Contractor with timely and complete access to all information and documents required for the provision of the service. It shall inform it of all circumstances that are important for the execution of the order, even if these only become known during execution of the order.
3.4. The operator (customer) is responsible for the periodic preservation of evidence (annual safety inspection) towards the authorities.
4.1. Unless expressly agreed as binding, stated performance deadlines are non-binding. Binding agreements on deadlines shall only be legally effective if they have been expressly confirmed as such in writing by the Contractor. Otherwise, a reasonable performance period shall apply to the Contractor in any case.
4.2. If the Contractor’s performance is delayed for reasons for which it is not responsible, such as events of force majeure and other unforeseeable events that cannot be averted by reasonable means, the performance obligations shall be suspended for the duration and to the extent of the impediment and the deadlines shall be extended accordingly.
4.3. If the Contractor is in default, the customer may only withdraw from the agreement after having granted the Contractor a grace period of at least two months in writing and this has expired without result.
5. Payments, retention of title
5.1. Unless otherwise agreed, the Contractor’s invoices shall be due for payment immediately.
5.2. The devices delivered by the Contractor shall remain the property of the Contractor until full payment of the remuneration, including all ancillary liabilities.
5.3. If the customer defaults on payment, statutory default interest shall apply in the amount applicable to business transactions. Furthermore, in the event of default in payment, the customer undertakes to reimburse the Contractor for any reminders and collection charges incurred, insofar as they are necessary for appropriate legal action. In any case, this shall include the costs of two reminder letters of €15.00 (fifteen euros) each, as well as the standard costs of a reminder letter sent by a lawyer commissioned to collect the debt. The assertion of further rights and claims remains unaffected.
5.4. In the event of default of payment by the customer, the Contractor may demand immediate payment of all services and partial services rendered, including those under other agreements concluded with the customer. Furthermore, the Contractor shall not be obliged to provide any further services until the outstanding amount has been paid.
5.5. If payment in instalments has been agreed, the Contractor reserves the right to demand immediate payment of the total debt outstanding in the event that instalments or ancillary claims are not paid in time. Accordingly, a default in payment shall be considered agreed.
5.6. The customer is not entitled to offset its own claims against claims of the Contractor unless the customer’s claim has been recognised in writing by the Contractor or has been established by a court.
6.1. The Contractor’s claim to remuneration arises in full from the time the order is placed. The regular delivery time is eight to ten weeks.
6.2. The fee is to be understood as a net fee plus VAT at the statutory rate, plus any other duties prescribed by the authorities (e.g. customs duties).
6.3. All services provided by the Contractor that are not expressly covered by the agreed remuneration shall be remunerated separately.
6.4. The Contractor’s cost estimates are non-binding and are to be understood as cost estimates.
6.5. The Contractor shall be entitled to the agreed fees for all services ordered from the Contractor that are cancelled by the Customer (for whatever reason). The setoff provision of section 1168 of the Austrian Civil Code (AGBG) is excluded.
7.1. Subject to the customer’s written revocation, which is possible at any time, the Contractor is entitled to refer to the business relationship with the customer by name and company logo on its own advertising media and in particular on its Internet website (reference information).
7.2. The customer acknowledges and agrees that the Contractor may publish the position of device locations in a “papimi Finder” (position marker on a map including the customer’s contact details), which is available on the Contractor’s own website.
8. Warranty / liability
8.1. The customer must immediately report any defects in writing, in any case within ten working days of acceptance; hidden defects within ten working days of their discovery, describing the defect; otherwise the delivery/service shall be deemed approved. In this case, the assertion of warranty claims and claims for damages as well as the right to challenge errors due to defects shall be excluded.
8.2. In the event of justified and timely notification of defects, the customer shall be entitled to improvement of the service by the Contractor. The Contractor shall rectify the defects within a reasonable period of time, whereby the Customer shall enable the Contractor to take all measures necessary to investigate and rectify the defects.
8.3. The Contractor is entitled to refuse to improve the service if this is impossible or involves disproportionately high costs for the Contractor. In this case, the customer shall be entitled to exercise its statutory rights of recission or reduction.
8.4. A warranty is excluded if the devices have been opened by unauthorised persons and improper modifications have been made to the devices. This does not include changing the filter (activated charcoal filter). This may be carried out by the customer or any technician in accordance with the information in the operating instructions.
8.5. The liability of the Contractor and that of its bodies, employees, suppliers or other vicarious agents (“Persons”) is basically limited to intent or gross negligence. Liability for slight negligence is excluded. This exclusion of liability does not apply to personal injury or damage to items that the Contractor has accepted for processing. Insofar as the Contractor’s liability is excluded or limited, this shall also apply to the personal liability of its “Persons”.
8.6. Any liability of the Contractor for loss of profit or loss of revenue is excluded.
9.1. No oral or written agreements exist in addition to this agreement. Any written or verbal agreements made prior to the conclusion of this agreement which contradict this agreement shall lose their validity upon conclusion of the agreement.
9.2. Amendments or additions to this agreement must be made in writing; sending them by email is sufficient. All this also applies to the waiver of the written form.
9.3. Unless another form is required by law, all notifications must be sent in writing to the last address provided in writing.
9.4. No legal intent to declare can be derived from the Contractor’s silence regarding a certain declaration or measure.
9.5. The contracting parties are obliged to notify the other contracting party of any changes of address without delay, as otherwise notifications sent to the last address notified in writing shall be deemed to have been received with legal effect.
9.6. The invalidity or ineffectiveness of individual provisions of this agreement shall not affect the validity of the remaining contractual provisions; in this case, those provisions shall be deemed to have been agreed which are legally effective and come closest to the purpose of the void or ineffective provisions, provided that they nevertheless correspond to the original intention of the contracting parties. The same applies in the event of a contractual loophole.
9.7. The contracting parties undertake to protect each other’s business and trade secrets. This obligation shall also apply after termination of the agreement. The contracting parties further undertake to impose a corresponding obligation on their employees and other vicarious agents.
10. Place of performance/applicable law/jurisdiction
10.1. The place of performance for all obligations arising from, or in connection with, this agreement shall be the Contractor’s registered office in Vienna.
10.2. It is agreed that this agreement shall be governed by the substantive law of the Republic of Austria to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
10.3. Any disputes arising from or in connection with this agreement shall be subject to the exclusive jurisdiction of the competent court in Vienna.
II. SPECIAL REGULATIONS FOR THE PURCHASE OF papimi DEVICES AND
11. Purchase regulations
11.1. The object of purchase are papimi devices, which are ion-induction devices (PEMF) that induce electromagnetic impulses directly into somatic cells. The Contractor’s obligation under the purchase agreement includes the barrier-free delivery of the devices to the installation site and initial training of the customer’s operating personnel in accordance with the Medical Devices Act.
11.2. The Contractor’s services do not include the performance of preparatory work such as the establishment of power and network connections. The customer must bear the costs of this itself.
11.3. Upon delivery/installation, the customer must grant the delivering company access to the installation site. The customer acknowledges that the goods must be checked for delivery damage by the carrier after delivery. If possible, damage should be documented photographically. In the event of visible damage to the pallet or packaging, the delivery may be signed “with reservation” with the carrier. Acceptance must be refused in the event of serious damage. If this is not done, the goods shall be deemed to have been duly accepted.
11.4. Acceptance shall be deemed to have taken place at the latest when the device is used by the customer.
11.5. The customer shall not be entitled to withhold payment – even in part – in the event of insignificant defects while simultaneous using the devices.
11.6. Any risks shall be transferred to the customer from the time the equipment is installed on site.
11.7. Ownership of the devices shall remain with the Contractor until they have been paid for in full. In the event of a qualified default in payment after a reminder, the Contractor shall be entitled to collect the devices while maintaining the agreement.
11.8. The Contractor shall provide initial training and instruction for the Customer’s operating personnel prior to commissioning. The customer is obligated to have a sufficient number of operating personnel participate in the training, free of charge, during commissioning.
11.9. The Contractor recommends that the customer insures the devices appropriately.
12. Maintenance regulations for papimi customers
12.1. The Contractor shall offer the customer an additional maintenance agreement upon request.
12.2. Unless otherwise agreed in writing, the maintenance fee must be paid in advance.
12.3. Maintenance services include the service specified by the manufacturer, however at least one on-site service per year.
12.4. Maintenance does not include the replacement of wear parts (except for the services specified in the maintenance agreement) or damage to the devices for which the customer or the customer’s operating personnel are responsible.