General Terms and Conditions of Sale and Delivery
Last update: 11.10.2018
The following General Terms and Conditions of Sale and Delivery shall apply to the entire business relationship between W&H and customers. By placing the order the Customer recognises them as being binding on him. Deviating, contrary or supplementary general terms and conditions shall not become part of the contract, even if they are known, unless applicability of the same is expressly agreed in writing. If terms are agreed in the contract in writing which deviate from these General Terms and Conditions of Sale and Delivery the contractual regulations shall prevail.
The current prices published by W&H in the price list applicable on the day of the order shall apply. Prices shall be ex works including packaging but exclusive of shipping expenses. Value-added tax shall be calculated separately according to the statutory provisions applicable on the day of delivery or service. Deliveries and services shall be subject to technical or other changes to the extent reasonable.
Goods are always shipped without insurance and in any case at the cost and risk of the Customer. This shall also apply to deliveries with carriage paid and irrespective of the means of transport used or of who chooses the means of transport. Transport insurance shall only be taken out at the express request of the Customer. Resulting costs shall solely be borne by him. Unless otherwise agreed in writing, the price risk shall pass to the Customer upon dispatch of the goods; in case of default in acceptance by the Customer the price risk shall pass to the Customer upon readiness of the goods of W&H for shipment. Unless otherwise agreed in writing W&H shall choose the place of dispatch and the shipping route and the means of transport at its discretion and shall not assume any liability for cheapest and fastest transportation. Delivery times and unloading periods stated are always non-binding unless otherwise expressly agreed in writing. If the Customer provides the means of transport, he shall be liable for timely provision. Delays, if any, shall be notified to W&H in time. Resulting costs shall be borne by the Customer.
Notice of Defects
The Customer shall immediately inspect the goods for defects. Incomplete or incorrect deliveries and apparent defects shall be notified to W&H in writing not later than eight days after receipt of the goods; latent defects and errors shall be notified immediately upon identification of the same. The notice shall clearly state the type and scope of the alleged defect. If defects or errors are not notified on time, the shipment shall be deemed approved and asserting of warranty claims shall be excluded.
In the case of well-founded and timely notices of defects W&H shall improve the goods, grant a price reduction or make a substitute delivery (replacement) or take the goods back against refund of the purchase price in adequate consideration of the Customer's interests. W&H shall choose the remedy under warranty. If W&H do not comply with the warranty obligation, the Customer shall be entitled to reduce the price reasonably or to rescind the contract. Any other claims vis-à-vis W&H, in particular for direct damages or consequential damages, shall, to the extent permitted by law, explicitly be excluded. Fulfilment of a well-founded warranty obligation shall not affect any guarantee commitments made vis-à-vis third parties. Accordingly, such fulfilment shall not extend the period, neither with regard to warranty, nor with regard to guarantee.
Delivered goods may only be sent back with W&H's prior consent. If goods are returned nevertheless, W&H shall be reimbursed any and all costs incurred by them as a consequence thereof. The Customer may not deduce any claims or other legal consequences from acceptance of returned goods. In the event that it is agreed that goods will be taken back W&H reserve the right to charge a handling fee for the costs incurred in connection with the returned shipment and, when crediting the value of the goods, to deduct an amount that corresponds to age and condition of the goods. W&H shall determine the amount of such reduction.
Exclusion of Liability
In the case of slightly negligent violation of duties on the part of W&H or agents [translator's note: Erfüllungsgehilfen as defined by Section 1313a of the Austrian General Civil Code [ABGB] of W&H liability shall be excluded. The foregoing limitations of liability shall not apply to claims of the Customer under product liability or guarantees given, if any. In addition, the limitations of liability shall not apply to harm to body or health or death of the Customer for which W&H are responsible.
Invoices for deliveries of goods shall be paid in accordance with the relevant agreements made. If no written agreement on the payment period exists between the parties, all payments of invoice amounts shall be due immediately upon receipt of the invoice and shall be made without deductions. At the request of W&H the mode of payment may be changed to collection on delivery. Bills of exchange or cheques shall only be accepted if specifically agreed in writing and only on account of payment. Discount expenses shall be borne by the Customer and shall be due immediately. In the event of delay of payment default interest of 8% above the base rate shall be agreed. Off-setting on the part of the Customer shall be excluded unless claims are set off against claims that have been recognised by W&H in writing or ascertained in a non-appealable manner. If the Customer no longer operates a proper business, if enforcement measures are taken against him, if a cheque or a bill is protested, or if payments are slow or discontinued or if the Customer applies for composition proceedings in or out of court or if bankruptcy proceedings are opened over his assets or if a request for such proceedings is dismissed for lack of assets to cover the costs, W&H shall be entitled to call for immediate payment of all claims under the business relationship, even if bills or cheques have been accepted or payment by instalments has been agreed. The same shall apply in the event of default in payment on the part of the Customer or if other circumstances become known that make the creditworthiness of the Customer appear doubtful. In such case W&H, in addition, shall be entitled to demand advanced payment or security, to realise security provided and to rescind the contract and to claim damages for non-performance. Assignment to third parties of accounts receivable by the Customer from W&H as well as transfer of rights and duties under the purchase contract concluded shall not be permitted without prior written approval by W&H.
Retention of Title
The delivered goods shall remain property of W&H until the Customer has completely fulfilled his obligation, in particular payment of the purchase price plus ancillary costs and interest, charges, expenses, etc. If the goods are resold the Customer shall assign his accounts receivable from the sale of the goods which are subject to retention of title to W&H. The Customer shall be obliged to mark such assignment in his books by making booking references and to disclose the names of those who owe the purchase price, if so demanded by W&H, and to state the exact figures of the assigned accounts receivable. The assignment shall be accepted by W&H. Charges and/or taxes, if any, payable in connection with the assignment shall be borne by the Customer and he shall indemnify and hold W&H harmless in this respect. W&G shall be entitled at any time to disclose the assignment made and collect the assigned accounts receivable themselves. The Customer shall be obliged to have the goods that are subject to retention of title sufficiently insured against the usual risks, such as acts of God, and to evidence the insurance to W&H if so required. The Customer hereby assigns his insurance claims, if any, to W&H. Furthermore, the Customer shall be obliged to store the goods according to the instructions of W&H and to the state of the art. The Customer shall be obliged to handle the goods with care whilst they are subject to retention of title. If maintenance work or inspection work should be necessary, the Customer shall have such work carried out regularly on his own costs.
The Customers confirms that he knows the relevant national, European and international regulations related to distribution of medical products, such as the Statute on Medical Products or the Guidelines on a Medical Device Vigilance System, and undertakes to comply with the same. Furthermore, the Customer confirms that according to applicable national, European and international regulations he is qualified and authorised to trade in, store and purchase medical products.
Offers and projects as well as the related drawings, dimension diagrams and descriptions are the intellectual property of W&H and shall not be reproduced or made available to third parties without the consent of W&H.
Re-exports of the Customer shall in any case require the prior written consent of W&H.
To the extent that W&H are obliged by law to take back transport packaging and outer packaging the Customer shall bear the costs of transporting the used packaging back.
In the case that events of force majeure affect W&H or any of their upstream suppliers W&H shall be entitled to suspend deliveries for the time of the obstruction and a reasonable start-up period or the rescind the contract in whole or in part according to the consequences of the events of force majeure. Events of force majeure shall include but not be limited to: all impacts of the elements, such as earthquake, lightning, frost, storm, floods; war, laws, acts of authorities, seizure, transport interruption, export bans, import bans and prohibition of transit, international payment restrictions, failure of supply of raw materials or energy failure; business interruptions, such as, e.g., explosion, fire, strikes, sabotage and any other events that could only be prevented with unreasonable costs and commercially unreasonable means.
Consent regarding Data Protection Law
The Customer expressly agrees that personal data which has been and/or will be made available by the Customer may be collected, processed and used by W&H for marketing purposes or other purposes by means of a customer data base. This consent may be revoked by the Customer at any time with effect for the future.
Austrian law shall apply with the exception of the conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods. The venue for all disputes arising directly or indirectly from the contract shall be the court in the provincial capital of Salzburg having jurisdiction over the subject-matter. The place of performance for deliveries and payment shall be the place of the registered office of W&H. If individual provisions of the contract or of these Terms and Conditions should be or become ineffective in whole or in part, the validity of the remaining provisions shall not be affected. The provision that is ineffective in whole or in part shall be replaced by a provision the economic result of which comes as close as possible to that of the ineffective provision. Any and all amendments to and modifications of contracts concluded between W&H and the Customer shall be made in writing. This shall also apply to a waiver of this requirement of written form.