General Terms of Delivery ("GTD")

Last modified: 28 September 2020

by LEAD Horizon International GmbH

FN: 531630 i

(hereinafter referred to as "Seller", or "we" or "us")

Scope


The following General Terms of Delivery (hereinafter referred to as “GTD”) shall apply to all (i) orders from customers (hereinafter also referred to as "Customers" or "Customer") for the delivery of Goods by us, (ii) offers made by Seller, (iii) contracts concluded by Seller with Customer with regard to the delivery of Goods and (iv) present and future deliveries and services of Seller to Customers even if not expressly referred to. These GTD supersede any other agreements or conditions relating to the supply of Goods, which has not been agreed to in writing by Seller. The version of these GTD valid at the time of the conclusion of the contract is decisive. Deviating business or delivery conditions of the Customers shall only apply with our express written consent. 
By placing an order with us, the Customer fully agrees to these GTD.Persons, who place orders with us on behalf of the Customer or deliver or collect Goods for processing, declare to be authorized to accept our GTD on behalf of the Customer.

"Goods" in the meaning of these GTD are all products for whose delivery contracts are concluded with us.

Offer, Contract conclusion

Acceptance and execution of all orders shall be non-binding and subject to the possibility of delivery. A contract for a specific delivery of Goods is only concluded when we confirm the order.We are entitled to reject orders, especially, if they exceed the usual order volume of the Customer, or to only accept such orders in part without giving reasons.

Prices and Costs

All price quotations are non-binding and are - unless otherwise stated - in Euro and exclusive of value added tax (VAT). All transport and packaging costs, freight and insurance charges, customs duties, fees and charges shall be borne by the Customer. 

The statutory VAT will be invoiced additionally at the current rate. Any fees are to be paid by the Customer.

The prices quoted are "EX WORKS" in accordance with INCOTERMS 2020 and do not include the costs for the carrier (freight forwarder or warehouse keeper) commissioned by the Customer. The Customer is liable for compliance with the storage regulations valid at the time.

Payment Conditions, Exclusion of Offsetting 

Our invoices are due for payment within 7 days from the date of invoicing, free and clear of charges and deductions. Bank transfers shall only be considered as payment when the amount has been credited to our account. Bills of exchange or cheques shall only be accepted on account of payment after written agreement, excluding any discount. Discount interest and all bank charges shall be borne exclusively by the Customer.

If a contract is concluded between the Seller and a Customer which, at the time of conclusion of the contract, fulfils the preconditions of Section 10 para 1 (i.e. crisis or reorganisation requirement), the Seller – irrespective of whether or not the Customer has informed the Seller about such fact prior to conclusion of the contract – shall be obliged to fulfil his duties under the contract subject to pre-payment of the full purchase price by the Customer only. The Customer shall bear the burden of proof that – at the time of conclusion of the contract – it did not fulfil the preconditions pursuant to Section 10 para 1.

In case of default of payment by the Customer, we are entitled to demand either compensation for the actual damage incurred or default interest at the statutory rate. This rate amounts to 9.2% p.a. above the basic interest rate for entrepreneurs. In the event of default of payment by the Customer, we are also entitled to compound interest from the date of delivery of the Goods. In the event of default of payment, the Customer shall reimburse us for any reminder and collection expenses, insofar as they are necessary for appropriate legal prosecution. In any case, this includes a lump sum of EUR 900.00 as compensation for debt collection costs. The assertion of further rights and claims remains reserved. In case of a partial default of payment of the Customer, we shall be entitled to make the outstanding invoiced amounts immediately due and payable and/or to demand advance payment or security for future deliveries and services. 

The set-off with counterclaims of the Customer, which are disputed by us and which have not been determined by legally binding title, is excluded, as is the exercise of a right of retention without a legally binding title or due to claims from other legal transactions.

Delivery Time, Delay in Delivery, Impossibility, Delay in Acceptance

We are only obliged to perform our duties as soon as the Customer has complied with all of his obligations necessary for delivery (e.g. receipt of the agreed down-payment). Delivery periods and dates will be adhered to by us as far as possible. Unless expressly agreed as binding, they are not binding and are always to be understood as the expected time of provision and handover to the Customer. Withdrawal from the contract by the Customer due to delay in delivery is only possible by setting a reasonable grace period in writing of at least 4 weeks. The withdrawal is to be asserted by registered letter. The right of withdrawal only refers to the part of the delivery or service which is in delay; a withdrawal by the Customer from already provided partial services and deliveries is excluded.
Subsequent request for alterations and amendments of the Customer extend the delivery time appropriately. The same shall apply in the event of unforeseen obstacles, which lie outside our sphere and/or our upstream suppliers, e.g. force majeure, including but not limited to transport difficulties due to strikes, lock-outs, border closures, delays in the delivery of essential raw materials or supplies, the impossibility of an adequate supply of raw and auxiliary materials, the impossibility of procuring means of transport, plant closures due to official orders, etc. For their entire duration, any such circumstances release us from the agreed delivery periods or such delivery periods cannot be asserted, respectively.
Claims for compensation by the Customer are excluded in all cases of delayed or non-executed deliveries even after expiry of the grace period, except in cases of intent or gross negligence.

If a delivery is not possible due to delivery difficulties and/or price increases at our suppliers, we are entitled to withdraw from the contract without any obligation to indemnification.

Liability for damages caused by delivery delays is excluded.

If collection of the ordered Goods has been agreed with the Customer and they have not been taken over on the agreed delivery date, the Goods shall be stored at the Customer's risk and expense for a maximum of 1 week. The Customer shall bear the storage fees. At the same time, we are entitled to either insist on fulfilment of the contract or to withdraw from the contract, after setting a reasonable grace period, and dispose of the Goods otherwise. In the event of such disposal, a contractual penalty of 10 % of the invoice amount excluding VAT is agreed. 


We deliver to Austria and other countries to the delivery address provided to us. The country of destination is the country in which the delivery address is located. For all other countries, we reserve the right to refuse the order.

Any incurred export or import fees or tolls shall be borne entirely by the Customer. The invoice for these fees will be charged directly to the Customer by the customs office. The Customer hereby also expressly agrees that the data may be passed on to the customs offices.

Delivery, Shipping, Transfer of risk, Insurance, Packaging

The Customer is obliged to accept our deliveries and services. We deliver uninsured. Transport insurance can be taken out at Customer’s request and expense. The risk is transferred to the Customer as soon as the delivery item has been handed over to the forwarding agent or other transport service; in case of default of acceptance by the Customer from the time of readiness for shipment. This also applies if partial deliveries are made or we have taken over other deliveries. 

Retention of Title

The Goods remain our property until full payment of the purchase price including any shipping and handling charges and taxes. The Customer bears the full risk for the reserved Goods, in particular the risk of destruction, loss or deterioration. In the event of delayed payment, the Customer is obliged to return the entrusted Goods, after an unsuccessful reminder. 

The Customer is entitled to resell the Goods in the regular course of business or by a separate agreement.

Until full payment of the purchase price, the Customer assigns all claims and security rights arising from the resale of Goods for payment purposes. The Customer is obliged to make a note of the assignment in his books of account. In the event of default of payment, we are entitled to inform the repurchasers of the Goods, the names of which the Customer has notified us, of the assignment and to demand payment to us.The Enforcement of retention of title shall not be deemed a cancellation of the contract, unless expressly declared. In case unpaid Goods are pledged to third parties or enforced by authorities, the Customer is obliged to notify us immediately so that we can assert our right of ownership against the third party. The recognition of balances does not affect the reservation of title, nor does the submission of bills of exchange or cheques until their correct or actual encashment. If we make use of our retention of title and take back Goods, the credit note for the Goods taken back on the basis of the retention of title will be issued, taking into account storage duration and storage costs, damages, mandatory regulations of the Austrian Medical Product Act (Medizinproduktgesetzes), as well as deductions appropriate to other circumstances.Goods that have been removed from the sealed packaging cannot be taken back for reasons of health protection.

If we take back Goods delivered on the basis of the retention of title, the Customer shall be liable for any loss of proceeds resulting from resale. The Customer shall also reimburse the costs incurred by the return transport or onward transport to third parties.

Complaint, Warranty, Compensation for damage 

We warrant that the delivered Goods correspond with the respective product specifications. Furthermore, we do not warrant for any other property of the Goods. In particular, we do not warrant that the delivered Goods have the required product labelling in countries other than Austria. If the Customer has notified us of the product labelling required for the country of destination, we only warrant that the notified specifications are complied with, but not that they are correct. We are also not subject to any obligation to verify the information provided by the Customer. Furthermore, we do not warrant that the Goods delivered by us may be exported to the country of destination, that they may be marketed in the country of destination (with the exception of Austria) or that the necessary certifications and official approvals of the country of destination are available. It is the Customer’s responsibility to verify and fulfil the regulatory requirements for the marketing of the Goods in the country of destination and to obtain the necessary approvals. The Customer shall verify any import restrictions for the country of destination. If Goods cannot be delivered to the requested address due to import restrictions, this does not release the Customer from its obligation to pay. Any costs for intermediate storage and return transport are to be borne by the Customer. If the Customer does not bear these costs, the Seller is free to order the destruction of Goods at Customer's expense; however, this does not release the Customer from its obligation to pay for the Goods ordered.

Unless otherwise agreed, a license for the Goods, under the intellectual property laws of the United States of America or any other country outside the European Economic Area (EEA), is neither expressly nor impliedly granted.

If Goods are used after the lapse of the minimum durability date as indicated on the packaging or in the user manual, the Seller shall not be held liable in case the Goods do no longer show the intended functionality, effect or usability. 

Any liability beyond the warranty (including any liability for damages) is excluded, except in cases of gross negligence, intent or personal injuries.

If our Goods show defects, the complaint shall be reported in writing immediately (after receipt of the Goods, which is deemed confirmed by signing the delivery documents (delivery note or cartage note)). If incorrect deliveries, shortfalls or other defects are not notified within 5 working days of receipt of the Goods at the latest, the delivery or service is deemed to have been carried out in accordance with the contract. In order to be valid and effective, any notification must be served on the Seller within the notification period. The unobjected acceptance of Goods by forwarding agents or carriers shall be deemed proof of faultless packaging and shall exclude any claims against us for damages incurred during transport.

The warranty periods expires 3 months after handover. The existence of a defect must be proven by the contractual partner. The provision of § 924 of the Austrian Civil Code (ABGB) is expressly excluded.

In the case of justified defects, the warranty is limited to improvement, new delivery or addition of the missing item as requested by the Seller and within the scope of the legally binding regulations of the Austrian Medical Product Act (Medizinproduktegesetzes). Several rectifications or deliveries are permissible. Claims for contract cancelation and price reduction are excluded, unless we expressly agree. The Customer shall not be entitled to any warranty claims if the Customer or a third party not authorised by us has made changes or repairs to the Goods.Excluded from the warranty are defects resulting from inadequate storage, facility, non-compliance with the terms of use, overstressing of parts beyond the indicated capacity, negligent or incorrect handling and use of inappropriate operating materials or defects of aesthetic appearance (i.e. defects, which do not affect the intended use of the Goods, such as mere packaging damage, colour deviations etc.).

Furthermore, the warranty does not cover the replacement of parts, which are subject to natural wear and tear.

Returns require our prior written consent. A right of recourse in accordance with § 933b Austrian Civil Code (ABGB) is excluded and the Customer will indemnify and hold us harmless in this respect.

In order to carry out services under the warranty, the Customer must deliver the Goods to us and collect them from us at its own expense and risk.

The customer waives the right of rescission or adjustment due to laesio enormis, error or frustration of contract.

We shall not be liable for damages to the Goods resulting from improper use, natural wear and tear or incorrect or negligent handling or storage.

As far as this does not violate mandatory law and as far as nothing else is regulated in these GTD, we are only liable for the compensation of damages, which we caused by gross negligence or willful misconduct. However, this limitation of liability does not apply to compensation for personal injuries. We are not liable for indirect damages, loss of profit, loss of interest, omitted savings, consequential and financial losses and damages from third party claims. In the event of gross negligence, liability is limited to the value of the Goods delivered, but not exceeding the amount covered by our insurance.

In case of receipt of Goods already externally damaged, the complaint must be addressed directly to the carrier (forwarding agent) and to us within the scope of the complaint.

When reselling the Goods, the Customer must inform its business partner that the Goods are medical products. The Customer is advised that medical products whose shelf life has expired may no longer be placed on the market.

The customer bears the burden of proof that we were at fault in the event of a claim for damages.

Product Liability

To the extent permitted by law, claims pursuant to the Austrian Product Liability Act (Produkthaftungsgesetz) are excluded.

The Customer is obliged to read and follow the product descriptions carefully. We assume no liability for incorrect storage, use and/or application by the Customer, especially contrary to the instructions in the product descriptions. In any case, all instructions on the product packaging and the product inserts must be observed.

Non-observance or reduced observance of specified and generally known conditions for assembly, commissioning, use or maintenance (e.g. operating instructions, instructions for use) as well as disregard of warnings or official requirements, goes beyond mere contributory negligence on our part in accidents and leads to the loss of any claims against us. In all cases, the claimant (Customer) has a comprehensive obligation to cooperate in the clarification of the relevant facts.

Customer’s Reporting Obligations

If the Customer is in crisis or requires reorganisation, it must inform the Seller accordingly prior to the conclusion of the relevant contract for delivery of Goods. For the purpose of these GTD, a Customer is in crisis if (a) it is insolvent (Section 66 Austrian Isolvency Act) or (b) it is over-indebted (Section 67 Austrian Insolvency Act) oder (c) the Customer’s equity ratio (Section 23 Austrian Business Reorganisation Act) is below 8% and the notional debt amortization period (Section 24 Austrian Business Reorganisation Act) exceeds 15 years.

Further, the Customer is obliged to inform the Seller without undue delay in writing (e-mail or fax sufficient) if circumstances arise which are suitable to create reasonable doubt about the Customer’s creditworthiness or ability to fulfil all its obligations when due. In this respect, the Customer shall inform the Seller, in particular, about (a) any deterioration of the Customer’s creditworthiness or probability of default pursuant to an assessment of the Austrian Kreditschutzverband 1870 or any comparable creditors’ association, (b) over-indebtedness, (c) insolvency, (d) payment disruptions, (e) application (by the Customer or any third party) for the opening of insolvency or reorganisation proceedings over the Customer’s assets and (f) rejection of the opening of insolvency proceedings over the Customer’s assets due to lack of assets, in each case already if any such circumstance is foreseeable. The Customer shall be liable for any disadvantages and damages incurred by the Seller due to violation by the Customer of his reporting obligations set forth herein.

Deterioration of Customer’s Economic Situation, Rescission by the Seller

For the purpose of these GTD, any deterioration of the Customer’s creditworthiness, indebtedness and/or solvency shall be deemed material if such deterioration causes objectively justified doubt about the Customer’s ability to thoroughly fulfil its obligations and settle its debts when due. A material deterioration shall be refutably presumed if (i) the Customer is in default with payments for more than 14 days and/or (ii) one of the cases pursuant to Section 10 para 2 sublit (a) to (f) applies.

If, compared to the situation at the time of conclusion of a contract, a material deterioration of the Customer’s creditworthiness, indebtedness and/or solvency occurs or if there is justified reason to believe that any such material deterioration is going to occur, the Seller shall be entitled to (a) demand immediate payment of all outstanding debts by the Customer and withhold any deliveries until payment by the Customer of all its outstanding debts in full, in each case irrespective of any deviating agreements between the parties regarding payment terms and payment periods and/or (b) demand adequate security for the Seller’s outstanding claims (e.g. by way of a pledge etc., in each case subject to the Seller’s choice) and/or (c) rescind the contract with immediate effect and claim compensation for all disadvantages and damages resulting therefrom. 

In case of any dispute – upon the Seller’s respective request – the Customer shall prove that no material deterioration of the Customer’s creditworthiness, indebtedness and/or solvency has occurred and that there is no justified reason to believe that any such material deterioration is going to occur.

The Seller shall also be entitled to rescind the relevant contract if the Customer’s equity ratio (Section 23 Austrian Business Reorganisation Act) drops below 8% and the notional debt amortization period (Section 24 Austrian Business Reorganisation Act) rises to more than 15 years. The Customer shall inform the Seller about any such deterioration of its economic situation without undue delay and shall be liable for any breach of such obligation.

Advice for use according to the Austrian Medical Product Act (Medizinproduktgesetz)

With regard to compliance with the Austrian Medical Product Act (Medizinproduktgesetz), Legal Bulletin BGBl. 657/1996 in its current version, we inform you about the following, whereby compliance with all statutory provisions for the use and marketing of medical products for retail sale is the sole responsibility of the Customer and any liability in this respect by us is excluded:

According to § 83 Austrian Medical Product Act (Medizinproduktgesetz), medical products may only be used by persons who have been instructed in the proper handling of the medical product or of a medical product of this type, under consideration of the instructions for use as well as the enclosed safety-related information, and who have also been made aware of special application and of specific medical product risks. In particular, the natural person or legal entity responsible for the operation of a health care facility is obliged to ensure, in accordance with § 4 para. 1 of the Medical Products Operator Regulation (Medizinproduktebetreiberverordnung), the training of persons dealing with the respective medical devices by medical device consultants (§ 79 Austrian Medical Product Act (Medizinproduktgesetz)). Instruction is not required for those persons for whom it can be assumed on the basis of their training, their other knowledge or on the basis of their practical experience that they are sufficiently familiar with the information stated in § 4 para. 3 Medical Products Operator Ordinance (Medizinproduktebetreiberverordnung). The instruction shall be documented.

The provision and transmission of detailed manufacturer's protocols and test protocols (e.g. § 3 sec. 3 Medical Products Operator Ordinance (Medizinproduktebetreiberverordnung) is generally subject to a charge and shall be paid by the Customer.

Place of jurisdiction and applicable law

For all disputes arising out of or in connection with a contract to which these GTD apply, the competent court for Vienna Inner City in commercial matters shall have exclusive jurisdiction. Place of performance for deliveries and payment is the registered office of the Seller. All contracts are concluded under Austrian law. The UN Convention on Contracts for the International Sale of Goods and the reference norms of international private law (in particular Code on Private International Law (IPRG), Rome I Regulation (ROM-I-VO)) are expressly excluded.

For Customers domicilede in the United States of America, the following arbitration agreement applies exclusively:

All disputes or claims arising out of or in connection with this contract, including disputes about its validity, breach, termination or invalidity, shall be finally settled under the Rules of Arbitration (Vienna Rules) of the International Arbitral Institution of the Austrian Federal Economic Chamber (VIAC) by one arbitrator appointed in accordance with these rules. The language to be used in the arbitral proceedings shall be English. The place of arbitration shall be Vienna. The substantive law applicable to the arbitration agreement shall be the laws of the Republic of Austria.

Miscellaneous


Should any of the abovementioned or agreed upon provisions in these GTD be or become legally ineffective, invalid and/or void or become so in the course of their duration, it shall not affect the legal effectiveness of the remaining provisions. In such case, the legally ineffective, invalid and/or void provision shall be replaced by one that is legally effective and valid and comes closest to the economic effect of the replaced provision, as far as possible and legally permissible.

These GTD have been drawn up in German and English language, however only the German Version is legally binding; the English version is for information purposes only.

Data protection

In accordance with data protection law, we inform the Customer that the following data is stored in our electronic system: Name, address (including e-mail address), telephone number and information on the payment process. This data serves the purpose of fulfilling the contract (Art. 6 sec. 1 lit b GDPR) and is stored by us for the duration of the statutory warranty and product liability periods (10 years), but is not passed on.

The Customer is in general entitled to the rights of information, correction, deletion, restriction, data transferability, revocation and objection. A relevant letter of request has to be sent to our business address.