General Terms and Conditions of Sale and Delivery
ECA-Medical Handels-GmbH und APONOVA-PHARMA HandelsgesmbH
Niederhart 100, A-6265 Hart i. Zillertal
These conditions are applicable for all of our deliveries and services, to the exclusion of the general terms and conditions of our customers and subject to deviating written agreements. For proprietary medicinal products, the provisions of pharmaceutical legislation are given priority.
2. Offers and orders:
All offers are non-binding for us. Orders and quotations as well as oral agreements are only binding for us when they are confirmed in writing or are actually fulfilled. Quotations do not preclude the calculation of unforeseen cost increases. Point 3 applies here.
3. Billing and payment:
If a fixed price is not expressly agreed in the order, the bill will always be at the selling price in place on the day of the delivery or the day the service is performed or at our list prices from our factory. These prices do not include value added tax.
As long as it does not relate to a selling price that is officially regulated, we are authorised to adjust even bindingly agreed prices due to the alteration of factors that are significant to the calculation of price, such as staff, material, freight or credit costs, fees and charges, etc. In the case of price changes of this kind which are over 15% then we must, however, advise you of this at least eight days before the delivery or the performance of the service and you are then entitled to exercise your right to cancel the order within 48 (forty-eight) hours.
Nothing can be offset against our receivables unless the counter-claim is determined to be undisputed or legally binding. In the case of late payment and reasonable doubt regarding the solvency or credit status of the customer we are entitled, without this affecting our other rights, to request advance payment for outstanding deliveries and services and to demand that all claims arising from the business relationship be settled immediately. Otherwise, billing amounts are to be paid in their net amounts, without any further deduction, free-post and with no charges. Bills of exchange and cheques are only accepted as payment if all the charges for this are borne by the customer. The payment is on time if it reaches us on the last day of the payment deadline at the latest. Payments to representatives or business travellers only fully satisfy the debt if these are verified with a written power for collection. If the payment is late, then we calculate default interest in the amount of 8% p.a., calculated via EURIBOR, as well as all costs incurred in recovering the debt.
4. Delivery and acceptance:
As long as nothing to the contrary has been agreed in writing, delivery times are non-binding and start on the day on which the order is confirmed. If the delivery deadline is culpably exceeded, then you can rescind the contract or demand damages, without this affecting your further rights, upon expiration of an appropriate grace period set by you in writing. Your claim for damages because of delay or non-fulfilment of the order is limited to the invoiced amount of each quantity of goods which were not delivered on time as long as we are not liable over and above this due to malice or gross negligence. Unforeseen disruptions to operation, exceeding delivery deadlines or non-delivery by our suppliers, lack of employees, energy or raw materials, strikes, lockouts, difficulties in the procurement of transportation, traffic disruptions, official pharmaceutical regulations and other instances of force majeure exempt the party affected from the obligation to deliver and / or accept for the duration of the disruption and the extent of its effects and extend the delivery deadline in accordance with the duration. If the delivery and / or the acceptance is delayed by more than three months then both parties are entitled, without it affecting all other claims in any way, to rescind the contract with regards to the quantities affected by the delivery and / or acceptance disruption. Our delivery obligation is ceased if the customer is in default with a due payment.
5. Exchange and return:
Aside from returns affected by the regulations regarding contractual infringements, the exchange and return of our products can only usually take place if this has been agreed in advance.
6. Shipment and assumption of risk:
The type of shipment and shipment route are chosen by us, whereby we will endeavour as far as is possible to take your requests into consideration. Any additional costs incurred as a result of this must be borne by you. As long as nothing has been agreed to the contrary, the risk is ultimately assumed by you when the goods are shipped from our delivery plant ECA-Medical Handels-GmbH and APONOVA-PHARMA HandelsgesmbH (Incoterm ExW) or, if you are in default of acceptance, when they are ready for dispatch.
All packaging from us which is delivered to the customer is approved by our participation in the "ARA" (Altstoff Recycling Austria) [Second Hand Material Recycling Austria] and is thus exempt from the return obligation according to the Packaging Regulation. Packaging relinquished on a loan basis is to be sent back, free-post, in good condition to the delivery warehouse at the latest four weeks after the invoice date for deliveries in Austria and at the latest eight weeks after the invoice date for deliveries outside of Austria. If this does not happen then we can charge you with the requisition costs. Packaging and auxiliary packaging material may only be reused if our brands and our company name are unrecognisable.
8. Retention of proprietary rights:
Until all of your obligations resulting from the business relationship have been completely satisfied, the delivered goods, which are to be carefully looked after by you, remain our property. The retention of proprietary rights applies, in the case of a current account, for the whole account balance and remains even in the case of the goods being resold to a third party. If you resell goods which remain our property in such a way that a third party can acquire ownership then your purchase price claim against the third party transfers to us.
According to section 377 of the HGB [Commercial Code], you must immediately check the goods delivered and notify us of any defects straight away. If this check does not take place, is not carried out to the requested extent or if visible defects are not immediately pointed out to us, however at the latest within fourteen days of you receiving the goods, then the goods apply as accepted with regards to such defects. Defects not visible at the time of the transfer of the goods are also to be reported to us as soon as they have been discovered. Notices of defects must be delivered in writing.
In the case of defect notices that are properly raised and justified, we are obliged, at our discretion, to reduce the price of, to redeliver, to improve or to exchange the goods or to take back the goods and refund the selling price, whilst taking your interests into consideration to a reasonable extent. Further guarantee / damages claims are precluded; we are also not liable for slight negligence. This applies in particular for compensation for damages which did not directly occur to the goods themselves insofar as no binding standards from the Product Liability Law apply. The guarantee obligation ceases if the goods are resold.
10. Liability Recession:
You can only rescind the contract or demand damages to the extent expressly determined in these terms and conditions. Any further liability on our part is precluded, except in cases of binding legal provisions.
11. Applicable law and place of jurisdiction:
The place of payment and fulfilment of orders is Hart im Zillertal. The place of jurisdiction is 6280 Zell am Ziller. Austrian law applies exclusively. The application of the UNCITRAL trade law is precluded.
Last update: 26 July 2011