General terms and conditions
1. scope of application of these GTC
The present General Terms and Conditions (hereinafter referred to as “GTC”) apply to all legal transactions or offers concerning the sale of goods under the product name MYMEDTEC of Medizintechnik Höller GmbH (hereinafter referred to as “mymedtec”) in B2C (i.e. to end consumers). Mymedtec thus concludes all legal transactions exclusively on the basis of these GTC. This shall not apply by way of exception if the validity of the GTC has been expressly waived in writing for individual transactions.
These GTC contain provisions that only apply to consumers within the meaning of the Austrian Consumer Protection Act (KSchG). A consumer within the meaning of this law is anyone who is not an entrepreneur. An entrepreneur is anyone for whom the legal transaction is part of the operation of his business. An enterprise in this sense is any permanent organization of independent economic activity, even if it is not profit-oriented (such as associations under the Associations Act 2002).
If mymedtec enters into a continuing business relationship with a customer, these GTC shall apply as a framework agreement for this business relationship. If a condition agreed in a legal transaction contradicts these GTC, this contradictory provision shall only be effective if a departure from these GTC is expressly agreed. The customer’s general terms and conditions shall not apply unless they have been expressly accepted in writing by mymedtec.
Some terms used in these GTC are defined in more detail below:
a) “Order” is the customer’s binding request for the provision of a service by mymedtec, in particular the request for the delivery of goods.
b) “Order” (“contract”) is the legal transaction concluded between mymedtec and the customer.
3. order, order, delivery/service
Offers, advertising mailings or other invitations to tender by mymedtec are merely invitations to place orders with customers and are subject to change and non-binding.
Orders placed by customers with mymedtec constitute binding offers by a customer to conclude a contract. They are binding and cannot be revoked by the customer – subject to special statutory provisions and the right of withdrawal regulated below. After checking the order received, mymedtec shall, at its discretion, either send the customer an order confirmation or deliver the ordered goods within a reasonable period of time. Silence on the part of the customer or mymedtec shall in no way be construed as consent or acceptance of an offer or order.
Mymedtec expressly reserves the right to refuse orders from customers. A refusal to accept an order may, for example, be due to delivery difficulties or other market-dependent circumstances over which mymedtec has no control. In general, however, mymedtec is free to refuse an order without giving reasons. An express notice to the customer may be omitted. Apart from a possible claim for repayment of a fee already paid, the customer shall not be entitled to any claims whatsoever as a result of the non-performance.
The claims of a customer arising from the contractual relationship with mymedtec may only be transferred to a third party with the prior consent of mymedtec.
The customer acknowledges that illustrations of products and goods do not have to fully correspond to the goods actually delivered. In particular, deviations resulting from further development of a product (e.g. material changes) shall be accepted by the customer, unless the changed property was expressly stipulated by the customer and the change is not objectively disadvantageous to the customer. Mymedtec does not assume any liability for the correctness, completeness and topicality of the information provided in print media, image- and sound-supported advertising mailings or other media and expressly reserves the right to make errors, in particular with regard to price markings. Mymedtec does not guarantee that the colors displayed on the web pages correspond to the actual colors, because the color reproduction depends, among other things, on the quality of the computer used by the customer or also on the image material provided by the manufacturer of a product.
If a customer wishes to have the contract fulfilled in a way that deviates from or goes beyond the original offer made by mymedtec (additional service), mymedtec shall owe such special or additional services only after a separate express and written agreement has been made. Mymedtec is entitled to charge an additional reasonable fee for each service provided that deviates from the original offer.
mymedtec reserves the right to choose the method and route of shipment. In particular, there is no obligation to choose the cheapest mode of transportation. The packaging is made in the usual way. Any packaging in excess of this shall only be carried out on the express instruction of the customer and shall be at the customer’s expense. The customer shall arrange for the disposal of the packaging at his own expense. Express and air freight surcharges are charged separately. Transport insurance shall only be taken out on the express instruction of the customer and only on behalf of and for the account of the customer. Liability on the part of mymedtec in this connection is excluded.
According to these terms and conditions, Mymedtec is free to accept a customer’s order by written declaration or by delivery of the ordered goods.
The delivery time shall be deemed to be agreed only approximately. It begins on the day the order confirmation is sent to the customer.
Mymedtec shall endeavor to meet the delivery dates and deadlines specified to the Customer. The agreement of delivery dates and deadlines must be in writing in each case. Subsequent requests for changes or additions by the customer shall extend the delivery period appropriately. However, if the delivery is delayed due to circumstances attributable to the sphere of the customer (e.g. delayed sending of necessary information, delay in payment), the agreed delivery date shall also be postponed by the same duration.
The timely handover of the goods to the shipping company or, if shipping is not possible, the notification to the customer that the goods are ready for shipment, shall be sufficient for compliance with the delivery deadlines. If self-collection of the goods by the customer has been expressly agreed, it shall be sufficient if mymedtec holds the goods ready for collection at the place of collection on the last day of the period at the last possible collection time.
Compliance with the delivery obligation by mymedtec presupposes the timely and proper fulfillment of the Customer’s obligations and that the Customer meets his contractual and any agreed payment obligations that are essential for the order. mymedtec reserves the right to plead non-performance of the contract.
Operational disruptions and events of force majeure as well as other events outside the sphere of influence of mymedtec, in particular also delays in delivery on the part of upstream suppliers, shall entitle mymedtec to withdraw completely from the contract or, in the case of partial deliveries that have already been made, to withdraw from the contract on account of the part that has not yet been fulfilled. For
mymedtec shall only be liable to consumers for damage resulting from such operational disruptions and events of force majeure in the event of gross negligence. Liability towards entrepreneurs is excluded.
5 Transfer of risk, default of acceptance
In any case, the customer bears the transport risk. The price risk shall pass to the customer upon departure of the delivery from our plant/warehouse, in case of direct delivery upon departure from the plant/warehouse of our supplier; this shall apply irrespective of any separately agreed price regulation for the delivery. The transfer of the price risk means: If the goods perish after the time of the transfer of the price risk without fault or only due to slight negligence on the part of mymedtec, the customer shall therefore not be entitled to withdraw from the contract or to claim damages.
If the customer is in default of acceptance, mymedtec shall be free to either withdraw from the contract by setting a 14-day grace period, store the goods itself against payment of an appropriate and customary fee, or have the goods stored by a third party at the customer’s expense.
In the case of self-collection, the price and performance risk shall pass to the customer from the time of handover, and in the case of default in acceptance, from the time of default.
6. prices and terms of payment
The prices shown by mymedtec on the Internet or in brochures, etc. are in euros and include statutory value-added tax ex works or ex mymedtec distribution warehouse.
Invoices from mymedtec – including partial invoices – are due for payment without charges or deductions, in particular without cash discount. Bills of exchange or checks will not be accepted. It is reserved to mymedtec to dedicate incoming payments to any multiple claims at the discretion of mymedtec.
If the customer is in arrears with the payment of a fee by more than a five-day respiro, mymedtec shall be entitled to withdraw from the contract by granting a 14-day grace period. In addition, in the event of default on the part of the customer, interest on arrears shall accrue immediately after the due date at the statutory interest rate (4% p.a. vis-à-vis consumers). Any customary reminder and collection costs or attorney’s fees in accordance with the tariff shall also be paid by the customer.
If the customer is granted a longer payment period or an installment payment is agreed separately, this shall not constitute a postponement of the due date. It is merely waived for the agreed duration of the further collection of the debt already due. If the customer is in default even with the payment of only one installment, or if he does not meet the deferred payment date, the entire claim shall be due immediately plus any additional costs. Default interest due for payment since due date (loss of term).
mymedtec provides no guarantee for the correctness and completeness of cost estimates.
7. delivery and shipping costs
Mymedtec will ship the goods ordered by the Customer to the Customer in the event of the establishment of an effective contractual relationship, subject to deviating agreements. The resulting shipping costs are to be borne by the customer.
If the transport company returns the dispatched goods to mymedtec because delivery to the customer was not possible, the customer shall bear the costs for the unsuccessful dispatch. The customer shall compensate mymedtec for all those damages incurred by mymedtec as a result of the unsuccessful shipment. Liability on the part of mymedtec for any damages incurred by the customer due to unsuccessful shipment is excluded.
In particular, in the event of late delivery to the customer, the customer shall have no claims for damages against mymedtec.
Orders shipped to Switzerland are tax-free deliveries. All import duties (e.g. import sales tax, etc.) must be collected directly from customs in Switzerland. It is the responsibility of the buyer to ensure that this is done properly.
8. retention of title
The goods shall remain the sole property of mymedtec (goods subject to retention of title) until such time as mymedtec has fulfilled its claims against the customer arising from the respective order, in particular until such time as all payments (including interest and ancillary costs) have been fulfilled, even if individual parts have already been paid for.
The customer may not dispose of the goods subject to retention of title until mymedtec’s claim has been settled and bears the full risk for the goods entrusted to him, in particular for the risk of destruction, loss or deterioration.
For the duration of the retention of title, the customer must treat the delivered goods with care and not use or sell the goods.
If goods subject to retention of title are processed by the customer to form a new movable item, this shall be done on behalf of mymedtec without any obligation on the part of mymedtec. The new item shall become the property of mymedtec. If the reserved goods are combined, processed or mixed with goods that do not belong to mymedtec, mymedtec shall acquire co-ownership in proportion to the invoice value of the reserved goods to the other goods. In the event of the sale of goods subject to retention of title by the customer to a third party, the customer’s purchase price claim against the third party shall pass to mymedtec up to the amount of mymedtec’s claim against the customer (extended retention of title).
In the event of seizure by third parties or other access by third parties to the goods subject to retention of title, the customer must point out mymedtec’s ownership and the customer must inform mymedtec immediately in writing of the seizure or other access by the third party.
In the event of breach of contract by the customer, in particular in the event of default in payment, mymedtec shall be entitled to reclaim the goods subject to retention of title or, at its discretion, to demand the assignment of the purchaser’s claims for surrender against third parties, if applicable.
If the customer violates the agreements on retention of title, the customer shall be obliged to pay a contractual penalty in the amount of twice the net value of the goods subject to retention of title. The assertion of claims exceeding this amount, in particular claims for damages and in particular costs of excision in execution proceedings, shall not be excluded by the agreed contractual penalty. If the customer is not a consumer, the contractual penalty is not subject to judicial moderation. In addition, if the customer fails to meet its obligations or stops making payments, the entire remaining debt shall become due immediately. In this case Mymedetc is entitled to demand immediate return of the goods excluding any right of retention. After taking back the goods, it shall be at the discretion of mymedtec either to sell the object of purchase and to credit the proceeds obtained less 20% resale charges to the customer against his outstanding obligations or to take back the goods at the invoice price less any depreciation in value and to charge the customer an appropriate usage fee for the time he is in possession of the goods delivered.
9 Warranty, Compensation, Prohibition of Assignment, Extended Retention of Title
Mymedtec does not provide warranty for ordinary wear and tear of the goods as well as for defects caused by improper handling.
For damages caused to the customer in the course of business (in particular due to delay, impossibility of performance, positive breach of contract, culpa in contrahendo)
contract, defective or incomplete performance, consequential harm caused by a defect or due to tortious acts), mymedtec shall only be liable in the event of its own intent or gross negligence or in the event of intent and gross negligence on the part of vicarious agents working for mymedtec. Excluded from this are personal injuries, for which mymedtec is already liable without limitation in the case of slight negligence. The provisions of the Product Liability Act shall remain unaffected.
Liability for consequential damages, lost profits, claims of third parties is excluded in any case. This also applies to damage caused by failure to complete the work on time (damage caused by delay, in particular if the delay is due to serious and unforeseeable operational disruptions, supply problems or the absence of workers).
Claims for damages shall become time-barred within six months of knowledge of the damage and the damaging party. Claims for damages that are established later than one year from the date of handover are in any case delayed.
The assignment of warranty claims, claims for damages or the like is not permitted without the prior written consent of mymedtec.
The reversal of the burden of proof according to § 924 ABGB at the expense of the seller is excluded. The existence of a defect at the time of handover, the time of discovery of the defect and the timeliness of the notice of defect must be proven by the customer.
Insofar as mymedtec has expressly promised guarantees, these shall only apply if the goods are used properly, in particular if they are installed, assembled and cared for properly. The content of the brochures, technical descriptions, etc. used by mymedtec as well as public statements, e.g. in advertising, shall not become part of the contract unless a certain property of the goods is expressly conceded by mymedtec. The warranty does not cover wear and tear of any kind or damage caused by the customer or third parties.
Instructions given in brochures, instructions for use or other product or goods information as well as care or assembly instructions must be strictly followed by the customer in order to avoid any damage.
It is expressly stated that mymedtec does not guarantee any specific function, mode of action or specific properties of the products. There are several studies and measurements on the properties of the products marketed by mymedtec, which have been carried out not by mymedtec but by independent organizations, as well as testimonials from customers. The accuracy of these studies/measurements and field reports and the mode of action of the products derived from these studies/measurements and field reports do not become part of the contract under any circumstances and mymedtec therefore assumes no warranty or liability for them.
10. instructions about the right of withdrawal according to FAGG
If the customer is a consumer, he has a right of withdrawal regarding contracts concluded with the contractor mymedtec outside of his business premises or using a means of distance communication such as telephone, fax or e-mail (Distance and Outbound Transactions Act, FAGG).
In the event that custom-made products at the customer’s request form the subject matter of the contract, the customer shall not be entitled to withdraw from the contract.
Otherwise, the customer has the right to revoke the contract concluded with mymedtec without giving reasons. The revocation period is 14 days; in the case of orders for goods, this period begins with receipt of the goods, and in the case of services, with the time of conclusion of the contract. In order to exercise the right of revocation, the Customer shall inform myMedtec,
myMedtec Medical Technology Höller GmbH
GF: Ing. Ralf Höller Kellermanngasse 8 / Top 4 A – 1070 Vienna
in the form of a clear declaration (for example by letter, e-mail or fax) about his decision to revoke the contract. To comply with the cancellation period, it is sufficient that the notification of the exercise of the right of cancellation is sent before the expiry of the cancellation period.
10.3 Consequences of revocation:
If the Customer revokes the contract concluded with myMedtec, myMedtec shall return to the Customer all payments received from the Customer without undue delay and at the latest within 14 days from the day on which the notification of the revocation of the contract was received by myMedtec. For this repayment, myMedtec shall use the same means of payment that the Customer used for the original transaction, unless expressly agreed otherwise with the Customer; in no case shall the Customer be charged any fees due to this repayment. If the customer is unable to return or surrender to myMedtec the services received as well as benefits (e.g. advantages of use) or only partially or in a deteriorated condition, the customer shall compensate myMedtec for the value insofar as the deterioration is due to the handling of the goods which goes beyond the examination of the properties and functionality. Testing the properties and functionality” is understood to mean testing and trying out the respective goods, such as is possible and customary in retail stores.
Goods that can be sent as parcels are to be returned at the expense of the customer but at the risk of myMedtec. Items that cannot be shipped by parcel post will be picked up by myMedtec. The customer shall only be liable for any loss of value of the goods if this loss of value is due to handling of the goods that is not necessary for testing the quality, characteristics and functioning of the goods.
If the customer has expressly requested that myMedtec commence its services during the revocation period, the customer shall pay a reasonable amount corresponding to the proportion of the services already provided up to the point in time at which the customer exercises his right of revocation in comparison to the total scope of the services provided for in the contract.
11. instruction about the right of withdrawal according to § 3 KSchG
If the customer has not made his declaration of contract either in the premises permanently used by myMedtec for its business purposes or at a stand used by the latter for this purpose at a trade fair or market, he may withdraw from his application for a contract or from the contract. This withdrawal can be declared until the conclusion of the contract or thereafter within 14 days. The withdrawal period is met if the declaration of withdrawal is sent within the period.
In particular, the customer shall not be entitled to this right of withdrawal if he himself initiated the business relationship with myMedtec or its agents for the purpose of concluding the contract or if the conclusion of the contract was not preceded by discussions between the parties involved or their agents.
12. instruction about the right of withdrawal according to § 3a KSchG
The customer may furthermore withdraw from his contract application or from the contract, if circumstances relevant for his consent, which myMedtec has presented as probable in the course of the contract negotiations, do not occur or only occur to a considerably lesser extent without his instigation. Relevant circumstances are the expectation of the cooperation or consent of a third party, which is necessary so that the performance of the entrepreneur can be provided or used by the consumer, the prospect of tax benefits, the prospect of a public subsidy and the prospect of a loan. The withdrawal can be declared within one week. The period begins to run as soon as it is apparent to the customer that the conditions set out in clause 16.1. the aforementioned circumstances do not occur or only occur to a significantly lesser extent and he has received written notification of this right of withdrawal. However, the right of withdrawal expires no later than one month after the complete fulfillment of the contract by both parties. The declaration of withdrawal is not bound to any particular form. The
The withdrawal deadline is met if the declaration of withdrawal is sent within the deadline. The consumer shall not be entitled to the right of withdrawal if he already knew or should have known during the contract negotiations that the relevant circumstances will not occur or will only occur to a significantly lesser extent, the exclusion of the right of withdrawal has been negotiated in detail or myMedtec agrees to a reasonable adjustment of the contract.
13. data protection and advertising
MyMedtec shall be entitled to process personal data of the customers such as first name(s), surname, address, gender, academic degree, date and place of birth, telephone number, fax number, e-mail address and account details within the limits of the Data Protection Act or Telecommunications Act for the purpose of order processing, and in particular to store and transmit such data during the term of the contract.
The customer expressly agrees to a transmission of his data to a commissioned shipping company, advertising company and / or a credit institution (for payment processing).
By accepting these general terms and conditions, the customer declares his express consent to the use, processing and transmission of his personal data within the meaning of § 4 Zi. 14 DSG 2000 (Data Protection Act 2000). This consent can be revoked at any time. A revocation may under certain circumstances (e.g. during an order that has not yet been fully processed) result in myMedtec no longer being able to provide its services.
MyMedtec and the companies commissioned by myMedtec shall protect the personal data of the customer provided by the customer with the greatest possible care against unauthorized access by third parties. Furthermore, MyMedtec will take all reasonable measures to ensure the security of personal data. However, it is pointed out to the customer that the Internet is accessible to everyone worldwide and, in particular, misuse cannot be ruled out, so that unauthorized access by third parties to such data and information cannot be ruled out.
can be. For such unauthorized access by third parties and resulting damages, myMedtec shall only be liable to consumers in case of gross negligence, which has enabled an intervention by third parties.
13.5 Right of withdrawal:
The customer is entitled at any time to revoke the consent he has given for the storage, processing and/or forwarding of his data. However, if as a result of this it is no longer possible for myMedtec to comply with its obligations arising from the contractual relationship (e.g. during an order which has not yet been fully completed), myMedtec shall be released from its obligation to perform.
The customer agrees to the sending of advertising materials to the contact data provided by him (e-mail address, postal address) by myMedtec or a company commissioned by myMedtec to send advertising material for myMedtec.
14 Choice of law, place of jurisdiction, place of performance
All legal disputes arising from or in connection with these GTC and/or from a contractual relationship between myMedtec and a customer shall be governed by Austrian substantive law, excluding the conflict of laws rules of private international law and excluding the UN Sales Convention. This also applies to questions concerning the conclusion or interpretation of the GTC and the contract.
The place of performance for all claims and obligations shall be the registered office of myMedtec.
15. change of address
The customer shall be obligated to notify myMedtec of any changes in his residential or business address demonstrably, unsolicited and without delay, as long as the contractual legal transaction has not been completely fulfilled by both parties. If the notification is omitted, declarations and goods to the customer shall be deemed to have been received even if they were sent to the address last notified to myMedtec. It is the customer’s responsibility to provide proof of receipt of its change notification in each individual case. The customer is liable for all damages resulting from a failure to notify a change of address.
The customer is strictly forbidden to pass off intellectual property of myMedtec as his own, to use it, to advertise with it or to reproduce it. This applies in particular to all publications (including images, texts, sound or video recordings, etc.) of myMedtec on the World Wide Web, in print media, on billboards in cinemas, on radio/TV, etc.
myMedtec Medical Technology Höller GmbH
GF: Ing. Ralf Höller Kellermanngasse 8 / Top 4 A – 1070 Vienna