GENERAL TERMS AND CONDITIONS
1. Definitions and scope of these General Terms and Conditions
1.1. “eventum celsus” is registered under the number FN 366574f at the Regional Court in Salzburg as a sole proprietorship with its registered office at Leithenweg 16, 5303 Thalgau, Austria. Its activities cover
- trade, leasing, service and maintenance of medical products
- organisation, planning, research, booking and implementation of events (“events”) of whatever nature
for medical practitioners, medical product companies, pharmaceutical companies and hospitals.
1.2. “eventum celsus GmbH“ is referred to by the letters EC in the text that follows. Customers or clients are denoted by the letter C.
1.3. The following “General Terms and Conditions” (referred to as GTCs in the following text) apply to all contracts, deliveries and services, offers and publications on the part of EC. Terms and conditions of the C that are different or contradictory only apply when recognised expressly and in writing either in whole or in part by EC. Where in spite of this terms and conditions of C and EC are at variance with each other, these GTCs take precedence.
1.4. There shall be no collateral agreements whatever, either by word of mouth or in writing. Where such collateral agreements existed, these oral additional agreements are rendered null and void by the placing of a written order with EC. A departure from the contents of these GTCs is required to be in writing. This applies also to a departure from the written form requirement.
1.5. Where individual provisions of these GTCs are invalid, the obligations of the remaining provisions remain unaffected, likewise the content of signed contracts duly based on these GTC. An ineffective or vague provision shall be replaced by an effective one that corresponds closest to the sense and purpose of such a provision and that corresponds to the economic intentions of the contractual partners and their willingness for logical content.
2. Exclusion of liability in respect of the website
2.1. EC endeavours to publish complete and up to date information on this page at all times. However, this website serves only to provide basic information about the services offered by EC and is no substitute for a direct personal conversation. This page and its content, including graphic illustrations, videos, audio files, HTML codes, text, links and the like may not be copied, reproduced, further published, posted, transmitted or marketed in any way, without the previous permission of EC.
2.2. The use of the contents of this website for personal needs is excluded from 2.1. EC does not bear liability for the completeness and correctness of information, texts, graphics, links or other content of this website.
3. Conclusion of Contract, Prices, Packing ad Section 1a
3.1. All offers, delivery terms and other commitments are subject to alteration, unless otherwise expressly stated.
3.2. Documents enclosed with an offer, such as illustrations, drawings etc., weights, measurements and quality and property descriptions are only approximations and are not guaranteed. Only those characteristics which are expressly labelled as such are guaranteed pursuant to the Austrian Commercial Code.
3.3. All agreements, in particular those made with our field representatives, shall only be binding on EC when in writing.
3.4. It is a fundamental requirement that contracts be made in writing, whereby in electronic business correspondence the terms and conditions of the ECG (Electronic Communication Gateway) shall be observed. The contracting partner gives agreement to communication by electronic means for contractual purposes. This includes the presentation of offers as well as the raising and transmission of invoices by electronic means.
3.5. In case of each and every increase in costs, expenses and the like that occurs up to the date of completion of the contract, we reserve the right to take an appropriate increase into account in determining the price ruling on the date of delivery.
3.6. Sales prices quoted are always net prices exclusive of VAT.
3.7. The delivery period begins from the date the order is accepted.
3.8. Delivery deadlines are valid provided that pre-deliveries are correct and arrive on time, with the exception of written agreements which state otherwise. Adherence to delivery deadlines presupposes that all documents, requisite approvals, releases etc. that are required from the purchaser are received on time. Where these preconditions are not met on time, the delivery deadline shall be extended appropriately.
3.9. Where delays in delivery occur on account of ‘force majeure’ or through hindrances that are outside of normal life experience, this does not rank as default in delivery. Following the removal or absence of the hindrance, an appropriate period for the completion of the supply of goods and services thus delayed shall be considered agreed.
3.10. The possibility of part deliveries being made shall be considered agreed.
3.11. EC makes a standard charge of E10.00 for all deliveries.
3.12. The purchaser shall accept deliveries and services promptly after inspection control. Signing the delivery documentation (delivery note or cartage note) shall be valid proof of acceptance.
3.13. Where incorrect deliveries, shortages or other defects are not advised within 5 (five) working days following receipt of goods or invoice, the delivery or service shall be deemed as having been carried out in accordance with the contract. The acceptance of goods from forwarders or freight carriers without objection shall be deemed proof of proper packing and excludes claims against EC for damage occurring during transportation.
3.14. The presence of defects shall be assessed as a matter of principle in a comparison between the goods or service delivered with the parameters for such goods and services that were agreed in writing. Minimal deviations in quality, colour, size and weight shall in no way be grounds for complaint.
3.15. Claims under guarantee shall expire if the defective parts have been altered or tampered with by a third party or by the purchaser, other than in the case of imminent danger and in any event after 6 (six) months.
3.16. In the case of a justified notice of defects advised in a timely manner, correction or replacement shall be the primary legal consequence to be applied. Only where EC fails repeatedly to carry out or carry out merely partially repair or replacement or where repair or replacement is not an option shall the purchaser be awarded a reduction in price or alternatively a change.
3.17. More extensive claims, in particular claims for damage compensation on account of delivery that has not taken place or delayed delivery as well as for any other reason shall be restricted to cases where EC deliberately acts in an improper manner.
3.18. The purchaser shall at all times support all measures for removal and remediation of defects appropriately (e.g. inspection of goods, replacement deliveries etc.) or otherwise forfeit all claims against EC.
3.19. Information from EC about the use and possible applications of our products, technical advice and other details, including that referring to possible property rights of third parties, is given to the best of our knowledge but shall not be legally binding and shall not release the purchaser from his own testing of our products for suitability to the purposes intended.
3.20 Obvious defects associated with deliveries and other services, including clerical and calculation errors, do not otherwise burden with defect deliveries and other services which have been carried out in accordance with the contract.
3.21. Within the meaning of § 3 PHG (Austrian Commercial Law) EC is not the manufacturer of the products it sells. All claims that are made on the basis of Austrian Commercial Law shall therefore be directed at the manufacturer whose name is shown on the product. Where the claimant is unable to establish the name of the manufacturer, EC shall reveal this promptly.
3.22. Where specific or general instructions for installation, commissioning, use or maintenance (e.g. Instructions for Use, User Information) and where warnings and regulatory requirements are disregarded, the assumption shall be that it is simply contributory negligence on the part of the operator when adverse incidents occur and this shall lead to a forfeiting of any form of claim against the manufacturer.
3.23. The claimant for compensation shall as a matter of principle have complete responsibility to cooperate in clarification of the facts concerned.
3.24. Deliveries and services remain the property of EC until full payment of the purchase price, including all ancillary claims.
3.25. Where payment is overdue, the contractual partner shall be obliged after due warning to return goods subject to reservation of title. The enforcement of retention of title shall not be grounds for withdrawal from contract, other than when this is specifically stated.
3.26. The knowledge of facts that give grounds for serious concerns as to the creditworthiness of the contracting partner and the reluctance of the contracting partner to guarantee fulfilment of the contract by step by step performance or through the provision of collateral security shall give us the right to withdraw from the contract. We reserve the right to deliver against payment in advance or on delivery.
3.27. Payments for deliveries and services are to made as a matter of principle net within 14 days of invoice date, except where individual agreements state otherwise. The date of payment is deemed to be the date on which payment is credited to our bank account. Payments are subject to discount only where the invoices concerned state that discount may be deducted.
3.28. Payments are first applied to the covering of costs and interest and then to the payment of the oldest outstanding items. Where payment is not made within the 14 day period the seller is entitled under § 456 of the Austrian Commercial Code (UGB) to charge interest.
3.29. Where the customer’s payment is delayed EC retains the right to charge the defaulting C €40.00 for collection costs. The enforcement of further collection costs in case of delays for which the customer is responsible shall remain unaffected.
3.30. C shall accept the obligation to cover the costs of all fees and charges incurred where payment is made other than in cash or by means of bank transfer.
3.31. EC does not permit set off (contra) against our rightful demands for payment and does not recognise any right of retention.
3.32. Commercial enterprises dealing in medical products are subject to all obligations under the provisions of the ordinance on the operation of medical devices (MPBV) in the version current at the time.
3.33. Commercial enterprises dealing in medical products are obligated in particular, in accordance with § 4 Section1 of the ordinance dealing with the production of medical devices (MPBV) to ensure that personnel concerned with the particular products receive training from medical product consultants (§ 79 Medical Products Directive MPG). EC follows the directive without request when installing products and on request from C where additional training is necessary. In both instances this service is free of charge. Training courses that go beyond the scope of that instruction may be organised and carried out at the cost of the person(s) to be trained.
3.34. A fee is generally charged for the preparation and communication of detailed manufacturer or test protocols (e.g. § 3 Section 3 MPBV – the ordinance dealing with the production of medical devices) and is to be paid by the applicant. EC will provide information about costs incurred in case of a request of this sort if C so wishes.
3.35. It is axiomatic that the relevant provisions of the Austrian Civil Law Code (ABGB) shall apply. EC specifically retains the right to refrain from performance of the contract or to offer step by step performance where there is delay on the part of C, in particular where that delay is a delay in making payment or where there is a temporary inability to pay.
3.36. The partner to a contract with EC shall accept the obligation to inform EC in advance where the partner is in process of making an application for insolvency at the court of jurisdiction and where an application has taken place in accordance with § 70 Section 2 Insolvency Order (IO).
3.37. In case of a breach of the information obligation mentioned above a contractual penalty of €5,000.00 is payable, for which the contractual partner, or the authorised representative organ (several persons sharing equal responsibility) of a legal persona officially permitted to represent that partner, is personally liable.
3.38. As a principle only products which are still in their original unopened packaging will be taken back by EC.
3.39. The return of goods with a value under €50.00 (per item) is excluded as a matter of principle. In case of other returns there will be a handling charge of 10% of the purchase price (excluding VAT) with a minimum charge of €25.00 being levied.
3.40. All returns, including those of empty containers and the like, shall be solely at the risk and cost of the sender.
3.41. The buyer shall apply for returns in writing within 5 (five) days of having received the goods or otherwise forfeit the possibility of returning them.
3.42. In cases where returns have been sent in contravention to the requirements of these GTCs, EC reserves the right to pass on charges that arise (postage, disposal etc.) to the sender.
3.43. The following provisions are laid down as matters of principle, taking the terminology and norms of the Data Protection Law (DSG) in its current version into consideration.
3.44. Parties to contracts with EC shall agree that data they have provided may be processed by EC for purposes related to the commercial relationships they have entered into.
3.45. The forwarding of data shall always require special agreement, in particular where data is designated, or deemed to be designated, as confidential.
3.46. It is axiomatic that data provided may never be altered in the slightest, misused or communicated to third parties in misleading form.
3.47. It is incumbent on both contracting parties and also any others instructed to act on their behalf to ensure that the provisions of the Data Protection Law (DSG) in its current version and the provisions of these GTCs are adhered to.
3.48. C affirms agreement to receiving information about products and/or services offered by EC from time to time by email following the placing of an order or in the context of ongoing commercial contacts.
3.49. EC will always merely send information of this kind to email addresses which C (or employees and agents of C) voluntarily make available to EC in the context of commercial contact or to addresses which are generally available in the public domain.
3.50. At all events the customer has the right at all times to require the immediate removal of email contact data from EC’s data banks or to require that the sending of information the customer cease with immediate effect. EC will also make C aware of this right whenever sending information and provide opportunity to decline receipt of future communications. An exception to this is the sending of emails where indispensable for the purpose of conducting ongoing business (e.g. the sending of written communications).
4. Conclusion of Contract ad Section 1b & c
4.1. The basis of the business relationship between C and EC is the written offer communicated by EC and the corresponding order confirmation as well as these GTCs. An assignment shall always be required to be in writing. Possible amendments to an assignment likewise are required to be in writing. This applies also to a departure from the requirement to be in written form. For every service that C orders from EC a confirmation of order will be issued on the part of EC and transmitted by fax or email. This confirmation of order also sets out at the same time the contractual basis between the parties.
4.2. Together with the order confirmation a timetable shall be forwarded by EC setting out the individual steps for the organisation, preparation and implementation of the event. This timetable shall be binding on both contracting parties. Should there be a change on the part of C perhaps to the number of participants in an event or to the number of presenters, say, in a continuation of education event, C is obligated to inform EC in a timely manner, namely within the time limits determined in the timetable accompanying the offer and order confirmation. Amendments advised after the deadlines and dates prescribed in the timetable can only be taken into account as an exception and only with confirmation in writing.
4.3. Where change requests have been submitted within the timeframe indicated in the schedule, EC retains the right to check the changes and their possibility and will communicate with C in writing as to whether the desired changes can be taken into account. The schedule presents an obligatory framework; the deadlines and dates for notifying change requests define the scope of possibility but do not constitute an entitlement for C to demand that changes of whatever sort be binding, as this is always dependant on organisational possibilities. Where a significant change in course can no longer be accommodated on organisational grounds, this shall not give C the right to withdraw from the contract. Should C nevertheless withdraw from the contract he binds himself to bear costs, fees and cash outlays that have been incurred up to this point in time, including possible cancellation charges of subcontractors such as caterers, hotels, advertising agencies and similar. C also binds himself in this case to indemnify and hold harmless event participants with regard to the consequences of withdrawal from the contract and the possible concomitant cancellation of the event.
5. Performance of the contract
5.1. Where necessary EC reserves the right to revise individual details of services that have been agreed. As long as these amendments do no affect the material content of the contract or only affect it in a minor way C is not entitled to a right of withdrawal from the contract. EC is entitled, in consultation with C, to change parts of the schedule of an event that has been booked from the performance description insofar as this is necessary logistically, on legal or organisational grounds or on grounds over which EC can have no influence (official regulations etc.).
5.2. Where contracts are entered into with third parties for the holding of and organisation of the event (such as perhaps rental of facilities, conclusion of contracts with artists, catering services, advertising agencies for the production of printed material and the like), these contracts shall be concluded for and on behalf of C and at C’s cost. C herewith declares himself expressly in agreement and binds himself in at all events to pay such costs that are incurred in this way.
5.3. Where the organisation of catering is necessary for the holding of the event, EC shall obtain quotations from at least two catering companies and shall forward these to C within the timeframe prescribed that accompanies the written order. C for his part shall communicate for which catering organisation he has opted within the prescribed timeframe and, insofar as this is desirable and organisationally possible from C’s point of view, will sample and approve a menu that has been proffered beforehand. Should C not have decided on a caterer within the timeframe allowed in the timetable, EC is entitled to give preference to a caterer of its choice and to place an order with this company for and on behalf of C and at C’s cost.
6. Intellectual Property
6.1. For the initiation of a business relationship EC develops a concept and presents this in a form appropriate to the current offer in each case. It is stringently maintained that this presentation (independently of the technical tools used for the purpose) remains the intellectual property of EC. In the situation where EC does not receive the contract for the organisation, planning and holding of the event, C is not entitled to use the contents of this presentation for his own purposes in any form whatsoever. The same also applies where EC is contracted to handle an event.
6.2. The content structure and the ideas for the method and style of the implementation of the event remain the intellectual property of EC, even in the case where EC receives an assignment. In the course of the presentation of the completed concept to C, EC will issue to C an abbreviated fact sheet followed by a short summary and overview of the content presented. C binds himself to countersign this fact sheet and thereby confirms that the concept remains the intellectual property of EC, irrespective of whether EC received the commission or not.
7.1. An appropriate fee is an entitlement for the generation of a concept for an event. Where EC is not awarded a contract following presentation of a concept, all documents to do with the presentation and concept are to be given back to EC by C. EC is entitled to charge an appropriate fee for the generation of a concept. Where the concept leads to a contract, remuneration for the concept shall be added to the contract value.
7.2. EC is obligated to employ the funds expended for holding an event in accordance with the principles of a diligent trader whilst paying attention to the interests of C. Offers and quotations from EC are non-binding, except where it is expressly so stated in writing that a binding quotation is involved. All services offered by EC are understood to be offered at net price as a matter of principle, so that sales tax required by law is added to the invoice. EC is entitled to invoice cash expenses which it has to make in advance, before addressing project tasks. In the case of larger projects EC is entitled to request appropriate advance payments for contracted services and expenditures and to request reimbursement for cash expenses. Likewise interim invoices can be submitted for services already carried out and disbursements made. Non-payment of such an advance on costs and /or interim invoice shall entitle EC to withdraw from the contract with immediate effect.
7.3. All services provided by EC (ideas, concepts etc.) and also individual parts of these remain the intellectual property of EC, including when EC’s services are commissioned. Acquisition by payment of the honorarium is simply the right of use for the purpose agreed and for the event agreed. C may only use the services of EC himself exclusively in Austria, and then only for the duration of the contract, other than when there is an agreement in writing to the contrary.
7.4. Independently of the agreed honorarium for EC’s services, C shall make available to EC a budget in accordance with the written cost estimate. This budget may only be exceeded by EC with the express written consent of C. In the case of a substantial increase in costs for which EC is not responsible (price increases from subcontractors and suppliers, increases in government fees and levies), EC binds itself to notify C of this increase in costs within the scope of the deadlines provided for in the schedule (see Section 3.2. of these GTCs). Again within the scope of the deadlines provided for in theschedule, C for his part binds himself to declare whether or not he wishes the project to continue and, where appropriate, C commits himself to agree with EC on changes within the deadlines. In the circumstance that a far-reaching reduction in the scope of the project with regard to budgetary expense comes about on account of a change in the costs structure, C is not entitled to demand the return of advance payments already made to EC. Further, in the circumstance of a significant reduction in the scope of services, C binds himself to bear the costs accrued and to indemnify EC in any case with regard to any cancellation charges and claims by third parties resulting from the reduction in the scope of services.
7.5. In the case of larger projects EC shall prepare a payments plan which contains detailed provisions regarding the part payments required and the dates by which such payments are due. This payment plan shall be adhered to by C after the contract has been awarded. In the circumstance of a payment not being made in accordance with the deadline EC is entitled to charge interest for late payment at the rate of 8% above the basic rate of interest.
8.1. Both parties to the contract are entitled to withdraw from a contract already entered into if bankruptcy proceedings or restructuring procedures are initiated with respect to either party or where significant parts of the agreement are not adhered to, whereby the proper development of the project is impeded. EC is particularly entitled to terminate the contractual relationship if C is in arrears with one of the part payments as per the payment schedule despite receiving reminders and despite an extension period (period of grace) being granted.
8.2. Should C unjustifiably withdraw from a contract that has been entered into, C shall is in debt to EC to the extent of a part of the honorarium appropriate to the expenses thus far incurred as well as cash outlays already made and all costs to date incurred by subcontractors.
9.1. EC commits itself to the preparation and selection and supervision of each contracted company in accordance with the due diligence obligations of a prudent employer.
9.2. EC’s liability is exclusively focused on the written agreements of the parties and these GTCs. All claims not expressly conceded to C, including claims for damage irrespective of legal cause, are excluded, unless they are based on a wilful or grossly negligent breach of contract on the part of EC, on the part of a legal representative of EC, or on the part of vicarious agents.
9.3. Further, the contracting parties agree that the size of a claim for damages against EC, irrespective of cause, shall be limited in amount to the amount of the honorarium.
9.4. Insofar as EC is entitled to claims for damages against third parties in association with the processing of the contract, EC shall relinquish all such claims for damages in favour of C. In such a circumstance C shall not be entitled to any further claims against EC. C is entitled to enforce such claims at C’s own expense.
9.5. C shall bind himself to conclude an event organiser’s liability insurance with adequate cover and to deliver written proof of its existence to EC.
9.6. EC shall not be liable for damage, losses, accidents, possible traffic obstructions, delays and associated postponements which are caused by ‘force majeure’, such as natural catastrophes or the like, nor for possible consequential costs affecting C. EC shall similarly not be liable for deliverables identified as external services, not even when EC otherwise participates in an event. EC shall not be liable for burglary or robbery, for equipment brought to the event venue before the commencement of the event by C or for inventory subject to the full control and responsibility of C. Should it be necessary to take out separate insurance for this, then it is incumbent on C to assume that responsibility.
10.1. Should the participation of one or more representatives of the press be desired at an event organised by EC, then EC shall agree with C as to which press representatives should be engaged in good time before the event within the scope of the schedule and in turn shall confirm their engagement to the coordinated press representatives. C in turn shall undertake not to inform any further representatives of the press other than the accredited press representatives agreed between the parties, otherwise compensation for damages will be claimed.
10.2. EC is entitled to bring photographers to the event and to publish photographs of the event on EC homepage. Should C want a photographer to cover the event and that this be a part of the service provided, the C declares himself in agreement that EC may use a convenient number of these photographs for the purpose of reference display and declares also that these will be made available free of charge.
11. Anti-corruption Law
11.1. Both contracting partners confirm that they are aware of the provisions of anti-corruption law, or rather that part of the Austrian Criminal Code that is against this background, the Criminal Procedure Code 1975 and the provisions taken out of the Law on Public Prosecutors. Both parties to the contract shall bind themselves to abide by these provisions when holding an event. C takes note that, for example, at the presentation of a new pharmaceutical or medical-technical product, the invitation to a product presentation is as a matter of principle always sent to a department of a hospital and not to an individual doctor. In such a circumstance EC will write to a number of hospitals that come into question and shall inform C about this.
11.2. C also confirms close acquaintance with Austrian Medicines Law, in particular knowledge of § 55a and § 84. C is aware that, in accordance with § 55a of the Medicines Law, it is forbidden within the scope of a sales promotion to grant, offer or promise a reward or financial or material advantages to persons entitled to prescribe or dispense medicines, except where these are of minimal value or of relevance to pharmaceutical practice. C also notes that, in the course of events for the sales promotion of such a medicinal product, hospitality connected with such events must be strictly oriented to the main purpose of the event and shall not apply to persons other than those entitled to prescribe or dispense medicine.
11.3. C also notes that, in the course of an event for the sales promotion of medicinal products, travel and subsistence costs may only be granted to those persons entitled to prescribe and dispense such medicines.
11.4. To safeguard fitting transparency C declares unequivocally his agreement that support contributions on the part of the industry for training courses and advanced training courses (perhaps, for example, on the part of C if C is a pharmaceutical company or medical products company) be paid into a single account belonging to the event organiser that has been set up for this particular purpose for transparent administration and documentation, namely in such a way that external control of the finances Is assured. C further notes that speakers at a training event are obligated to declare their vested interests to the event organiser or to participants at the event. C for his part undertakes to impress this requirement on speakers.
11.5. EC undertakes to explain the background of the anti-corruption provisions to mandated advertising agents during the course of an event in order to ensure a clear demarcation between information and advertising.
12. Place of jurisdiction
12.1. It is agreed that the place of jurisdiction for all direct and indirect disputes arising between C and EC shall be the Salzburg Regional Court.
12.2. The legal relationship between EC and C is governed exclusively by Austrian law. This applies also in the case where C is from abroad or where perhaps an event is organised abroad (possibly in the Bavarian border region) or where it concerns an event where international speakers take part.
Alternative Dispute Resolution in accordance with Art. 14 Para. 1 ODR-VO and § 36 VSBG
The European Union provides a platform for the resolution of disputes online which is to be found under http://ec.europa.eu/consumers/odr/. EC is not obligated and also not prepared to take part in a dispute resolution process before a consumer arbitration board.