Terms & Conditions
- These General Terms and Conditions shall apply to the sale and global supply of products by BELENOS GmbH (“BELENOS”), Gentzgasse 115/3+4, 1180 Vienna, Austria, FN 367836h. These General Terms and Conditions shall apply to legal transactions between companies with regard to the delivery of goods and the provision of services by BELENOS.
- Any and all quotations and prices shall be subject to confirmation and non-binding. Product advertising on the web site, in newsletters and other sources of information does not constitute a binding offer in legal terms. All prices are net prices (excluding VAT, customs duties, and other charges whatsoever, as well as excluding the cost of shipping from the Vienna warehouse). Price adjustments due to special packaging, specifications made at the customer’s request, shipment arrangements and other conditions which are not part of the original quotation shall remain expressly reserved.
- The contract is deemed concluded once BELENOS, after receipt of the order, has sent a written order confirmation (per post or per email) or consigned a delivery. If a contract has been brought about based on these Terms and Conditions, they shall apply to all further transactions with such customer even if no reference is made to these Terms and Conditions.
- Where a product carries a use-by date, the customer shall not use or pass on to a third party such product after its use-by date.
- The customer shall, as a rule, not be permitted to pass on for free or for a consideration any products bought from BELENOS. The sale by distributors or dealers is excluded (see section 7.)
- General terms and conditions, purchase provisions or provisions of the customer in other documents, in particular conditions that regulate the liability of the contractual parties, shall not be part of the contracts concluded between BELENOS and the customer, even when such terms, purchase provisions or other provisions are not expressly objected to.
- The products shall be delivered ex works warehouse Vienna (ExW) pursuant to the Incoterms 2020 except as otherwise provided in these General Terms and Conditions. The risk shall pass to the customer upon the goods being delivered to a forwarding agent or carrier, but not later than upon the goods leaving the BELENOS warehouse.
- Delivery and freight expenses shall be charged to the customer at cost. Any express delivery or special packaging requested by the customer shall be additional costs separately charged to the customer.
- The products shall be shipped in commercial quality. The products may be delivered and invoiced as partial deliveries.
- The shipping or delivery dates named by BELENOS upon conclusion of the contract shall be non-binding and shall be understood to give an estimated date of provision only. BELENOS makes all reasonable efforts to observe any shipping or delivery dates given but shall not be able to make any binding promise. The delivery period shall be extended by unexpected events or events beyond the control of BELENOS, such as, without limitations, force majeure, or obstacles beyond BELENOS’s reasonable control. Such circumstances shall similarly extend the shipping or delivery periods if they occur with subcontractors. The non-compliance with delivery periods shall not entitle the customer to claim damages.
- The customer may rescind the contract if the date of shipping or delivery is exceeded by at least four (4) weeks and a reasonable respite of at least two (2) weeks is set. Respite and rescission shall require a notification by registered letter. The right to rescind the contract shall apply only to such part of the shipment which is at fault. Possible delays in delivery after dispatch by BELENOS shall not entitle the customer to rescind the contract. Any further claims resulting from the delay shall be excluded.
- In the event that BELENOS rescinds the contract due to reasons within the customer’s control (e.g. default in payment or default in accepting the shipment) the customer shall pay a penalty of 50% (fifty percent) of the pre-tax invoiced amount.
3. Payment Terms
- The invoice shall be made out upon shipment of the product. Invoices shall be due and payable in full upon their receipt, unless otherwise agreed on a case-to-case basis. The remittance costs shall be payable by the customer. In the event of payment default the customer shall pay default interest at a rate of 9.2 (nine point two) percentage points p.a. in excess of the Austrian base lending rate. Moreover, BELENOS shall be entitled to invoice pre-litigation expenses, including, without limitations, dunning expenses, and lawyer’s fees.
- If partial payments have been agreed, the customer shall be in default of payment if a single partial payment is not made in good time and to the full amount.
- BELENOS reserves the right to enter, without giving reasons, into contracts for delivery solely against cash in advance or cash on delivery.
- Complaints concerning deliveries and services shall not entitle the customer to retain its payment. The customer shall not have the right to offset claims by the customers with claims by BELENOS.
4. Reservation of title
- The products delivered to the customer shall remain the property of BELENOS until complete payment of the purchase price and of any further costs payable by the customer. For as long as BELENOS retains title to the products, the customer shall bear the risks for the products. Until title has passed to the customer, the customer shall not be entitled to encumber the products with a lien or other third-party right. In the event of a default in payment BELENOS shall be entitled to seize the products.
- If any products subject to reservation of title are processed by the customer, BELENOS shall remain co-owner proportionate to the value of its share at the time of processing.
5. Warranty and damages
- Provided that the agreed terms of payment are complied with, BELENOS shall be obliged, subject to the following provisions, to remedy any defect existing at the time of handover that is detrimental to the functionality and caused by a faulty design or material or poor workmanship. No warranty claims may be derived from information provided in catalogues, brochures, advertising material and written or oral statements not explicitly included in the contract.
- The warranty period shall be six (6) months after acceptance of the products by the customer. In derogation of section 924 of the Austrian General Civil Code (ABGB), it shall be the customer’s responsibility to furnish evidence of a defect. Section 933b of the ABGB shall not apply. The customer shall promptly and specifically notify any defect in writing. Any claim for warranty on the part of the customer shall, furthermore, require evidence that BELENOS actually received notification of the complaint.
- The customer shall examine all products in detail immediately upon their receipt. Any complaints regarding incomplete shipments or defects shall be notified specifically and in writing to BELENOS promptly after receipt of individual shipments failing which the delivery shall be deemed to have been accepted without reservations and no claims for warranty and damages made; the same shall apply if hidden defects are not notified in writing within one (1) week of their discovery. Defects shall be clearly described by type and scope. The customer shall provide temporary storage for rejected products.
- In case of warranty, BELENOS shall be entitled to determine the type of warranty (repair, replacement, price reduction, cancellation of the contract) granted by it.
- Unless otherwise agreed, the warranty shall not include any defects that result from an arrangement and use not effected by BELENOS, insufficient adjustment, non-compliance with the conditions of use, excessive stress on parts, negligent or incorrect treatment and use of inappropriate operating material; this shall also apply to defects resulting from material provided by the customer. BELENOS shall not be liable for any damage resulting from acts by third parties, atmospheric discharges, overvoltage, and exposure to chemicals. The warranty shall not cover the replacement of parts that are subject to natural wear.
- The warranty shall lapse immediately if, without the explicit written consent of BELENOS, the customer itself or a third party not explicitly authorized by BELENOS effects any modifications or repairs to the products delivered.
- The customer shall not be entitled to retain or offset payments on account of warranty claims or other counterclaims.
- Any claims asserted by the customer for laesio enormis, error and frustration of contract shall be excluded.
- Except for personal injuries, BELENOS shall be liable for any loss or damage only when caused intentionally or by gross negligence. BELENOS’ liability shall be limited to the amount of the purchase price and becomes time-barred six (6) months after the customer becomes aware of the damage and the damaging party. No compensation shall be made for any consequential damage, indirect loss, other property damage, pure financial loss, lost profit, or loss from third-party claims against the customer.
- BELENOS shall not be liable for the fitness of goods and services supplied for the purposes envisaged by the customer. Similarly, BELENOS shall not be liable for any loss or damage caused by consulting services rendered by BELENOS, to the extent and scope this is legally permissible. Recourse claims within the meaning of Section 12 of the Austrian Product Liability Act shall be excluded except when the party entitled to recourse provides proof that the defect was caused within the sphere of BELENOS and was owed to, at least, gross negligence.
6. Data protection
- BELENOS processes the following data of the customer as the controller: customer number, name, Company Register number or other register or ID number (like VAT and tax number), if any, address, contact information (such as telephone number, fax number, e-mail address), data on order management and invoicing (such as date of order, products, quantities, prices, shipping and invoicing data), product details (such as LOT, batch or serial number, production and use-by date, UDI, etc.), errors, damage, accidents or complaints in connection with the product as well as name and data of contacts at the customer’s.
- These data are processed for the following purposes:
- execution of contracts (Art 6 (1) (b) GDPR);
- preservation of evidence (legitimate interest within the meaning of Art 6 (1) (f) GDPR);
- compliance with obligations under the applicable medical device law or related regulations, in particular the Medical Device Regulation, Regulation on In Vitro Diagnostic Medical Devices, Regulation on Personal Protective Equipment and other European standards (e.g. EN 149/2001). This concerns, for example, processing for the purposes of market surveillance, traceability and risk management after placing on the market (legal obligation as defined in Art 6 (1) lit (c) GDPR);
- contact data for the purpose of establishing promotional contact by e-mail, mail, fax or telephone (consent in accordance with Art 6 (1) (a) GDPR (Section 6.7.) and legitimate interest within the meaning of Art 6 (1) (f) GDPR).
- BELENOS receives this data either from the customer itself or from a distributor through whom goods are purchased.
- The aforementioned data will be processed for the duration of the contractual relationship and will be erased, due to statutory obligations to preserve commercial records, not later than seven years after termination of the contractual relationship, except when more extensive obligations for preservation apply. Contact data will be used for advertising purposes until such time as consent is revoked or for a maximum of three years after termination of the contractual relationship or the last customer contact. Data for compliance with the obligations of medical device law and related regulations will be processed for the duration of the life cycle of the products or, if necessary, beyond that if this is necessary for the above-mentioned purposes.
- The above data will not be disclosed to any third party. Excluded from this are:
- distributors which are entrusted with the execution of the contract, for this purpose as well as for establishing contact or for purposes of market surveillance and traceability of the goods in accordance with medical device law and related regulations;
- competent authorities, manufacturers and importers in enforcement of medical device law and related regulations, in particular in the context of vigilance;
- service providers of BELENOS who process customer data as processors within the meaning of the GDPR exclusively under the instructions of BELENOS (e.g. for hosting purposes or for sending newsletters, etc.);
- shipping agents (mail, carriers, forwarders, etc.) for the shipping of ordered goods and other third parties involved in the performance of the contract.
- The customer shall promptly inform BELENOS of any changes in the data required for the contract. The customer has the right to information about the data processed by BELENOS concerning him or her and – to the extent defined by law – to demand rectification or erasure or restriction of their processing or to object to processing and the right to data portability. Moreover, the customer shall be entitled to file a complaint with the Austrian Data Protection Authority (Datenschutzbehörde).
- The customer consents to being informed by BELENOS of products and other offers by e-mail or by telephone and to having BELENOS process the requisite e-mail address and telephone number for this purpose. Such consent is not necessary for rendering the contractual works and services and may be revoked at any time without stating any reasons by sending an e-mail to email@example.com.
7. Special provisions for distributors
- The following provisions shall apply to contracts between BELENOS and customers contractually purchasing products for the purpose of reselling them (“Distributors”):
- The ban on reselling as provided in section 1.5. above shall not apply for Distributors.
- Distributors shall be entitled to resell products which are under reservation of title as provided for in section 4. above. However, this shall not apply to products the purchase price of which has not been fully paid for by the Distributor despite being due and payable. Until complete payment by the Distributor, the Distributor shall assign, on account of payment, to BELENOS any and all claims and security interests due to the Distributor from the resale, even after they have been further processed, transformed or mixed. The Distributor shall be authorized to dispose of the goods subject to retention of title in case of reselling with payment of the purchase price being deferred, on the condition that the Distributor informs the secondary buyer about the assignment for security, concurrently with the resale, or notes down the assignment in its books. Upon request, the Distributor shall inform BELENOS about the claim assigned and the relevant debtor and provide all information and documents required for collection of the claim and to notify the third-party debtor about the assignment. In case of seizure or other claims being made, the Distributor shall be obliged to refer to BELENOS’ title and to notify the latter immediately. In the event of the Distributor’s default of payment, BELENOS shall be entitled to inform the Distributor’s customer of the assignment and demand the payment to be made to BELENOS.
- Distributors shall ensure that goods of BELENOS shall be resold solely subject to acceptance of any and all general terms, terms of service or other terms and conditions applicable to the respective goods or their use.
8. Place of performance, applicable law and place of jurisdiction
- The place of performance shall be Vienna.
- Any and all legal transactions entered into under these General Terms and Conditions shall be governed by Austrian law, excluding conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
- The exclusive place of jurisdiction for resolving all disputes arising from the contract – including those regarding its existence or non-existence – shall be the court with subject matter jurisdiction at BELENOS’ head office.
- In the event that any provision(s) of these General Terms and Conditions should be or become legally ineffective or unenforceable this shall not affect the legal effectiveness of the remaining provisions. The contracting parties shall replace such legally ineffective or unenforceable provision(s) by a legally effective and enforceable provision which is as close as possible in content and purpose to the legally ineffective and unenforceable provision.
- No agreement to deviate from these General Terms and Conditions nor any change of or addition to a contract shall be valid except when made in writing. The same shall apply to any deviation from the above requirement for the written form.
- Claims by BELENOS shall not be offset by counterclaims of any kind whatsoever.