General terms and Conditions of Trade (T&C’s) of HYPOXI Produktions- und Vertriebs GmbH, also known as HYPOXI.
1. Validity of the T&C’s
These supply and payment terms are a component of all HYPOXI contracts regarding delivery of goods and results. Any and all allowances, special arrangements or verbal agreements made with representatives / employees require a written confirmation from HYPOXI for them to become effective. In the case of questions of interpretation the original German version of these Terms and Conditions known as AGB shall be used.
All prices and offers remain subject to change (non-binding) until there is written confirmation of an order by HYPOXI.
All prices are net plus the respective value added tax if applicable.
4. Delivery Time
Delivery times are non-binding. HYPOXI is entitled to change the agreed delivery date for supplies, in particular in cases where the company is experiencing difficulties in the procurement of materials due to forces beyond their control, strikes, loss of means of transport, official orders, personnel loss, as well as imponderables which may arise with subcontractors. HYPOXI is entitled to postpone delivery of supplies (and results) for the period of time the impediment to business lasts plus an appropriate length of time thereafter. HYPOXI is also entitled to rescind a not yet fully completed contract due to said impediment to business. Compensation and/or withdrawal on the part of the purchaser due to failure to deliver, in principle does not apply. Delivery times are exclusively based on the availability of the supplies to be delivered. Supplies which are missed or refused by the purchaser will have no impact on the payment schedule set up for said goods. Distribution of follow up orders is dependant on the complete payment of preceding supplies, irrespective of due dates agreed upon for these orders.
Payment is based on the payment conditions as indicated overleaf. HYPOXI is under no obligation to accept cheques. Irrespective of the fact that payment terms were agreed upon in writing, HYPOXI reserves the right to make changes, in particular, if HYPOXI receives unsatisfactory information about the purchaser which could threaten HYPOXI’s economic interests. In this case HYPOXI is entitled to rescind the contract. Payments will only be validated if and when HYPOXI has absolute control over the amount. If there is a delay in payment the standard banking interest rate will be applied starting from the date of the payment deadline. In case of an extended delay in payment HYPOXI reserves the right to reverse any product discounts offered to the purchaser in totality or partially. The total or partial withholding of payments by the purchaser is prohibited, in so far as HYPOXI’s payment schedule is undisputed and validly determined. The off-setting of any charges based on potential profits to the purchaser is prohibited.
Appropriate training on all equipment through HYPOXI is required. To avoid the risk of damages due to inefficient use of any and all equipment, any purchaser through resale will need to demonstrate proof of appropriate training through HYPOXI. Furthermore, the purchaser is obligated in the case of an intended transfer of ownership (by resale, loan or gift) to a third party to make the original seller aware of this fact as well as the intended 3rd party purchaser. The purchaser will grant HYPOXI in case of a resale of the equipment, the right of first refusal on following terms:
Graded according to the operating years (special agreements for the first contract year are possible):
After 1 year: at most 80% of aquisition value
After 2 years: at most 60% of aquisition value
After 3 year: at most 45% of aquisition value
After 4 years: at most 25% of aquisition value
After 5 years: at most 15% of aquisition value
Any defects or damages on devices will be recorded separately. HYPOXI is entitled to accept the offer within 14 days, or to reject the offer without giving reasons.
In the event of a violation of these rules, namely in the case of resale to a purchaser without the appropriate training, or ceasing to participate appropriately, or where the option to repurchase was not granted, the parties agree to a contractual penalty of € 2,500 per HYPOXI device.
7. Guarantee and Warranty
HYPOXI has placed itself under obligation to the legally prescribed warranty. Furthermore HYPOXI guarantees for 1 year faultless business operations and the highest quality of its products and results under the following conditions: defects will only be recognised if the purchaser notifies all apparent defects, errors and mistaken deliveries within 5 days of delivery and all hidden defects within 90 days. All aforementioned defects will be fixed either by HYPOXI or by a HYPOXI contracted company within an appropriate period of time. Any additional claims from the purchaser other than those listed above will be invalid. Reservations are to be made for all repairs or for replacement deliveries. A warranty or guarantee for the wear & tear of parts through regular use of the products, in particular for vacuum covers and pressure suits, is excluded. The warranty or guarantee will expire if the HYPOXI installation and operational procedures are not adhered to or if there is improper handling of the machines or parts. Furthermore any warranty or guarantee claim expires if any product or part has not been used/inserted in accordance with their regulatory function. Any warranty or guarantee claims will expire if the purchaser or a 3rd party attempts repairs or manipulates the products in any way. In principle HYPOXI does not guarantee that the delivered product is suitable for the client’s specific requirements. The HYPOXI quality guarantee is valid for 1 year from the delivery date and extends a further year upon adherence to the prescribed annual maintenance program. The maximum guarantee period amounts to 3 years.
8. Returns / Cancellations
In principle, HYPOXI is under no obligation to take back supplied goods and equipment. Returns, specifically defined in point 6, can only be accepted on prior written confirmation of HYPOXI.
9. Protection of Proprietary Rights
The property from the business transaction including all payments from this business relationship is the responsibility of the purchaser. HYPOXI has the right in the case of behaviour on the part of the purchaser which is contrary to the terms of the contract, in particular payment arrears, to rescind the contract and repossess the property. This is in accordance with paragraph § 918 of the ABGB without granting an extension of the deadline. Any disposal of the property is strictly forbidden before full settlement of any outstanding payments. HYPOXI will not acknowledge rescission of the contract on the part of the purchaser and will not accept the return of the property, until this is clarified in written form. HYPOXI has total authority to make use of the property once it has been returned. Sales proceeds will be calculated based on the liabilities of the customer, less any appropriate utilisation costs. The purchaser is to inform HYPOXI immediately, and in writing, of seizure or further interventions from a 3rd party.
Compensation claims against HYPOXI or against a HYPOXI contracted fulfilment house and its employees is strictly prohibited based on either poor results, indebtedness due to termination of the contract or for unauthorised use of products.
11. Withdrawal / Rescission
The purchaser is permitted to rescind on the signed purchase request within 2 working-days of signature. After this period it is strictly prohibited for the purchaser to rescind on the purchase request. In case of circumstances outside of the purchaser’s control which would significantly impact the purchaser’s ability to successfully deploy and garner results from the HYPOXI products, the option exists to rescind through payment of a cancellation fee. The cancellation fee amounts to 15% of the purchase value. HYPOXI reserves the right to evaluate the accuracy and unpredictability of the reasons given for the rescission as well as the right to either accept or reject said reasons. If these reasons are rejected the original purchase request and its validity remain intact.
12. Place of jurisdiction, applicable law, others
The Court of Justice (jurisdiction) for all matters pertaining to supplies and results is located in Salzburg. These T&C’s and the administered contracts under this T&C’s are subject to Austrian material law. Standardised UN Commercial Law does not apply. Should one or more of the forthcoming conditions become inoperative or void, then the effectiveness of the remaining requirements will also be called into question. The ineffective regulation should, in this case, be replaced with an effective one, in order to allow for the pursued economic goal to be realised as effectively as possible.
13. Data protection
HYPOXI is responsible for data protection within the meaning of the General Data Protection Regulation (“GDPR”) with respect to all personal data processed in the context of an order. HYPOXI is therefore authorized to process personal data entrusted to it within the limits of an order. Materials handed over to HYPOXI (papers and data carriers) are always returned back to the customer or to a nominated third party after completion of the corresponding service performance or, if not otherwise agreed, such materials will be stored or destructed by HYPOXI. HYPOXI is entitled to keep copies of it insofar as this is necessary for the proper documentation of the services or if it is legally required or customary.