GTC

General Terms and Conditions (GTC)

General Terms and Conditions (GTC) of Acapsia Pharma Production GmbH

1. Scope of application

1.1 The following General Terms and Conditions (hereinafter also referred to as “GTC”) of Acapsia pharma production (hereinafter also referred to as “we”, “us”, “acapsia”) shall apply to all contracts and other business and legal relationships established by medcosan with other legal entities (hereinafter also referred to as “customer” or “clients”). It is expressly stated that the term “customer” used in these GTC stands for both male and female customers. The distinction cannot be made consistently for reasons of readability.

1.2 Customers are both consumers under the Austrian Consumer Protection Act (KSchG) and business clients under the Austrian Consumer Protection Act (KSchG). For consumers in particular, the statutory rights of revocation under the Austrian Distance Selling Act (Fern- und Auswärtsgeschäftegesetz, FAGG) shall apply in accordance with item 6. as well as the mandatory consumer protection terms.

1.3 The version of the GTC valid at the time of the conclusion of the contract shall be authoritative in each case. The GTC shall also apply to all future business and legal relationships of medcosan with customers.

1.4 If the customer is a business client, medcosan shall be entitled to make changes to the GTC. Amendments to the GTC shall then be notified to the customer in writing and shall be effective with respect to the customer as of the date stated in the notification.

1.5 Deviating, contradictory and/or supplementary provisions shall only become part of the contract and/or other business and legal relationship if this is expressly confirmed in writing by medcosan. The customer agrees that only the GTC of medcosan apply. This also applies if medcosan is aware of the customer’s GTC. An order placed with medcosan and/or any other act of contract performance shall in any case be deemed as consent to accept exclusively medcosan’s GTC.

2. Conclusion of a contract

2.1 The presentation of goods and services of medcosan in the web shop or in any other way are always subject to change and legally and factually non-binding. In any case, the presentation is not a legally binding offer, but only an invitation to the customer to make an offer to medcosan for the purchase of goods and/or services. Product images in the web shop may differ from the actual appearance of the delivered goods, especially in terms of size.

2.2 The customer’s offer to purchase goods via the web shop is made when the customer sends the order. The customer can check his/her order before submitting his/her offer. The customer’s offer becomes binding by clicking on the button “Buy Now”. The contract is then concluded by medcosan’s acceptance of the order, either by sending an electronic (e.g., e-mail) or a postal order confirmation or directly by medcosan’s dispatch of the ordered goods to the customer.

2.3 A contract for other services of medcosan shall be concluded by means of a mutually legally valid signed written contract in duplicate. The exchange of the mutually legally signed contract documents can proceed by mail, e-mail or fax.

3. Delivery

3.1 Delivery of the goods shall generally take place within two weeks of receipt of payment, unless otherwise agreed in writing. Delivery periods and dates shall be observed by medcosan as far as possible. However, delivery periods and dates are always non-binding and are understood as the expected time of provision and handover to the customer, unless otherwise agreed in writing.

3.2 If goods are temporarily unavailable, the customer shall be notified without undue delay.

3.3 The goods delivered by medcosan shall remain the full property of medcosan until all claims of medcosan have been paid in full. In the event of default in payment by the customer, medcosan shall be entitled to assert all rights arising from this retention of title and, in particular, to reclaim the goods at the customer’s expense and to return them to the customer only after full payment of all claims of medcosan.

4. Prices

4.1 The prices for goods and services of medcosan are quoted in EURO. The prices for goods and services of medcosan which result from the current price lists and the presentation in the web shop or in any other way shall always apply.

4.2 If additional delivery, shipping, packaging or other costs are incurred, the customer will be informed before submission or acceptance of his/her offer. These delivery, shipping, packaging or other costs can be seen in the price information directly with the respective goods or services.

5. Payment

5.1 All invoices of medcosan are due for payment 14 days from the date of invoice, unless otherwise agreed.

5.2 If the customer is in default of payment, the statutory default interest shall be deemed agreed. In the event of default, the customer is also obliged to reimburse the necessary costs for appropriate debt enforcement and/or collectibility measures that are in reasonable proportion to the claim being pursued. If lawyers are commissioned, the customer must pay the costs according to the applicable Lawyers’ Tariff Act, if a debt collection agency is commissioned, the costs must be paid according to expenditure, whereby these do not exceed the maximum rates of the Collection Fees Ordinance, Federal Law Gazette BGBI No. 141/1996, in the respective applicable version.

5.3 Business clients only have the right to offset if their counterclaims have been legally established or acknowledged by medcosan in writing.

5.4 Business clients shall not be entitled to withhold payments. The statutory right of retention of consumers remains unaffected.

6. Right of revocation

6.1 With regard to customers who are consumers within the meaning of the KSchG, the Austrian Distance Selling Act (FAGG) shall apply in the case of a distance contract or a contract concluded outside business premises. These customers are entitled to revoke the purchase 14 days after taking delivery of the goods without giving any reason. It is sufficient if the declaration of revocation is sent within the period.

6.2 To execute the right of revocation, the customer must inform medcosan Pharma by means of a clear declaration (e.g., letter, email) about his/her decision to revoke the contract. The customer can use the specially provided revocation form for this purpose.

6.3 If the customer revokes the contract, we will reimburse the customer for all payments we have received without delay and no later than 14 days from the day on which the notification of revocation is received. The same means of payment that the customer uses when concluding the contract shall be used for the repayment, unless otherwise agreed.

6.4 The refund of the purchase price shall only take place concurrently with the return of the goods received. The costs of the return shipment shall be paid by the customer.

6.5 Should the revocation be timely, the customer is obliged to return or transfer the goods to medcosan Pharma no later than 14 days from the day on which he/she informs medcosan of the revocation. The deadline shall be met if the customer has dispatched the goods before the expiry of the deadline.

6.6 The customer must pay for any loss in value if the loss in value is not due to any necessary measures to check the condition, properties and functioning of the goods.

6.7 In the cases listed in § 18 FAGG there is no right of revocation. In particular, the customer has no right of revocation in the following cases:

1. a) Goods that are manufactured according to customer specifications or are clearly tailored to personal requirements;
2. b) Goods that are delivered sealed and are not suitable for return for reasons of health protection or hygiene, provided that their seal has been removed after delivery;
3. c) Goods that have been inseparably mixed with other goods after delivery due to their nature;
4. d) Goods that can spoil quickly or their expiration date will be exceeded quickly.

Sample revocation form

Customers who are consumers can use the following form and send it to us if he/she wants to revoke the contract according to point 5.

DOWNLOAD REVOCATION FORM >>

8. Warranty and liability

8.1 For consumers, the applicable statutory warranty and liability provisions shall apply.

8.2 Business clients must inspect the goods after receiving them to ensure that they are correct and free of defects. In the event of a defect, they must notify medcosan in writing within a reasonable timeframe (usually seven days). The clients shall bear the full burden of proof for the claim prerequisites, in particular for the existence of the defect and the timeliness of the notice of defect. If no notice of defect is given, the goods will be deemed accepted. Thus, all claims for warranty, errors or damages due to defective performance shall lapse.

8.3 Liability towards business clients for damages caused by slight negligence is excluded. Liability for damages caused by defects and/or consequential damages, as well as loss of profit, loss of interest, loss of production, operational standstill, as well as for all other direct and/or indirect damages – except for customers who are consumers within the meaning of the Austrian Consumer Protection Act (KSchG) – shall also be excluded. For damages arising from injury to life, limb, and health, as well as for claims under the Product Liability Act (PHG), medcosan shall be liable in accordance with the applicable statutory provisions. These regulations shall also apply to the conduct of vicarious agents of medcosan.

8.4 Business clients must prove the existence of intent and gross negligence and assert claims for damages within one year from the date of performance or transfer of risk.

8.5 Any recourse claims within the meaning of § 12 PHG are excluded, unless the person entitled to recourse proves that the fault is caused by medcosan and is at least due to gross negligence.

9. Special terms and conditions for contract manufacturing by medcosan

9.1 Services rendered by medcosan to customers in connection with the production and preparation for placing products on the market shall be regulated between the customer and medcosan in a specific, individual contractual agreement (manufacturing contract). In particular, the scope of services, the duration of the contract and the remuneration shall be stipulated therein.

9.2 In principle, the warranty and liability provisions pursuant to item 7 shall apply, unless otherwise agreed in writing. Any liability on the part of medcosan and all persons working for medcosan shall be limited to the costs of the production carried out. Any liability in excess of this amount is expressly excluded. This also applies to any liability towards third parties, for example from a contract with protective effect in favor of third parties. This limitation of liability applies to both gross and slightly negligent infliction of damage. If there are several competing injured parties, the maximum amount for each individual injured party shall be reduced in proportion to the amount of the claims. All claims of the customer against us lapse within one year from the date on which the claim arises.

9.3 If one of the contracting parties obtains knowledge of confidential information of the other contracting party and/or the respective vicarious agents engaged in the course of the joint business relations (in particular technical information as well as information on business and operational matters), the latter is obliged to maintain strict confidentiality. The obligation to maintain confidentiality shall continue to exist even after execution of the contract. The duty of confidentiality can also be specified in more detail in a separate confidentiality agreement between medcosan and the customer.

9.4 The delivery dates estimated by medcosan shall be communicated after careful coordination with the customer. Except in the case of fixed-date transactions, the delivery dates are in any case not legally binding and do not entitle the customer to revoke the contract or to assert claims for damages.

9.5 In the case of productions according to his/her specifications, the customer guarantees in a legally binding manner and irrespective of fault that all industrial and immaterial property rights (patent, trademark, utility model and other industrial property rights) and all authorizations and/or other necessary consents of third parties have been obtained in a legally binding manner for the services to be rendered by medcosan. The customer is obligated to fully indemnify medcosan from all damages incurred by third parties.

9.6 medcosan is entitled to declare the immediate early termination of the contract without a grace period if there is an important reason for which our customer is responsible that makes it unreasonable to adhere to this contract. Important reasons are in particular:

• Non-payment of due (not time-barred) claims despite setting a 14-day grace period;
• Threat of the opening of insolvency proceedings against the assets of a contractual partner or rejection of an application for lack of cost-covering assets;
• Breach of the obligations assumed by the customer in the manufacturing contract, in particular the obligation to safeguard interests or confidentiality.

9.7 If insolvency proceedings are initiated against the business client’s assets, medcosan is entitled to perform the contract subject to the provision of appropriate guarantees or payments in advance.

10. Miscellaneous

10.1 The exclusive place of performance for all services under the GTC is the registered office of medcosan in 3484 Grafenwörth, Austria.

10.2 Austrian substantive law shall apply to the exclusion of the referral norms of international private law and to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

10.3 Amendments or supplements to the contracts and/or these General Terms and Conditions must be made in writing (letter, fax, e-mail) – in the case of consumer transactions without prejudice to § 10 para. 3 KSchG. This also applies to the amendment of this clause itself.

10.4 Customers are obligated to inform medcosan of changes in billing address, delivery address, bank details, e-mail address or other data required for the processing of the contract by letter, fax or e-mail without delay. Deliveries of notices from medcosan to customers can be made legally effective to the last medcosan known data, which served the legal transaction or should serve as agreed. Electronic declarations shall be deemed as received if they are sent to the e-mail address last provided by the customer and can be retrieved under normal circumstances.

10.5 Should any provision of the GTC and/or the contracts based thereon be/become void, invalid and/or unenforceable, the remaining part of the GTC and/or the contracts based thereon will not be affected thereby. The void, invalid and/or unenforceable provision will be replaced – except for consumers within the meaning of the KSchG – by a valid or enforceable provision that comes closest to the void, invalid and/or unenforceable provision in legal and economic terms. With consumers, in place of the void, invalid and/or unenforceable provision, a legally valid and enforceable provision shall be mutually agreed upon that comes closest to the void, invalid or/and unenforceable provision in legal and economic terms.

10.6 medcosan is entitled – except in the case of customers who are consumers – to transfer the obligations arising from the GTC and/or the contracts based on them or the contracts themselves to third parties in a legally effective and debt-discharging manner.

10.7 All disputes arising from this contract are subject to the jurisdiction of the court with local and subject-matter jurisdiction at medcosan’s registered office. For consumers, the jurisdiction of § 14 KSchG shall apply.