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General Terms and Conditions

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The general terms and conditions apply to all business relationships between OpenVivo and its clients. It is based on g.tec's general terms and conditions to provide continuity.

1. Scope

All deliveries and services performed for customers of OpenVivo ltd are subject to these general terms and conditions of OpenVivo ltd. They also relate to any succeeding orders.

2. Offers, Contract and Conclusion

Offers by OpenVivo ltd are not obligatory and therefore to be confirmed

OpenVivo ltd accepts offers and orders in form of a written confirmation, or by transportation of the object of purchase, or by service delivery.

Particulars appearing in catalogues, folders, etc. as well as any oral or written statements are only obligatory in connection with a written confirmation by OpenVivo ltd.

3. Alterations and Cancellation

In case our order confirmation differs from the original order, it is considered to be accepted by the customer unless the customer submits a written objection within 10 days from the date of issue of the order`s confirmation.

In case of cancellation of the order after this time, OpenVivo ltd is entitled to charge a cancellation fee adequate to the amount of the actual loss sustained. If an explicitly agreed advanced payment is not paid, OpenVivo ltd is entitled to cancel the contract and to charge the sustained loss.

4. Terms of Delivery

The products/contract goods will be delivered as soon as OpenVivo ltd confirms the purchase order and the advance received from the customer.

Delivery periods are only obligatory if expressed by OpenVivo ltd in the confirmation. If then OpenVivo ltd is to blame for the delay of the delivery, the customer has the right to withdraw from the contract within two weeks. All other claims respectively ulterior claims of every description, in particular compensation for damages, are excluded unless the delayed delivery is proofed to have occurred solely through gross negligence or intent of OpenVivo ltd.

In case of unforeseeable circumstances or circumstances beyond the partiesĀ“ control, such as all cases of force majeure, which impede compliance with the agreed period of delivery, the latter shall be extended in any case for the duration of such circumstances; these include in particular armed conflicts, official interventions and prohibitions, delays in transport or customs clearance, damages in transit, energy shortage and raw materials scarcity, labour disputes, and default on performance by a major component supplier who is difficult to replace. The aforesaid circumstances shall be deemed to prevail irrespective of whether they affect OpenVivo ltd or its subcontractor's.

If performance of a contract is impossible affected by circumstances beyond OpenVivo ltd's control, OpenVivo ltd is not covenanted by the contract anymore.

OpenVivo ltd has the right to transact partial deliveries and to invoice such partial deliveries after prior consultation with the customer.

5. Pricing

Unless otherwise specified by OpenVivo ltd, prices are quoted in EURO. Customers may purchase in euro (EUR) or british pounds sterling (GBP), these are the agreed curencies. Prices are converted from GBPto EUR by taking the conversion ratio of euro to pounds from XE (http://www.xe.com/) and adding a commission of 2.5%. All the prices according to the standard price list of OpenVivo ltd as well as the prices in our offerings are subject to confirmation. Prices shall be quoted ex works excluding value added tax.

Prices are based on costs obtaining at the time of the first quotation. In case the costs or exchange rates have increased by the time of delivery, OpenVivo ltd shall have the right to adjust prices accordingly.

6. Payment Conditions

Unless otherwise agreed, 30% of the purchase price shall fall due as soon as the customer receives the confirmation of the order by OpenVivo ltd and the balance at the time of receipt of the invoice. Payment shall be made strictly net to OpenVivo ltd's bank account in the agreed currency.

In case of delay payment OpenVivo ltd may charge default interest amounting to 10 % per annum. Buyer shall not be entitled to withhold or offset payment because of any warranty claims or other counterclaims which are not accepted by OpenVivo ltd. In case of delay payment OpenVivo ltd in addition shall have the right to:

  • demand performance of the contract;
  • suspend fulfilment of any obligations until receipt of payment;
  • bill the customer for dunning charges and if, as a consequence of such late payment, OpenVivo ltd incurs legal costs and attorney fees, the customer shall indemnify OpenVivo ltd for any such amount(s). Any discounts or bonus granted shall be suspended until receipt of the full payment.

The assertion of the right of retention and exception of a non-performed contract by the customer due to any asserted defects impossible. The setting off by the customer with counter claim or with claim for price reduction is only permitted if the claim was established finally or recognised by OpenVivo ltd.

If the customer fails to meet the terms of payment or any other obligation arising from this or other transactions, OpenVivo ltd may suspend performance of its own obligations without prejudice until payments have been made or other obligations fulfilled, furthermore, OpenVivo ltd may exercise its right to extend the period of delivery to a reasonable extent, call in debts arisen from this or any other transactions, and pick up the delivered goods without absolving the customer from his contractual obligations. These actions cannot be seen as a cancellation of the contract by OpenVivo ltd, unless stated explicitly. Additionally, OpenVivo ltd reserves the right to withdraw from the contract, to claim in all delivered goods and services as well as to claim damages for non-performance after having set a grace period.

7. Transfer of Perils and Delivery

Unless otherwise specified by OpenVivo ltd, deliveries are sent ex works (EXW according to the Incoterms 2000). Such deliveries do, in particular, not include costs of transport, package, insurance, custom duties or any similar taxes. Delivery place and transfer of perils is OpenVivo ltd's office. On demand OpenVivo ltd organises transport and insurance. Arising costs of transport and insurance are charged to the customer. Custom duties, excise, sales, use and similar taxes are to be beard by the customer.

Place of performance is OpenVivo ltd's office.

8. Retention of Title

All deliveries affected by OpenVivo ltd shall be subject to retention of title. Title to the delivered goods shall remain with OpenVivo ltd until the purchase price - including any and all additional fees - has been fully paid.

Retention of title also comprises products manufactured by processing or transformation of the goods delivered by OpenVivo ltd. With respect to the processing, combination, or mixing of goods, OpenVivo ltd shall acquire joint title to the products manufactured out of it. In such case, the customer shall hold such ownershiPrights on a trust basis for OpenVivo ltd.

The customer shall not be entitled to pledge, transfer by way of security, or otherwise make available to third parties the goods delivered under retention of title. The customer shall be entitled to sell the reserved goods only with prior written consent of OpenVivo ltd, provided that the customer informs its respective purchaser of OpenVivo ltd's retention of title ("extended retention of title").

9. Responsibilities of the Customer

Prior to assembly, the materials and equipment necessary for the work to start must be available on the site of assembly and any preparatory work must have advanced to such a degree that assembly can be started as agreed and carried out without interruption.

The order is placed independently of any required official permissions and permissions which the ordering party has to seek.

The ordering party is not authorised to transfer claims and rights from the contract relationship without a written consent of OpenVivo ltd.

10. Warranty

The warranty period is restricted conjointly for 12 months starting with the day of delivery of the purchase objects.

OpenVivo defers all claims of waranty to g.tec medical engineering. It will comply wholly with warranty conditions of section 10 of g.tec's general terms of service.

11. Liability and Product Liability

OpenVivo ltd is only liable for damage if intent or very gross negligence of OpenVivo ltd can be proven. The default of OpenVivo ltd has to be proved by the customer.

The liability for indirect damages, lost profit, economic loss, damages by service interruption, losses of data, and losses of interest as well as damages resulting of third-party claims against the customer is excluded at any rate.

A possible liability of OpenVivo ltd is restricted at any rate upto the amount of the consideration agreed on or the selling price for the respective order. Contracts, adopted by OpenVivo ltd, are only adopted with the reservation of this liability limitation. A liability of OpenVivo ltd going beyond is explicitly excluded. If the total damage exceeds the upper limit, the compensation entitlements of single aggrieved parties are reduced proportionally.

In general, the customer can only demand improvement or exchange of the good/the work for compensation.In case improvement or exchange is impossible or connected to unreasonably efforts for OpenVivo ltd, the customer can immediately demand a money substitute.

OpenVivo ltd shall not be liable for damages in case of non-compliance with instructions for assembly, commissioning and operation (such as are contained in instructions for use) or non-compliance with licensing requirements. The customer has to make sure that instructions for use are adhered by all users of the delivered goods. The customer has to train and to instruct staff and other people encountering the delivered product or work. The customer is responsible for the protection of the computer software against computer viruses and for the data storage. OpenVivo ltd is only liable if OpenVivo ltd is responsible for the infestation with computer viruses.

The obligation to pay compensation or the duty of replacement for property damages resulting from the product liability act as well as product liability claims which can be derived from other regulations are excluded. The customer is compelled to alienate the disclaimer for product liability claims to possible third parties. A claim for recourse against OpenVivo ltd from the demands in accordance with the product liability act is excluded. The customer has to effect a sufficient insurance against product liability claims furthermore to keep the company non-actionable referring to this.

12. Withdrawal from the Contract

OpenVivo ltd is authorised to withdraw from the contract if due to the fault of the customer a delivery/performance is not possible or if a customer does not fulfil a legal or contractual obligation. In this case, the customer has to compensate all disadvantages and the profit loss arising from it.

The customer abandons refutation/adjustment of the contract because of error.

13. Industrial Property Rights and Copyright

The customer shall observe the industrial property rights and copyright of g.tec GmBH as specified in section 13 of g.tec general terms of service. g.tec general terms of service can be found at http://www.gtec.at/profile/documents/AGB_gtec.pdf

14. Software

In case software components or computer programs are part of the performance-/ purchase object, OpenVivo ltd gives with regard to these a not transferable and not exclusive right of use and enjoyment to the customer under compliance with the contractual conditions and documents (e.g. user manual) on the specified installation site. The number of installed software must correspond with the acquired licenses.

Without a previous written consent of OpenVivo ltd the customer is not authorised to duplicate or to change the software, to customise it or to use it for other purposes than agreed on. This applies particularly to the source code.

With regard to the software, OpenVivo ltd only warranties for the conformance of the software with the specifications agreed on at completion of a contract provided that the software was used in accordance with the installation requirements and corresponds to the respectively current operating conditions.

The choice and specification of the software offered by "OpenVivo ltd" is made by the customer who has to take care that the specifications are compatible with the technical conditions on the spot. The customer is responsible for the use of the software and the results achieved.

According to individually produced software the performance features, special functions, hard and software requirements, installation requirements, operating conditions and the manipulation arise exclusively from the functional specifications to be agreed on in writing between the contracting partners. The customer has to make available the information required for the production of individual software before conclusion of a contract.

15. Further Principles

Invalidity of single principles in these general terms and conditions contract do not affect the validity of further principles.

These general terms and conditions add to contracts between OpenVivo ltd and the customer. In case of contradiction or extension to principles in the contract the contract always takes precedence.

Alterations of the general terms and conditions must always be in written form and a result of consent of the contracting parties. No verbal supplementary agreements are valid.

16. Place of Venue and Applicable Law

Any disputes arising from or in connection with this contractual relationship, including the issue of its valid conclusion and its pre- and post-contractual effects, shall be exclusively settled either by the competent court of the district in which OpenVivo ltd has its registered seat or, alternatively and at the discretion of OpenVivo ltd, by the competent court of the district in which the customer has its registered seat, a place of business, or assets.

This contractual relationship, including the issue of its valid conclusion and its pre- and post-contractual effects, shall be governed by and construed in accordance with the laws of England. The application of the UN Sales Convention(CISG/UNCITRAL) is expressly excluded.

The customer has to announce immediately any changes of names, address, legal form, or other relevant information in writing.