Allgemeine Geschäftsbedingungen


1 Scope of application

1.1 PhiAcademy GmbH, FN 461082 m, with its registered address at Gartengasse 8/8, 1050 Vienna, e-mail address info@phishop.com, shall hereinafter be referred to as PhiAcademy (any reference made herein to ‘us’, ‘we’ or ‘our’ shall be interpreted accordingly), and the contractual partner shall hereinafter be referred to as the Customer (any reference made herein to ‘you’ and ‘your’ shall likewise be interpreted accordingly).

1.2 These General Terms and Conditions (GTC) apply to all present and future transactions concluded via the PhiAcademy online shop (www.phishop.com) or the respective mobile application, hereinafter referred to as PHISHOP.

1.3 Offers provided in PHISHOP are addressed exclusively to entrepreneurs within the meaning of Art. 1 of the Austrian Commercial Code (UGB), for whom any transaction at our PhiShop is carried out as part of their business. Consumers, as well as entrepreneurs, for whom a transaction is not part of their business operations, are excluded from executing any transactions via PHISHOP. In the event that a Customer provides misleading information stating that he/she closes the transaction within the scope of his/her business operations, we reserve the right to rescind the transaction and to assert claims for damages.

1.4 By extending an offer to us, within the meaning provided in Section 4 below, you declare to agree to these GTCs. Any diverging terms and conditions applicable at your end shall not be binding on our end. This shall also include cases in which we do not expressly reject such diverging terms and conditions. Any terms deviating from these GTC shall be considered effective only if such terms are confirmed by us in writing. Our actions of contract fulfilment shall not be deemed as confirmation.

 

2 Contract language

2.1 In addition to the German user interface and the German GTC, we provide an English user interface and an English version of the GTC. The languages available for the conclusion of contracts shall be German and English. In any case, the German text shall prevail.

 

3 Exclusion of the Austrian E-Commerce Act

The application of any provisions of the Austrian E-Commerce Act (ECG) shall not apply unless said provisions are mandatory law. In particular, the information obligations pursuant to Sec 9 (1) and (2) ECG shall not apply.

 

4 Offer and acceptance

4.1 The prices, price offers and descriptions provided in PHISHOP do not constitute a binding offer and may be withdrawn or amended by us, at any time prior to the express acceptance of your offer.

4.2 Any and all offers made by you to purchase products and/or services from us, shall require our subsequent acceptance. We are not obliged to accept your offer. A contract shall be concluded solely with our express or silent acceptance of your offer, in particular by dispatch of the goods ordered by you.

 

5 Prices and payment terms

5.1 The price of each individual product is as stated, and unless otherwise and individually agreed upon in detail, the following provisions shall apply:

5.2 Prices are stated in EUROS or other currency, plus turnover or value added tax, as applicable. Unless otherwise stated, the prices do not include shipping and transport costs. Shipping and transport costs are stated separately and are to be borne by you. In the event that the conclusion or performance of a contract gives rise to taxes, bank charges, fees, customs or levies, these shall be borne by the Customer.

5.3 The invoice total shall be due upon your order. In the event of an order consisting of several partial product deliveries under Section 6.3, we reserve the right to charge each partial delivery under a partial invoice.

5.4 You shall not be entitled to setoff claims unless a counterclaim has been confirmed with final effect issued by a court of law or recognized by us.

 

6 Delivery and transfer of risk

6.1 Delivery and transfer of risk occurs CIP, Carriage Insurance Paid (Incoterms 2020) to the place of destination designated by you. The territories which we deliver our products to/in are stated separately and may vary depending on the product ordered.  In case the products are picked up at our facility in Vienna, Austria, delivery and transfer of risk occurs EXW, Ex Works (Incoterms 2020).

6.2 We seek to adhere to the delivery periods and delivery dates as stated. However, delivery dates and periods are deemed estimates and therefore nonbinding. We expressly reserve the right to make partial deliveries. You may only rescind the contract on the grounds of a delayed delivery after setting a reasonable grace period of no less than two weeks. Rescission shall be communicated by registered letter. The right to rescission shall only concern those products/services the delivery of which is delayed.

6.3 Partial deliveries are considered as separate contracts. In the event that one or several partial deliveries are delayed, you shall not be entitled to rescind contracts for subsequent partial deliveries.

6.4 In the event of accidental loss or damage to the product, you shall be obliged to inform us thereof, in writing, within 10 days from the date of receipt of the damaged product(s) or from receipt of notification regarding the accidental loss whilst adhering to the regulations and processes pertaining to claim notification and adjustment. Further legal obligations shall remain unaffected.

 

7 Force Majeure

Both parties will not be liable for any default or delay in the performance of their respective non-monetary obligations, to the extent that such default or delay is caused, directly or indirectly, by fire, flood, earthquake, explosions, elements of nature, acts of God, acts or regulations of government bodies, nuclear, chemical or biological contamination not caused by such Party, court orders arising out of circumstances other than a breach of this Agreement by the affected Party, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, strikes, lockouts or labor difficulties, epidemics or by any other event or circumstance that is beyond the reasonable control of you or us, whichever is the entity unable to perform (the Nonperforming Party).  Such event or circumstance giving rise to the default or delay is a Force Majeure Event.

The parties acknowledge and agree that COVID-19 is such Force Majeure Event, and it is not possible to foresee its duration, impact or extent (including measures and recommendations that may be put in place by regulators). As such, where our obligations are not performed, affected, and/or delayed and that is attributable to COVID-19, notwithstanding any other provision in the agreement, we will not be responsible for such delay, non-performance or failure. We will both act reasonable and meet without delay, discuss the affected obligations, potential work arounds and related issues in good faith and will document any agreed changes to the Agreement.

The Nonperforming Party will be excused from any further performance of the obligations affected by such Force Majeure Event for as long as such Force Majeure Event continues, and the Nonperforming Party continues to use commercially reasonable efforts to recommence performance.

 

8 Retention of title

8.1 Property title to the product(s) shall be passed on to you only after the full payment of the price, including any interest or other amounts relating to the product(s) have been executed. Until such time, there is no authorization to dispose of the product(s). You must store the product(s) and keep related records in such a way as to enable us to distinguish between product(s) paid for in full and product(s) for which payment is outstanding. Chattel pledges or mortgages shall not be permissible.

8.2 You must inform us in writing, without delay, of any related third-party intervention.

8.3 We reserve the right to re-possess and re-sell our product(s) in the event of default or in the event that the conditions for rescission are fulfilled. Repossession shall only entail rescission of the contract upon our express declaration to this effect. In the event of product(s) return, we shall be entitled to bill you for any transport and handling expenses incurred.

 

9 Obligation to inspect and complain

You are obliged to inspect the product(s) and ensure that they are in faultless condition, conform to the description and are complete. You may only assert claims for defective product(s) or incomplete delivery in the following cases: if you send us a written and specific complaint for the defect/s or incomplete delivery without delay, and in any event no later than 4 days from the receipt of the product(s).

 

10 Liability

10.1 We shall only assume liability for damage due to willful or grossly negligent failure to fulfil obligations on our part or on the part of our vicarious agents. Claims for damages, if any, shall become statute-barred 6 months from the date you became aware of the damage and the party at fault.

10.2 This limitation of liability shall apply to any and all claims for damages irrespective of legal grounds, including, without being limited to, precontractual and collateral contractual claims as well as liability for damage which has not arisen from the product(s) itself, and direct and indirect damage (e.g. frustrated expenditure, lost profit, expected economies, damage or loss of data). This limitation of liability shall not affect any mandatory statutory liability under the Austrian Product Liability Act (PHG) and liability for personal injury.

10.3 Based on the current state of art, data communication via Internet cannot be guaranteed to be error-free and/or available at all times. We are not liable for the constant and uninterrupted availability of our online trading system.

10.4 You are committed to all actions that can be expected of you to prevent and reduce damage.

 

11 Warranty

11.1 In the event our products are defective or faulty, you shall be entitled to the following limited warranty: A product is deemed defective if it does not have the agreed quality or if said product infringes industrial property rights, copyrights or other third-party rights. You shall furnish proof of such defects/faults. Art. 924, second sentence, and Art. 933b of the Austrian Civil Code (ABGB) shall not apply.
In the event of a warranty case, we shall be entitled to choose the method of fulfilling our warranty obligation (removal of defect, exchange or price reduction) at our discretion.
You agree that we may use one of our contractual partners in Austria or abroad to fulfill our warranty obligations.

11.2 Warranty rights shall become statute-barred within 12 months from the moment of delivery of the product(s) or service.

11.3 The rights stated in this Section 11shall not apply in the following cases:

  • If, and to the extent that the products were repaired or changed by other persons than by us or authorized dealers;
  • If, and to the extent that the defects are wholly or partly caused byfalse handling, operating errors, accident, improper use, inappropriate storage, maintenance or installation or non-adherence to advice or instructions provided by us and pertaining to the delivered product(s).

11.4 Please note that according to the state of the art (i.e. product(s)), the possible fault of a product cannot be excluded under any and all conditions of use. Therefore, we do not assume any warranty, for neither the use of the product, free from interruption and/or errors, nor for the correction of all errors and faults.

11.5 There is no warranty for replacement parts and accessories (such as machine handpieces, foot pedals, power supply units, batteries).

 

12 Permits, customs duties and export

12.1 Should the purchase, transport or use of product(s) be subject to a permit or license from a government or other authority, it shall be incumbent on you to obtain such permit or license at your expense and to furnish us with proof thereof, upon request. If you fail to obtain such permit or license, this shall not entitle you to retain or delay payment for ordered product(s). You shall bear any and all costs and expenses arising from the failure to obtain the required permit or license.

12.2 Products, imported into certain countries, may be subject to customs duties. Upon the arrival of the product(s) at the destination you have designated for delivery, customs duties, import duties and taxes may be imposed upon you. All such additional costs for customs clearance and import duties or taxes shall be borne by you.

 

13 Notices

13.1 Unless otherwise stated in these GTC, any and all notices and other communication concerning these contractual relations may be served by post (sufficient postage prepaid) or e-mail at the address stated in Section 1.1 and the address you most recently communicated to us, in writing.

13.2 For as long as the contractual legal transaction has not been fully performed by both parties, you shall be obliged to communicate to us any changes to your business address. Should you fail to communicate a change of address, any notifications shall be deemed delivered, if they have been sent to the address most recently communicated.

 

14 Personal Information and data protection

We shall process or use your personal data solely to the extent permitted by law and shall safeguard them from unauthorized access. The terms of our Privacy Policy apply.

 

15 Final provisions

15.1 The transfer of rights and obligations from the concluded contractual relationship requires our prior written consent.

15.2 Should a party waive or temporarily omit to enforce its rights under these General Terms and Conditions or if it grants the other party a grace period, the rights of the party first mentioned shall, in any event, remain unaffected. A waiver of asserting one’s rights in view of a breach of these General Terms and Conditions cannot be construed as a waiver of asserting one’s rights in view of subsequent breaches of these GTC.

15.3 These General Terms and Conditions are governed by the substantive law of the Republic of Austria, excluding its conflict of law rules and the UN Convention on the International Sale of Goods. In the event of any disputes arising from a contract – including disputes concerning the existence or nonexistence of the contract – the courts in Vienna, first district, shall be the exclusive forum.

15.4 Notwithstanding the foregoing choice of exclusive forum, we shall have the right to file any suit or seek interim relief before the courts having local and factual jurisdiction over you.

15.5 Should a provision or parts of a provision in these GTC be or become ineffective, this shall not affect the effectiveness and validity of the remaining provisions. In the event that a provision in these GTC or part of a contract is invalid or unenforceable, such invalid or unenforceable provision shall be deemed replaced by a provision which, in terms of its commercial and legal effect, is as close as possible to the invalid or unenforceable provision. The same applies in the case of a contract gap.