1.1 PhiAcademy GmbH, FN 461082 m, with its registered address at Gartengasse 8/8, 1050 Vienna, e-mail address firstname.lastname@example.org, shall hereinafter be referred to as PhiA (any reference made herein to ‘us’, ‘we’ or ‘our’ shall be interpreted accordingly), and the contractual partner shall hereinafter be referred to asthe 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 PhiA online shop (www.phishop.com), hereinafter referred to as PHISHOP.
1.3 Offers provided in PHISHOP are addressed exclusively to entrepreneurs within the meaning of Sec. 1 of the Austrian Commercial Code (UGB), for which any transactions are considered to be business operations. Consumers, as well as entrepreneurs, for whom any transactions are 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 herein, you thereby declare that you agree to the GTC herein. 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 contradict such diverging terms and conditions. Any arrangements diverging from these GTC shall be considered effective only if said arrangements are confirmed by us in writing. Our actions of contract fulfilmentshall not be deemed as confirmation.
2.1 In addition to the German user interface and the GTC, we shall also 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 the event of contradictions between the German and the English text, the German text shall prevail.
The applicationof any provisionsofthe 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.
4.1 The prices, price offers and descriptions provided in PHISHOP do not constitute a binding offer and may be withdrawn or amended by us, at any time prior to the express acceptance of your offer.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 to purchase products and/or services which are extended by you, to us, shall require our subsequent acceptance. We are not obliged to accept your offer. A contract shall be concluded solely with our express acceptance of your offer.
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 applicable in the provided currency, excluding turnover or valueadded tax. Unless otherwise agreed upon, the prices stated are ex works, not including shipping and transport costs. Shipping and transport costs are stated separately. 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 without deduction upon invoicing. In the event of an order consisting of several partial product deliveries under Section 6.3, we shall be entitled 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.
5.5 In the event that you: file for insolvency, enter into an out-of-court settlement with creditors, that a court order is issued for your liquidation, that you are subject to or take similar actions due to debts or that we have other reason to assume that you shall be unable to settle any due or outstanding debts, we reserve the right to fill your orders for products and/or services against received, other rights notwithstanding.
6.1 The territories which we deliver our products to/in are stated separately and may vary depending on the product ordered. You shall bear the cost of delivery.
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 a two-week period. 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 You are obliged to accept the delivery of products ordered from and provided by us. The moment the product(s) is/are delivered at your premises, any and all risk of damage or product(s) loss shall be passed onto you, notwithstanding all other rights we may be entitled to. In the event that you default on acceptance, we are entitled to rescind the contract after a period of seven days has been set.
6.5 At our request, you are obliged to cover any and all reasonable costs which may arise as a result of the unsuccessful delivery and storage of the product(s) due to your failure or refusal to accept said delivery.
6.6 Upon the proper handover of the ordered product(s) to the person/transport company carrying out the transport, we shall bear the risk of accidental loss or damage until the delivery/unloading at the address provided to us. In the event that you delay or refuse acceptance, Section 6.4 shall apply.
6.7 Notwithstanding the provision provided in Section 6.6, we shall bear no risk for any damages resulting from the following events:
• War, civil war, warlike events and the dangers arising from the use or presence of instruments of war, irrespective of the state of war
• Strikes, lockouts, riots, looting, acts of terrorism or political violence or other civil unrest and sabotage.
• Seizure, confiscation or other form of intervention by the authorities.
• Use or application of computers, computer systems, computer software programs, computer viruses or process sequences or any other electronic system.
• Nuclear energy and radioactivity
• Damage caused by the absence of or defectsto transport packaging.
• Damage caused by any violation to customs regulations, declaration regulations, shipping regulations or other official regulations.
• Damage due to court orders and their enforcement.
• Damage caused by fluctuations in humidity and/or temperature.
• Damage caused to packaging
• Damage caused by a delay in delivery.
6.8 In the event of accidental loss or damage to the product, you shall be obliged to inform us thereof, in writing, within 10 business 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.
7.1 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 recordsin such a way asto enable usto distinguish between product(s) paid forin full and product(s) for which payment is outstanding. Chattel pledges or mortgages shall not be permissible.
7.2 You must inform us in writing, without delay, of any related third-party or thirdparty intervention.
7.3 We reserve the right to re-possess and re-sell our product(s) in the event of default and 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.
You are obliged to inspect the product(s) and ensure that said product(s) 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).
Once you have received delivery of the product(s), you shall be obliged to inspect said shipment for any transport damage. In the event of damage to the packaging, you must have such damage acknowledged by the carrier, in writing. In the absence ofsuch acknowledgement, you shallnot be entitled to assert claimsfor defective performance vis-à-vis us.
9.1 We shall only assume liability for damage due to willful or grossly negligent failure to fulfil duties 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.
9.2 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.
9.3 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.
9.4 You are committed to all actions that can be expected of you to prevent and reduce damage.
10.1 In the event our products are defective or faulty, you shall be entitled to rights under statutory warranty: A product is deemed defective if it does not have the customarily expected properties or agreed quality or if said product infringes industrial property rights, copyrights or other third-party rights. The contractual partner shall furnish proof of such defects/faults. Sec. 924, second sentence, and Sec. 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, price reduction or redhibition) at our discretion.
You shall agree to us using one of our contractual partners in Austria or abroad in the performance of our warranty obligations.
10.2 Warranty rights shall become statute-barred within 12 months from the moment of handover/delivery of the product(s) or service.
10.3 Unless otherwise agreed upon, the rights stated in Section 10 shall not apply in the following cases: • If, and to the extentthatthe 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 due to false 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).
10.4 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.
10.5 There is no warranty for replacement parts and accessories (such as machine handpieces, foot pedals, power supply units, batteries).
11.1 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.
11.2 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.
12.1 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.
12.2 For aslong asthe 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.
14.1 In addition to the declarations of intent made in these GTC and in the context of the order process via PHISHOP, between the contracting parties, no further agreements apply. Any earlier agreements shall not apply.
14.2 The transfer of rights and obligations from the concluded contractual relationship requires our prior written consent.
14.3 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.
14.4 These General Terms and Conditions are governed by the substantive law of the Republic of Austria to the exclusion of the 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 with subject-matter jurisdiction at the registered seat of PhiA shall be the exclusive forum.
14.5 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, the 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.