Sect. 1 Scope of application

1.1 The PhiAcademy GmbH, FN 461082 m, Geschäftsanschrift Gartengasse 8/8, 1050 Wien, E-Mail-Adresse info@phistore.com, will hereinafter be referred to as „PhiA“ (any reference made herein to “us”, “we” or “our” shall be interpreted accordingly), and the contractual partner will 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 online shop of PhiA (www.phistore.com), hereinafter referred to as " PHISTORE ".

1.3 The offers in PHISTORE are addressed exclusively to entrepreneurs within the meaning of Sec. 1 of the Austrian Commercial Code (UGB), for whom the transaction is part of to their business operations. Consumers as well as entrepreneurs, for whom the business is not part of their business operations, are excluded from any transactions made via PHISTORE. In the event that a customer wrongly creates the impression to close the business within the scope of his business operations, we reserve the right to challenge the business because of error and to assert claims for damages.

1.4 By extending an offer to us within the meaning of Clause 4, you declare that you agree to these GTC. Any diverging terms and conditions applicable at your end shall not be binding on us. This shall also include cases in which we do not expressly contradict such diverging terms and conditions. Any arrangements diverging from these General Terms and Conditions shall only be effective if we confirm them in writing. Our actions of contract fulfilment shall not be deemed as such confirmation.

 

Sect. 2 Contract language

2.1 In addition to the German user interface and GTC, we also provide an English user interface and English GTC. The languages available for the conclusion of the contract shall be German and English. In the event of contradictions between the German text and the English text, the German text shall prevail.  

Sect. 3 Exclusion of the Austrian E-Commerce Act

The application of the provisions of the Austrian E-Commerce Act (ECG) will not apply, unless they are obligatory. In particular, the information obligations pursuant to Sec 9 (1) and (2) ECG will not apply.

 

Sect. 4 Offer and acceptance

4.1 The prices, price offers and descriptions stated at PHISTORE do not constitute an offer and may at all times be withdrawn or amended by us prior to express acceptance of your offer.

4.2 Any and all offers to purchase products and/or services which you extend to us shall require our subsequent acceptance. We are not obliged to accept your offer. A contract will only come about by express acceptance on our part.

 

Sect. 5 Prices and payment terms

5.1 The prices of our products are subject to the information stated with the respective products as well as the following provisions (unless otherwise agreed upon on a case-by-case basis):

5.2 Prices are applicable in the currency stated, excluding turnover or value-added tax. Unless otherwise agreed upon, the prices stated are ex works, not including costs of shipping and transport. 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 orders consisting of several partial deliveries of products under Clause 6.3 we shall be entitled to bill each partial delivery under a partial invoice.

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

5.5 In the event that you file for insolvency, that you 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 reasons to assume that you will not be able to pay your debts when due, we reserve the right to fill your orders for products and/or services against advance payment only and/or to retain delivery until payment has been received, other rights notwithstanding.

 

Sect. 6 Delivery and transfer of risk

6.1 The territories which we deliver our products to/in are stated separately and may vary depending on the product. You will bear the cost of delivery.

6.2 We seek to adhere to the delivery periods and delivery dates we state. However, delivery dates and periods are estimates and thus non-binding. We expressly reserve the right to make partial deliveries. You may only rescind the contract on grounds of delayed delivery after setting a reasonable period of grace of at least two weeks. Rescission shall be communicated by registered letter. The right to rescission will only concern those products/services delivery of which is delayed.

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

6.4 You are obliged to accept the products ordered from and provided by us. If you fail or refuse to take delivery of the product, any and all risk of damage or loss of the product shall pass to 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 setting a period of seven days.

6.5 You are obliged to cover at request any and all reasonable costs which arise for the unsuccessful offer and maintenance of the product due on account of the failure or refusal to take delivery.

6.6 The risk of accidental loss or damage will pass to you upon proper handover of the product ordered to the person/transport company carrying out transport.

6.7 In the event of accidental loss or damage of the product, you will have to inform us thereof in writing within 10 business days from taking delivery of the damaged product or from receipt of notification about the accidental loss whilst adhering to the related rules and processes of claim notification and adjustment. Further legal obligations remain unaffected.

 

Sect. 7 Retention of title

7.1 Property title to the products will only pass to you after full payment of the price including any interest or other amounts relating to the products. Until such time, there is no authorization to dispose of the products. You must store the products and keep related records in such a way as enables us to distinguish between the products paid for in full and the products for which payment is still outstanding. Chattel pledges or mortgages will not be permissible.

7.2 You must inform us in writing without delay of any attachment or other third-party interventions.

7.3 We reserve the right to re-possess and re-sell our products in the event of default and in the event that the conditions for rescission are fulfilled. Re-possession will only entail rescission of the contract upon express declaration to this effect on our part. In the event of a product return, we will be entitled to bill you for the transport and handling expenses incurred.

 

Sect. 8 Obligation to inspect and complain

You are obliged to inspect the products and ensure that the products are in faultless condition, conform to the description and are complete. You may only assert claims for defective products 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 receipt of the products. When the product is delivered to you, you will be obliged to inspect it for transport damage after receipt. In the event of damage to the packaging, you must have such damage acknowledged by the carrier in writing. In the absence of such acknowledgement, you will not be entitled to assert claims for defective performance vis-à-vis us.

Sect. 9 Liability

9.1 We will 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, will become statute-barred 6 months from the date when you have become aware of the damage and the party at fault.

9.2 This limitation of liability will apply to any and all claims for damages irrespective of the legal grounds, including, without being limited to, pre-contractual and collateral contractual claims as well as liability for damage which did not arise on the product itself, and direct and indirect damage (e.g. frustrated expenditure, lost profit, expected economies, damage or loss of data). This limitation of liability will 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 any time. 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.

Sect. 10 Warranty

10.1 In the event our products are defective or faulty, you will 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 it infringes industrial property rights, copyrights or other third-party rights. The contractual partner will furnish proof of such defects/faults. Sec. 924, second sentence, and Sec. 933b of the Austrian Civil Code (ABGB) will not apply. In the event of a warranty case, we will be entitled to choose the method of fulfilling our warranty obligation (removal of defect, exchange, price reduction or redhibition) at our discretion. You agree to us using one of our contractual partners in Austria or abroad in the performance of our warranty obligations.

10.2 Warranty rights will become statute-barred within 12 months from the time of handover/delivery of the products or service.

10.3 Unless otherwise agreed upon, the rights stated in Clause 10 will not apply in the following cases: • If and to the extent that the products were repaired or changed by other persons than 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 advices or instructions provided by us for the products delivered.

10.4 Please note that according to the state of the art, it is not possible to exclude faults in products under any and all conditions of use. Therefore, we do not assume any warranty, neither for 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 expendable parts und accessories (such as machine handpieces, foot pedals, power supply units, batteries).

Sect. 11 Permits, customs duties and export

11.1 If the purchase, transport or use of products is subject to a permit or license from a government or other authority, it will be incumbent on you to obtain such permit or license at your expense and to furnish us with proof thereof at request. If you fail to obtain such permit or license, this will not entitle you to retain or delay payment for the products. You will bear any and all costs and expenses arising due such failure to obtain the required permit or license.

11.2 Products, which are imported into certain countries, may be subject to customs duties. Upon arrival of the products at the destination you have determined, customs duties, import duties and taxes may be imposed on you. All such additional cost for customs clearance and import duties or taxes will be borne by you.

Sect. 12 Notices

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 Clause 1.1 and the address you most recently communicated to us in writing.

12.2 For as long as the contractual legal transaction has not been fully performed by both parties, you will be obliged to communicate to us changes in your business address. If you fail to communicate address changes, declarations will be deemed served if they have been sent to the address most recently communicated.

Sect. 13 Personal Information and data protection

We will only process or use your personal data to the extent permitted by law and keep them safe from unauthorized access. The terms of our Privacy Policy apply.

Sect. 14 Final provisions

14.1 In addition to the declarations of intent made in these GTC and in the context of the order process via PHISTORE, between the contracting parties there are no further agreements. Earlier agreements will not apply.

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

14.3 If a party waives or temporarily omits to enforce its rights under these General Terms and Conditions or if it grants the other party periods of grace, the rights of the party first mentioned will 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 under private international law and the UN Convention on the International Sale of Goods. In the event of all disputes arising from a contract – including disputes about its existence or non-existence – the courts with subject-matter jurisdiction at the registered seat of PhiA shall be the exclusive forum.

14.5 If a provision or parts of a provision in these GTC is or becomes ineffective, this will 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 ineffective, the contracting parties will replace it by a provision which, in terms of content, is as close as possible to the ineffective provision. The same applies in case of a contract gap.