Terms & Conditions of Sale
I. Area of Application
- We shall fulfil our contractual obligations exclusively on the basis of the regulations mentioned hereinafter. We do not accept terms and conditions of trade deviating from these regulations.
- Our offers and the regulations as below are exclusively addressed to entrepreneurs (§ 14 BGB/ German Civil Code). If after the conclusion of the contract it comes to light that the customer is not an entrepreneur, we are entitled to resign from the contract.
II. Conclusion of Contract
- For our part the contract comes into effect on confirmation of the order or the carrying out of the contractual obligations and will be completed in compliance with the terms of the order confirmation, supported by sales records. We reserve the right to reasonable variations such as the delivery of other types of an equivalent standard of manufacture.
- The presentation and description of goods, in particular on our homepage on the Internet and in other catalogues or documents are not a contractual offer but a non-binding invitation to the customer to submit an order.
- The technical specifications, measures and weights listed in our (online) catalogue and the other sales records have been meticulously compiled. However a guarantee for their accuracy cannot be assumed.
- We reserve the right of ownership and the copyright of our models, plans and drawings.
- The customer is committed to provide us with all specifications required for the intended use of the item to be delivered, at the time the order is placed. This particularly applies when the products to be delivered are to be used in conjunction with toxic, combustible, corrosive and explosive media as well as any other injurious materials used under special temperature - or pressure ratios, or if specific operating conditions of any other kind are known.
- Factory certificates, manufacturer certificates of compliance or any other documentation which are not part of the standard scope of delivery have to be explicitly ordered upon the allocation of the order and will be invoiced separately.
- As a matter of principle the agreement is that delivery deadlines will be only approximate. The delivery deadlines agreed upon begin only on receipt of all documents and specifications required for the execution of the order as well as after the fulfilment of all the customer's usual obligations, including the execution of possible requests for advance payments.
- In the case of obstacles beyond our control, such as force majeure, strike, lock out, official actions and delays in the self-delivery, the delivery deadline agreed upon will be lengthened correspondingly. If there are obstacles that create delays longer than three weeks in Germany and longer than three months in cases of deliveries abroad, both contractual partners can cancel the contract without notice.
- In the case of a not only temporary obstacle of the goods to be delivered in compliance with the contractual obligation we can resign from the contract. We will inform the customer about this correspondingly and without delay and will instantaneously refund any services already rendered.
- One case of the preceding non-availability of the delivery for the purposes of subclause 3. above is the non-timely or non-properly self-supply by our supplier, if we had concluded a congruent covering transaction before.
- We are entitled to carry out partial deliveries with separate invoices, if the partial delivery is usable for the customer within the scope of the contractual purpose.
IV. Delivery Costs and Transfer of Risk
- The costs of dispatching the goods will be borne by the customer.
- Unless specifically stated or legally prescribed, packing is invoiced for separately and will not be taken back.
- The risk of the accidental loss or the deterioration of the goods is transferred, upon delivery, from commissioned agent to the customer.
- Damages in transit have to be notified within 10 days after the receipt of the delivery by enclosing all documentation as evidence.
V. Prices and Payment
- Orders for which no firm prices have been agreed upon, will be invoiced in accordance with the scheduled price, valid at the date of delivery.
- All prices indicated are to be understood as net plus legal value-added tax and incidental expenses up from the place of consignment. The entire incidental expenses such as freight, packaging, insurance, customs clearance, export permit, transit permit and other permits as well as official recordings will be borne by the customer. Payments are due, unless specifically stated otherwise, within 14 days up from the date of invoicing without any deduction.
- The minimum contract value for deliveries within the EU amounts to 50,00 EUR plus value-added tax and incidental expenses. For deliveries outside of the EU the minimum contract value is 300,00 EUR. Should the contract value be lower in some cases, we will account a lump sum of 10 EUR to cover processing.
- Should the customer be in arrears with a payment for more than 10 days, should he have suspended the payment, or should its financial condition deteriorate considerably all claims asserted against him instantaneously become due for payment. For goods not yet delivered, we may claim an advance payment or the deposit of a security, convenient to us, under these circumstances.
- The customer may not set off claims against counter claims which are not accepted by us or which are not legally established. He can only assert a right of retention on the basis of these claims to the extent that they are base
VI. Liability for Deficiencies
- We deliver our new products free from defects of quality at the time of surrender. As far as our used products are concerned, claims on a basis of defects of quality are excluded.
- Apparent deficiencies or deviations from the order have to be notified at the latest within one week upon receipt of the delivery item. Deficiencies, which cannot be discovered even upon careful examination within the deadline mentioned before, have to be notified immediately after they have been discovered.
- Should the goods be defective we can either choose to remedy the defect or to deliver substitute goods (subsequent fulfilment). Should the subsequent fulfilment fail, the customer may reduce the purchase price or resign from the contract.
- Insofar there is no entitlement for reclamation we are entitled to ask for compensation for the expenses incurred.
- Claims on the basis of defects of quality become statute-barred within twelve months after delivery. This regulation does not apply if a defect has been fraudulently concealed.
- Damage caused by leaking batteries in instruments purchased or repaired by us is generally excluded from any defect liability.
- For merchandised goods ("trading goods"") we grant the buyer a guarantee on the products supplied to the same extent as the manufacturer of these goods to us. Examination of the guarantee will be made by the manufacturer.
VII. Compensation of Damages
- Our compensation liability exists in legal extent with negligence or nonfeasance. Provided we are not acting deliberate or gross negligent, our liability or of our assistants exists only by the breach of an essential contract duty. However, liability is limited to damages typically foreseeable with the conclusion of the contract end and which are typical for such contracts.
- The agreed disclaimers of liability or the restriction of liability are not valid in the case of the provision of a guaranty of quality or the fraudulent concealment of a defect according to §444 German Civil Code (BGB), as well as with damages because of the injury of life, body or health as well as in the case of a liability according to the German Product Liability Act (ProdukthaftungsG) and for claims arising from default at the point of conclusion of the contract.
- In any case, we hereby limit our liability to 200% of the order value for the respective order.
VIII. Retention of Title
- We retain the right to own all delivered goods until the payment of the purchase price, including all incidental claims, has been made in full. Upon delivery of various goods at a total price, the retention of ownership rights applies until the payment of all goods has been made in full.
- The customer is committed under an obligation to immediately notify us in the case of garnishment, partial damage or loss of the goods under retention. The customer is entitled to sell the reserved goods in usual business dealings, yet only under the retention of title.
- The claims of the purchaser from the resale of the reserved goods are hereby already transferred to us. We accept this assignment of the claim. Regardless of such an assignment of the claim and our right of confiscation, the purchaser is entitled to confiscation as long as he meets his obligations towards us and does not get into the dwindling of assets.
- Upon our request, the purchaser has to render to us all specifications, required for the confiscation and has to notify the debtors about the assignment of the claims. In the cases of outstanding payment according to paragraph IV, the customer has to give up the reserved goods upon request. The costs incurred will be borne by the customer. The execution of retention titles is not to be considered as a cancellation of the contract.
IX. Choice of Law and Place of Jurisdiction
- The contract is governed by the legislation of the German Federal Republic. The UN-Purchasing Law is not applicable.
- Insofar as the contractual partner is a trader, a legal entity or a public-legal separate estate, the exclusive place of jurisdiction is Cologne. Cologne is also the exclusive place of jurisdiction, if the contractual partner does not have a general place of jurisdiction in Germany, if after the conclusion of the contract he has changed his legal place of residence or his place of business or usual residence abroad or if his legal place of residence or his place of business or usual residence are not known at the time of the filing of a civil action.
X. Retraction of goods and WEEE (ElektroG)
- According to the German Electrical and Electronic Equipment Law (“ElektroG”) we will take back our devices. They will be either recycled by us or recycled by a recycling company in compliance with law. Our WEEE Reg. No. is: DE66570454.
- All cost in connection with the return of electric devices to us, as for example carriage, import duties, payment of duty costs and any other logistic additional costs have to be borne by the customer. The customer is obliged to organize the return of the electric old devices to us by himself.
XI. Data protection and Miscellaneous
- The customer may not assign claims arising in the context of the contractual relationship unless specifically stated.
- All customer data necessary for the contractual transaction will be saved and processed by computer in compliance with the German data protection laws, including but not limited to German Federal Data Protection Act (BDSG) and the German Telemedia Act (TMG).
- Should any of these individual regulations of these general terms and conditions of trade prove to be invalid, the general validity of the other regulations is not affected thereby. In this case, both contractual parties are bound to set up a new agreement, which comes closest to the intended economic purpose.
PHYNIX GmbH & Co. KG
© 2016 PHYNIX GmbH & Co. KG