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§ 1. Application
(1) The following terms and conditions apply to all business relations between Phacon GmbH (us) and the buyer of a 3D model. All offers, deliveries and services or other legal statements are made exclusively on the basis of these terms of sale. Deviating or contradictory terms shall not be recognized by us, unless we have consented to them in writing.
(2) The following terms and conditions of sale shall apply to all future business relations between the parties, as well as to the delivery of the goods in knowledge of differing or opposing conditions. These conditions of sale are based on all offers and agreements. They shall be deemed to have been accepted upon order or acceptance of a delivery.
(3) These General Terms and Conditions of Sale apply only to contractors, legal persons of public law or public special funds within the meaning of § 310 BGB.
§ 2. Contract conclusion
The order of the buyer constitutes a firm offer that we can accept within a period of two weeks by written confirmation. The buyer is bound to his contract application for two weeks. In case of acceptance of the contract offer, the contract shall be achieved with the following:
PHACON GmbH
Druckereistr. 11
D – 04159 Leipzig
Germany
Tel: +49 (0) 341-24 19 919
Fax. +49 (0) 341-47 83 9174
Registered in: Leipzig Trade register / Commercial Register: Leipzig HRB 23280 VAT no. / VAT: DE 254698267
Managing Director / Managing Partner: Hendrik Möckel, Robert Haase
§ 3. Prices, terms of payment
(1) The prices shall be quoted ex works and are gross prices, including the applicable statutory value-added tax and excluding the costs for packaging, unless agreed otherwise. The purchase price is payable net within 14 days from the invoice date.
(2) If the agreed payment period is exceeded, 10% above the interest rate for the main refinancing operations of the European Central Bank shall be calculated. We reserve the right to assert further transmitted damages of delay.
§ 4. Set-off, retention
The buyer can only charge up against payment claims with undisputed or legally binding counterclaims. The buyer is only entitled to assert rights of retention on the basis of counterclaims from the same contractual relationship.
§ 5. Delivery, delivery time and shipping costs
(1) Delivery requires the on-time and proper fulfillment of the obligations the buyer has. The objection of the unfulfilled contract remains reserved.
(2) Default of acceptance or other culpable breach of cooperation obligations by the purchaser can entitle us to compensate for the damage resulting therefrom, including possible additional charges. We reserve the right to make further claims. In this case, the risk of accidental loss or accidental deterioration of the goods shall be transferred to the purchaser at the time of the delay in acceptance or other infringement of the obligation to cooperate.
(3) We reserve the right to withdraw from the purchase contract if delivery is not possible for reasons beyond our control. This applies in particular if non-deliverability is due to force majeure. In case of cancellation, we will immediately refund payments already made. There are no further claims.
(4) The standard delivery within Germany costs EUR 11.90 including VAT (value added tax) and packaging. For deliveries whose destination is outside Germany, the costs can be obtained from us. Furthermore, surcharges can be added within Germany due to an accelerated express shipping method of EUR 20.00. Delivery can only be made by the UPS (normal express plus EUR 17,80 incl. VAT, Saturday delivery EUR 83,30 gross.
§ 6. Passing of risk, Shipment
In case of goods shipment on request of the buyer, the risk of accidental destruction and accidental deterioration of the goods shall be transferred to the buyer at the time of shipment.
§ 7. Reservation of title
(1) Until the full repayment of all payments, the goods remain our property. In case of contract breach from the buyer, particularly in case of default in payment, we are entitled to take back the delivered goods.
(2) If the purchase price is not paid in full, the buyer must notify us immediately if the goods are loaded with third party rights or other third party interventions.
(3) The buyer is entitled to resell the goods under retention of title in the ordinary course of business. In this case, the purchaser assigns to us all claims arising from such a resale, however this is done before or after a possible processing of the goods under retention of title. Notwithstanding our power to collect the claim ourselves, the buyer remains empowered to collect the claim even after the assignment. In this context, we undertake not to collect the claim as long as the buyer complies with his payment obligations, no application for opening insolvency or similar proceedings has been filed and no payment has been made.
(4) If the value of the reserved goods exceeds the claims to be secured from the current business relationship by more than 20 percent, we are obliged to release the reserved goods when required by the buyer.
§ 8. Warranty
(1) The proper fulfillment of all inspection and complaint obligations due pursuant to § 377 HGB is required for all warranty rights of the purchaser. A visual object is for sale while there can be given no guarantee for a complete correctness of the size proportions.
(2) Warranty claims may be asserted within 12 months after passing of risk.
(3) In the case of any defects, we shall, at our discretion, make a warranty by repair or replacement. If we seriously and definitively refuse the fulfillment or we refuse the elimination of the defect and supplementary performance due to disproportionate costs or this has failed objectively, the buyer can reduce the purchase price or withdraw from the contract.
§ 9. Liability
Our liability for contractual breaches of duty as well as for offenses is limited to intent and gross negligence as well as to compensation for the typically arising damage. This does not apply in the case of the buyer’s life, body or health injury claims due to the violation of cardinal obligations, ie obligations arising from the nature of the contract and in the event of violation of which the fulfillment of the purpose of the contract is jeopardized and the replacement of default damages . Insofar we are liable for every degree of fault. Liability at a delay in delivery shall, however, be limited to 0.5% of the delivery value, but not more than 5% of the delivery value, for each completed week of delay within the scope of a lump sum default compensation. As far as damages are concerned, which do not result to life, body and health injury of the buyer, we are only liable for the typical damage. A particular case of further liability against the injured party from the Product Liability Act remains, in terms of amount and reason, unaffected by this limitation of liability.
§ 10. Place of Performance, Choice of Law and Jurisdiction
(1) Place of performance as well as exclusive court for all disputes arising from or in connection with this contract is Leipzig.
(2) This contract shall be governed by the law of the Federal Republic of Germany (to the exclusion of the UN purchase right).
§ 11. Severability clause, Written formal requirement
(1) Should a provision of this contract be or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected. Instead of the ineffective provision, the legal regulation which comes closest to the invalid provision based on the intent and purpose is valid. This agreement shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on the International Sale of Goods and the Rules on German Private International Law.
(2) Ancillary agreements, warranties and other agreements concluded before or upon the issuance of a written order or to this contract shall only be valid when agreed in writing.
