• 1 General terms – Scope
  1. Our terms and conditions apply exclusively; that is, to all business relationships with Phicomm Europe GmbH, and in particular to all purchase agreements. Phicomm Europe GmbH does not recognize any opposing conditions or conditions differing from ours, unless expressly agreed to in writing by Phicomm Europe GmbH.
  1. All agreements concluded between Phicomm Europe GmbH and the contractual partner (in particular the Customer) for the purpose of execution of a contract are specified therein.
  1. These Terms and Conditions apply only to companies in the sense of § 310 paragraph 1 of the BGB [German Civil Code].
  1. These Terms and Conditions also apply to all future business dealings with the Customer where similar legal transactions are concerned.
  1. Orders, other declarations, agreements made before or upon acceptance of an order, changes, additions to orders, and all other agreements must be made in writing (i.e. letter, fax, e-mail) to be legally effective.
  • 2 Offer and conclusion of contract
  1. The offers of Phicomm Europe GmbH are non-binding and without engagement.
  1. A contract only becomes effective upon the written confirmation of the order received by Phicomm Europe GmbH; however, upon the Customer’s acceptance of delivery at the latest.
  1. The order confirmation becomes part of the contract. The Customer is required to check said order confirmation for correctness upon receipt.
  • 3 Prices and price adjustment
  1. Unless otherwise agreed upon in writing, the prices of Phicomm Europe GmbH (except as otherwise agreed) are to be understood in euros, ex works (EXW, Incoterms 2010), including packaging, value-added tax at the legally valid rate and any applicable customs fees or import turnover tax.
  1. Cash discounts require a specific written agreement.
  1. The Customer is entitled to the right to offset only if his/her counterclaim is effectively determined, uncontested or recognized by Phicomm Europe GmbH. In addition, he or she is authorized to exercise the right of retention only to the extent that the counterclaim concerned arises out of the same contractual relationship.
  1. If no fixed price agreement has been made, we reserve the right to make reasonable price adjustments due to changes in wage costs, material costs and distribution costs for deliveries occurring 4 months or later after conclusion of the contract.
  • 4 Time of delivery, partial delivery, delayed delivery,  force majeure
  1. Delivery periods or dates stated by Phicomm Europe GmbH not expressly described as binding periods or dates, and/or which have not been expressly agreed upon with the Customer as binding, are in general non-binding.
  1. Phicomm Europe GmbH reserves the right to provide partial deliveries and services and related billing, within a reasonable scope.
  1. If the Customer is in default of acceptance or culpably violates any other cooperation obligations, Phicomm Europe GmbH is entitled to demand compensation for losses incurred, including any extra expenses. The right to assert further claims or rights remains reserved.
  1. Insofar as the conditions of subsection (3) are met, the risk of an accidental loss or the accidental deterioration of the object of purchase shall pass to the Customer at the moment that he/she is in default of acceptance or his/her payment delayed.
  1. Phicomm Europe GmbH bears liability in accordance with the statutory provisions insofar as the underlying contract of purchase is a transaction for delivery at a fixed date as defined by Article 286 paragraph. 2 no. 4 BGB or Article 376 HGB [German Commercial Code]. The same holds to the extent that, in consequence of a delay in delivery caused by us, the Customer is entitled to enforce the claim that his/her interest in the further fulfillment of the agreement no longer exists.
  1. In case of delayed delivery, Phicomm Europe GmbH bears liability to the extent that the delay is due to an intentional or grossly negligent violation of contract for which Phicomm Europe GmbH is responsible. Any fault on the part of our representatives or vicarious agents is to be attributed to us. To the extent that the delayed delivery is occasioned by a grossly negligent breach of contract for which we are responsible, our liability is limited to the foreseeable and usually occurring damages.
  1. Liability pursuant to statutory provisions is also applicable insofar as the delay in delivery is based on a culpable violation of an essential contractual obligation on the part of Phicomm Europe GmbH; in this case, however, our liability is limited to the foreseeable and usually occurring damages.
  1. Force majeure as well as breakdowns occurring at Phicomm Europe GmbH and/or its suppliers, due to e.g. riots, rightful strikes, lock-outs or government orders, which temporarily hinder Phicomm Europe GmbH, without any fault on its part or any fault which can be attributed to it, from delivering the object of purchase by the agreed deadline, shall lead to an extension of the delivery deadlines and periods for the duration of the disruption caused by these circumstances. Should such a disruption lead to a delay in performance lasting more than four months, either party can rescind the contract. This shall not affect the Customer’s right to rescind the contract for any other reason.
  1. Any other legal rights of the Customer remain unaffected.
  • 5 Payment, default
  1. Payment of the purchase price must be made exclusively into the account specified in the invoice. The purchase price is due upon delivery of the purchase object. Unless otherwise agreed upon, any invoice is to be paid in full immediately upon receipt. A payment becomes valid only when Phicomm Europe GmbH has access to the funds.
  1. Failure to pay the debt on due date is considered as default in payment without a reminder being required. In case of late payment, and subject to the assertion of additional claims, default interest of 8 % p.a. above the applicable base interest rate will be incurred. The right to claim compensation for any other damage caused by default remains reserved.
  1. In case the Customer’s payment is delayed, and in case the credit limit agreed upon with the Customer is exceeded, Phicomm Europe GmbH is not bound to deliver further goods from further existing delivery contracts until the Customer brings due payments up to date. If the Customer has outstanding late payments, Phicomm Europe GmbH reserves the right to hold back otherwise agreed-upon or future deliveries, or optionally only to fulfill orders paid in advance.
  • 6 Reservation of ownership
  1. Phicomm Europe GmbH retains ownership of delivered goods until all claims from the delivery contract including those from follow-up purchase orders and renewal orders have been paid in full.
  1. As long as the ownership of the goods has not yet been transferred to him/her, the Customer is obliged to handle the reserved goods with the utmost care. In particular, the Customer is bound to insure them adequately at his/her own cost at the original value against damage by fire, water and theft. In the event that maintenance and inspection are required, they shall be carried out by the Customer in due time and at his/her expense. The Customer is not entitled to have the goods at his/her disposal for pledging or security transfer. As long as ownership has not yet been transferred to him/her, the Customer must notify Phicomm Europe GmbH immediately in writing if the reserved goods are seized or otherwise exposed to third party intervention. Insofar as the third party is not in a position to reimburse Phicomm Europe GmbH the court and extra-judicial costs of a litigation action pursuant to § 771 ZPO [Code of Civil Procedure], the Customer shall be liable for the deficient amount.
  1. The Customer is entitled to resell the reserved goods in the ordinary course of business. The Customer hereby assigns the claims of the buyer arising from the resale of the reserved goods to Phicomm Europe GmbH to the full amount of the end price invoiced (including VAT) agreed with Phicomm Europe GmbH. This assignment applies irrespective of whether the purchased goods are resold without having been processed or after their processing. The Customer shall remain entitled to collect the accounts receivable even after this assignment. Phicomm Europe GmbH’s entitlement to collect the receivables itself remains unaffected. However, Phicomm Europe GmbH will not collect these receivables, provided that the Customer fulfils his/her payment obligations arising from the collected profits, is not in default of payment, and, in particular, as long as no application has been made for the initiation of insolvency proceedings and payments have not been suspended.
  1. Any processing, transformation or alteration of the reserved goods by the Customer always occurs in the name and by order of Phicomm Europe GmbH. In such case the expectant rights of the Customer to the subject matter of the delivery shall continue in relation to the transformed object. As far as the reserved goods are processed together with other products not belonging to Phicomm Europe GmbH, Phicomm Europe GmbH acquires co-ownership of the new product in the proportion of the objective value of the reserved goods to the other processed products at the time of processing. The same applies to mixing. Insofar as the mixing occurs in such a way that the product of the Customer is to be regarded as the main product, it shall be deemed agreed that the Customer assigns proportionate co-ownership to Phicomm Europe GmbH and holds the resulting sole ownership or co- ownership in trust for Phicomm Europe GmbH. In order to secure the claims of Phicomm Europe GmbH against the Customer, the Customer assigns any claims that he/she acquires against a third party through the incorporation of the reserved goods in real property to Phicomm Europe GmbH; Phicomm Europe GmbH hereby accepts this assignment.
  1. If a Customer has not only temporarily suspended payments, if he/she files a petition for institution of insolvency proceedings against his/her assets or if insolvency proceedings are instituted against his/her assets, the Customer is obliged to return the reserved goods to Phicomm Europe GmbH upon its request. Furthermore, if the Customer acts in a way contrary to the contractual obligations, in particular in the event of a default in payment, the Customer is obliged to return the reserved goods to Phicomm Europe GmbH upon request. The taking back of the reserved goods only represents a withdrawal from contract if expressly declared so by Phicomm Europe GmbH. In these cases, the Customer is also obliged to immediately send Phicomm Europe GmbH a list of the remaining reserved goods, even if they have already been processed, together with a list of claims against third-party debtors.
  • 7 Warranty, notice of defects, recourse, right to recourse against manufacturer
  1. The Customer’s warranty rights are subject to the Customer’s due compliance with inspection and notification stipulations in accordance with § 377 HGB.
  1. If in spite of all due diligence, the delivered product should have a defect which was already present at the time of the transfer of risk, Phicomm Europe GmbH shall repair the product or deliver an undamaged replacement provided the claim was raised in due time. Phicomm Europe GmbH retains the right to decide whether repair or replacement shall take place. Phicomm Europe shall first be given the opportunity to perform remedial action within a reasonable time period. Recourse claims shall remain unaffected by the above regulation without restriction.
  1. If the remedial action is unsuccessful, the Customer may reduce the agreed price or withdraw from the contract. Remedial action is deemed to have failed if a defect cannot be remedied after at least two subsequent improvements or replacements, in technically complicated cases after at least three subsequent improvements or if another attempt of subsequent improvement or another replacement is unacceptable for the Customer or impossible, unacceptably delayed, or seriously and definitely refused. Components replaced during remedial action become the property of Phicomm Europe GmbH.
  1. Phicomm Europe GmbH bears liability in accordance with statutory provisions insofar as the Customer makes claims for damages that are based on intent or gross negligence of our representatives or auxiliaries. To the extent that no willful breach of contract can be imputed, liability for damages shall be limited to predictable, typical occurrences of damage.
  1. Phicomm Europe GmbH bears liability furthermore, insofar as we violate an essential contractual obligation; however, in this case, liability for damages is also limited to a predictable damage that might typically occur.
  1. Liability on account of culpable injury to life, limb or health shall not be affected; this shall also apply to mandatory liability as provided for in the product liability law.
  1. Unless otherwise provided for above, liability is excluded. In particular, Phicomm Europe GmbH bears no liability for slightly negligent violations of secondary contractual obligations.
  1. The Customer is obliged to give notice immediately and in writing to Phicomm Europe GmbH of damages for which Phicomm Europe GmbH is liable, and to permit Phicomm Europe GmbH to record them. This does not imply a change of the burden of proof to the disadvantage of the Customer.
  1. The limitation period for any claims arising from defects shall be 12 months, calculated from the time of the transfer of risk of the respective product.
  • 8 Total liability
  1. Liability for compensation that exceeds that foreseen in § 4 and 7 is excluded, irrespective of the legal nature of the claim being asserted. This shall apply in particular to claims for damages resulting from culpa in contrahendo, on the grounds of other breaches of obligation or of tortious claims for compensation for material damage pursuant to § 823 BGB.
  1. The liability limitations in Section 1 shall also apply in the event that the Customer demands the replacement of wasted expenses in place of performance, instead of asserting a claim for compensation of the loss.
  1. To the extent liability for compensation for damage is excluded or limited, this shall also apply with regard to the personal liability for compensation for damage of our employees, staff, representatives or other vicarious agents.
  • 9 Copyright

The Customer shall use the documents, drawings, user manuals, services and advice rendered by Phicomm Europe GmbH only for the designated purpose. The Customer is not entitled to permit access to said documentation to third parties, or to publish it in any form, without the consent of Phicomm Europe GmbH.

  • 10 Place of performance, passing of risk, delay in acceptance
  1. The place of performance for all deliveries and payments is the place of business of Phicomm Europe GmbH, if the Customer is a businessperson.
  1. In case the goods are shipped to the Customer at the Customer’s request, the risk of accidental loss or deterioration of the goods shall be transferred to the Customer upon shipment of the goods to the Customer, i.e. upon leaving the factory/warehouse of Phicomm Europe GmbH at the latest. This applies regardless of whether shipment is made from the place of performance and regardless of who bears the freight costs. If the Customer does not accept delivery of the goods in due time although they were offered to him, the risk is passed to the Customer upon notification pursuant to which the goods are ready for shipment.
  • 11 Place of jurisdiction, applicable law, place of performance
  1. The exclusive place of jurisdiction for all disputes arising between Phicomm Europe GmbH and its customers for whatever legal reason is Munich, provided that the Customer is a businessperson or legal person under public law, or does not have his/her place of business within Germany. Phicomm Europe GmbH shall, however, be entitled to bring a claim against the Customer at any other statutory place of jurisdiction.
  1. German law applies; UN purchase law is excluded.
  1. Where not otherwise stated in the order confirmation, our place of business is the place of performance.
  • 12 Data protection

Phicomm Europe GmbH maintains the right to electronically save and further process any data received from the Customer. Deletion of saved data requires written communication. The Customer allows and/or authorizes Phicomm Europe GmbH to use and transmit the customer data for purposes of contract fulfillment, particularly to credit institutions and contractual partners, but exclusively where this serves the fulfillment of the contract. All valid requirements for data protection will be observed by Phicomm Europe GmbH.

State: November 2012