Terms & Conditions of Sale
Last updated: 2019-09-16
1.1. All offers, sales contracts, deliveries and services made on the basis of any orders of hardware or other products (a “Product”, jointly the “Products”) by customers (each, a „Customer“) of Pupil Labs GmbH, registered with the German Commercial Register of the district court AG Charlottenburg (registration number HRB 155541), Sanderstraße 28, 12047 Berlin (“Pupil Labs”, “We”) through our website https://www.pupil-labs.com (the „Website“) or otherwise shall be governed by these general terms and conditions of sale (the „ Terms and Conditions“).
1.2. The product offerings on the Website are directed to Business Customers and Consumers, but in each case only to end users. For the purpose of these Terms and Conditions a „Business Customer“ is an individual, company or partnership vested with legal capacity who enters into the relevant contract in the conduct of its business or its self-employed professional activity (Sec. 14 (1) BGB (German Civil Code)) whereas a Customer is a “Consumer” to the extent the purpose of the ordered deliveries cannot be predominantly attributed to its commercial or self-employed professional activity (Sec. 13 BGB (German Civil Code)).
1.3. Standard business conditions of the Customer do not apply, regardless of whether or not we expressly object to them in a particular case.
2.1. The subject of the contract is the Product with the features and dimensions of the relevant product description. Illustrations in the product description serve as general product information in purely pictorial form and make no claim to completeness and/or correctness.
2.2. In order to use the Product with all its functions, the Customer must install the (Pupil) Invisible Companion App or the Neon Companion App respectively and agree to the terms of use applicable to it.
3.1. Offerings on the Website are non-binding.
3.2. By placing an order on the Website by clicking the button “Submit” or via email, the Customer makes a binding offer to purchase the relevant Product. The offer will remain open for acceptance by us for a period ending at the end of the fifth business day following the day of the offer.
3.3. Without undue delay upon receipt of the order, we will send to the Customer by email a confirmation of receipt, which shall not constitute an acceptance of the order. The order shall be deemed to be accepted by us either upon subsequent (email) acceptance of the order or, if the acceptance has not been declared via email, by dispatching the Product. The sales contract with the Customer shall not become effective until our acceptance.
3.4. Pupil Labs does not store the contract text including the Terms and Conditions valid at the time of the conclusion of the contract and can therefore not provide these texts to the Customer in this version after the conclusion of the contract. However, the Customer has the possibility to download the Terms and Conditions within the framework of the ordering process and to save them in a reproducible form.
4.1. Our prices exclude statutory VAT, and are net of shipping costs. Any customs duties and similar public charges shall be borne by the Customer. The shipping costs depend on the size and the weight of the ordered product(s), the shipping mode, and the country of delivery.
4.2. Payments are being settled by use of credit cards or by advanced payment via bank-transfer.
5.1. Any date of dispatch communicated by us shall be only approximate and may therefore be exceeded by up to two business days, except if a fixed date of dispatch has been agreed upon.
5.2. Any time period relevant to determine the date of dispatch pursuant to this Section 5 (as specified by us when the order is made or as otherwise agreed upon) shall begin (a) if advance payment has been agreed, upon receipt by us of the full purchase price (including VAT and shipping costs) or (b) if cash on delivery or payment after delivery has been agreed, upon the conclusion of the sales contract.
5.3. The date of dispatch shall be such day on which the product is handed over by us to the carrier.
6.1. Unless expressly otherwise agreed upon, we shall be free to determine the appropriate mode of shipment and to select the carrier at our reasonable discretion.
6.2. We shall only be obliged to properly and timely deliver the product to the carrier and shall not be responsible for any delays caused by the carrier. Any transit times specified by us shall therefore only be non-binding estimates.
6.3. If the Customer is a Consumer, the risk of accidental destruction, damage or loss of the delivered Product shall pass to the Customer upon delivery of the Product to the Customer or upon the Customer’s default of acceptance. In all other cases, such risk shall pass to the Customer upon delivery of the product by us to the carrier.
7.1. We retain legal title to any Product supplied by us until the purchase price (including VAT and shipping costs) for such Product has been fully paid.
7.2. In case of a payment default (Zahlungsverzug) by the Customer, we may require the Customer to surrender the retained goods to us, as soon as we have terminated the contract.
Consumers have a statutory right of withdrawal when concluding a distance contract, about which Pupil Labs informs in accordance with the statutory model below.
8.1. Instruction on withdrawal
Instructions on withdrawal
Right of withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the goods.
To exercise the right of withdrawal, you must inform us,
Pupil Labs GmbH Sanderstraße 28 12047 Berlin
Email address: info@pupil-labs.com
of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or email). You may use the model withdrawal form at the bottom of this page, but it is not obligatory. To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event no later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earliest.
You shall send back the goods or hand them over to us without undue delay and in any event no later than 14 days from the day on which you communicate your withdrawal from this contract to us. The deadline is met if you send back the goods before the period of 14 days has expired.
You will have to bear the direct cost of returning the goods.
You are only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.
End of instructions on withdrawal
8.2. Unless the parties have agreed otherwise, the right of withdrawal shall not apply to contracts for the delivery of goods which are non-prefabricated goods made on the basis of an individual choice of or decision by the consumer.
9.1. In the event of a defect of the delivered product, the Customer shall be entitled to request from us to repair the defect or to supply another product (as ordered) which is free from defects. Notwithstanding the foregoing, if the Customer is a Business Customer, we shall have the rights to choose between any such remedies at our discretion, provided that such choice shall be made by us by written notice (in „text form“, including by telefax or by email) within a period of five business days following receipt of the Customer’s notice of the defect.
9.2. If remediation pursuant to subsection 1 fails or cannot reasonably be expected from the Customer or we refuse to remedy the defect, the Customer shall be entitled to terminate the sales contract, reduce the purchase price or claim damages or frustrated expenses, in each case in accordance with applicable law; provided, however, that damage claims of the Customer shall be subject to the provisions contained in Section 10 hereof.
9.3. The warranty shall be governed by the statutory warranty for defects, in particular Sections 434 et seqq. BGB (German Civil Code). Towards Business Costumers, the warranty period shall be twelve months upon delivery of the Product.
9.4. With regard to Business Customers only, the following shall apply: The Customer shall promptly upon delivery inspect the product with due care. The delivered product shall be deemed to be approved by the Customer unless the defect is notified to us (i) in case of any obvious defects within a period of five business days upon delivery or (ii) otherwise within five business days from the day when the defect has been identified.
10.1. We are unrestrictedly liable for damages that have been caused by deliberate intention or by gross negligence.
10.2. In cases of slight negligence, we are only liable if we have infringed a fundamental duty and if the purpose of the contract is threatened thereby or if we have infringed duties that have to be fulfilled for the duly contract implementation and if the Customer generally relies on the fulfilment of these duties. In the aforementioned cases, we are only liable for foreseeable damages to the Business Customer at the time the respective service was performed.
10.3. In all other cases our liability, and towards Business Customers including our liability for consequential damage and lost profit, is excluded.
10.4. We will not be liable hereunder by reason of any failure to timely perform our duties hereunder due to an event beyond our reasonable control, including acts of God; acts of terrorism; civil unrest; war; fires; power cuts; epidemics.
10.5. If our liability is excluded or restricted, this also applies to the personal liability of our employees, representatives, and agents.
10.6. The aforementioned restrictions of liability do not apply to cases of damages to life, body, or health, to cases of warranting for the condition of a product, and to cases of fraudulent concealment of defects by us, our legal representatives or assistants in performance or under the German Product Liability Act.
10.7. Our liability for late delivery towards Business Customers shall, except in cases of wilful misconduct or gross negligence, be limited to an amount equal to 30 % of the aggregate purchase price (including VAT).
The European Commission provides a platform for an online settlement of disputes which can be accessed under https://ec.europa.eu/consumers/odr. Pupil Labs is neither obliged to take part in alternative dispute resolutions before a consumer dispute settlement commission or will do so voluntarily.
12.1. Any contracts entered into between us and the Customer shall be governed by the laws of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Goods (CISG), without prejudice to any mandatory conflict of laws provisions. If the Customer is a Consumer and has their habitual residence in another country, the Customer shall, however, continue to have the protection afforded to them by provisions that cannot be derogated from by agreement by virtue of the law applicable in the state of the Customer’s habitual residence.
12.2. If the Customer is a corporation, limited liability company or commercial partnership or otherwise operates a commercial business (Kaufmann within the meaning of Sec. 1 (1) BGB (German Commercial Code)) or is a legal entity or special fund organized under public law, the courts in Berlin, Germany, shall have exclusive jurisdiction in respect of all disputes arising out of or in connection with the relevant contract.
12.3. Should any provision of these Terms and Conditions be or become invalid, ineffective or unenforceable as a whole or in part, the validity, effectiveness and enforceability of the remaining provisions shall not be affected thereby. Any such invalid, ineffective or unenforceable provisions shall be deemed replaced by statutory provisions. As far as this would represent an unreasonable hardship for a contracting party, the Terms and Conditions as a whole become ineffective.
Model withdrawal form (complete and return this form only if you wish to withdraw from the contract.)
To
Pupil Labs GmbH
Sanderstraße 28
12047 Berlin
info@pupil-labs.com
I/we (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*) /for the provision of the following service (*) __________
Ordered on (*) / received on (*) ,
Name of consumer(s)
Address of consumer(s)
Signature of consumer(s) (only if this form is notified on paper) Date(*) Delete as appropriate.