General terms and conditions
General Terms and Conditions (22th May 2018)
Table of Contents
1. Scope of Application
2. Conclusion of the Contract
3. Right to Cancel
4. Prices and Payment Conditions
5. Shipment and Delivery Conditions
6. Reservation of Proprietary Rights
9. Special Conditions for the Processing of Goods According to Client's Specifications
10. Applicable Law
11. Place of Jurisdiction
12. Alternative Dispute Resolution
1) Scope of Application
1.1 These General Terms and Conditions of the company Elke Plastic GmbH (hereinafter referred to as "Seller”) shall apply to all contracts concluded between a consumer or a trader (hereinafter referred to as "Client”) and the Seller relating to all goods and/or services presented in the Seller's online shop. The inclusion of the Client’s own conditions is herewith objected to, unless other terms have been stipulated.
1.2 A consumer pursuant to these Terms and Conditions is any natural person concluding a legal transaction for a purpose attributed neither to a mainly commercial nor a self-employed occupational activity. A trader pursuant to these Terms and Conditions is any natural or legal person or partnership with legal capacity acting in the performance of a commercial or self-employed occupational activity when concluding a legal transaction.
2) Conclusion of the Contract
2.1 The product descriptions in the Seller’s online shop do not constitute binding offers on the part of the Seller, but are merely descriptions which allow the Client to submit a a binding offer.
2.2 The Client may submit the offer via the online order form integrated into the Seller's online shop. In doing so, after having placed the selected goods and/or services in the virtual basket and passed through the ordering process, and by clicking the button finalizing the order process, the Client submits a legally binding offer of contract with regard to the goods and/or services contained in the virtual basket. The Client may also submit his offer to the Seller by telephone, fax, e-mail or post.
2.3 The Seller may accept the Client’s offer within five days,
- by transferring a written order confirmation or an order confirmation in written form (fax or e-mail), insofar as receipt of order confirmation by the Client is decisive, or
- by delivering ordered goods to the Client, insofar as receipt of goods by the customer is decisive, or
- by requesting the Client to pay after placing his order.
The contract shall be concluded at the time when one of the aforementioned alternatives firstly occurs. Should the Seller not accept the Client's offer within the aforementioned period of time, this shall be deemed as rejecting the offer, with the effect that the Client is no longer bound by his statement of intent.
If the Client chooses “PayPal Express” as payment method, he also initiates a payment order to PayPal by clicking the button finalizing the order process. In this case, the Seller hereby declares his acceptance of the Client’s offer at the time when the Client initiates the payment transaction by clicking the button finalizing the ordering process.
2.5 In case of an order via the Seller’s online order form, the text of the contract will be stored by the Seller and will be sent to the Client in writing including these Terms and Conditions (for example via e-mail, fax or letter) after the Client has submitted his order. In addition, the text of the contract will be stored on the Seller's website and can be found by the Client via the password-protected customer account by entering the respective login information, provided that the Client has created a customer account in the Seller’s online shop prior to submitting his order.
2.6 Prior to submitting a binding order via the Seller’s online order form, the Client may recognize input errors by attentively reading the information displayed on the screen. Use of the enlargement function of the browser to enlarge the display on the screen may be an effective method for better recognizing input errors.
The Client can correct all the data entered via the usual keyboard and mouse function during the electronic ordering process, until he clicks the button finalizing the ordering process.
2.7 The German and the English language are exclusively available for the conclusion of the contract.
2.8 Order processing and contacting usually take place via e-mail and automated order processing. It is the Client’s responsibility to ensure that the e-mail address he provides for the order processing is accurate so that e-mails sent by the Seller can be received at this address. Particularly, it is the Client`s responsibility, if SPAM filters are used, to ensure that all e-mails sent by the Seller or by third parties commissioned by the Seller with the order processing can be delivered.
3) Right to Cancel
3.1 Consumers are entitled to the right to cancel.
3.2 Detailed information about the right to cancel is provided in the Seller’s instruction on cancellation.
3.3 The right to cancel does not apply to consumers who are not nationals of a member state of the European Union at the time of concluding the contract and whose exclusive domicile and delivery address are located outside the European Union at the time of concluding the contract.
4) Prices and Payment Conditions
4.1 Unless otherwise stated in the product descriptions, prices indicated are total prices and include the statutory value-added tax. Any possible additional delivery and dispatch costs are specified separately in the respective product description.
4.2 Payment can be made using one of the methods mentioned in the Seller’s online shop.
4.3 In case of delivery to countries outside the European Union, additional costs may be incurred in individual cases for which the Seller is not responsible and which have to be borne by the Client. This includes, for example, transfer fees charged by banking institutes (transfer charges, exchange fees) or import duties or taxes (customs). Such additional costs regarding money transfer may also be incurred, if the Client carries out the payment from a country outside the European Union, even if delivery is not made in a country outside the European Union .
4.4 If prepayment by bank transfer has been agreed upon, payment is due immediately after conclusion of the contract, unless the parties have arranged a later maturity date
4.5 If the payment method “purchase on account” is selected, the purchase price is due after the goods have been delivered and invoiced. In this case, the purchase price is to be paid within 30 (thirty) days from receipt of the invoice without deduction, unless otherwise agreed. The Seller reserves the right to offer the payment method “purchase on account” only up to a certain order volume, and he may refuse this payment method if the specified order volume is exceeded. In this case, the Seller will inform the Client in his payment information displayed in the online shop of a corresponding payment restriction. The Seller also reserves the right to carry out a creditworthiness check when the payment method “purchase on account” is selected, and he may reject this payment method in the event of a negative creditworthiness check.
4.7 If the payment method "immediate bank transfer" is selected, payment processing is carried out via the payment service provider SOFORT GmbH, Theresienhöhe 12,80339 Munich (hereinafter referred to as "IMMEDIATE"). In order to be able to pay the invoice amount via “immediate bank transfer,” the Client must have an online banking account with the PIN/TAN method that is activated for participation in “immediate bank transfer,” he must have the appropriate credentials during the payment process, and he must confirm the payment instruction to IMMEDIATE . The payment transaction will be executed immediately afterwards and the Client’s bank account debited accordingly. Further information on the payment method “immediate bank transfer” can be called up by the Client on the Internet at https://www.sofort.com/ger-DE/kaeufer/su/so-funktioniert-sofort-ueberweisung/.
5) Shipment and Delivery Conditions
5.1 Goods are generally delivered on dispatch route and to the delivery address indicated by the Client, unless agreed otherwise. In the case of an order placed via the Seller's online order form, the delivery address specified in the online order form shall be decisive. However, in case the Client selects the payment method PayPal, the delivery address deposited with PayPal at the date of payment shall be decisive.
5.2 Should the assigned transport company return the goods to the Seller, because delivery to the Client was not possible, the Client bears the costs for the unsuccessful dispatch. This shall not apply, if the Client exercises his right to cancel effectively, if the delivery cannot be made due to circumstances beyond the Client's control, or if he has been temporarily impeded from receiving the offered service, unless the Seller has notified the Client for a reasonable time in advance about the service.
5.3 In case the Client is a trader, the risk of accidental destruction and accidental deterioration of the sold goods shall be transferred to the Client upon delivery of the goods to the freight forwarder, carrier or other person or institution designated with the task of performing shipment. In case the Client is a consumer, the risk of accidental destruction and accidental deterioration of the sold goods shall in principle be transferred to the Client upon delivery of the goods to the Client or to an authorized recipient. Deviating from this, even in case the Client is a consumer, the risk of accidental destruction and accidental deterioration of the sold goods is transferred to the Client upon delivery of the goods to the freight forwarder, carrier or other person or institution designated with the task of performing shipment, if the Client has instructed the freight forwarder, carrier or other person or institution designated with the task of performing shipment to carry out the delivery of the goods and if the choice of this person or institution was not previously offered by the Seller.
5.4 The Seller reserves the right to withdraw from the contract in the event of incorrect or improper self-supply. This only applies if the Seller is not responsible for the non-supply and if he has concluded a concrete hedging transaction with the supplier. The Seller shall make all reasonable efforts to obtain the goods. In case of non-availability or partial availability of the goods he shall inform the Client and grant him immediately counterperformance.
5.5 Personal collection is not possible for logistical reasons.
6) Reservation of Proprietary Rights
If the Client is a consumer, the Seller retains title of ownership to the delivered goods until the purchase price owed has been paid in full.
6.1 If the Client is a trader, the Seller reserves title to the goods delivered until the fulfillment of all claims arising out of the current business relationship.
6.2 If the Client is a trader, he is entitled to resell the reserved goods in the course of regular business operations. All claims resulting from such course of business against a third party shall herewith be assigned in advance to the Seller in the amount of the respective invoice value (including VAT). This assignment of claims shall be valid regardless of whether the reserved goods are processed prior to or after resale or not. The Client remains entitled to collect the claims even after assignment. However, the Seller shall refrain from collecting the claims as long as the Client meets his payment obligations, he is not in default, and no application has been lodged to open insolvency proceedings.
Should the object of purchase be deficient, statutory provisions shall apply. Deviating therefrom, the following shall apply:
7.1 For traders,
- a marginal defect shall generally not constitute warranty claims defects,
- the Seller may choose the type of subsequent performance,
- for new goods, the limitation period for defects shall be one year from transfer of risk,
- for used goods, rights and claims for defects are generally excluded,
- the limitation period shall not recommence if a replacement delivery is carried out within the scope of liability for defects.
7.2 For consumers the limitation period regarding warranty claims for used goods shall be one year from delivery of goods to the Client except for the restrictions in the following section.
7.3 The aforementioned limitations of liability and the restrictions of limitation periods do not apply
- to a product, which was not used, in accordance with its usual application, for building construction and which was the cause of the building's defectiveness,
- to claims for damages and reimbursement of expenses by the Client.
- If the Seller has fraudulently concealed the defect.
7.4 Furthermore, for traders the statutory limitation periods for recourse claims pursuant to section 478 of the German Civil Code (BGB) remain unaffected.
7.5 If the Client is a businessperson pursuant to section 1 of the German Commercial Code (HGB) he has the commercial duty to examine the goods and notify the Seller of defects pursuant to section 377 HGB. Should the Client neglect the obligations of disclosure specified therein, the goods shall be deemed approved.
7.6 If the Client is a consumer, the forwarding agent has to be immediately notified of any obvious transport damages and the Seller has to be informed accordingly. Should the Client fail to comply therewith, this shall not affect his statutory or contractual claims for defects.
The Seller shall be liable to the Client for any contractual and quasi-contractual claims and for claims of liability in tort regarding damages and effort compensation as follows:
8.1 The Seller shall face unlimited liability regardless of the legal ground
- in case of intent or gross negligence,
- in case of injuries of life, body, or health resulting from intent or negligence,
- in case of a promise of guarantee, unless otherwise provided,
- in case of liability resulting from mandatory statutory provisions such as the product-liability-law.
8.2 If the Seller negligently infringes an essential contractual duty, the liability to pay damages shall be limited to the foreseeable, typically occurring damage, unless unlimited liability applies pursuant to the aforementioned Section. Essential significant contractual obligations are obligations the contract imposes on the Seller according to its content to meet the purpose of the contract and whose fulfillment is essential for the due and proper implementation of the contract and on the fulfillment of which the Client can regularly rely.
8.3 For the rest, the Seller’s liability is excluded.
8.4 The aforementioned provisions on liability apply also to the Seller’s liability regarding his legal representatives and vicarious agents.
9) Special Conditions for the Processing of Goods According to Client's Specifications
9.1 If, according to the content of the contract, the Seller is responsible for the delivery of the goods and also the processing of the goods in accordance with the Client’s specifications, the Client must provide the Seller with all content needed for processing such texts, images or graphics in the file formats, formatting, image and file sizes specified by the Seller and grant him the rights of use required for this purpose. The Client is solely responsible for the procurement and acquisition of rights to this content. The Client declares and accepts responsibility for the fact that he has the right to use the content provided to the Seller. In particular, he shall ensure that no third-party rights are infringed (in particular, copyrights, trademarks, and personal rights).
9.2 The Client shall indemnify the Seller from claims of third parties asserted against the Seller in connection with a violation of their rights by the Seller’s contractual use of the Client’s content. The Client shall also bear the reasonable costs of the necessary legal defense, including all court and lawyer's fees according to the statutory rate. This shall not apply if the Client is not responsible for the infringement. In the event of claims by third parties, the Client shall be obliged to provide the Seller promptly, truthfully, and completely with all information that is necessary for the verification of the claims asserted for a corresponding defense.
9.3 The Seller reserves the right to refuse processing orders, if the content provided by the Client for this purpose violates legal or official prohibitions or morality. This shall apply in particular to the provision of content that is anti-constitutional, racist, xenophobic, discriminatory, offensive, or youth-endangering, and/or if it glorifies violence.
10) Applicable Law
10.1 The law of the Federal Republic of Germany shall apply to all legal relationships between the parties under exclusion of the laws governing the international purchase of movable goods. For consumers, this choice of law applies only to the extent that the granted protection is not withdrawn by mandatory provisions of the law of the country in which the consumer has his habitual residence.
10.2 Furthermore, this choice of law regarding the right to cancel does not apply to consumers who are not nationals of a Member State of the European Union at the time of concluding the contract and whose exclusive domicile and delivery address are located outside of the European Union at the time of concluding the contract.
11) Place of Jurisdiction
If the Client is a businessman, a legal entity of public law, or a separate estate under public law with its seat in the territory of the Federal Republic of Germany, the Seller’s place of business shall be the sole place of jurisdiction for all legal disputes arising from this contract. If the Client is domiciled outside the territory of the Federal Republic of Germany, the Seller’s place of business shall be the sole place of jurisdiction for all legal disputes arising from this contract,provided that the contract or claims from the contract can be assigned to the Client’s professional or commercial activities. In any event however, regarding the aforementioned cases, the Seller is entitled to appeal to the court which has jurisdiction over the area where the Client’s place of business is located.
12) Alternative Dispute Resolution
12.1 The EU Commission provides on its website the following link to the ODR platform: https://ec.europa.eu/consumers/odr.
This platform shall be a point of entry for out-of-court resolutions of disputes arising from online sales and service contracts concluded between consumers and traders.
12.2 The Seller is not obliged to use ADR entities to resolve disputes with consumers, but he is in priniciple ready for this.