GENERAL TERMS OF SALE OF FORMAGENDA GMBH REGARDING ITS ONLINE SALES
These General Terms of Sale shall apply to all online purchases by consumers in the web shop of formagenda GmbH, Hans-Sachs-Str. 12, 80469 Munich, Germany, ((“formagenda”, or “we”, “us”, “our”) under www.formagenda.com („Web Shop“).
Please read these General Terms of Sale carefully before you place an order in our Web Shop.
- SCOPE OF APPLICATION
1.1. The business relationship between us and you as customer (“Customer”, “you”, “your”), the following General Terms of Sale – as amended on the date of your order – shall exclusively apply. You may download the text of these General Terms of Sale to your computer here and print them.
1.2. You qualify as a consumer within the menaing of Section 13 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) in case and to the extent that the purpose of your order cannot be attributed and does not relate to your trade, business or profession. In contrast, you qualify as a business person within the meaning of Section 14 of the German Civil Code in case and to the extent you are acting in exercise of your trade, business or profession. In the latter case please contact us directly for placing an order with us.
- CONCLUSION OF CONTRACT
2.1. The presentation of our goods and the possibility to order them shall not constitute any legally binding offer but merely an invitation to place orders.
2.2. A Contract is formed as follows:
2.2.1. You may configure and/or select goods from our product range by placing them in your virtual shopping cart via clicking on the “Into the Shopping Cart” button.
2.2.2. You may review and modify the content of your shopping cart at any time by clicking onto the respective icon and/ or the word “Cart”.
2.2.3. In order to continue the ordering process, activate the “Continue to payment” button and enter your personal details.
2.2.4. By clicking the “Buy now” button you submit a binding offer for purchase of the product(s) listed in your shopping cart. Prior to submitting your order you will have the opportunity to verify your order and, if necessary, modify your order and/or abort the order process. Further, you may cancel the order process at any time by closing your internet browser. Your order can only be processed and submitted if you accept these General Terms of Sale by activating the respective checkbox making these General Terms of Sale an integral part of your purchase offer.
2.3. Once you submitted your order we will confirm receipt of your order by automatically generated email. The order confirmation summarizes your order but does not yet constitute the acceptance of your offer.
2.4. Please note that we are not obliged to accept your purchase offer. A contract is formed once we accept your offer by means of regular mail, email, fax, or in case we dispatch the ordered goods and confirm their shipment to you via a second email (shipping confirmation).
2.5. If your order is sent to you in more than one shipment, it may happen that you receive individual shipping confirmations for each shipment. In that case, each individual shipping confirmation materialises in a separate contract between you and us on the goods as specified in the respective shipping confirmation.
2.6. Please note that we sell goods only in quantities which correspond to the typical needs of an average household. This applies both to the number of products ordered within a single order and the placing of several orders for the same product where the individual orders comprise a quantity typical for a normal household.
2.7. In course of the order process we offer the opportunity to to create a personal customer account. To do so, please follow the respective instructions and requests. You must not disclose your personal password to third parties. If you have passed your password, you agree to accept responsibility for all activities that occur under your account or password, in particular for orders placed by a third party and claims arising out of third parties misuse..
- PRICES, COST OF SHIPMENT
3.1. The indicated prices are final prices, including VAT. The amount due and payable shall be the amount listed at the time the binding purchase order is submitted.
3.2. Shipping costs are not included which may vary depending on the type of shipment as well as the size and weight of the ordered goods. For more detailed information, please refer to the page “Shipping Costs”. In case of partial deliveries, shipment shall only be charged for the first partial delivery. If, however, partial deliveries are requested by the Customer, we will charge shipping costs for each partial delivery.
- DELIVERY, AVAILABILITY OF GOODS
4.1. We basically deliver our goods worldwide to the delivery address as indicated by you. We reserve the right, however, to reject – at our discretion – orders from specific countries outside the European Union. This shall particularly apply to regions in which successful delivery by our shipping service provider cannot be guaranteed or where – due to other reasons – shipping is only possible under unacceptable circumstances.
4.2. Within Germany, your order will be delivered within 1-2 working days, provided your ordered product is in stock. Public holidays have an effect on the time of delivery of your order and may result in delivery delays.
4.3. We use our best efforts to always have sufficient stock of the goods displayed in our Web Shop. However, please note that some products distributed by us will be specially compiled only after the receipt of an order and that individual components may have to be re-ordered from the manufacturer, where necessary. As a result, we cannot guarantee that our goods are available at all times. Should some goods temporarily not be available, we will inform you in our order confirmation – and indicate a new date of delivery, where necessary. If the delivery is delayed for more than two weeks, you are entitled to rescind the contract. Further, we are entitled to rescind the contract in such event and shall immediately reimburse any payments by you. In case the ordered product is permanently unavailable for delivery, we will desist from accepting the order. In this event, the contract is not formed.
4.4. In case force majeure (i.e., natural disasters, war, civil war, terror attacks) permanently prevents us from delivering and/or performing our services, our contractual obligation shall be excluded. Any amounts already paid shall be immediately reimbursed.
4.5. We are entitled to reject the performance of our services if – considering the contents of the Contract of Sale and the principles of good faith – such services would require disproportionate efforts in contrast to the Customer’s interest in the performance of the Contract of Sale. Any amount already paid shall be immediately reimbursed.
4.6. We are entitled to partial deliveries, provided that such partial delivery is acceptable under consideration of the parties’ interests. Shipment of partial deliveries shall be made at our risk. Upon receipt of each partial delivery, the risk in connection with the delivered goods shall be transferred to you. In case we are in delay and/or are unable to comply with remaining partial deliveries you are entitled to rescind the contract as a whole or demand damages for non-fulfilment of the overall obligation provided that you are not interested in the respective partial delivery.
5.1. Payment shall be made as prepayment by bank transfer to our account, by PayPal or credit card. By stating your credit card details you authorize us to collect the purchase price from the credit card account as indicated by you.
5.2. We reserve the right to reject the desired method of payment and to make the delivery of goods dependent on another method of payment. If you refuse the method of payment, we are entitled to rescind the contract.
5.3. The purchase price is immediately due and payable upon the conclusion of the contract. Your account will be debited according to your chosen method of payment at the earliest possible date.
5.4. In the event of payments via PayPal, you will automatically be re-directed to PayPal’s website. There, you may log in by entering your data and confirm the payment. Debiting is performed via credit card, direct debit, balances maintained with the bank and/or via Giropay – depending on the payment means of you have specified there. Payment with PayPal credit balances is also be possible. If you do not have a PayPal account you may create a PayPal account by following the instructions on the provider’s website.
5.5. If the invoiced amount is not paid within 30 days after the invoice date or – in the event of payment via PayPal –is rejected by your bank, you will be automatically in default. Without any further reminder, you shall be obliged to additionally pay statutory default interest in the amount of five (5) percentage points above the base rate published by the European Central Bank and additional damage caused by delay, in particular further debt recovery expenses. Our right to claim further damages shall remain unaffected.
- RETENTION OF TITLE
The delivered goods shall remain our property until full payment of all our claims against the Customer arising in connection with the Contract of Sale.
- RIGHT TO WITHDRAW
Information regarding your statutory right to withdraw your order can be found here.
8.1. If a product is already defective at the time of delivery (warranty claim) we will either replace it by a product free of defects or have it repaired at our expense in a good and professional manner (subsequent performance), at the discretion of the Customer. However, please note that no warranty claims exist if the product had the agreed characteristics at time of the transfer of risk. In particular, warranty claims shall not exist in the following cases:
- a) damages due to abuse or improper use of the product by the Customer,
- b) damages due to the fact that the goods were exposed to harmful external influences at the Customer’s site (in particular, extreme temperatures, humidity, extraordinary physical and electrical stress, voltage fluctuation, lightning bolt, static electricity, fire).
8.2. If the ‘subsequent performance’ desired by the Customer (delivery of a substitute product or repair) causes expenses that are – considering the price of the goods, the content of the contract and good faith – in a major disproportion to the Customer’s performance interest – whereas the value of the delivered products in a defect-free condition, the gravity of the defect and the question whether there is a possibility to resort to another form of subsequent performance without serious disadvantages to the Customer have to be particularly taken into account – the Customer’s warranty claim shall be limited to the other form of subsequent performance, respectively. Our right to reject this other form of subsequent performance under the aforementioned condition shall remain unaffected.
8.3. Both in the event of repair and replacement you agree to return the goods at our expense to the mentioned return address stating the order number. Prior to such return, the Customer shall remove from the goods any objects he/she assembled to them (e.g. light bulbs). We shall not be obliged to inspect the goods for any such objects which may have been added to the delivered product. We are not responsible for any loss or damage to such objects unless we could have easily recognized at the receipt of the product that such objects had been added to the returned product (in which case we will inform you and keep the object ready for collection; any costs arising in this connection shall be borne by you).
8.4. If you return the goods in order to get a substitute product, restitution of the defective product shall be made in accordance with the following:
If you were able to use the goods in a defect-free condition between delivery and return, you will have to reimburse the value related to your usage during that period. In the event of destruction or further deterioration of the goods (not caused by the defect) and/or if returning the goods between delivery and return of the goods is not possible (but not caused by such defect) you will have to compensate for any depreciation in value. This obligation to compensate for any depreciation in value shall not apply if deterioration was caused by using the goods in accordance with their intended use. Furthermore, this obligation to compensate for any depreciation in value shall not apply to the return of defective goods based on a warranty claim
- a) if the defect entitling to rescind the contract only became obvious during processing or re-designing the goods,
- b) if we are responsible for the deterioration or destruction and/or if the damage would have occurred at our side,
- c) if the deterioration or destruction occurred at your place even though you used the same due diligence you use in connection with your own matters.
8.5. In the event that the Customer violated his/her obligation to return the goods, the Customer’s liability for damages shall be in accordance with the corresponding statutory provisions.
8.6. In case the repair or the delivery of a substitute product is not leading to the contractually agreed condition of the goods within a reasonable period of time, you may rescind the contract or reduce the purchase price, at your choice.
8.7. Our legal warranty shall expire two years from the date of delivery of the goods. The warranty period shall begin with the receipt of the goods.
- RETURN OF GOODS
9.1. Please note that the goods manufactured and distributed by us are mainly composed of fragile components and thus have to be treated carefully. As a consequence, in the event of a return we recommend using the original packaging material whenever possible, even if the packaging material has been damaged when the package was opened for functional testing. You are not obliged to comply with this recommendation and your rights (particularly your right to withdraw the order) shall not be restricted and/or excluded by not doing so. By returning the goods in their original packaging material you may prevent, however, that we request you, where appropriate, to compensate for any depreciation in value regarding the missing original packaging material.
9.2. We kindly ask to use the attached, sufficiently stamped and addressed return label we enclose in the delivery of goods. This is the simplest and most economic method of shipment. You are not obliged to use this return method. However, if you chose an unnecessarily expensive method of shipment, you may be obliged, where appropriate, to reimburse the difference between the chosen shipment method and the more economic method of shipment.
10.1. In the event of minor negligence, we shall only be liable in case of a violation of material contractual duties; our liability shall be limited to the foreseeable damage. This restriction shall not apply in case of damage of life, body and health as well as in case of intent and gross negligence. We shall not be liable for any other damages due to minor negligence caused by defective goods. The regulations of the German Product Liability Act shall remain unaffected.
10.2. Our liability shall remain unaffected independently of our fault in the event of malicious concealment of a defect or in the event of a given guarantee.
10.3. We shall also be responsible in case the delivery becomes impossible during our culpable delay in delivery, unless such damage would also have occurred in the event of a timely delivery.
10.4. The restrictions pursuant to paragraphs 10.1 to 10.3 shall also apply to the benefit of formagenda’s legal representatives and vicarious agents if such claims are directly asserted against them.
10.5. Please note that the instructions on packaging materials and the manuals have to be observed. We shall not assume any liability in the event of any deviating application and/or handling.
- FINAL PROVISIONS
11.1. This contract between you and our company shall be exclusively subject to the laws of the Federal Republic of Germany under the express exclusion of the Convention on the International Sale of Goods (CISG). The obligatory provisions of the country where you have your habitual place of residence shall remain unaffected.
11.2. To the extent that – contrary to the information your provided in your order – you do not have a place of residence in the Federal Republic of Germany, you transfer your place of residence abroad after the conclusion of this contract, or your place of residence is unknown at the date of commencement of an action, place of jurisdiction for all disputes arising from or in connection with this contractual relationship shall be Munich, Germany.
11.3. Should individual provisions of this contract be or become ineffective or void in whole or in part, the validity of the remaining provisions shall not be affected. The parties agree to replace the ineffective or void provision by a provision, the economic purpose whereof comes preferably close to that of the invalid provision. The same shall apply in the event of any contractual loopholes.