GENERAL TERMS OF SALE OF FORMAGENDA GMBH REGARDING ITS ONLINE SALES

 

These General Terms of Sale shall apply to all online purchases made by Consumers in formagenda GmbH‘s webshop, Hans-Sachs-Str. 12, 80469 Munich, Germany, under the internet address www.formagenda.com („Webshop“) (“formagenda”, or “we”, “us”, “our”).

 

Please read these General Terms of Sale carefully before you place an order in our webshop.

  1. SCOPE OF APPLICATION

1.1.  In the context of the business relationship between us and you as Consumer (“Customer” or “you”), the following General Terms of Sale – as amended on the date of your order – shall exclusively apply. You may download the text of these Terms of Sale to your computer here and print them.

1.2. To the extent that the purpose of your order cannot be attributed to your trade, business or profession (§ 13 BGB – German Civil Code) you are deemed to be a Consumer. On the other hand, you are deemed to be an entrepreneur if you are acting in exercise of your trade, business or profession when entering this purchase agreement (§ 14 BGB – German Civil Code). Please contact us directly if you want to place your orders as entrepreneur.

 

  1. CONCLUSION OF CONTRACT

 

2.1.     The presentation of our goods and granting the possibility to order them shall not constitute any binding offer on our part. Is shall only be considered as a request from our part to place a binding offer as regards the conclusion of a contract of sale.

 

2.2.     Contracts of sale shall come into existence as follows:

 

2.2.1.  You may configure and/or choose goods from our product range and place them via the “Into den Shopping Cart” button in your virtual shopping cart.

 

2.2.2. You may view and change the content of your shopping cart at any time by clicking onto the corresponding symbol 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 data.

 

2.2.4. By pressing the “Buy now” button you place a binding offer as regards the conclusion of a contract of sale in connection with the article(s) in your shopping cart. Prior to sending your order you will have once more the possibility to check out your order and, if necessary, change and/or discontinue it. You may discontinue the ordering process at any time by quitting your internet browser. Your order can only be processed and transmitted if you accept these General Terms of Sale by placing the appropriate checkmark and thus make them an integral part of your offer to purchase the products.

 

2.3.    Upon conclusion of the order process and sending your order we will confirm the receipt of your order by email. In this automatically generated acknowledgement of receipt your order details will be itemized once again. It only documents that we have received your order and does not constitute any acceptance of your offer.

 

2.4.    We shall not be obliged to accept your purchase offer. The conclusion of a contract shall only be deemed effective if we either accept your offer by sending an order confirmation via regular mail, email or fax or if we supply the ordered goods and confirm their shipment to you in a second email (shipping confirmation).

 

2.5.    If your order is sent to you in more than one package, it may happen that you receive individual shipping confirmations for each of the packages. In this case, each individual shipping confirmations materialises in a separate Contract of Sale between the parties in connection with the goods of the corresponding shipping confirmation.

 

2.6.    All our goods only sold in quantities commonly used in the average household. This refers both to the number of ordered goods within the framework of an individual order and the placement of several orders of the same goods in which each individual order comprises said average household quantities.

 

2.7.    You shall have the possibility to create your personal customer account within the framework of the ordering process. To do so, please follow the corresponding instructions and requests. You shall not be permitted to pass on the password of your customer account to third parties. If you have passed on your password, you shall be responsible for orders placed by a third party and the resulting claims if such third party placed orders via your customer account.

 

  1. PRICES, COST OF SHIPMENT

3.1. The quoted prices are final prices, including VAT. The amount due and payable shall be the amount listed at the time the binding purchase order is placed.

3.2. Costs of shipment are not included. Such costs depend on the type of shipment as well as the size and weight of the ordered goods. For more detailed information, please refer to “Costs of shipment. 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 the cost of such shipment for each partial delivery.

 

  1. DELIVERY, AVAILABILITY OF GOODS

4.1. In principle, we deliver our goods worldwide to the delivery address you forwarded us. We reserve the right, however, to reject – at our discretion – orders from determined 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, as a result, lead to delays in delivery.

4.3. Of course we use our best effort to always have sufficient store of the goods displayed in our webshop. We apologise for any inconvenience; please note, however, that part of the goods 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 about this fact in our order confirmation – and indicate a new date of delivery, where necessary. If the delivery is delayed for more than two weeks, you shall be entitled to withdraw from the contract. Otherwise, we shall also be entitled to rescind the contract in such event. Any payments already made by you in this connection shall be immediately reimbursed. Should the goods be permanently unavailable for delivery, we will desist from an acceptance declaration. In this event, the contract does not materialize.

4.4. Should force majeure (natural disasters, war, civil war, terror attacks) permanently prevent delivery and/or other services, our contractual service obligation shall be excluded. Any amounts already paid shall be immediately reimbursed.

4.5. We shall be permitted to reject the provision of services if – considering the contents of the Contract of Sale and acting in accordance with the principles of good faith – such services require expenses that are in major disproportion to the Customer’s interest as regards the performance of the Contract of Sale. Any amount already paid shall be immediately reimbursed.

4.6. We shall be entitled to partial deliveries, provided this is acceptable after having carefully weighted 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. To the extent that we are in delay with remaining partial performances and/or unable to comply with remaining partial performances you shall be 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 corresponding partial delivery.

 

  1. PAYMENT

5.1. Payment shall be made as prepayment by bank transfer to our account, by PayPal or credit card. By stating your credit card number in your order you allow us to collect the purchase price from the credit card account indicated in your order.

5.2. We reserve the right to reject the form of payment for which you opted and to make the delivery of goods conditional upon another form of payment. If you refuse to pay in accordance with the form of payment we opted for, you shall be entitled to rescind the contract.

5.3. Payment of the purchase price shall be immediately due and payable upon the conclusion of the contract. Your account will be debited according to your chosen form of payment by the earliest possible date.

5.4. In the event of payments via PayPal, you will automatically re-directed to PayPal’s website. There, you may log in by entering your data and confirm the corresponding 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 open such account by following the instructions on the provider’s webpage.

5.5. If the invoice amount is not paid within 30 days after the invoice date or – in the event of payment via PayPal –is rejected by the banking institution holding the account, 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) per cent above the base rate published by the European Central Bank and additional damage caused by delay, in particular further debt recovery expenses. If we are able to prove that we have suffered greater damage in connection with this default, we shall be entitled to assert such damage.

 

  1. RETENTION OF TITLE

 

The delivered goods shall remain in the ownership of our company until full payment of all our claims against the Customer arising in connection with the Contract of Sale has been made.

 

  1. RIGHT OF CANCELLATION

 

Information regarding your legal right to cancel the contract can be found hier/here.

 

  1. WARRANTY

8.1. If a product is already defective at delivery (warranty claim) we will either replace it by a flawless product or have it repaired at our expense in a good and workmanlike manner (subsequent performance), at the discretion of the Customer. The Customer is herewith informed, however, that no warranty claim exists 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 on the part of 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 the principles of good faith – in a major disproportion to the Customer’s performance interest– whereby the purchase object’s value in a defect-free condition, the importance of the defect and the question if there is a possibility to resort to any other 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 examine the goods if any such objects have been assembled. We shall not be responsible in the event that such objects get lost, unless we could easily recognize at the receipt of the product that such objects had been assembled (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 the usage you gave to them 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 the period of 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 according to 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, too,

c) If the deterioration of 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 legal provisions.

8.6. If repair or delivery of a substitute product are 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 option.

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.

 

  1. 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 though 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 of cancellation) 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 due to 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 pay us the difference with respect to the economic method of shipment.

 

  1. LIABILITY

10.1. In the event of minor negligence, we shall only be liable if we violated a main contractual obligation; our liability shall be limited to the foreseeable damages. This restriction shall not apply in the event of physical injury and hazards to life and health as well as in the event of intentional or grossly negligent breach of duty. 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 that a guarantee is given.

10.3. We shall also be responsible for a chance impossibility in connection with the delivery of the goods occurred during a delay caused on our part, 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.

 

  1. 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 UN-sales law. 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 of void in whole or in part, the validity of the remaining provisions shall not be affected hereby. 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.

 

Alternative Dispute Resolution in accordance with Art. 14 (1) ODR-VO and § 36 VSBG:

The european commission provides a platform for online dispute resolution (OS) which is accessible at http://ec.europa.eu/consumers/odr/. We are not obliged nor willing to participate in dispute settlement proceedings before a consumer arbitration board.

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