Conditions of Use
Conditions of Use of Die Gestalten Verlag GmbH & Co KG for the Online Shop
§ 1 General
The following General Terms and Conditions of Business shall be valid for the entire business relationship between Die Gestalten Verlag GmbH & Co KG (“Shop”) and the purchasing person (“Orderer”) regarding the online-shop under the domain of http://shop.gestalten.com (“the “Site”). Orderer acknowledges this said general terms and conditions shall be legally binding for the actual purchase and for all purchases in future. Amendments and/or modifications to these terms and conditions shall not be binding or effective until Shop`s written approval is made. Orderer voluntarily waives his right to use and/or to make effective its own general terms and conditions of business; same shall under no circumstance become subject to contract because of Shop`s silence and/ or delivery. Every correspondence and/ or shipping of goods shall made to and/or through the address in the Site`s imprint or to and/ or through the following E-Mail address: email@example.com.
§ 2 Conclusion of Contract
All offers on this internet site are not binding and are without commitment. They have to be understood as an invitation to Orderer to make an offer (so called invitatio ad offerendum). In each case a valid contract shall only result and become effective by Shop`s written confirmation of the order through E-Mail, by mail or at the latest when Shop performs the order. With regard to an ordered product which is not set out in the confirmation order no sales contract, shall be deemed to have been closed with regard to.
§ 3 Consumer`s Right of Withdrawal
In the case that Orderer is a consumer (pursuant to § 13 BGB) it shall be entitled to withdraw from the contract. The right of withdrawal must be exercised in writing (E-Mail is sufficient) or by returning the item within 2 (two) weeks. In case that the value of ordered item is more than 40 (forty) EUR Shop will reimburse the costs of returning the item. Shop advises Orderer herewith that it might withhold the costs of decrease in value caused by usage of the item. There will be a separate information after each order on the conditions and procedures for exercising the right of withdrawal.
The right of withdrawal is excluded in agreements
- which deal with the delivery of goods, which as a result of their nature are not suited and/or suitable for return (i.e. e-books, downloads etc.);
- which deal with the delivery of newspapers and magazines ;
- which deal with the delivery of audio-only and/or audio-visual recordings and/or software, insofar as the wrapping and/or other protective covering of the applicable record and/or other applicable data carrier has been opened and/or otherwise disposed of; the immediately aforesaid shall also be applicable to any other goods or products to which audio-only and/or audio-visual recordings and/or software are added (i.e. included with such other goods), insofar as the wrapping and/or other protective covering of such other applicable goods and/or products shall have been opened and/or otherwise disposed of.
- which deal with the delivery of goods, which goods have been manufactured and/or made pursuant to the individual specifications of a client(s) (e.g. personal books);
Paragraph 312(d)(4) of the German Civil Code (“BGB”) is otherwise applicable
§ 4 Delivery / Consignment
- The item will be delivered from Shop to the address which Orderer provided in his order if not agreed otherwise. Any information in connection with the period required for delivery is without guarantee unless Shop has expressly assured a certain date of delivery to Orderer.
- In case that Shop`s contractor supplier does not supply Shop with the ordered item, Shop shall be entitled to withdraw from contract with Orderer. In this case, Shop will notify Orderer immediately that the ordered item is not available. Shop will reimburse any sums paid by the consumer to consumer immediately.
- Shop shall be entitled to make reasonable partial deliveries of ordered items in particular but not limited to the case where some item can only be delivered by Shop at a later period of time.
§ 5 Payment
- All prices are in EURO (€) / US Dollar ($) including added value tax (VAT).
- The amounts payable mentioned in the confirmation notice subject to paragraph § 2 is/ are due with the receipt of said confirmation.
- Payment can only be made through credit card, an invoice purchase is not possible.
- If Orderer defaults with payment, Shop is entitled to claim interest at a rate of 5 (five) per cent up to the base rate published by the European Central Bank (ECB) per anno. Shop shall however be entitled to claim higher damages caused by delay if same should be applicable.
- If Orderer defaults with payment of an order Shop is entitled to withhold further orders. Shop will not be in default of delivery in such event. It is not necessary that Shop expressly exercises announces its said right to so withhold orders.
§ 6 Shop`s Right of Revocation
- Shop is entitled to revoke contract in the event that given purchase price of an item is higher than Shop`s stated price because of wrong information by our contractor and that said contractor is not liable Shop for breach of contract.
- Shop shall also be entitled to revoke contract in the event that the correct purchase price of an item is higher than Shop`s stated price as a result of a computer error and that the applicable software manufacturer or the applicable software contractor is not liable for the incurred loss.
- Shop`s right to void the contract as a result of an error remains unaffected.
- In case of sub paragraph 1-3, Shop will inform Orderer immediately. Shop will also reimburse Orderer the paid purchased prices immediately.
§ 7 Packaging and Shipment
- Shop will package the item according to custom and usage.
- Shop is entitled to chose route and means of transport if not otherwise expressly agreed with Orderer.
- The minimum order is € 25,00 / $ 30.
- Shipment inside Germany shall cost € 5,00 flat fee, shipment for orders of € 50,00 and more shall be free.
- Shipment to the foreign European countries shall cost € 10,00 flat fee, shipment for orders of € 100,00 and more shall be free.
- Shipment inside the US shall be free
- No orders from outside the above listed territories (RoW)
§ 8 Transfer of Risk
- The risk of accidental loss, destruction or deterioration passes to Orderer at the beginning of the shipment and at the latest by transfer to carrier. This also applies for partial deliveries.
- Orderer must notify Shop if the delivery is fake or defective: If Orderer fails to do so it shall bear the risk of accidental loss, destruction or deterioration for the returning of the item.
§ 9 Reservation of Title
- The product delivered remains our property (reserved product) until full payment of all (including future) claims resulting from our contractual relationship with the Orderer; included in these claims are also conditional as well as claims which have been included by us in a current account (in German “Kontokorrent” pursuant to paragraph 355 of the German Commercial Code “HGB”). Extended reservation of title (verlängerter Eigentumsvorbehalt) is hereby granted to us so that any and all claims resulting from a resale are hereby transferred to us in the amount required to cover our own claim.
- Insurance and/or damage claims which the Orderer has in connection with loss or damage to the reserved product are hereby assigned to Shop in full.
- In the event that the Orderer should be in default of payment, it is obliged, upon Shop’s and/or its affilitiates demand, to allow us to repossess the reserved product still in Orderer’s possession, to provide Shop with a detailed list of the said product(s), to isolate the applicable product(s) and to return/transfer same to us.
§ 10 Liability for Defaults
- The item will be delivered with the characteristics and quality which are customary for manufacturer at the time of delivery, if this is reasonable for Orderer in consideration of Shop’s interests.
- A certain qualities shall only deemed to be assured if Shop and Orderer agrees same in writing.
- Shop is not liable if any delivered item which might infringe foreign copyrights or other foreign industrial property rights of third parties.
- Orderer is obliged to check the delivered item after receipt to verify if same is free from faults. Orderer is obliged to notify Shop in writing within 7 (seven) working days after receipt of the item if the item is apparently faulty. This written notice must contain the exact description of the default and the order number. To proof that notification shall have been sent in due time shall be the date of postmark or any other provable date specification.
- The commercial requirement to notify defects pursuant to paragraph §§ 377, 378 of the German Commercial Code “HGB”) remains unaffected.
- In case that a purchased item is faulty, Orderer shall be entitled to ask for supplementary/ complementary performance. If this supplementary/ complementary performance also fails, Orderer shall then be entitled to revoke the contract or claim damages. Diminution shall be excluded.
- Any further claims of Orderer shall be excluded if not otherwise mentioned below. Shop is therefore not liable for damage to other things than the applicable item, including but not limited to lost of profit or other financial losses Orderer might have.
- This limitation of liability shall apply also for our employees, representatives and any person employed by Shop in the performance its obligations.
- Notwithstanding the foregoing, this limitation shall not be applicable in case that the damage was caused by Shop or its employees, representatives or persons employed by Shop in performance of its obligations by an act of gross negligence or with intent. This limitations furthermore shall not be applicable for claims resulting from the German Product Liability Law “Produkthaftungsgesetz”.In case that Shop negligently breaches a duty which is essential for the contract the replacement liability of Shop for property damage shall be limited to losses which typically results from such damage.
§ 11 Right of Retention and Set-off
- Orderer can only enforce a right of retention if it results from the same contractual relationship. Orderer is only entitled to set off if the counter demand if accepted by Shop or if it has been recognized by declaratory judgement.
- If Orderer is a merchant pursuant to §§ 1 ff. of the German Commercial Code “HGB” any right of retention shall be excluded.
§ 12 Law Applicable
This agreement shall be construed under the laws of Germany applicable to agreements to be performed therein. The terms and conditions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not be applicable.
§ 13 Severability Clause
If any part of this conditions of use shall violate applicable laws and/or treaties or shall be declared invalid or unenforceable by a court of competent jurisdiction, then the balance of this conditions of use shall not be affected and parties hereto shall thereupon enter into good faith negotiations to appropriately replace the hereof through a provision which is the closest and in the spirit of the purpose of the present contract.
§ 14 Place of Performance, Venue
- For all rights and duties resulting of this business relationship our residence shall be place of performance.
- If Orderer is a merchant pursuing to §§ 1 ff. of the German Commercial Code “HGB”, the courts of our residence shall have jurisdiction over any controversies arising of the business relationship. Shop`s right to raise any claim against a merchant at any different venue shall remain unaffected.
- Shop is entitled to raise any claim at its residence against Orderer who is not merchant according to §§ 1 ff. of the German Commercial Code “HGB”, if Orderer does not have a general venue in the Federal Republic of Germany, or if it changes residence after conclusion of contract. Shop is entitled to raise any claim at its residence against Orderer who is not merchant according to §§ 1 ff. of the German Commercial Code “HGB” if the residence of Orderer is unknown at the time of first taking the claim judicially.