1. General, Customers, Language
(1) All offers, sales contracts, deliveries and services made on the basis of orders by our customers (each, a „Customer“) through our online shop www.plankpad.com (the „Online Shop“) shall be governed by these general terms and conditions of sale (the „General Terms and Conditions“).
(2) The product offerings in the Online Shop are directed to both Consumers and Business Customers (as defined below), but in each case only to end-users. For the purpose of these General Terms and Conditions, (i) a „Consumer“ is any individual entering into the contract for a purpose not related to his or her business, trade or self-employed professional activity (Sec. 13 of the German Civil Code), and (ii) 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) of the German Civil Code).
(3) Standard business conditions of the Customer do not apply, regardless of whether or not we expressly object to them in a particular case.
(4) Our contracts with the Customer shall be made exclusively in the German or English language, in each case depending on whether the Customer makes the relevant purchase on our English language or on our German-language website. Therefore, if the order is made on our German website, exclusively the German version of these General Terms and Conditions shall be relevant. If the order is made on our English website, exclusively the English version of these General Terms and Conditions shall be relevant.
2. Conclusion of Contract
(1) Our offerings in the Online Shop are non-binding.
(2) By placing an order in the Online Shop, 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 (third) business day following the day of the offer.
(3) Without undue delay upon receipt of the order, we will send to the Customer by e-mail 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 (e-mail) acceptance of the order or by dispatching the product. The sales contract with the Customer shall not become effective until our acceptance.
(4) Any Customer, who is a Consumer, shall be entitled to revoke the offer and return the product in accordance with the cancellation and return policy as separately made available to the Customer on our website during the ordering process.
3. Prices and Payment
(1) Our prices include statutory VAT but are net of shipping costs. Any customs duties and similar public charges shall be borne by the Customer.
(2) Unless expressly otherwise agreed by us, all shipments by us shall require advance payment (to be made in the manner specified in our order form made available in the Online Shop).
(3) In the event that we have agreed to payment after delivery, our invoices shall be due and payable by the Customer within 10 business days upon receipt by the Customer of the product and the invoice.
(4) The Customer shall have no right of set-off or retention, except to the extent that the counterclaim has not been disputed by us or been determined by a final and binding decision.
4. Date of Dispatch of the Product, Sell off, Partial Delivery
(1) Any period for the dispatch of the product, specified by us at the time of the order or as otherwise mutually agreed upon, shall begin (a) upon receipt by us of the full purchase price (including VAT and shipping costs) if payment in advance has been agreed (b) upon conclusion of the sales contract if cash on delivery or payment after delivery has been agreed upon. The date of dispatch shall be such day on which the product is handed over by us to the carrier.
(2) Any time period for the dispatch of the product specified 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. Unless a time period or date of dispatch has been specified or agreed upon, we shall be required to dispatch the product within a period of (five) business days.
(3) Regardless of whether any product is indicated on the order form as „in stock“, we may sell such product at any time, provided that an agreed advance payment is not received by us within a period of (five) business days upon our acceptance of the order. In such case, we shall only be obligated to dispatch the product within the relevant time period (as agreed upon or specified by us) as long as stock lasts; otherwise, a three-week period shall apply.
(4) In the event that our supplier fails to deliver in a timely manner a product that has been indicated on the order form as „not in stock“ or has been sold off in accordance with subsection 3 above, any applicable period for dispatch shall be deemed to be extended until delivery is made by our supplier plus an additional period of three business days, but in no event by a period exceeding three weeks; provided, in each case, that
• our supplier's failure to timely supply the products are not a result of our fault or negligence and
• we have ordered the relevant product from the supplier prior to the conclusion of the sales contract (or, in case of subsection 3, the time of the sell-off) in such a timely manner that under normal circumstances a timely delivery could reasonably be expected.
In the event that the product is no longer available for a reason not attributable to us or cannot be timely delivered despite our timely order, we shall be entitled to terminate the sales contract. We shall without undue delay inform the Customer of the non-availability of the product and, in case of a termination, promptly reimburse the Customer any payments made to us.
(5) If the Customer has purchased, through the same order, several products that can be used separately, we may dispatch those products in separate deliveries, provided that we shall bear any additional shipping costs. The Customer’s statutory rights in relation to the timely and proper delivery shall not be affected thereby.
5. Type and Time of Shipment, Insurance, and Passing of Risk
(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.
(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 time (i. e. the time between the delivery by us to the carrier and the delivery to the Customer) specified by us shall therefore only be non-binding. Notwithstanding the foregoing, if, we have agreed to carry out any assembly or installation work, we shall timely complete such work and deliver the product to the Customer at the place and time that has been contractually agreed upon.
(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, if our obligation is limited to the dispatch of the product, such risk shall pass to the Customer upon delivery of the product by us to the carrier. If how¬ever, we have agreed to carry out any assembly or installation work at the customer’s place, the risk shall not pass to the customer until completion of such work and delivery to the customer.
(4) We shall insure the product against the usual risks of transportation at our cost and expense.
6. Retention of Title and Resale
(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.
(2) The Customer shall not be entitled to transfer title to any products delivered by us which are under retention of title (“Retained Goods“), except with our prior written consent. The Customer may, however, dispose of its legal position (so-called expectant) right in relation to the Retained Goods, provided that the third party is made aware of our title rights.
(3) The Customer shall treat the Retained Goods with due care.
(4) In the event that any third party, in particular in connection with any enforcement, seeks to take control of the Retained Goods, the Customer shall make aware the third party of our title right and shall without undue delay notify us in order to enable us to enforce our rights.
(5) In case of a payment default by the Customer, we may require the Customer to surrender the Retained Goods to us, as soon as we have terminated the contract.
(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 right to choose between any such remedies at our discretion, provided that such choice shall be made by us by written notice (by e-mail) within a period of three business days following receipt of the Customer’s notice of the defect.
(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 accord¬ance with applicable law; provided, how¬ever, that damage claims of the Customer shall be subject to the provisions contained in Section 9 of these General Terms and Conditions.
(3) The warranty period shall be two years upon delivery of the Product.
(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.
8. Intellectual Property Rights
(1) The Customer is granted the non-exclusive right to use any software delivered with the product for use in connection with the product.
(2) The Customer shall have no right to make copies of the software, except for the purpose to use the software pursuant to Section 8 (1) or for back-up purposes.
(3) The Customer may transfer the rights to the software to any third party only if at the same time title to the relevant product (in particular, a hardware product) is transferred to such third party and the Customer does not retain any copy whatsoever of the software.
(4) In no event shall we be required to make available the source code of the software.
(1) Our liability for late delivery shall, except in cases of willful misconduct or gross negligence, be limited to an amount equal to 15 % of the aggregate purchase price (including VAT).
(2) We shall not be liable (on whatever legal grounds) for damages which may not reasonably be foreseen, assuming a normal use of the product. Furthermore, our liability shall be excluded for damages resulting out of a loss of data to the extent that data recovery is not possible or impeded due to a failure to perform appropriate data back-up procedures. The foregoing limitations of liability shall not apply in cases of willful misconduct or gross negligence.
(3) The provisions of this Section 9 shall not apply with respect to our liability for guaranteed product specifications (within the meaning of Sec. 444 of the German Civil Code), personal injury or under the German Product Liability Act.
10. Data Protection
11. Applicable Law and Competent Courts
(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 law’s provisions. If the Customer is a Consumer and has his or her habitual residence in another country, the Customer shall, however, continue to have the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law applicable in the state of the Customer’s habitual residence.
(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) of the German Commercial Code) or is a legal entity or special fund organized under public law, the courts in Aachen, Germany shall have exclusive jurisdiction in respect of all disputes arising out of or in connection with the relevant contract. In all other cases, we or the Customer may file suit before any court of competent jurisdiction under applicable law.