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I.
General – Applicability
1. The following Delivery Conditions [hereinafter referred to as “our
Delivery Conditions”] shall apply to all contracts concluded between
us and the customer. We do not acknowledge provisions that conflict with
these conditions or customer provisions deviating herefrom, unless we
have expressly agreed to their effectiveness in writing. Our Delivery
Conditions shall also apply when we, knowing of conflicting customer provisions
or of customer provisions deviating form our conditions, make delivery
without reservation to the customer.
2. Our Delivery Conditions shall also apply to all future business transactions
with the customer within the context of its routine business activities.
II. Offer
1. Our offer is provisional insofar as the order confirmation does not
contain anything to the contrary or we have not otherwise explicitly agreed
in writing. Our offer applies only within the EU and Switzerland. A contract
shall first arise when we confirm an order in writing or perform on the
basis of the order.
2. We retain all copyrights and proprietary rights to diagrams, catalogues,
calculations, and other documents; they shall not be provided to third
parties without our express written approval.
III. Price – Payment Conditions
1. All prices are given in EURO. Our prices do not include statutory VAT.
Prices are those stated in the price list at order date.
2. Minimum order amount 150,00 €; our prices do not include packaging
and transportation costs; these costs are charged extra by general mailing
expenses.
3. Prefered payment methods: prepayment, credit card, (no payment made
by direct debit) and within Germany C.O.D. Bank transfer fees and foreign
bank transfers occur generally on the customers account.
4. We accept payment on invoice in predefined exceptions. All invoices
for performance of our contractual obligations shall be paid within 10
days of invoice receipt in EURO. If the customers’ payment is delayed,
we are entitled to charge the statutory interest of 8 % above current
prime rate (§ 288 II German Civil Code).
5. The customer is entitled to a set-off or assertion of a right of retention
or right to refuse acceptance of performance only when its counterclaims
are finally established, undisputed or accepted by us. The exercise of
a right of retention also requires that the customers’ counterclaim
be based upon the same contractual relationships.
IV. Delivery Time
1. Delivery dates or deadlines are non-binding information, to the extent
not otherwise expressly agreed upon in writing.
2. There is no delay in the statutory sense when delivery retardings are
caused by unforseeable events for which we are not responsible (for example,
malfunctions, strikes, lockouts, shortage of transport means, difficulties
in obtaining raw materials, governmental orders, or delivery delays by
our suppliers) or by force majeure. The agreed upon delivery deadline
shall be extended by the length of the impediment. If the impediment lasts
longer than two months both contracting parties are entitled after the
unsuccessful setting of a reasonable amount of time, to withdraw as to
the non-fulfilled portions of the contract.
3. We shall indemnify the customer for delivery delay only when the delivery
delay is caused by an intentional grossly negligent breach of the agreement.
This limitation of liability does not apply to the extent a commercial
Fixgeschäft (agreement with a specific deadline for performance)
within the meaning of § 376 German Commercial Code was agreed upon
or when the customer, because of a delay for which we are responsible,
can assert that it is no longer interested in fulfillment of the contract.
4. For cases in number IV.3, our liability is limited to foreseeable,
typically arising damages, except when the delivery delay was caused by
an intentional breach of the contract.
5. In the event the customer defaults on acceptance or breaches another
of its duties to cooperate, we are entitled to demand the damages we have
incurred, including any additional expenses. In such a case, the risk
of loss or deterioration of the goods also transfers to the customer,
at the point in time it defaulted on acceptance.
6. We are entitled to make partial deliveries.
V. Transfer of Risk
1. Upon delivery of the goods to the carrier, the risk transfers to the
customer.
2. We cover the transport with transport insurance. The costs are included
in the general mailing expenses
VI. Warranty
1. The customers’
warranty rights (claims for defects) require that the goods be inspected
promptly upon receipt and that a written notice regarding visible defects
be made immediately after the inspection and promptly after discovery
in the case of hidden defects (§§ 377,378 German Commercial
Code).
2. All of those parts that exhibit a material defect, may be replaced
by a new delivery. Protecting his rights, the customer has to send back
the defective item in its original packing: diva berlin, Münzstr.
16, D-10178 Berlin.
3. Claims for defects do not arise to the extent there are only insignificant
deviations in quality.
4. We are not liable for damages which have not been arisen at the delivered
good; particularly we are not liable for the customers’ loss of
profit or other pecuniary loss.
VII. Claims for Damage Compensation and Liability Based on other
Grounds
1. We are liable only for damages based on an intentional or grossly negligent
breach of duty or malice by us within the statutory provisions.
2. Further, we are also liable for damages that are caused by simple negligence
to the extent the negligence concerned to the breach of contractual obligations,
the fulfillment of which was of particular importance to achieving the
purpose of the contract (cardinal obligation). In this case liability
is limited to foreseeable, typically arising damages. For the rest our
liability is barred according to VI number 4.
3. Where our liability is excluded or limited, it also applies to the
personal liability of our employees, representatives and agents for whom
we are vicariously liable and our responsibility for their behavior.
VIII. Reservation of Title
1. We reserve title
to the delivered goods to ourselves until receipt of all payments due
arising from the business relationship with the customer. In the event
of conduct by the customer in violation of the contract, particularly
payment delay we are entitled to take back the delivered goods subsequent
to setting a reasonable deadline. Taking back the goods constitutes a
withdrawal from the contract. Withdrawal from the contract does not exclude
the assertion of claims for damage compensation against the customer.
After taking back the delivered goods, we are authorized to use them and
the proceeds from such use shall be set off against the customers’
liabilities – less reasonable use costs.
2. In the event of seizure or other third party interventions, the customer
must promptly inform us in writing thereof. The customer is liable for
court and out of court costs if a lawsuit becomes necessary pursuant to
§ 711 German Civil Procedure Code.
3. The customer is entitled to resell the delivered goods in the normal
course of business. The resell of our products via other online shops
is not permitted unless we have expressly agreed in writing.
IX. Data Protection
Customer
data is saved and processed in compliance with the Bundesdatenschutzgesetz
(BDSG) and Teledienstdatenschutzgesetz (TDDSG). We only retain personal
data for as long as is necessary for us to render a service you have requested
or to which you have given your consent, except where otherwise provided
by law (e.g. in connection with pending litigation). Your personal data
including delivery-, billing- and e-mail address will not be passed on
by us for use by third parties, unless we have to forward data to our
partners for information regarding order processing. In this case data
transfer is reduced to the minimum.
X.
Applicable Law – Venue – Place of Performance
1. The legal relationship
between the parties is exclusively governed by German law. To the extent
the customer is an entrepreneur venue shall lie in Berlin. We are entitled,
however, to sue the customer in the court where he is domiciled.
2. To the extent the customer is an entrepreneur and the order confirmation
does not otherwise provide, the place of performance is Berlin.
XI. Miscellaneous Provisions
1. If an individual provision of the purchase contract or our
Delivery Conditions is ineffective, the effectiveness of the other provisions
shall remain unaffected.
2. ChinChin handy fashion is not suited for children under 4 years of
age.
Stand 12.4.2004
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