Terms and conditions
General Terms and Conditions of the company Bergfreunde GmbH, Bahnhofstr. 26, 72138 Kirchentellinsfurt, hereinafter referred to as „Seller“.
§ 1 General and Application
(1) Following Terms and Conditions apply to every business relation between the Seller and the Customer in its current version at the time of order.
(2) Consumer means, in terms of these general terms and conditions, every natural person who enters into a legal transaction for a purpose that is outside its trade, business or profession. An Entrepreneur means, in terms of these general terms and conditions, a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of its trade, business or profession. Customers in terms of these terms and conditions are Consumers as well as Entrepreneurs.
(3) Individual contract agreements have priority ante these general terms and conditions. Diverging, conflicting or complementary general terms and conditions do not become a part of the contract, unless, their validity is expressly agreed.
§ 2 Conclusion of the contract
(1) The presentation of the goods on the website of the Seller does not constitute an offer in the legal sense, but only an invitation to the Customer to place an offer in the legal sense. The ordered goods can, due to different technical factors, slightly diverge from the goods shown on the Site, in particular this may lead to colour variations, as far as reasonable.
(2) The Customer can order on the Sellers website, by email, by fax or in writing. The Customer’s order is a binding offer of the ordered product.
(3) The Seller will immediately confirm the entrance of the Customer’s order by fax or email.
a) The conclusion of the contract in case of payment in advance pre cash / bank transfer, upon invoice or cash on delivery does not take place with the sole receipt confirmation, but only with the delivery of a separate email with the order confirmation or the delivery of the goods. The Seller is entitled to accept the contractual offer contained in the assignment within 5 working days. With products ordered on electronic way, the Seller is entitled to accept the order within 2 working days upon receipt. The acceptance takes place when the Seller delivers the ordered goods within this period.
b) In case of payment via credit card, debit card, iDeal, direct debit or PayPal, the contract is concluded when the Customer initiates the payment order.
(4) The complete, or partially, conclusion of the contract is subject to correct and punctual supply to the Seller. This is valid only for the case that the non-delivery is not the fault of the Seller, who has accurately negotiated a hedging transaction with the supplier. The Seller will undertake all reasonable strains to purchase the products. Any received form of payment will be otherwise immediately refunded. In case of non-availability or just partial availability of the goods the Customer is immediately informed.
(5) When the Customer orders on electronic way, the Seller stores the contract text and sends it to the Customer by email with the legally effective terms and conditions.
§ 3 Retention of title and rescission
(1) With Consumers the Seller reserves himself the property of the product up to the entire payment of the purchase price. With Entrepreneurs the Seller reserves himself the property of the product up to the entire settlement of debt from a current business relation.
(2) With behaviour contrary to the contract of the buyer, in particular with default, misstatements of the Customer about his credit rating or if insolvency proceedings are opened regarding the assets of the buyer, the Seller is entitled to withdraw from the contract and to demand the products back in case that the consideration has not been entirely or completely fulfilled.
(3) The Entrepreneur is entitled to resell the products in the regular course of the business. He transfers to the Seller all demands by the complete amount invoiced, which arise to the Entrepreneur by the resell to third parties. The Seller accepts the assignment. After the assignment the Entrepreneur is authorised for the collection of the demand. The Seller reserves himself to draw the demand independently, as soon as the Entrepreneur does not properly fulfil his payment obligation.
(4) The Seller commits himself to flout the entitled securities when required by the Customer when the realizable value of the securities of the Seller exceeds the demand to be protected about more than 10%. The choice of the securities to be flouted is incumbent upon the Seller.
§ 4 Prices
(1) The quoted price is binding. Prices include statutory Value Added Tax. Additionally incurred shipping costs are detailed in the shipping costs overview/delivery restrictions. Packaging costs are already included in this delivery costs.
(2) The Customer undertakes to pay the whole price within fourteen days after receipt of the order confirmation or the invoice by e-mail. The Customer comes to default after expiration of the deadline.
Should the Customer require "Purchase against invoice" as payment type, then the Customer shall, other than stated in stipulation 1, undertake to pay the invoice total in full within 10 days following receipt of the invoice. The Customer comes to default after expiration of the deadline.
(3) The Customer shall only be entitled to set off in case that his counterclaims are legally established, accepted or are not denied by the Seller. The right of the Customer to set off with contractual and other claims arose from the creation or execution of this contractual relationship shall remain hereby unaffected. The Customer can carry out a right of retention only if his counterclaim is based on the same contract relation.
§ 5 Payment terms
(1) Customers can choose from the payment options prepayment/bank transfer, direct debit, credit card, debit card, PayPal, invoice or cash on delivery. The Seller reserves the right to exclude certain terms of payment.
(2) In case of payment via PayPal, the Customer has to register under www.paypal.com. The terms and conditions of paypal.com [www.paypal.com] shall apply.
(3) In case of payment by cash on delivery, the Customer shall pay to the shipping company directly.
(4) In case of buying upon invoice, the Customer will be informed during the ordering process about the particular terms and conditions applicable, which must be expressly agreed.
§ 6 Delivery
(1) The Seller delivers only to the countries specified in the Shipping costs overview (delivery restrictions).
(2) The delivery time for deliveries shall be indicated on the respective offer site. The beginning of the delivery period shall be determined (depending on the selected payment method) under paragraph 3 to 5.
(3) In case of payment in advance pre cash / bank transfer or PayPal, the delivery period begins one day after placing the order. The payment period for all other payment types commences one day after placing the order.
(4) In case that the period begins or ends on a Saturday, Sunday or public holidays, that period shall then be postponed to the next working day.
(6) Concerning the subject to correct and punctual supply the Seller refers to § 2 (4) of these Terms and Conditions.
(7) The Seller is entitled to deliver in partial deliveries, taking into consideration that any conflicting interests of the Customer are not affected. In case a partial delivery, no additional costs will be originated for the Customer.
§ 7 Statutory right of withdrawal
(1) Information regarding the statutory right of withdrawal can be found in our Customer information.
(2) Further non-binding indications concerning return:
a) The Customer is requested to avoid damages and contamination and to return the goods to the Seller, if possible on their original packaging with all accessories and all packaging components. A protective packaging should be used if necessary. In case that the original packaging is no longer available, a suitable packaging should be provided for adequate protection against damages during transportation and in order to avoid indemnity claims based on damage due to faulty packaging.
b) The Customer may use the enclosed return stamp for the sending back. Alternatively, please send the goods back as a post-paid package to us. We will refund the cost of the postage, unless they are to be paid by you. In any case, the deposit slip should be well kept.
c) The conditions referred in paragraphs a) and b) are not a prerequisite for the effective exercise of the right of withdrawal.
§ 8 Voluntary contractual 30-day right of return
(1) Right of return for Consumers:
Consumer means, in terms of these general terms and conditions, every natural person who enters into a legal transaction for a purpose that is outside its trade, business or profession. In addition to the statutory right of withdrawal for Consumers, the Seller grants its Customers a voluntary 30-day right of return upon receipt of the goods, in accordance with following provisions: Customers may return the goods by sending them back within 30 days without giving any reason. The period begins upon receipt of the goods. To comply with the notice period, timely dispatch of the goods is sufficient. The return must be sent to:
Bergfreunde GmbH Peter-Schaufler-Straße 16 72108 Rottenburg
Consequences of return
In case of an effective returning both parties shall return the benefits already consumed and any eventual consumed revenue (e.g. interests). Should not be possible to return all or part of the benefits already consumed or revenues (e.g. benefits of use) or only in a deteriorated condition, the Customer shall pay compensation for the value of the goods to the Seller. Compensation shall be paid for the deterioration of the thing and for the consumed revenues as far as the revenues or the deterioration of the thing is caused by handling of the thing exceeding the examination of characteristics and functions. “Examination of the characteristics and functions” means testing and trying the respective goods as it would have been possible in a store. Goods suitable for delivery by parcel will be return at the Seller’s risk. Obligation to refund payments must be fulfilled within 14 days. The period shall begin for the Customer upon dispatch of the goods; for the Seller it shall begin with the receipt of the same. With regards to costs for returns we refer to § 8 (2) of these Terms and Conditions.
(2) Return costs
Where the contractual agreement includes a delivery to Germany or Austria, and the Customer makes use of his right of return in accordance with § 8 (1), he shall bear the costs of the return shipment if the delivered goods correspond to the ordered and if the price of the ordered goods does not exceed a total of EUR50.
Where the contractual agreement includes a delivery to other countries than stated in stipulation 1, the Customer shall, when making use of his right of return in accordance with § 8 (1), bear the costs for returns if the delivered goods correspond to the ordered goods.
(3) The current statutory right of withdrawal for the Customer shall not be affected by the compliance with the rules of an additional contractually agreed right of return, and remains unaffected thereby. Both the aforementioned right of withdrawal as well as other legal warranty rights remain unaffected by the above mentioned provisions regarding the voluntary contractual right of return.
§ 9 Passing of risk
(1) In case of Consumers, the risk of accidental loss and accidental deterioration of the sold product shall pass to the Consumer at the time of the handover of the goods to the Customer. This also applies in case of sending purchases.
(2) In case of Entrepreneurs, the risk of accidental loss and accidental deterioration of the sold product shall pass to the Entrepreneur once the goods have been given to the shipper, carrier or to the forwarding agent or company.
(3) This shall apply even if the Customer is in default of acceptance.
§ 10 Warranty
(1) The Customer has a statutory right of warranty, which is modified according to §§ 10, 11 from these General Terms and Conditions.
(2) The delivered products can slightly diverse from the products shown on the internet. § 2 (1) from these Terms and Conditions refers to it.
(3) In case of non-conformity of the goods the Customer is entitled to supplementary performance in the form of remedy of the defect or delivery of conforming goods. The Seller is entitled to disagree with the elected form of supplementary performance when this leads to excessive costs and remains other supplementary performance which does not considerate significant disadvantages for the Consumer. In case of agreements with the Entrepreneur, the Seller is entitled to choose by himself the form of remedy of supplementary performance or delivery.
(4) If the supplementary performance misses, the Customer is entitled to demand a reduction of the purchase price or to withdraw from the contract as well as to demand compensation. A withdraw from the contract is excluded – taking into consideration the interest of both parties – if the defect is irrelevant. Instead of demanding damages in lieu of performance, the Customer may demand reimbursement of the expenses, according to § 284 BGB (German Civil Code), which he has incurred in reasonable reliance on the receipt of performance, save where the purpose of the expenses would not have been achieved. In case of damage compensation in lieu of performance the Customer shall agree with the restrictions of liability § 9 (1) from these Terms and Conditions.
(5) Entrepreneurs shall inform the Seller about defects at the latest within two weeks after receiving the service; otherwise the enforcement of the warranty claim is excluded. To meet the deadline, timely mailing, or notice, shall suffice. §377 HGB (German Commercial Code) is valid for merchants.
(6) If the Customer is an Entrepreneur, only the product description of the manufacturer is valid as a description of the product. Public statements, targeting or advertising of the manufacturer show no stipulated description of the product.
(7) The warranty period for Consumers amounts two years from delivery of the product. Deviations of the warranty period for Entrepreneurs: A year from delivery of the product. The warranty period also amounts a year from delivery of the product in case of used goods. The one-year-old warranty period does not apply when the Seller is accusable of gross culpability or fraudulent intent, further not in case of personal injury, impairment to health and death of the Customer, in case of a guarantee as well as in case of a delivery recourse in accordance with §§ 478, 479 BGB (German Civil Code). The liability of the Seller according to the Product Liability Act remains unaffected.
(8) Differing from paragraph 7 the regular statutory limitation period shall apply when the Seller has fraudulently failed to disclose a defect.
(9) The Seller hands no guarantees in the legal sense over the Customer. Manufacturer's guarantees remain unaffected.
§ 11 Liability
(1) With slightly negligent breaches of duty the liability limits on, depending the kind of product, predictable, contractual, immediate average damages. This is also valid to slightly negligent breaches of duty of the statutory agents or assistant or agent of the Seller. The Seller is not liable for slightly negligent violation of inessential contractual obligations. However, the Seller is liable for the violation of the Customer’s essential contract obligated legal positions. Essential contract obligated legal positions are those which the contract has to grant to the Customer according to the subject matter and purposes of the contract. The Seller is further liable for the violation of liabilities whose fulfilment allows the proper realisation of the contract and in whose realisation the Customer shall trust.
(2) The preceding restrictions of liability do not concern Customer’s claims from guarantees and/or product liability. The restrictions of liability will not be applied in case of fraudulent intent, violation the essential contractual obligations nor if the Supplier is accusable of personal injury, impairment to health and death of the Customer.
(3) The Seller is only liable for the own contents of his online shop on the website. As far as access to other web pages by means of links is possible, the Seller is not responsible for the external content. The Seller does not embrace the external content. In case that the Seller is informed about illegal contents on external web pages, he will immediately block the access to those sites.
§ 12 Final Clause, arbitration
(1) This agreement shall be governed by the laws of the Federal Republic of Germany. Concerning Consumers who enter into the legal transaction for a purpose that is outside his trade, business or profession, these laws shall be insofar considered if this allowed protection were detracted through the Consumer’s usual residence mandatory regulations. The UN Convention on Contracts for the International Sale of Goods regulations shall not be applied. § 14 (12) TDSG (German Tele Services Data Protection Act) remains.
(2) If the client is a merchant, statutory juristic person or public law special legal estate, the jurisdiction for all litigations from this contract shall be the Court in which the Seller’s business location has its seat, provided that an exclusive jurisdiction is not given. The Seller is also entitled to sue the merchant at his residence or place of business Court. The competence remains unaffected due to an exclusive jurisdiction.
(3) We are obligated to inform you that the European Commission is providing a relevant online platform for so-called online dispute resolution. You can access this platform via the following link: https://ec.europa.eu/consumers/odr/. We are furthermore obligated in this context to provide you with our email address. The email address is the following: firstname.lastname@example.org.
(4) We always do our best to mutually resolve any disagreements with the customers that arise from exiting contracts. However we would like to point out that we are not obliged to take part in a consumer arbitration process (in accordance with VSBG) and also unfortunately don't offer participation in such a process to our customers.