Standard business term
§ 1 Basic provisions
(1) The following business terms are applicable to all the contracts, which you conclude with us as a supplier (B.Komets) via the www.benkomets.com website. Unless otherwise agreed upon, the inclusion, if necessary, of your own conditions is ruled out.
(2) A ‘consumer’ in the sense of the following regulations is every natural person who concludes a legal transaction which, to an overwhelming extent, cannot be attributed to either his commercial or independent professional activities. The term ‘businessman’ refers to every natural person, legal person or legally responsible partnership that concludes a legal transaction in pursuance of his/its independent professional or commercial activity.
§ 2 Conclusion of the contract
(1) The subject-matter of the contract is the selling of products.
(2) We sell the product under our own name on behalf of others, i.e. for an external party that owns the product in question. In this regard, we play the role of a partial or total commission agent. In spite of that, we are a contractual partner who enjoys all the respective rights and is subject to all the respective responsibilities.
(3) Our offers on the website are non-binding and are not a binding offer to conclude a contract.
(4) You can use the online shopping cart system to place a binding offer of purchase (order).
Here, the goods meant for purchase are stored in the ‘Shopping cart’. You can use the respective button in the navigation bar to call up the “shopping cart” and make changes at any time. After the ‘check-out’ page has been called up and the respective personal data and payment and shipping conditions have been entered, all the order data is displayed again on the order overview page. Before the order is sent, you can re-check all the data, change it (which can also be done via the internet browser’s ‘back’ function) or cancel the purchase transaction.
When the order is placed using the “Place order in conjunction with a liability to pay” button, you are considered to have made a binding offer to us.
(5) The acceptance of the offer (and with it, the conclusion of the contract) takes place immediately after placing the order via a textual confirmation (e.g. email), in which you receive confirmation (order acknowledgement) regarding the execution of the order or the delivery of the products in question.
If you have not received any corresponding message within this deadline, you are no longer considered to be bound to your order. Under such circumstances, any services that have already been provided are restored without undue delay.
(6) You are not bound by your enquiries regarding the creation of an offer that have been conveyed to us. We supply you with a textual and binding offer (e.g. via e-mail), which you can accept within a period of 5 days.
(7) The execution of the order and the sending of all the details necessitated by the conclusion of the contract take place via e-mail, in a partially-automated manner. Consequently, you have to ensure that the e-mail address that you have deposited with us is the correct one, and that the receipt of the respective e-mails is guaranteed. In particular, you have to ensure that the respective e-mails are not blocked by a SPAM filter.
§ 3 Individually-designed products
(1) You are to use the on-line ordering system to provide us with the respective details, texts or files that are necessary for the customized designing of the products in question. This can also be done via e-mail, in which case it must be done in a prompt manner after the contract has been concluded. Any potential specifications that we may issue regarding file formats are to be borne in mind.
(2) You are obligated to ensure that you do not transfer data whose contents violate the rights of external parties (especially copyrights, rights to names and trademark rights) or break existing laws. You explicitly free us from any and all claims related to this matter that may be raised by external parties. This also applies to the costs associated with any legal representation that may become necessary in this regard.
(3) We do not check the transferred data for textual accuracy. In this respect, we assume no liability for errors.
(4) Insofar as we create texts, images, graphics and designs for you within the framework of the customized designing process, the said items are subject to copyright law.
Individual parts or complete contents may not be utilized, reproduced or modified unless we have explicitly authorized such a course of action.
Unless otherwise agreed upon, we assign to you a temporally unrestricted right to use the copyright-protected items that have been created for you. You are explicitly prohibited from making the protected items or parts thereof privately or commercially available to external parties in any manner whatsoever.
The transfer of the right of use is subject to the suspensive condition of full payment of the agreed-upon purchase price.
§ 4 Right of retention, reservation of proprietary rights
(1) You can only exercise a right of retention if the situation in question involves claims arising from the same contractual relationship.
(2) The goods remain our property until the purchase price is paid in full.
(3) If you are a businessman, the following conditions also apply:
a) We retain ownership of the goods until all the claims arising from the ongoing business relationship have been settled in full. The goods subject to retention of title may not be pledged or transferred by way of security before ownership of the said goods changes hands.
b) You can re-sell the goods within the framework of an orderly transaction. In this regard, you hereby cede all the claims amounting to the magnitude of the billing amount that accrue to you as a result of the re-selling operation to us, and we accept the cession. Furthermore, you are authorised to collect the claim in question. However, insofar as you do not discharge your payment obligations in an orderly fashion, we reserve the right to collect the claim ourselves.
c) In a situation involving the combination and amalgamation of the goods subject to retention of title, we acquire co-ownership of the newly-formed item. This co-ownership corresponds to the ratio that exists between the invoice value of the goods subject to retention of title and the other processed items at the time of processing.
d) If you make a request of this nature, we shall be obligated to release the securities that are due to us, to the extent that the realisable value of our securities exceeds the claim to be secured by more than 10%. We are responsible for selecting the securities to be released.
§ 5 Warranty
(1) The statutory warranty rights are applicable.
(2) If you are a businessman, the following shall apply, despite the contents of paragraph 1:
a) It is understood that the details provided by us and the product description provided by the manufacturer are the only things that represent the properties and condition of the product in question. Other advertisements, blurbs and statements issued by the manufacturer are not considered to be representative of the properties and condition of the said product.
b) You are obligated to exercise due diligence while promptly checking the goods for qualitative and quantitative deviations, and to inform us in writing of apparent defects within a period of 7 days after receipt of the goods. The term limit shall be considered to have been complied with if a timely dispatch was executed. This also applies to hidden defects that are detected at a later stage (from the time of discovery onwards). Warranty claims cannot be raised if the obligation to inspect and the obligation to give notice of defects are not fulfilled.
c) In case of defects, we provide guarantee through repair or replacement at our own discretion. If the defect is not removed, you can demand a reduction in the price or withdraw from the contract at your discretion. The defect removal is applicable after a failed second attempt, unless the circumstances prove otherwise, in particular due to the nature of the object and/or defect or other conditions. In case of repair, we must not bear the additional costs, which arise from the transfer of the item to a place other than the place of fulfilment, as far as the transfer does not correspond to the intended use of the item.
d) The warranty period amounts to a period of one year after delivery of the product. The shortened warranty period does not apply in situations involving culpably caused damages that can be attributed to us and which are associated with loss of life, injuries or health-related damages. Furthermore, it does not apply in situations involving damages suffered as a result of gross negligence or malicious intent, or in situations involving deceit or contribution claims as per §§ 478 and 479 of the BGB (German Civil Code).
§ 6 Liability
(1) We also provide unlimited liability for damage caused due to the violation of life, limb or health. Furthermore, we provide liability without limitation in all cases of intent and gross negligence, if a defect is fraudulently concealed, in case of assumption of guarantee for the procurement of the object of purchase and in all other legally regulated cases.
(2) The liability of defects within the scope of the implied warranty complies with the corresponding regulation in our customer information (Part II) and General Terms and Conditions (Part I).
(3) If the situation in question relates to important contractual obligations and involves minor negligence, our liability is limited to the foreseeable damages that are typical for the contract. The term ‘important contractual obligations’ refers to important obligations that follow from the nature of the contract and whose violation would jeopardise the fulfilment of the purpose of the contract. It also covers obligations that the contents of the contract impose on us in order to facilitate the fulfilment of the purpose of the contract and whose fulfilment makes it possible for the contract to be executed in an orderly manner, and compliance with which may regularly be taken for granted by you.
(4) When it comes to the violation of inessential contractual obligations, no liability shall be assumed if the situation in question involves violations of obligations associated with light negligence.
(5) The current state of the respective technology makes it impossible to guarantee that data transmission operations that use the internet will take place in an error-free manner characterised by permanent availability. In this respect, we cannot vouch for the constant and uninterrupted availability of the website and the service offered on the website.
§ 7 Choice of law, place of fulfilment, jurisdiction
(1) German law shall apply. This choice of law only applies to customers if it does not result in the revocation of the protection guaranteed by the mandatory provisions of the law of the country in which the respective customer’s usual place of residence is located (benefit-of-the-doubt principle).
(2) If you are not a consumer, but a businessman, a legal entity under public law or an institutional fund governed by public law, our place of business is the place of jurisdiction as well as the place of fulfilment for all services that follow from the business relationships that exist with us. The same condition applies to situations in which you are not associated with a general place of jurisdiction in Germany or the EU, as well as situations in which the place of residence or the usual place of residence is not known at the time of commencement of proceedings. This has no bearing on the capacity to call upon the court associated with another place of jurisdiction.
(3) The provisions of the UN Convention on Contracts for the International Sale of Goods are explicitly inapplicable.
II. Customer information
1. Identity of the seller
“Ben Komets Miniatures”
2. Information regarding the conclusion of the contract
The technical steps associated with the conclusion of the contract, the contract conclusion itself and the correction options are executed in accordance with § 2 of our standard business terms (part I.).
3. Contractual language, saving the text of the contract
3.1 Contract language shall be English.
3.2 The complete text of the contract is not saved with us. Before the order is sent, via the online – shopping cart system the contract data can be printed out or electronically saved using the browser’s print function. After the order is received by us, the order data, the legally-mandated details related to distance selling contracts and the standard business terms are re-sent to you via e-mail.
3.3 When it comes to enquiries that lie outside the context of the online shopping cart system, you receive all the contract data lying within the framework of a binding offer in an e-mail, which you can print out or save electronically.
4. Main features of the product or service
The main features of the product and/or service can be found in the product description and the supplementary details appearing on our website.
5. Prices and payment arrangements
5.1 The prices mentioned in the respective offers represent total prices, as do the shipping costs. They include all the price components, including all the incidental taxes.
5.2 The dispatch costs that are incurred are not included in the purchase price. They can be called up via the relevant button on our website or in the relevant item description, are separately specified during the ordering process and must be borne by you separately, unless a free delivery has been agreed upon.
5.3 The payment methods that are available to you are specified under a correspondingly-named button on our website, or in the respective product description.
5.4 Unless otherwise specified for the respective payment methods, the payment claims arising from the contract that has been concluded become payable immediately.
6. Delivery conditions
6.1 The delivery conditions, the delivery date and any potential delivery restrictions can be found under a correspondingly-named button on our website, or in the respective product description.
6.2 If you are a consumer, the following is statutorily regulated: The risk of the sold item accidentally being destroyed or degraded during shipping only passes over to you when the item in question is delivered, regardless of whether or not the shipping operation is insured. This condition does not apply if you have independently commissioned a transport company that has not been specified by us or a person who has otherwise been appointed to execute the shipping operation.
If you are a businessman, the delivery and shipping operations take place at your own risk.
7. Statutory warranty right
7.1 The liability for defects associated with our goods is geared towards the ‘Warranty’ provision in our standard business terms (part I).
7.2 As a user, you are requested to promptly check the product for completeness, visible defects and transport damage as soon as it is delivered, and promptly disclose your complaints to us and the shipping company in writing.Even if you do not comply with this request, it shall have no effect on your legal warranty claims.
General terms and conditions for sales contracts, concluded through the online shop at www.benkomets.com between
– „the offeror“ –
and the customers defined in Sec. 2 of these terms and conditions
– „the customer“ -.
§ 1 Area of Application, Definitions
(1) The business relationship between the offeror and the customer (as defined below) is governed exclusively by the following general terms and conditions in their currently relevant version upon the time of the customer’s order.. Standard business conditions of the Customer do not apply, except the offeror accepts them expressively in written form.
(2) The customer is „Consumer“ if he is 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). A „Business Customer“ is a Customer (whether 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) Only the german version of these general terms and conditions is legally relevant in any case. This english translation is only a special service offered to our customers without any legal relevance. The web site including the online shop is in english, as well as the confirmation of receipt and acceptance of the order.
§ 2 Conclusion of Contract
(1) The customer may choose from our non-binding offerings published in the Internet Shop and collect them in a virtual cart by using the button „add to cart“. By placing an order using the button „make purchase“ (which requires prior acceptance of these terms and conditions) he makes a binding offer to purchase the products collected at the virtual cart. In case the customer is a business customer his offer shall remain valid and binding for a period ending on the end of the third business day following the day of the offer.
(2) The offeror will send to the customer by automatic e-mail a confirmation of receipt, at which the customer’s order is shown once again and which the customer may print. The confirmation of receipt shall not constitute an acceptance of the order. The sales contract with the customer shall become effective upon the offeror’s acceptance, sent by a subsequent separate e-mail.
§ 3 Dispatch of the Product
(1) In the event that the product chosen by the customer upon placement of the order by the customer, is out of stock, the offeror will inform the customer without undue delay thereof. In the event that the product is out of stock permanently the offeror will not accept the customer’s offer. No contract will become effective in this event.
(2) In the event the relevant product is out of stock only temporarily, the offeror will inform the customer without any undue delay as well. If the product can not be dispatched over a period of more than two weeks the customer has the right to withdraw from the contract. The offeror has the right wo withdraw from the contract as well. He will refund payments on account to the customer immediately.
§ 4 Retention of Title
We retain legal title to any product supplied by us until the purchase price (including shipping costs) for such product has been fully paid.
§ 5 Prices and shipping costs
(1) All prices presented at the offeror’s web site do not include VAT pursuant to Sec. 19 of the German Value Added Tax Act. There has to be no separate entry of VAT.
(2) Shipping costs (including packaging, postal charges, and the like) will be specified at the order form and shall be borne by the customer. Customs duties and similar public charges shall be borne by the customer and will not be specified in advance.
(3) Shipment will be carried out postally. In the event that the customer is a consumer, the risk of shipment is taken by the offeror, otherwise the risk is taken by the customer.
(4) In the event, that the customer revokes his offer, he shall bear the costs of reshipment, in case the dispatched product is in accordance to the ordered one and the price of the reshipped product does not exceed 40,00 EUR or, in case the price exceeds this amount, he hasn’t fulfilled his consideration or an agreed part payment, unless the dispatched product is not in accordance to the ordered one.
(5) Customers, who do not live inside the EU, shall bear the costs of any customs duties arising from the reshipment in the event that the customer revokes his offer. The offeror does not refund any customs duties arised from the shipment to the customer and which he had to bear according to Sec. 5 para. 2 of this terms and conditions.
§ 6 Payments
(1) The customer may pay per bank transfer (in Europe only) or per Paypal (worldwide). The customer is obligated to pay in advance of shipping.
(2) Payment of purchasing price is due upon the effectiveness of the sales contract.
(3) The obligation of the customer to compensate for default interest does not preclude the offeror’s rights of claiming for further damages caused by default.
(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.
§ 7 Warranty
(1) The offeror is liable for defects of the delivered product according to the therefor relevant legal prescription, escpecially Sec. 434 ff. of the German Civil Code. The warranty period shall be twelve months upon delivery of the product if the customer is a business customer.
(2) An additional warranty for the dispatched products shall only be valid if it is expressly labeled in the confirmation of receipt.
(3) If the customer is a business customer, the offeror shall have the right to choose between repairing the defect or supplying another product (as ordered) which is free from defects at the offeror’s discretion. Such choice shall be made by the offeror by written notice (ie. „text form“, including by e-mail) within a period of three business days following receipt of the Customer’s notice of the defect. 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 otherwise (ii) within five business days from the day when the defect has been identified.
§ 8 Liability
(1) Damage claim by the customer is excluded. This does not apply in cases of damage claims by the customer from injuries of life, body, health or from violation of substantial contractual obligations as well as the liability for further injuries arising from intentional or grossly negligent breach of duty by the offeror, a legal representative or a person used to perform an obligation of the offeror. Substantial contractual obligations are the ones essential
(2) The offeror shall not be liable for damages, arising from simple negligent violation of substantial contractual obligations, which may not reasonably be foreseen and shall only be liable for damages typical for the contract. This does not apply to damage arising from injury to life, body or health.
(3) The limitations of the para. 1 and 2 apply to legal representatives or persons used to perform an obligation of the offeror in the event that damage claims are directly asserted against them.
(4) The provisions of this Section 8 shall not apply with respect to our liability under the German Product Liability Act.
§ 9 Revocation Instruction
The following right of revocation is valid only for customers who are consumers and is not valid for customers who are business customers.
Right of Revocation
You may declare the revocation of your contractual statement in text form (e.g. letter, email) or by returning the merchandise within a period of 14 days. The revocation does not have to contain any grounds. The revocation period commences the day following the receipt of this revocation instruction in text form, but not before receipt of the merchandise (in case of recurrent deliveries of similar merchandises not before receipt of the first part delivery) and not before the completion of our information duties pursuant to Art. 246 Sec. 2 in conjunction with Sec 1 para. 1 and 2 of the German Introductory Act to the Civil Code. The time-limit shall be deemed to be observed by the timely dispatch of the declaration of revocation or the return shipment. The revocation is to be addressed to:
“Ben Komets Miniatures”
Consequences of revocation
In case of a valid revocation, all mutually received performances as well as emoluments taken (e.g. interest), if applicable, are to be restituted by either side. If you are unable or partially unable to restitute the merchandise to us or can only restitute it in a deteriorated condition, then you have to insofar compensate for its value where applicable. This does not apply if the deterioration is exclusively due to examining the merchandise – as for instance in a retail store – or putting the merchandise to its intended use. Things that can be shipped by parcel are to be returned on our risk. Things that cannot be shipped by parcel will be picked up. You are obliged to bear the costs of the return shipment, if the merchandise delivered corresponds to the merchandise ordered, and if the price of the merchandise to be sent back does not exceed an amount of forty euros or if, where the price is higher, you have at the date of the revocation not yet rendered consideration or given a part payment. In all other cases, the return shipment for you is free of charge. All reimbursement obligations must be fulfilled within 30 days of the declaration of revocation.
End of revocation instruction
§ 10 Data Protection
(1) The offeror collects pesonal data in the context of the execution of the sales contract. The offeror acts in accordance with applicable law, especially the German Federal Act of Data Protection (Bundesdatenschutzgesetz) and the German Act of Tele-Media (Telemediengesetz). Without permission of the customer the offeror will only collect, process, or make use of personal data relating to the customer to the extent necessary for the purpose of the execution and implementation of the sales contract.
(3) Without permission of the customer the offeror will not make use of personal data relating to the customer for the purpose of sales-promotion, marketing research, or opinion research.
§ 11 Final Provisions
(1) Any contracts entered into between the offeror 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 laws provisions.
(2) If the Customer is a corporation, limited liability company, commercial partnership or otherwise operates a commercial business (Kaufmann within the meaning of Sec. 1 (1) of the German Commercial Code) or if the Customer is a legal entity or special fund organized under public law, the courts at the place of business of the offeror shall have exclusive jurisdiction in respect of all disputes arising out of or in connection with the relevant contract.
(3) In the event that single parts of this terms and conditions are legally void the contract remains applicable in all other parts. Applicable law, if existent, replaces the legally void parts. In the event that such replacement is an unreasonable hardship for one contract party, the contract in total turns legally void.