represented by Philipp André Hediger, Christian Grosse, Handelsregister Gelsenkirchen HRB 5849 shall be governed by these general terms and conditions of sale (the “General Terms and Conditions”).
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).
Standard business conditions of the Customer do not apply, regardless of whether or not we expressly object to them in a particular case.
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.
If the contract involves the sale of any kinds of software licenses, our specific terms and conditions regarding the distribution of software licenses shall apply instead of these General Terms and Conditions.
Conclusion of Contract
Our offerings in the Online Shop are non-binding.
By placing an order in the Online Shop, the Customer makes a binding offer towards Datacolor AG Europe 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.
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.
Right of withdrawal
Any Customer who is a Consumer shall be entitled to withdraw from 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.
Unless otherwise agreed, the right of withdrawal shall not exist for contracts for the supply of sealed computer software, if they were unsealed after delivery.
In the case of a contract for the supply of digital content that is not contained in a tangible medium and that is produced and made available in digital form (digital content), the right of withdrawal expires also if we began with the performance of the contract after the Customer
had expressly consented to us beginning with the performance of the contract prior to expiry of the withdrawal period, and
had acknowledged that by his consent, he would lose the right to withdraw from the contract upon the performance of the contract having commenced.
Prices and Payment
Our prices include statutory VAT, but are net of shipping costs. Any customs duties and similar public charges shall be borne by the Customer.
Payment for all products must be by Creditcards (Visa & Mastercard) and upfont payment.
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).
If the Customer is in default, he shall bear default interest. If the Customer is a Consumer, the interest rate shall be in the amount of 5% above the respective applicable basis interest rate, if the Customer is a Business Customer, the interest rate shall be in the amount of 9% above the respective applicable basis interest rate. The Customer’s obligation to pay default interest does not preclude the assertion on our part in respect of further damages caused by delay.
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.
Dispatch of the Product
Any date of dispatch communicated by us shall be only approximate, except if a fixed date of dispatch has been agreed upon.
Any time period relevant to determine the date of dispatch pursuant to this Section 4 (as specified by us when the order is made or as otherwise agreed upon) shall begin if advance payment has been agreed, upon receipt by us of the full purchase price (including VAT and shipping costs) upon the conclusion of the sales contract.
The date of dispatch shall be such day on which the product is handed over by us to the carrier.
Regardless of whether any product is indicated on the order form as “in stock”, we may sell such product at any time, provided that
the order form has included a notice as to the limited availability of the product or
an advance payment has been agreed upon and this payment amount is not received by us within a period of five business days upon our acceptance of the order.
In such cases, we shall only be obligated to dispatch the product within the time period agreed upon or indicated by us as long as stock lasts.
In the event that no date of dispatch has been specified or otherwise agreed upon or we are no longer required to deliver within any agreed time period pursuant to subsection 4, we shall be required to dispatch the product within a period of 30 days after the Relevant Date pursuant to subsection 1.
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 4 above, any applicable delivery period pursuant to this Section 5 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 of more than three weeks, provided that our supplier’s failure to timely supply the products is not a result of our fault or negligence and that we have without undue delay ordered the relevant products from the supplier.
In the event that the product is no longer available or cannot be timely delivered, for any of the reasons set out in Section 5 (6), we shall without undue delay inform the Customer thereof. If the product is no longer available from our suppliers within the foreseeable future, we shall be entitled to terminate the sales contract. In case of such termination, we shall without undue delay reimburse the Customer any payments which the Customer has made to us in respect of the order. The legal rights of the Customer resulting from late delivery shall not be affected by this provision; provided, however, that the Customer may claim damages only subject to the provisions of Section 10 of these General Terms and Conditions.
Partial deliveries of products included in the same order shall be permitted, provided that the products can be used separately and provided further that we shall bear any additional shipping costs caused thereby.
Shipment, Insurance and Passing of Risk
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.
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 times specified by us shall therefore only be non-binding estimates.
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, such risk shall pass to the Customer upon delivery of the product by us to the carrier.
We shall insure the product against the usual risks of transportation at our cost and expense.
Retention of Title and Resale
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.
The Customer shall not be entitled to resell any products delivered by us which are under retention of title, except with our prior written consent.
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.
Insofar, our liability for defects of the delivered product shall be governed by the applicable statutory provisions.
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 (in “text form”, including by telefax or by e-mail) within a period of three business days following receipt of the Customer’s notice of the defect. We may refuse to remedy a defective product in the manner requested by the Customer if such remedy would result in unreasonable costs.
If the remedy (supplementary performance) pursuant to Section 8 (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, however, that damage claims of the Customer shall be subject to the provisions contained in Section 10 of these General Terms and Conditions.
The warranty period shall be two years upon delivery of the Product if the Customer is a Consumer or otherwise twelve months upon delivery of the product.
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.
Intellectual Property Rights
The Customer is granted the non-exclusive right to use any software delivered with the product for use in connection with the product.
The Customer shall have no right to make copies of the software, except for the purpose to use the software pursuant to Section 9 (1) or for back-up purposes.
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.
In no event shall we be required to make available the source code of the software.
Claims of the Customer for damages are precluded. This excludes claims for damages of the Customer in case of death, personal injury or physical harm to the Customer or from the infringement of essential contractual obligations (cardinal obligations) as well as the liability for other damages which are based on intentional or gross negligent behaviour on our part or on the part of one of our legal representatives or vicarious agents. Essential contractual obligations are those whose fulfilment is necessary for the achievement of the aim of the contract.
In case of the infringement of essential contractual obligations our liability shall be limited to damages reasonably foreseeable and typical for this kind of contract if such damage was caused by simple negligent behaviour, unless it concerns claims for damages of the Customer from an injury of life, body or health.
The restrictions mentioned in Section 10 (1) and (2) shall also apply in favour of our legal representatives and vicarious agents if claims are asserted directly against them.
The provisions under the German Product Liability Act shall remain unaffected.
We may save and process any data relating to the Customer, to the extent necessary for the purpose of the execution and implementation of the sales contract and as long as we are required to keep such data in accordance with applicable law.
We shall have the right to submit personal data relating to the Customer to credit agencies, to the extent necessary for a credit check, subject, however, to the Customer’s consent in each individual case. We shall not make available any personal data of the Customer to other third parties without the express consent of the Customer, except to the extent that a disclosure is required under applicable law.
We shall not be permitted to collect, submit to any third party or otherwise process personal data of the Customer for any purpose other than those set forth in this Section 11.
Applicable Law and Competent Courts
The laws of the Federal Republic of Germany shall apply under exclusion of the UN Convention on the International Sale of Goods (CISG). When you have placed your order as Consumer and, at the time of your order, have your habitual residence in another country, the application of mandatory provisions of that country shall remain unaffected by the choice of law as stipulated under sentence 1.
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 Munich (Muenchen), 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.