General Terms and Conditions (AGB)
(as of August, 14th, 2018)
I. General, Customers, Language
(1) All offers, sales contracts, deliveries and services made on the basis of any orders by our customers (each, a „Customer“) through our online shop www. wunderlich.de (the „Online Shop“) and our catalogue shall be governed by these general terms and conditions of sale (the „General Terms and Conditions“).
(2) Our product offerings 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, (a) 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 (b) 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 in the language of the respective country depending on which website the Customer makes the relevant purchase. Therefore, if the order is made on our English website, exclusively the English version of these General Terms and Conditions shall be relevant.
(5) We reserve the right for technical and price changes, as well as errors.
II. Conclusion of Contract
(1) Our offerings in the Online Shop and catalogue are non-binding.
(2) By placing an order, 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.
III. 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, by credit card or PayPal (to be made in the manner specified in our order form made available in the Online Shop) or shall be paid cash on delivery, in each case upon receipt of an invoice. Upon the Customer’s request, to be made in the order form, we will deliver the product against cash payment in our store.
(3) In the event that we have agreed to payment after delivery, our invoices shall be due and payable by the Customer within 7 business days upon receipt 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.
IV. Dispatch of the Product
(1) Any date of dispatch communicated 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.
(2) 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 (a) if advance payment has been agreed, upon receipt by us of the full purchase price (including VAT and shipping costs) or (b) if cash on delivery or payment after delivery has been agreed, upon the conclusion of the sales contract.
(3) The date of dispatch shall be such day on which the product is handed over by us to the carrier.
(4) Regardless of whether any product is indicated on the order form as "in stock", we may sell such product at any time, provided that
a) the order form has included a notice as to the limited availability of the product or
b) 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.
(5) 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 three weeks after the Relevant Date pursuant to subsection 1.
(6) 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 4 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.
(7) In the event that the product is no longer available or cannot be timely delivered, for any of the reasons set out in subsection 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 IX of these General Terms and Conditions.
V. 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 times specified by us shall therefore only be non-binding estimates.
(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, such risk shall pass to the Customer upon delivery of the product by us to the carrier.
VI. 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 Consumer shall not be entitled to resell any products delivered by us which are under retention of title, except with our prior written consent.
(3) The Business Customer is entitled, to resell any products delivered by us within regular business, but Customer may neither pawn nor assign the goods by way of security. He retires already today all demands against the buyer from the reselling at us for our security. The customer is required to give wunderlich GmbH detailed information on these demands.
On customer`s request we undertake to release the securities to which we are entitled, as far as the realiseable value exceed the value of the claim to be secured by more than 20%.
(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 (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.
(2) If the remedy (supplementary performance) pursuant to Section VII (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 accordance with applicable law; provided, however, that damage claims of the Customer shall be subject to the provisions contained in Sec. IX of these General Terms and Conditions.
(3) 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.
(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.
VIII. 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 Sec. VIII (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 wilful misconduct or gross negligence, be limited to an amount equal to 10 % of the aggregate purchase price (including VAT).
(3) We shall not be liable (on whatever legal grounds) for damages which may not reasonably be foreseen, assuming a normal use of the product, e.g. damages in consequence of excessive use on- and offroad and during racing . Furthermore, our liability shall be excluded for damages resulting out of a loss of data if their 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 wilful misconduct or gross negligence, or – only for consumers – gross negligence.
(4) The provisions of this Sec. IX 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.
X. Data Protection
(1) 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.
(2) 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.
(3) 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 Sec. X.
XI. Notice in accordance with Sec. 36 Consumer Dispute Resolution Law (VSBG)
"We are prepared to participate in a dispute resolution process at the following consumer arbitration board:
Allgemeine Verbraucherschlichtungsstelle des Zentrums für Schlichtung e.V.
Straßburger Straße 8
77694 Kehl am Rhein
For the execution of the dispute resolution process, there is the option to use the online‐ dispute resolution platform (in short "OS‐platform") as a point of contact for consumers and employers who would like to resolve disputes arising from legal transactions completed online out of court on the following link: https://webgate.ec.europa.eu/odr."
XII. 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 laws provisions.
(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. I (1) of the German Commercial Code) or is a legal entity or special fund organized under public law, the courts in Sinzig/ Koblenz 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.