SMAKE GENERAL TERMS AND CONDITIONS
Terms and conditions for contracts concluded over the shop module
Smake IT GmbH
CEO: Thomas Drees
Erinstraße 28, 44575 Castrop-Rauxel
- hereinafter referred to as “SMAKE” –
and the customer
- hereinafter referred to as “the customer” – .
The customer can download these terms and conditions on the corresponding smake.com website and store them. Moreover, these terms and conditions will be sent to the customer by email after conclusion of the contract so that the he can save and print them.
§ 1 SCOPE OF APPLICATION, DEFINITIONS
(1) The following terms and conditions shall be applicable to consumers. For the business relationship between SMAKE and the customer, the following terms and conditions shall apply exclusively in the version that was valid at the time of placing the order, provided that the customer is an entrepreneur. Any deviating conditions of the customer – provided that he is an entrepreneur– shall not be acknowledged unless the provider expressly approves their validity in writing.
(2) The customer shall be deemed a consumer to the extent that the purpose of the ordered deliveries and performances cannot be attributed to his commercial or independent professional activity. Conversely, an entrepreneur is any natural person or legal entity or joint partnership with legal capacity who, upon conclusion of the contract, is acting in execution of its commercial or independent professional activity.
§ 2 SUBJECT MATTER OF THE CONTRACT/CONCLUSION OF CONTRACT
(1) All offers from Smake are non-binding and subject to change. Technical changes as well as changes in form, colour and/or weight are reserved within the scope of reasonableness.
(2) With the order of a commodity and/or achievement the customer explains obligatorily to want to acquire the ordered commodity and/or achievement and to recognize the AGBs. Orders of the customer are offers to conclude a corresponding contract. Smake reserves the right to accept or reject the offer within two weeks after receipt. The acceptance can be declared either expressly in writing or by beginning with the processing of the order and/or delivery of the goods to the customer.
(3) If the customer orders the commodity and/or achievement on electronic way, b2b will confirm the entrance of the order immediately. The confirmation of receipt does not represent a binding acceptance of the order. The confirmation of receipt can be combined with the declaration of acceptance.
(4) The conclusion of the contract takes place under the reservation of the correct and timely delivery by the suppliers of Smake. This is only valid in case Smake is not responsible for the non-delivery, especially when a congruent covering transaction is concluded with a supplier. The customer is informed immediately about the unavailability of the achievement. Any consideration already rendered will be refunded immediately.
(5) If the customer orders the goods and/or services electronically, the text of the contract will be saved by Smake and sent to the customer on request together with the present GTC by e-mail.
(6) Changes and additions to the contractual relationship must be in written form. If they do not satisfy this, then they are correct. This applies also to changes of this written form clause. If the contract was concluded electronically, changes or additions to the contract may initially be made in the same way.However, the amendment or supplement is only effective after it has been confirmed by the other contractual partner by mail, fax or e-mail or Smake fulfills the contract according to the amended or supplemented conditions.
§ 3 DELIVERY
(1) Unless otherwise contractually agreed, SMAKE shall deliver the ordered goods after receipt of payment to the address provided by the customer.
(2) Products in stock shall be dispatched within 3 weeks after conclusion of the contract, unless otherwise expressly agreed. If, in the case of an online order, the goods are marked as not available, SMAKE undertakes to deliver these goods as soon as possible. Statements made by SMAKE regarding the delivery time shall not be binding, unless they are exceptionally confirmed by SMAKE as binding.
(3) SMAKE reserves the right to make a partial delivery, if this appears advantageous for a speedy processing and the partial delivery is not unreasonable for the customer in exceptional cases. Costs arising from such partial deliveries shall not be charged to the customer.
§ 4 RESERVATION OF TITLE
SMAKE shall retain title to all goods delivered until full payment has been made; if the customer is a legal entity under public law, a special fund under public law or an entrepreneur acting in the exercise of his commercial or independent professional activity, also beyond this, from the current business relationship until full settlement of all claims to which the seller is entitled under the contract.
§ 5 PRICES AND SHIPPING COSTS
(1) All prices quoted on SMAKE are exclusive of the statutory value added tax applicable at the time.
(2) Please refer to the corresponding offer for the shipping costs.
§ 6 TERMS OF PAYMENT
(1) All prices are quoted in EURO excluding the statutory value added tax at the current rate.
(2) The price is due for payment immediately after receipt of the invoice.
(3) For details of payment, please refer to the corresponding sales offer.
(4) If the customer is in default with his payments, SMAKE shall be entitled to claim damages and/or withdraw from the contract in accordance with the statutory provisions.
(5) SMAKE shall always issue an invoice to the customer, which shall be handed over to him upon delivery or sent to him in writing.
§ 8 WARRANTY FOR MATERIAL DEFECTS
(1) In case of defects, the customer is entitled to the statutory warranty rights in accordance with the following provisions. If the contract concerns only a merchant, §§ 377 ff. HGB shall apply in addition.
(2) The customer shall notify SMAKE of defects within a warranty period of two years for new goods or within one year for used goods. If the customer is an entrepreneur, the warranty period for new products shall be one year. For used products, the warranty for entrepreneurs shall be excluded and shall be 12 months for consumers.
(3) In case of defects notified in due time, SMAKE shall be entitled to subsequent performance. If the subsequent performance fails, the customer shall be entitled to reduce the purchase price or to withdraw from the contract. In all other respects, the relevant statutory provisions shall apply.
(4) Guarantees of the manufacturers or suppliers of a product shall be passed on to the customer by the seller.
§ 9 ILLUSTRATIONS
The illustrations used to describe the goods may in no case represent the item originally offered. The sample pictures are used to illustrate the products. Depending on the screen and operating system, colours and sizes in particular may be displayed differently, whereby the description of the corresponding product is decisive.
§ 10 LIABILITY
(1) Any damage claims on part of the customer shall be excluded with the exception of claims for damages caused by the violation of life, body and health or from the violation of essential contractual obligations (cardinal obligation) as well as liability for other damages caused by deliberate or grossly negligent breach of obligations on part of SMAKE, his legal representatives or agents. Essential contractual obligations are obligations that are required for the proper execution of the contract.
(2) In the case of breach of essential contractual obligations, SMAKE shall only be liable for typical foreseeable damage if this is caused by simple negligence, unless the customer claims for damages from violation of life, body or health.
(3) The restrictions in par. 1 and 2 shall also be applicable in favour of the legal representatives and agents of the provider if claims are made directly against them.
(4) The provisions of the Product Liability Act shall remain unaffected.
§ 11 CONSUMER’S RIGHT OF REVOCATION
INSTRUCTIONS ON REVOCATION
Right of revocation
You have the right to revoke your contractual statement within a period of 14 days.
The period of revocation amounts to 14 days and shall commence on the day when you or a third party, other than the carrier and indicated by you, has acquired the material possession of the goods.
In order to execute your right of revocation, you must inform us on your decision to revoke this contract by sending a clear statement (e.g. fax, email or letter sent by post) on indicating your name, address and, if available, your phone number and email address. You can use the below model form of revocation which however is not obligatory.
A timely dispatch of the revocation shall be sufficient for compliance with the revocation period.
Consequences of revocation
In the event of a revocation, we are obliged to return all payments received by you including shipping costs (with the exception of additional costs resulting from the fact that you have chosen a shipping method other than the cheapest standard delivery offered by us) without delay and within 14 days from receipt of your notification on the revocation of this contract.
Unless agreed otherwise, we will use the same payment method for the repayment as used by you for the original transaction; in no event will you be charged with any fees for the repayment.
You are obliged to return or hand over the goods without delay and in any case within 14 days from the day you notify us on the revocation of this contract. This period is deemed to be observed if you dispatch the goods within a period of 14 days.
You will bear the direct cost of returning the goods.
You shall only be liable for any loss in value of the goods if this is due to handling other than what is necessary to check the condition, characteristics and functioning of the goods.
END OF INSTRUCTIONS ON REVOCATION
The right of revocation shall not be applicable, unless otherwise specified and according to § 312d par. 4 no. 1 German Civil Code, to distance selling contracts for the supply of goods which are manufactured according to customer’s specifications, tailor-made to personal needs, not suitable for return due to their condition or which are perishable or whose best before date has expired.
Download model form of revocation
§ 12 INFORMATION ON DATA PROCESSING
(1) Within the scope of processing their orders, SMAKE will collect data from the customer whereby the corresponding provisions of the Federal Data Protection Act and the Telemedia Act as well as the corresponding federal state law will be observed. Without approval of the customer, SMAKE will only collect, process or use his inventory and usage data insofar as they are needed for fulfilment of the contractual relationship and for usage and invoicing of teleservices.
(2) Without approval of the customer, SMAKE will not use any data of the customer for the purpose of advertising and market or opinion research.
(3) The customer can revoke his approval on storage of his data at any time. To do so, it shall be sufficient to inform the provider on his concern at the following address:
Smake IT GmbH
CEO: Thomas Drees
Erinstraße 28, 44575 Castrop-Rauxel
Phone: +49 (0) 2305 / 537 10 – 0
Fax: +49 (0) 2305 / 537 10 – 11
§ 13 PACKAGING ORDINANCE
SMAKE is connected to a nationwide waste disposal system according to § 6 par. 1 of the Packaging Ordinance.
§ 14 FINAL PROVISIONS
(1) The business relations between SMAKE and the customer are subject to the right of the Federal Republic of Germany. For consumers, this choice of law is only applicable insofar as the protection granted by mandatory provisions of the country in which the consumer has his habitual residence is not withdrawn.
(2) The contractual language shall be German.
(3) If the customer is merchant, legal entity under public law or special fund under public law, the place of jurisdiction shall be Bochum The same shall apply if the customer has no general place of jurisdiction in Germany or his domicile or habitual place of residence are unknown at the time the complaint is filed.
As of 24.04.2020