Terms of Service

Terms and Conditions, Online Shop

General Terms and Conditions of the online shop… (as of: …) § 1 Scope (1) These General Terms and Conditions (hereinafter referred to as “GTC”) apply to all contracts concluded between us (company [insert link to the imprint], address) and our customers via our online shop. In addition to the provisions of these GTC, statutory provisions apply. (2) Deviating, conflicting, or supplementary terms and conditions of the customer shall only become part of the contract if we have expressly agreed to their validity.

§ 2 Conclusion of Contract / Contract Language / Storage of Contract Text (1) The presentation or promotion of goods in our online shop does not constitute a binding offer to conclude a purchase contract. (2) In the online shop, the customer’s order is sent to us after clicking the “order with obligation to pay” button. The order constitutes a legally binding offer to which the customer is bound for [7] calendar days. Any right of revocation pursuant to § 3 remains unaffected thereby. (3) Upon receipt of the order by us, we will promptly confirm the receipt of the order to the customer by email. The order confirmation does not constitute acceptance of the contract offer unless acceptance is declared at the same time. (4) A contract between us and the customer is concluded by acceptance declaration via email or by delivery of the ordered goods. (5) The contract language available to the customer is exclusively German. (6) Before submitting the binding order in the online shop, there is the possibility to save the contract text. We do not ourselves store the contract text of the contract concluded with the customer. In addition, the customer will receive the contractual terms, including information about the ordered goods, including these GTC and the revocation policy, by email.

§ 3 Right of Revocation / Exclusion of the Right of Revocation If the customer concludes the purchase contract for purposes that cannot predominantly be attributed to either his commercial or his independent professional activity (“consumer”), the following right of revocation applies:

Revocation Policy Right of Revocation You have the right to revoke this contract within 14 days without giving any reason. The revocation period is 14 days from the day on which you or a third party designated by you, who is not the carrier, have taken possession of the goods. To exercise your right of revocation, you must inform us [name of the entrepreneur, address and, if available, telephone number, fax number, and email address] by means of a clear statement (e.g., a letter sent by post, fax or email) about your decision to revoke this contract. You can use the attached sample revocation form, which, however, is not mandatory. To comply with the revocation period, it is sufficient for you to send the notification of exercising the right of revocation before the expiry of the revocation period. Consequences of Revocation If you revoke this contract, we shall reimburse you for all payments we have received from you, including delivery costs (with the exception of additional costs resulting from your choice of a type of delivery other than the cheapest standard delivery offered by us), without undue delay and no later than 14 days from the day on which we received the notification of your revocation of this contract. We will use the same means of payment for this refund as you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged any fees for this refund. We may refuse the refund until we have received the goods back or until you have provided proof that you have returned the goods, whichever is earlier. You must return or hand over the goods to us or [insert the name and address of the person authorized by you to receive the goods], without undue delay and in any event no later than 14 days from the day on which you notify us of the revocation of this contract. The deadline is met if you send the goods before the expiry of the 14-day period. You shall bear the direct costs of returning the goods. You are only liable for any loss in value of the goods if this loss in value is due to handling of the goods that is not necessary for checking their condition, properties, and functionality.

Exclusion of the Right of Revocation The right of revocation does not apply to contracts for the delivery of goods that are not prefabricated and for the production of which an individual selection or determination by the consumer is decisive or which are clearly tailored to the personal needs of the consumer.

§ 4 Shipping Costs / Delivery Time / Availability (1) Deliveries are generally made at the expense of the customer unless otherwise agreed. An overview of the shipping costs can be found here [link]. In the event of revocation, the customer shall bear the direct costs of returning the goods. (2) The delivery time is approximately [5] working days, unless a different delivery time is indicated in our online shop or unless otherwise agreed. The delivery period begins with the conclusion of the contract. (3) If the goods are not available at the time of ordering, we will inform the customer immediately. If the product is permanently unavailable, we do not accept the customer’s contract offer, so that no contract is concluded. If the goods are temporarily unavailable, we will also inform the customer immediately.

§ 5 Prices and Payment Methods (1) The purchase prices in our online shop are gross prices including statutory value-added tax plus any shipping costs [link to shipping cost list]. The total price including VAT and shipping costs will be displayed to the customer on the order overview page before submitting the order. (2) The purchase price becomes due upon conclusion of the purchase contract. (3) The following payment methods are available to the customer: (4) The purchase price and the shipping costs must be paid no later than 2 weeks after receipt of the goods and our invoice.

§ 6 Retention of Title The delivered goods remain our property until full payment of the purchase price.

§ 7 Warranty The warranty for defects in quality or title of the delivered goods is governed by the applicable statutory provisions, in particular §§ 434 et seq. BGB, subject to the provisions of § 8.

§ 8 Liability (1) We shall be liable to the customer in accordance with the statutory provisions for damages and reimbursement of expenses in the event of culpable injury to life, body, or health as well as in cases of intent and gross negligence, fraudulent concealment of a defect or a guarantee assumed by us, as well as under the Product Liability Act. (2) Furthermore, we shall be liable for slight negligence in the event of a breach of a material contractual obligation. Material contractual obligations are those whose fulfilment is essential for the proper execution of the contract and on whose observance the customer regularly relies and may rely. In these cases, however, our liability is limited to compensation for foreseeable, typically occurring damage. (3) Otherwise, liability for damages and reimbursement of expenses – irrespective of the legal basis – is excluded. (4) The above provisions shall also apply in favour of our legal representatives and vicarious agents if claims are asserted directly against them.

§ 9 Applicable Law The law of the Federal Republic of Germany shall apply, excluding the UN Sales Convention. If the customer has placed the order as a consumer and has his habitual residence in another country at the time of the order, the application of mandatory laws of this country shall remain unaffected

1. The foregoing terms and conditions are primarily aimed at consumer transactions. Insofar as uniform terms and conditions are also intended to apply to business transactions, some additions are advisable, as additional regulations in favor of the online retailer are permissible in relation to entrepreneurs (e.g., choice of remedy in the area of subsequent performance, shortening of the warranty period, and agreement on jurisdiction. In commercial transactions, the warranty provisions should also refer to the commercial obligation to examine and give notice of defects pursuant to § 377 HGB.).
2. Even though it is unlikely that consumers will use terms and conditions of purchase, the online retailer may, as a precaution, use a permissible exclusion clause according to the opinion of the LG Bochum (judgment of December 9, 2009, 13 O 247/09).
3. In the case of internet auctions which are concluded by offer and acceptance (e.g., eBay) and not by auction according to § 156 BGB, the presentation of the goods and the acceptance of bids already constitute a legally binding offer by the online retailer and not merely – as provided in the model – a so-called invitation to offer (BGH, judgment of November 3, 2004, VIII ZR 375/03). The clause on the conclusion of the contract would have to be adjusted in such cases. It should also be ensured that, in the case of legally binding offers according to § 312i (1) sentence 1 no. 4 BGB, the consumer is provided with the contractual terms including the general terms and conditions in text form upon conclusion of the contract and thus upon submission of his declaration of acceptance (e.g., as a PDF).
4. According to Art. 246c No. 1 EGBGB, the customer must be informed about the individual technical steps leading to the conclusion of the contract. To keep the terms and conditions concise, it is advisable to provide this information via a separate tab in the online shop. At this point, the customer should also be informed about how input errors can be recognized and corrected before submitting the declaration of contract (Art. 246c No. 3 EGBGB).
5. The order button must also be clearly labeled with “order with obligation to pay” or a similarly clear formulation, as otherwise a purchase contract will not be concluded (§ 312j para. 3, 4 BGB). The formulation must explicitly indicate the obligation to pay. Accordingly, formulations such as “register” or “order” are not sufficient. If a free trial membership automatically leads to a paid membership, formulations such as “try now for free” (LG Munich, judgment of June 11, 2013, 33 O 12678/13) and “try now for free – then paid” (OLG Cologne, judgment of October 7, 2016, 6 U 48/16) are also inadmissible according to case law.
6. Section 308 No. 1 BGB must be observed here. Unreasonably long commitment periods are ineffective. The reasonableness of the period depends on the circumstances of the individual case, in particular the content and economic importance of the contract as well as the mutual interests. In everyday transactions, a maximum period of 14 days is often assumed. In order to avoid legal risks regarding terms and conditions, a commitment period of 7 calendar days is chosen here. This should be sufficient in the area of online trade – at least if the goods are available.
7. Cf. § 312i para. 1 No. 3 BGB.
8. According to § 312i para. 1 No. 2 BGB in conjunction with Art. 246c No. 4 EGBGB, the customer must be informed about the languages available for concluding the contract. At least if the broad public of German consumers is addressed, the terms and conditions (also) must be available in German, otherwise all provisions of the terms and conditions are ineffective due to lack of transparency and unfair disadvantage (cf. KG, judgment of April 8, 2016, 5 U 156/14).
9. The customer must also be informed about any storage of the contract text and whether it is accessible to him after conclusion of the contract (Art. 246c No. 2 EGBGB). Furthermore, according to § 312i para. 1 No. 4 BGB, the customer must be given the opportunity to access and save the (all) contract terms including the terms and conditions in text form at the time of conclusion of the contract (cf. MüKo, BGB, 2016, § 312i para. 98 ff.). In some cases, a closed compilation of the terms and conditions, the product-specific quality agreements, and other provisions is required. Therefore, the customer should be provided with the corresponding information summarized in a PDF attached to the declaration of acceptance. This also fulfills the obligation of §§ 312f para. 2 et seq. BGB, according to which the customer must receive confirmation of the contract content within a reasonable period after conclusion of the contract. In terms of content, the compilation of the contractual provisions should orientate itself towards the information obligations of Art. 246a § 1 EG-BGB.
10. It is recommended to highlight the cancellation policy with regard to transparency requirements by framing and/or bold print. Furthermore, it may be necessary to highlight the other mandatory information typographically (cf. Hoeren/Sieber/Holznagel, Multimedia Law, 44th ed. January 2017 Part 13.4 D. IV. 5. para. 216). Case law on this matter does not appear to exist to the best of our knowledge. In our opinion, highlighting all mandatory information in print does not contribute to better overview and would also lead to difficulties in distinguishing what exactly is meant by a delivery and performance specification within the meaning of Art. 246a § 1 No. 7 EGBGB (mandatory information). Therefore, only the cancellation policy has been highlighted by framing in this case. When formulating the cancellation policy, the design instructions of Annex 1 to Art. 246a § 1 para. 2 sentence 2 EGBGB must be strictly followed. Among other things, the formulations for service contracts differ from the formulation used here for purchase contracts. Adjustments are also necessary if goods ordered uniformly are delivered separately or in partial shipments, or if the seller voluntarily bears the return costs. Depending on the individual case, significant adjustments to the cancellation policy may be necessary (for further information on the new cancellation policy, see Vander, MMR 2015, p. 75). If the entrepreneur uses the statutory model cancellation policy, completes the form correctly, and transmits it to the consumer in text form, he fulfills his information obligations regarding the right of withdrawal (cf. Art. 246a para. 2 sentence 2 EGBGB). Errors by the legislator in drafting the model cancellation policy are then at the expense of the consumer, unless the entrepreneur deviates from the model. Transmission in text form according to § 126b BGB requires the correct completion of the model cancellation policy to be received by the consumer. The mere possibility of downloading is not sufficient for this purpose (ECJ, judgment of July 5, 2012, C-49/11). Furthermore, the consumer must be informed about the