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General Terms and Conditions
Table of Contents
1. Scope
2. Placing an Order and Conclusion of Contract
3. Right of Withdrawal
4. Retention of Title
5. Warranty
6. Liability
7. Data Protection
8. Prices and Payment
9. Delivery Time
10. Shipping, Insurance and Transfer of Risk
11. Storage and Accessibility of the Contract Text
12. Applicable Law, Place of Jurisdiction and Final Provision
1. Scope
1.1. These General Terms and Conditions (“GTC”) shall apply exclusively to all contracts concluded between us, ScaleMonkey / Karsten Möbius, Käthe-Kollwitz-Weg 73, 89081 Ulm, Telephone: +49 (0)731 / 40390785, Email: [email protected] (hereinafter “we” or “ScaleMonkey”), and you (hereinafter also “Customer”), via the online shop indigo-bison-747143.hostingersite.com (hereinafter “Online Shop”).
1.2. By registering for the Online Shop, but at the latest when ordering goods via the Online Shop, the Customer agrees to the applicability of these GTC.
1.3. The range of goods in our Online Shop is aimed equally at consumers and entrepreneurs. For the purposes of these GTC, (I) a “consumer” is any natural person who concludes the contract for purposes that predominantly cannot be attributed to their commercial or self-employed professional activity (Section 13 German Civil Code (BGB)) and (II) an “entrepreneur” is a natural or legal person or a partnership with legal capacity who, when concluding the contract, acts in the exercise of their commercial or self-employed professional activity (Section 14 (1) BGB).
2. Placing an Order and Conclusion of Contract
The product offers in our Online Shop constitute a non-binding invitation to place a binding order for goods from ScaleMonkey. By ordering the goods by clicking a button such as “Buy” or “Order with obligation to pay” in the Online Shop, the Customer submits a binding offer to purchase the goods in the shopping cart. ScaleMonkey will confirm receipt of this order from the Customer without undue delay by email. This automatically generated confirmation of receipt does not constitute acceptance of the offer. The contract with ScaleMonkey is only concluded by separate order confirmation from ScaleMonkey by email or by delivery of the goods (acceptance); however, ScaleMonkey will in any case inform the Customer of acceptance of the offer within 5 business days; after expiry of this period, the Customer is no longer bound by their offer. Orders and delivery are only possible within the Federal Republic of Germany unless we have agreed otherwise with the Customer in writing.
3. Right of Withdrawal
3.1. Withdrawal policy
If the Customer is a consumer, they are entitled to withdraw from the contract in accordance with the following withdrawal policy:
Right of withdrawal
You have the right to withdraw from this contract within fourteen days without giving any reason.
The withdrawal period is fourteen days from the day
a) on which you or a third party named by you, who is not the carrier, have/has taken possession of the goods, if you have ordered one or more goods as part of a single order and the goods are delivered as a single shipment;
or
b) on which you or a third party named by you, who is not the carrier, have/has taken possession of the last goods, if you have ordered several goods as part of a single order and the goods are delivered separately;
or
c) on which you or a third party named by you, who is not the carrier, have/has taken possession of the last partial shipment or the last item, if you have ordered goods that are delivered in several partial shipments or items.
If several of the above alternatives apply, the withdrawal period shall only begin on the day on which you or a third party named by you, who is not the carrier, have/has taken possession of the last goods or last partial shipment or the last item.
To exercise your right of withdrawal, you must inform us (ScaleMonkey, Käthe-Kollwitz-Weg 73, 89081 Ulm, Telephone: +49 (0)731 / 40390785, Email: [email protected]) of your decision to withdraw from this contract by means of a clear statement (e.g. a letter sent by post, fax or email). You may use the attached model withdrawal form for this purpose, but this is not mandatory.
You may also complete and submit the model withdrawal form or another clear statement electronically on our website Withdrawal form. If you make use of this option, we will send you a confirmation of receipt of such a withdrawal without undue delay (e.g. by email).
To meet the withdrawal deadline, it is sufficient for you to send your notification of exercising the right of withdrawal before the withdrawal period expires.
Consequences of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including delivery costs (with the exception of the additional costs resulting from your choice of a type of delivery other than the least expensive standard delivery offered by us), without undue delay and at the latest within fourteen days from the day on which we received the notification of your withdrawal from this contract. For this reimbursement, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no event will you be charged any fees for this reimbursement. We may refuse reimbursement until we have received the goods back or until you have provided evidence that you have returned the goods, whichever is the earlier.
You must return or hand over the goods to us (ScaleMonkey, Käthe-Kollwitz-Weg 73, 89081 Ulm) without undue delay and in any event no later than fourteen days from the day on which you inform us of the withdrawal from this contract. The deadline is met if you send the goods before the period of fourteen days has expired. You shall bear the direct costs of returning the goods.
3.2. Exclusion of the right of withdrawal
The right of withdrawal does not apply to contracts
– for the supply 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;
– for the supply of goods that can spoil quickly or whose expiry date would be exceeded quickly;
3.3. Expiry of the right of withdrawal
The right of withdrawal expires prematurely for contracts
– for the supply of goods if, after delivery, they have been inseparably mixed with other goods due to their nature;
– for the supply of audio or video recordings or computer software in a sealed package if the seal has been removed after delivery.
4. Retention of Title
Until full payment has been made, the goods delivered to the Customer shall remain the property of ScaleMonkey (“goods subject to retention of title”). You may not sell or pledge these goods subject to retention of title to third parties and must handle them properly and with care. The Customer must notify us without undue delay upon becoming aware of any third-party access to the goods subject to retention of title. The Customer shall be liable for all costs incurred in lifting such access, in particular by filing a third-party objection action, insofar as reimbursement of the costs cannot be obtained from the respective third party.
5. Warranty
5.1. There is a statutory warranty right for defects for the purchased goods.
5.2. If the delivered goods are defective and the Customer is an entrepreneur, we may choose between remedying the defect or delivering a defect-free item. Our choice may only be made by notification in text form (also by fax or email) to the Customer within three business days after notification of the defect.
5.3. If the Customer is a consumer, their claims due to defects in the goods shall become time-barred in accordance with the statutory provisions. If the Customer is an entrepreneur, the limitation period for the Customer’s claims due to defects in new goods and in used goods is twelve months from delivery of the defective goods. Deviating from this, the statutory limitation provisions shall apply insofar as ScaleMonkey is culpable of fraudulent intent, intent or gross negligence in view of the defect.
5.4. The following applies only to entrepreneurs: The Customer must inspect the goods carefully immediately after dispatch. The delivered goods shall be deemed approved by the Customer if a defect is not reported to us (1) in the case of obvious defects within five business days after delivery or otherwise (2) within five business days after discovery of the defect.
6. Liability
6.1. ScaleMonkey shall be liable without limitation
– in cases of intent or gross negligence,
– for injury to life, limb or health,
– in accordance with the provisions of the Product Liability Act, and
– to the extent of a guarantee assumed by ScaleMonkey.
6.2. Without prejudice to the provision in Clause 6.1, in cases of negligence ScaleMonkey shall only be liable for breach of material contractual obligations, i.e. obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the Customer may regularly rely (“cardinal obligations”). In the event of a slightly negligent breach of a cardinal obligation, ScaleMonkey’s liability shall be limited to such typical damages and/or such typical scope of damage that were foreseeable at the time the contract was concluded.
6.3. The above limitations of liability shall also apply in the event of fault by a vicarious agent of ScaleMonkey as well as to the personal liability of employees and representatives of ScaleMonkey.
6.4. The limitation period for the Customer’s claims for damages shall be governed by the statutory provisions in the cases mentioned in Clause 6.1. The limitation period for other claims for damages by the Customer is one year. It begins at the end of the year in which the claims arose and the Customer became aware of the circumstances giving rise to the claim and the person of the debtor or would have become aware of them but for gross negligence; however, in these cases claims shall become time-barred at the latest five years after they arise and ten years after the act, breach of duty or other event triggering the damage.
7. Data Protection
Insofar as personal data of the Customer is collected in the course of concluding and performing the contract with the Customer, ScaleMonkey will observe the applicable data protection regulations, in particular the Federal Data Protection Act (“BDSG”), when processing and using such data. Further information on the handling of customer data can be found in ScaleMonkey’s data protection provisions under Data protection.
8. Prices and Payment
8.1. Unless a different price has been expressly agreed in individual cases, all deliveries by ScaleMonkey shall be made on the basis of the prices stated in the Online Shop on the day of the order. Our prices include statutory VAT. In addition, the shipping costs stated in the order apply. Customs duties and similar charges shall be borne by the Customer.
8.2. We deliver against PayPal, Sofort Überweisung, advance payment and on invoice for existing customers.
8.3. The Customer shall have no right of set-off or retention unless the counterclaim is undisputed or has been finally adjudicated.
9. Delivery Time
9.1. We will deliver the goods to the Customer within the delivery time stated on the respective offer page. If no delivery time is stated on the offer page, goods marked as “in stock” will be delivered within ten business days, and all other goods within four weeks.
9.2. The delivery time pursuant to Clause 9.1 begins in each case on the day we accept receipt of payment (i.e. on the day the purchase contract is concluded).
9.3. If the Customer is an entrepreneur, the following also applies: In the event that our supplier does not deliver goods to us in time that were marked as “not in stock” on the offer page in the Online Shop when the Customer placed the order, the delivery time otherwise applicable under Clause 9.1 shall be extended by the duration of the supply by our supplier plus two business days, but by no more than a period of three weeks. The prerequisite for this extension is that we have reordered the goods without undue delay and are not responsible for the delay in delivery by our supplier.
9.4. If the goods are not available or not available in time, for example because one of our suppliers does not deliver the goods in time, we will inform the Customer without undue delay. If the goods are not available from our suppliers for the foreseeable future, we are entitled to withdraw from the purchase contract. In the event of withdrawal, we will reimburse the Customer without undue delay for the payments made to us. The Customer’s statutory rights due to delay in delivery shall not be affected by the above provision, whereby the Customer may only claim damages in accordance with Clause 6 of these GTC.
10. Shipping, Insurance and Transfer of Risk
10.1. Unless expressly agreed otherwise, we shall determine the appropriate shipping method and the transport company at our reasonable discretion.
10.2. We are entitled to make partial deliveries of separately usable goods included in an order, whereby we shall bear the additional shipping costs caused thereby.
10.3. Large and bulky goods are delivered by a freight forwarder. The freight forwarder delivers the goods only to the first step or to the first lockable door at the Customer’s delivery address.
10.4. If the Customer is an entrepreneur, we only owe the timely, proper delivery of the goods to the transport company and are not responsible for delays caused by the transport company.
10.5. If the Customer is a consumer, the risk of accidental loss, accidental damage or accidental loss of the delivered goods shall pass to the Customer at the time the goods are delivered to the Customer or the Customer is in default of acceptance. In all other cases, the risk shall pass to the Customer upon delivery of the goods to the transport company.
10.6. We will insure the goods against the usual transport risks at our expense.
11. Storage and Accessibility of the Contract Text
The contract text can be accessed by the Customer when placing the order and will be sent to the Customer by email if we accept the order. With the exception of the current GTC in each case, the individual contract texts cannot be accessed in the Online Shop after the contract has been concluded.
12. Applicable Law, Place of Jurisdiction and Final Provision
12.1. The purchase contract concluded between us and the Customer as well as all claims and rights arising therefrom and in connection therewith shall be governed, subject to mandatory provisions of private international law, by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
12.2. If the Customer is a merchant within the meaning of Section 1 (1) of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the courts in Ulm shall have exclusive jurisdiction for all disputes arising from or in connection with the respective contractual relationship. In all other cases, we or the Customer may bring an action before any court having jurisdiction under statutory provisions.
12.3. Should a provision of these GTC be or become invalid or contain an impermissible time limit provision or a gap, the legal validity of the remaining provisions shall remain unaffected. Insofar as the invalidity does not result from a violation of Sections 305 et seq. BGB (applicability of general terms and conditions), an effective provision shall be deemed agreed in place of the invalid provision that comes closest economically to what the contracting parties intended. The same applies in the event of a gap. In the event of an impermissible time limit, the legally permissible measure shall apply.
