TERMS AND CONDITIONS
24.05.2020
General terms and conditions for contracts concluded via the shop module.
Operators:
Smake IT GmbH
Managing Director: Thomas Drees
Erinstraße 28, 44575 Castrop-Rauxel
Germany
hereinafter referred to as „SMAKE“ and the customer hereinafter referred to as „the customer“.
The customer can download and save these General Terms and Conditions on the appropriate smake.com website. Furthermore, these General Terms and Conditions will be sent to them by email after the contract is concluded, so that they can save and print them.
§ 1 SCOPE OF APPLICATION, DEFINITIONS
(1) The following General Terms and Conditions apply to consumers. For the business relationship between SMAKE and the customer, the following General Terms and Conditions apply exclusively in their version valid at the time of the order, provided that the customer is an entrepreneur. Deviating terms and conditions of the customer – if he/she is an entrepreneur – will only be accepted if SMAKE explicitly agrees to their validity in writing.
(2) The customer is considered a consumer insofar as the purpose of the ordered deliveries and services cannot be attributed to their commercial or independent professional activity. An entrepreneur, on the other hand, is any natural or legal person or partnership with legal capacity that acts in the exercise of its commercial or independent professional activity upon contract conclusion.
§ 2 Object of the contract/conclusion of the contract
(1) All offers from Smake are non-binding and non-binding. Technical changes and changes in shape, color and/or weight remain reserved within the limits of reasonableness.
(2) By ordering a product or service, the customer obligates himself/herself to purchase the ordered product or service and to accept the terms and conditions. The customer’s order constitutes an offer to conclude a corresponding contract. Smake reserves the right to accept or reject the offer within two weeks of receipt. Acceptance can be made either explicitly in writing or by starting the processing of the order or the delivery of the product to the customer.
(3) If the customer orders the goods and/or the scope of services electronically, b2b immediately confirms receipt of the order. The receipt confirmation does not constitute a binding acceptance of the order. However, it can be combined with a declaration of acceptance.
(4) The contract is concluded subject to the proper and timely delivery by the suppliers of Smake. This only applies if Smake is not responsible for the non-delivery, in particular if a corresponding hedging arrangement has been concluded with a supplier. The customer will be informed immediately of the unavailability of the service. Payments already made will be refunded immediately.
(5) If the customer orders the goods and/or services electronically, the contract text will be stored by Smake and sent to the customer upon request together with these terms and conditions by e-mail.
(6) Changes and additions to the contractual relationship require written form. Incomplete changes and additions are invalid. This also applies to changes to this written form clause. If the contract was concluded electronically, changes or additions can initially be made in the same way. However, the change or addition will only become effective when it has been confirmed by the other contracting party by post, fax or email, or Smake has fulfilled the contract in accordance with the changed or supplemented terms.
§ 3 DELIVERY
(1) Unless otherwise agreed in the contract, SMAKE will deliver the ordered goods to the address provided by the customer after payment has been received.
(2) In-stock items are shipped within three weeks of contract conclusion, unless expressly agreed otherwise. If the goods are marked as unavailable in an online order, SMAKE undertakes to deliver them as soon as possible. SMAKE’s delivery times are non-binding unless they are exceptionally confirmed by SMAKE as binding.
(3) SMAKE reserves the right to make partial deliveries, provided that this serves the swift completion of the order in exceptional cases and is not unreasonable for the customer. Costs incurred as a result of such partial deliveries will not be charged to the customer.
§ 4 INTELLECTUAL PROPERTY PROTECTION
SMAKE reserves ownership of all delivered goods until full payment has been received; if the customer is a legal entity under public law, a special fund under public law, or an entrepreneur in the exercise of his commercial or independent professional activity, the retention of title shall also remain in effect thereafter, extending beyond the ongoing business relationship until all claims due to the seller under the contract are fully settled.
§ 5 PRICES AND SHIPPING COSTS
(1) All prices listed on SMAKE are exclusive of the applicable statutory value-added tax.
(2) Please refer to the corresponding offer for the shipping costs.
Section 6 PAYMENT CONDITIONS
(1) All prices are in EURO, plus the statutory VAT at the current rate.
(2) The price is due immediately upon receipt of the invoice.
(3) For details on payment, please refer to the corresponding sales offer.
(4) If the customer is in default with its payments, SMAKE is entitled to claim damages in accordance with the legal regulations and/or to withdraw from the contract.
(5) SMAKE always issues a bill to the customer, which must be handed over to the customer upon delivery or sent to the customer in writing.
Section 8 Warranty for defects in goods
(1) In the event of defects, the customer is entitled to the statutory warranty rights under the following provisions. If the contract is solely between a merchant, the §§ 377 ff. of the German Commercial Code also apply.
(2) The customer must report any defects to SMAKE within a two-year warranty period for new goods or within one year for used goods. If the customer is an entrepreneur, the warranty period for new goods is one year. For used goods, the warranty period does not apply to entrepreneurs; for consumers, it is twelve months.
(3) If defects are identified in a timely manner, SMAKE is entitled to provide additional performance. If this fails, the customer is entitled to reduce the purchase price or withdraw from the contract. In other respects, the relevant statutory provisions apply.
(4) The guarantees of the manufacturer or supplier of a product are passed on by the seller to the customer.
§ 9 IMAGES
The illustrations used to describe the product may not correspond to the original item offered. The example images are intended solely to illustrate the products. Depending on the screen and operating system, colors and sizes may be displayed differently; the description of the respective product is decisive.
Section 10 LIABILITY
(1) The customer’s claims for damages are excluded, with the exception of claims for damages due to injury to life, body or health or due to a breach of essential contractual obligations (cardinal obligations), as well as the liability for other damages caused by intentional or grossly negligent breach of duty by SMAKE, its legal representatives or vicarious agents. Essential contractual obligations are those that are necessary for the proper performance of the contract.
(2) In the event of a breach of essential contractual obligations, SMAKE is liable only for typical, foreseeable damage, provided that it is based on simple negligence, unless the customer claims damages for injury to life, limb or health.
(3) The restrictions under paragraphs 1 and 2 also apply to the legal representatives and agents of the provider, if claims are asserted directly against them.
(4) The provisions of the Product Liability Act remain unaffected.
§ 11 Consumer’s right of withdrawal – AInstructions for revocation
Right of withdrawal
You have the right to cancel within 14 days within 14 days within 14 days within 14 days
Within 14 days within within within 14 days within within within within 14 days within within within within t. This period of withdrawal begins on the day on which you or a third party designated by you, who is not the carrier, has taken possession of the goods.
To exercise your right of withdrawal, you must inform us by means of a clear statement (e.g. fax, e-mail or letter) of your decision to withdraw from this contract. Please include your name, address and, if available, your telephone number and e-mail address. You may use the model withdrawal form below, which is not, however, mandatory.
For the purpose of maintaining the revocation period, it is sufficient that the revocation is sent in time.
Consequences of the revocation
In the event of a cancellation, we are obliged to refund you all payments received from you, including shipping costs (with the exception of additional costs resulting from the fact that you have chosen a delivery method other than the cheapest standard delivery offered by us), immediately and within 14 days of receipt of your cancellation notice.
Unless otherwise agreed, we will use the same payment method for the refund that you used for the original transaction; in no case will you be charged any fees for the refund.
You are obliged to return or hand over the goods immediately and in any case within 14 days from the date on which you informed us of the cancellation of this contract. The deadline is deemed to be met if you send the goods within 14 days.
You bear the direct costs of returning the goods.
You are only liable for any loss in value of the goods if this is due to handling the goods that was not necessary to check their nature, properties and functionality.
END OF THE REMINDER LETTERS
Special notes
The right of withdrawal does not exist unless otherwise agreed and in accordance with § 312d, paragraph 4, no. 1 of the German Civil Code (BGB), in the case of distance contracts for the delivery of goods that are manufactured to customer specifications, tailored to personal needs, that are not suitable for return due to their nature or are perishable or whose minimum shelf life has expired.
Download the sample cancellation form
§ 12 INFORMATION ON DATA PROCESSING
(1) As part of the order processing process, SMAKE collects customer data in accordance with the relevant provisions of the Federal Data Protection Act and the Telemedia Act, as well as the applicable national laws. Without the customer’s consent, SMAKE only collects, processes, or uses their account information and usage data to the extent necessary to fulfill the contractual relationship and to use and bill the telecommunications services.
(2) Without the customer’s consent, SMAKE will not use customer data for advertising, market research, or opinion research purposes.
(3) The customer can revoke their consent to the storage of their data at any time. This can be done by informing the provider of their objection at the following address:
Smake IT GmbH
Managing Director: Thomas Drees
Erinstraße 28, 44575 Castrop-Rauxel
Germany
Phone: +49 2305 980354
Fax: +49 (0) 2305 / 537 10 – 11
[email protected]
Section 13 of the Packaging Ordinance
SMAKE is connected to a nationwide waste disposal system in accordance with § 6, section 1 of the Packaging Ordinance.
§ 14 Final provisions
(1) The business relations between SMAKE and the customer are governed by the law of the Federal Republic of Germany. For consumers, this choice of law applies only insofar as the protection is not taken away by mandatory regulations of the state in which the consumer has their habitual residence.
(2) The contract language is German.
(3) If the customer is a merchant, a legal person under public law or a special public-law entity, the place of jurisdiction shall be Bochum. The same applies if the customer has no general place of jurisdiction in Germany or his place of residence or usual place of stay is unknown at the time of the complaint being filed.
Status: 24.04.2020