General Terms and Conditions of the Online Shop of Tobias Grau GmbH
§ 1 General scope
1. For the business relationship between us, Tobias Grau GmbH, Siemensstraße 35b, 25462 Rellingen, entered in the commercial register of the Local Court of Pinneberg under number HRB 4595 (hereinafter: “Seller”) and specialised dealers or end customers (hereinafter: “Customers”), who order products via the online sales platform at the internet address www.tobiasgrau.com (hereinafter: “Online Shop”), shall be subject exclusively to the following General Terms and Conditions (hereinafter: “GTC”). The following GTC shall not apply to orders, which are placed outside of the Tobias Grau Online Shop.
2. Unless individual provisions explicitly address exclusively consumers or businesses, they shall apply equally to both. “Consumers” for the purpose of these GTC are natural persons with whom we enter into a business relationship, without any commercial or independent professional activity being attributable to them (cf. Sec. 13 BGB). “Businesses” are natural persons or legal entities, or registered partnerships with legal capacity, with whom a business relationship is established and who act in exercise of a commercial or self-employed profession (cf. Sec. 14 BGB).
3.The contracts with the Customer are concluded exclusively in the German or English language, depending on whether the Customer places the order via the German or English language pages of the web shop. If the Customer’s order is placed via the German web shop, exclusively the German version of these General Terms and Conditions shall be decisive accordingly. If the order is placed via the English web shop, the English version of these General Terms and Conditions shall be decisive, whereas the German version shall apply bindingly in case of any questions of interpretation
as regards the English version.
4. Terms and conditions of the Customer shall apply only insofar as they do not contradict the following terms. This shall also apply in the case of unconditional delivery by the Seller in knowledge of the Customer’s opposing or contradicting terms.
§ 2 Offer, conclusion of contract
1. The presentation and advertising of products in the Seller’s Online Shop does not represent a binding offer for the conclusion of a purchase contract but only a non-binding suggestion for placing an order; mistakes in the presentation remain reserved. The Seller reserves the right to deviate from the pictures and descriptions in the Online Shop to the extent customary in retail and make variations in result of legal regulations or technical improvements, and to replace components for equivalent parts, provided that they do not compromise the usability for the contractually intended purpose.
2. The Customer places his legally binding order by sending an order via the Online Shop by clicking the “Order now” subject to payment.” The Customer shall be bound by the order for a period of two (2) weeks after placing the order, any right of the Consumer for revocation of the order pursuant to § 3, if applicable, shall remain unaffected by this.
3. Before placing the order, it is required that the Customer accepts the GTC and the instruction on the right of revocation. In addition, the Customer shall receive a summary of the information provided by him and the opportunity to correct any errors made in the input.
4. The Seller shall confirm receipt of the order placed via the Online Shop by email without delay. Such an email shall not represent a binding acceptance of the order yet, unless acceptance besides receipt is declared in it at the same time.
5. A contract shall come into effect only if the Seller accepts the Customer’s order by delivery of the ordered articles or by providing an acceptance declaration. The Seller shall send the Customer the terms of contract including the GTC with this or a separate email, whereas at the latest on delivery of the products, on a permanent data carrier (email or printout on paper). The text of the contract will not be stored by the Seller after the conclusion of the contract.
6. If the delivery of the products ordered by the Customer should not be possible, perhaps because the products are permanently out of stock, the Seller shall not provide an acceptance declaration. In that case, no contract will come into effect. The Seller shall inform the Customer immediately of this and refund any already received consideration.
§ 3 Right of revocation
1. If the Customer is a Consumer, he has a right of revocation in accordance with the statutory provisions.
2. If the Customer exercises his right of revocation pursuant to Section 1 as a Consumer, he shall bear the regular costs for the return shipment.
3. The right of revocation is additionally subject to the provisions stated in detail in the following
Instruction on revocation, right of revocation
You have the right to revoke this contract within fourteen days without a statement of reasons.
The revocation period is fourteen days from the day on which you or a third party appointed by you, who is not the transporter, have taken the products into possession.
To exercise your right of revocation, you have to inform us:
Tobias Grau GmbH
Phone: +49 4101 370-0
Fax: +49 4101 370-1000
by means of a clear statement (e.g. a letter sent by post, fax or email) of your decision to revoke this contract. You may draft the revocation in your own words or use the sample revocation form for this purpose, which is available to you for download here.
To observe the revocation period, it is sufficient if you mail the notification of the exercise of the right of revocation before expiration of the revocation period.
Consequences of revocation
If you revoke this contract, we shall return all payments to you that we have received from you, including the delivery costs (except for the additional costs incurred because you have chosen a different delivery type than the one offered by us, which is the most efficient standard deliver), without delay and at the latest within fourteen days from the day on
which the notification of your revocation of this contract was received by us. We will use the same payment instrument for this repayment, as the one that you have used in the original transaction, unless explicitly agreed otherwise with you. You will never be charged any fees for this repayment. We can refuse to refund the payment until we have received the
return of the products or until you have provided prove that you have returned the products, whichever is the earlier date.
You shall return the products to us by shipment or handover in person without delay, whereas in any case, at the latest within fourteen days from the day on which you have informed us of the revocation of this contract. The period will be deemed observed if you ship the products before expiration of the fourteen-day period.
You shall bear the direct costs for the return shipment of the products. You have to pay for any loss of value of the products only if this loss of value is due to a handling of the products that is
not necessary for the check of their condition, properties and mode of functioning.
End of the instruction on the right of revocation
4. The right of revocation does not apply to distance selling contracts
a. for the supply of goods, which have been manufactured according to customer specification, or which aredefinitively customised to personal needs, or which are not suitable for return shipment due to their properties and condition, or which may spoil quickly or the best-before date of which has expired,
b. for the supply of audio or video or recordings or of software, if you have broken the seal on the delivered datamedia.
§ 4 Terms of delivery
1. The products are shipped to countries that can be selected in the course of the ordering process. For deliveries outside of this delivery region, we request the Customer to inquire with firstname.lastname@example.org.
2. The Seller is permitted to make partial deliveries if this is reasonably acceptable to the Customer, in particular provided that the partial delivery can be used by the Customer within the scope of the intended purpose according to the contract and that no significant extra expense or additional costs are incurred by the Customer
for this reason.
3. The products will be shipped, within the delivery period listed on the respective product page, upon payment of the complete sum by one of the offered payment methods.
§ 5 Prices, shipment costs
1.The price indications in the Online Shop are made independently from the country of delivery. Inside of the EU, the local prices including the local value added tax are indicated. In regions of delivery outside of the EU, net prices are indicated. The prices are understood plus the incurred shipment costs. The shipment costs break down as follows:
1. Orders from end customers within Germany are free of shipment costs from an order value of €50.
2. Orders from specialised dealers within the EU are free of shipment costs from an order value of €50.
3. For all other orders, we equally charge end customers as well as specialised dealers a flat fee for shipment according to the table filed on this page.
4. The price including value added tax and any incurred shipment costs will be displayed to the Customer in the order form before he sends the order.
5. If the Seller fulfils the delivery according to § 4 (1) by partial deliveries, the Customer will incur shipment costs, if any, for the first partial delivery only. If the partial deliveries are made on the Customer’s request, the Seller shall charge the incurred shipment costs, if any, for each partial delivery.
6. If the Customer effectively revokes his declared intent to conclude a contract according to § 3, he may demand the refund of any already paid costs for shipment to his location (costs for shipment to the customer) on the statutory conditions (cf. § 3 (3) regarding other consequences of revocation).
§ 6 Terms of payment and offsetting and right of withholding
1. End customers may choose to pay the purchase price and the shipment costs by credit card, Klarna-Pay now, PayPal or ApplePay.
2. Specialised dealers are offered exclusively the option for purchase against invoice.
3. The Customer is not entitled to offset against the Seller’s claims, unless his counterclaims have been established asfinal and absolute or if they are uncontested. The Customer is also entitled [sic not permitted] to offset against theSeller’s claims if he claims defects or counterclaims arising from the same purchase contract.
4. The Customer may exercise a right of withholding only if his counterclaim originates from the same purchasecontract.
§ 7 Reservation of title
1. For contracts with Consumers, the Seller reserves the title to the products up until the complete payment of the purchase price and any incurred shipment costs.
2. For contracts with Businesses, the Seller reserves the title to all products – including the items made available by the Seller for sales promotion or in any other manner (flags, displays, furniture, carpets, etc.) – until all claims relating to the business relationship and all claims from follow-up transactions such as spare parts deliveries and services, including claims arising in the future as well as claims arising from contracts concluded at the same or at a later time, have been settled. This shall also apply if individual or all claims have been included and balanced by the Seller in a current invoice, and they have been acknowledged. For on-account charges, the complete products subject to the reservation of title shall serve as security for the claim of the balance.
a. If the value of the products subject to the reservation of title exceeds the realisable value of the claims against the Business by more than 10%, the Seller shall declare the release of securities for the amount in excess upon the Customer’s request; the Seller shall have the choice of securities to be released. The declaration of release requires the written or text form.
b. The Business may neither pledge the products subject to the reservation of title nor transfer them by way of security to third parties. The Business is obligated to provide information in writing at any time of the inventory of products subject to the reservation of title and to treat them with care.
c. The Business shall inform the Seller immediately in writing of any damage, destruction, attachment, seizure or other dispositions made by third parties with regard to the products subject to the reservation of title. The same applies if an application for the opening of insolvency proceedings is filed.
d. The Seller has the right in case of any actions by the Business contrary to the contract, in particular in the case of default on payment and breach of a duty according to lit. b) and c) to withdraw from the contract pursuant to the statutory provisions and demand the return of the products. This also applies if an application for the opening of insolvency proceedings over the assets of the Business is filed. Upon declared withdrawal, the Seller shall have the right to collectthe products subject to the reservation of title and access the place of storage or use of the products subject to the reservation of title for this purpose. The Business waives the rights, which might be in its entitlement in result of unlawful interference with the possession of another.
e. The Business shall be permitted to resell the products subject to the reservation of title until revocation (see below) inthe course of proper business management. In such a case, the Business shall reserve the ownership of the products subject to the reservation of title until the complete payment of the purchase price. The Business assigns on this date already the claim that is in its entitlement in case of a sale for the amount of the invoice value of the products subject to the reservation of title and the claim for surrender to the Seller. The Seller hereby accepts the assignment. The duties specified in lit. c) shall also apply in consideration of the assigned claims.
The Business shall remain authorised to collect the receivables besides the Seller. The Seller undertakes not to collect the receivables for as long as the Business fulfils its payment obligations, its ability to pay is not impaired, and the Seller does not claim the reservation of title by exercise of a right according to Sec. 7 lit. d). If this is the case, however, the
Seller may demand that the Business disclose the assigned receivables and their debtors, provide all information required for collection, surrender the related documents, and inform the debtors (third parties) of the assignment. Furthermore, the Seller shall be entitled in this case to revoke the authorisation for further sale and processing of the products subject to the reservation of title.
§ 8 Shipment, insurance, transfer of risk
1. Unless expressly agreed otherwise, the Seller shall determine the appropriate shipment method and the transport company at its equitable discretion.
2. The Seller shall only owe the timely and correct delivery of the products to the transport company and not be responsible for delays caused by the transport company.
3. If the Customer is a Consumer, the risk of accidental destruction, accidental damage or accidental loss of the delivered products shall transfer to the Customer at the time when the products are delivered to the Customer or the Customer is in delay of acceptance. In all other cases, the risk shall transfer to the Customer on the handover of the products to the transport company.
§ 9 Warranty
1. The Seller shall generally be liable for property defects and defects of title in delivered articles pursuant to the applicable statutory provisions, in particular Sec. 434 seqq. BGB [German Civil Code].
2. No claim of warranty shall be established if a fault is based on improper handling of the products and/or improper assembly (e.g. based on a failure to observe the assembly Instructions) and/or commissioning. The same applies in the case that a fault is based on a failure to follow operating and maintenance instructions, or if reworking, modifications or processing has been performed on the delivered products or parts thereof without approval. Furthermore, the warranty for defects does not apply to natural wear and tear (e.g. tinting, abrasion of cords of height-adjustable lamps, etc.)
3. Any seller’s guarantees given by the Seller for certain articles or any manufacturer guarantees granted by the manufacturers of certain articles shall apply in addition to the claims based on property defects or defects of title in the definition of (1). Details regarding the scope of such guarantees result from the terms of guarantee, which are enclosed with the articles if applicable.
4. If the Customer is a Business, generally solely the Seller’s product description shall be deemed agreed as properties and condition of the products. Public statements, promotions or advertising by the Seller do not constitute any contractual statement of properties and condition of the products.
5. Businesses shall be entitled to warranty claims against the Seller only if the Business fulfils its duties of inspection and notification of defects according to Sec. 378 and Sec. 378 HGB [German Commercial Code] and reports the defect immediately in writing. The assembly instructions and technical information provided as assistance to the Business on the basis of existing experience and to the best of knowledge according to the present state of knowledge shall not release the Business from its duty to inspect the products and test them on its own and within its own responsibility for their suitability for the intended purpose of the contract.
6. The Seller shall perform warranty for any defects on the products to Businesses, at its own choice, either by reworking or by replacement delivery.
7. If the Business chooses to withdraw from the contract for a defect of title or property defect after a failed subsequent performance, it shall not have any damage compensation claim against the Seller for the defect in addition. If the Business chooses damage compensation instead of revocation, the delivered products shall remain with the Business if this can be reasonably expected of it. The damage compensation claim shall be limited in this case to the difference between the purchase price and the value of the defective item. This shall not apply if the Seller has fraudulently
concealed a defect or given a guarantee for properties and condition.
8. Any claim of the Customer against the Seller for refund of the installation or mounting costs according to Sec. 445a BGB that are incurred in the course of subsequent performance shall apply only to the extent that the defective products, in accordance with their nature and their purpose of use, have been installed in another object or been mounted on another object. The refund for expenses shall be limited to such expenses of the Customer, which are unpredictable for the Seller and calculable. A special way of use – for example, such involving extraordinary costs for installation/mounting of the products can therefore entail that the claim for the refund of expenses is limited.The Seller is furthermore entitled to refuse one or, if applicable, also both kinds of subsequent fulfilment if this is tied to disproportionate costs (including, in particular, also the costs for installation and deinstallation of the defective products).
9. Claims for damage compensation or the refund of useless expenses in cases of defects shall apply exclusively in accordance with § 10 and be excluded for the rest.
§ 10 Liability
1. Unless stated otherwise in these GTC including the following provisions, the Seller shall be liable for a breach ofcontractual and non-contractual duties pursuant to the statutory provisions.
2. The Seller shall be liable for damage compensation – regardless of the legal reason – within the scope of the liabilityfor fault in cases of intent and gross negligence. Subject to legal liability limitations (e.g. care applied to own matters,minor breach of duty), the Seller shall be liable for simple negligence only
a. for damages resulting from the injury to life, body or health.
b. for damages arising from the breach of an essential contractual duty (duty the fulfilment of which enables th correct performance of the contract in the first place and the fulfilment of which the contractual partner regularly relies upon and may rightly rely upon); in this case, liability, however, shall be limited to the predictable, typically occurring damage.
3. The liability limitations resulting from (2) shall also apply to breaches of duty by or in favour of persons for whose fault the Seller is accountable pursuant to legal regulations. This shall not apply, insofar as the Seller has fraudulently concealed a defect or given assurance for the product’s properties and conditions, nor to claims of the Customer pursuant to the Product Liability Act.
§ 11 Copyrights
The Seller holds copyrights to all pictures, films and texts, which are published in our Online Shop. Any use of the pictures, films and texts is prohibited without our explicit agreement.
§ 12 Product marking, reference
1. Any processing, modification and/or marking of a product of the Seller, which might cause the impression it was a product of the Customer, is prohibited.
2. For each violation of the obligation under (1), the Business will forfeit a contract penalty to the Seller, which shall be set by the Seller at its equitable discretion in an appropriate amount, whereas at least in the amount of EUR 1,500.00. The cease and desist claims remain unaffected by such a payment.
§ 13 Applicable law and place of jurisdiction, partial invalidity, interpretation
1. Exclusively the law of the Federal Republic of Germany applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods. If the Customer has placed the order as a Consumer and if, at the time of the order, his main residence is located in a different country, the application of compulsory legal regulations of this country shall remain unaffected by the choice of law made in clause 1.
2. If the Customer is a merchant in the definition of the German Commercial Code, a legal entity of public law or a public-law investment fund, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship is Hamburg. However, the Seller shall also be entitled in all cases to file suit at the place of fulfilment of the delivery obligation or an individual agreement taking precedence, or in the court of the Customer’s general place of jurisdiction. Any statutory provisions taking precedence, in particular, regarding exclusive jurisdiction shall remain unaffected.
3. If a provision of these terms or a provision within the scope of other agreements should be or become invalid, this shall not affect the validity of any of the other provisions or agreements. The invalid provision shall be replaced by such a provision, which is economically equivalent of the purpose of the contract.
§ 14 Dispute resolution
The European Commission provides a platform for dispute resolution online. The platform serves as the point of contact for the out-of-court settlement of disputes relating to contractual obligations arising from online purchase agreements. More information is available at the following link:
http://ec.europa.eu/consumers/odr. The Seller is neither willing nor obligated to participate in a dispute resolution procedure before a consumer mediation office.