General Terms and Conditions
General Terms and Conditions for the espas GmbH online shop
1. Basic provisions / identification of the provider / object of the contract
Through the online shop at http://www.espas.de/,
Tel.: + 49 (0)561-574 63 90
Fax: + 49 (0)561-574 63 99
Commercial register: Kassel District Court, Commercial Register No.: HRB13739
VAT ID No.: DE 81 44 70 901
- represented by the Managing Director Holger Aukam -
sells playground equipment.
The following terms and conditions apply to all contracts between espas GmbH (hereinafter: espas) and the Customer which are established through the espas online shop. Unless otherwise agreed in writing, the Customer's own terms and conditions shall not be part of the contract.
espas Customers may be either consumers (Section 13 German Civil Code) or entrepreneurs (Section 14 German Civil Code).
A consumer as defined by these terms and conditions shall be any natural person who enters into a legal transaction for a purpose outside his trade, profession or business.
An entrepreneur as defined in these terms and conditions shall be any natural or legal person or partnership with legal capacity who, when entering into the legal transaction, is exercising his or its trade, profession or business.
The object of the contract is the sale of goods.
2. Conclusion of the contract / contract language
The products and services listed within the espas online shop shall not constitute binding offers on the part of espas, but an invitation to the Customer to submit a binding purchase offer by placing an order.
When purchases are made through our online shop, the goods intended for purchase shall be placed in the "Basket". The Customer may call up the "Basket" using the relevant button in the navigation bar and make changes there at any time. After the "Checkout" page is called up and the personal data, the billing address and, if applicable, the different delivery address are entered, as well as the terms of payment and delivery, all the data shall be displayed again. Before the binding order is sent, the Customer has the option of reviewing all the data again and changing it, if applicable, or cancelling the purchase. Only with the confirmation using the "Order" button does the Customer submit a binding purchase offer. espas shall send the Customer a confirmation of the receipt of the order by e-mail immediately. This confirmation shall not yet constitute the conclusion of a contract.
When an order is placed through our online shop, the ordering process shall comprise four steps in total, which shall be displayed for you at the top.
In the first step, you shall select the desired espas GmbH goods. In the second step, you shall enter your customer data, including the billing address and, if applicable, the different delivery address. Please also observe the data protection regulations. In the third step, you shall select your desired method of payment. In the final step, you shall have the option of checking the data (e.g. name, address, method of payment, ordered items) again and correcting them, if applicable, before you submit your order by clicking on the relevant button and thus the contract between you and espas GmbH comes into effect.
The acceptance of the purchase offer and thus the conclusion of the contract shall take place by confirmation in text form (e.g. e-mail) or by the delivery of the goods.
espas shall not assume any procurement risk for the products listed in the online shop and reserves the right to release itself from the obligation to fulfil the sales contract in the event that it is not correctly or properly supplied by its suppliers. espas shall inform the Customer immediately in the event of the non-availability or a partial availability of the goods. espas shall return any payment already made by the Customer immediately in the event of a cancellation. espas' liability for wilful intent or gross negligence, in accordance with the liability provisions under 10. of these terms and conditions, shall remain unaffected by this.
The contract language shall be German.
3. Storage of the contract text
The contract text shall remain stored for the purchase transaction after the conclusion of the contract; it may be accessed again by the Customer on the website of the online shop, using the Customer's data. The Customer shall be sent a confirmation of the receipt of the order and an order confirmation by email with further information on the purchase transaction by espas. Using the browser's print function, the webpage containing the important contractual information can be printed out during the ordering process. espas shall also share the necessary contractual information with the Customer in text form.
4. Prices; payment terms
The amounts stated as purchase prices shall, without exception, be considered final prices and shall comprise all the price components, including any VAT incurred. In individual cases, however, taxes (e.g. in the event of an intra-Community purchase) and/or duties (e.g. customs duties) may be incurred for cross-border deliveries, and these must be paid by the Customer.
The purchase prices – insofar as nothing has been expressly agreed to the contrary between espas and the Customer – shall not include carriage, postage and insurance. Therefore, additional delivery and shipping costs shall be incurred when the goods are dispatched; the amount of the additional delivery and shipping costs shall be based on the information provided in the online shop.
espas shall inform the Customer in the online shop, in each case, of the specific methods of payment that are available. The Customer shall select the preferred method of payment from amongst the available options.
If espas agrees an advance bank transfer with the Customer, the Customer undertakes to pay the (total) amount in full within ten days of the receipt of the request for payment, at the latest. In the event of the fruitless expiry of the term, the Customer shall be in default (of payment), without the need for any further declaration. In the event that cash on delivery is agreed, the payment shall be made upon delivery to the carrier.
The Customer may only exercise a right of retention if his/its counterclaim is based on the same contractual relationship or has been established as legally valid.
5. Delivery and shipping terms; transfer of risk
espas shall undertake the delivery of the purchased items – unless otherwise agreed with the Customer – to the delivery address provided by the client.
Collection by the Customer shall be possible in principle. espas shall inform the Customer in the online shop under what conditions this shall be practicable.
For a delivery "free to the door", delivery to the kerbside shall be agreed. The Customer must ensure that there is an access route to the place of delivery. The duty to unload and the costs for unloading shall always be borne by the Customer, unless otherwise agreed in writing.
Insofar as the Customer is an entrepreneur, the risk of the accidental loss and the accidental deterioration of the sold goods shall be transferred to the Customer or an authorised recipient upon the handover of the goods. In the case of a sales shipment, on the other hand, the risk shall be transferred to a suitable carrier upon delivery of the goods to the latter.
Insofar as the Customer is a consumer, the risk of the accidental loss and the accidental deterioration of the sold goods shall only be transferred to him upon the handover of the goods to the consumer; this shall also apply for sales shipments.
The risk of the accidental loss and the accidental deterioration of the sold goods shall be transferred to the Customer if the Customer is in default of acceptance.
6. Right of revocation and consequences thereof
In accordance with the distance selling regulations, consumers have a right of revocation, whereby the parties to the contract agree, in the event that the right of revocation under the provisions of the distance selling regulations is exercised, that the consumer shall bear the regular costs of the return shipment if the price of the item to be returned does not exceed an amount of € 40.00 or if, in the event that the price of the item is higher, the consumer has not yet provided the payment or a partial payment at the time of the revocation, unless the delivered item does not correspond to the ordered item. Consumers shall, therefore, have the right to revoke their contractual declaration, in accordance with the following instructions.
Right of revocation
You may revoke your contractual declaration in text form (e.g. letter, fax, e-mail) within 14 days without stating reasons or – if the item is placed at your disposal before the expiry of this term – by returning the item. The term shall begin upon receipt of these instructions in text form, but not before the receipt of the goods by the recipient (in the case of a recurring delivery of similar goods, not before the receipt of the first part delivery) and not before the fulfilment of our obligations to provide information in accordance with Article 246 Section 2 in conjunction with Section 1 (1) and (2) Introductory Act to the German Civil Code and of our obligations in accordance with Section 312e (1) 1. German Civil Code in conjunction with Article 246 Section 3 Introductory Act to the German Civil Code. The dispatch of the revocation or the item in good time shall be sufficient for the observation of the revocation deadline. The revocation should be addressed to:
Fax: + 49 (0)561-574 63 99
Consequences of the revocation
In the event of an effective revocation, the services that have been received by each party must be returned and any benefits derived (e.g. interest) must also be surrendered. If you are unable to return all or part of the service that you have received, or only in a deteriorated condition, you must provide compensation to this extent, if applicable. In the case of a delivery of goods, this shall not apply if the deterioration in the condition of the item can be traced exclusively to its examination - such as would have been possible for you in a shop. You do not have to provide any compensation for a deterioration in the condition of the item caused by it being used as intended. Goods that can be shipped in parcels must be returned at our risk. You must bear the costs of the return shipment if the delivered goods correspond to the ordered goods and if the price of the item to be returned does not exceed an amount of € 40 or if, in the event of a higher price, the payment or a contractually agreed partial payment has not yet been made at the time of the revocation. Otherwise, the return shipment shall be free of charge for you. Items that cannot be shipped in parcels shall be collected from you. Obligations to reimburse payments must be fulfilled within 30 days. The term shall begin for you when the revocation declaration or the item is despatched, and for us when they are received.
End of the revocation instructions
7. Retention of title / Right of retention
espas shall retain title to the goods until the Customer has paid in full.
The Customer may only exercise a right of retention if it is a matter of claims arising from the same contractual relationship.
If the Customer is an entrepreneur, the following shall apply in addition:
espas shall retain title to the goods until all the accounts receivable arising from the current business relationship have been settled. Before the transfer of title to the goods subject to a retention of title, they may not be pledged or transferred as security.
The Customer may resell the goods in the ordinary course of business. In this event, he/it shall now assign all the accounts receivable which accrue to him/it from the resale, to the amount of the invoice, to espas; espas shall accept the assignment. The Customer shall continue to be authorised to collect the account receivable. If he/it does not comply with his/its payment obligations properly, espas reserves the right to collect the account receivable itself.
If the goods subject to a retention of title are combined and mixed, espas shall acquire co-ownership of the new item in the proportion the invoice value of the goods subject to a retention of title to the other processed items at the time of processing.
espas undertakes to release the securities to which it is entitled, at the Customer's request, to the extent that the realisable value of the provider's securities exceeds the account receivable to be secured by more than 10%. The provider shall be responsible for the selection of the securities to be released.
8. Notification of transport damages
In the event of transport damages, the Customer shall support espas to the best of his/its ability, insofar as claims are made against the relevant carrier or the relevant transport insurance provider. Any rights and claims of the Customer, in particular his/its rights in the event of defects in the item, the provisions of 8.1. and 8.2. of these terms and conditions shall remain unaffected. These shall, therefore, not include a cut-off period for the rights of the Customer under 9. of these terms and conditions.
If the Customer is an entrepreneur, the following shall apply in addition:
The Customer is obliged to inspect the delivered goods. In the case of externally recognisable transport damages, the Customer shall, in the event that the delivery is accepted nevertheless, note down the damages on the respective shipping documents upon acceptance of the delivery and have them acknowledged by the deliverer; the packaging must be kept in this case.
If the (partial) loss or the damage is not externally recognisable, the Customer must report it to espas within five days of becoming aware of it or to the carrier within seven days of becoming aware of it, in order to guarantee that any claims against the carrier may be asserted in good time.
9. Warranty rights
Damages that have arisen due to the incorrect use or handling of the item by the Customer shall not be covered by the warranty.
In accordance with the legal requirements, the Customer shall initially be entitled to supplementary performance, in the event of defects in the delivered item.
In this respect, consumers have the choice of whether the supplementary performance is to take the form of repairs or a replacement delivery. espas is, however, entitled to refuse the chosen kind of supplementary performance if this is only possible with disproportionate costs and if the other kind of supplementary performance does not entail significant disadvantages for the consumer.
espas shall provide warranty to entrepreneurs for defects in the goods by repairs or a replacement delivery, initially at its own discretion.
The limitation period for defects in new goods shall amount to two years from the delivery of the goods for the rights of a consumer, or one year from the delivery of the goods for the rights of an entrepreneur.
If a used item is purchased by a consumer, his warranty claims shall become statute-barred one year after the delivery of the goods to him.
If a used item is purchased by an entrepreneur, no warranty claims shall exist.
The reduced limitation periods and restrictions of liability referred to in 9.3 shall not apply if espas is liable under 10. of these terms and conditions or the right in rem of a third party is concerned, on the basis of which the return of the delivery item may be demanded.
The recourse claims of entrepreneurs determined in the provisions of Sections 478 and 479 of the German Civil Code shall remain unaffected by the provisions of 9.1 to 9.4 inclusive of these terms and conditions.
Entrepreneurs must report obvious defects in writing within a period of two weeks of the receipt of the goods, using the contact details listed above; otherwise, the assertion of a warranty claim shall be excluded. The punctual despatch of the notification of the defects shall be sufficient for keeping the deadline.
10. Liability provisions
espas shall be liable, without restriction, in accordance with the legal requirements, for damages arising from injury to life, limb or health which are based on a deliberate or negligent breach of duty, and for other damages which are based on a deliberate or grossly negligent breach of duty and fraudulent intent. Furthermore, espas shall be liable, without restriction, for damages which are not covered by the liability according to compulsory legal regulations, such as the Product Liability Act, as well as in the event of the assumption of warranties.
espas shall be liable for damages that are not covered by 10.1 and that are caused by simple or slight negligence, insofar as this negligence affects the infringement of contractual obligations, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the Customer may regularly rely (so-called cardinal obligations). The liability of espas shall, however, be limited to the foreseeable damages that are typical for the contract.
espas shall be liable to consumers in the event of slightly negligent infringements of contractual obligations that are neither covered by 10.1. nor 10.2. (so-called immaterial contractual obligations) only in the event that it is a matter of foreseeable damages that are typical for the contract.
Any further liability shall be excluded.
11. Data protection
During the initiation, conclusion, processing and rescission of a sales contract, data shall be collected, saved and processed by espas, within the framework of the legal requirements.
When the Customer visits espas' website, the IP address currently being used by the Customer's PC, the date and time, the browser type and the operating system of the PC, as well as the pages viewed, shall be recorded. It shall not be possible for espas to draw conclusions about personal data, and this is also not intended.
Personal data that the Customer gives to espas, e.g. when placing an order or in an e-mail, shall only be processed for the correspondence with the Customer and only for the purpose and the period for which Customer has provided espas with the data. espas shall only pass the data on to the carrier commissioned with the delivery, insofar as this is necessary for the delivery of the goods. For processing payments, espas shall give the Customer's payment information to the credit institution commissioned with the payment.
espas affirms that espas shall not pass on the personal data of the Customer to third parties in other respects, unless espas is legally obliged to do so or the Customer has expressly agreed to this in advance. Insofar as espas makes use of third party services to implement and execute manufacturing processes, the provisions of the German Federal Data Protection Act shall be observed.
Personal data that is given to espas through its website shall only be saved until the purpose for which these data have been entrusted to espas has been fulfilled. Insofar as storage periods under commercial and tax law have to be observed, certain data may be kept for up to 10 years.
The Customer has the right to object to the storage of his/its data. In this case, espas is obliged to arrange for the deletion of the data, within the framework of the legal requirements. On request, the Customer shall receive information about all the personal data that espas has stored about him/it.
If he/it has any questions relating to the collection, correction or deletion of data, the Customer may contact espas at the following address:
Tel.: + 49 (0)561-574 63 90
Fax: + 49 (0)561-574 63 99
12. Final provisions
The applicable law shall be the law of the Federal Republic of Germany.
The choice of law under 12.1 shall apply for consumers who are not concluding the contract for professional or commercial purposes only to the extent that the protection granted by the mandatory provisions of the law of the state in which the consumer has his habitual residence is not removed.
The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
The place of fulfilment and the exclusive place of jurisdiction for all disputes arising from the present contract shall be the place of business of espas, insofar as the Customer is an entrepreneur, a legal person under public law or a special fund under public law. If a Customer, as an entrepreneur, has no general place of jurisdiction in Germany or if the domicile or habitual place of residence of the entrepreneur is unknown at the time of the action being the filed, the exclusive place of jurisdiction for all disputes arising from the present contract shall also be the place of business of espas. espas' authority to go to court in another legal place of jurisdiction shall remain unaffected by this.
The written form requirement as defined by these terms and conditions shall not be deemed to be observed if e-mails are used for the communication.
© espas GmbH, Kassel 2013
Information on online dispute resolution
The European Commission has created an online dispute resolution platform (so-called "OS platform") for the resolution of disputes regarding contractual obligations arising from online purchase or service contracts between consumers and entrepreneurs. The OS platform can be reached at the following link: http://ec.europa.eu/consumers/odr