Terms & Conditions
General Terms and Conditions
These contract terms shall apply to all contracts between
Pechkeks GmbH
Eppendorfer Weg 93A
20259 Hamburg
Germany
(hereinafter “Seller” or “We”) and our customers (hereinafter “Customer” or “You”) concluded exclusively by means of telecommunications (e.g. via the internet or by telephone) in our Online-Shop. For contracts which We conclude in our Offline-Shop (retail shop), the terms included there shall apply.
§ 1 Scope of application, definitions
(1) The following General Terms and Conditions, in their valid version at the date of placing the order, shall apply exclusively to the business relationship between the Seller and the Customer. Deviating terms and conditions and contract offers from the Customer are hereby rejected. (2) The Customer shall be deemed a consumer unless the purpose of the delivery and service can be attributed to its commercial or independent professional activity. In contrast, an entrepreneur means any natural person or legal entity, or partnership with legal personality, which, when concluding the contract, is exercising its commercial or independent professional activity.
§ 2 Conclusion of the contract
(1) The Customer can select items from our product range and collect these in a “Shopping Cart” by clicking on the “Add To Shopping Cart” button. By clicking on the button “Send Order”, the Customer places a binding order to purchase the goods contained in the shopping cart.
(2) Before sending the order, the Customer can, at any time, change, review, and correct any data-entry errors in, the data it has entered. However, the Customer's order can only be submitted and transmitted if the Customer has accepted these General Terms and Conditions during the order process and has thereby incorporated them into its order.
(3) The Seller then sends the Customer an automatic confirmation of receipt by email; this confirmation of receipt lists the Customer's order once again and the Customer can print it out using the “Print” function. The automatic confirmation of receipt merely documents the fact that the Customer's order has been received by the Seller and does not constitute any acceptance of the offer.
The contract is only concluded upon delivery, by us, of the declaration of acceptance which will be sent in a separate email. The issuance of an invoice to the Customer for the respective goods that the Customer has ordered shall replace the declaration of acceptance. If We execute the order within 5 days of receipt of the order, this shall also take effect as a replacement, by us, or the declaration of acceptance. In the event that more than one of the aforementioned methods of acceptance has taken place, conclusion of the contract shall be deemed to have taken place upon the occurrence of the first such event. In all cases, the Customer shall, in accordance with statutory provisions, receive a written contract affirmation.
If, within 5 days, the Customer has not received a declaration of acceptance, invoice or notification of dispatch, or has not received any goods, the Customer shall no longer be bound by its order. In such case, We shall reimburse the Customer immediately for any payments already made.
(4) The subject-matter of the delivery or service is the goods and/or services offered by us and ordered by the Customer. Unless expressly specified otherwise in the respective offer, models and prices refer to the respective, offered item but not, however, to any accessories or decorations displayed together with the item.
(5) If, through no fault on our part and despite all reasonable endeavours, We are unable to deliver the ordered goods because our supplier has not fulfilled its contractual obligations to us, we shall be entitled to withdraw from the contract. However, this right of withdrawal shall only apply in the event that We have concluded a congruent covering transaction (binding, timely and adequate ordering of goods) with the relevant supplier and We are not in any other way responsible for the non-delivery. In such a case, we shall inform the Customer immediately that the ordered goods are unavailable. We shall reimburse the Customer for any consideration it has already paid.
(6) The contractual language is German.
(7) Order processing notifications and other communications relating to performance of the contract will normally be sent by email. The Customer must therefore ensure that the email address it has provided for the purposes of the order processing is correct and that the Customer's settings or filtering features do not prevent receipt of contract-related emails.
§ 3 Retention of title
Title to the delivered goods shall remain vested in us until fulfilment of all claims arising under the contract or, in the event that the Customer is a legal entity under public law, a separate estate under public law or an entrepreneur acting in the course of its commercial or independent professional activity, until settlement of all claims arising under the continuing business relationship.
§ 4 Prices and shipment costs
(1) Our prices include statutory VAT at the rate from time to time in force and exclude shipping costs.
(2) The corresponding shipping costs shall be notified to the Customer prior to conclusion of the contract and shall be borne by the Customer unless delivery free of shipping costs has been agreed.
§ 5 Payment
(1) The Customer may effect payment by means of the payment methods specified in the offer.
(2) Payment of the purchase price shall be due immediately upon conclusion of the contract and must be received by us within 7 calendar days unless the respectively agreed payment method specifies a different rule.
(3) The Customer must ensure that it has sufficient funds in its account. In the event that a return debit note is issued due to insufficient funds, the Customer shall be obliged to reimburse us for the loss resulting therefrom.
(4) The Customer's obligation to pay default interest shall not preclude the right to enforce other claims for losses due to delay.
(5) The Customer shall only have the right to offset its counterclaims if they have been recognised by us or have been determined by a final and non-appealable court judgment. The Customer shall only be entitled to exercise a right of retention if its counterclaim is based on the same contractual relationship.
§ 6 Transfer of risk
(1) By law, in the case of consumers, the risk of accidental loss and accidental deterioration of the purchase item only passes to the Customer upon delivery of the purchase item to the Customer.
(2) The following shall apply only to Customers acting as an entrepreneur: The delivery takes place ex-warehouse. The risk of accidental loss and accidental deterioration of the goods passes to the Customer, at the latest, upon handover. In the event of sale by delivery to a place other than the place of performance (Versendungskauf), the risk of accidental loss and accidental deterioration of the goods and the risk of delay shall, however, pass as soon as the goods are delivered to the shipper, carrier or other person or establishment assigned to handle the shipment.
(3) If the Customer is in default of acceptance, fails to perform an act of cooperation, or delays our delivery on other grounds for which the Customer is responsible, We shall thus be entitled to demand compensation for the losses resulting therefrom, including additional expenses (e.g. storage and transport costs).
§ 7 Warranty for material defects, guarantee
(1) Claims for defects relating to used goods delivered by us shall be time-barred after one year following handover to the Customer. In the case of entrepreneurs, the limitation period for claims for defects arising from items delivered by us shall be 1 year. In all other respects, we shall be liable for material defects in accordance with the relevant applicable statutory provisions, in particular §§ 434 et seqq. of the German Civil Code (Bürgerliches Gesetzbuch, BGB).
((2) Our liability under § 8 of this GTC, in particular for compensation claims made by the Customer due to death, personal injury or damage to health, or due to breaches of essential contractual obligations (see § 8 below), for damage under the German Product Liability Act (Produkthaftungsgesetz) as well as for any warranties issued, shall remain unaffected by the limitations set out in the above paragraph 1. The statutory limitation periods for the right of recourse, under § 478 of the German Civil Code, for entrepreneurs and our liability for fraudulent concealment of a defect shall also remain unaffected.
(3) Claims for defects brought by merchants shall be conditional upon the merchants having fulfilled their statutory obligation to inspect and complain (§§ 377, 381 of the German Commercial Code (Handelsgesetzbuch, HGB)).
(4) There shall only be a guarantee as to the quality or durability (§ 443 of the German Civil Code (BGB)) of goods We have delivered if We have expressly offered and agreed to such a guarantee. Any manufacturer's warranties remain unaffected.
((5) Any complaints and warranty claims can be submitted to the address provided in the Seller identification section.
§ 8 Liability
(1) Customer claims for compensation are excluded. Excluded from the foregoing are claims for compensation on the part of the Customer resulting from death, personal injury or damage to health, or from a breach of essential contractual obligations (cardinal obligations) as well as liability for other losses or damage resulting from an intentional or grossly negligent breach of obligation on the part of the Seller, its legal representative or vicarious agents. Essential contractual obligations are those obligations which must be fulfilled in order to achieve the purpose of the contract and for which the Customer, as a contracting party, is generally entitled to rely on fulfilment. In the event of a breach of essential contractual obligations, the Seller shall only be liable for foreseeable damage, typical to the contract, if such damage has been caused by ordinary negligence, unless the claims for compensation are due to death, personal injury or damage to health.
(2) The limitations set forth in the preceding paragraph 1 shall also apply for the benefit of the Customer's legal representatives and vicarious agents where such claims are asserted directly against them, and shall apply mutatis mutandis to claims for reimbursement of expenses.
((3) The provisions of the German Product Liability Act (Produkthaftungsgesetz) as well as our liability under any warranties issued shall remain unaffected.
§ 9 Right of withdrawal
Consumers have a statutory right of withdrawal. In accordance with the statutory provisions, you will receive written instructions on your right of withdrawal separately.
§ 10 Contract text
The contract text is not saved by us and cannot be accessed after completion of the ordering process. The Customer can print these terms and conditions and the order data prior to sending its order and shall receive a contract affirmation in accordance with the statutory provisions.
§ 11 Final provisions
(1) This contract shall be governed by the laws of the Federal Republic of Germany with the exception of the United Nations Convention on Contracts for the International Sale of Goods.
(2) If the Customer is acting as a merchant, a legal entity under public law or a separate estate under public law, or if the Customer has no general jurisdiction within the Federal Republic of Germany, the place of jurisdiction for all disputes arising out of the contractual relationship between the Customer and the Seller shall be the Seller's place of domicile.
(3) If any individual provisions of these General Terms and Conditions should be invalid, this shall not affect the validity of the remaining provisions.
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Last updated: 6 June 2014 Version: 4.0
