General Terms and Conditions of Business
As of 04-24-2012
1. General, Scope of application
1.1. These General Terms and Conditions of Business (hereinafter “GTC”) apply to all orders placed in the following online shop:
Seller and operator of the online shop is the following company:
CHAPS Merchandising GmbH
Legally represented by the managing directors Martin Supper und Ulrich Lang
CHAPS Merchandising GmbH
The respective current version of the GTC is available in the online shop under www.hofbraeuhaus-shop.de.
1.2. In the seller’s online shop orders can be placed by consumers in terms of § 13 BGB (German Civil Code) as well as business persons in terms of § 14 BGB (German Civil Code).
1.3. All agreements between seller and customers relating to an order placed via the online shop are stipulated in these GTC, the acknowledgement of order receipt sent by e-mail and in the notice of acceptance of the order, if any, issued by the seller after the customer has placed the order. The seller does not store any agreements between the seller and the customer for the customer’s interest. However, the order data is permanently available in the online shop via a customer account, if any, established by the customer. The GTC apply to a customer by referring to these GTC, acknowledging the applicability of these GTC and through activation of the appropriate button before the order placing process is completed. For business persons these GTC apply solely by referring to these GTC. With regard to business persons the GTC apply as a framework agreement for future contracts between the seller and the business person concerning orders of goods without a need for the seller to refer to the GTC in each case separately.
1.4. To the contract between the seller and the customer these GTC apply exclusively. Any conflicting general terms and conditions of business used by the customer only apply if the seller agrees with them expressly and in Text form (para 126b BGB – German Civil Code). These criteria have to be met even if the seller is aware of those general terms and conditions while contracting with the customer.
1.5. The exclusive contract language is German. If these GTC or other contract-relevant declarations or documents should have been translated into languages other than German, the German version will prevail and will be solely decisive for the parties. If the customer is a business person para 312i section 1 clause 1 numbers 1 to 3, clause 2 BGB (German Civil Code) do not apply.
2. Subject matter of the contract
2.1. The seller’s online shop is exclusively directed to persons having unlimited legal capacity and legal persons. Persons having limited legal capacity (e.g. adolescents before reaching the age of 18) can only use the online shop with the consent of their legal representative.
2.2. The seller’s offers/quotations are made without engagement and are subject to change unless the seller have explicitly designated them as binding. If the seller have designated the seller’s offer/quotation as binding, the seller is deemed bound to such offer/quotation for a period of two weeks from receipt of the offer/quotation by the customer.
2.3. Illustrations, drawings and other materials relating to the seller’s offers/quotations (hereinafter “product information”) generally only serve to unspecifically present the goods. Changes and errors in the product information are reserved until the time of order placing. Only those qualities of the goods are deemed warranted by the seller which have been explicitly referred to by us as “warranted qualities” (“zugesicherte Eigenschaften”).
3. Contract conclusion
3.1. The illustrations of goods within the online shop are for information only, without responsibility and commitment by the seller. To place an order in the online shop, the customer must first put the desired item/s into the virtual shopping cart. Thereafter, the customer can proceed to the “Checkout” for payment, establish his own customer account – if desired – and then enter the data required for contract conclusion which can be changed at any time until the order is completed. Only when clicking on the button “Buy now” the customer makes a legally binding offer to the seller for conclusion of a purchase contract.
3.2. The seller’s acknowledges receipt of the customer’s order by e-mail without undue delay (“unverzüglich”) in accordance with the seller’s legal obligation towards consumers by para 312i section 1 clause 1 no. 3 BGB (German Civil Code) (“acknowledgement of order receipt”). However, such acknowledgement of order receipt does not lead to the consummation of the purchase contract. The contract is only deemed consummated if the seller dispatches the ordered goods or explicitly accept the order by issuing a notice of order acceptance (“Auftragsbestätigung”) to be sent by e-mail within five days from receipt of the customer’s order. Otherwise, the customer’s offer for contract conclusion is deemed to lapse.
3.3. Where the customer was in breach of these GTC or his contractual duties vis-à-vis with the seller at any time in the past, the seller reserves the right to refuse execution of any future orders without prior warning.
4. Withdrawal from the contract and breach of duty by the customer
4.1. The seller reserves the right to withdraw from the purchase contract if the seller (a) is – with no fault on the seller’s part – unable to deliver the goods ordered by the customer because the seller pre-supplier fails to duly comply with his contractual duties or (b) the goods ordered by the customer are unavailable for a period of at least one month because of a delay not attributable to the seller (operational disturbance owing to fire or water, breakdown of any relevant production facilities or machines, strike, lock-out, energy shortage or lack of transportation means, war or interference by the authorities). In this case, the seller will advise the customer without undue delay (“unverzüglich”) that the goods ordered by him are not available. If the seller then make use of the seller’s right to withdraw from the contract, the seller will refund the customer any amounts already paid by him without undue delay (“unverzüglich”) and at no expense to the customer. This is without prejudice to the customer’s rights provided by law.
4.2. In case the customer fails to comply with his duties under the purchase contract concluded with us, in particular if he (a) fails to pay the purchase price or (b) returns the goods after of the revocation period even though he has no right to assert claims for defects, the seller reserves the right to charge to the customer a flat-rate handling fee amounting to 20% of the respective order value but by no means less than € 15.00, unless the customer proves that the seller incurred no or considerably less damage than the said handling fee as a result of the breach of duty. This is without prejudice to any further claims the seller may be entitled to assert.
5.1. The prices for the ordered goods are those valid at the time on which the order is placed. All prices are inclusive of value-added tax and exclusive of the costs for payment, delivery and dispatch as well as customs duties, if any.
6. Terms of payment
6.1. The seller generally accepts payment only as follows:
Credit card (VISA, Master Card, American Express
Invoice and debit through Billpay GmbH
Other payment methods as afore-mentioned are excluded.
Additional costs will not be charged.
6.2. In the event the customer choses to pay with credit card, the customer authorizes the seller by placing the order to debit customer’s credit card with the invoiced amount inclusive the costs for payment, delivery and dispatch.
6.3. In the event the customer choses to pay through Billpay GmbH following provisions apply:
The invoiced amount is due for payment on the day mentioned in the invoice (20 to 30 days after invoice date) and payable to Billpay GmbH (https://www.billpay.de/endkunden/) as the seller’s service provider as far as purchases are made on account. By placing his order the customer authorizes Billpay GmbH revocable to debit the amount for the purchase by direct debit from the customer’s account. If the customer’s account does not have the requisite coverage, the account-holding credit institution has no redemption obligation. Partial payments are not admitted by direct debit.
The method of payment for purchase by direct debit requires a successful credit check through the BillPay GmbH as well as a German bank account. If the customer after checking his creditworthiness is permitted to purchase by direct debit, the payment is processed by BillPay GmbH, to whom the seller assigns his purchase price claim. In this case, the customer can only pay with debit-discharging effect to the Billpay GmbH. Even in case of purchasing by direct debit via Billpay GmbH the seller is still responsible for general customer inquiries (e.g. for goods, delivery, dispatch), returns, complaints, withdrawal statements and –submissions or credit notes. For purchasing by direct debit the General Conditions of the Billpay GmbH apply (https://www.billpay.de/allgemein/datenschutz/).
With the specification of the bank account, the customer confirms, that he is entitled to debit the corresponding bank account and that the account provides the required coverage. Return debits are associated with a high effort and costs for the seller and the Billpay GmbH. In the case of a return debit (in absence of a required coverage of the bank account, due to expiration of the bank account or unauthorized objection of the account holder), the customer authorizes the Billpay GmbH to submit the direct debit for each overdue payment obligation once more. In such a case, the customer is obligated to pay a processing fee of EUR 12.00 per return debit. Further claims are reserved. The customer is granted the possibility to prove that lower or no costs were issued by the return debit. In view of the effort and the costs of return debits and to avoid the processing fee we ask the customer in the event of a withdrawal or a rescission of the purchase contract, a return or a complaint, not to contradict the direct debit. In such a case, after consultation with the seller, the rescission of payment takes place by remittance of the appropriate amount or by credit.
The payment method sale against invoice implies a successful credit assessment by Billpay GmbH. In the event of a successful performance of said credit assessment, the processing of the payment follows in cooperation with Billpay GmbH to whom the seller assigns the purchase price. In that case the customer may only perform the payment towards Billpay with a debt-discharging effect. In the event of the payment method sale against invoice through Billpay, the seller also remains responsible for general customer enquiries (e.g. with regard to the goods, delivery time, delivery), returns, complaints, declaration of withdrawal and mailing hereto or credits. With regard to the payment method sale against invoice Billpay’s General Terms and Conditions (https://www.billpay.de/allgemein/datenschutz/) apply additionally.
In the event of the chosen payment method direct debit, the invoiced amount is due for payment without delay and payable to Billpay GmbH (https://www.billpay.de/endkunden/) as the seller’s service provider through withdrawal from the specified giro account at the named bank (“Girokonto”).
6.4. Invoices issued by the seller are due immediately and are payable without deductions. Payment is only deemed effected if and as soon as the seller can dispose of the amount due. The customer is deemed in default if he fails to pay within a period of thirty days after the due date and receipt of an invoice or a comparable schedule of amounts due and – only if the customer is a consumer – he has been instructed to that effect in the invoice or the comparable schedule of amounts due. In the case of default, the seller is entitled to charge default interest at the rate as provided by law. This is without prejudice to any further claims of the seller and leaves the seller’s entitlement to tradesman like due-date-interest granted by para 353 HGB (German code of commercial law) unaffected.
6.5. The customer is only entitled to set off with counter-claims are legally binding or are undisputed or have been acknowledged by the seller; this does not apply if the counter-claims are claims for defects asserted by the customer against the seller under the very same contract. The customer may only exercise a right of retention if his counter-claim is based on the very same purchase contract.
7. Retention of title
7.1. The goods ordered by the customer remain property of the seller until full payment of the purchase price. Furthermore the retention of title applies towards business persons until the full payment of all current claims by the seller arising not only from the purchase contract but also from any other contract or behavior related to the business relationship.
7.2. Goods subject to retention of title may not be mortgaged or provided as security to a third party. In the case of attachment or other encroachment by a third party upon the goods delivered subject to retention of title, the customer will notify the seller without undue delay (“unverzüglich”).
8. Terms of delivery/ Delivery times/ Costs
8.1. The goods – if in stock – are delivered to the customer within three to four working days (“Werktage”) which are defined as the days from Monday to Friday with the exception of the statutory public holidays of the seller’ location. A collection of goods at the seller’s site is not possible. For the rest the estimated times of delivery shown next to the goods within the online shop apply to the delivery of those goods.
8.2. The risk of accidental loss or accidental deterioration of the goods passes to the customer upon hand-over of the goods. If the customer is a business person and in the case of a delivery to a place other than the place of performance (“Versendungskauf”), the risk of accidental loss or accidental deterioration of the goods as well as the risk of delay already passes to the customer upon hand-over of the goods to the carrier, forwarder or other person or institution assigned to execute dispatch. Customer’s default of acceptance of the goods (“Annahmeverzug”) is to be treated like, and has the same consequences as, the hand-over of the goods.
8.3. The seller delivers the goods itself, or assigns a third party to do so, to the address indicated by the customer when placing the order. The cost of delivery and dispatch is borne by the customer; this also applies where the customer requests partial deliveries which entail higher costs of dispatch than if all goods were delivered at once.
8.4. The cost of delivery and dispatch, the carrier assigned with the delivery and the mode of dispatch is stated in the online shop under “delivery and costs”. On a case-by-case basis taxes and/or other dues (e.g. customs duties) might incur in the event of cross-border deliveries; such duties are borne by the customer.
8.5. As a rule, the goods to be dispatched are insured. The seller requests the customer to have any visible damage, including damage to the packaging, confirmed by the carrier in Text form (para 126b BGB – German Civil Code) upon acceptance of the goods. If there is no or insufficient stock of the goods ordered by the customer and delivery of the goods is delayed as a result, the seller will notify the customer to that effect in Text form (para 126b BGB – German Civil Code) without undue delay (“unverzüglich”). In this case, the seller is entitled to make partial deliveries to an extent reasonably acceptable to the customer. In this case, any additional cost of dispatch is borne by the seller. This is without prejudice to the customer’s rights provided by law pertaining to the seller’s default.
9. Consumer’s right of withdrawal
Instructions as to the right of withdrawal
Right of withdrawal
The costumer has the right to withdraw from this contract within 14 days without giving any reasons.
The withdrawal period will expire 14 days from the day on which the customer acquires, or a third party other than the carrier and indicated by the customer acquires, physical possession of the goods. In the case of contract relating to multiple goods ordered by the consumer in one order and delivered separately, the withdrawal period will expire 14 days from the day on which the customer acquires, or a third party other than the carrier and indicated by the customer acquires physical possession of the last good. In the case of a contract relating to delivery of a good consisting of multiple lots or pieces, the withdrawal period will expire 14 days from the day on which the customer acquires, or a third party other than the carrier and indicated by the customer acquires, physical possession of the last lot or piece.
To exercise the right of withdrawal, the customer must inform us (CHAPS Merchandising GmbH, postal address: Hofbraeuhaus-shop.de, c/o PORTICA GmbH, Von-Galen-Straße 35, 47906 Kempen, Germany, phone +49 (0)2234 – 9990714, e-mail firstname.lastname@example.org) of the customers decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). The customer may use the attached model withdrawal form, but it is not obligatory.
Effects of withdrawal
If the customer withdraw from this contract, the seller shall reimburse to the customer all payments received from the customer, including the costs of delivery (with the exception of the supplementary costs resulting from the customer’s choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which the seller is informed about the customers decision to withdraw from this contract. The seller will carry out such reimbursement using the same means of payment as the customer used for the initial transaction, unless the customer had expressly agreed otherwise; in any event, the customer will not incur any fees as a result of such reimbursement. The seller may withhold reimbursement until the seller received the goods back or the customer supplied evidence of having sent back the goods, whichever is the earliest.
The customer shall send back the goods or hand them over to us or without undue delay and in any event not later than 14 days from the day on which the customer communicates the customers’ withdrawal from this contract to us. The deadline is met if the customer sends back the goods before the period of 14 days has expired. The customer will have to bear the direct cost of returning the goods. The customer is only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods
END OF INSTRUCTIONS AS TO THE RIGHT OF REVOCATION
Exclusion of the right of withdrawal
In the case of delivery of goods which are not prefabricated and were made to the consumer’s specifications or which are clearly personalized, the customer can not withdraw from the contract. The right of withdrawal expires ahead with regard to contracts (a) for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were as well as (b) for the supply of sealed audio or sealed video recordings or sealed computer software which were unsealed after.
10. Liability for defects of the goods
10.1. Customer’s rights and claims for defects as to quality or title are governed by the applicable statutory provisions unless otherwise stipulated hereinafter. The same applies to legal representatives and agents engaged by the seller.
10.2. The customer is obliged to give notice in Text form (para 126b BGB – German Civil Code) of obvious defects of the goods including in particular damages occurred in transit to the seller within two weeks from receipt of the goods; which period is deemed observed if the notice is dispatched to the seller in due time within such period. After expiry of such period, the customer may no longer assert any claims for damages based on defects which were obvious upon receipt of the goods. The customer may however still assert any further claims for defects without restriction (in particular subsequent satisfaction (“Nacherfüllung”), reduction of the purchase price and withdrawal) even if he failed to comply with his duty to report obvious defects. The obligations of examination and rebuke (para 377, 381 section 2 HGB - German Code of Commercial Law) with regard to business persons remain unaffected.
10.3. The seller accepts no liability for damages not caused to the goods themselves, neither may the seller be held liable for any other pecuniary loss such as lost profit. Apart from that, the seller’s liability is limited to the typical foreseeable damage.
10.4. Notwithstanding the regulation in para 438 section 1 no. 3 BGB (German Civil Code), the regular limitation period for claims based on defects as to quality or title is one year from hand-over for used goods. If the customer is a business person the limitation period for claims concerning new goods is one year from hand-over and the limitation period for claims concerning used goods is six months.
10.5. The foregoing limitations of liability and the shortened limitation period do not apply (a) to damages which are based on a willful or grossly negligent breach of a contractual duty or fraudulent conduct of the seller, (b) to damages to life or limb or health, (c) to damages incurred as a result of the lack of a quality of the goods which has been guaranteed by the seller, (d) to damages incurred as a result of the breach of an essential contractual duty which makes the performance of the contract possible in the first place and which is usually fulfilled to the customer’s reasonable faith (“wesentliche Vertragspflicht”) (e) to damages covered by the liability under the “Produkthaftungsgesetz” (German Product Liability Act), (f) to the assertion of claims for compensation of damages if the sold goods are newly manufactured items and (g) to the assertion of claims for the final delivery to a consumer in the context of distributor’s recourse (para 478, 479 BGB (German Civil Code)).
10.6. The foregoing is without prejudice to any guarantees given by the manufacturer of the goods or the seller going beyond the limits of the seller’s liability for defects as provided by law. Claims for defects which the customer is by law entitled to assert also remain unimpaired by any guarantees given.
11. Choice of law and place of jurisdiction
11.1. German law applies with the exception of UN sales law and the conflict of laws; Art. 3 EGBGB (Introductory Law to the German Civil Code) remains unaffected. For transactions with consumers resident within the EU/EEC, the law of the country where the consumer is resident may apply by way of exception if such regulations are mandatory provisions for the protection of consumers.
11.2. Where the customer has no place of general jurisdiction in Germany applicable to him (“allgemeiner Gerichtsstand”) or has relocated his residence or habitual abode off Germany after conclusion of the contract or the customer’s residence or habitual abode is unknown at the time of bringing the action, the place of jurisdiction will be Cologne. If the customer is a merchant, legal entity under public law or a special fund under public law (“öffentlich-rechtliches Sondervermögen”) the place of exclusive – and also international - jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Cologne. Notwithstanding this, the seller is also entitled to sue the customer at the place of general jurisdiction (“allgemeiner Gerichtsstand”) applicable to him.
12. Final provisions
12.1. Changes and amendments must be in Text form (§ 126b BGB – German Civil Code, especially e-mail and fax”). This also applies to the nullification of this section.
12.2. If any individual provisions of the contract concluded with the customer including these GTC should be or become invalid in whole or in part, this will be without prejudice to the validity of the remaining provisions. In this case, the statutory provisions will apply.
12.3. The assignment of customer’s rights and duties arising from a contract concluded with the seller requires the consent of the seller which may only be denied for good cause. This applies in particular to claims for defects asserted by the customer against the seller.
13. Instructions under the Batteriegesetz (German Act on the putting into circulation, return and environment-friendly disposal of batteries and accumulators)
The seller’s deliveries may comprise batteries. The customer as the end consumer is obliged under the Batteriegesetz to return all used batteries. The customer must therefore take the batteries purchased from us to a public collection point nearby at no expense to the customer or return them to the seller. Batteries that have to be returned by the customer are marked with a sign showing a crossed out waste container and the chemical symbol designating the heavy metal which qualifies the battery as a product containing harmful substances (Cd for cadmium, Hg for mercury or Pb for lead).
Appendix - Model withdrawal form
(If you wish to withdraw from the contract, please fill out this form and send it back to us.)
c/o CHAPS Merchandising GmbH
Phone: +49 (0)2234 – 9990714
I/we (*) hereby give notice that I/we withdraw from my/our (*) contract of sale of the following goods:
Ordered on (*)/received on (*):
Name of consumer(s):
Address of consumer(s):
Signature of / consumer(s): (only if this form is notified in writing)
(*) Delete as appropriate
End of model withdrawal form
European Commission provides an Online Dispute Resolution platform. Thus, consumers will be permitted a possibility of an out-of-court settlement of disputes in connection with their online sales. The Online Dispute Resolution platform will be provided under the link: