SMAKE GENERAL TERMS AND CONDITIONS
Terms and conditions for contracts concluded over the shop module
CEOs: Mark Busche, Thomas Drees
Erinstraße 28, 44575 Castrop-Rauxel
- hereinafter referred to as "SMAKE" -
and the customer
- hereinafter referred to as "the customer" - .
The customer can download these terms and conditions on the corresponding smake.com website and store them. Moreover, these terms and conditions will be sent to the customer by email after conclusion of the contract so that the he can save and print them.
§ 1 SCOPE OF APPLICATION, DEFINITIONS
(1)The following terms and conditions shall be applicable to consumers. For the business relationship between SMAKE and the customer, the following terms and conditions shall apply exclusively in the version that was valid at the time of placing the order, provided that the customer is an entrepreneur. Any deviating conditions of the customer – provided that he is an entrepreneur– shall not be acknowledged unless the provider expressly approves their validity in writing.
(2) The customer shall be deemed a consumer to the extent that the purpose of the ordered deliveries and performances cannot be attributed to his commercial or independent professional activity. Conversely, an entrepreneur is any natural person or legal entity or joint partnership with legal capacity who, upon conclusion of the contract, is acting in execution of its commercial or independent professional activity.
§ 2 SUBJECT MATTER OF THE CONTRACT/CONCLUSION OF CONTRACT
(1) Subject matter of the contract
With its online service, SMAKE – hereinafter referred to as “the provider” -
offers entrepeneur/tradesmen to embroider motifs and letterings chosen by the customer onto textiles and/or to print them on textiles or other printable items. The textiles or other items can be chosen by the customer separately and - if applicable – in different sizes and embroidered or printed with one or more specified logos and/or letterings. Depending on the kind of shop, it is also possible to upload individual motifs. These motifs can be completed by letterings (i.e. individual name letterings). During the order process, the customer has the chance to influence on the creation with regards to form, size and colour. These creative possibilities are, however, limited by their feasibility. For this reason, the customer is guided by the stored software. Should a customer's wish – in spite of the limitations by the SMAKE software – not be within the scope of possibilities, SMAKE will inform the customer on this by email and request the customer to send a new offer which corresponds to the feasibility requirements.
(2) Conclusion of the contract
The customer first chooses the item or textile to be processed. After that, he chooses the motif or lettering according to the specifications of the respective shop module. Where applicable, the customer may upload his own motif or text according to the specifications of the shop. The customer must specify the kind and colour of the required product, order quantities, text to be printed or embroidered or motif as well as his customer data. For the customer data, a special form will be provided on SMAKE.
As soon as the item to be embroidered or printed on and the corresponding logo have been chosen by the customer, he can add the product to his shopping cart by pressing the button “add to shopping cart”. Using the button “order now with costs”, the customer bindingly purchases all products added to his shopping cart. Before sending the order, the customer can review and change the data at any time. The purchase order, however, can only be sent and transferred if the customer has accepted these terms and conditions by clicking the button “accept terms and conditions” and in doing so has included them into his order.
SMAKE will then send the customer an automatic order confirmation by email where the order of the customer is repeated and which can be printed via the function „print“. The automatic order confirmation only documents that the order has been received by the provider and does not represent an acceptance of the order. The contract shall only be concluded when the declaration of acceptance has been sent by the provider, which is done by separate mail or by delivery or the ordered goods.
(3) SMAKE shall have the right to withdraw from the contract or refuse the order if a motif to be embroidered or printed infringes any rights of third parties or statutory provisions or is not suitable for being processed for any other reason, given that the customer has the possibility to choose his own motifs.
§ 3 GRAPHICS FOR INDIVIDUALISATION/PERSONALIZATION OF PRODUCTS
(1) The graphics to be sent by the customer will have to correspond to standards specified in the online module if these have not been specified by the provider.
(2) Should SMAKE find that the supplied motifs are not compatible, he will inform the customer about this without delay.
(3) The customer is responsible for the motifs, graphics and letterings sent by him. The customer is obliged to guarantee that all motifs/graphics/texts are free of third party rights and do not violate any law. SMAKE is thus not obliged to check all graphics for their compliance with the law. SMAKE reserves the right to refuse the order as soon as SMAKE becomes aware of the infringement of third party rights.
§ 4 DELIVERY
(1) If not otherwise agreed upon in a contract, SMAKE shall deliver the ordered goods to the address stated by the customer after receipt of his payment.
(2) The availability of the individual goods is indicated in the respective product descriptions. Products that are on stock will be sent within 3 weeks from conclusion of the contract, if not expressly agreed otherwise. If in case of an online order the goods are marked as not available, SMAKE will undertake to deliver these goods as soon as possible. Any information on delivery time given by SMAKE shall be unbinding unless it has exceptionally been confirmed by SMAKE as binding.
(3) SMAKE reserves the right to make a partial delivery if this appears to be advantageous for an expeditious handling and the partial delivery is not exceptionally unacceptable for the customer. The customer will not be charged for any costs incurred by such partial deliveries.
§ 5 RETENTION OF TITLE
SMAKE will retain the title to all delivered goods until payment has been made in full; in the event that the customer is a legal entity under public law, a special fund under public law or an entrepreneur acting in exercise of his commercial or self-employed professional occupation, even beyond, from the on-going business relationship until all claims that the seller is entitled to in relation to the contract have been settled in full.
§ 6 PRICES AND SHIPPING COSTS
(1) All prices stated on SMAKE are including applicable legal VAT. In closed B2B (business to business) shops that were specifically created for industrial customers by SMAKE, all prices displayed are exclusive of VAT. Unless it has been otherwise agreed contractually.
(2) For shipping costs, please see the corresponding offer.
§ 7 TERMS OF PAYMENT
(2) All prices are quoted in EURO including applicable legal VAT. In closed B2B (business to business) shops that were specifically created for industrial customers by SMAKE, all prices displayed are exclusive of VAT. Unless it has been otherwise agreed contractually.
(3) The price is payable immediately upon receipt of the invoice.
(3) For payment details, please see the corresponding sales offer.
(4) Should a customer be in default of his payments, SMAKE has the right to claim damages according to legal regulations and/or withdraw from the contract.
(5) SMAKE always issues an invoice to the customer which is handed out to him upon delivery or sent to him in written form.
§ 8 WARRANTY FOR MATERIAL DEFECTS
(1) In the event of defects, the customer is entitled to legal warranty rights according to the following provisions. If the contract only involves merchants, §§ 377 et seq. HGB shall apply in addition.
(2) The customer must inform SMAKE on any defects within a guarantee period of two years in the case of new goods or within one year in the case of used goods. If the customer is an entrepreneur, the warranty period for new products shall be one year. In the case of used products, the warranty shall be excluded for entrepreneurs and amount to 12 months for consumers.
(3) If any defects have been detected which have been claimed in due time, SMAKE is entitled to subsequent performance. In the event that the subsequent performance fails, the customer has the right to reduce the purchase price or withdraw from the contract. Otherwise the relevant statutory provisions shall be applicable.
§ 9 ILLUSTRATIONS
The illustrations used for description of the textiles shall not present the original offered item in any case. The example pictures serve the purpose of visualising the products. Depending on the screen and operating system, especially colours and sizes may be displayed in a different way, whereby the description of the corresponding product shall be decisive.
§ 10 LIABILITY
(1) Any damage claims on part of the customer shall be excluded with the exception of claims for damages caused by the violation of life, body and health or from the violation of essential contractual obligations (cardinal obligation) as well as liability for other damages caused by deliberate or grossly negligent breach of obligations on part of SMAKE, his legal representatives or agents. Essential contractual obligations are obligations that are required for the proper execution of the contract.
(2) In the case of breach of essential contractual obligations, SMAKE shall only be liable for typical foreseeable damage if this is caused by simple negligence, unless the customer claims for damages from violation of life, body or health.
(3) The restrictions in par. 1 and 2 shall also be applicable in favour of the legal representatives and agents of the provider if claims are made directly against them.
(4) The provisions of the Product Liability Act shall remain unaffected.
The right of revocation shall not be applicable, unless otherwise specified and according to § 312d par. 4 no. 1 German Civil Code, to distance selling contracts for the supply of goods which are manufactured according to customer’s specifications, tailor-made to personal needs, not suitable for return due to their condition or which are perishable or whose best before date has expired.
§ 12 INFORMATION ON DATA PROCESSING
(1) Within the scope of processing their orders, SMAKE will collect data from the customer whereby the corresponding provisions of the Federal Data Protection Act and the Telemedia Act as well as the corresponding federal state law will be observed. Without approval of the customer, SMAKE will only collect, process or use his inventory and usage data insofar as they are needed for fulfilment of the contractual relationship and for usage and invoicing of teleservices.
(2) Without approval of the customer, SMAKE will not use any data of the customer for the purpose of advertising and market or opinion research.
(3) The customer can revoke his approval on storage of his data at any time. To do so, it shall be sufficient to inform the provider on his concern at the following address:
CEOs Mark Busch, Thomas Drees
Erinstraße 28, 44575 Castrop-Rauxel
Phone +49 (0) 2305 94788 0
Fax +49 (0) 2305 94788 18
§ 13 PACKAGING ORDINANCE
SMAKE is connected to a nationwide waste disposal system according to § 6 par. 1 of the Packaging Ordinance.
§ 14 FINAL PROVISIONS
(1)The business relations between SMAKE and the customer are subject to the right of the Federal Republic of Germany. For consumers, this choice of law is only applicable insofar as the protection granted by mandatory provisions of the country in which the consumer has his habitual residence is not withdrawn.
(2) The contractual language shall be German.
(3) If the customer is merchant, legal entity under public law or special fund under public law, the place of jurisdiction shall be Bochum The same shall apply if the customer has no general place of jurisdiction in Germany or his domicile or habitual place of residence are unknown at the time the complaint is filed.
As of 09.07.2014