General Terms and Conditions (T&Cs)
The following General Terms & Conditions (T&Cs) solely regulate the contractual relationship between the seller Kümmel und Co. GmbH, Lochweg 19, 97318 Kitzingen, Germany (represented by the director Jörg Kümmel) and the buyer. Contractual relationship here means each conclusion of a contract via the seller's online shop on the basis of which the seller is obligated to provide goods and services to the buyer. In placing their order the buyer expressly confirms that they have taken note of and accepted these T&Cs.
Buyers may be both consumers as well as companies. A consumer is any natural person who, when entering into a legal transaction, acts primarily in a fashion which cannot be attributed to the exercise of their trade, business or profession (section 13 German Civil Code (BGB)). An entrepreneur is any natural or legal person or a partnership with legal personality who or which, when concluding a legal transaction acts in exercise of its trade, business or profession (section 14 BGB).
Terms & Conditions of the buyer which contradict or deviate from these T&Cs are not recognised, unless, the seller has expressly agreed their applicability on an individual basis.
2. Subject of the Conract
The object of the contract is the sale of goods by the seller to the buyer via the website „https://muenchen.phorms-shop.de/“, in particular the sale of school uniform.
3. Conclusion of the Contract, Contractual Language, Text of the Contract
The buyer may purchase goods via the seller’s online shop by first registering and creating a customer account. Subsequently the buyer may provide their personal details to order goods via the seller’s online shop by first adding goods to their virtual basket and finally going through and concluding the automated order process in the seller’s online shop.
After the buyer has concluded the order the seller will send an automated email confirming receipt of the order to the buyer’s email address in which the buyer’s order is repeated. The email confirming receipt of the order does not represent acceptance of the buyer’s offer to conclude a purchase agreement and a purchase agreement therefore does not come into existence as a result of the confirmation email. In addition, the email confirming receipt of the order does not represent any confirmation as to the availability of the ordered goods.
If the buyer pays in advance (e.g. by direct bank transfer or using paydirekt), the purchase agreement is concluded between the buyer and the seller when the payment is transferred. In all other cases the purchase agreement is first concluded when the goods are delivered from the seller, along with the invoice, to the buyer.
The German language is the language used to conclude the contract. The text of the contract is not saved by the seller and may no longer be available after the conclusion of the ordering process. The buyer may, however, directly save or print the order details using their browser functions and after the order has been placed will receive an email in which the their order is repeated.
4. Technical Steps Leading to the Conclusion of the Contract, Recognising and Correcting Input Errors
The buyer will go through the following technical steps to place an order:
- Basket: The buyer can place products selected into the virtual basket. The products selected can be changed at any point up until the order is submitted by changing the quantity of a product, clicking on the X to delete the selection or by cancelling the order process. Clicking on the “Check out” button takes the buyer to the next step in the order process.
- Invoice address/delivery address: The system automatically uses the address supplied by the buyer during registration as the invoice address. The buyer may also give a different address by clicking on “Addresses” in their account. The delivery address is preset to the invoice address unless otherwise specified. The buyer may alternatively enter a different delivery address during registration or add a new address in their account via “Add a new address” and assign this as the standard delivery address. Clicking on the basket takes the buyer back to the overview of the goods selected, then the ordering process is continued by clicking the “Check out” button.
- Shipping method/payment method: In this step the buyer can select their required shipping and payment methods. Clicking on the “Continue” button takes the buyer to the final step in the order process.
- Summary/final step of the ordering process: In the final step of the ordering process the buyer can check the details of the order and make changes if necessary. If required the buyer can change the delivery address by clicking on “Add a different delivery address” and also change the shipping method and/or payment method. To conclude the ordering process the buyer ticks the box next to “I have read the T&Cs of your shop and I agree to their applicability” and clicks on the “Place a binding order” button; in doing so the buyer declares that they agree with the T&Cs and submit a legally binding offer.
The buyer can use the normal mouse and keyboard functions and the “Amend” links provided on the order summary page to amend their order details. The buyer can likewise correct their order details by clicking on the “Back” button of their Internet browser or by clicking on the stages of the order superimposed on the upper area of the online shop to navigate back through the individual steps of the order process.
5. Implementing the Contract, Shipping Costs, Delivery
All prices are gross prices in euros plus any applicable shipping and packaging costs.
The applicable shipping costs which are borne by the buyer from the seller’s location can be viewed by the buyer in the online shop using the link to the seller’s shipping cost information as well as in the price breakdown in the virtual basket.
The seller undertakes to send the goods to the buyer by post without delay after the conclusion of the purchase agreement and payment of the purchase price in full; the latter only applies when a payment type has been selected where payment is required before the goods are received.
Delivery is always at the risk and expense of the buyer, provided the buyer is not a consumer. If requested by the buyer the seller is entitled, but not obligated to insure the goods at the buyer’s expense.
Delivery will take up to two weeks from dispatch within Germany. Differing delivery times (e.g. for deliveries outside of Germany) are stated by the seller in the online shop at https://muenchen.phorms-shop.de/en/liefer-und-versandkosten.
If an item ordered is not in stock because the seller has not received a delivery from their supplier for which the seller is not at fault, despite a contractual obligation for the item to be delivered, the seller may withdraw from the contract. In this case the seller must inform the buyer without delay that the item ordered is no longer available and reimburse any consideration already provided without delay.
6. Right of Withdrawal, Legal Consequences of Exercising the Right of Withdrawal
Consumers have a right of withdrawal in accordance with the statutory provisions. More information about the right of withdrawal can be found in the seller’s withdrawal instructions.
The seller shall be liable without restriction in the event of losses caused by intentional acts, omissions or gross negligence, fraudulently concealed defects, in the event of provision of a warranty of quality, for claims pursuant to the German Product Liability Act (Produkthaftungsgesetz) and for injuries to life, body or health.
The seller shall not be liable for other losses, provided these did not result from the simple negligence of the seller, the seller’s statutory representatives or vicarious agents. In the event of losses arising from the infringement of fundamental contractual obligations, the performance of which actually enables the proper implementation of the contract and the observance of which the buyer is entitled to expect (cardinal obligations) the seller’s liability shall, however, be limited to foreseeable losses typical for this type of contract provided such losses were caused by simple negligence.
The statutory provisions which impose liability without fault on the seller for certain acts or omissions are not affected by the aforementioned liability exclusions and restrictions.
The seller shall be liable for defective goods in accordance with the statutory provisions for the sale of goods (sections 434 ff BGB).
After delivery the buyer shall inspect the goods ordered without delay, provided this is a mutual commercial transaction in terms of the German Commercial Code (HGB). This shall, in particular, apply with regard to the completeness and functionality of the goods. The seller must be informed without delay of any defects determined during the inspection or which are discernible without further action. A detailed description of the defects must accompany the defect notification. If the buyer does not report any defects the goods are deemed to be accepted unless the defects were not discernible during the inspection.
In the event of defects which are not discernible as part of the normal inspection pursuant to the previous paragraph of this section, the seller must be informed without delay after the defects are detected, provided this is a mutual commercial transaction; otherwise the goods are deemed to be accepted even considering such defects.
9. Payment Terms, Default and Retention of Title
The purchase price becomes payable directly after the conclusion of the purchase agreement. The customer may choose to pay by direct debit, Giropay, immediate bank transfer, paydirekt or credit card.
The buyer enters into default, provided they are not a consumer, if payment has not been made within 30 days of becoming due. Consumers likewise enter into default within 30 days of payment becoming due if this consequence is stated in the invoice or request for payment. If the buyer defaults on payment, the purchase price is subject to interest at 5 percentage points above the base rate for the period the buyer is in default. The seller reserves the right to prove greater losses due to the default and claim these from the buyer.
The seller shall retain title to the goods delivered until payment has been received in full.
In commercial business transactions title to the sold goods first passes from the seller to the buyer when all claims arising from the business relationship with the seller have been settled by the buyer (extended retention of title).
If the seller’s retention of title lapses regarding goods acquired in commercial business transactions as a result of the buyer selling, combining or processing the purchased goods then the new item or claim which has arisen as a result of one of the acts listed takes the place of the purchased goods (prolonged retention of title).
10. Data Protection
The buyer is hereby notified that their personal data required to process the order will be saved on data carriers by the seller and processed. Data is only transferred to the payment provider PAYONE for the purpose of processing the order as specified above. Data is not transferred to third parties for other purposes (e.g. marketing purposes).
11. Final Provisions
German law shall be exclusively applicable to these T&Cs and contracts concluded based on these T&Cs, excluding the UN Convention on the Contracts for the International Sale of Goods (CISG). If the buyer is a consumer, this choice of law shall only apply as long as protection is not granted by the mandatory rules of the law of the country in which the consumer has its habitual residence.
If the buyer is a registered trader, a legal person under public law, or a public law special fund, it is hereby agreed that the competent courts of Würzburg, Germany shall have jurisdiction over all disputes arising from and in connection with this contract.
If one or more provisions of these T&Cs are invalid, in whole or in part, this shall not affect the validity of the remaining provisions.
12. Information Regarding the EU Commission’s Online Dispute Resolution Portal, Alternative Dispute Resolution
The EU Commission provides an Online Dispute Resolution platform (“ODR platform”) which can be found at //ec.europa.eu/consumers/odr. Provided the buyer is a consumer residing in the European Union they are able to use this platform to resolve disputes regarding contractual obligations resulting from online purchase agreements out-of-court.
The seller is not obligated to take part in dispute resolution procedures before a consumer conciliation body and in principle is not prepared to do so.
As at June 2020