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§1 General – Scope of Validity
1. The following Terms and Conditions shall apply to all business relations between extratapete GmbH and Customer. The version effective at the time of signing the contract is decisive.
2. Customer accepts these Terms and Conditions when placing an order. Terms and Conditions which deviate, contradict or add to these Terms and Conditions shall not constitute an element of the contract, even if extratapete GmbH is aware of these, unless extratapete GmbH expressly acknowledges their validity.
3. Under the provisions of these Terms and Conditions, consumers are persons with whom extratapete GmbH enters into a business relationship, without these persons being assigned a commercial or freelance job.
Under the provisions of these Terms and Conditions, entrepreneurs are natural or legal persons or corporate bodies with whom extratapete GmbH enters into a business relationship and who operate by practising their commercial or freelance activity.
Under the provisions of these Terms and Conditions, customers are both consumers and entrepreneurs.
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§ 2 Ordering and Conclusion of Contract
1. The presentation of wallpapers in the catalogues and in the Internet remains free and is non-binding on the part of extratapete GmbH until the order is definitely confirmed. This presentation does not constitute a firm offer, but represents a non-binding invitation to Customer to place an order.
extratapete GmbH does not accept any liability for reasonable colour and pattern deviations with regard to the screen display of wallpapers in the Internet, since both colour and pattern can appear differently depending on the technical circumstances.
2. On placing his order, Customer shall hereby declare with binding effect that they want to purchase ordered goods (contract offer). Customer shall receive without delay confirmation from extratapete GmbH that his order has been received, which, however, does not constitute a binding acceptance on the part of extratapete GmbH.
3. Acceptance is constituted by the sending on the part of extratapete GmbH of a written order confirmation (via e-mail, post, fax) within three working days, or a week at the outside. extratapete GmbH shall have the right to refuse to accept the order.
4. Conclusion of the contract is subject to the suspensive condition of receipt of payment to the account of extratapete GmbH of the amount stipulated on the order confirmation (as a rule, pro-forma invoice; deposit in isolated cases only). Once payment has been received, the goods ordered go into production.
5. With regard to custom-made designs, special agreements shall apply, and shall be laid down in writing beforehand.
6. The contract shall be concluded on condition that, in the case of non-availability of the goods or if goods are only partly or not properly available, the contract may not be fulfilled or only fulfilled in part. This shall only apply to the case that non-availability is not due to a fault on the part of extratapete GmbH. Should the goods not be available or only partly available, Customer will be informed without delay. Payment rendered for the non-available goods will be returned without delay.
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§ 3 Prices
The prices quoted are binding and include the legally stipulated value added tax payable in the Federal Republic of Germany. All shipping costs shall be borne by Customer and are not included in the price quoted, unless other conditions have been expressly laid down in writing beforehand.
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§ 4 Payment
1. After Customer has placed an order and this order has been bindingly confirmed on the part of extratapete GmbH, a deposit, stipulated by extratapete GmbH in the confirmation, is due (as a rule, pro-forma invoice for the full amount).
2. Should part payment have been agreed beforehand, the balance is due on receipt of the goods.
All other payment terms require written confirmation on the part of extratapete GmbH.
Customer undertakes the obligation to remit the balance within fourteen days of having received the goods, at the latest. After this period of time has elapsed, Customer shall be deemed to be in default of payment and shall be liable to pay interest in the amount of 5 % above the base lending rate. Entrepreneurs shall be liable to pay interest during the default period in the amount of 8% above the base lending rate. extratapete GmbH reserves the right vis-à-vis Entrepreneur to bring proof of higher damages due to default interest and to lodge a claim.
3. With regard to custom-made designs, special agreements shall apply and shall be laid down in writing beforehand.
4. Customer may pay the price by bank transfer. extratapete GmbH reserves the right to exclude certain payment methods. Payment by bill of exchange or by cheque shall be excluded.
5. On timely notification of defects and on supply of actual proof of defects, Customer shall have the right to postpone payment of that portion of the invoice only, which pertains to the defective delivery or work.
Customer shall only have the right to offset if his counterclaims have been legally established and acknowledged by extratapete GmbH. Customer may only exercise the right to withhold payment, if his counterclaim is based on the same contractual relationship.
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§ 5 Reservation of Ownership
1. The goods delivered remain the property of extratapete GmbH until payment has been rendered in full.
2. Customer shall not have the right to remove the goods to another place without the consent of extratapete GmbH. Customer must notify extratapete GmbH in writing and without delay of loss, damage or seizure, or any other access by a third party. Customer must notify extratapete GmbH without delay if the goods change hands or of a change of Customer's address.
Customer shall undertake the obligation to take good care of the goods while they remain the property of extratapete GmbH. Customer shall compensate for any damages or costs incurred by extratapete GmbH through violation of this obligation or through necessary measures taken to prevent access by a third party.
extratapete GmbH shall have the right in the case of behaviour on the part of Customer that is contrary to the agreement, in particular, in the case of default of payment, to withdraw from the contract and to reclaim the goods. Further, extratapete GmbH shall have the right on failure to fulfil an aforementioned obligation in accordance with Item 2. to withdraw from the contract and to reclaim the goods if adherence to the agreement can no longer be expected.
3. Entrepreneur shall have the right to resell the goods in proper business practice. He hereby cedes to extratapete GmbH all receivables to the value of the invoice amount which Entrepreneur accrues through resale to a third party. extratapete GmbH accepts the cession. After cession, Entrepreneur is empowered and obligated to collect the accounts receivable. extratapete GmbH reserves the right to collect the account receivable itself, as soon as Entrepreneur fails properly to comply with his payment obligations and gets into arrears.
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§ 6 Delivery
1. extratapete GmbH normally requires 14 working days at the most to deliver the products. This statement and others, even written ones, about the expected delivery time are non-binding, unless extratapete GmbH has previously, in an isolated case, issued Customer with a written undertaking that clearly states that is binding.
With regard to custom-made designs, the delivery times shall be laid down in writing beforehand.
If extratapete GmbH cannot deliver within the bindingly agreed delivery time, Customer shall grant extratapete GmbH a reasonable period of time in which to deliver before exercising his rights to lodge a claim. The liability restrictions as laid down in § 10 Items 1 and 2 of the Terms and Conditions shall apply to damages compensation due to late delivery.
2. All cases of force majeure or similar unforeseen events, such as works disruption, fire or flood damage, accidents in transit, etc. shall release extratapete GmbH from the obligation to deliver for the duration and scope of the hindrance.
3. Customer shall undertake the obligation to accept the goods ordered. If Customer has lawfully and properly ordered goods and still however refuses to accept the delivery, extratapete GmbH may after a period of 14 days has elapsed withdraw from the contract and reclaim the goods or demand compensation for damages due to non-fulfilment of the agreement.
Customer shall be liable for wrong deliveries due to data, either in written form, by telephone or via e-mail, given or transmitted in error by Customer.
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§ 7 Transportation and Passing of Risk
1. The goods are packed as is usual for the industry and with extreme care and are shipped ex works. With regard to Consumer, the risk of chance ruin or chance deterioration of the goods purchased passes to Consumer when the goods are delivered, even in the case of sales shipment. Consumer is requested to inspect the goods for damage before he accepts them and to notify the shipper and extratapete GmbH of obvious transportation damage.
2. With regard to Entrepreneur, the risk of chance ruin or chance deterioration of the goods purchased passes to Entrepreneur when the goods are delivered, in the case of sales shipment to the shipper when the goods are delivered or to the person/body otherwise appointed to execute the shipment. The same shall apply to the passing of risk when Entrepreneur accepts the goods late. extratapete GmbH shall not accept liability for loss or damage caused through transportation. Any claims of this nature shall be lodged with the shipper. Therefore Entrepreneur shall be obligated to inspect the goods for damage before he accepts them.
3. Part deliveries shall be allowed within reason; as far as possible, delivery shall be made in a single shipment. With regard to selection of the shipping method, extratapete GmbH shall be free and shall not be subject to instructions given by Customer.
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§ 8 Revocation Clause for Consumers
1. In the case of delivery of goods which have not been produced to Customer’s specifications, or have not been accurately tailored to the personal needs of Customer, Consumer shall have the right within two weeks of having received the goods to revoke his declaration of intent as made on concluding the contract. Revocation need not be justified and must be declared vis-à-vis extratapete GmbH in text form or through return of the goods; timely dispatch shall suffice to observe the deadline.
In the case of wallpapers which were produced to Customer’s specification, or which were accurately tailored to meet Customer’s personal needs, Consumer’s order made on conclusion of the contract shall be irrevocable. Production to Customer’s specifications and/or in accordance with Customer’s personal needs occurs particularly when Consumer selected from the special wallpapers the height and/or width dimensions and the number required for his special needs and these wallpapers were accordingly manufactured specially for Consumer.
2. On exercising his right of revocation, Consumer shall undertake the obligation to return the goods if they can be dispatched in intact packages.
On exercising his right of revocation, Consumer shall bear the costs of return for orders with a value of up to 40 euros, unless the goods delivered do not correspond to the goods ordered. Consumer shall not bear the cost of return for orders with a value of over 40 euros.
3. Consumer shall provide compensation for impairment caused through putting the product into use in compliance with the specifications. Consumer may inspect the goods carefully and solicitously as might be done in shop business. The loss of value, which, as a result of product use that goes beyond pure inspection, means that consequently the goods can no longer be sold and/or delivered as “new”, shall be borne by Consumer. Consumer shall treat the goods ordered with great care, in order to avoid paying compensation for loss of value, should the goods be returned.
4. Entrepreneur shall not be entitled to revocation rights as provided for above.
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§ 9 Guarantee, Notification of Defect and Liability
1. In the case of defective goods, Consumer shall have the choice of whether to have the order fulfilled by rectification or by replacement delivery. extratapete GmbH shall have the right to refuse the kind of post-fulfilment chosen, if this is only possible through incurring exorbitant costs and there remains for Consumer another kind of post-fulfilment without considerable disadvantage.
In the case of Entrepreneur, extratapete GmbH guarantees for defective goods, initially according to his choice, through rectification or replacement delivery.
2. If post-fulfilment fails, Customer can, in principle, demand, as he chooses, a reduction of the purchase price or reversal of the agreement (withdrawal) as well as damages compensation. In the case of minimal defects, Customer shall not be entitled to withdraw. If Customer chooses compensation for damages, the liability restrictions as laid down in § 10 Items 1 and 2 of the Terms and Conditions shall apply.
3. Consumer must notify extratapete GmbH in writing of obvious defects in the goods within 2 months of having received them; in the case of exceeding the term of 2 months, assertion of claims under guarantee for obvious defects is excluded. Should defects occur, Customer is requested to enclose with the return the quality control slip and relevant dockets supplied with every package.
4. Entrepreneur must examine the goods delivered immediately for deviations in quality and quantities, and notify extratapete GmbH in writing of any identified shortcomings within a period of one week from receipt of goods; otherwise assertion of claims under guarantee is excluded. Concealed defects must be reported to extratapete GmbH in writing within a period of one week of their discovery. Timely dispatch shall suffice to observe the deadline. Entrepreneur is encumbered with the entire task of proving grounds for all claims, particularly for the defect itself, the point in time when the defect occurred and when it was established and he is responsible for timely notification of defects. Should defects occur, claims can normally only be processed on provision of the quality control slip and relevant dockets supplied with every package.
5. For Consumer, the limitation period of the guarantee is two years after the goods have been delivered. For Entrepreneur, the limitation period of the guarantee is two years after the goods have been delivered. The one-year limitation period of the guarantee does not apply if extratapete GmbH can be accused of gross negligence or if extratapete GmbH can be held accountable for bodily harm or damage to health or loss of life suffered by Customer. Liability in accordance with the Products Liability Act remains unaffected by the above.
6. Slight colour deviations from original patterns caused in production shall not serve as grounds for complaint. There shall be no guarantee that they are suitable for use with the remainders from previous deliveries. Each package is tagged with a production number. Only rolls with the same production number should be used. Because natural raw materials are used, minor variations in the characteristics of the products cannot be avoided. These variations in no way constitute a reason for rejection. Since extratapete GmbH has no influence whatsoever on how the products are used and worked, extratapete GmbH cannot accept responsibility for reactions with non-suitable underlay or materials.
7. Pre-requisite for the claims under guarantee on the part of Customer is that the defect was not caused through improper use or excessive stress of the product. It is imperative that the instructions are read carefully before the product is put into use. Any work and pasting costs incurred shall not be reimbursed.
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§ 10 Liability Limitations
1. extratapete GmbH shall only accept responsibility for its own contents on the website of its Online Shop. Although extratapete GmbH enables access to other websites via links, extratapete GmbH shall not accept responsibility for the content of the external sites. extratapete GmbH does not make the external contents its own. If extratapete GmbH becomes aware of unlawful contents on external websites, access to these sites will be blocked immediately.
2. In the event of slightly negligent breaches of contractual obligation, extratapete GmbH's liability and that of its subcontractors shall be restricted to the foreseeable, agreement-typical, immediate, average claim.
In the event of slightly negligent breaches of insignificant contractual obligations, where these breaches do not jeopardise the execution of the contract, neither extratapete GmbH nor its subcontractors shall accept liability. The above liability limitations shall not affect Customer's claims on the grounds of product liability or guarantee. Further, the liability limitations shall not apply in the event of bodily harm, damage to health or loss of life suffered by Customer that may be assigned to extratapete GmbH.
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§ 11 Copyright and Rights of Use
The copyright and rights of use for all the patterns designed by extratapete GmbH as well as the draft patterns resulting from design commissions shall remain with extratapete GmbH. None of the designs and drafts may be either copied or reproduced without written permission from extratapete GmbH.
The data and master artwork passed on from Customer to extratapete GmbH during production of an order shall be used by extratapete GmbH on the condition that Customer is authorised to use the material and no claim to copyright and/or rights of use exist on the part of a third party.
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§ 12 Data Protection
The personal data transmitted to extratapete GmbH are saved only for the purposes of immediate processing of the order. All personal data are used exclusively for the purpose of fulfilling orders and enquiries submitted by customers. extratapete GmbH shall undertake the obligation not to pass on Customer’s data to third parties with the exception of extratapete GmbH’s service partners, who require the data to be transmitted to them for the purposes of processing the order (e.g. transportation companies and the bank encumbered with the transaction). In these cases only the data that is absolutely necessary shall be transmitted. All extratapete GmbH employees are additionally obligated to treat all personal data in strictest confidence and not to release data to third parties. The data are saved and processed in compliance with the German Data Protection Act (BDSG), the German Teleservices Data Protection Act (TTDSG) and the European Directive on Data Protection.
Use of Customer’s data for advertising campaigns run by extratapete GmbH require the express consent of Customer, which Customer may withdraw at any time. Under the German Data Protection Act BDSG, Customer may demand at any time that his data be corrected, changed, blocked or deleted and Customer may request information about his data free of charge.
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§ 13. Final Provisions
1. The law of the Federal Republic of Germany shall apply to the business relationships and all legal relations between Customer and extratapete GmbH. With regard to Consumers who conclude the contract for non-professional or non-commercial purposes, this choice of law shall only apply in as far as the protection granted by mandatory provisions of the law of the sovereign state where Consumer usually abides is not withdrawn. The stipulations of the UN Commercial Law shall not apply.
2. Place of jurisdiction in the case of contracts with business people for all disputes arising directly and indirectly out of the contractual relationship is the company domicile of extratapete GmbH. For contracts with a consumer, this shall only apply if the Consumer has no general place of jurisdiction in Germany or if after conclusion of the contract he moves his place of residence or place where he usually abides outside of Germany, or if his place of residence or place where he usually abides at the point in time when the claim is raised is not known and European law cannot be applied.
3. Should one or more than one of these conditions and/or single paragraphs of the contract with Customer including the Terms and Conditions be or become wholly or partly void or ineffective, this will not affect the validity of any of the other conditions. Should the conditions have ceased to be part of the contract or are no longer effective, the contents of the contract shall be aligned with the effective state regulations.
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extratapete GmbH
Sredzkistrasse 58
10405 Berlin
ALLEMAGNE
Telefon + 49 30 261 57 29
Fax + 49 30 440 497 56
www.extratapete.de
info@extratapete.de
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