GENERAL TERMS AND CONDITIONS OF BUSINESS
(Valid from: 14/08/2017)
I. Contracting Party
For all purchase orders made via the Online Store http://picnoir.com/ (hereinafter "Online Store"), PICNOIR GmbH of Rigaer Strasse 59, 10247 Berlin, Germany (hereinafter "we") is the Contracting Party.
1. These General Terms and Conditions (hereinafter referred to as "the GTC") shall apply to the entire business relationship between us and the Customer of the Online Store (hereinafter "the Customer" or "you") in their version valid as at the time of the order placement. The Customer acknowledges these GTC as binding for them and agrees to accept them as soon as they place an order. Any deviating conditions of the Customer shall not be recognized, unless we expressly agree to their validity in writing.
2. In the absence of any deviating provisions, these GTC shall apply to any business relations with users and entrepreneurs alike.
1. According to § 13 of the BGB (German Civil Code), the User is a natural person who concludes a legal transaction for purposes which cannot be predominantly attributed to either his commercial or independent professional activity.
2. According to § 14 Section 1 of the BGB the entrepreneur is a natural or legal person or a partnership with legal personality who is acting in the course of a legal transaction in the exercise of their commercial or independent professional activity.
IV. Order placement process, contract conclusion, contract language, no storage of the contract text
1. All information in our catalogs, brochures, other information material as well as the product presentation in the Online Store is non-binding and provided without any commitment. It shall not constitute an offer for concluding a sales contract in the legal sense, but merely an invitation to the Customer to address their purchase offer to us.
2. The order placement process in our Online Store includes several steps. The establishment of a membership account is not required for placing the order. The Customer can compare the products displayed in our Online Store and place them in a virtual shopping cart by pressing the "ADD TO SHOPPING CART" button. The goods stored in the shopping cart may be removed by the Customer from the shopping cart at any time.
3. The order placement process for the goods in the shopping cart begins by pressing the "CHECKOUT" button. This shall be an acknowledgement that the Customer has accepted these GTC. Subsequently, the order form must be filled in with the Customer's relevant invoice data and data concerning the delivery address and then the payment data must be entered. Using the bar at the top of the page, the Customer may identify the individual steps of the order placement process.
4. With the "Buy Now" button, the Customer makes a binding offer to purchase the goods in the shopping cart. The entered data may be corrected before the "Buy Now" button is pressed.
5. After receipt of your order, we will send an acknowledgement of receipt to you by e-mail. This e-mail only documents that your order has been received by us; it does not constitute a binding acceptance of the order.
6. We can accept your offer within five days (weekdays excluding Saturday, Sunday and national holidays from the day following the delivery of the offer) by sending you a written order confirmation or an order confirmation in a text form (by e-mail), insofar as the date of receipt of the order confirmation is decisive for you (the contract conclusion). If we do not accept your offer within the aforementioned deadline, this shall be deemed a rejection of the offer with the result that you are no longer bound by your declaration of intent.
7. The contract languages are German or English. The provisions of para. IV.6 of the order confirmation contain the details of your order in addition to these GTC. These can be printed using the print function of your browser. You hereby expressly waive any additional transmission of these General Terms and Conditions on paper. No further storage of the contract text by us shall take place.
V. Right of withdrawal
The User (see section III.1.) shall be entitled to the right of withdrawal according to the following terms in our Online Store.
Right of withdrawal
You have the right to withdraw from this contract within 60 days without giving reasons. The withdrawal period is 60 days starting from the day:
In order to exercise your right of withdrawal, you must inform us (PICNOIR GmbH, Rigaer Strasse 59, 10247 Berlin, Germany, e-mail: firstname.lastname@example.org, Telephone: 0049 0162 1636204 by means of a clear statement (e.g. a letter sent by mail, fax or e-mail) about your decision to withdraw from the contract. You may use the enclosed sample withdrawal form, but this is not required.
In order to keep the withdrawal period, it is sufficient that you send the notice on exercising the right of withdrawal before the end of the withdrawal period.
Consequences of withdrawal
If you withdraw from the contract, we will return to you all the payments that we have received from you, including the cost of delivery (except for the additional costs resulting from the fact that you have chosen a different type of delivery than the most favorable standard delivery offered by us) within a period of fourteen days from the date on which we received the notice of withdrawal from the contract. For such repayment, we will use the same means of payment that you have used in the original transaction, unless you have expressly agreed otherwise; in no case will you be charged with any repayment fees.
We may refuse to return the payments until we have recovered the goods or until you have demonstrated that you have sent the goods back, whichever is earlier.
You must return the goods to us immediately or in any case no later than within fourteen days from the date on which you inform us of the withdrawal from the contract. The deadline is deemed kept if you send the goods back before the end of the period of fourteen days.
You shall bear the direct costs of returning the goods.
You shall only be liable for any loss in value of the goods if this loss in value is attributable to a handling which is not necessary for the purpose of checking the quality, characteristics and functioning of the goods.
Reasons for exclusion or expiration
The right of withdrawal shall not exist in respect of contracts
The right of withdrawal shall expire prematurely in respect of contracts
Model withdrawal form
If you want to withdraw from the contract, please fill out this form and return it.
Rigaer Strasse 59
E-mail address: email@example.com
I/we (*) hereby withdraw from the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following service (*): …………………………………………………………………………………..
Ordered on (*) / received on (*)
Name of the user(s)
Address of the user(s)
Signature of the user(s) (only in the case of a communication on paper)
(*) Delete as appropriate.
Here you can find our sample withdrawal form in PDF.
If you want to withdraw from the contract, please fill out this form and return it by letter, fax or e-mail.
VI. Prices, shipping fees
1. The prices stated at the time of the order in the Online Store shall apply. The stated prices shall be final; they include the applicable statutory value-added tax.
2. The costs of the shipment are added separately. The delivery and shipping costs are indicated separately in the respective product description.
VII. Delivery, unsuccessful delivery, delivery time
1. Deliveries shall be possible worldwide.
2. We will deliver the goods ordered by the courier service to the delivery address stated by you in the order placement process.
3. If the courier service sends the returned goods back to us, if the delivery to you was not possible, you shall bear the costs for the unsuccessful dispatch. The provision shall not apply if you are not responsible for the circumstances which led to the impossibility of delivery, or if you were temporarily prevented from accepting the offered service, unless we have announced the service a reasonable time in advance.
4. For deliveries within the EU the delivery time is 5 working days, outside the EU - 10 working days. The delivery period begins,
- on receipt of the order before 4 p.m.: from the date of receipt of the order (which is the date of dispatch of our acknowledgement of receipt in accordance with section IV.5.),
- on receipt of the order on working days after 4 p.m. or on a Sunday, Saturday or a public holiday: from the date of the first following working day.
Working days are weekdays without Sundays, Saturdays and public holidays.
VIII. Transfer of risk, damage to the goods during shipment
If the Customer is a user, the shipment is made at our risk. If, at the time of the goods handing over to you, any damage to the packaging or obvious material defects can be detected, please show this to the courier staff - this will help us to ensure our claims against the courier service. Submission of the notice is not a condition for your assertion of the warranty rights.
1. You can pay by a credit card (Visa, MasterCard), Paypal or direct banking. In case of indication of the payment data in the order, we shall be authorized to collect the purchase price amount from your account specified in the order. The purchase price shall be payable and due immediately upon conclusion of the contract.
2. Credit Card
In our Online Store you may pay with a VISA or Mastercard. With a successful provision of your credit card data as well as security queries, the payment amount will be charged to your credit card. Therefore, ensure sufficient account coverage to save unnecessary additional costs from unsuccessful debits.
In case of payment by means of a payment method offered by PayPal, payment processing takes place via the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter "PayPal"), under the PayPal's Terms of Service, which can be viewed at https://www.paypal.com/en/webapps/mpp/ua/useragreement-full or - if the Customer does not have a PayPal account - under validation of the conditions for payments without a PayPal account, can be viewed at https://www.paypal.com/en/webapps/mpp/ua/privacywax-full. Also in this case, your account will be debited immediately after the order has been placed. Therefore, ensure sufficient account coverage to save unnecessary additional costs from unsuccessful debits.
4. Direct Banking
In the order placement process, you are forwarded to your online banking via the purchase order overview page. There you can make the payment directly with your personal security queries via your bank.
X. Retention of title
If the Customer is a user, the delivered goods shall remain our property until full payment of the purchase price.
We are liable for material or legal defects of the delivered goods according to the applicable legal regulations, in particular §§ 434 ff. of the BGB. For entrepreneurs, Sec. XV shall apply additionally.
In order to show a defect in the goods, you may fill out the "Warranty questionnaire" form and send it online to firstname.lastname@example.org. Then we will ask you to send the goods to us (PICNOIR GmbH, Rigaer Strasse 59, 10247 Berlin). We shall pay the cost of the return shipment in this case, unless the suspicion of defects was manifestly unreasonable. We shall confirm the receipt of the goods returned to us by e-mail. After a counter-examination of the warranty case by us, we will inform you about the outcome of our examination.
XII. Repair service/Damage caused by overturning
Without prejudice to your statutory warranty claims and the right of withdrawal, we offer an additional repair service:
1. The Customer's claims for damage compensation shall be excluded. This provision shall exclude any claims for damages of the Customer resulting from injury to life, body, health or from the violation of essential contractual obligations (cardinal obligations) as well as any liability for other damages arising from an intentional or grossly negligent breach of duty, which is to be charged to us, our legal representatives or subcontractors.
Essential contractual obligations shall be those whose fulfillment is necessary to achieve the objective of the contract. In the event of a breach of the essential contractual obligations, we shall only be liable for the foreseeable damage which is typical for the contract, if it was simply caused by negligence and does not result in injury to life, body or health.
2. The foregoing limitations shall also apply to our legal representatives and subcontractors, if claims are asserted directly against them.
3. The application of the provisions of the Product Liability Act shall not be affected by the above limitations of liability.
XIV. Limitation periods
The statutory limitation periods shall apply to users. For entrepreneurs, Sec. XVII shall apply.
XV. Arbitration with users
Online dispute resolution pursuant to Article 14 (1) of the ODR-VO: the European Commission provides an online dispute resolution platform (ODR), which can be found at https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home.chooseLanguage.
XVI. User account
1. You are free to create a user account. The creation of a user account allows you to simplify the management of your orders in our Online Store in a browser session, exchange with other users in the forums, gather information about upcoming events, etc.
2. If you post comments in the forums, this is done on a voluntary basis. You are, however, obliged not to publish any comments which infringe the intellectual property of third parties or the rights of third parties or which may lead to criminal prosecution. Should you become aware of any infringing content, please let us know. We are authorized to block or delete the respective comment after acknowledging a clear legal offense by a user comment.
3. Use of the user account for your own commercial purposes or for advertising to third parties is not permitted without our prior written consent. If posted contents violate the above provision, we shall be free to block or delete the comments and to exclude the user from the forum.
4. The possibility of using the user account and participating in the forums is a free offer. The user's right in the availability of their user account and access to the forums shall not be hereby guaranteed. In case of foreseeable technical interruptions, however, we shall inform you about the imminent interruption.
5. We will keep your information and content posted by you until we receive a message from you that you wish to close the account you have established.
XVII. Special provisions for entrepreneurs
1. Transfer of Risk
The dispatch shall be made at the risk of the Customer, if the Customer is an entrepreneur. The provision shall also apply if the delivery does not take place ex works, but from a delivery plant or delivery warehouse or from a forwarding company. In such a case, the risk of accidental loss or damage to the goods shall be transferred to the Customer upon dispatch of the goods, even if we have taken over other services, e.g. the shipping costs.
2. Entrepreneur's obligation to examine goods and submit complaints
2.1. If you are an entrepreneur, immediately upon delivery to the agreed destination, you are obligated to:
(a) examine the goods, weights and packaging and to record any complaints on the delivery note of the courier; and
(b) at least at random, in an representative sample - carry out a quality control, to open the packaging to an appropriate extent and to check the goods yourself according to their external characteristics.
2.2. In the event of any defects, please observe the following forms and deadlines:
a) the complaint shall be made by the end of the working day following the delivery of the goods to the agreed upon destination. In case of a complaint in respect of a hidden defect, which is identified later on in spite of the proper initial examination acc. to Point 2.1 above, the complaint must be lodged before the expiry of the working day following the defect identification, but not later than within two weeks after delivery of the goods.
b) The complaint must be sent to us within the above-mentioned deadlines in writing or by e-mail. A complaint by phone is not sufficient. Complaints against commercial agents, brokers or agents are excluded.
c) The nature and extent of the alleged defect must be clearly apparent from the complaint.
d) You are obliged to keep the disputed goods at the place of inspection so they may be inspected by us, our supplier or any experts commissioned by us.
2.3. If the required note on the delivery note subject to the conditions laid down in 2.1. a) is missing, any complaints relating to the number of pieces, weights and packaging of the goods shall be excluded.
2.4. Goods which are not defective in respect of the form and time shall be deemed approved and accepted.
3. Extended retention of title
If the Customer is an entrepreneur, the delivered goods shall remain our property until full settlement of all claims arising from a current business relationship. The Customer shall be entitled to resell the retained goods in the normal business operation. All and any receivables arising therefrom against third parties shall be paid in advance to the seller in the amount of the respective invoice value (including value-added tax). This assignment shall apply irrespective of whether the retained goods have been resold without or after processing. The Customer shall be authorized to collect the receivables also after the assignment. Our entitlement to collect the receivables ourselves shall remain unaffected. However, we will not collect the receivables as long as the Customer complies with our payment obligations, is not in default with payment and no application for opening insolvency proceedings is filed.
4. Modifications of warranty
4.1. The nature of the supplementary performance shall be determined by us.
4.2. The limitation period for defects in case of new goods shall be one year upon the transfer of risk. This shall not include any claims for damages due to injury to life, body or health or claims for damages resulting from gross negligence or intentional damage. The reduction of the limitation period shall not apply if a defect has been concealed maliciously. In this respect, the statutory limitation periods shall apply.
XVIII. Data protection
Provisions for data protection are included in the Data Protection Instruction.
XIX. Final provisions
1. Governing law
All and any contracts concluded with us shall be governed by the laws of the Federal Republic of Germany with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. In case of users, this choice of law shall be valid only in so far as the protection afforded by mandatory provisions of the law of the country in which the user has their habitual residence is not withdrawn.
2.1. If the Customer is a merchant, a legal entity operating under the public law or a public-law special fund, all and any disputes arising from contractual relationships between the Customer and us shall be exclusively subject to the competent courts with material and local jurisdiction for our domicile.
2.2. If the Customer is domiciled outside the territory of the Federal Republic of Germany, our place of business shall be the exclusive jurisdiction for all and any disputes arising from the contract if the contract or claims from the contract can be attributed to the professional or commercial activity of the Customer. However, in the above cases, we shall in any case be entitled to bring the proceedings to the court competent for the Customer's place of business.