// 1. Scope of application
The present general terms and conditions (AGBs) shall be the sole to apply to all mutual claims arising from and in connection with the conclusion of a contract between the customer and skywalk GmbH & Co. KG. Any regulations deviating from the AGBs of skywalk GmbH & Co. KG, particularly such belonging to the customer’s purchase conditions or AGBs, shall not become subject matter of the contract, not even if skywalk GmbH & Co. KG does not explicitly contradict the same.
// 2. Identity of skywalk GmbH & Co. KG
skywalk GmbH & Co. KG
Phone: 08641 6948-0
Fax: 08641 6948-11
Commercial register: AG (Local Court) Traunstein HRA 7710
Sales tax ID number: DE 813305030
The company is represented by skywalk Verwaltungs-GmbH which, in turn, is represented by the Managing Directors Thomas Allertseder and Dipl.-Ing. Manfred Kistler.
// 3. Conclusion of contract
The display of the products in the online shop does not constitute any legally binding offer, but a request to the customer to place an order.
The conclusion of the contract may be effected in German or English. By ordering the desired merchandise, the customer makes a binding offer to buy this product. An electronic order is considered to be binding only when the customer agrees to the AGBs and clicks on the button “send order” with respect to the products contained in the basket. Prior thereto, you may view, change or clear your basket any time. Any time, you may view the AGBs by means of your internet browser, store them on your computer, or print them out.
The confirmation of receipt of the order follows immediately upon sending off the order. The confirmation of receipt does not already constitute a binding acceptance of the order. The confirmation of receipt only constitutes a declaration of acceptance if skywalk GmbH & Co. KG says so explicitly.
Upon termination of the order process, you may not view your order data any more. However, skywalk GmbH & Co. KG stores the order data and sends them to you via e-mail together with our AGBs. The sales contract is concluded by the separate order confirmation or the delivery of the goods.
Also in cases of oral, written, telephonic orders, or orders via e-mail or fax, the sales contract is only concluded by our separate order confirmation or the delivery of the goods.
// 4. Consumers’ right of withdrawal
Consumers have the following legal right of withdrawal. The right of withdrawal does not exist in the case of contracts for delivering software, audio and video recordings, if the data carriers delivered have been unsealed by the consumer. Likewise, the right of withdrawal does not cover goods made according to the customer’s specification or clearly tailored to meet the customer’s personal requirements (e.g. specially produced lines, special designs, etc.).
Information of the right of cancellation/withdrawal
RIGHT OF WITHDRAWAL:
You may revoke your contractual declaration within two weeks’ time without stating a reason, either in writing (e.g. by letter, fax, e-mail), or by returning the object. The period for withdrawal shall commence upon receipt of this written information, but not prior to the arrival of the product at the recipient’s (in case of a repetitive delivery of goods of the same kind, not prior to the receipt of the first partial delivery), nor prior to the fulfilment of our duties to furnish information according to § 312c, sub-section 2 BGB¹ in combination with § 1, sub-sections 1,2 and 4 BGB-InfoV as well as our obligations according to § 312e sub-section 1, sentence 1 BGB in combination with § 3 BGB-InfoV. For keeping within the term of withdrawal, it is sufficient to send the withdrawal or the object off in time. The withdrawal has to be directed to:
skywalk GmbH & Co. KG, Windeckstr.4, 83250 Marquartstein, Germany, fax: 08641 6948-11, e-mail: firstname.lastname@example.org
Consequences of WITHDRAWAL:
In the event of an effective withdrawal, each party shall return the benefits received to the other party and surrender any profits that might have been drawn (e.g. interests). If you are not able to return the benefit received to skywalk GmbH & Co. KG completely or partly or if you are only able to give it back in a deteriorated state, you shall, as the case may be, provide value replacement to skywalk GmbH & Co. KG insofar. This does not apply to the surrender of goods if the deterioration of the matter exclusively has to be attributed to the examination thereof – as it would have been possible to you e.g. at a retail shop. Incidentally, you may avoid the obligation for value replacement by refraining from using the matter as your property and by abstaining from doing anything that might affect the value thereof. Matters eligible for shipping are to be sent back at our risk. You shall bear the cost of the return consignment if the goods delivered correspond to the goods ordered and if the price of the matter to be returned does not exceed an amount of 40 Euros, or, should the price of the matter be higher, if you have, at the time of withdrawal, not yet provided the consideration (return service), nor a contractually agreed partial payment. Otherwise, the return is free of charge to you. Matters non-eligible for shipping will be picked up at your place. Any obligations for the reimbursement of payments have to be fulfilled within 30 days. The term you have to observe starts upon your dispatching your declaration of withdrawal or the matter, the term skywalk GmbH & Co. KG has to observe starts upon the receipt thereof.
End of information of right of withdrawal
// 5 Delivery, transport and passing of risk
If the customer is an entrepreneur, the risk of accidental loss or accidental damage of the goods passes to the customer upon the delivery of the goods and, in case of a shipment purchase, upon the delivery of the matter to the shipping company entrusted. If the customer is a consumer, the risk of accidental loss and accidental deterioration of the sold goods passes to the customer only upon the surrender of the matter, also in case of a shipment purchase. It is equal to the surrender if the customer is in delay of receipt.
Unless otherwise agreed, the shipping company is selected by skywalk GmbH & Co. KG.
The transport cost is charged to the customer.
In commercial business dealings, skywalk GmbH & Co. KG is entitled to provide partial deliveries, whereas, in the case of consumers, this may only be done if the customer can reasonably be expected to accept this.
// 6 Payment
The price offered is binding. The statutory value added tax is contained in the price.
Unless otherwise agreed, our deliveries are payable within 10 days at a 2% discount or within 30 days net without deductions from the date of billing.
The customer may pay the price cash on delivery, by bank transfer, debit entry or credit card.
If the customer wishes to effect payment by means of a debit entry, he may have to pay those costs incurred due to the reversal of a payment transaction for lack of sufficient funds in the account, or due to wrong bank data transmitted by the customer.
The customer is only entitled to a set-off if his counter-claims have been established as final and absolute, or have been acknowledged by skywalk GmbH & Co. KG.
The customer may exert a right of retention only if his counter-claim is based on the same contractual relationship.
// 7 Reservation of proprietary rights/title
If the buyers are consumers, skywalk GmbH & Co. KG reserves its ownership of the goods until the purchase price has been paid in full.
If the buyers are entrepreneurs, skywalk GmbH & Co. KG reserves its ownership of the goods until all claims from a current business relation are fully settled.
The customer is obliged to treat the goods with care during the reservation of ownership. If maintenance and inspection work are required, the customer shall carry out the same regularly at his own cost.
If a third party takes hold of the goods subject to retention of title, particularly by compulsory execution, the customer has to point out that skywalk GmbH & Co. KG is the proprietor of the goods subject to retention of title; also, he is obliged to immediately inform skywalk GmbH & Co. KG of the access in writing. The obligation of providing information in writing also applies in the case of damage or loss of the goods subject to retention of title. In the event of a levy of execution, the decision of execution or the bailiff’s return have to be submitted to skywalk GmbH & Co. KG without delay.
The customer shall bear all cost to be paid for canceling the access and recovery of the goods subject to retention of title, unless this may be collected from a third party.
Exclusively in business dealings, the following regulations shall additionally apply:
The customer is entitled to dispose of the goods subject to retention of title in the ordinary course of business. Skywalk GmbH & Co. KG may revoke this authorization if the customer does not meet his contractual obligations vis-à-vis skywalk GmbH & Co. KG. Already now, the customer assigns to skywalk GmbH & Co. KG any claims accruing to the customer from the resale or from another legal ground concerning the goods subject to retention of title, coming up to the invoice value of the goods subject to retention of title. Skywalk GmbH & Co. KG accepts the assignment.
Skywalk GmbH & Co. KG grants the customer the right to collect the said claims assigned to skywalk GmbH & Co. KG in his own name.
Skywalk GmbH & Co. KG is entitled to revoke this direct debit authorization, to draw the attention of the customer’s business partners to this revocation and to demand that the customer’s claims be disclosed if the customer is in default and does not effect payment upon our request for payment and upon the expiry of an adequate term.
Any processing or modification of the goods subject to retention of title is effected for skywalk GmbH & Co. KG as manufacturer. In this case, skywalk GmbH & Co. KG acquires the co-ownership of the new matter at a rate up to the amount of the goods subject to retention of title delivered by skywalk GmbH & Co. KG.
// 8 Warranty
Skywalk GmbH & Co. KG warrants that, at the time of transfer, products are free of material defects within the terms of the terminology of BGB § 434, or that they have an agreed quality.
Consumers have to make a written report to skywalk GmbH & Co. KG of any apparent defects of the goods within 2 months from receipt thereof; otherwise, the assertion of the warranty claim is ruled out. Timely mailing is sufficient for observing the term.
Entrepreneurs shall immediately examine the delivered goods for deviations in quality and quantity and shall make a written report to skywalk GmbH & Co. KG of any recognizable deficiencies within a term of two weeks from receipt of the product; otherwise, no warranty claims may be asserted. Timely mailing is sufficient for observing the term. In addition, § 377 HGB² shall apply in commercial transactions.
The warranty claims of consumers expire within two years. For used products and in the event of contracts made with companies, the statutory period of limitation is one year. The period of limitation starts with the delivery of the goods to the customer.
In addition, the customer may have claims from any warranty declarations made, provided these are issued explicitly for individual products.
If the customer is a consumer and if there is a defect, § 439 BGB allows the customer to choose between requesting the remedy of the defect and requesting the delivery of a matter free of any defects. If the customer is an entrepreneur, the right to choose only lies with skywalk GmbH & Co. KG. Within the scope of § 439 BGB, skywalk GmbH & Co. KG may refuse the type of supplementary performance selected by the customer, if this performance is only possible at a disproportionate expense.
If the supplementary performance fails, the customer may choose between claiming reduction of the purchase price (abatement) and rescission of the contract (revocation) and damages. Regarding damages, the provisions under item 9 of the present AGBs shall apply. If the defect is insignificant or negligible, cancellation is ruled out.
// 9 Liability
In the event of ordinarily negligent breaches of obligations, our liability and the liability of our legal representatives or auxiliary persons is limited to the damage which is predictable, contract-coherent and direct according to the type of merchandise.
In the event of ordinarily negligent breaches of duties non-essential to the contract, the violation of which does not endanger the performance of the contract, skywalk GmbH & Co. KG and their legal representatives or auxiliary persons do not assume liability.
The aforementioned limitations of liability do not apply to claims arising from product liability. Furthermore, the liability restrictions shall not apply to injuries to life, body and health.
// 10 Customer’s service, complaints, objections
In matters of customer’s service, complaints and objections, skywalk GmbH & Co. KG may be contacted Monday through Friday on working days:
Skywalk GmbH & Co. KG, Windeckstr. 4, 83250 Marquartstein, Germany, phone: 08641 6948-0, fax: 08641 6948-11, e-mail: email@example.com.
// 11 Choice of law
The legal relations between skywalk GmbH & Co. KG and the customer shall be governed by the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sales of Goods shall be excluded.
// 12 Place of fulfillment and legal venue
If the customer is a merchant, a legal person under public law or a special fund under public law, Traunstein shall be the place of fulfillment of the contract and the exclusive legal venue. The same shall apply if the customer does not have a general legal venue in Germany, or if his habitual residence is not known at the time of bringing suit.
¹ = German Civil Code
² = German Code of Commercial Law