General Terms and Conditions of KulturGut AG for Internet Trade

I. Scope

a) These Terms and Conditions shall apply as amended from time to time as basis for all orders, contracts, deliveries and services in connection with our activities in online and mail order business. Diverging conditions of the customer (the term “customer” is hereinafter used for all sorts of business concerned) are expressly rejected by us, unless otherwise agreed in writing or mandatory by law.

b) The Terms and Conditions may be amended at any time. We therefore ask our customers to read the Terms and Conditions in case of any order or any other business transaction, since they shall also in future be applicable in their respective current version. 

II. Conclusion of Contract

Our offers are non-binding. The order is an offer submitted to our company. A contract between the customer (hereinafter the term “customer” is used, even in the event of the conclusion of a purchase agreement) and us shall only be established as concluded if accepted by us. Acceptance may be declared in the form of an acknowledgement of order or by delivery of the goods (Section 151 German Civil Code (BGB)). A mere acknowledgement of receipt of an order shall not constitute an acceptance. 

III. Prices/Offset/Right of Retention

a) Our prices as well as the additional delivery charges are indicated on the website of our online shop. 

b) The customer shall only be entitled to offset counterclaims if his counterclaims have been legally established as final and absolute, are undisputed or have been acknowledged by us. In case of disputed counterclaims, the customer is only entitled to offset claims if these are at least ready for decision. Moreover, the customer is only entitled to exercise a right of retention if the counterclaim is resulting from the same contractual relationship. Offsetting is also admissible if a counterclaim entailing a retention right according to Sentence 2 becomes a claim for damages. 

IV. Right of Revocation and Right of Return

a) The customer is granted a right of revocation. Revocation can be declared without giving any reasons by returning the goods within two weeks or, if the goods are not suitable to be dispatched by parcel (e.g. bulky goods or goods weighing more than 20 kg), by forwarding a written request via mail, e-mail or fax that the goods shall be taken back. The revocation period does not start prior to the date of receipt of the goods by the recipient, in case of recurring deliveries of like products not prior to the day of receipt of the first partial delivery. The term does not either start to run in case we do not fulfill the requirement to provide information according to Section 312 c Paragraph 2 German Civil Code (BGB) in conjunction with Section 1 Paragraphs 1 and 4 BGB-InfoV (German Provisions concerning Information Duties) as well as our duties according to Section 312 e Paragraph 1 Sentence 1 German Civil Code (BGB) in conjunction with Section 3 BGB-InfoV (German Provisions concerning Information Duties). To comply with the term it is sufficient if the customer dispatches the goods or requests to take the goods back in due time. The return of the goods is made at our risk and (in case of goods not suitable for dispatch by parcel) at our costs. 

Goods suitable for dispatch by parcel have to be sent back in accordance with Section 357 Paragraph 2 German Civil Code (BGB). The costs of the return shipment have to be borne by the customer if the delivered goods comply with the order and if the price of the goods to be returned does not exceed the amount of Euro 40 or if the customer in case of a higher price has not performed the counter-obligation or a contractually agreed partial payment. 

The goods have to be sent to: KulturGut AG, Logistikzentrum, Industriestr. 1, D-82140 Olching, Germany.

The request to take back the goods has to be sent to KulturGut AG, Nördliches Schlossrondell 10, 80638 München, Germany or via fax to fax No. 089 -17 88 96 79 or to the e-mail address info@kulturgutag.de. 

b) Consequences of the revocation or the return of the goods:

In case of an effective revocation, the respective benefits have to be returned and, if applicable, also the benefits gained from utilization. If the benefits received can in whole or part not be returned or only be returned in a deteriorated state, a compensation for lost value has to be paid to us. This shall not apply if the deterioration of goods is solely due to their inspection in a manner that would have been possible in a retail shop. 

The customer can avoid the obligation to pay compensation for a deterioration caused by the intended use of the goods by not using the goods as his own property and by refraining from any action diminishing their value. Any obligations to refund payments have to be met within 30 days. For the customer the term starts with the dispatch of the goods or the request to take the goods back, for us with receipt. 

c) Exclusion of the right of return

Goods made to the customer’s specification or clearly tailored to personal necessities (e.g. porcelain with individual marking), sealed audio or video recordings or software, insofar as the seal has been broken, as well as newspapers, journals and magazines are excluded from the right of return according to Section 312d Paragraph 4 German Civil Code (BGB). 

V. Delivery/Transfer of Risk

If the goods are to be shipped upon the customer’s request to another place than the place of performance and unless otherwise agreed, the risk passes to the customer when the seller hands over the goods to the forwarding agent, the carrier or another person or entity entrusted with carrying out the shipment. 

VI. Retention of Title

Our deliveries are subject to the retention of title as specified in detail in the following. This applies to all future deliveries even if we do not expressly refer thereto.

a) Title to the delivered goods shall remain with us until complete payment of all claims arising from the supply contract. We shall be entitled to take back the item of purchase if the customer violates the contract. If the goods subject to retention of title are sold by the customer together with other goods not sold by us, the assignment of the claim resulting from the re-sale is effective only in the amount of the re-sale value of the respective sold goods subject to the retention of title. 

b) The customer is obliged to take good care of the item of purchase as long as the title has not yet passed to him. As long as the title has not yet passed to the customer, the customer shall be obliged to immediately inform us in writing if the delivered item is seized or exposed to other interventions by third parties. If the third party is not in a position to reimburse us the court fees and other costs arising in connection with a law suit according to Section 771 German Code of Civil Procedure (ZPO), the customer shall be liable for the arising loss. 

c) The customer is entitled to resell the goods subject to the retention of title in regular trade. The claims against the purchaser resulting from the resale of the goods subject to the retention of title are already now assigned to us. The assignment shall be valid irrespective of whether the purchased item was resold with or without having been processed. The customer remains authorized to collect the receivables even after assignment. Our entitlement to collect the receivables ourselves remains unaffected. We shall however not collect the receivables as long as the customer meets his payment obligations resulting from the collected proceeds, is not in default and no request for opening of insolvency proceedings has been filed or payments have not ceased.

VII. Warranty

Notwithstanding the statutory warranty period of two years, any warranty claims shall fall under the statute of limitation after one year. In case of contracts with consumers the warranty period shall be two years. All defects have to be reported in writing within the respective term which starts to run upon delivery of the goods. If the defect notice is not submitted in due time and proper manner, any liability for defects is excluded. The burden of proof as regards the receipt remains unaffected. 

In case of any defects we shall, at our discretion, remove the defect or remedy the defect by providing new replacement goods. If the customer is a consumer, the customer shall be entitled to exercise the right of choice. Remedy is excluded if it is connected with disproportionate costs for us. If despite two attempts to rectify the defect, the defect is not removed or if we are not willing or not in a position to provide rectification or replacement delivery or this is not provided within an appropriate time limit or if the remedy fails for other reasons, the customer is, at his discretion, entitled to withdraw from the contract or demand an adequate reduction of the purchase price. 

VIII. Liability

We shall be liable for damage from injury of life, body or health according to the statutory provisions. For any other damage, liability only extends to such damage resulting from intent or gross negligence of duty by us or one of our legal representatives or a person employed in performing an obligation. Our liability for other damage caused by gross negligence resulting from violation of an essential contractual obligation shall be limited to the foreseeable damage typical of the contract. Liability according to the German Product Liability Act shall remain unaffected. 

IX. Data Protection Provisions

a) We shall be entitled to process or have processed personal data entrusted to us within the scope of the purpose assigned by the customer. The legal regulations on data protection are observed. 

b) Data that are logged in connection with the access to our website and/or personal data which are transmitted are exclusively stored by us for administrative purposes. Data shall only be provided to other third parties with the consent of the customer. The given consent can be revoked at any time. The provision of data for any other non-commercial or commercial purposes shall not be made.

This does not apply if we are obliged by law or by court decision to provide data or if the data provision is required for reasons of legal and criminal prosecution in connection with an attack on the internet infrastructure.

X. Miscellaneous

a) Should any provision of these Terms and Conditions or any provision within the scope of any other agreements be invalid or void or become invalid or void, the validity of the remaining provisions or agreements shall remain unaffected.

b) Amendments and supplements to a contract, including the underlying General Terms and Conditions, are only valid if agreed upon in writing and signed by both parties. 

c) The legal relationship between us and the customer shall be governed by the laws of the Federal Republic of Germany excluding the UN Sales Law (CSIG). 

d) In case of any disputes arising from or in connection with a contract or the business relationship, the courts of Munich shall have exclusive jurisdiction. This provision shall, however, only apply if the customer is a merchant as defined by the German Commercial Code (HGB), a legal entity under public law or a special fund under public law or if the customer has no general place of jurisdiction in Germany or if the customer’s place of residence or his habitual abode is not known at the time of filing the legal action.