TERMS AND CONDITIONS
Terms and Conditions of
The following Terms and Conditions apply with respect to b2b (business to business) and b2c (business to consumer) relations. Provisions that govern b2b relations only are highlighted in italic. Public bodies are deemed to be businesses under these terms and conditions.
§ 1 Scope
(1) Purchases from Pentatonic GmbH (hereinafter referred to as “PENTATONIC”) are processed on the basis of these Terms and Conditions. If not agreed otherwise the version of the Terms and Condition applies, which is available at www.pentatonic.com/agb at the effective date of the purchase agreement.
(2) Our Terms and Conditions also apply with regard to future agreements with the same seller unless agreed otherwise.
§ 2 Conclusion of the Purchase Agreement
(1) Product descriptions on websites and in the online shop of PENTATONIC shall not be deemed a binding offer to enter into an agreement but an invitation to potential customers to submit a binding offer.
(2) Purchase orders submitted by the customer in our online shop are a binding offer to enter into a contract. The confirmation of orders shall not be deemed to be an acceptance. PENTATONIC may accept the order either by delivering the product or submission of a separate acceptance of the order by e-mail within 5 working days.
§ 3 Communication with Customer, Electronic Invoices
(1) Customer has to submit an e-mail-address during the ordering process and ensures to be reachable at this address from the time of ordering until the fulfillment of the mutual contractual obligations. Customer may replace this address by notifying PENTATONIC of a new address by e-mail.
(2) PENTATONIC is entitled to use all communication channels, which customer announced for communications in connection with the fulfillment of the contract unless a different form is required by law.
(3) PENTATONIC is entitled to submit invoices electronically.
§ 4 Right of Rescission
(1) Only consumers have a right of rescission. Consumer means every individual person that enters into a contract, which is predominantly neither connected with commercial interests nor with freelance work.
(2) The right of rescission is excluded if the contract provides the delivery of products, which are not pre-manufactured and of which the manufacturer depends on an individual choice or determination by the consumer or if the products are clearly tailored to the customer’s needs.
(3) Instruction on the Right of Rescission
Instruction on the Right of Rescission
Right of Rescission
You are entitled to rescind the agreement within fourteen days without any reason. The cancellation period of fourteen days starts on the day, on which you or a third party determined by you that is not the carrier receive the product.
In order to execute your right of rescission you have to inform us,
Rosenthaler Straße 36
Tel: +49 30 284 843-82
Fax: +49 30 284 843-83
by a clear statement (e.g. by regular mail, via our contact form, by fax or e-mail) about your decision to rescind the agreement. You may use the enclosed sample of a rescission form, which is, however, not mandatory.
To meet the deadline it is sufficient if you send off your statement on the execution of the right of rescission before the end of the cancellation period.
Consequences of a Rescission
If you rescind the agreement we will reimburse all payments, which we received from you, including the delivery costs (addition costs, which are caused by your choice of a way of delivery other than our cheapest standard delivery are excluded) immediately and at the latest within fourteen days after the day, on which we received your statement on the rescission of the agreement. For the reimbursement we use the same payment method you used for the original transaction, unless agreed with you otherwise; in no event we will charge fees for the reimbursement. We may refuse reimbursement until we retrieve the products or you furnished proof that you sent off the product depending on which occurs earlier.
You have to re-send or hand us over the products immediately and in any case within fourteen days after the day, on which you informed us on the rescission of the agreement. The deadline is met if you send off the products before the end of this two-weeks-period.
You have to bear the direct costs for the reshipment. Notwithstanding the foregoing we bear the costs for a shipment within Europe if the customer carries out the re-delivery via DHL by using a parcel label, which you may download in your customer profile or request via our contact form.
You are only obliged to compensate a possible depreciation if it is caused by a handling of the products, which was not necessary in order to test the nature, quality and functionality of the products.
(4) Sample of Rescission Form
Sample of Rescission Form
(In the event that you wish to rescind the contract please fill in the following form and send it back to us)
– To: PENTATONIC GmbH
Rosenthaler Straße 36
Fax: +49 30 284 843-83
– I/we (*) rescind herewith the agreement I/we (*) entered into on the purchase of the following products (*)/the rendering of the following services (*)
– Ordered on (*)/received on (*)
– Name of consumer(s)
– Address of consumer(s)
– Signature of consumer(s) (only if submitted on paper)
(*) Please delete where inapplicable.
§ 5 Delivery
(1) PENTATONIC may deliver several products in partial deliveries as far as it is appropriate for the customer. Delivery costs will be invoiced singularly, if any.
(2) A pickup by the customer is not possible.
§ 6 Delivery Costs
Delivery costs are not included in the product price unless included delivery costs are explicitly mentioned. The designated delivery costs apply.
§ 7 Passing of the Delivery Risk
In the event that the customer is a business and that the products shall be delivered or items of the customer shall be re-delivered the risk passes to the customer as soon as the product is handed to the carrier.
§ 8 Transport Damages
In the event that transport damages occur customer will, if the damages are apparent, immediately inform the carrier and will report those damages to PENTATONIC. A failure to timely complain or inform PENTATONIC does not have any consequences if the customer is a consumer. In the event that the customer is a business the failure to timely complain may result in a forfeiture of rights as far as the liability of the carrier is excluded for the reason that PENTATONIC was not able to inform the carrier of the damage on time due to the failure of the customer to complain on time.
§ 9 Reservation of Proprietary Rights
(1) The purchased product remains property of PENTATONIC until the purchase price is paid completely. In the event that the customer is a business PENTATONIC retains ownership until all claims form the business relationship between PENTATONIC and the customer are balanced. In the event that the value of the respective product exceeds all claims in connection with the product by 20% PENTATONIC is upon request of the customer obliged to waive the reservation of rights for parts of the products that he may chose. If the customer is a business such waiving only occurs if there are adequate other securities for other claims from the business relationship.
(2) As long as the reservation of rights applies the customer may not dispose of the purchased product.
§ 10 Payment
Payment will be effected during the ordering process at customer’s option either by PayPal, SOFORT Überweisung or credit card. The customer’s bank account will be debited before delivery.
§ 11 Delay of Payment, Reminder
In the event that PENTATONIC reminds the customer in writing of the overdue payment the customer has to pay a flat fee of 5,00 EUR for every reminder. PENTATONIC retains the right to proof a higher damage, the customer retains the right to proof a lower damage.
§ 12 Payment by Credit Card
(1) Credit card payments are completed once the respective amount is credited to PENTATONIC’s account.
(2) In the event that payments by credit cards or PayPal are not executed or charged back customer has to bear the costs plus an processing fee of 10,00 Euro, unless the customer is not responsible for it. PENTATONIC retains the right to proof a higher damage, the customer retains the right to proof a lower damage.
(3) Notifications of defects or warranty claims do after receipt of the product not entitle the customer to charge back payments by credit card PayPal or direct debit. This is also binding for owners of credit cards or accounts that are different from the customer. In case of a legitimate notification of defects the provisions in § 15 apply additionally.
§ 13 Exclusion of Set-off
The customer may only offset undisputed claims or claims that are granted by a final court order against claims of PENTATONIC; the same applies for a possible right of retention.
§ 14 Debt Collection
(1) In the event that claims of PENTATONIC are overdue and that reminders of PENTATONIC does not result in a payment PENTATONIC or an assignee may mandate a collection service admitted by the competent authority to collect the debt.
(2) The customer has to bear the reasonable and common costs of the collection service.
(3) Independent of possible debt collection costs according to para. 2 the customer has to pay a fee of 10,00 Euro for mandating the collection service. PENTATONIC retains the right to proof higher costs, the customer retains the right to proof that the costs are actually lower.
§ 15 Warranty
(1) The legal warranty provisions apply unless provided otherwise in the following provisions.
(2) Customers that are businesses shall notify PENTATONIC of evident defects within two weeks after receipt of the product in writing (fax or e-mail is sufficient); defects that are not evident shall be reported within one week after discovery. If the customer does not meet such deadlines warranty claims are excluded unless PENTATONIC has fraudulently concealed the defect.
(3) In case of a notification of defects PENTATONIC shall only replace the product or fix the defect after the customer returned the defect product. PENTATONIC will bear the costs for reshipment. The customer has, however, to chose a common way of transportation. In the event that the costs exceed usual transport costs and that a cheaper transport would have appropriate for the customer he has to bear the additional costs. If it turns out that the product is not defect the customer has to bear the costs for reshipment to PENTATONIC and for the transport back to the customer.
(4) In case of a legitimate notification of defects PENTATONIC may at customer’s option either replaces the product or fix the defect. If the way of rectification the customer chooses is only possible at costs that are unreasonably high the customer shall choose the other option of rectification. In the event that the customer is a business PENTATONIC may, notwithstanding the foregoing provision, choose between a replacement and a fixation. PENTATONIC may execute the option by notifying the customer in writing (e-mail and fax is sufficient) within three days after receipt of the notification of defects.
(5) In the event that PENTATONIC fails or refuses to fix the defect or to replace the product on time the customer may submit statutory warranty claims. Claims for damages are subject to § 16.
(6) In the event that the customer is a business warranty and/or damage claims of the customer are excluded after a period of one year starting with the delivery of the product. This does not apply if PENTATONIC has caused a defect or damage voluntarily.
§ 16 Limitation of Liability
(1) Liability of PENTATONIC is excluded, irrespective of the legal basis, unless provided otherwise in the following paragraphs. The exclusion of liability does not apply
a) in case of damages caused by a grossly negligent or willful breach of the Agreement by PENTATONIC or it’s agents (§ 278 BGB),
b) in case of damages, which are caused by a breach of an essential obligation under this Agreement in a manner that put the fulfillment of the Agreement at risk. Essential obligations are those obligations, with which the Parties have to comply to allow a proper fulfillment of the contract. However, the liability is limited to damages, which can typically be caused in the course of the execution of the contract and which both Parties had to take into consideration based on the knowledge of the relevant circumstances,
c) in case of bodily injury, death or damages to health, caused by a negligent breach of the contract by PENTATONIC or his agents (§ 278 BGB),
d) in case of a fraudulent concealment of the defect or a guarantee as to certain characteristics of a product,
e) in case of a liability according to the German Product liability act (Produkthaftungsgesetz).
(2) As far as PENTATONIC’s liability is excluded the exclusion also applies as to the liability of organs, employees and agents of PENTATONIC.
(3) The foregoing provisions shall not be interpreted as affecting the burden of proof to the disadvantage of the customer.
§ 17 Force Majeure
(1) In the event that delays of delivery or services are caused by force majeure or unforeseeable occurrences, which may significantly hinder or make the fulfillment of the contractual duties impossible and are not intentionally or negligently caused by PENTATONIC (e.g. war or warlike events, official directives, non granted export, import or transit licenses, national measures that limit trade, strike, lock out or other interruption of operations of any kind or traffic blocks) – regardless of whether those events occur to PENTATONIC, suppliers or sub suppliers – PENTATONIC may postpone the delivery or services for the period, in which the hindrance exists plus an adequate re-start time or cancel the agreement if it is not fulfilled and the reason for the hindrance exists for an indefinite period.
(2) The customer may only cancel the agreement if the interruption of operation existed for at least two weeks. The customer may cancel the agreement earlier if a further delay is not appropriate, especially if it is foreseeable that the hindrance will not end in the foreseeable future. In the event that a delay of more than two weeks may be appropriate, e.g. because an end of the interruption is foreseeable a cancellation may only be possible after more than two weeks.
(3) Liability of PENTATONIC is excluded in case of force majeure.
§ 18 Redemption against reimbursement of the value of raw materials
(1) The customer is for an indefinite period entitled to return the purchased product to PENTATONIC. PENTATONIC will credit an amount, which is based on the value of the raw materials of the product, to customer. The applicable amount may be identified by the customer at the time of return at pentatonic.com/... by using the serial number identified on the product or a QR-code.
(2) The customer obtains a respective credit on his customer account or, if he doesn’t have a customer account a voucher code. He may use the credited amount for purchases at PENTATONIC within a period of five years after the amount was credited.
(3) The customer bears the costs for the reshipment.
(4) Possible warranty claims of the customer and a right to rescission may exist additionally and remain untouched.
§ 19 Miscellaneous, Address at which a Summons may be served
(1) The agreement is governed by German law excluding the CISG.
(2) In the event that the customer is a business place of performance is at the seat of PENTATONIC.
(3) In the event that the customer is a merchant (according to the German commercial code – Handelsgesetzbuch) or a public legal entity place of jurisdiction for all disputes in connection with the business relationship between PENTATONIC and the customer is at the option of PENTATONIC either Berlin-Mitte or the seat of the customer. As to lawsuits against PENTATONIC Berlin-Mitte is the exclusive place of jurisdiction. Mandatory statutory provisions on exclusive places of jurisdiction remain untouched.
(4) This agreement on the place of jurisdiction remains unaffected if claims between PENTATONIC and the customer are assigned to third parties.
(5) Address of PENTATONIC at which a Summons may be served: PENTATONIC GmbH, Rosenthaler Straße 36, 10178 Berlin