General Terms and Conditions

Table of contents

1. scope
2. conclusion of the contract
3. Prices and payment terms
4. delivery and shipping conditions
5. granting of usage rights for digital content
6. Force majeure
7. Delay of performance at the customer's request
8. retention of title
9. Liability for Defects / Warranty
10. Liability
11. statute of limitations
12. retention, assignment
13. Special conditions for the processing of goods according to specific customer specifications
14. Applicable law, place of jurisdiction

1) Scope

1.1  These General Terms and Conditions (hereinafter "GTC") of Fontana GmbH & Co. KG (hereinafter "Seller") apply to all contracts for the delivery of goods that an entrepreneur (hereinafter "Customer") concludes with the Seller with regard to the goods presented by the Seller in his online shop. The inclusion of the Customer's own terms and conditions is hereby contradicted, unless otherwise agreed.

1.2  These General Terms and Conditions shall also apply exclusively if the Seller carries out delivery to the Customer without special reservation despite being aware of conditions of the Customer that conflict with or deviate from these Conditions.

1.3  These Terms and Conditions shall apply accordingly to contracts for the delivery of digital content, unless expressly provided otherwise.

1.4  An entrepreneur within the meaning of these General Terms and Conditions is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his or her commercial or independent professional activity.

1.5  Entrepreneurs within the meaning of these General Terms and Conditions also include authorities or other institutions under public law if they act exclusively under private law when concluding the contract.

2) Conclusion of contract

2.1  The product descriptions presented in the seller's online shop do not constitute binding offers on the part of the seller, but serve to submit a binding offer by the customer.

2.2  The customer can submit the offer using the online order form integrated into the seller's online shop. After placing the selected goods and/or services in the virtual shopping cart and completing the electronic ordering process, the customer submits a legally binding contract offer in relation to the goods and/or services contained in the shopping cart by clicking the button that concludes the ordering process. The customer can also submit the offer to the seller by telephone, fax, email or post.

2.3  The Seller may accept the Customer’s offer within five days,

• by sending the customer a written order confirmation or an order confirmation in text form (fax or e-mail), whereby the receipt of the order confirmation by the customer is decisive, or
• by delivering the ordered goods to the customer, whereby the receipt of the goods by the customer is decisive, or
• by requesting payment from the customer after placing his order, or
• if payment by direct debit is offered and the customer chooses this payment method, the total price will be debited from the customer's bank account, whereby the time at which the customer's account is debited is decisive.

If several of the aforementioned alternatives exist, the contract is concluded at the time at which one of the aforementioned alternatives occurs first. The period for accepting the offer begins on the day after the offer is sent by the customer and ends on the expiry of the fifth day following the sending of the offer. If the seller does not accept the customer's offer within the aforementioned period, this is deemed to be a rejection of the offer with the consequence that the customer is no longer bound by his declaration of intent.

2.4  If a payment method offered by PayPal is selected, payment processing will be carried out via the payment service provider PayPal (Europe) S.à rl et Cie, SCA, 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter: “PayPal”), subject to the PayPal terms of use, which can be viewed at https://www.paypal.com/de/webapps/mpp/ua/useragreement-full or - if the customer does not have a PayPal account - subject to the conditions for payments without a PayPal account, which can be viewed at https://www.paypal.com/de/webapps/mpp/ua/privacywax-full . If the customer pays using a payment method offered by PayPal that can be selected during the online ordering process, the seller hereby declares acceptance of the customer’s offer at the time the customer clicks the button that completes the ordering process.

2.5  When submitting an offer via the seller's online order form, the contract text is saved by the seller after the contract has been concluded and sent to the customer in text form (e.g. email, fax or letter) after the order has been sent. The seller will not make the contract text available beyond this. If the customer has set up a user account in the seller's online shop before sending their order, the order data will be archived on the seller's website and can be accessed free of charge by the customer via their password-protected user account by entering the relevant login data.

2.6  Before submitting the binding order via the seller's online order form, the customer can identify possible input errors by carefully reading the information displayed on the screen. An effective technical means for better identifying input errors can be the browser's zoom function, which helps to enlarge the display on the screen. The customer can correct his entries as part of the electronic ordering process using the usual keyboard and mouse functions until he clicks the button that concludes the ordering process.

2.7  Only the German language is available for the conclusion of the contract.

2.8  Order processing and contact are usually carried out via email and automated order processing. The customer must ensure that the email address provided for order processing is correct so that emails sent by the seller can be received at this address. In particular, when using SPAM filters, the customer must ensure that all emails sent by the seller or by third parties commissioned by the seller to process the order can be delivered.

2.9  If the parties have agreed on special conditions, these shall generally not apply to current and future contractual relationships with the customer.

2.10  If the customer is financially unable to fulfill his obligations to the seller, the seller can terminate existing exchange contracts with the customer without notice by withdrawing from the contract. This also applies if the customer files for insolvency. Section 321 of the German Civil Code (BGB) and Section 112 of the German Insolvency Code (InsO) remain unaffected. The customer will inform the seller in writing at an early stage of any impending insolvency.

3) Prices and payment terms

3.1  Unless otherwise stated in the seller's product description, the prices quoted are net prices plus statutory sales tax. Packaging and shipping costs, loading, insurance (in particular transport insurance), customs duties and taxes will be charged separately if applicable.

3.2  Various payment options are available to the Customer, which are specified in the Seller’s online shop.

3.3  If a payment method offered via the "mollie" payment service is selected, payment processing will be carried out via the payment service provider Mollie BV, Keizersgracht 313, 1016 EE Amsterdam, Netherlands (hereinafter: "mollie"). The individual payment methods offered via mollie are communicated to the customer in the seller's online shop. To process payments, mollie may use other payment services for which special payment conditions may apply, to which the customer may be informed separately. Further information about "mollie" is available on the Internet at https://www.mollie.com/de/ .

3.4  A payment is deemed to have been received as soon as the equivalent amount has been credited to one of the seller's accounts. In the event of late payment, the seller is entitled to interest on arrears amounting to 10 percentage points above the respective base interest rate. The seller's other legal rights in the event of late payment by the customer remain unaffected. If claims are overdue, incoming payments will first be credited against any costs and interest, then against the oldest claim.

3.5 Sollten nicht vorhersehbare Kostenerhöhungen eintreten (z.B. Währungsschwankungen, unerwartete Preiserhöhungen der Lieferanten etc.) ist der Verkäufer berechtigt, die Preiserhöhung an den Kunden weiterzugeben. Dies gilt jedoch nur, wenn die Lieferung vereinbarungsgemäß später als vier Monate nach dem Vertragsschluss erfolgen soll.

4) Delivery and shipping conditions

4.1  The delivery of goods takes place by shipping to the delivery address specified by the customer, unless otherwise agreed. When processing the transaction, the delivery address specified in the seller's order processing is decisive.

4.2  For goods delivered by freight forwarding, delivery is made "free curbside", i.e. up to the public curb closest to the delivery address, unless otherwise stated in the shipping information in the seller's online shop and unless otherwise agreed.

4.3  The seller is entitled to make partial deliveries as long as this is reasonable for the customer. In the case of permissible partial deliveries, the seller is also entitled to issue partial invoices.

4.4  The seller reserves the right to withdraw from the contract in the event of incorrect or improper self-delivery. This only applies if the non-delivery is not the responsibility of the seller and the seller has concluded a specific hedging transaction with the supplier with due care. The seller will make all reasonable efforts to procure the goods. In the event of unavailability or only partial availability of the goods, the customer will be informed immediately and the consideration will be refunded immediately.

4.5  The risk of accidental loss and accidental deterioration of the goods sold passes to the customer as soon as the seller has delivered the goods to the forwarding agent, the carrier or the other person or institution designated to carry out the shipment. This also applies if the seller bears the costs of transport. Transport insurance is only provided upon special request and at the customer's expense.

4.6  If delivery is not possible for reasons for which the customer is responsible, e.g. because the goods do not fit through the customer's front door, house door or staircase, or because the customer cannot be found at the delivery address provided by him, although the delivery time was announced to the customer with reasonable notice, the customer shall bear the costs for the unsuccessful delivery and shall be obliged to pay a flat-rate compensation for delay. This shall amount to 1% for each full week of delay, but a maximum of 8% of the value of the total delivery or of the part of the total delivery not accepted. The parties are free to prove higher or lower damages.

4.7  In the event that the shipment of the goods to the customer is delayed for reasons for which the customer is responsible, the transfer of risk occurs when the customer is notified that the goods are ready for shipment. Any storage costs incurred after the transfer of risk must be borne by the customer.

4.8  Self-collection is not possible for logistical reasons.

4.9  Digital content will be provided to the customer exclusively in electronic form as follows:

• via download
• by email

5) Granting of rights of use for digital content

5.1  Unless otherwise stated in the content description in the Seller’s online shop, the Seller grants the Customer the non-exclusive, geographically and temporally unlimited right to use the content provided for commercial purposes.

5.2  The transfer of the contents to third parties or the creation of copies for third parties outside the scope of these General Terms and Conditions is not permitted unless the Seller has agreed to a transfer of the contractual license to the third party.

5.3  The granting of rights only becomes effective according to Section 158 Paragraph 1 of the German Civil Code (BGB) when the customer has paid the full amount owed. The seller can also provisionally permit the use of the contractual content before this point in time. Such provisional permission does not result in a transfer of rights.

6) Force majeure

In the event of force majeure events that affect the performance of the contract, the seller is entitled to postpone delivery for the duration of the hindrance and to withdraw in whole or in part in the event of longer-term delays, without any claims against the seller being able to be derived from this. Force majeure is deemed to be all events that were unforeseeable for the seller or those that - even if they were foreseeable - are outside the seller's sphere of influence and whose impact on the performance of the contract cannot be prevented by reasonable efforts on the part of the seller. Any legal claims of the customer remain unaffected.

7) Delay of performance at the customer's request

If the shipment or delivery of the goods is delayed at the customer's request for more than one month after notification of readiness for shipment, the customer may be charged storage fees of 0.5% of the purchase price for each additional month or part thereof, up to a maximum of 5% of the purchase price. The contracting parties are free to provide evidence of higher or lower damages.

8) Retention of title

8.1  The seller reserves title to the delivered goods until the purchase price owed has been paid in full. The seller also reserves title to the delivered goods until all of its claims arising from the business relationship with the customer have been met.

8.2  If the delivered goods are processed, the seller is considered the manufacturer and acquires ownership of the newly created goods. If the processing is carried out together with other materials, the seller acquires ownership in the ratio of the invoice value of his goods to that of the other materials. If the seller's goods are combined or mixed with an item belonging to the customer, this is to be regarded as the main item, the joint ownership of the item passes to the seller in the ratio of the invoice value of the seller's goods to the invoice value or, in the absence of such, to the market value of the main item. In these cases, the customer is considered the custodian.

8.3  The customer may neither pledge nor assign as security items subject to retention of title or title. The customer is only permitted to resell items as a reseller in the ordinary course of business on the condition that the customer has effectively assigned to the seller the customer's claims against its customers in connection with the resale and that the customer transfers ownership to its customer subject to payment. By concluding the contract, the customer assigns its claims against its customers in connection with such sales to the seller as security, who simultaneously accepts this assignment.

8.4  The customer must immediately report access to the goods owned or co-owned by the seller or to the assigned claims. The customer must immediately transfer to the seller any amounts assigned to the seller and collected by him, insofar as the seller's claim is due.

8.5  If the value of the Seller’s security rights exceeds the amount of the secured claims by more than 10%, the Seller will release a corresponding proportion of the security rights at the Customer’s request.

9) Liability for defects / warranty

If the purchased item is defective, the provisions of statutory liability for defects apply. The following applies in deviation from this:

9.1  Claims for defects do not arise in the case of natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable operating materials or as a result of special external influences that are not assumed under the contract. If the customer or third parties make improper changes or repairs, there are also no claims for defects for these and the resulting consequences, unless the customer can prove that the fault complained of was not caused by these changes or repairs.

9.2  For new goods, the limitation period for claims for defects is one year from delivery of the goods. For used goods, rights and claims due to defects are excluded.

9.3  The limitations of liability and reductions in limitation periods set out above do not apply

• for items that have been used for a building in accordance with their usual use and have caused its defectiveness,
• for claims for damages and reimbursement of expenses by the customer,
• in the event that the seller has fraudulently concealed the defect, as well as
• for the recourse claim according to Section 445a BGB.

9.4  In the event of subsequent performance, the Seller shall have the right to choose between repair or replacement delivery.

9.5  If a replacement delivery is made within the scope of liability for defects, the limitation period does not begin again.

9.6  If the subsequent performance is carried out by means of a replacement delivery, the customer is obliged to return the goods initially delivered to the seller within 30 days. The return package must contain the reason for the return, the customer's name and the number assigned for the purchase of the defective goods, which enables the seller to allocate the returned goods. As long as and to the extent that the allocation of the return is not possible for reasons for which the customer is responsible, the seller is not obliged to accept returned goods or to refund the purchase price. The customer bears the costs of re-shipping.

9.7  If the seller delivers a defect-free item for the purpose of subsequent performance, the seller can claim compensation for use from the customer in accordance with Section 346 Paragraph 1 of the German Civil Code (BGB). Other statutory claims remain unaffected.

9.8  If the customer acts as a merchant within the meaning of Section 1 of the German Commercial Code (HGB), he is subject to the commercial obligation to inspect and give notice of defects in accordance with Section 377 of the German Commercial Code (HGB). If the customer fails to comply with the notification obligations set out therein, the goods are deemed to have been approved.

10) Liability

The seller is liable to the customer for all contractual, quasi-contractual and legal, including tortious claims for damages and reimbursement of expenses as follows:

10.1  The Seller shall be liable without limitation for any legal reason

• in case of intent or gross negligence,
• in the event of intentional or negligent injury to life, body or health,
• due to a guarantee promise, unless otherwise provided,
• due to mandatory liability such as under the Product Liability Act.

10.2  If the seller negligently breaches a material contractual obligation, liability is limited to the damage that is typical for the contract and foreseeable, unless unlimited liability applies in accordance with the above paragraph. Material contractual obligations are obligations that the contract imposes on the seller in accordance with its content in order to achieve the purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place and on whose compliance the customer can regularly rely.

10.3  Otherwise, the Seller’s liability is excluded.

10.4 Vorstehende Haftungsregelungen gelten auch im Hinblick auf die Haftung des Verkäufers für seine Erfüllungsgehilfen und gesetzlichen Vertreter.

11) Limitation Period

Claims of the customer against the seller - with the exception of the claims regulated under the point "Liability for defects / warranty" - expire within one year from knowledge of the facts giving rise to the claim, but no later than five years after the service has been provided, unless unlimited liability applies in accordance with the above paragraph.

12) Retention, Assignment

12.1  The customer’s rights of retention and refusal to perform are excluded unless the seller does not contest the underlying counterclaims or these have been legally established.

12.2  Any assignment of claims arising from the contract concluded with the customer by the customer, in particular any assignment of any claims for defects by the customer, is excluded.

13) Special conditions for the processing of goods according to specific customer specifications

13.1  The customer indemnifies the seller against claims made by third parties in connection with a violation of their rights through the contractual use of the customer's content by the seller. The customer also assumes the reasonable costs of the necessary legal defense, including all court and attorney fees at the statutory rate. This does not apply if the customer is not responsible for the violation of rights. In the event of a claim by third parties, the customer is obliged to provide the seller with all information required to examine the claims and to defend itself, promptly, truthfully and completely.

13.2  The seller reserves the right to refuse processing orders if the content provided by the customer violates legal or official prohibitions or violates common decency. This applies in particular to the provision of content that is unconstitutional, racist, xenophobic, discriminatory, offensive, harmful to young people and/or glorifies violence.

14) Applicable law, place of jurisdiction

14.1 The law of the Federal Republic of Germany shall apply to all legal relationships between the parties, excluding the laws on the international purchase of movable goods.

14.2  If the customer is a merchant, a legal entity under public law or a special fund under public law with its registered office in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract is the seller's place of business. If the customer is based outside the territory of the Federal Republic of Germany, the seller's place of business is the exclusive place of jurisdiction for all disputes arising from this contract. In the above cases, however, the seller is in any case entitled to bring the case before the court at the customer's place of business.