Terms of service
§ 1 Conclusion of contract, collateral agreements
(1) Our offers in the webshop are subject to change and non-binding, and merely constitute an invitation to submit offers.
(2) By placing an order in the webshop (which requires prior log-in and acceptance of these General Terms and Conditions), the customer submits a binding offer to purchase the relevant product(s). The customer is bound by the offer until the end of the third business day following the day of the offer.
(3) We will send the customer an email confirmation of receipt of the offer without delay after it is received, which shall at the same time constitute acceptance of the offer.
§ 2 Storage of the contract text
We store the text of the contract and send the customer the order data by email. These Terms and Conditions can be viewed at any time at shop.fakenoise.de/AGB. However, the customer can view past orders in their customer account without the Terms and Conditions valid at the time of the order.
§ 3 Right of withdrawal
(1) Existence of a right of withdrawal
You have the right to withdraw from this contract within fourteen days without giving any reason. The withdrawal period is fourteen days from the day on which you or a third party named by you, who is not the carrier, took possession of the last goods.
The right of withdrawal does not apply if the customer is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB) and, at the time the contract is concluded, is acting in the exercise of their commercial or independent professional activity.
(2) Exercising the right of withdrawal
To exercise your right of withdrawal, you must inform us (fakenoise rec, Geschmacksachen Media GmbH, Obere Landwehr 4a, 97204 Höchberg, Germany, shop@fakenoise.de) by means of a clear statement (e.g. a letter sent by post or an email) of your decision to withdraw from this contract. No specific form is required.
For this purpose you may use the model withdrawal form of the German Federal Ministry of Justice, available at https://www.bmjv.de/DE/service/formulare/form_widerrufsrecht/form_widerrufsrecht_node.html, although this is not mandatory.
If you make use of this option, we will send you a confirmation of receipt of such a withdrawal without delay (e.g. by email).
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning the exercise of the right of withdrawal before the withdrawal period has expired.
(3) Consequences of withdrawal
If you withdraw from this contract, we and you are no longer bound by the declarations of intent aimed at concluding the contract. We shall reimburse all payments we have received from you, including delivery costs (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the cheapest standard delivery offered by us), without undue delay and at the latest within fourteen days from the day on which we received notice of your withdrawal from this contract. For this repayment we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no event will you be charged any fees as a result of this repayment. We may refuse repayment until we have received the goods back, or until you have provided proof that you have returned the goods, whichever is the earlier. This right of retention does not apply if we have offered to collect the goods. You must return or hand over the goods to us without undue delay and in any event no later than fourteen days from the day on which you inform us of the withdrawal from this contract. The deadline is met if you send the goods before the period of fourteen days has expired. You bear the direct cost of returning the goods.
You are only liable for any diminished value of the goods if this diminished value is due to handling that was not necessary for checking the nature, characteristics and functioning of the goods.
§ 4 Prices, payment
(1) Our prices include packaging and statutory value-added tax. Customs duties and similar charges are to be borne by the customer.
Prices apply per order plus the selected shipping costs.
(2) Unless expressly agreed otherwise in writing, we deliver against payment using one of the payment methods offered during checkout.
§ 5 Unjustified refusal to accept delivery
If acceptance is unjustifiably refused, we shall charge a flat-rate compensation of EUR 40.00. No value-added tax is charged on this claim for damages (§ 249 (2) sentence 2 of the German Civil Code). However, the customer has the option of proving that the damage incurred was lower, in which case the lower amount shall apply. We likewise have the option of proving higher damages, in which case the higher amount shall apply. The goods, or the amount owed under the contract, will be invoiced regardless.
§ 6 Delivery and partial deliveries
(1) Delivery is made within the countries we are able to ship to.
(2) We are entitled to make partial deliveries of separately usable products contained in one order, insofar as this is reasonable for the customer in the individual case. We bear any additional shipping costs caused by a partial delivery.
(3) Unless stated otherwise, we deliver the ordered goods according to the delivery time of the selected shipping method as shown during checkout before the contract is concluded.
§ 7 Shipping, insurance, place of performance
(1) Unless expressly agreed otherwise, we determine the appropriate shipping method and carrier at our reasonable discretion.
(2) If the customer is a consumer, we insure the goods at our own expense.
If the customer is an entrepreneur, we insure the goods at the entrepreneur's expense; however, only at the customer's express request.
§ 8 Liability for material defects and defects of title
(1) If the customer is an entrepreneur, they must in any case inspect the conformity of the goods with the contract without delay.
(2) If the delivered goods are defective, the customer may initially demand from us either the remedy of the defect or the delivery of defect-free goods. Should one or both types of this supplementary performance be impossible or disproportionate, we are entitled to refuse them, unless the customer is willing to ensure the proportionality of the supplementary performance by contributing to the costs. We may refuse supplementary performance for as long as the customer has not fulfilled their payment obligations towards us to an extent corresponding to the defect-free part of the performance.
(3) We bear the expenses necessary for the purpose of supplementary performance, in particular transport, travel, labour and material costs; this does not apply insofar as costs increase because the item is taken to a place other than the place of performance.
(4) If the customer is a consumer, they owe no compensation for the use of the defective item until replacement delivery is made.
(5) If the supplementary performance under § 8 (3) fails, is unreasonable for the customer, or we refuse supplementary performance, the customer is entitled to withdraw from the contract, reduce the purchase price, or demand damages or reimbursement of futile expenses. Any further claims of the customer, regardless of the legal basis, are excluded or limited in accordance with § 9.
(6) The warranty period is two years from delivery; insofar as acceptance is required, from the date of acceptance.
(7) If a defect becomes apparent within the first six months after delivery to the customer, the customer, if they are a consumer, does not have to prove that the defect already existed at the time of delivery.
§ 9 Withdrawal by the customer and other liability on our part
(1) The customer's statutory right of withdrawal shall be neither excluded nor restricted, except in the cases set out in § 12. Likewise, statutory or contractual rights and claims to which we are entitled shall be neither excluded nor restricted.
(2) We are liable without limitation only for intent and gross negligence (including that of our legal representatives and vicarious agents), as well as for damages resulting from injury to life, body or health caused by a negligent breach of duty on our part or an intentional or negligent breach of duty by our legal representatives or vicarious agents. We are likewise liable without limitation in the case of guarantees and assurances given, if a defect covered by them triggers our liability. Nor is liability limited under statutory strict-liability provisions (in particular under the Product Liability Act). Any liability under the principles of the entrepreneur's right of recourse pursuant to §§ 478 et seq. of the German Civil Code remains unaffected.
(3) In the case of any other culpable breach of material contractual obligations (cardinal obligations), our remaining liability is limited to the foreseeable damage typical for this type of contract.
(4) Otherwise, liability – regardless of the legal grounds (in particular claims arising from breach of primary or ancillary contractual obligations, tort, or other liability in tort) – is excluded.
(5) The same (exclusions, limitations and exceptions thereto) applies to claims arising from fault at the conclusion of the contract.
(6) In the case of reimbursement of expenses (with the exception of that under §§ 439 (2), 635 (2) of the German Civil Code), this § 9 shall apply accordingly.
(7) Any exclusion or limitation of our liability also applies to our legal representatives and vicarious agents.
(8) Cardinal obligations are material contractual obligations, i.e. obligations that define the character of the contract and on which the contracting party may rely; these are the essential rights and obligations that create the conditions for the performance of the contract and are indispensable for achieving the purpose of the contract.
(9) None of the preceding clauses is intended to change the statutory or judicial allocation of the burden of proof.
§ 10 Set-off, right of retention and assignment
(1) The customer may only set off their own claims against our claims if the counterclaims are undisputed or have been finally and bindingly established. However, the customer is also entitled to a right of retention on account of counterclaims arising from the same contractual relationship.
(2) An assignment of the customer's claims against us is not permitted without our prior consent. We undertake not to refuse consent without good cause.
§ 11 Electronic invoice
The customer agrees to receive invoices transmitted electronically.
§ 12 Retention of title
(1) We retain title to the goods delivered by us until the price (including value-added tax) for the goods in question has been paid in full.
(2) For as long as the retention of title applies, the customer may not sell the goods or otherwise dispose of the title to them.
(3) In the event of third-party access to the goods subject to retention of title – in particular by bailiffs – the customer shall point out our ownership and notify us without delay so that we can enforce our ownership rights.
(4) In the event of conduct by the customer in breach of contract, in particular default of payment, we are entitled to demand return of the goods subject to retention of title, provided we have withdrawn from the contract.
§ 13 Applicable law, place of jurisdiction and written form
(1) The contract between us and the customer is governed by the law of the Federal Republic of Germany.
(2) The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.
(3) Should any provision of these General Terms and Conditions, or any provision within the framework of other agreements, be or become invalid, this shall not affect the validity of all other provisions or agreements.
(4) Amendments and additions to these Terms and Conditions must be made in writing. This also applies to any change to this written-form clause. However, this so-called double written-form clause does not prevent additional oral agreements, which shall take precedence in that respect.
§ 14 Dispute resolution
(1) The European Commission provides a platform for online dispute resolution (ODR), which you can find here: http://ec.europa.eu/consumers/odr/. Consumers have the option of using this platform to resolve their disputes.