General Terms and Conditions of 3TRINITY GmbH for contracts closed using exclusively means of telecommunication
The following definitions are used for the present General Terms and Conditions:
The contract between 3TRINITY GmbH and the customer concerning the delivery of goods from the online shop.
A natural or legal person or a partnership with legal personality concluding a sales contract with 3TRINITY.
Distance contracts are contracts concerning the delivery of goods or the performance of services closed between an entrepreneur and a consumer using exclusively means of telecommunication.
An entrepreneur is a natural or legal person or partnership with legal personality concluding the sales contract in exercise of his commercial or independent professional activity.
A consumer is every natural person concluding a sales contract with a purpose which can be attributed neither to her commercial nor to her independent professional activity.
Means of telecommunica-tion:
Means of telecommunication are those means of communication which can be used for initiating or closing a contract between a consumer and an entrepreneur without the contracting parties being physically present, in particular telephone calls, e-mails, and other media services.
These Terms and Conditions apply exclusively for sales contracts between 3TRINITY GmbH and the customers. General Terms and Conditions of the customer that are conflicting with or deviating from these Terms and Conditions are not recognized unless 3TRINITY GmbH has given her consent in writing to such an exception.
3. Conclusion of the contract
a) Offer to conclude a sales contract by the customer
The presentation of the products at the 3TRINITY GmbH online shop does not constitute a binding offer to conclude a sales contract by 3TRINITY GmbH but it is only a request to the customer to make an offer to 3TRINITY GmbH to buy (“invitatio ad offerendum”).
As a visitor of the 3TRINITY GmbH online shop each customer will automatically be given a “shopping basket”. This can be used to collect the selected products. As soon as the customer leaves the online shop without having made a binding offer, the content of the shopping basket expires. In such a case no legal transaction has been completed. Each customer has the possibility to register as a ”customer“ and to establish a personal customer account. In this case the customer’s selection will be saved until his next login. A registered customer can conveniently buy products at the 3TRINITY GmbH online shop, he can check the status of his order at any time, and he always has an updated overview over the orders he has made so far. After the customer has registered for the first time, he can login at the online shop using his e-mail address and a personal password.
Ordering products at the 3TRINITY GmbH online shop is made in such a way that the customer selects and clicks the desired article(s) from the range of products presented at the online shop. Here he will get information on the product.
Once the customer has chosen an article and, if applicable, has selected further options associated with the product (e.g. colour, number of items, etc.), the article can be put into the shopping basket by clicking the “into the basket” button.
By putting the product into the shopping basket the customer has not yet made an offer. The products still can be removed from the shopping basket by clicking the “remove” box. If the customer has decided to acquire the products placed in his basket, he clicks the “checkout“ button.
Now the order forms will open up where the customer fills in the necessary details.
By clicking the respective box the customer confirms that he has read the General Terms and Conditions of the 3TRINITY GmbH online shop. Without clicking this box the order cannot be completed.
The data entered by the customer then have to be confirmed by him. Then the order is completed by clicking the “continue” button.
It is only by clicking the ”continue“ button that the customer makes a binding offer about the products that are then in his shopping basket. Up to that moment the customer can recheck and, if necessary, correct his data in the order forms at any time before confirming them.
After 3TRINITY GmbH has received the order, the customer will get an e-mail automatically generated by the 3TRINITY GmbH ordering system in which the receipt of his offer by 3TRINITY GmbH is confirmed. Here the customer again can check the information contained in the confirmation so that any errors in the order may still be corrected in time. The confirmation e-mail also contains information on the ordered product as well as the General Terms and Conditions and the 3TRINITY GmbH instruction on the right of cancellation/ withdrawal.
b) Accepting the offer to conclude a sales contract by 3TRINITY GmbH
The products and prices at the 3TRINITY GmbH online shop are non-binding and subject to confirmation until the customer’s offer is accepted by 3TRINITY GmbH.
Simultaneously with the confirmation of the receipt of the order the customer’s offer to buy is accepted by 3TRINITY GmbH and a request for payment is sent. In this way the sales contract has been concluded
4. Maturity, terms of payment, and default
The purchase price for the product is due immediately. The purchase price is to be paid via credit card.
If the customer is in default with his payment, 3TRINITY GmbH is entitled to claim the German legal default interest (in case of a consumer: 5 percentage points above the respective base rate; in case of an entrepreneur 8 percentage points above the respective base rate). The right of 3TRINITY GmbH to claim higher interests on a different legal basis or further damage remains unaffected.
5. Right of cancellation/ withdrawal and legal consequences of a cancellation/ withdrawal; sending and return costs after cancellation/withdrawal
If you are a consumer (section 13 BGB), i.e. if you are a natural person doing the shopping at 3TRINITY GmbH for a private purpose, i.e. one which can be attributed to a commercial or independent professional activity, you are entitled to a legal right of cancellation/ withdrawal
Instruction on the right of cancellation/ withdrawal
Right of cancellation/ withdrawal
You may revoke your contractual statement within 14 days, without stating reasons, in writing (e.g. as a letter, fax, or e-mail) or - if you receive the item before the deadline expires - also by sending back the item. The period starts after receiving this instruction in written form, but not before the customer receives the product (in case of a delivery of similar goods on a recurring basis not before the first partial delivery is received) and also not before our obligations to inform pursuant to article 246 section 2 in conjunction with section 1 paragraph 1 and 2 EGBGB and our obligations pursuant to section 312g paragraph 1 sentence 1 BGB in conjunction with article 246 section 3 EGBGB have been fulfilled. The cancellation / withdrawal period is observed by the timely sending of the cancellation/withdrawal notice or the item. The cancellation/withdrawal notice must be sent to:
Legal consequences of a cancellation/ withdrawal
In case of a legally effective cancellation/withdrawal, the services received by both parties as well as any benefits gained (e.g. interests) must be returned. If you are not able to return to us the received services and benefits (e.g. benefits from usage) as a whole or in parts or only in a deteriorated condition, you are obliged to offer a compensation of equal value. For the deterioration of the item and for benefits gains you are only obliged to offer a compensation of equal value insofar as the usage or the deterioration is caused by a loss of the item beyond the testing of the item’s characteristics and mode of operation. “Testing the item’s characteristics and mode of operation” is understood as the testing and trying out of the respective product in the same way as it is possible and custom e.g. in a shop. Items suitable for parcel shipment are to be sent back at our costs and risk. Items not suitable for parcel shipment are picked up at your address. Any obligations to reimburse payments must be fulfilled within a period of 30 days. This period starts for you when your cancellation/withdrawal notice or the item is dispatched, for us when we receive them.
End of the instruction on the right of cancellation/ withdrawal
Exclusion of the right of cancellation/ withdrawal
There is no right of cancellation/withdrawal of your statement vis-à-vis 3TRINITY GmbH concerning the conclusion of a sales contract in those cases where items were delivered that were manufactured according to customer specifications or that were clearly tailor-made according to the specific needs of the customer or that are not suited to be sent back due the nature of these items.
Sending costs after cancellation / withdrawal
If you chose to make use of your legal right of cancellation/withdrawal, we will reimburse to you the costs for the shipment from us to you (“sending costs“). If in case of more than one ordered item you chose to make use of your legal right of cancellation only for a part of those items, then we will reimburse to you the costs for the shipment of these items insofar as these costs would exceed the costs for the shipment of those items that remain with you.
Return costs after cancellation / withdrawal
In case of a cancellation/withdrawal meeting the legal requirements the return shipment of the items will be free of costs for you.
6. Set-off, right of retention
The customer only has a right to set-off if his counter-claims have been established in a legally binding manner and if they are uncontested or recognized by 3TRINITY GmbH. The customer is insofar entitled to exercise the right of retention as his counter-claim is based on the same contractual relationship.
7. Transfer of risks
In case of deliveries to the consumer (section 13 BGB) the risk of accidental destruction and of accidental deterioration of the item is transferred to the customer as soon as the item is handed over by the forwarder to the buyer or his agent or at the delivery address indicated by the buyer.
In case of deliveries to an entrepreneur (section 14 BGB) the risk of accidental destruction and of accidental deterioration of the item is transferred to the buyer as soon as the item is handed over to the forwarder.
8. Retention of title
a) In case of contracts with consumers
The products delivered by 3TRINITY GmbH remain the property of 3TRINITY GmbH until all the claims from the sales contract between the customer and 3TRINITY GmbH have been fulfilled. Until that moment the customer is obliged to treat the product with care.
The customer undertakes to dispose of the product prior to the transfer of property only after prior written consent of 3TRINITY GmbH. In case of any access by a third party, in particular in cases of a seizure of the product, the customer must immediately inform 3TRINITY GmbH in writing and inform the third party about the retention of title by 3TRINITY GmbH.
b) In case of contracts with entrepreneurs
The products delivered by 3TRINITY GmbH remain the property of 3TRINITY GmbH until all the claims from the sales contract between the customer and 3TRINITY GmbH have been fulfilled. This applies also to all future deliveries even if 3TRINITY GmbH does not explicitly refer to this at each delivery. 3TRINITY GmbH is entitled to reclaim the purchased item if the customer is in breach of the contract.
As long as the property has not been transferred to him, the customer is obliged to treat the product with care. If maintenance and inspection works have to be carried out, the customer has to carry them out in time himself and at his own costs. As long as the property has not yet been transferred, the customer has to inform 3TRINITY GmbH immediately in writing if the delivered item is seized or otherwise subject to any access by a third party. Insofar as the third party is not able to reimburse to 3TRINITY GmbH the court and out-of-court costs of an action pursuant to section 771 ZPO, the customer is liable for the losses incurred to 3TRINITY GmbH.
The customer is entitled to resell the item subject to the retention of title in the normal course of business. The claims of the purchaser of the resold item subject to the retention of title are already now assigned by the customer to 3TRINITY GmbH to the amount of the final invoice amount agreed with 3TRINITY GmbH (including VAT). This assignment applies irrespective of whether the purchased item has been resold without or after processing. The customer remains entitled to collect the claim even after the assignment. The right of 3TRINITY GmbH to collect the claim herself after the disclosure of the assignment remains unaffected. 3TRINITY GmbH will not collect the claim, though, as long as the customer fulfils his payment obligations from the received revenues, is not in default with the payments and in particular as long as an application for the opening of insolvency proceedings concerning his assets has not been made or no cessation of payment occurs.
9. Guarantee and notification of defects
3TRINITY GmbH guarantees that the products do not have any material defects in the sense of the German Civil Code (BGB). In the case of defects the customer is entitled to the legal guarantee rights insofar as the following provisions do not state otherwise:
a) The customer is a consumer
At first, the customer has the choice whether the supplementary performance should occur by rectification or by the delivery of a replacement. But 3TRINITY GmbH is entitled to refuse the supplementary performance option chosen by the customer if it can only be achieved with costs that are out of proportion and if the other option is without serious disadvantages for the customer. During the supplementary performance the reduction of the purchase price or the rescission of the contract by the customer are excluded. A rectification is deemed to be fruitless when the second attempt has failed, unless the nature of the item or the defect or the other circumstances require otherwise. If the rectification has been fruitless or if 3TRINITY GmbH refuses the supplementary performance as a whole, the customer has the choice of either claiming a reduction of the purchase price or rescinding from the contract.
The customer can only claim any damage compensation claims because of the defect at the conditions stated under 10. after the supplementary performance has been fruitless or after 3TRINITY GmbH refused the supplementary performance. The customer’s right to claim further damage compensation at the following conditions remains unaffected.
The guarantee period is 2 years in case of the purchase of new products, 1 year in case of the purchase of used products, starting with the transfer of risk respectively. This guarantee period also applies in case of claims for the compensation of consequential damage caused by defects insofar as no claims due to tortious acts are made.
b) The customer is an entrepreneur
If the customer is a businessman, he must have fulfilled his obligations to inspect the goods and to report defects pursuant to section 377 of the German HGB to be able to claim guarantee rights. Obvious defects must be immediately reported in writing to 3TRINITY GmbH, but at the latest 7 days after the receipt of the product. Hidden defects must also be immediately reported in writing to 3TRINITY GmbH, but at the latest 7 days after the discovery of the defect. If such a report is not made, the delivery is deemed to be accepted.
There are no claims for defects in cases of an insignificant deviation from the agreed condition, in case of an insignificant restriction of the usability, in case of natural wear and tear, and in case of damages after the transfer of risks caused by incorrect or careless treatment, excessive use, use of accessories not produces or authorized by the manufacturer of the product or caused by exceptional external influences not presupposed by the contract. If the customer or a third party carries out improper maintenance works or changes on the product, there are also no claims for defects caused by the resulting consequences.
If the customer reports a defect in time which existed already at the moment of the transfer of risks, he can, at the choice of 3TRINITY GmbH, claim either the cost-free removal of the defect or the delivery of an item free of defects (supplementary performance). 3TRINITY GmbH must be given the opportunity to provide a supplementary performance within a reasonable period of time. 3TRINITY GmbH may refuse one type of supplementary performance or the whole supplementary performance if it is only possible at disproportionate costs.
Returns to 3TRINITY GmbH of defective items in order to provide a supplementary performance may only be carried out with prior written consent of 3TRINITY GmbH. The risk of accidental loss and of accidental deterioration of the returned item is only transferred to 3TRINITY GmbH when the item is handed over at her registered office. If 3TRINITY GmbH delivers a replacement item for the purpose of a supplementary performance, the customer must immediately return the original item. Replaced parts become the property of 3TRINITY GmbH.
If the supplementary performance fails or if it is refused, the customer can either rescind from the contract or reduce the remuneration - irrespective of any other damage compensation claims.
Any claims by the customer due to expenses necessary for the supplementary performance, in particular transportation, road, work, and material costs, are excluded insofar as the expenses increase because the product delivered by 3TRINITY GmbH is afterwards brought to a place other than the customer’s branch unless such a transport is in line with the intended use.
Claims for defects become time-barred after 12 months after the transfer of risks in case of the delivery of new products unless the defect was maliciously concealed. In case of the delivery of used products the guarantee is excluded.
3TRINITY GmbH is liable for damage compensation only according to the provisions under 10.
3TRINITY GmbH only pays damage compensation, regardless of the legal ground, to the following extent:
3TRINITY GmbH shall be liable without limitation for damages to life, limb and health caused by a negligent or intentional breach of duty of her legal representatives or agents as well as for damages covered by the German Product Liability Act and for all damages caused by intentional or grossly negligent breaches of contract or malice by her legal representatives or agents. Insofar as 3TRINITY GmbH has provided a guarantee of condition and/or durability for the item or for parts of it, 3TRINITY GmbH is also liable within the framework of this guarantee. For damages that are caused by the lack of the guaranteed condition or durability but that do not occur directly on the item, 3TRINITY GmbH is only liable if the risk of such damage is obviously covered by the guarantee for the condition and durability.
3TRINITY GmbH is also liable for damages caused by simple negligence insofar as this negligence concerns the breach of such contractual obligations the fulfilment of which is of particular importance for achieving the contractual purpose (“cardinal obligations”). 3TRINITY GmbH is only liable, though, insofar as the damages are typically connected to the contract and predictable. Apart from that, in case of negligent breach of secondary obligations that are not essential to the contract, 3TRINITY GmbH is not liable. The limitations of liability of the sentences 1 to 3 also apply insofar as the liability for the legal representatives, senior executives and other agents is concerned.
Any further liability is excluded, regardless of the legal nature of the claims. Insofar as the liability is excluded or limited, this also applies for the personal liability of the employees, staff, representatives, and agents of 3TRINITY GmbH.
11. Place of jurisdiction, choice of law, and place of fulfilment
If the customer is a businessman, a legal entity under public law or a separate fund under public law, the registered office of 3TRINITY GmbH is the place of jurisdiction for all disputes arising from the contractual relationship. 3TRINITY GmbH is entitled, though, to sue the customer at the court of his place of residence.
If the customer is not a businessman, the regulations of the German law apply.
This contractual relationship and its interpretation are governed by the laws of the Federal Republic of Germany. This choice of law does not apply to mandatory provisions for the protection of the consumer pursuant to the law applicable at his habitual place of residence if the laws of the Federal Republic of Germany provide less protection.
The application of the CISG is excluded.
Insofar as the order confirmation does not state otherwise, the registered office of 3TRINITY GmbH is the place of fulfilment.
General Terms and Conditions as of February 2012