Terms of service

 

Terms & Conditions

Table of Contents

Scope of Application
Conclusion of Contract
Right of Withdrawal
Prices and Payment Terms
Delivery and Shipping Conditions
Granting of Rights of Use for Digital Content
Retention of Title
Liability for Defects
Liability
Special Conditions for the Processing of Goods According to Customer Specifications
Applicable Law
Alternative Dispute Resolution

1) Scope of Application

1.1 These Terms and Conditions, hereinafter referred to as “Terms & Conditions”, of Pencil Poetry - Bernhards, Maximilian mit Bernhards, Laura Alena GbR, hereinafter referred to as the “Seller”, apply to all contracts for the delivery of goods concluded by a consumer or entrepreneur, hereinafter referred to as the “Customer”, with the Seller regarding the goods displayed by the Seller in its online shop. The inclusion of the Customer’s own terms and conditions is hereby rejected, unless otherwise agreed.

1.2 These Terms & Conditions apply accordingly to contracts for the provision of digital content, unless otherwise regulated. Digital content within the meaning of these Terms & Conditions means data created and provided in digital form.

1.3 A consumer within the meaning of these Terms & Conditions is any natural person who enters into a legal transaction for purposes that predominantly cannot be attributed to their commercial or independent professional activity.

1.4 An entrepreneur within the meaning of these Terms & Conditions is a natural or legal person or a partnership with legal capacity who, when entering into a legal transaction, acts in the exercise of their commercial or independent professional activity.

2) Conclusion of Contract

2.1 The product descriptions contained in the Seller’s online shop do not constitute binding offers on the part of the Seller, but serve to enable the Customer to submit a binding offer.

2.2 The Customer may submit the offer via the online order form integrated into the Seller’s online shop. After placing the selected goods in the virtual shopping cart and completing the electronic ordering process, the Customer submits a legally binding contractual offer with regard to the goods contained in the shopping cart by clicking the button that concludes the order process.

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, by fax or email, whereby receipt of the order confirmation by the Customer is decisive, or

by delivering the ordered goods to the Customer, whereby receipt of the goods by the Customer is decisive, or

by requesting payment from the Customer after the Customer has placed the order.

If several of the aforementioned alternatives apply, the contract is concluded at the time at which one of the aforementioned alternatives first occurs. The period for accepting the offer begins on the day after the Customer sends the offer and ends at the end 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 shall be deemed a rejection of the offer, with the result that the Customer is no longer bound by their declaration of intent.

2.4 If a payment method offered by PayPal is selected, payment processing is carried out via the payment service provider PayPal Europe S.à r.l. et Cie, S.C.A., 22–24 Boulevard Royal, L-2449 Luxembourg, hereinafter referred to as “PayPal”, subject to the PayPal Terms of Use, available at https://www.paypal.com/de/legalhub/paypal/useragreement-full or, if the Customer does not have a PayPal account, subject to the terms for payments without a PayPal account, available at https://www.paypal.com/de/legalhub/paypal/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 ordering via the Seller’s online order form, the contract text is stored by the Seller after the conclusion of the contract and sent to the Customer in text form, for example by email, fax or letter, after the Customer has submitted the order. The Seller does not make the contract text accessible beyond this. If the Customer has created a user account in the Seller’s online shop before submitting the order, the order data will be archived on the Seller’s website and can be accessed by the Customer free of charge via the password-protected user account by entering the corresponding login details.

2.6 Before submitting the order in a binding manner 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 detecting input errors may be the browser’s zoom function, which can be used to enlarge the display on the screen. The Customer can correct their entries during the electronic ordering process using the usual keyboard and mouse functions until they click the button that concludes the ordering process.

2.7 Different languages are available for the conclusion of the contract. The specific language selection is displayed in the online shop.

2.8 Order processing and contact usually take place by 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.

3) Right of Withdrawal

3.1 Consumers generally have a right of withdrawal.

3.2 Further information on the right of withdrawal can be found in the Seller’s withdrawal policy.

3.3 The right of withdrawal does not apply to consumers who, at the time the contract is concluded, do not belong to a member state of the European Union and whose sole place of residence and delivery address at the time the contract is concluded are outside the European Union.

4) Prices and Payment Terms

4.1 Unless otherwise stated in the Seller’s product description, the prices stated are total prices. VAT is not charged, as the Seller is exempt from VAT as a small business. Any additional delivery and shipping costs will be stated separately in the respective product description.

4.2 For deliveries to countries outside the European Union, additional costs may arise in individual cases which are not the responsibility of the Seller and which must be borne by the Customer. These include, for example, costs for money transfers by credit institutions, such as transfer fees or exchange rate fees, or import duties or taxes, such as customs duties. Such costs may also arise in relation to money transfers if the delivery is not made to a country outside the European Union, but the Customer makes the payment from a country outside the European Union.

4.3 The available payment option or options will be communicated to the Customer in the Seller’s online shop.

4.4 If a payment method offered via the payment service “PayPal” is selected, payment processing is carried out via PayPal, whereby PayPal may also use the services of third-party payment service providers. If the Seller also offers payment methods via PayPal in which the Seller makes advance payments to the Customer, such as purchase on account or payment by instalments, the Seller assigns its payment claim in this respect to PayPal or to the payment service provider commissioned by PayPal and specifically named to the Customer. Before accepting the Seller’s declaration of assignment, PayPal or the payment service provider commissioned by PayPal carries out a credit check using the Customer data transmitted. The Seller reserves the right to refuse the Customer the selected payment method in the event of a negative check result. If the selected payment method is permitted, the Customer must pay the invoice amount within the agreed payment period or in the agreed payment intervals. In this case, the Customer can only make payment to PayPal or to the payment service provider commissioned by PayPal with debt-discharging effect. However, even in the event of assignment of the claim, the Seller remains responsible for general customer enquiries, for example regarding goods, delivery time, shipping, returns, complaints, withdrawal declarations and returns or credit notes.

4.5 If a payment method offered via the “Shopify Payments” payment service is selected, payment processing is carried out by the payment service provider Stripe Payments Europe Ltd., 1 Grand Canal Street Lower, Grand Canal Dock, Dublin, Ireland, hereinafter referred to as “Stripe”. The individual payment methods offered via Shopify Payments are communicated to the Customer in the Seller’s online shop. Stripe may use additional payment services to process payments, for which special payment terms may apply and to which the Customer may be referred separately. Further information on Shopify Payments is available online at https://www.shopify.com/legal/terms-payments-de.

5) Delivery and Shipping Conditions

5.1 If the Seller offers shipping of the goods, delivery shall be made within the delivery area specified by the Seller to the delivery address provided by the Customer, unless otherwise agreed. The delivery address specified in the Seller’s order processing is decisive for the processing of the transaction.

5.2 If delivery of the goods fails for reasons attributable to the Customer, the Customer shall bear the reasonable costs incurred by the Seller as a result. This does not apply with regard to the costs of delivery if the Customer effectively exercises their right of withdrawal. With regard to return costs, the regulation in the Seller’s withdrawal policy applies if the Customer effectively exercises the right of withdrawal.

5.3 If the Customer acts as an entrepreneur, the risk of accidental loss and accidental deterioration of the sold goods passes to the Customer as soon as the Seller has delivered the goods to the forwarding agent, carrier or other person or institution designated to carry out the shipment. If the Customer acts as a consumer, the risk of accidental loss and accidental deterioration of the sold goods generally only passes to the Customer or a person authorised to receive the goods upon handover of the goods. By way of derogation from this, the risk of accidental loss and accidental deterioration of the sold goods also passes to the Customer, even in the case of consumers, as soon as the Seller has delivered the goods to the forwarding agent, carrier or other person or institution designated to carry out the shipment, if the Customer has commissioned the forwarding agent, carrier or other person or institution designated to carry out the shipment and the Seller has not previously named this person or institution to the Customer.

5.4 The Seller reserves the right to withdraw from the contract in the event of incorrect or improper self-supply. This applies only in the event that the non-delivery is not attributable to the Seller and the Seller has concluded a specific covering transaction with the supplier with due care. The Seller will make all reasonable efforts to procure the goods. In the event of non-availability or only partial availability of the goods, the Customer will be informed immediately and the consideration will be refunded immediately.

5.5 Collection by the Customer is not possible for logistical reasons.

5.6 Digital content is provided to the Customer as follows:

by download
by email

6) Granting of Rights of Use for Digital Content

6.1 Unless otherwise stated in the content description in the Seller’s online shop, the Seller grants the Customer the non-exclusive right, unlimited in terms of location and time, to use the provided content exclusively for private purposes.

6.2 The transfer of the content to third parties or the creation of copies for third parties outside the scope of these Terms & Conditions is not permitted unless the Seller has agreed to the transfer of the contractual licence to the third party.

6.3 If the contract relates to the one-time provision of digital content, the granting of rights only becomes effective when the Customer has paid the remuneration owed in full. The Seller may provisionally permit use of the contractual content even before this time. Such provisional permission does not constitute a transfer of rights.

7) Retention of Title

If the Seller makes advance performance, the Seller retains ownership of the delivered goods until the purchase price owed has been paid in full.

8) Liability for Defects

Unless otherwise provided in the following provisions, the statutory provisions on liability for defects apply. By way of derogation, the following applies to contracts for the delivery of goods:

8.1 If the Customer acts as an entrepreneur,

the Seller has the choice of the type of subsequent performance;

for new goods, the limitation period for defect claims is one year from delivery of the goods;

for used goods, defect claims are excluded;

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

8.2 The limitations of liability and reductions in time limits set out above do not apply

to claims for damages and reimbursement of expenses by the Customer,

in the event that the Seller fraudulently concealed the defect,

to goods that have been used for a building in accordance with their usual use and have caused its defectiveness,

to any existing obligation of the Seller to provide updates for digital products in the case of contracts for the delivery of goods with digital elements.

8.3 Furthermore, for entrepreneurs, the statutory limitation periods for any existing statutory right of recourse remain unaffected.

8.4 If the Customer acts as a merchant within the meaning of Section 1 of the German Commercial Code, the Customer is subject to the commercial duty to inspect and give notice of defects pursuant to Section 377 of the German Commercial Code. If the Customer fails to comply with the notification obligations regulated therein, the goods shall be deemed approved.

8.5 If the Customer acts as a consumer, the Customer is requested to complain to the delivery agent about delivered goods with obvious transport damage and to inform the Seller thereof. If the Customer fails to do so, this has no effect whatsoever on the Customer’s statutory or contractual claims for defects.

9) Liability

The Seller is liable to the Customer for all contractual, quasi-contractual and statutory claims, including tortious claims, for damages and reimbursement of expenses as follows:

9.1 The Seller is liable without limitation on any legal grounds

in cases of intent or gross negligence,

in cases of intentional or negligent injury to life, body or health,

on the basis of a guarantee promise, unless otherwise regulated in this respect,

on the basis of mandatory liability, such as under the Product Liability Act.

9.2 If the Seller negligently breaches an essential contractual obligation, liability is limited to the foreseeable damage typical for the contract, unless unlimited liability applies pursuant to the preceding clause. Essential contractual obligations are obligations imposed on the Seller by the contract according to its content in order to achieve the purpose of the contract, the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which the Customer may regularly rely.

9.3 In all other respects, liability of the Seller is excluded.

9.4 The above liability provisions also apply with regard to the Seller’s liability for its vicarious agents and legal representatives.

10) Special Conditions for the Processing of Goods According to Customer Specifications

10.1 If, according to the content of the contract, the Seller owes not only the delivery of goods but also the processing of the goods according to certain specifications of the Customer, the Customer must provide the Seller with all content required for processing, such as texts, images or graphics, in the file formats, formatting, image sizes and file sizes specified by the Seller and must grant the Seller the necessary rights of use for this purpose. The Customer alone is responsible for obtaining and acquiring rights to this content. The Customer declares and assumes responsibility for having the right to use the content provided to the Seller. In particular, the Customer must ensure that no rights of third parties are infringed, especially copyrights, trademark rights and personal rights.

10.2 The Customer indemnifies the Seller against claims by third parties which they may assert against the Seller in connection with an infringement of their rights through the contractual use of the Customer’s content by the Seller. The Customer also assumes the necessary costs of legal defence, including all court and attorney fees in the statutory amount. This does not apply if the Customer is not responsible for the infringement. In the event of a claim by third parties, the Customer is obliged to provide the Seller immediately, truthfully and completely with all information necessary for examining the claims and for a defence.

10.3 The Seller reserves the right to reject processing orders if the content provided by the Customer for this purpose violates legal or official prohibitions or is contrary to public morals. This applies in particular to the provision of content that is unconstitutional, racist, xenophobic, discriminatory, insulting, harmful to minors and/or glorifies violence.

11) Applicable Law

11.1 All legal relationships between the parties are governed by the law of the Federal Republic of Germany, excluding the laws on the international sale of movable goods. For consumers, this choice of law applies only insofar as the protection granted is not withdrawn by mandatory provisions of the law of the country in which the consumer has their habitual residence.

11.2 Furthermore, this choice of law does not apply with regard to the statutory right of withdrawal to consumers who, at the time the contract is concluded, do not belong to a member state of the European Union and whose sole place of residence and delivery address at the time the contract is concluded are outside the European Union.

12) Alternative Dispute Resolution

The Seller is neither obliged nor willing to participate in a dispute resolution procedure before a consumer arbitration board.