Conditions of Use

General Terms of Sales and Delivery

§ 1 - Application

All purchase contracts concluded with the company Impact Mailorder (Harald Kulosa) (hereinafter referred to as the Seller) are exclusively regulated by the following terms and conditions. The Buyer’s Terms and Conditions shall not be applicable even if those have not explicitly been disagreed. Varying regulations shall be approved by the Seller in writing.

§ 2 - Conclusion of Contract and Withdrawal

The offers of the Seller are subject to changes. He reserves the right to technical modifications and changes in prices. If the purchase order is placed by phone, the purchase contract is concluded upon explicit declaration of acceptance by our employee authorised to execute such declarations. If the customer offer is not approved by phone, the contract is concluded when the order is executed and the goods are shipped to the customer. The same applies to any order placed by the customer in writing. The Seller is entitled to withdraw from the contract without taking any liability if the execution of the contract is complicated in an unacceptable way or absolutely impossible due to the occurrence of unforeseen obstacles, events of force majeure or other events which are not the responsibility of the Seller (e.g. operating troubles or delays in delivery by the sub-suppliers). If any circumstances become known to the Seller after conclusion of the contract suggesting an existing or impending insolvency of the Buyer (e.g. protest of a bill or cheque, attachments, absence of credit-worthiness etc.), the Seller is entitled to carry out deliveries only on advance payment or by way of security, and to withdraw from pending contracts unless the Buyer will furnish this security upon the Seller’s request for due performance according to the order. For non-commercial business, the right of withdrawal may only be exercised after expiration of a reasonable extension of time.

§ 3 - Delivery and Risk of Transport

Goods are delivered from the Seller’s stock. The risk of transport shall be borne by the Buyer. Partial shipments are allowed if the partial shipment may be used individually by the Buyer.

§ 4 - Indemnity instead of Payment

If the Seller is entitled to claim indemnity instead of payment from the Buyer, in particular because the Buyer has seriously, unfoundedly and irrevocably refused the fulfilment of the contract, or the contract has not been executed for any other reasons the Buyer has to account for, the Buyer has to pay to the Seller 30 percent of the gross invoice value in damage. Both parties reserve the right to provide evidence of a higher or lower damage.

§ 5 - Warranty and Liability

1. If the Buyer is an entrepreneur, the Seller grants warranty for any defects of the goods at first after his/her option for rectification or replacement.
2. If the Buyer is a consumer, he/she has the right at first to choose whether a subsequent fulfilment shall be met by rectification or replacement. The Seller however is entitled to refuse the way of subsequent fulfilment chosen if it is connected with unreasonable costs and the other way of subsequent fulfilment would be without major disadvantages to the customer.
3. If the subsequent fulfilment fails, the Buyer may in principle claim a decrease in price or cancel the contract (withdrawal) according to his/her choice. In case of an insignificant infringement of contract, especially minor defects, the Buyer is not entitled to withdraw from the contract.
4. If the Buyer is an entrepreneur, he/she shall notify the Seller in writing of the obvious defects within two weeks from the date of delivery. Otherwise, claims under warranty shall be excluded. To meet the deadline, timely mailing shall suffice. If the Buyer is an entrepreneur, it is up to the Buyer to prove his/her claims are legally justified, in particular, with regard to the defect itself, the time of notification of the defect and the timeliness of the notice of defect.
5. If the Buyer is a consumer, he/she shall notify the Seller in writing of the non-conformance of the goods with the contract within two months from the date when he has noticed the non-conformance of the goods with the contract. To meet the deadline, the date of delivery of the notice to the Seller is decisive. If the Buyer fails to notify, claims under warranty shall become void within two months after discovering the defect. This does not apply in the case of fraudulent intent of the Seller. It is up the Buyer to prove the time of notice of the defect. If the Buyer buys the goods due to untrue data from the manufacturer, he has the burden of proof for his purchase decision.
6. If the Buyer chooses to withdraw from the contract due to a defect in title and quality after failed subsequent fulfilment, he may not claim any additional damage for the defect. If the Buyer claims damage after failed subsequent fulfilment, the goods remain with him/her if this is acceptable to him/her. In that case compensation for damage is restricted to the difference between purchase price and value of the defective product. This does not apply if the infringement of contract was caused by fraudulent intent of the Seller.
7. If the Buyer is an entrepreneur, the period of warranty is one year from the date of delivery of the goods. If the Buyer is a consumer, the period of warranty shall be two years from the date of delivery. In case of second-hand goods, the period of warranty shall be one year from the date of delivery.
8. If the Buyer is an entrepreneur, the condition of the goods is generally meant as specified in the product description of the manufacturer. Public opinions, promotions and advertisements of the manufacturer are however not understood as a contractual quality specification of the goods.
9. The Seller does not grant any warranties in the legal sense. Manufacturer’s warranties remain unaffected by this.
10. In case of slightly negligent breaches of duties, the Seller’s liability shall be restricted to foreseeable, direct average damages inherent to this contract and product. That also applies to slightly negligent breach of duties by the legal representatives or assistants of the Seller. If the Buyer is an entrepreneur, the Seller shall not be liable for a slightly negligent breach of minor contractual duties.
11. The restrictions of liability pursuant to Section 11 do not refer to the Buyer’s claims from product liability. They shall not be applicable in the case of damage caused to body and health the Seller is to blame for, or in the case of death of the Buyer.
12. Damage claims of the Buyer for non-conformance shall terminate within one year from the date of delivery of the goods. This shall not apply if the Seller has acted maliciously.

§ 6 - Reservation of Title

The delivered goods remain property of the Seller until they are fully paid. If the Buyer is a merchant and the purchase of goods subject to reservation of title is effected for his commercial enterprise, the following additional provisions are applicable: The Buyer shall herewith assign any claims he may have from the resale of goods subject to reservation against his customers, including any ancillary rights, to the Seller by way of security, without requiring a separate declaration later on. If goods subject to reservation are resold together with other goods without having agreed an individual price for the goods subject to reservation, the Buyer assigns that part of total receivables having priority over the other demand which corresponds to the value invoiced by the Seller for the goods subject to reservation plus a 10 percent surcharge. Until cancelled, the Buyer is entitled to collect the assigned receivables from the resale. Upon request of the Seller, the Buyer shall notify his/her customer of the assignment, disclose any information to the Seller to claim his/her rights against the customer and to hand over the required documents. Any costs arising from the collection and any interventions shall be borne by the Buyer. When processing, modifying or connecting the goods subject to reservation with other items not owned by the Seller, the Seller shall have a share in the ownership of the new goods whereas the percentage is determined on the basis of the ratio of the value of the processed, modified or connected item to the value of the new item. If the new item is sold, the Buyer shall herewith assign his claim from the resale against the customer including all ancillary rights by way of security without requiring a separate declaration later on. The assignment is however only valid in the amount which corresponds to the value of the processed, modified or connected goods subject to reservation invoiced by the Seller plus a 10 percent surcharge. The share of claim assigned to the Seller has priority over the other claims. If the realisable value of securities exceeds the claims of the Seller against the Buyer by more than 20 percent, the Seller shall optionally release the securities upon the Buyer’s request.

§ 7 - Offsetting / Retention

The Buyer may not offset claims against other approved, undisputed or legally stated claims or exercise the right of retention for such claims.

§ 8 - Price and Terms of Payment

The Seller shall deliver the goods at the list price valid on the day of order. If more than four months have passed between the date of order and the date of delivery, the Seller is entitled to use the list prices valid at the date of delivery. Price quotations do not include packing, shipping and insurance. Prices are inclusive of VAT. Shipping is effected against cash on delivery or advance payment.

§ 9 Notes pursuant to § 312 c Sections 1 and 2 BGB (German Civil Code)

1. I. If the Buyer is a consumer in the terms of § 13 BGB, he/she shall be advised of the following:
   1. The address of the Seller’s registered office is: 47229 Duisburg, Am Markt 1. The Seller is organised as a person.
   2. The Seller trades in audio media and textiles. Sales contracts with Buyers are regulated according to Section 2 of these General Terms and Conditions of Sale and Delivery.
   3. The Seller reserves the right to supply goods equivalent in quality and price. In case of non-availability, the Seller reserves the right not to deliver the promised goods.
   4. Regarding prices, delivery and shipping costs, terms of payment, delivery or fulfilment and warranty, the Seller refers to the respective paragraphs 3, 5, 9 of these General Terms and Conditions of Sale and Delivery.
2. Instructions on the Buyer’s Right to Return
   1. If the Buyer is a consumer, he/she has the right to return the received product within two weeks after receipt without stating any reasons. This term begins at the earliest with receipt of the goods and these instructions. The Buyer may also declare the return of goods in writing, e.g. by letter, fax or email, if the said goods cannot be shipped in parcels (e.g. bulky goods). To meet the deadline, posting of the goods or return request in due time will do. The return shall be addressed to the company Impact Mailorder, Am Markt 1, 47229 Duisburg. In case of a return request by fax, the number is 02065/40237.
   2. If the Buyer exercises his/her right of return, he/she shall bear the costs of return at an order value of up to € 40.00 unless the delivered goods do not correspond to the goods ordered. If the order value is above € 40.00, the Buyer shall not bear the costs of return consignment. This only applies to return consignments within Germany.
   3. In case of an effective revocation, each party shall return the received services. The compensation for capitalised use (if any) shall be reimbursed. In the case of deterioration of goods, the Seller may claim compensation for the value unless the deterioration of the goods is just due to the inspection of the goods. The Buyer shall bear the loss in value caused by the use of the product beyond a mere inspection with the result that the product can not be resold as a new one.

§ 10 - Place of Fulfilment and Jurisdiction

Place of fulfilment and jurisdiction is Duisburg, i.e. the Seller’s place of business, if legally admissible. This agreement is governed by German law.