GENERAL TERMS AND CONDITIONS (GTC)
(Last modified 27.09.2023)
1. validity of the general terms and conditions of the contractual partner
General Terms and Conditions of MAF Fractal Media UG (haftungsbeschränktt) hereinafter referred to as Fractal-Media.de. Objections or counter-confirmations by the customer with reference to its own general terms and conditions are hereby expressly rejected.
2. Offer and conclusion of contract
2.1. We reserve the right to revoke offers until legally binding acceptance by the customer. Orders shall be deemed to have been accepted as legally binding if they have been confirmed by us in writing or by telex or by delivery of the delivery item.
2.2. Prior to the conclusion of the contract, the customer shall be bound to his order / offer for 14 days in the standard case. In the case of non-standard deliveries that require customisation, a period of 4 weeks shall apply.
2.3. The information on services, dimensions, weights, prices or other performance data contained in the general advertising is non-binding, unless this is expressly stated in the contract.
3. Partial performance and changes to the delivery item
3.1. We are authorised to provide partial services and make partial deliveries to an extent that is reasonable for the customer.
3.2. We reserve the right to make technical changes to the delivery item, provided that this does not constitute an unreasonable impairment for the customer. The technical function must not be impaired in the process.
4. Prices and offsetting
4.1. Our prices are ex works and apply to merchants plus the value added tax applicable in the Federal Republic of Germany.
4.2. We shall be bound to the agreed prices for services or delivery items which are provided within 4 months of conclusion of the contract. In the event of longer delivery periods for which we are not responsible, we shall be entitled to make an appropriate price adjustment if our manufacturing costs, purchase prices or transport costs have increased. In the event of a price increase of more than 4%, the customer is entitled to withdraw from the contract after a period of 2 weeks following receipt of notification of the price increase. This right is not granted in the case of the provision of recurring maintenance services.
4.3. The customer is not entitled to offset claims against us unless these are undisputed or have been recognised by declaratory judgement.
5. Right of return for private individuals according to the Distance Selling Act
5.1. For private individuals (no public institutions, B2B...) with permanent residence in Germany, the following applies with regard to the return of purchased goods:
5.1.1. Right of return The goods received can be returned within two weeks without giving reasons. The period begins at the earliest upon receipt of the goods and these instructions. If the gross value of the goods (excluding shipping costs) is less than EUR 40, please send us the goods carriage paid at your own expense and risk. If the gross value of the returned goods is more than EUR 40, the goods can only be returned by us or by a partner authorised by us. Unpaid returns will not be accepted. Returns carriage paid are accepted, but a refund of the shipping costs is not possible. Please send your return request to our address. Please use the return form enclosed with your order for your return. Unfortunately, your return cannot be processed without this form. Returns will only be accepted if the product is returned complete, undamaged and in its original packaging. The product packaging must not show any obvious damage and must be in a saleable condition. Goods sold by the metre such as cables and fabrics etc. are generally excluded from return. Data carriers, CDs, DVDs, video cassettes, tele/LCD games and computer software cannot be returned if the packaging has been opened or any seals have been broken. Furthermore, all devices that are hygienically sensitive (e.g. headphones, microphones, etc.) or whose serial number stickers have been removed or damaged are excluded from exchange. Rechargeable batteries, batteries and consumables such as replacement lamps, ink, toner, print cartridges and paper as well as all goods with an expiry date or electrostatically sensitive products such as memory bars, processors etc. are generally excluded from return. Also excluded from returns are customised products manufactured at the customer's request, e.g. special customised mounting systems.
5.1.2. Consequences of return In the event of an effective return, the services received by both parties must be returned and any benefits derived (e.g. advantages of use) surrendered. The gross value of the goods minus the actual shipping costs incurred, but at least the flat-rate shipping costs, shall be reimbursed. In the event of deterioration of the goods and/or packaging, compensation may be demanded. If, for example, the goods are returned incomplete, soiled or damaged or are not in their original packaging or if the original packaging is returned incomplete, soiled or damaged, Fractal-Media.de reserves the right not to refund the full purchase price. This does not apply if the deterioration of the goods is solely due to their inspection - as would have been possible and permissible in a shop, for example. In addition, you can avoid the obligation to pay compensation by not using the goods as if you owned them and refraining from doing anything that could impair their value. Your payments will be refunded immediately after receipt and inspection of the goods as follows: - In the case of payment by credit card or PayPal by chargeback, transfer to your bank account or by cheque - In the case of payment by cash on delivery or invoice by transfer to your bank account or by cheque - In the case of payment by direct debit by transfer back to your bank account. Alternatively, the customer can also receive a voucher for the value of the returned goods. If the order was placed free of shipping costs and the order value falls below the minimum order value for free shipping due to the return, the shipping costs are due and the corresponding amount is deducted from the credit note amount. If the value of the goods not returned from the order falls below the applicable minimum order value, the credit note will be reduced by the currently applicable minimum quantity surcharge.
5.2. The following applies to all other customers with regard to the return of purchased goods:
5.2.1. A return of the purchased goods is generally excluded. Our general terms and conditions apply.
5.2.2. In special cases, a repurchase of the goods is possible by arrangement. A repurchase and the repurchase price are agreed individually. As a rule, a discount of at least 30% of the original purchase price is due for the repurchase price. A condition for repurchase is that the goods are complete, undamaged and in their original packaging when they are returned. Furthermore, the packaging must not show any obvious damage.
6. Compensation, delay, impossibility, reservation of self-delivery
6.1. If the customer fails to provide the documents, information or services to be procured by him in good time, the agreed delivery period shall be extended by the period of his delay.
6.2. Claims for damages due to delay, non-fulfilment (§ 326 BGB) or subsequent impossibility (§ 325 BGB), which are based on slight negligence, are limited to the damages foreseeable at the time of conclusion of the contract and the amount is limited to the value of the service / delivery. The customer's right to withdraw from the contract remains unaffected by this provision. The following shall also apply to merchants: For delays caused by slight negligence, we shall be liable for each week of delay in the amount of 0.5%, but in total no more than 5% of the value of the (partial) delivery affected by the delay.
6.3. If our suppliers are not able to supply us on time despite reasonable delivery conditions and contracts, the delivery period shall be extended by the period of the delay. In the event of impossibility of delivery by our suppliers, we shall be entitled to withdraw from the contract.
6.4. In the event of default, we have the right to charge default interest in the amount of the bank loan interest charged by us or in the amount of 3% above the respective Bundesbank discount rate. The customer's right to pay lower interest rates, provided that he can prove that we have been charged less, remains unaffected.
7. Exclusion of liability for financial losses due to non-fulfilment of rental items
7.1. The Provider accepts no liability for financial losses incurred by the Customer due to the non-fulfilment of rented items, unless the non-fulfilment was due to gross negligence or intent on the part of the Provider.
7.2. The Customer acknowledges and agrees that the use of the rented items may involve certain risks and that the Provider is not liable for any loss or damage resulting from the use or non-use of the rented items.
7.3. The Customer is responsible for taking out appropriate insurance to protect against potential financial loss resulting from the use of the rented items.
7.4. In the event of damage resulting from the non-fulfilment of the rental agreement, the Provider's liability shall be limited to the amount charged to the Customer for the rental of the items in question.
7.5. This clause applies whether or not the Customer has been advised of the possibility of financial loss and constitutes the sole and exclusive agreement of the parties with respect to liability for financial loss resulting from the non-fulfilment of the rental agreement."
8. Transfer of risk
8.1. If the goods are sent to a place other than the place of fulfilment at the customer's request, the risk of transport damage shall pass to the customer when the delivery item leaves our premises.
8.2. If the consignment of goods is delayed for reasons for which the customer is responsible and the delivery is already ready for dispatch, the risk shall pass to the customer upon notification of readiness for dispatch.
9. Claim for damages in the event of non-fulfilment
If we are entitled to claim damages in the event of non-acceptance by the customer, we shall be entitled to charge damages in the amount of 5% of the order total. This shall not affect the customer's right to prove that we have suffered less damage.
10. Retention of title
10.1. The goods delivered by us shall remain our property until full payment of the delivery item, including any ancillary claims arising from the delivery contract. For merchants, we reserve the right to ownership of the delivery item until all claims arising from the business relationship, including any ancillary claims, have been settled.
10.2. The customer is prohibited from reselling the delivery item until full payment has been made. If it is part of the customer's normal course of business to resell the delivery items to third parties, the customer is exceptionally authorised to resell the delivery items in the ordinary course of business. In the event of the authorised or unauthorised sale of the delivery item, the customer hereby assigns all claims in the amount of the invoice amount (including VAT) that accrue to him from the sale to third parties, irrespective of whether the delivery item was subsequently processed. In the event of an authorised sale, the customer shall continue to be entitled to collect the receivables. However, we reserve the right to collect the receivables ourselves. However, Fractal-Media.de undertakes not to collect the receivables itself, provided that the customer duly fulfils its payment obligations to us and, in particular, is not in default of payment.
10.3. The customer must treat the delivery item that has not yet been paid for in full with care and maintain it. Likewise, a change of residence / place of business must be reported to us immediately. In the event of a breach of contract by the customer, in particular default of payment, Fractal-Media.de shall be entitled to take back the delivery item, whereby the customer shall be obliged to surrender it. Taking back the delivery item does not constitute cancellation of the contract, unless the provisions of the Consumer Credit Act apply or this has been expressly agreed in writing. If a delivery item is seized by us, this shall always constitute a cancellation of the contract. If the delivery item is resold to third parties, the customer is obliged in the event of behaviour contrary to the contract, in particular default of payment, to notify us of the assigned claims and its debtors and to provide us with all information necessary for collection, to hand over the documents and to inform the third party of the assignment.
10.4. In the event of seizure or other interventions by third parties in the delivery item, the customer is obliged to notify us immediately in writing and to provide us with all information necessary to avert the damage and to hand over the relevant documents. If third parties are not in a position to reimburse costs, the customer shall bear all judicial and extrajudicial costs that have to be incurred for the cancellation of the seizure and for the replacement of the delivery item, in particular an action pursuant to §771 ZPO (German Code of Civil Procedure). This provision is invalid if the costs are disproportionately high compared to the value of the delivery item.
10.5. Realisation of the reserved goods
10.5.1. If the customer is not entered in the commercial register, the realisation of the reserved property shall be governed by the provisions of the Consumer Protection Act.
10.5.2. If the customer is entered in the commercial register, the realisation of the reserved property shall be based on the best of our knowledge and conscience, in particular also by private treaty. The proceeds obtained from the realisation shall be set off against the purchase price less the costs and interest incurred by us, with any surplus being paid out to the customer.
10.5.3. We may collect claims assigned to us directly from third parties. The receivables collected shall be offset against the purchase price less the costs and interest incurred by us and any surplus shall be paid out to the customer.
11. Complaints and warranties
11.1. Obvious defects which are immediately recognisable even to a non-expert customer without special attention must be reported to us within a period of 14 days after delivery.
11.2. Warranty claims shall lapse after a period of six months from delivery. After expiry of this period, the customer may only make a claim against us if we have fraudulently concealed the defect. For merchants, §§ 377ff HGB (German Commercial Code) shall also apply
11.3. If the delivery items are used items and have been expressly sold to the customer as used items, the delivery shall be made with rejection of any warranty claims. This shall not apply to technically overhauled items.
11.4. If the delivery item is defective at the time when the risk passes to the customer or if warranted characteristics are missing, we shall be entitled, at our discretion, to deliver a replacement or carry out repairs. Insofar as this is reasonable for the customer, we shall be entitled to carry out rectification several times. If we allow a reasonable period of grace granted to us to elapse without supplying a replacement or remedying the defects, or if the repair or replacement delivery fails, the customer shall be entitled, at his discretion, to cancellation of the contract or reduction of the agreed price. In the event of the absence of warranted characteristics, the customer shall be entitled to compensation.
11.5. The customer shall have no warranty claims if defects are caused by improper handling or overuse by the customer or a third party.
11.6. If a warranty claim is asserted against us by the customer and it turns out that a warranty claim does not exist (e.g. application error, improper handling, non-existence of a defect, etc.), the customer shall bear the associated expenses incurred by us in connection with the inspection of the delivery item, provided that the customer is responsible for our claim due to recklessness, gross negligence or intent.
12. manufacturer's warranty
If the manufacturer of the delivery item grants a voluntary guarantee to the customer, the type and scope of the guarantee services shall be based exclusively on the content of the manufacturer's guarantee. Only the manufacturer may be held liable under this guarantee. The warranty obligation according to clause 11 remains unaffected by this.
13. other claims for damages
Claims for damages against us arising from positive breach of contract, culpa in contrahendo or tort are excluded, except in cases of wilful misconduct or gross negligence. The above exclusion of liability shall not apply in cases of culpable breach of material contractual obligations. If we are liable as a result of slight negligence, the claim for compensation shall be limited to the typical damage foreseeable at the time the contract was concluded.
14. Security and data protection
14.1. Viruses and malware: Our company attaches the utmost importance to the security of your data and systems. We take all necessary measures to keep viruses, malware and malicious software away from our services. Nevertheless, we cannot guarantee that our systems are absolutely immune to such threats. We strongly recommend that you implement appropriate protective measures, such as up-to-date anti-virus software and firewalls, on your devices and systems to ensure the security of your data.
14.2. Sabotage programmes: Any form of sabotage programmes or malicious software is strictly prohibited on our systems. We reserve the right to prosecute any activity that is intended to harm our services, our customers or our company. In the event of suspected sabotage or malicious behaviour, we reserve the right to take appropriate legal action and block access to our services without prior notice.
14.3. Unauthorised access to data: We use technical and organisational security measures to prevent unauthorised access to your data. Nevertheless, no system can be completely protected against unauthorised access. It is your responsibility to keep your login information secure and to ensure that no unauthorised persons have access to your account or data. We are not liable for any damage caused by unauthorised access to your data or your account, unless this access was due to gross negligence or intent on our part.
By using our services, you agree to the above terms and agree to take reasonable security precautions to protect your data and systems. We endeavour to provide you with the best possible services and are constantly working to improve the security of our platform.
15. Place of jurisdiction and place of fulfilment
15.1. This contract and the legal relationship between the parties shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG)
15.2. The place of jurisdiction and place of fulfilment is Cottbus, Germany.
16. severability clause
Should individual provisions of the contract, including these provisions, be or become invalid in whole or in part, or should the contract contain a loophole, the validity of the remaining provisions or parts of such provisions shall remain unaffected. The invalid or missing provisions shall be replaced by the respective statutory provisions.