General terms and conditions with customer information
Table of contents
- Conclusion of contract
- Prices and terms of payment
- Delivery and shipping conditions
- Retention of title
- Liability for defects
- Indemnification for violation of third party rights
- Commercial legal protection
- Applicable law
1.1 These General Terms and Conditions (hereinafter referred to as "GTC") of FIOS GmbH shall apply to all contracts concluded by a consumer or entrepreneur (hereinafter referred to as "Customer") with the Seller with regard to the goods and/or services presented by the Seller in its online store. The inclusion of the Customer's own terms and conditions is hereby objected to, unless otherwise agreed.
1.2 For the purposes of these GTC, a consumer is any natural person who enters into a legal transaction for purposes that are predominantly neither commercial nor self-employed. An entrepreneur within the meaning of these GTC is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity.
1.3 The customer's terms and conditions shall only bind us if and to the extent that FIOS GmbH expressly acknowledges them in writing and shall apply in each case only to a specific contract, unless expressly agreed otherwise. The same shall apply to the amendment of this clause. Our terms and conditions shall also apply if FIOS GmbH carries out the delivery without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our terms and conditions.
2) Conclusion of contract
2.1 The product descriptions contained in the Seller's online store do not constitute binding offers on the part of the Seller, but serve for the submission of a binding offer by the Customer.
2.2 The Customer may submit the offer via the online order form integrated into the Seller's online store. In doing so, after placing the selected goods and/or services in the virtual shopping cart and going through the electronic ordering process, the customer submits a legally binding contractual offer with regard to the goods and/or services contained in the shopping cart by clicking the button that concludes the ordering process. Furthermore, the customer can also submit the offer to the seller by post, by e-mail.
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 (fax or e-mail), in which case the receipt of the order confirmation by the customer shall be decisive, or
- by delivering the ordered goods to the customer, in which case the receipt of the goods by the customer is decisive, or
- by requesting payment from the customer after the customer's order has been placed.
If several of the aforementioned alternatives exist, the contract shall be concluded at the time when one of the aforementioned alternatives occurs first. If the Seller does not accept the Customer's offer within the aforementioned period, this shall be deemed to be a rejection of the offer with the consequence that the Customer shall no longer be bound by its declaration of intent.
2.4 If the customer selects "PayPal Express" as a payment method during the online ordering process, he also issues a payment order to his payment service provider by clicking the button that concludes the ordering process. In this case, the seller declares, notwithstanding section 2.3, the acceptance of the customer's offer at the time when the customer triggers the payment process by clicking the button that concludes the order process.
2.5 The period for the acceptance of the offer begins on the day after the sending of the offer by the customer and ends with the expiry of the fifth day following the sending of the offer.
2.6 When submitting an offer via the Seller's online order form, the text of the contract shall be stored by the Seller and sent to the Customer in text form (e.g. e-mail, fax or letter) after the Customer has sent its order together with these GTC. In addition, the text of the contract will be archived on the Seller's website and can be accessed by the Customer free of charge via its password-protected customer account by providing the relevant login data, provided that the Customer has created a customer account in the Seller's online store before submitting its order.
2.7 Before the binding submission of the order via the Seller's online order form, the Customer can continuously correct its entries using the usual keyboard and mouse functions. In addition, all entries are displayed again in a confirmation window before the binding submission of the order and can also be corrected there using the usual keyboard and mouse functions.
2.8 Only the German language is available for the conclusion of the contract.
2.9 Order processing and contacting usually take place via e-mail and automated order processing. The Customer shall ensure that the e-mail address provided by it for order processing is accurate so that e-mails sent by the Seller can be received at this address. In particular, when using SPAM filters, the customer must ensure that all e-mails sent by the seller or by third parties commissioned by the seller to process the order can be delivered.
3) Prices and terms of payment
3.1 Unless otherwise stated in the Seller's product description, the prices quoted are net prices which do not include the statutory value added tax. Any additional delivery and shipping costs will be indicated separately in the respective product description.
3.2 In the case of deliveries to countries outside Switzerland, further costs may be incurred in individual cases for which the Seller is not responsible and which are to be borne by the Customer. These include, for example, costs for the transfer of money by credit institutions (e.g. transfer fees, exchange rate fees) or import duties or taxes (e.g. customs duties).
3.3 Various payment options are available to the Customer, which are indicated in the Seller's online store.
3.4 If prepayment has been agreed, payment shall be due immediately after conclusion of the contract.
3.5 If the payment method delivery on account is selected, the purchase price shall be paid within 14 (fourteen) days from receipt of the invoice without deduction, unless otherwise agreed. The Seller reserves the right to perform a credit check when selecting the payment method delivery on account and to reject this payment method in case of a negative credit check.
4) Delivery and shipping conditions
4.1 The delivery of goods shall be made by shipping to the delivery address provided by the customer, unless otherwise agreed.
4.2 If the transport company returns the shipped goods to the Seller because delivery to the Customer was not possible, the Customer shall bear the costs for the unsuccessful shipment.
4.3 If the Customer is acting as an entrepreneur, the risk of accidental loss and accidental deterioration of the sold goods shall pass to the Customer as soon as the Seller has delivered the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If the customer is acting as a consumer, the risk of accidental loss and accidental deterioration of the goods sold shall in principle pass to the customer only upon delivery of the goods to the customer or a person authorized to receive the goods. Notwithstanding the foregoing, the risk of accidental loss and accidental deterioration of the goods sold shall pass to the customer, even in the case of consumers, as soon as the seller has delivered the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment, if the customer has commissioned the forwarding agent, the carrier or any other person or institution designated to carry out the shipment to carry out the shipment and the seller has not previously named such person or institution to the customer.
4.5 Agreed deadlines and dates shall be extended:
- without prejudice to our rights arising from default on the part of the customer.
- by the period by which the customer is in default with its obligations towards us.
- In the case of delivery periods and dates that are not expressly designated as fixed in the order confirmation, the customer may set us a reasonable deadline for performance. The seller may only be in default upon expiry of this period.
- The customer may withdraw from the contract if he has not been notified that the goods are ready for dispatch by that time and the seller is responsible for the delay.
- For force majeure and other events beyond the control of the seller.
The seller reserves the right to withdraw from the contract in case of incorrect or improper self-delivery. This shall only apply in the event that the Seller is not responsible for the non-delivery and the Seller has concluded a specific covering transaction with the supplier with due diligence. The Seller shall 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 without delay.
4.6 Self-collection is not possible for logistical reasons.
5) Retention of title
5.1 With respect to consumers, the Seller shall retain title to the delivered goods until the purchase price owed has been paid in full.
5.2 With respect to entrepreneurs, the Seller shall retain title to the delivered goods until all claims arising from an ongoing business relationship have been settled in full.
5.3 If the customer acts as an entrepreneur, it shall be entitled to resell the reserved goods in the ordinary course of business. The customer shall assign to the seller in advance all claims against third parties arising therefrom in the amount of the respective invoice value (including value added tax). This assignment shall apply regardless of whether the reserved goods have been resold without or after processing. The customer shall remain authorized to collect the claims even after the assignment. The authority of the seller to collect the claims himself remains unaffected. However, the Seller shall not collect the receivables as long as the Customer meets its payment obligations to the Seller, is not in default of payment and no application for the opening of insolvency proceedings has been filed.
6) Liability for defects
If there is a defect in the purchased item, the statutory provisions shall apply.In particular:
6.1 For entrepreneurs
- an insignificant defect shall in principle not constitute grounds for claims based on defects,
- the seller has the choice of the type of subsequent performance,
- the limitation period for defects in new goods shall be one year from the transfer of risk.
- the limitation period shall not begin again if a replacement delivery is made within the scope of liability for defects.
6.2 For consumers, the limitation period for claims for defects shall be as follows
- for new goods, two years from delivery of the goods to the customer.
- in the case of used goods, one year from delivery of the goods to the customer, subject to the limitation of clause 6.3.
6.3 For entrepreneurs and consumers, the above limitations of liability and limitation periods in Clause 6.1 and Clause 6.2 shall not apply to claims for damages and reimbursement of expenses which the Buyer may assert under the statutory provisions due to defects in accordance with Clause 7.
6.4 Furthermore, for entrepreneurs, the statutory limitation periods for the right of recourse shall remain unaffected. The same shall apply for entrepreneurs and consumers in case of intentional breach of duty and fraudulent concealment of a defect.
6.5 If the Customer is acting as a consumer, he is requested to complain about delivered goods with obvious transport damage to the deliverer and to inform the Seller thereof. If the customer does not comply with this, this has no effect on his legal or contractual claims for defects.
6.6 If the supplementary performance is carried out by way of a replacement delivery, the Customer shall be obliged to return the goods first delivered to the Seller within 30 days at the Seller's expense. The return of the defective goods shall be made in accordance with the statutory provisions.
The Seller shall be liable to the Customer for all contractual, quasi-contractual and statutory claims, including claims in tort, for damages and reimbursement of expenses as follows:
7.1 The Seller shall be liable without limitation for any legal reason whatsoever
- in the event of intent or gross negligence,
- in the event of negligent or intentional injury to life, limb or health,
- on the basis of a warranty promise, unless otherwise regulated in this respect,
- on the basis of mandatory liability, such as under the Product Liability Act.
7.2 If the Seller negligently breaches a material contractual obligation, liability shall be limited to the foreseeable damage typical for the contract, unless liability is unlimited pursuant to Section 7.1. Material contractual obligations are obligations which the contract imposes on the Seller according to its content in order to achieve the purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place and compliance with which the Customer may regularly rely on.
7.3 Warranty claims refer exclusively to manufacturing-related defects of the delivered goods. In the event of damage, defective elements shall be replaced by faultless goods. Costs for installation, incurred transport and travel costs, downtime and labor costs are not part of the warranty services.
7.4 The aforementioned information does not constitute an assumption of a guarantee or a procurement risk, but are only descriptions and identifications of the goods. This also applies to information and advice regarding our products. Unless limits for permissible deviations are expressly stipulated in the order confirmation and designated as such, deviations customary in the industry shall be permissible in any case.
7.5 Otherwise, any liability of the Seller is excluded.
7.6 The above liability provisions shall also apply with regard to the Seller's liability for its vicarious agents and legal representatives.
8) Indemnification in case of violation of third party rights
If, according to the content of the contract, in addition to the delivery of the goods, the Seller is also obligated to process the goods according to certain specifications of the Customer, the Customer shall ensure that the content provided to the Seller by the Customer for the purpose of processing does not infringe the rights of third parties (e.g. copyrights or trademark rights). The Customer shall indemnify the Seller against any claims of third parties which the latter may assert against the Seller in connection with an infringement of their rights by the contractual use of the Customer's content by the Seller. In this regard, the customer shall also assume the reasonable costs of the necessary legal defense, 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 a third party, the customer is obligated to provide the seller immediately, truthfully and completely with all information necessary for the examination of the claims and a defense.
9) Commercial legal protection
The customer acknowledges existing patent rights of FIOS GmbH as well as all copyrights and other industrial property rights of the products sold by FIOS GmbH. In particular, the customer is prohibited from copying beyond the purpose of the contract, unauthorized reproduction, imitation, as well as trading in copied, imitated or duplicated goods.
FIOS GmbH may amend these GTC at any time. The amendments shall apply as of the effective date for the contracts to be concluded as of that date.
11) Applicable law
11.1 Swiss law shall apply to all legal relationships between the parties to the exclusion of the laws on the international purchase of movable goods. In the case of consumers, this choice of law shall only apply to the extent that the protection granted is not withdrawn by mandatory provisions of the law of the country in which the consumer has his habitual residence.