1. General Provisions
1.1 MeshTech (Owner Stefan Lisson, Frankfurter Allee 47, 10247 Berlin) (hereinafter referred to as seller) shall render all deliveries and services exclusively on the basis of these General Terms and Conditions (GTC). Individual agreements and mandatory legal requirements take precedence over these GTC. Any Standard terms and conditions of the Customer shall not apply, even if the seller has not expressly rejected them.
1.2 These GTC shall also apply if the seller renders delivery or performance to the Customer without reservation in the knowledge of Customer’s conflicting or deviating terms and conditions. In such cases, acceptance of performance by the Customer shall be deemed acknowledgment of these GTC, with a simultaneous waiver – hereby accepted in advance – of any application of its own GTC.
1.3 Customers within the meaning of the GTC are both consumers and entrepreneurs. A consumer is any natural person who concludes a transaction for purposes which can be mainly attributed neither to their commercial nor their self-employed activity. An entrepreneur is any natural or legal person or partnership with legal personality who conclude a transaction in the exercise of their commercial or self-employed activity.
2. contract formation
2.1 The presentation of products on the website www.open-mesh.de is not a legally binding offer, but merely an invitation to the customer to submit an offer in the legal sense.
2.2 Due to technical display options the ordered goods may vary slightly from the ones shown on the internet. In particular this may lead to reasonable color variations.
2.3 Our offers shall always be subject to confirmation.
2.4 The order by the customer can be done via the website of the seller , via e- mail or telephone. The Customer's order constitutes a binding offer to conclude a purchase contract for the ordered product(s).
2.5 The purchase contract is concluded by sending an order confirmation via e-mail within two business days or by delivering the goods within five business days. After expiry of that period the offer is rejected, that means the Customer is no longer bound by its offer.
2.6 Unless agreed otherwise in a specific case, the content/condition, scope, prices and terms of the deliveries and services to be provided by the seller shall be as stated in the respective order confirmation and the respective product specification. The product specification may be inspected at any time via www.meshtech.de www.open-mesh.de or www.open-mesh.com.
2.7 We are entitled to challenge, where we have to prove our mistake, should our order confirmation contain writing or printing errors or if our price determination is based on technical transmission errors. Payments already made will be refunded to the Customer.
2.8 If the Customer orders the goods electronically, the contract will be stored by the seller and sent to the customer together with the GTC via e-mail at the latest after conclusion of the contract.
2.9 In the case of incorrect or improper delivery the final contract shall be subject to not provide or only partially. This applies only in the event that the non-delivery is not caused by the seller, and the seller has concluded a concrete hedging transaction with the supplier with due diligence. The seller will make all reasonable efforts to procure the goods . Otherwise, the return will be refunded immediately.
3. Retention of Title
3.1 For Consumers, the seller retains title to the goods until full payment of the purchase price. For entrepreneurs, the seller retains title to the goods until full settlement of all claims from an ongoing business relationship.
3.2 Repudiatory conduct of the Customer, especially delayed payment, providing false information about Customer’s creditworthiness or if an application is made to open insolvency proceedings, the seller - if necessary after setting a deadline – is entitled to withdraw from the contract and reclaim the goods, provided that the Customer has not yet or not fully paid the return.
3.3 Resale, pledge, security transfer, processing or transformation of the reserved goods are prohibited without the consent of the seller.
4.1 Unless agreed otherwise in a specific case, prices shall be quoted net „ex works“ plus the respective applicable turnover tax and the costs for transport and dispatch.
4.2 The customer agrees to pay the invoice amount within 14 days after receipt of order confirmation / invoice. After the deadline, the customer is in default of payment. A consumer has to pay 5 percentage points above base rate on the debt during the delay. An entrepreneur has to pay 9 percentage points above base rate on the debt during the delay.
4.3 If the Customer does not remedy the default in payment after a warning has been issued and within a due second deadline the seller is entitled to instruct a collection agency with the implementation of the claims; the purchaser shall bear the costs in this respect.
4.4 The Customer has a right to set-off only if his counterclaims have been legally determined, recognized or were not contested by the seller. The Customer's right to set-off with contractual and other claims arising out of the initiation or implementation of this contract remains unaffected. The Customer can only exercise a lien if his counterclaim is based on the same contract.
5. payment options
5.1 The Customer can pay via bank transfer, PayPal, cash on delivery or in individual cases by invoice. For orders from other European countries, the seller accepts payment via bank transfer, cash or Paypal. For orders from non-European countries, the seller accepts payment via bank transfer.
5.2 Fees and other additional costs which apply by the use of payment methods (e.g. PayPal, cash on delivery, etc.) shall be borne by the Customer. Furthermore, the Terms and Conditions of the used payment service apply.
5.3 The seller shall be entitled to offer more payment methods in the future. Additional charges may apply.
6. Shipping and Availability of Supplies
6.1 Unless agreed otherwise in a specific case, shipping takes place as an insured parcel with DHL.
6.2 Shipment will be made to the delivery address specified by the Customer. Unless agreed otherwise in a specific case the seller usually ships within two working days after receipt of the invoiced amount, submission of proof of payment or after order confirmation (for payment option cash on delivery only).
6.3 Delivery dates and deadlines shall be binding only if they have been agreed as binding in writing in a specific case by the seller and the Customer. Any agreement of a fixed date shall be subject to the seller, for its part, receiving the deliveries and services of its respective upstream suppliers in good time and as contractually stipulated.
6.4 If the beginning or end of delivery period is a Saturday, Sunday or legal holiday, then the beginning or end of delivery period are shifted to the following working day.
6.5 If non-compliance with a delivery period is attributable to events for which the seller is not responsible the delivery deadlines shall be postponed by the duration of the disturbance including an appropriate start-up phase.
6.6 In case of delay, unavailability or partial availability of the goods the Customer is informed immediately.
6.7 The seller is entitled to rescind the contract if his own suppliers are in default with the delivery for more than 30 days. In this case, the seller will propose the customer the delivery of a comparable product. If no comparable product is available or if the customer does not wish a comparable product, returns made by the customer will be immediately refunded by the seller.
6.8 A delivery delay as described in point in 6.7 from seller’s suppliers does not lead to distortion of the seller to the user, if the seller itself concluded a congruent hedging transaction and is not responsible for the delay in delivery itself. A damage claim of the customer is excluded in the event of withdrawal from the seller, if the seller has not self-inflicted the delay or has taken a corresponding guarantee. Insofar as only a partial service is affected and the customer is still interested in the remainder, the right of termination is limited to the partial performance.
6.9 In the event of delay in performance, the Customer shall have a right of rescission in accordance with the relevant statutory provisions only if the seller is responsible for the delay.
6.10 The seller is entitled to partial delivery, insofar as a partial delivery is reasonable for the customer taking its interests into account. This does not affect the contract, in particular the performance owed by the seller or the agreed service time. No additional cost shall arise for the Customer.
7. Transfer of risk
7.1 For Consumers making mail order purchases, the risk of accidental loss and accidental deterioration of the purchased goods shall pass to the Consumer upon handover of the item. For entrepreneurs making mail order purchases, the risk of accidental demise or deterioration of the purchased goods shall transfer to the entrepreneur on dispatch of the goods to the haulier or other person or establishment designated to make the delivery.
7.2 The same applies to the delivery of products when the Customer defaults the acceptance of the products.
8. Quality Defects and Warranty
8.1 The Customer has a statutory right of warranty, which is modified in accordance with sections 8 and 9 of these GTC.
8.2 The seller warrants that the deliveries and services will comply with the agreements in section 2.6 if used in conformity with the relevant agreement.
8.3 The Customer is obliged to inspect deliveries immediately for completeness and noticeable defects and to notify the seller of any defects without delay. Externally recognizable transport damages must be immediately confirmed in writing on delivery by the deliverer. For entrepreneurs §377 German Commercial Code (HGB) shall apply.
8.4 No claims for quality defects shall lie for a merely insignificant deviation from the quality as provided in the relevant agreement. Claims for quality defects shall be excluded if the deviation from the quality as provided in the relevant agreement is based on excessive or improper use or natural wear and tear. The same shall apply to deviations that arise as a result of external influences that are not provided for in the relevant agreement. Furthermore, claims for quality defects shall be excluded in the event of the sale of used goods.
8.5 The Customer must report any defects in writing in a comprehensible and detailed form, stating the information required for the detection and analysis of the defects.
8.6 Customers must report obvious defects in writing immediately, but no later than seven days after receipt of the goods (including receipt by third parties at the Customer's instructions); otherwise the right to assert guarantee claims shall be excluded; the timely dispatch shall be sufficient to observe the deadline. For entrepreneurs §377 HGB shall apply.
8.7 If the Customer may claim for defects, it shall initially only have the right to subsequent performance by replacement within a reasonable period. Subsequent performance may only affect the limitation period for the defect triggering the subsequent performance. If subsequent performance takes place, title in the items exchanged as part of the subsequent performance shall pass to the seller at the time of the exchange.
8.8 If rectification of the defect is unsuccessful or cannot be effected for other reasons, the Customer may, in accordance with the relevant statutory conditions, reduce the compensation, rescind the Agreement and / or claim compensatory damages. In the case of insignificant defects and considering the parties mutual interests the Customer is not entitled to withdraw. Instead of compensatory damages, the Customer may demand reimbursement of expenses in the context of § 284 German Civil Code (BGB), which he has made trusting the receipt of the subjects of performance as agreed in contract, and which he justly could make. If the Customer chooses compensation instead of performance, the liability limitations in accordance with section 9.1 of these GTC will apply.
8.9 The warranty period for consumers shall be two years from the date of delivery of the goods. For entrepreneurs the warranty period shall be one year from the date of delivery of the goods. The warranty period for used goods shall be one year from the date of delivery of the goods. The one year warranty period shall not apply if negligence on our part can be proven or in such cases where injuries, health risks, loss of life can be attributed to us, in in case of a guarantee as well as in case of a delivery recourse in accordance with §§ 478, 479 BGB. Seller's liability on account of provisions of the German Product Liability Act shall remain unaffected by this.
8.10 By derogation to point 8.9 the regular limitation period shall apply if the seller has fraudulently concealed a defect.
8.11 No guarantees in the legal sense are given by the seller, unless explicitly agreed otherwise. Manufacturer warranties remain unaffected.
8.12 The failure of a complaint or contact has no consequences for the Customer’s statutory warranty rights.
9. Limitations of Liability
9.1 In the case of ordinarily negligent infringements of obligation, our liability is limited to the foreseeable, contract-specific, direct average damage corresponding to the type of our performance. This shall also apply to minor breaches of duty owing to negligence by seller’s statutory representatives or vicarious agents. The seller is not liable in case of insignificant negligent violationof minor contractual obligations. The seller will be liable for violation of the rights of the customer that are essential to the agreement. Essential agreement-based rights are those that the agreement must guarantee to the Customer according to the content and objective of the agreement. Furthermore, the seller cannot be held liable for breaching obligations whose fulfillment makes the due performance of the contract possible in the first place, where the Customer regularly relies on and may rely on compliance with such obligations.
9.2 The above mentioned liability limitation does not affect claims of the Customer concerning warranties and / or product liability. Furthermore the liability restrictions shall not apply for fraudulent intent, violation of essential contractual obligations and in case of injury to life, body or health of the contractual partner attributable to the seller.
9.3 The seller shall only be liable for its own contents on his website. As far as we give access to other websites by means of links, we herewith point out that the seller is not responsible for the external contents contained therein. If the seller obtains knowledge of unlawful contents on external websites, it shall immediately block access to the relevant sites.
10.1 In the event of a cross-border delivery or service, the Customer shall bear the customs duties, fees and other levies incurred, unless the individual agreements provide otherwise.
10.2 If the Customer intends to re-export the deliveries and services, it is obliged to obtain the required licenses for this, in particular from the respective foreign trade authority, before it exports the products. It shall inform itself independently of the applicable provisions and regulations and handle the re-export on its own responsibility. To this extent, the seller shall have no obligation whatsoever to furnish information, give advice or provide assistance.
10.3 If, in the event of the re-export or import into another country, the Customer breaches the statutory provisions applicable to such country, and if a claim is made against the seller for this reason by the exporting or importing country or a transit state based on the local statutory provisions, the customer undertakes to indemnify the seller against any and all financial obligations arising in this regard and in addition shall be obliged to compensate the seller for any damage incurred due to the improper re-export or import.
11. Data Protection
11.1 The provider collects, processes and uses the Customer’s personal data exclusively for the purposes of contract implementation and processing.
11.2 The Customer is entitled to free information, amendment, blocking and deletion of his saved data.
11.3 The order information is stored on our internal systems.
11.4 The seller and the Customer are aware that electronic and unencrypted communication (e.g. via e-mail) is a security risk. In this kind of communication, neither the seller nor the Customer shall therefore assert claims that are based on the absence of encryption, unless encryption has been agreed beforehand.
11. Settlement of Disputes
11.1 The laws of the Federal Republic of Germany shall apply. In case of consumers, who do not conclude the contract for professional or commercial purposes, this choice of law shall only be applicable insofar the afforded protection is not deprived by obligatory provisions of the law of the state in which the consumer has his or her habitual place of residence. The provisions of the UN Sales Convention (CISG) shall not apply.
11.2 As far as our Customer is merchant, legal person under public law, or a separate estate under public law, the exclusive place of jurisdiction for all disputes resulting directly or indirectly from the contractual relationship, is our place of business; we are, however, authorized to sue the customer at the court of his place of residence. Jurisdiction because of an exclusive venue is not affected.
12. Final Clauses
12.1 The seller is entitled to vary these Terms and Conditions at any time without giving reasons and the Customer is not adversely affected hereby under the principle of equity and good faith. Customers will be notified of these changes via e-mail. Substantive changes shall be permitted if a change in thelegal situation has occurred on the basis of a change in laws or case law especially if individual stipulations of these GTC are ineffective or become ineffective. Unless the user objects to the applicability of the new GTC within two weeks of notification, the amended GTC shall be deemed accepted by the user. The seller will publish the advice that the user may contradict such changes and the consequences of such contradiction along within the aforementioned term with the changes.
12.2 The seller and the Customer shall keep confidential any business and trade secrets as well as other information marked confidential contractual relationship. Such information may be passed on to persons who are not party to the conclusion, execution or implementation of their contractual relationship or the sales and distribution relationship and the respective individual agreements only with the prior written consent of the other contracting party.
12.3 Any amendments to any and all agreements concluded between the parties must be agreed in writing. Verbal agreements shall apply only if they are confirmed in writing by the seller within five days; an e-mail shall satisfy this written form requirement.
12.4 Should one or more terms of these GTC prove invalid, in full or in part, or become so in the future, this shall in no way affect the validity of the remaining terms and conditions.
|Version 1.0 valid from 01.12.2017|