General terms and conditions of Big Difference GmbH & Co. KG
1. General provisions
(1) These general business conditions shall apply to any and all contracts, deliveries and other services by Big Difference GmbH & Co. KG, Am Hasselt 20c, 24576 Bad Bramstedt, eBay-Account “inter-sell” and the Amazon-Account “Big Difference” (hereinafter referred to as: “seller”) vis-à-vis their customers. Any provisions laid down by the customers that deviate from these General Business Conditions shall not apply, unless their applicability has expressly and in writing been confirmed by the seller.
(2) The business relations between the seller and the customers are subject to the laws of the Federal Republic of Germany. In the case of consumers, this choice of law shall apply only insofar as the protection granted is not withdrawn by mandatory provisions of the laws of the state in which the consumer has its general place of abode. The applicability of the UN Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) is excluded.
(3) Place of jurisdiction shall be Hamburg, if the customer is a merchant or a legal person under public law or a public-law special fund. The same shall apply, if a customer does not have a general place of jurisdiction in Germany or the place of residence or customary place of abode are unknown at the time of bringing the action.
(4) Arrangements concluded between the seller and the customer on a case-by-case basis (including subsidiary agreements/side letters, supplements and amendments) shall in any case take precedence over these General Business Conditions.
(5) The contract language is German. The text that is authoritative is the text drawn up in the German language. Other-language texts are intended for information purposes only.
(6) On eBay and Amazon, the offer pages of the seller are saved for up to 60 days and can be retrieved and inspected by the customer using the relevant article number of eBay and Amazon. By means of the print function of the browser, the customer is able to print out the respective website. The seller has no influence on the period of time for which the information is saved for retrieval and inspection on the eBay website and on the Amazon website. In the online shop, the customer is able to access and print out the order summary as well as the General Business Conditions. Apart from that, the text of the contract is not saved by the seller after the contract has been concluded in the online shop and therefore is not accessible.
2. Subject matters and conclusion of contracts
(1) The seller offers customers the opportunity to purchase various products in its online shop www.yuki-model.de, via the platforms eBay and Amazon as well as – for commercial customers only – from its warehouse. The offers of the seller are exclusively addressed to customers in the European Community.
(2) The following applies to the conclusion of a contract on eBay:
- When the seller lists an article on eBay.de in the auction-style listing or so-called fixed-price format, it makes a binding offer for the conclusion of a contract for this article. In this connection, the seller determines a start price or fixed price and a period during which the offer can be accepted (listing duration). If the seller fixes a minimum price in the case of an auction-style listing, the offer is subject to the condition precedent that the minimum price is attained.
- When the seller has added a fixed price, i.e. the so-called “Buy it now-function” to its auction-style listings, a customer is able to exercise this function as long a no bid has been placed on the offered article or a minimum price has not yet been attained.
- In the case of fixed-price articles, the customer accepts the offer by clicking the button “Buy it now” and then confirming his/her purchase. In the case of fixed-price articles, for which the seller has chosen the “immediate payment” option (“Pay now”), the customer accepts the offer by clicking the “Buy it now” button and completing the immediately following payment procedure. A customer may accept offers for several articles also by putting the articles in the shopping basket and then completing the immediately following payment procedure.
- In an eBay auction, a purchase contract is concluded between the seller and that customer who, upon the expiry of the listing duration, has placed the highest bid. Acceptance is thus made subject to the condition precedent that the customer, after the expiry of the listing duration, is the highest bidder. A customer's bid expires as soon as another customer places a higher bid. • When the offer is terminated early by the seller, a contract is concluded between the seller and the highest bidder, unless the seller was entitled to retract the offer and to cancel the bids that had been placed. Reasons for ending the offer early may be found here.
- A customer can retract his/her bid only when there is a legitimate reason to do so. Reasons for the possibility to retract a bid may be found here. After a legitimate bid retraction, no contract is concluded between the customer who, after the expiry of the auction, is again the highest bidder due to the retraction of the bid, and the seller.
- In certain eBay categories, the seller can add a “Best Offer” function to his offer. This Best Offer function enables the customer and the seller to negotiate the price for an article. • If eBay removes an article prior to the expiry of the listing duration, no valid contract is concluded between the customer and the seller.
- The customer is able to correct his/her inputs prior to placing his/her order with the help of the technical means provided by eBay. The corrections can be made using the customary keyboard and mouse functions directly on the offer page in the relevant input fields. After clicking the “Buy it now” or “Bid” buttons, the customer is able to check his/her input again on the subsequent confirmation page. The customer is informed by mail of the conclusion of the contract.
(3) The product displays of the seller on Amazon serve to submit a legally binding offer on the part of the customer. The customer can submit the offer using the online order form integrated on the Amazon site or via the 1-Click®-kaufen (Buy now with 1-Click®) function, if the Buy now with 1-Click® function has been activated beforehand.
- In the case of an order using the online order form, the customer, after inputting his/her personal data and clicking the button “Buy now” in the final step of the ordering process, submits a legally binding offer for the conclusion of a contract with regard to the goods in the shopping basket. Prior to the binding submission of the order, all inputs can be continuously corrected using the customary keyboard and mouse functions. In addition, the inputs are shown again in a confirmation window prior to the binding submission of the order and can also be corrected there by means of the customary keyboard and mouse functions.
- When placing an order using the 1-Click®-kaufen (Buy now with 1-Click®) function, the customer has logged in to his/her Amazon customer account and chooses his/her desired delivery address on the details page of the article in the 1-Click®-pulldown menu. The customer is able to change, supplement or delete his/her delivery address at any time prior to submitting a legally binding offer via the Amazon start page, following the path “Hilfe > 1-Click® > 1-Click®-Einstellungen” (Help > 1-Click® > 1-Click®-settings). After choosing the delivery address in the 1-Click®-pulldown menu, the customer submits a legally binding offer for the conclusion of a contract by clicking the button “Buy now with 1-Click®” as regards the chosen quantity of goods on the relevant details page of the article. The ordering process is completed by clicking the button “Buy now with 1-Click®”. After clicking the button “Buy now with 1-Click®”, a correction of input errors is no longer possible.
- Immediately after dispatching his/her order, the customer will receive a confirmation e-mail from Amazon containing the information that the seller has received the offer. The seller can accept the offer submitted by the customer by e-mail within two days. The order data can be retrieved by the customer after he/she has dispatched his/her order via the password-protected customer account at Amazon.
- When a purchase is made in the online shop, the purchase contract is concluded by seller's acceptance of the order. Prices quoted in the online shop do not constitute an offer within the meaning of the law, but an invitation to submit an offer (invitatio ad offerendum). Prior to submitting a binding order in the online shop, the customer is able to continuously correct all inputs by means of the customary keyboard and mouse functions. In addition, all inputs are displayed again in a confirmation window prior to the submission of the binding order can be corrected there again by means of the customary keyboard and mouse functions. Receipt and acceptance of the order will be confirmed by e-mail to the customer.
- Together with the order confirmation, the seller will send the customer the text of the contract as well as these General Business Conditions and the Cancellation Policy.
- In the case of the purchase of goods from the warehouse, a purchase contract with commercial customers is concluded upon the purchase offer submitted by the customer being accepted on the part of the seller or upon the acceptance of an offer submitted by the seller on the part of the customer. Price tags on the goods do not constitute an offer within the meaning of the law.
- A customer is also able to enquire with the seller about a certain article over the telephone, via e-mail, telefax or letter. After receiving such an enquiry, the seller will submit a separate offer to the customer via e-mail, letter or telefax. A contract is concluded only when the customer accepts this offer.
3. Prices, VAT and payment
(1) When purchasing articles on eBay that price applies, at which the purchase contract was concluded (see section 2 sub-section 2). In all other respects, the agreed prices apply.
(2) If a customer is registered and logged in as a dealer in an online shop, prices are shown to him/her net, i.e. excl. VAT at the respective legal rate. In all other cases, all prices include VAT at the respective legal rate. The prices are understood exclusive of shipping and packaging costs, which are quoted to the customer prior to submission of the order. The amount of the shipping costs is dependent on the weight and measures of the goods, the type of goods (dangerous goods) as well as from the desired destination and the value of the order.
(3) At the request of the customer, the seller makes delivery to the customer against advance payment (bank transfer or payment via PayPal), C.O.D., on account, by giving a SEPA direct debit mandate, or by means of cash payment upon pickup of the goods.
(4) When the customer chooses advance payment by bank transfer, payment is due at the latest 1 (one) week after the conclusion of the contract. When delivery is made on account, payment is due at the latest 7 calendar days after the date of the invoice. If payment is made C.O.D., the purchase price plus shipping costs and C.O.D. fee is due and payable upon delivery and presentation of the C.O.D. document by the commissioned transport company.
(5) If a customer defaults on his/her payment obligations, the seller is entitled to demand damages in accordance with the statutory provisions.
(6) When settling auctions on eBay and orders via Amazon, the customer shall always indicate his/her eBay or Amazon member name and the auction number, if appropriate.
(7) The seller will always issue an invoice to the customer, which is handed over to the customer upon delivery of the goods or otherwise sent to him/her in written form.
4. Delivery and passing of the risk
(1) The ordered goods are delivered to the address specified by the customer, unless otherwise contractually agreed upon. Delivery is made exclusively to addresses in the countries specified in section 2 sub-section 1 of these General Business Conditions. Delivery is made from the seller's warehouse.
(2) The seller reserves the right to make partial delivery, if this is considered expedient for prompt delivery and partial delivery is not exceptionally unreasonable for the customer. Additional costs resulting from partial deliveries will not be charged to the customer.
(3) The availability of the individual goods is indicated in the descriptions of the articles. For goods that are sold on eBay or which are designated as “on stock” in the online shop and/or Amazon, delivery will be made within five business days after the conclusion of the contract, unless indicated otherwise in the description of the article (in the case of advance payment by bank transfer: five business days after receipt of payment). When C.O.D. has been agreed upon or delivery is made on account, delivery will be made within five business days after the conclusion of the contract.
(4) The risk of accidental perishing and of accidental deterioration of the goods passes at the latest when the goods are handed over to the customer. If the customer is an entrepreneur, the risk of accidental perishing and accidental deterioration of the goods and the risk of delay shall, in the case of a sale by delivery to a place other than the place of performance (“Versendungskauf”) pass already at the time of delivery of the goods to the forwarding agent, the freight carrier or the person otherwise entrusted with the performance of the dispatch.
5. Retention of title, right of retention
(1) The delivered goods remain the property of the seller until any and all claims under the contract have been performed in full; in the event that the customer is a legal person under public law, a public-law special fund or an entrepreneur who exercises its commercial or self-employed professional activity, this also includes claims from the current business relationship, until settlement of any and all claims to which the seller is entitled in connection with the contract. (2) If the customer is a legal person under public law, a public-law special fund or an entrepreneur who exercises its commercial or self-employed professional activity, it is entitled to sell on the goods subject to retention of title (“Vorbehaltsware”) in the ordinary course of business, subject to the proviso that the receivables resulting from the resale pass to the seller as described below:
- The customer with immediate effect assigns to the seller any and all claims up to the amount of the purchase price claim, together with any and all ancillary rights that accrue to it from the resale against the buyer or against third parties.
- The customer is entitled to collect this claim also after such assignment. The right of the seller to collect the claims itself remains unaffected thereby; the seller however undertakes not to collect the receivables as long as the customer complies with its payment obligations.
- The seller may demand that the customer notifies the assigned claims and their debtors to the seller, provides any and all information required for collection, hands over the pertinent documentation and informs the debtor of the assignment.
- In any case, the furnished security mentioned above expires automatically as soon as its value exceeds the claims to be secured by more than 10 per cent.
(3) The customer has rights of setoff only, if its counterclaims have become res judicata, are undisputed or have been acknowledged by us. In the event of defective/faulty delivery, the counter-rights and claims of the customer shall remain unaffected, in particular its right to retain part of the purchase price that is reasonable in relation to the defect. Moreover, the customer is entitled to exercise a right of retention only insofar as its counterclaim is based on the same contractual relationship.
(4) For consumers, we reserve the ownership of underlying purchased item until the bill is fully paid. If you are an entrepreneur in the midst of trade or self-employed, a legal individual under public law or public sector fund, we retain the ownership of the purchased item until all outstanding claims from the business transactions with you have been settled. The relevant security rights can be transferred to third parties.
(5) A right of compensation is available for you, if your counterclaims are legally established, recognized or accepted by us. You also have a right of retention only if and when your counterclaim is based on the same contract.
(6) If the customer has any remaining default payments due to us, all existing receivables are due immediately.
6. Liability for material defects and defects of title
(1) Insofar as there are any defects, the customer is entitled to the statutory warranty claims, subject to the provisions below. If only merchants are parties to the contract, sections 377 et seq. German Commercial Code (HGB) shall apply in addition.
(2) Damage caused by inappropriate handling by the customer during assembly, connection, operation or storage of the goods does not give rise to a warranty claim against the seller. The customer may obtain information on the due and proper handling from the manufacturer's descriptions.
(3)Complaints in respect of defects have to be lodged by the customer against the seller within a warranty period of two years in the case of new goods and of one year in the case of used goods. If the customer is an entrepreneur, the warranty period for new goods is one year. In the case of used goods, any warranty vis-à-vis entrepreneurs is excluded. The above-mentioned shorter periods do not apply either, if the seller fraudulently concealed a defect or has assumed a guarantee for the characteristics of the products, nor do they apply to damage compensation claims by the customer aiming at compensation for injury to body or health resulting from a defect for which the seller is responsible or which is based on willful or grossly negligent conduct on the part of the seller or his vicarious agents (“Erfüllungsgehilfen”).
(4) If any defects are present and if claims concerning these defects have been lodged in good time, the seller is entitled to subsequent performance. Should subsequent performance fail, the customer is entitled to reduce the purchase price or to rescind the contract. In all other respects, the statutory provisions apply.
7. Obligations to provide information in the event of damage during transport
If goods are delivered with obvious damage to packaging or contents, the customer should, its warranty rights defined above (section 6) notwithstanding, immediately lodge a complaint with the forwarding agent/delivery service and contact the seller without delay by e-mail or any other method (telefax/letter), so as to enable the seller to assert any rights vis-à-vis the forwarding agent/delivery service.
8. Exclusion of liability
(1) Over and above the liability for material defects and defects of title, the seller shall be liable without limitation, if the damage has been caused intentionally or by gross negligence. It shall also be liable for negligent violation of material contractual obligations (obligations whose violation jeopardises the attainment of the purpose of the contract) as well as for the violation of essential obligations (“Kardinalpflichten”) (obligations, whose performance will enable the due and proper performance of the contract in the first place and on whose performance the customer as a rule relies), in each case however only for the foreseeable damage that is typical for this type of contract. The seller shall not be liable for the negligent violation of obligations other than those mentioned above.
(2) The limitations of liability specified in the preceding paragraph do not apply in the case of death, bodily injury or damage to health, any deficiency occurring after the assumption of warranty for the characteristics of the product and in the case of defects that have been fraudulently concealed. Liability in accordance with the German Product Liability Act (“Produkthaftungsgesetz”) shall remain unaffected.
(3) If liability of the seller is excluded or limited, this shall also apply to the personal liability of its employees, representatives and vicarious agents.
9. Data protection and data privacy
(1) The customer is aware of and consents to the seller storing personal data required for the processing of the order on data media. The customer expressly consents to the collection, processing and utilisation of his/her personal data. It goes without saying that the seller is obliged to treat the customer's stored personal data as confidential. The collection, processing and utilisation of the personal data of the customer is performed in compliance with the provisions of the German Federal Data Protection Act (BDSG) and the German Telemedia Act (TMG).
(2) The customer is entitled to withdraw its consent at any time with effect for the future. In that case, the seller is obliged to delete the customer's personal data without delay. As regards ongoing order processes, the data shall be deleted after the completion of the ordering process.