General Terms and Conditions
§ 1 General
a) Area of Validity
The following General Terms and Conditions shall apply for all business relations between Winter Trademark Management GmbH, Myliusstraße 7, 60323 Frankfurt am Main, and the customer, valid in the version applicable at the time of closing the contract. General Terms and Conditions by the customer to the contrary are explicitly objected to.
b) Contract Language
Contract language is German. In the event of questions of interpretation, the German version shall prevail.
c) Close of Contract
The description of the product line in Winter Trademark Management GmbH’s Internet shop is subject to change and not binding. The order process on this website consists of a total of four (4) steps. In the first step, the client selects the desired merchandise. In the second step, the client enters their data including billing address and, if necessary, different delivery address, if not already specified in their customer account. In the third step, the client chooses their payment method. In the fourth step, the client has the opportunity to double-check all data (i.e. name, address, payment method, ordered merchandise) and, if necessary, to correct data entry errors before they confirm their order by clicking the button “Purchase Now” (German: “zahlungspflichtig bestellen”/”legally binding purchase order”). This order signifies the customer’s legally binding contract offer. Winter Trademark Management GmbH will confirm the receipt of the order immediately. This confirmation constitutes acceptance of the order and closes the contract between Winter Trademark Management GmbH and its client.
d) Storage of Contract body
The contract body is stored by Winter Trademark Management GmbH and sent to the customer in written form (i.e. email, facsimile, or regular mail) next to the Terms and Conditions at hand and their customer information, after having submitted their order. The contract body cannot be accessed by the customer after submitting his order, however, through Winter Trademark Management GmbH’s Internet site. The customer may print the contract body via the browser’s print function of the respective website.
e) Customer Account
For a more convenient use of the website and to simplify future orders, it is possible to create a customer account. Therefore, the required data to perform such services by Winter Trademark Management GmbH are asked for. The entries are confirmed by clicking the “Register” button. The customer receives a confirmation email hereafter with the necessary log-in data. The registration is only completed when the customer logs in with this data for the first time at Winter Trademark Management GmbH’s website.
The password which allows the customer access to their personal area is to be treated strictly confidential and may under no circumstances be given to third parties. The customer takes the adequate and appropriate measures to prevent access to their password by third parties. A customer account cannot be transferred to other customers or other third parties.
§ 2 Delivery
a) Partial Shipments
Winter Trademark Management GmbH is entitled to make partial shipments when this is deemed acceptable to the customer. In the event of partial shipments, the customer shall, however, not incur any additional shipping cost.
b) Delays in delivery and services
Delays in delivery and services based on acts of God/force majeure and extraordinary and non-foreseeable events, which even with extreme precaution by Winter Trademark Management GmbH cannot be prevented (including especially: strikes, regulatory action or court orders, and instances of incorrect or improper delivery of goods to the seller despite the appropriate covering transaction to that effect), are not to be imputed to Winter Trademark Management GmbH. They entitle Winter Trademark Management GmbH to postpone delivery by the time period of the hindering circumstance.
c) Cancellation of Contract
At non-availability, based on the above-mentioned reasons, Winter Trademark Management GmbH may cancel the contract. Winter Trademark Management GmbH commits to inform the customer without delay about the non-availability and shall reimburse any services already rendered in return.
d) Time of Performance
As far as it is not otherwise agreed upon, Winter Trademark Management GmbH shall perform the service within five (5) days. The commencement of the delivery period for prepayments is the day after submitting the payment order to the transmitting credit institution, or for cash on delivery or payment by invoice the day after close of contract. The period ends on the subsequent fifth day. Should the last day of this period be a Saturday, Sunday, or national holiday observed by the respective country of the delivery address, the period ends on the following business day.
§ 3 Payment
a) Prices and Shipping cost
All prices are inclusive of the applicable German Value Added Tax rate (German: Umsatzsteuersatz). The shipping cost are to be covered by Winter Trademark Management GmbH, unless otherwise agreed upon. For deliveries abroad, duties, taxes and fees may apply and are to be paid separately by the client.
b) Delay of Payment
The customer shall be in delay of payment when payment has not been received by Winter Trademark Management GmbH within two weeks after receipt of invoice. In case of payment delay, interest in the amount of five percentage points above the European Central Bank’s base interest rate, that is nine percentage points above the European Central Bank’s base interest rate, are calculated for legal transactions which do not involve a consumer. Should the customer be delayed with their payments, then Winter Trademark Management GmbH reserves the right to charge overdue fees in the amount of EUR 2.50. The assertion of further damages shall remain undisputed. The customer has the opportunity to proof that Winter Trademark Management GmbH suffered no harm or only a minimal amount of harm.
c) Right of Retention
The enforcement of a right of retention is only available to the customer for such counterclaims which are due and based on the same legal relationship as the customer’s obligation.
§ 4 Notice to the Right of Cancellation for consumers with long-distance contracts
Notice to the Right of Cancellation
Right of Cancellation
You have the right to cancel your contract within fourteen (14) days without stating reasons.
The Cancellation Period is fourteen (14) days from the date on which you or a third person authorized by you, who is not a promoter or carrier, has taken possession or takes possession of the merchandise or the last goods.
To exercise your Right of Cancellation, you must inform us (Winter Trademark Management GmbH, Myliusstraße 7, 60323 Frankfurt am Main, Telephone: +49 (0)69 13822 815, Email: service@winterandco.de) by sending an unequivocal explanation (i.e. a letter sent by regular mail, facsimile, or email) about your decision to cancel this contract. You may use the attached Sample Form of Cancellation, which, however, is not mandatory.
To guarantee the Cancellation Period, it suffices that you send the Notice to the Right of Cancellation before the end of the cancellation period.
Consequences of the Notice to the Right of Cancellation
When you cancel this contract, we will have to return to you all payments which we have received from you, including the delivery cost – as far as these were covered by the customer – (with exception of the additional cost resulting from a different type of delivery method which you may have chosen other than the least expensive standard delivery method offered by us), immediately and within fourteen (14) days at the latest, from the day on which we received the Notice of your Cancellation. For this repayment we will use the same form of payment which you used for the original transaction, unless other arrangements were specifically made with you, under no circumstance will we charge you with fees due to this repayment. We can refuse the repayment, until we have received the return of the merchandise or until you will have provided proof that you sent back the merchandise, depending on which point of time comes first.
You have to send back or hand over the merchandise immediately and in any case within fourteen (14) days at the latest from the day on which you inform us about the Cancellation of this contract. The period is adhered to when you send back the merchandise before the end of the fourteen (14) day period. You are charged with the immediate cost of the return of the merchandise.
You only must bear the expenses for a possible loss of value when this loss of value, after having examined and tested the merchandise’s texture, qualities and functionality, results from unnecessary handling by you.
– End of the Notice to the Right of Cancellation –
§ 5 Reservation of Ownership
a) General
If the customer is a business owner, Winter Trademark Management GmbH shall remain the owner of all delivered merchandise, works, and materials until the complete fulfillment of all present and future liabilities stemming from the business relationship. Towards consumers, only the delivered product from the specific contract shall remain in the ownership of Winter Trademark Management GmbH until complete payment of the purchase price is made. The customer has to treat merchandise under reservation of ownership carefully at all times. The customer conveys a claim or replacement to Winter Trademark Management GmbH which he receives for the damage, destruction or the loss of the goods. The customer is, as far as nothing deviant is subsequently negotiated otherwise, not entitled to sell, to give away as present, to garnish, or pledge as a security the goods delivered to them under the reservation of ownership.
b) Garnishment and Other Restrictions
If the item under reservation of ownership is garnished or otherwise restricted by third parties, then the customer has to notify Winter Trademark Management GmbH without delay, so a lawsuit can be filed according to § 771 ZPO [German: ZPO = Zivilprozessordnung; Code of Civil Procedure]. If the third party is not able to reimburse the judicial and extra-judicial cost of a lawsuit according to § 771 ZPO, the customer shall be liable to Winter Trademark Management GmbH for the financial loss incurred.
c) Resale
As far as the customer is a business owner, he or she is entitled to resell the goods subject to retention of title in regular business transactions. The buyer’s amount receivable of the goods subject to retention of title is now already conveyed to Winter Trademark Management GmbH in the amount of the agreed final invoice amount (including Value-Added Tax). This transfer is independent of the fact whether the purchased item is resold with or without processing. The customer remains authorized to the collection of the claim even after the cession. Winter Trademark Management GmbH’s capacity to collect the claim itself remains untouched. Winter Trademark Management GmbH shall, however, not collect the claim, as long as the customer’s liability to pay is met from the collected proceeds, the customer is not in delay of payment, and specifically an application for bankruptcy proceedings has not been filed or default of payments exists.
d) Reshaping, Treatment and Workmanship
Is the customer a business owner, the treatment and workmanship, or reshaping of the purchased item through the customer always takes place in the name and by the order of Winter Trademark Management GmbH. In this case, the customer’s expectancy right to the purchased item of the reshaped item continues. As long as the purchased item is not processed with other items, not owned by Winter Trademark Management GmbH, Winter Trademark Management GmbH becomes a co-owner of this new item in relation of the objective value of Winter Trademark Management GmbH’s purchased item to the other processed items at the time of workmanship. The same is valid in the case of blending. As long as the blending happens in a way that the customer’s item is to be seen as principal item, it is understood that the customer partially transfers co-ownership and therefore stores the resulting sole ownership or co-ownership for Winter Trademark Management GmbH. As security of the claims against the customer, the customer also transfers such claims to Winter Trademark Management GmbH, which arise to the customer through the connection of the reserved goods with the property against a third party; Winter Trademark Management GmbH already accepts this cession.
e) Repossession
Winter Trademark Management GmbH is entitled to repossess the goods when the customer acts contrary to contract, especially through delay of payment but also in the event of the application of bankruptcy proceedings regarding the customer’s assets. The repossession of goods does not present a withdrawal from the contract in this instance, unless Winter Trademark Management GmbH gives a specific explanation in writing.
f) Release of Securities
Should the value of securities exceed the value of the secured claims by more than fifteen (15) per cent, Winter Trademark Management GmbH is obligated to release the securities upon the customer’s demand.
§ 6 Guarantee
a) Warranty claim
There are legal warranty claims. A warranty claim may only be made concerning the condition of the merchandise; reasonable deviations in regards to aesthetic characteristics of the merchandise shall not come within the warranty claim. Should there be additional guarantees in addition to the warranty claims, you shall find their exact conditions with each product. Potential guarantees do not touch the warranty claims.
b) Transfer of risk
Risk of accidental destruction or deterioration of merchandise ordered shall only be transferred upon the customer’s receipt of goods.
c) Notification
Should the customer realize that they receive goods in damaged packaging or notice damage after receipt of the goods, Winter Trademark Management GmbH asks that the customer informs the company. There shall neither be an obligation to such notification nor shall the customer’s warranty rights be affected by an omitted notification.
d) Subsequent performance
Should the merchandise be defective, the customer may choose to require subsequent performance in form of subsequent repair or subsequent delivery. In the event that, even after two attempts, the defect could not be corrected, the customer may choose to cancel the purchase or reduce the price.
e) Rights regarding non-essential defects
Should a non-essential defect exist, the customer shall be entitled only to the right of an appropriate reduction of the purchase price excluding the right to cancel.
f) Damages for defects
Liability is not assumed for damage which may be based on the incorrect handling or use of the merchandise. Winter Trademark Management GmbH shall only provide damages for the goods’ defects in the event of intent or gross negligence. This exclusion shall not be applied to liability for damage to loss of life, bodily injury or damage to the health of a person. Regulations of the German Product Liability Law shall also be untouched by the exclusion from liability.
g) Warranty towards business owners
The following regulations apply towards business owners, apart from the statutory warranty regulations: in case of defect, Winter Trademark Management GmbH shall provide subsequent performance, based on their own choice in form of defect removal or renewed delivery. The risk of accidental loss or deterioration of the goods already transfers to the person responsible for the transport. Warranty claims shall be subject to statutory limitation within one year after the pre-determined risk transfer.
h) Business owners’ duty to objection
Business owners are obligated to immediately inform of obvious defects in writing: otherwise the validity of warranty claims shall be excluded. Timely mailing of the objection within the grace period shall suffice. The business owner shall produce proof in its entirety that all conditions for a claim have been met, especially the defect itself, the exact time of discovery of the defect and the timeliness of the objection regarding the defect.
§ 7 Liability
a) Liability Exemption Disclaimer
Winter Trademark Management GmbH, and its legal representatives and vicarious agents, shall only be liable for intent or gross negligence. In case of slight negligence, liability shall only cover the violation of essential contractual duties, consequently of such duties whose compliance is of special importance for the fulfillment of this contract’s purpose. Liability shall only be limited to the foreseeable, contract typical, immediate average damage. Towards business owners, Winter Trademark Management GmbH shall only be liable in case of a gross negligent violation against non-essential contractual duties in the amount of the foreseeable, contract typical, immediate average damage.
b) Retention of Liability
The aforementioned liability exemption disclaimer shall not concern liability for damage to loss of life, bodily injury or damage to the health of a person. Regulations of the German Product Liability Law shall also be untouched by the exclusion from liability
§ 8 Final clause
a) Place of Jurisdiction
It is agreed that the exclusive place of jurisdiction for all litigation proceedings based on this contract shall be the registered office of Winter Trademark Management GmbH in Frankfurt am Main, insofar as the customer is a merchant, legal entity under public law or special fund under public law, or insofar as the customer does not have a place of jurisdiction in the Federal Republic of Germany.
b) Governing Law
Unless mandatory legal provisions based on the customer’s right of domicile do not prevent it, it shall be agreed upon that German law shall be valid excluding the UN Convention on the International Sale of Goods.
c) Severability Clause
Should individual terms of this contract become invalid or ineffective, it shall not infringe on the validity of the remaining General Terms and Conditions.
Notes on conciliation procedures
You have the possibility to contact a consumer protection office. The consumer protection agency responsible for us is Allgemeine Verbraucherschlichtensstelle (Straßburger Straße 8, 77694 Kehl am Rhein, https://www.verbraucher-schlichter.de). We are, however, neither obliged nor willing to participate in an appropriate dispute settlement procedure.