General Terms and Conditions of Business
Section 1 – Basic provisions
(1) The following Terms and Conditions of Business shall apply for all contracts that you conclude with us as Provider (Lemberg Canada ) on the www.lemberg-canada.com website.
Unless otherwise agreed, the inclusion of any own terms and conditions that may be applied by you is hereby rejected.
(2) A Consumer within the meaning of the following provisions is any natural person who concludes a legal transaction for a purpose that can mainly be attributed to neither their commercial nor their professional freelance activities. An Entrepreneur is any natural or legal person, or company with legal capacity, who is performing a commercial or professional freelance activity when entering into the legal transaction.
Section 2 – Formation of the contract
(1) Subject of the contract is the sale of goods.
(2) Uploading the respective product on our website constitutes the submission of a binding offer to conclude a purchase contract under the terms stipulated in the article description.
(3) The purchase contract is formed via the online shopping basket system as follows:
The goods intended for purchase are placed in the “shopping basket”. You can access the “shopping basket” and make changes at any time by clicking on the corresponding button on the navigation bar.
After calling up the “checkout” page and entering your personal details and terms of payment and delivery, all final order details will be displayed again on the order summary page.
Where you use an instant payment system (e.g. PayPal/credit card, etc.) as your method of payment, you will either be directed to the order summary page on our online shop or you will first be forwarded to the website of the provider of the instant payment system. Where you are forwarded to the respective instant payment system, select or enter your details there accordingly. You will then be returned to the order summary page of our online shop. Before submitting your order, you have the opportunity to recheck all of the details, make changes (you can also use the Internet browser’s “Back” button for this) and/or abandon the purchase. By submitting the order with a click on the “buy now” button, you declare your acceptance of the offer with legally binding effect, upon which the purchase contract comes into existence.
(4) Requests made by you for the submission of an offer are non-binding for you. We shall submit a binding offer for any such request in text form (e.g. by e-mail) which you may accept within five days.
(5) The order shall be handled and all necessary information in connection with the conclusion of the contract forwarded, partly automated, by e-mail. You should therefore ensure that the e-mail address we have on file for you is correct, and that receipt of the e-mails is technically viable and, in particular, not blocked by a SPAM filter.
Section 3 – Right of retention, retention of title
(1) You may exercise a right of retention on receivables from the same contractual relationship only.
(2) The goods shall remain our property until such time as payment has been made in full.
(3) If you are an Entrepreneur, the following shall apply additionally:
a) We shall retain ownership of the goods until all receivables from the current business relationship have been settled in full. It is not permitted to pledge retained goods or transfer them by way of security prior to the transfer of ownership of said goods.
b) You may resell the goods in the regular course of business. In this case, you shall assign to us at this stage all receivables in the amount of the invoice total accrued from the resale; we hereby accept the assignment. You shall still be authorised to collect payment. Should you fail to comply with your payment obligations, we shall reserve the right to collect payment ourselves.
c) In cases where the retained goods are combined and commingled, we shall acquire co-ownership of the new item in the proportion of the invoice value of the retained goods to the other processed objects at the time of processing.
d) We shall undertake, at your request, to release securities to which we are entitled, insofar as the realisable value of our securities exceeds the payment to be secured by more than 10%. The decision on which securities to release shall rest with us.
Section 4 – Warranty
(1) The statutory warranties for defects shall apply.
(2) If you are an Entrepreneur, the following shall apply by way of derogation from (1) above:
a) Our own specifications and the manufacturer’s product description only shall be deemed to have been agreed with regard to the condition of the goods; not, however, any other advertising, public promotion or statements made by the manufacturer.
b) You shall be obliged to inspect the goods for discrepancies in quality and amount without delay and with the required diligence, and to notify us in writing of any apparent defects within seven days of receipt of the goods; the timely dispatch of such notification shall suffice in order to comply with this deadline. This deadline shall also apply for concealed defects detected at a later stage from the time of their discovery. Any assertion of warranty claims shall be excluded if the duty to inspect goods and to give notice of defects is breached.
c) In case of defects, we shall guarantee to rectify said defect (subsequent improvement) or provide a replacement delivery, at our own discretion. Should the attempt to rectify the defect fail, you may, at your discretion, request a price reduction or withdraw from the contract. Rectification shall be deemed to have failed after the second unsuccessful attempt unless the nature of the object, the defect or other circumstances, in particular, lead to a different conclusion. In the case of subsequent improvement, we shall not be responsible for the higher costs incurred by the shipment of goods to a location other than the place of fulfilment, insofar as said shipment is not commensurate with the intended use of the goods.
d) The warranty period is one year from delivery of the goods. The shortened warranty period shall not apply for damages culpably attributable to us as a result of injury to life, body or health, and for damages due to gross negligence or malicious intent and/or deceit, nor for recourse claims in accordance with Sections 478 and 479 of the Civil Code.
Section 5 – Liability
(1) We shall be liable without limitation for damages as a result of injury to life, body or health. We shall further be liable without limitation in all cases of intent and gross negligence, for fraudulent concealment of a defect, for the assumption of warranty for the condition of the purchase item and in all other cases governed by law.
(2) Liability for defects within the scope of the statutory warranty regulations shall be determined by the relevant provision in our Customer Information (Part II) and the General Terms and Conditions of Business (Part I).
(3) Insofar as material contractual obligations are affected, our liability in cases of slight negligence shall be limited to the foreseeable damage that is typical for this type of contract. Material contractual obligations are material obligations arising from the nature of the contract whose infringement would jeopardise the achievement of the purpose of the contract, as well as obligations, which the contract imposes on us in accordance with its content in order to achieve the purpose of the contract, the fulfilment of which makes the due execution of the contract at all possible and upon compliance with which the customer may regularly rely.
(4) In the case of an infringement of immaterial contractual obligations, liability shall be excluded in cases of slightly negligent breaches of duty.
(5) We can offer no guarantee, on the basis of currently available technology, that data communication on the Internet will be error-free and/or available at all times. In this respect, we shall not be liable either for the continuous or uninterrupted availability of the website and the service offered there.
Section 6 – Choice of law, place of fulfilment, place of jurisdiction
(1) Canada law shall apply. For Consumers, this choice of law shall apply only to the extent that the Consumer is not deprived of the protection granted by the mandatory regulations of the country in which the Consumer has his habitual place of residence (favourability principle).
(2) Place of fulfilment for all performances from the existing business relationships with us and place of jurisdiction shall be our registered place of business insofar as you are not a Consumer, but a merchant, a legal entity under public law or a special fund under public law. The same shall apply if you have no general place of jurisdiction in Canada, or your domicile or usual place of residence is unknown at the time the action is brought. The authorisation to appeal to a court at another place of jurisdiction shall remain unaffected hereby.
(3) The provisions of the UN Convention on Contracts for the International Sale of Goods shall explicitly not apply.