General Terms and Conditions of StoreShip GmbH for the Use of StoreShip®
1. Area of validity
3. Services provided by storeship®, No remuneration for services
3.1. STORESHIP® is an internet platform which is aimed at USERS who would like to use the internet to look for and purchase or make use of certain goods and services. STORESHIP® offers these USERS the option of gathering information about goods and services offered by various manufacturers, retailers and distributors (referred to hereinafter individually or collectively as “MANUFACTURER(S)”) which the PROVIDER cooperates with in this respect. STORESHIP® also offers USERS the possibility of finding retailers (these retailers referred to hereinafter individually or collectively as “SELLERS“) from whom the required good or service can be purchased. This function is not available if the USER is forwarded directly to STORESHIP® from the home page of a SELLER. In this case the goods can only be purchased from this SELLER via STORESHIP®. On STORESHIP® there are two possibilities of concluding purchase and / or delivery contracts (such contracts referred to hereinafter collectively as “PURCHASE AGREEMENTS”) with the SELLER. One option is the possibility of making an online purchase (see 3.2) and the other option is the possibility of placing an order online for inspection and purchase in store (see 3.3).
3.3. In-store purchase: STORESHIP® also allows USERS to just take the initial steps towards concluding PURCHASE AGREEMENTS, with the actual PURCHASE AGREEMENT being concluded in the SELLER’S store. For this purpose, STORESHIP® offers USERS a selection of one or several SELLERS with whom a USER can at first place a non-binding order for the relevant goods and arrange to have them delivered for inspection to the store of the SELLER selected by the USER. Thereafter, the USER is free to decide at his own discretion after having inspected the relevant goods whether or not to purchase and acquire the said goods directly in the store of the SELLER. Should the USER decide against purchasing the ordered goods in the relevant store, no costs shall be incurred for the USER, and the USER shall be under no obligation to purchase or accept the goods or to pay the PROVIDER any charges for services rendered.
3.5. The number of SELLERS and the portfolio of goods and services offered on STORESHIP® by these SELLERS in the manner described in section 3.4 above is restricted. The PROVIDER can reduce or extend the spectrum of relevant SELLERS as well as their goods and services marketed and distributed via STORESHIP® at any time and at its own discretion. The USER is not entitled to any claim to the availability of certain goods and services in STORESHIP®.
3.6. The PROVIDER shall provide the services described above to the USER via STORESHIP® free of charge. Accordingly, the USER is not obliged to pay the PROVIDER any charges for using these services or for using STORESHIP® in general.
3.7. The PROVIDER expressly reserves the right to amend the technical and organisational framework of STORESHIP® at any time and at its own discretion.
4. Contractual relationships, No contract between PROVIDER and USER
4.1. STORESHIP® simply represents an internet platform which allows USERS to purchase certain goods and services offered via STORESHIP® by SELLERS either directly online from these SELLERS or in the SELLER’S store within the context of a purchase made in-store. Accordingly, with STORESHIP® the PROVIDER mediates between the USER and the relevant SELLER simply as a provider of technical services, and not in any way as a broker or intermediary.
4.2. The PROVIDER explicitly does not offer any goods or services for purchase via STORESHIP®.
4.3. If a USER initiates and/or concludes a PURCHASE AGREEMENT via STORESHIP®, the PROVIDER shall not become a party to these legal relationships and contracts. The relevant legal relationships and contracts are exclusively concluded between the USER and the pertinent SELLER without the PROVIDER being legally involved in any way, shape or form. Performance of the above-mentioned contracts and handling of any disruptions to services which may occur during performance of the contract also exclusively concerns the USER and the pertinent SELLER.
4.4. If a USER decides to simply initiate a PURCHASE AGREEMENT via STORESHIP® i.e. decides first of all to inspect a certain product in the SELLER’S retail outlet without being under any obligation to buy, no contract is concluded in this respect between the PROVIDER and the USER. In particular, the PROVIDER is under no obligation in this instance to deliver the relevant product to the relevant retail outlet for the USER within any particular period of time. Rather, STORESHIP® simply provides the necessary technical and organisational platform. The relevant SELLER is responsible for ensuring that the relevant goods are available.
4.5. Messages sent to the USER via STORESHIP® in connection with initiating or concluding a PURCHASE AGREEMENT are only sent for the purpose of informing the USER. Insofar as these messages contain legally relevant statements, they are considered as being made for and against those whomsoever it concerns. If a PURCHASE AGREEMENT is concluded between a USER and a SELLER within the framework of the use of STORESHIP®, only the USER and the SELLER are party to the contract.
5. Nature of the contract concluded online between the USER and a SELLER; USER’S duty to take due care and check all relevant aspects in this regard
5.1. By offering goods and services via STORESHIP®, the relevant SELLER is deemed to have made an undefined group of people a non-binding offer to conclude a contract concerning the purchase and acquisition of goods or use of services.
5.2. Any information passed on from STORESHIP® to the USER whilst initiating a PURCHASE AGREEMENT concerning whether a SELLER has the goods relevant to the USER in stock and in what quantity and/or whether the goods can be made available for inspection in the SELLER’S store (see section 3.3) is not binding, either for the PROVIDER or for the relevant SELLER.
5.3. The conditions for purchasing and acquiring the goods or using the services are governed in the first instance by the conditions cited by the SELLER in the offer it makes, provided these are legally permissible. In the second instance, these conditions are also governed by applicable law. The USER is obliged in his own interests and at his own risk to find out about the legal and commercial conditions entailed by a PURCHASE AGREEMENT before entering into such an agreement. In particular, the USER is obliged to find out the exact contents of any of the SELLER’S general terms and conditions, provided the relevant SELLER intends incorporating such conditions into the PURCHASE AGREEMENT.
5.4. The USER makes the SELLER a binding purchase offer by clicking the “buy now” button. The offer is accepted upon dispatch of the goods, any previous order confirmation only serves as information that the order has been received and does not constitute acceptance of the offer. Accordingly, a binding PURCHASE AGREEMENT is concluded between the USER and the SELLER upon the dispatch of the goods, without any legal participation on the part of the PROVIDER.
5.5. Each USER is responsible for the contents and legality of the contracts concluded between him and a SELLER via STORESHIP®.
6.2. No charge is incurred for the USER when setting up a user account. The USER is not entitled to demand that the PROVIDER set up a user account for him. The PROVIDER is entitled to refuse to set up a user account for a USER and is under no obligation to give the reason for this decision. A USER may only register several times for using STORESHIP® after first obtaining the explicit prior consent of the PROVIDER.
6.3. A user account can only be set up by entrepreneurs, legal entities under public law or special funds under public law within the meaning of §310 (1) German Civil Code as well as natural persons of age who are of full legal capacity.
6.4. A USER may only set up a user account in his own name. The customer account set up by a USER and/or any claims on the part of the USER arising therefrom may not be assigned to a third party.
6.5. The USER agrees to give all data requested when setting up a user account accurately and in full. The information the USER is expected to give is predominantly name, current address, company name including the legal form and the person authorised to represent the USER.
6.6. As and when any information given by the USER when setting up the user account changes, the USER is obligated to make the relevant changes to the applicable user account.
6.7. The USER shall determine a user name and a password for accessing STORESHIP® when setting up the user account. The user name and password (hereinafter “log-in credentials”) must not infringe any rights of third parties, in particular not the right of a third party to a name or designation and must be suitable for being used in conjunction with STORESHIP®.
6.8. The USER shall treat the log-in credentials or other access codes for using STORESHIP® or the customer account with the utmost confidentiality. The USER shall take appropriate measures to ensure that third parties cannot unlawfully access this data and these codes at his own expense. If the USER learns that his log-in credentials have been abused (see section 6.7), he is obliged to inform the PROVIDER immediately.
6.9. The USER shall be liable to the PROVIDER for all activities, declarations and actions submitted or carried out using his customer account. The above shall not apply if the USER has taken all necessary precautions and cannot be held responsible for his user account having been abused.
7. Obligations of the USER concerning the use of STORESHIP®
7.1. When using STORESHIP®, each USER shall be obliged to comply with laws and legislation, to act in keeping with honest practices and to strictly comply with or protect existing rights of third parties.
7.2. The USER is prohibited from taking measures or carrying out actions which are capable of jeopardizing the correct functioning of STORESHIP® or individual features thereof. In particular, the USER is prohibited from using or making use of mechanisms (of any shape or form), software or programmes or scripts in connection with using STORESHIP® which lead or could lead to the functioning of STORESHIP® being jeopardized as stated above.
7.3. The USER shall refrain from using STORESHIP® in any way capable of putting the STORESHIP® system under unreasonable or excessive strain. The USER shall also refrain from interfering in the structure and/or functioning of STORESHIP® in a disruptive manner or in any way capable of negatively influencing the functionality and/or security of STORESHIP® or its features, contents and services.
7.5. The USER is strictly prohibited from copying, circulating or using or reproducing in any other way the contents saved on STORESHIP® without first obtaining the prior explicit consent of the holder of the relevant rights. The USER is prohibited from taking any such measures and actions, in particular using automatic mechanisms, for example with the assistance of so-called webcrawlers.
7.6. Each USER is strictly prohibited from taking the use of STORESHIP® as an excuse for calling up data and information from the server of the PROVIDER without due authorisation, or for interfering with the PROVIDER’s server and /or programmes belonging to the PROVIDER which are operated on the platform.
8. Liability of PROVIDER, Restriction of liability
8.1. The PROVIDER does not accept, neither explicitly nor implicitly, any warranty, guarantee or liability for
statements and declarations made by a SELLER regarding the concluding of a PURCHASE AGREEMENT being accurate and complete,
the goods and services offered on STORESHIP®, in particular as regards their properties,
the actual and commercial ability of a SELLER to perform and execute the contracts concluded between himself and the USER via STORESHIP®,
the nature, scope and quality of goods and services or information offered by cooperation partners, in particular by SELLERS, which are referred to in STORESHIP® either directly or indirectly, e.g. via so-called “links”, and
the proper functioning and compatibility of STORESHIP®.
8.2. Any information which is given on STORESHIP® regarding goods and services from any particular SELLER does not constitute statements or information given by the PROVIDER. Rather, this is information passed on by the PROVIDER in its capacity as a messenger for the respective SELLER. The PROVIDER shall not as a rule check whether such information is indeed legitimate, correct and complete. Such information explicitly does not reflect the opinion of the PROVIDER. Accordingly, the PROVIDER shall not be liable vis-à-vis the USER for ensuring that such information is correct and complete.
8.4. The liability of the PROVIDER is limited to the amount of the foreseeable damage which could typically be incurred for use of this nature relating to the type of services provided, unless the PROVIDER, its legal representatives or vicarious agents have acted with intent or gross negligence.
8.5. The PROVIDER shall only be liable to provide compensation for indirect damage, in particular lost profits, additional expenditure or savings which have not been made, in the event that legal representatives or vicarious agents of the PROVIDER have acted with intent or gross negligence.
8.6. They shall also not apply to damage arising from harm to life, limb or health or in the event of mandatory statutory regulations to the contrary.
9. Obligation on the part of the USER to indemnify the PROVIDER
9.1. The USER undertakes to indemnify the PROVIDER from all claims brought by third parties – including other USERS – asserted by such parties against the PROVIDER on the basis of an infringement of their rights caused by the USE of STORESHIP® by the USER. The indemnity obligation shall not apply if and to the extent that the USER is not responsible for the infringement of rights. In the event that the indemnity obligation stipulated above applies, the USER shall also be responsible for bearing costs for appropriate legal defense.
9.2. In the event that a claim is brought against the PROVIDER within the meaning of the above provision, the USER undertakes to provide the PROVIDER immediately with all information and documentation required to carry out an appropriate investigation into the entitlement to the claim and for appropriate legal defence. The USER shall take care to ensure that such information is complete and accurate.
10. Copyright and other rights to STORESHIP®, decompilation, liability of USER in this respect
10.1. The USER is not entitled to rework, amend or redesign STORESHIP® in any way, or to reproduce, circulate or subject STORESHIP® to reverse engineering or decompilation.
10.2. The USER undertakes vis-à-vis the PROVIDER to refrain from anything which is capable of jeopardising the PROVIDER’s rights to STORESHIP® or one of the features of STORESHIP®.
10.3. The USER shall be liable to the PROVIDER if rights are infringed by third parties which the USER has allowed to access STORESHIP®. Such liability shall not apply if the USER can prove that he is not responsible for the violation.
10.5. The PROVIDER explicitly reserves the right to prevent the USER from using STORESHIP® with immediate effect in the event that the USER fails to comply with his duties pursuant to this section 10. The above shall not affect the PROVIDER’s right to assert claims for damages, unless the USER is not responsible for the damage caused.
11. Property rights and copyrights for the PROVIDER
Trademarks, company logos, other means of identification or proprietary notices, copyright notices or any other features serving to identify the PROVIDER or STORESHIP® may not be removed by the USER from STORESHIP® or altered in any way or be used by the USER without first obtaining the prior explicit consent of the PROVIDER.
12. Data protection
12.2. The PROVIDER undertakes in view of the personal data belonging to the USER cited in the provision above to take all necessary measures stipulated by the valid data protection regulations, in particular as stipulated in the Federal Data Protection Act (BDSG) and the Federal Telemedia Act (TMG). Furthermore, the PROVIDER guarantees that such data shall be treated confidentially in accordance with the Privacy Statement.
12.3. The PROVIDER shall ensure that personal data of the type mentioned above shall be treated confidentially and shall not be passed on to third parties without authorization.
12.4. Soweit der NUTZER über STORESHIP® den Abschluss von KAUFVERTRÄGEN mit VERKÄUFERN anbahnt oder vornimmt, werden die hierfür erforderlichen und vom ANBIETER unter STORESHIP® insoweit erhobenen, persönlichen Daten des NUTZERS an den jeweiligen VERKÄUFER übermittelt, in welche die maßgebliche Ware zur Vor-Ort-Ansicht verbracht werden soll. Vor diesem Hintergrund sollIf the USER initiates or concludes PURCHASE AGREEMENTS with SELLERS via STORESHIP®, the necessary personal data relating to the USER collected by the PROVIDER at STORESHIP® for this purpose shall be forwarded to the respective SELLER at which the relevant goods are to be provided for inspection in store. Bearing this in mind, the USER should find out before initiating or concluding a PURCHASE AGREEMENT of this nature to what extent this SELLER guarantees confidentiality and compliance with the pertinent statutory provisions governing data protection. The PROVIDER therefore recommends that the USER carefully checks the relevant Privacy Statement of the SELLER before initiating or concluding a PURCHASE AGREEMENT of this nature.
13. Applicable law
14. Place of Performance and Jurisdiction
14.2. The place of performance is Baiersdorf.
15. Saving clause