Conditions of Sale for Export Deliveries ViaBlue GmbH
1. Term of Validity
1.1. This Terms and Conditions Agreement ("TCA") sets forth the terms, conditions and guidelines for any deliveries and services ("Deliveries") by ViaBlue GmbH, Max Beckmann Str. 43, 76227 Karlsruhe, Germany ("ViaBlue GmbH"). Additional and/ or differing terms of the purchaser ("Purchaser") are only valid with prior written consent by ViaBlue GmbH.
1.2. The TCA constitutes a legally binding contract with those who pursue a commercial or self-employed activity (e.g. wholesalers, dealers).
ViaBlue and the ViaBlue GmbH logo are registered trademarks of ViaBlue GmbH. Other marks, graphics, typefaces, trade names and logos appearing on www.viablue.de (the "Site"), on its merchandise or marketing material are trademarks or trade dress of ViaBlue GmbH and all rights are reserved. Purchaser may not make any use of any ViaBlue trademarks, or any other trademarks or trade dress appearing on the Site, on its merchandise or marketing material without its express written permission. ViaBlue GmbH retains all ownership in and good will associated with such trademarks and trade dress.
3.1 ViaBlue GmbH and its suppliers retain all right, title and interest in and to all content (and all compilations thereof), including without limitation, any text, music, sound, photographs video, images, illustrations, icons, graphics, headers, typefaces, data, inventory information, databases or software, that appears on the Site or on ViaBlue GmbH's merchandise or marketing material (the "Content"). The Content is protected by German, U.S. and international copyright laws. The compilation of the Content and any related services including marketing material is the exclusive property of ViaBlue GmbH and protected by German, U.S. and international copyright laws. No right, title or interest to any of the Content is transferred to Purchaser by his use of the Site and any related services including marketing material.
3.2 Purchaser may access and view the Content solely for personal, noncommercial purposes. Purchaser may copy limited portions of the Content solely by page caching or printing and solely for personal, noncommercial use, provided that (i) Purchaser does not make such Content available to any third party and (ii) Purchaser does not remove any proprietary notice from such Content, or alter the Content in any way. Without prior written consent by ViaBlue GmbH, Purchaser may not: modify, delete, add to, or create derivative works of the Content. Without prior written consent by ViaBlue GmbH, Purchaser may not publish, distribute, transmit, broadcast or frame the Content in any manner; copy or post the Content for public display; collect, re-purpose or reuse any data or product listings contained in the Content; sell or attempt to sell the Content; exploit the Content for his own purposes; or make derivative use of the Site or its Content. In addition, Purchaser agrees not to rely on any Content created or posted by ViaBlue GmbH.
5. Amendments and Corrections to Content/ Product Conditions
ViaBlue GmbH and its affiliates attempt to be as accurate as possible. However, ViaBlue GmbH does not guarantee the accuracy, completeness or reliability of information appearing on the Site and in regard to any other related services, including marketing material. All of which may contain errors and omissions relating to product description, pricing and availability. ViaBlue GmbH reserves the right to correct or update errors or omissions and to change information at its discretion without prior notice. ViaBlue GmbH also reserves the right to cancel an order for a product in the event of an error or omission in the description of such product, including incorrect pricing information, whether due to a typographical error, an error in information received from its suppliers, or otherwise. By using the Site, or any related services, including marketing material, Purchaser agrees to hold ViaBlue GmbH harmless from any claims relating to errors or omission on the above. Purchaser's sole remedy is to return merchandise in unused condition.
6. Orders and Shipping
ViaBlue GmbH and its affiliates reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in ViaBlue GmbH's sole discretion.
6.2 Offers and Taxes
All prices are inclusive German value added tax ("VAT"), unless specifically stated otherwise. The amount of tax charged to an order will be calculated based on the shipment destination's state and local sales-tax laws if applicable. Deliveries within the Federal Republic of Germany will incur VAT at the applicable rate shall the products be for subsequent export. Shipments within the European Communion will not incur VAT provided that Purchaser provides ViaBlue GmbH with a valid EC VAT number. Shipments to any other country will not incur VAT.
The minimum order is EUR 500 (incl. VAT). Any quotations are non-binding. An obligation of ViaBlue GmbH solely arises by the receipt of an order confirmation in writing or by delivery of the merchandise. Only the information stated on the order confirmation shall be part of the agreed condition of the merchandise. Any special offers related are subject to the particular terms and conditions (including time limitations) of such offers.
The risk of loss and title for all items ordered passes to Purchaser when ViaBlue GmbH delivers the merchandise to the shipping carrier. The before mentioned also applies if shipment is without further cost to Purchaser. The amount of tax charged to an order will be calculated based on the shipment destination's state and local sales-tax laws if applicable. Shipment in parts is permissible.
In case of unforeseen circumstances and incidents occurred through no fault of ViaBlue GmbH, such being incidents which could not have been avoided by exercising the ordinary diligence of a businessman, e.g. strikes, war, fire, difficulties in shipment, material deficiencies, measures taken by authorities ("Force Majeure"), ViaBlue GmbH's obligation to deliver is suspended for the duration of the above. Delivery and estimated or agreed upon delivery shall further be subject to a timely delivery by its sub suppliers.
6.5 Billing and Payment Procedures
ViaBlue GmbH reserves the right to change billing and payment procedures at any time by posting the new procedures on the Site.
Payments are due in full with the receipt of an order confirmation and have to be made in advance by money order to: ViaBlue GmbH, Deutsche Bank, Karlsruhe/ Germany, account number 0238444, routing number 66070024, BIC/ SWIFT DEUTDEDB660, IBAN DE70660700240023844400. All bank charges and expenses are to be paid by Purchaser. We do not accept drafts and/or checks.
In case of late or non payment, all outstanding balances become due immediately. The same applies if any information provided by a credit institution or similar indicates doubts in the credit-worthiness of Purchaser.
The same applies if Purchaser defaults on payments of at least two invoices. In this case, ViaBlue GmbH is also entitled to grant a reasonable extension in which Purchaser chooses to either return service or provide a personal guarantee to ensure payment. If the extension is unsuccessful, ViaBlue GmbH may recede from the contract.
If any of the above applies or applied, ViaBlue GmbH is entitled to advance payments of Purchaser.
In case of late payments, ViaBlue GmbH is entitled to interest at the applicable rate on any outstanding amount according to German law. The applicable rate shall be the rate provided by the respective provisions under German law.
6.7 Return of Merchandise
Products of ViaBlue GMBH are backed with a 30 day return policy which starts from the time that the carrier records the package as being delivered, respectively the time delivery by regular mail can be expected under normal circumstances. ViaBlue GmbH reserves the right to suspend that policy for any customer, at any time, at the sole discretion by ViaBlue GmbH.
Products can only be returned with their original packaging and in their original state. Altered or in any way modified products, as well as damaged products that do not fall under the following paragraph ("Defects/ Damaged Goods") can not be returned. Products that are manufactured according to specific requirements provided by Purchaser can not be returned. Items on sale can not be returned. Missing parts can only be accounted for within 5 days upon receipt. This also applies to rechargeable batteries, batteries, lamp inserts, books, videos, CDs, data carriers, and software.
Purchaser agrees to cover all costs for the return of any merchandise, including shipping and handling costs. In case of a return, Purchaser is entitled to a store credit only, less a cost sharing of 10% of the product's net value. No refund will be given.
6.8 Purchaser Information
Purchaser agrees that all billing and registration information provided will be accurate and complete. Purchaser's provision of inaccurate or incomplete information constitutes a material breach of the TCA.
7. Defects/ Damaged Goods
7.1 Purchaser shall immediately and carefully inspect any delivered product. Visually noticeable defects or damages, as well as defects or damages that are easily recognizable (e. g. broken connectors) must be claimed within 10 working days upon delivery. All other defects/ damages must be claimed immediately after discovery and within 1 year upon delivery.
7.2 In case of defects/ damages under the aforementioned provisions, ViaBlue GmbH may choose to either repair the product or send a replacement. If expenses for either the repair or the replacement exceed reasonable costs, being more than 10% of the net purchase price , or if the respective product is no longer sold by ViaBlue GmbH, ViaBlue GmbH is entitled to terminate this agreement. In that case, Purchaser will be granted a refund. Purchaser's rights according to this paragraph are restricted to the damaged goods; all other items remain untouched and can only be returned under the aforementioned provisions.
8. Use of Site/ User Responsibilities
Purchaser is responsible for maintaining the confidentiality of his account password and for restricting access to his computer, and he agrees to accept responsibility for all activities that occur under Purchaser's account or password.
ViaBlue GmbH DISCLAIMS ALL LIABILITY ARISING FROM OR RELATED TO PURCHASERS FAILURE TO KEEP ACCOUNT NAMES AND PASSWORDS SECURE.
Purchaser agrees to use the Site and all related services only for lawful purposes and not to allow others to use his account for any unlawful purpose. Use of the Site in violation of any applicable law, regulation, ordinance, or other rule imposed by any governmental authority is prohibited. ViaBlue GmbH EXPRESSLY PROHIBITS ANY UNAUTHORIZED THIRD PARTY LINKING TO THE SITE including links to the home page or any other page on the viablue.de domain.
9. Promotional Messages/ Newsletters
ViaBlue GmbH and/or its affiliates, along with other third parties may, from time to time, send email messages to Purchaser containing advertisements and/or promotions. ViaBlue GmbH MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY SUCH EMAIL MESSAGES OR ANY GOODS OR SERVICES THAT MAY BE OBTAINED FROM SUCH THIRD PARTIES, AND PURCHASER AGREES THAT ViaBlue GmbH SHALL HAVE NO LIABILITY WITH RESPECT THERETO.
10. Other Businesses
ViaBlue GmbH is not responsible for examining or evaluating any of the businesses of parties other than ViaBlue GmbH or individuals who operate stores, provide services, or sell product lines related to ViaBlue GmbH. ViaBlue GmbH does not warrant the offerings of any such parties, the content of their Web sites and does not assume any responsibility or liability for actions, products, and content of all these and any other third parties.
Purchaser agrees to indemnify and hold ViaBlue GmbH and her subsidiaries, affiliates, partners, telecommunications providers, service providers, officers, employees and agents harmless from any claim or demand, including attorneys' fees, made by any third party due to or arising out of his use of the Site or any related services, any Contributed Content, his violation of the TCA, or his violation of any third-party rights, including without limitation, the infringement by Purchaser, or any other user of Purchaser's account, of any intellectual property rights, privacy rights, or other rights of any person or entity.
12. LIMITATION OF LIABILITY
IN NO EVENT WILL ViaBlue GmbH, ITS AFFILIATES, SUPPLIERS, SERVICE PROVIDERS, OR OTHER THIRD PARTIES AFFILIATED WITH ViaBlue GmbH BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXTRAORDINARY, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE OR INABILITY TO USE THE SITE OR RELATED SERVICES, THE RESULTS OF SUCH SERVICES, OR ANY INFORMATION CONTAINED ON THE SITE OR IN SUCH SERVICES, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ITS AGGREGATE LIABILITY AND THE AGGREGATE LIABILITY OF ANY OF ITS SUPPLIERS, SERVICE PROVIDERS, OR THIRD-PARTY AFFILIATES, ARISING FROM OR RELATING TO THIS TCA (REGARDLESS OF THE FORM OF ACTION OR CLAIM, E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, MALPRACTICE, FRAUD OR ANY OTHER LEGAL THEORY) IS LIMITED TO ONE-HUNDRED DOLLARS ($100). APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO PURCHASER.
13. DISCLAIMER OF WARRANTIES
THE SITE AND ALL RELATED SERVICES, INCLUDING MARKETING MATERIAL ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH PURCHASER. EXCEPT FOR THE EXPRESS WARRANTIES EXPLICITLY PROVIDED HEREIN, NEITHER ViaBlue GmbH NOR ITS PARTNERS, PROVIDERS, OR AFFILIATES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE, THE CONTENT, ANY INFORMATION MADE AVAILABLE BY OR THROUGH THE SITE AND ALL RELATED SERVICES, INCLUDING MARKETING MATERIAL, ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SITE OR THROUGH RELATED SERVICES, INCLUDING MARKETING MATERIAL, OR ANY TRANSACTIONS ENTERED INTO BY USE OF OR THROUGH THE SITE, ALL RELATED SERVICES, INCLUDING MARKETING MATERIAL. TO THE EXTENT PERMITTED BY LAW, ViaBlue GmbH AND ITS PARTNERS, PROVIDERS, AND AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND QUIET ENJOYMENT. NEITHER ViaBlue GmbH NOR ITS PARTNERS, PROVIDERS, OR AFFILIATES WARRANT THAT USE OF THE SITE OR ANY RELATED SERVICES WILL BE UNINTERRUPTED, AVAILABLE AT ANY TIME OR FROM ANY LOCATION, SECURE OR ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NEITHER ViaBlue GmbH NOR ITS PARTNERS, PROVIDERS OR AFFILIATES WARRANT THAT THE SITE OR ANY RELATED SERVICES, INCLUDING MARKETING MATERIAL, WILL MEET PURCHASER'S REQUIREMENTS OR THAT ANY DEFECTS WILL BE CORRECTED. FURTHERMORE, NEITHER ViaBlue GmbH NOR ITS PARTNERS, PROVIDERS, OR AFFILIATES MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE, ALL RELATED SERVICES, INCLUDING MARKETING MATERIAL OR AS TO THE ACCURACY, COMPLETENESS, RELIABILITY OR TIMELINESS OF ANY INFORMATION AVAILABLE ON OR THROUGH THE SITE, ALL RELATED SERVICES, INCLUDING MARKETING MATERIAL.
PURCHASER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS AT HIS OWN DISCRETION AND RISK AND THAT HE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO HIS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOADING OF SUCH MATERIAL AND/OR DATA.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PURCHASER FROM ViaBlue GmbH OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
14. Violation of TCA
At any time, if determined that Purchaser has abused or violated the letter or intent of any of these terms, conditions or guidelines, or any applicable law, ViaBlue GmbH reserves the right to terminate or suspend his access to the Site and all related services, initiate an investigation, remove materials from its servers, issue a warning, block any prohibited activity, and take any other responsive action. Users who violate the TCA may additionally incur criminal and/or civil liability.
ViaBlue GmbH may change this TCA at any time by posting the modified TCA on the Site, or by otherwise notifying Purchaser of such change. Use of the Site after such changes are posted constitutes acceptance of all changes.
the TCA shall be governed by and construed in accordance with the laws Germany as it is applied to contracts entered into by residents of Germany. Purchaser also consents to the exclusive jurisdiction of and waive all objections to venue in Germany, and to the exercise of personal jurisdiction of the courts therein. If any provision(s) of the TCA is found to be in contradiction to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties, with the other provisions remaining in full force and effect. ViaBlue GmbH's failure to exercise or enforce any right or provision of the TCA shall not constitute a waiver of such right or provision unless acknowledged and agreed upon by ViaBlue GmbH in writing. Purchaser and ViaBlue GmbH agree that any cause of action arising out of or related to this TCA or the Site must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. The section titles in the TCA are solely used for the convenience of the parties and have no legal or contractual significance. The TCA constitute the entire agreement between Purchaser and ViaBlue GmbH with respect to the subject matter herein and supersede any and all prior or contemporaneous oral or written agreements. Purchaser may not assign this agreement to any other party.