Jolesch Gastronomie GmbH – General Terms and Conditions for Orders via the Online Shop www.jolesch.de
Scope
The following General Terms and Conditions apply exclusively to orders placed via our online shop www.jolesch.de. Deviating or supplementary terms and conditions of the customer shall only be recognised by us if and to the extent that we have expressly agreed to their validity in writing. The unconditional deliveries or other silence regarding deviating terms and conditions of sale of the customer shall not be deemed to be an acknowledgement of these terms and conditions by us, even if we are aware of them.
The product range in our online shop is aimed equally at consumers and entrepreneurs, but only at end customers. Orders placed via our online shop will only be delivered within Germany.
For the purposes of these General Terms and Conditions, (i) a consumer is any natural person who enters into the contract for a purpose that can be attributed neither to his or her commercial nor to his or her independent professional activity (Section 13 of the German Civil Code – Bürgerliches Gesetzbuch – BGB) and (ii) an “entrepreneur” is a natural or legal person or a partnership with legal capacity who, when entering into the contract, acts in the exercise of his or her commercial or independent professional activity (Section 14 (1) BGB).
Our sales personnel are not authorised to make verbal agreements with the customer in connection with the contract that deviate from these General Terms and Conditions.
Contracts with the customer shall be concluded exclusively in German.
Conclusion of contract
Our offers (products and prices) in the online shop are subject to change and non-binding.
The customer can select goods from our range, in particular wines and cakes, and collect them in a so-called shopping basket by clicking on the button “add to shopping basket”. By clicking on the “Send order” button, the customer submits a binding application to purchase the goods in the shopping basket. Before sending the order, the customer can change and view the data at any time. However, the application can only be submitted and transmitted if the customer has accepted these contractual terms and conditions by clicking on the button “Accept GTC” and has thereby included them in his application.
We will then send the customer an automatic confirmation of receipt by e-mail in which the customer’s order is listed again. This order confirmation does not constitute an acceptance of the customer’s order, but is only intended to inform him that we have received his order. A purchase contract is only concluded when we dispatch the ordered goods to the customer and confirm the dispatch to the customer with a second e-mail (dispatch confirmation). No purchase contract is concluded for goods from one and the same order that are not listed in the shipping confirmation.
We only conclude contracts for alcoholic beverages (e.g. wine) with persons over the age of 18.
Availability of goods
If, at the time of the customer’s order, the goods selected by the customer are permanently unavailable, we shall refrain from issuing a declaration of acceptance. In this case, a contract is not concluded.
If the goods designated by the customer in the order are only temporarily unavailable, we will inform the customer immediately. In the event of a delay in delivery of more than two weeks, we shall call the customer and inform him of this. We will offer the customer an alternative product. The customer can decide whether to accept this instead of his order. In this case, the customer shall confirm this to us briefly by e-mail to the e-mail address mail@jolesch.de. If the customer does not agree to a replacement delivery, he has the right to withdraw from his order. Any payments already made by the customer will be refunded immediately.
In the case of combined orders (deliverable and temporarily non-deliverable goods), the customer decides whether he/she wishes a separate or complete delivery. We will contact the customer at the e-mail address provided for this purpose.
Shipment of goods
We will dispatch the goods to the customer no later than the dispatch date (the date on which the goods are handed over by us to the shipping company) shown on the relevant offer page when the order is placed, although this is only approximate and may therefore be exceeded by up to two working days. If no despatch date is specified, goods marked as “in stock” will be despatched no later than the second working day (subject to any sale permitted under paragraph 2) and all other goods will be despatched within one week. These periods, which are decisive for the determination of the dispatch date, shall in each case commence (a) if delivery against advance payment has been agreed, on the day of receipt of the full purchase price (including VAT and shipping costs) or (b) if payment by cash on delivery or on invoice has been agreed, on the day of the conclusion of the purchase contract.
If the goods are marked as “in stock” on the offer page when the offer is submitted by the customer and delivery is made against advance payment, we will keep the goods in stock within a period of five working days after receipt of the order; if we do not receive payment within this period, we are entitled to sell off the goods at any time. In this case, dispatch within the aforementioned period of five working days will only take place while stocks last.
In the event that our supplier does not deliver goods to us on time which were marked as “not in stock” on the offer page in the online shop when the customer placed the order or which were sold out in accordance with 4.2, the period otherwise applicable in accordance with 4.1 and 4.2 shall be extended until delivery by our supplier, but by a maximum period of three weeks. The prerequisite for this extension of the deadline is that we immediately reorder the goods and are not responsible for the delay in delivery by our supplier.
Unless expressly agreed otherwise, we shall determine the appropriate mode of dispatch and the transport company at our reasonable discretion. However, the customer shall in particular have the option to collect the products from the restaurant Jolesch Muskauer Strasse 1, 10997 Berlin at his own expense.
We only owe the timely, proper delivery of the goods to the transport company and are not responsible for delays caused by the transport company. A shipping time stated in the online shop is therefore non-binding. The shipping risk (accidental loss, accidental damage or accidental loss of the delivered goods) is borne by us if the customer is a consumer.
Wine deliveries are made from an order quantity of three bottles.
Retention of title
Until full payment of the purchase price (including VAT and shipping costs), the delivered goods remain our property.
The customer is not entitled to resell the goods delivered by us which are subject to retention of title without our prior written consent. In the event of any resale, the customer already now assigns the claims from the resale up to the amount of the purchase price to be paid to us. We hereby authorise the customer to collect the claims thus assigned in the ordinary course of business, whereby we may revoke this authorisation at any time in the event of default in payment on the part of the customer.
In the event of conduct by the buyer in breach of the contract, in particular in the event of default in payment, we shall be entitled to demand the return of the goods subject to retention of title, provided that we have withdrawn from the contract.
Prices and shipping costs
Our prices are inclusive of the applicable statutory value added tax, but not shipping costs.
The corresponding shipping costs are indicated to the customer in the order form and are to be borne by the customer unless the customer makes use of his right of withdrawal. From an order value of EUR 150, we deliver free of shipping costs.
In the event of a revocation, the customer shall bear the regular costs of the return shipment if the delivered goods correspond to the ordered goods and if the price of the goods to be returned does not exceed an amount of EUR 40.00 or if, in the event of a higher price of the goods, the customer has not yet provided the consideration or a contractually agreed partial payment at the time of the revocation. Otherwise, the supplier shall bear the costs of the return shipment.
Payment modalities
The customer can make payment by Pay Pal, Visa and Mastercard; EC direct debit, credit card, cash on delivery or on account. A fee of EUR 1 will be charged for credit card use. Cash on delivery fee
Payment of the purchase price is due immediately upon conclusion of the contract. If the due date for payment is determined according to the calendar, the customer shall already be in default by missing the deadline. In this case, he shall pay us interest on arrears at a rate of 5 percentage points above the base interest rate specified by the European Central Bank.
The customer’s obligation to pay interest on arrears does not preclude our assertion of further claims for damages caused by default.
Offsetting with counterclaims of the customer or retention due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established and it is not a matter of warranty claims of the customer (in particular claims for defects).
Warranty
The statutory provisions shall apply to the customer’s rights in the event of material defects and defects of title of the goods (including wrong delivery and short delivery) and in the event of other breaches of duty, unless otherwise stipulated below.
The warranty period is two years from delivery if the customer is a consumer, otherwise twelve months from delivery.
Liability
Claims of the customer for damages are excluded. Excluded from this are claims for damages by the customer arising from injury to life, limb or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by us, our legal representatives or vicarious agents. Material contractual obligations are those whose fulfilment is necessary to achieve the objective of the contract. Indirect damage and consequential damage which are the result of defects in the delivery item are also only eligible for compensation insofar as such damage is typically to be expected when the delivery item is used as intended.
In the event of a breach of material contractual obligations, we shall only be liable for the foreseeable damage typical for the contract if such damage was caused by simple negligence, unless the customer’s claims for damages are based on injury to life, body or health.
The restrictions of clauses 9.1. and 9.2. shall also apply in favour of our legal representatives and vicarious agents if claims are asserted directly against them.
The limitations of liability resulting from clauses 9.1 and 9.2 shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims of the buyer under the Product Liability Act.
Right of withdrawalThe customer has the right to withdraw from the contract within 14 days without giving reasons in writing (e.g. letter, fax, e-mail) or – if the goods are delivered to the customer before the end of this period – by returning the goods. The period begins after receipt of this instruction in text form, but not before receipt of the goods by the recipient (in the case of recurring deliveries of similar goods, not before receipt of the first partial delivery) and also not before fulfilment of our duty to inform pursuant to Art. 246 § 2 in conjunction with § 1 para. 1 and 2 EGBGB. The timely dispatch of the revocation or the goods shall be sufficient to comply with the revocation period. The revocation is to be sent to:Jolesch Gastronomie GmbHMuskauer Strasse 1 10997 Berlin Fax +49 (030) 611 11 65E-mail address mail@jolesch.deWiderrufsfolgenIm In the event of an effective revocation, the services received by both parties shall be returned and any benefits derived (e.g. interest) shall be surrendered. If the customer is unable to return the goods received in whole or in part, or only in a deteriorated condition, the customer must compensate us for the loss of value. The customer must only pay compensation for the deterioration of the goods and for the use made of them insofar as the use or deterioration is due to handling of the goods which goes beyond the examination of the characteristics and the mode of operation. By “testing the properties and functionality” we mean testing and trying out the respective goods, as is possible and customary in a shop, for example. Goods that can be sent by parcel post are to be returned at our risk. The customer shall bear the costs of the return shipment if the delivered goods correspond to the ordered goods and if the price of the goods to be returned does not exceed an amount of EUR 40.00 or if, in the case of a higher price of the goods, the customer has not yet provided the consideration or a contractually agreed partial payment at the time of the revocation. Otherwise, the return shipment is free of charge for the customer. Items that cannot be sent by parcel post will be collected from the customer. Obligations to refund payments must be fulfilled within 30 days. For the customer, the period begins with the dispatch of your revocation declaration or the item, for us with its receipt.end of the revocation instruction
Other informationPursuant to § 312d para. 4 no. 1 BGB (German Civil Code), there is no right of revocation for goods that are made to customer specifications or clearly tailored to personal needs or that are not suitable for return due to their nature (e.g. an opened wine bottle) or can spoil quickly (e.g. cakes) or whose expiry date has passed.
Data protection
We may process and store the data relating to the respective purchase contracts insofar as this is necessary for the execution and processing of the purchase contract and for as long as we are obliged to store this data due to statutory provisions.
We are not permitted to collect, transmit or otherwise process personal data of the customer for purposes other than those specified in this clause 10.
Final provisions
The law of the Federal Republic of Germany shall apply to contracts between the supplier and the customers to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from contractual relationships between the customer and the provider shall be the registered office of the provider.
The place of performance for payments by the customer is our registered office.
The contract shall remain binding in its remaining parts even if individual points are legally invalid. The invalid points shall be replaced by the statutory provisions, if any.
Payment methods
Purchase on accountWith purchase on account, the invoice amount is due for payment to our external partner Billpay GmbH on the calendar day specified in the invoice (20 or 30 calendar days after the invoice date). The payment method purchase on account does not exist for all offers and requires, among other things, a successful credit check by Billpay GmbH. If the customer is permitted to purchase on account for certain offers after a credit check, the payment is processed in cooperation with Billpay GmbH, to whom we assign our payment claim. In this case, the customer can only make payment to Billpay GmbH with debt-discharging effect. We shall remain responsible for general customer enquiries (e.g. about the goods, delivery time, dispatch), returns, complaints, revocation declarations and deliveries or credit notes even if the purchase is made on account via Billpay. The General Terms and Conditions of Billpay GmbH apply.
Purchase by direct debit; direct debit authorisation; processing fee for returned direct debits
When purchasing by direct debit, the payment amount is due immediately for payment by direct debit by our external partner Billpay GmbH from the current account specified in the ordering process at the credit institution specified there (the current account). You hereby revocably authorise Billpay GmbH to collect the payments to be made by you through the purchase by direct debit to the debit of the current account by direct debit. If the current account does not have the required cover, the account-holding credit institution shall not be obliged to honour the payment. Partial redemptions will not be made by direct debit.
The payment method purchase by direct debit does not exist for all offers and requires, among other things, a successful credit check by Billpay GmbH and a current account maintained in Germany. If the customer is permitted to purchase by direct debit for certain offers after a credit check, the payment is processed in cooperation with Billpay GmbH, to whom we assign our payment claim. In this case, the customer can only make payment to Billpay GmbH with debt-discharging effect. We shall remain responsible for general customer enquiries (e.g. about the goods, delivery time, dispatch), returns, complaints, revocation declarations and deliveries or credit notes even if the purchase is made by direct debit via Billpay. The General Terms and Conditions of Billpay GmbH apply.
By specifying the current account, you confirm that you are entitled to direct debit via the corresponding current account and will ensure the necessary cover. Return debit notes are associated with a high level of effort and costs for us and Billpay GmbH. In the event of a return debit note (due to lack of required coverage of the current account, due to expiry of the current account or unjustified objection by the account holder), you authorise Billpay to submit the debit note for the respective due payment obligation a second time. In such a case, you are obliged to pay a processing fee of EUR 12.00 per return debit note. We reserve the right to make further claims. You will be given the opportunity to prove that lower costs or no costs at all were incurred as a result of the return debit note. In view of the effort and costs involved in return direct debits and in order to avoid the processing fee, we ask you not to object to the direct debit in the event of a revocation or withdrawal from the purchase contract, a return or a complaint. In such a case, the reversal of the payment will be effected by re-transfer of the corresponding amount or by credit note after consultation with us.
Retention of title; set-off; right of retention
In the case of consumers, we retain ownership of the purchased item until the invoice amount has been paid in full. If you are an entrepreneur exercising your commercial or independent professional activity, a legal entity under public law or a special fund under public law, we reserve ownership of the purchased item until all outstanding claims from the business relationship with the purchaser have been settled. The corresponding security rights are transferable to third parties.
You shall only have a right of set-off if your counterclaims have been legally established or are undisputed or acknowledged by us. Furthermore, you only have a right of retention if and insofar as your counterclaim is based on the same contractual relationship.
If the customer is in default with any payment obligations towards us, all existing claims shall become due immediately.
Identity and credit check when selecting Billpay payment methods
If you choose the payment methods purchase on account or purchase by direct debit via our partner Billpay GmbH, you will be asked in the ordering process to consent to the transmission of the data required for the processing of the payment and an identity and credit check to Billpay. If you give your consent, your data (first name and surname, street, house number, postcode, town, date of birth, telephone number and, in the case of purchase by direct debit, the specified account details) and the data relating to your order will be transmitted to Billpay.
For the purpose of its own identity and creditworthiness check, Billpay or partner companies commissioned by Billpay transmit data to credit agencies (credit agencies) and receive information from them and, if necessary, creditworthiness information on the basis of mathematical-statistical procedures. Detailed information on this and on the credit agencies used can be found in the data protection provisions of Billpay GmbH.Furthermore, Billpay may use third-party tools to detect and prevent fraud. Data obtained with these tools may be stored in encrypted form with third parties so that they can only be read by Billpay. Only if you select a payment method from our cooperation partner Billpay will this data be used, otherwise the data will automatically expire after 30 minutes.
