General Terms and Conditions
of CLEW GmbH, represented by the managing director Johannes Weckerle, Gollierstraße 70, 80339 Munich, registration office Munich, HRB 247354 (German Commercial Register Branch B), VAT registration number: DE323058002 (hereinafter referred to as "CLEW").
- Subject of the contract, Scope of terms and conditions
1.1 CLEW offers its customers specially developed innovative snowboard bindings, snowboards and goods for resale as well as snowboard fashion (e.g. clothes, boots, etc.).
1.2 These General Terms and Conditions (hereinafter referred to as “GTC”) shall apply to all declarations of intent, contracts and contractual or quasi-contractual actions by CLEW with its customers (hereinafter referred to as “customer”).
1.3 If the customer is an entrepreneur (see also section 2.2), these GTC shall also apply to future legal transactions of the parties from the first effective inclusion. CLEW reserves the right to amend these Terms and Conditions in accordance with section 15 of these GTC.
CLEW expressly contradicts counter-confirmations by the customer as an entrepreneur (see section 2.2) with reference to its own General Terms and Conditions and/or General Terms and Conditions of purchase; they will not become part of this Agreement unless they are expressly confirmed by CLEW.
- Definition of terms
2.1 A “consumer” within the meaning of these GTC is any natural person who concludes a legal transaction with CLEW for purposes that can be attributed predominantly neither to his commercial nor to his independent professional activity (see §13 BGB, German Civil Code).
2.2 A “entrepreneur” within the meaning of these GTC is any customer who, when concluding the contract with CLEW, is acting in the exercise of his commercial or independent professional activity (see § 14 (1) BGB, German Civil Code).
- Conclusion of contract, Contract language, Contract text
3.1 The presentation of products in catalogs or on websites shall not be legally binding offer. By clicking the “Buy now” respectively “Buy it” button, the customer makes a binding offer to conclude a purchase contract. Subject to the right to reject a customer without giving reasons, the contract is concluded by a corresponding confirmation by CLEW. Contract confirmation or rejection of the contract must be made within five days after the receipt of the order at the latest. Sending the ordered goods and confirming the shipment to the customer shall be equivalent to an express declaration of acceptance by CLEW; this does not apply if the customer has chosen the payment method “advance payment”. In the event of advance payment, the declaration of acceptance by CLEW is already made order confirmation and request for payment by e-mail. In all other cases in which the customer makes a payment during the ordering process, the binding acceptance of the purchase contract by CLEW is already included when approving the payment process or when accepting the purchase price.
3.2 Contracts are generally concluded in German. Exceptions are contracts with an entrepreneur in international legal transactions, which may be written bilingually in German and English or exclusively in English. In the case of a bilingual contract document, the German version takes precedence in the event of doubts of interpretation, unless expressly agreed otherwise
3.3 For online orders, the customer will receive an order confirmation after placing the order, the invoice and these General Terms and Conditions will be sent by email. In addition, CLEW does not store any separate contract text that could be accessed via the Internet. Before placing a binding order, the customer can return to previously visited pages by clicking on the "Back" button provided in the browser and, if necessary, correct type errors or cancel the order process.
3.4. As customers, consumers generally have a statutory right of withdrawal when concluding a distance selling transaction. Details of the right of withdrawal, the consequences of withdrawal, and a sample withdrawal form that complies with the legal requirements are available at www.clew-snowboarding.com under "Right of withdrawal".
- Shipping and delivery
4.1 Unless otherwise agreed, the delivery of the goods is limited to the European Union. Unless otherwise agreed, CLEW will ship the ordered goods to the specified delivery address.
4.2 CLEW ships an order consisting of several individual products as one package. In the event of partial shipment at the special request of the customer, the shipping costs as defined in section 5 shall be charged for each partial shipment.
4.3 CLEW participates in a disposal system within the meaning of Section 6 (3) of the German Packaging Ordinance to ensure the nationwide return of the sales packaging. The customer as a consumer (see section 2.1) may therefore return the sales packaging to any designated collection point of the disposal system.
- Pricing, Shipping costs, Payment methods, Installment purchase
5.1 Unless otherwise agreed, the prices at the time of the order apply, which are the final prices excluding packaging and shipping costs. If the delivery is made as a cash on delivery shipment based on an individual agreement with the customer, the customer shall also bear the cash on delivery and money transfer fees for each individual cash on delivery shipment, which are shown separately when the order is placed. When commissioning a delivery service to transport the ordered goods to countries outside the EU, additional fees and duties may apply, which the customer must also bear. If the customer is an entrepreneur (see section 2.2), the customer also bears any costs of shipping insurance. All current prices, costs, and fees as well as the GTC are available in their latest version at www.clew-snowboarding.com under "GTC".
5.2 In principal, the customer can choose between different payment methods, provided that several payment methods (depending on the order total, the delivery method, the shipping destination and the settings) are offered (e.g., advance payment, purchase on account). However, there is no right to choose a specific payment method. Unless otherwise agreed, payment is made in advance. If payment is made by credit card, payment will be only made by CLEW when the order is placed. Unless advance payment has been agreed, the purchase price is due for payment 14 days after receipt of the invoice by the customer. If the customer is an entrepreneur (see section 2.2), payments shall be made immediately without deduction.
5.3 CLEW reserves the right to offer the customer as a consumer (see section 2.1) payment by invoice or installment purchase in cooperation with Klarna Bank AB (publ.), Sveavägen 46, 111 34 Stockholm, Sweden. However, the customer has no right to this. In these cases, the customer must make payments to Klarna. The payment period for payment by invoice is 14 days. In addition to these GTC, the payment terms of Klarna Bank AB apply, which customer can access at https://cdn.klarna.com/1.0/shared/content/legal/terms/0/en_gb/pay_after_delivery/.
In the case of installment purchase (only available in Germany) using Klarna’s financing service the customer can pay the purchase flexibly in monthly installments of at least 1/24 of the total amount (but at least € 6.95) or under the other conditions otherwise specified in the "Checkout" of Klarna. The general terms and conditions of Klarna's installment purchase also apply, which the customer can access at https://cdn.klarna.com/1.0/shared/content/legal/terms/0/en_gb/slice_it_card/.
Klarna's Terms and Conditions and Klarna's European Standard Consumer Credit Information, which the customer can access at https://cdn.klarna.com/1.0/shared/content/legal/terms/Klarna/en_gb/checkout/.
5.4 If payment on account is agreed with the customer, the customer is already in arrears, regardless of the provision in clause 5.2, without the need for a reminder, if payment is not received by CLEW within the payment period specified separately in the invoice.
In the event of late payment or deferral, interest will be charged at a rate of 5 percentage points above the respective base interest rate. The customer is at liberty to prove that CLEW has suffered no or less than the above-mentioned interest loss.
If the customer is an entrepreneur (see section 2.2), the default interest shall be 9 percentage points above the respective base interest rate. The right to claim the fixed rate according to section 288 (5) of the German Civil Code (BGB) for entrepreneurs (see section 2.2) as well as any further damages shall remain unaffected. The fixed rate in accordance with section 288 (5) BGB is to be offset against the claim for damages.
5.5 In the event of default in payment and/or significant deterioration of the customer's financial circumstances as an entrepreneur (see section 2.2), CLEW may be entitled to demand immediate payment of outstanding debts and, at its own discretion, demand either payment upon delivery or advance payment for deliveries and services not yet performed. CLEW assumes a deterioration of the financial circumstances upon receipt of unsatisfactory credit information or at least two unsuccessful reminders.
5.6 CLEW is entitled to initially offset payments against older outstanding debts of the customer as an entrepreneur (see section 2.2) and will inform the customer about the type of offsetting made. If costs and interest have already been incurred, CLEW is entitled to offset the payment first against the costs, then against the interest and finally against the principal claim.
- Terms of delivery
6.1 Delivery times depend on the product and are displayed on the website. Depending on the selected shipping method, delivery will then be made within the usual shipping time from Germany. Unless otherwise stated, CLEW will deliver the ordered goods within 30 days after conclusion of the contract at the latest, in case of advance payment within 30 days after receipt of payment.
6.2 If there is a change in the expected delivery or dispatch day after placing the order by the customer, CLEW will inform the customer by e-mail. If the customer is a consumer (see section 2.1), he shall then have the right to withdraw from his order or to make changes free of charge at any time prior to the availability of the goods or their delivery, unless otherwise expressly agreed between CLEW and the customer. The statutory rights due to default shall remain unaffected by this.
6.3 If the customer is an entrepreneur (see section 2.2), he shall set CLEW a reasonable grace period if the availability or delivery deadline is exceeded.
- Failure to deliver by upstream supplier
7.1 CLEW does not take any supply risk. If the goods are not or temporarily not available despite prior conclusion of a corresponding purchase contract by CLEW, CLEW shall inform the customer immediately after the order has been placed and at regular intervals. CLEW is released from its obligation to perform until it is supplied by the upstream supplier and may withdraw from the contract in the event of non-availability. This shall not apply if CLEW is responsible for the failure to deliver by the upstream supplier. In the event of CLEW wishing to withdraw, it shall exercise the right of withdrawal immediately.
7.2 In the event of withdrawal, CLEW shall immediately reimburse the customer for any amounts already paid on the purchase price. Claims for damages by the customer are excluded. This shall not apply if CLEW is responsible for the failure to deliver by the upstream supplier.
- Non-binding information for the return
In the event of returns - for example also when exercising the right of withdrawal - we ask the customer to use a secure, if possible, the original transport packaging for the return.
- Further special provisions for entrepreneurs
For customers as entrepreneurs (see section 2.2), the following provisions shall additionally apply:
9.1 CLEW expressly reserves the right to accept the offer.
9.2 Place of performance is the main office of CLEW.
9.3 In the event of deliveries to another location, the risk of accidental loss or accidental deterioration is transferred to the customer at the latest when the goods are handed over to the contracted transport company. This also applies if CLEW has paid the costs for transport.
9.4 The customer is obliged to inspect the delivered goods immediately upon receipt and to immediately notify CLEW of any defects. If the customer fails to notify CLEW, the goods are deemed to have been approved, unless the defect was not recognizable during the inspection. If such a defect appears later, it must be reported immediately after finding the defect, otherwise the goods are deemed to have been approved even with regards to the defect.
9.5 Notifications of defects must be made in writing and must include a concrete description of the defect. The period for notification of defects is 5 working days from receipt of the goods, in the case of hidden defects 5 working days from finding the defect, unless the customer proves that he was not able to meet the deadline even in the ordinary course of business.
9.6 Externally recognizable damage to the transport packaging as well as recognizable damage to the goods based on such transport damage must be noted and confirmed on the freight forwarder's bill of lading or on the delivery note and reported to CLEW in writing within 5 working days, including the note, so that CLEW can comply with the duty to give notice from the transport insurance.
9.7 Claims due to material defects shall become statute-barred upon expiry of a period of one year from delivery of the item. The statutory limitation of recourse claims (see § 445b BGB, German Civil Code) remains unaffected.
9.8 The statutory periods of limitation specified in section 9.7 shall not apply in the event of intent or fraudulent concealment of a defect or if CLEW has provided a guarantee for the quality of the delivery item. Furthermore, they shall not apply to claims due to material defects in cases of injury to life, body, or health, in the case of claims under the Product Liability Act, in the case of a grossly negligent breach of duty or in the case of culpable breach of essential contractual obligations (see section 11.3).
9.9 The following provisions apply to the warranty for defects:
- In the event of a defect in the item, the customer must set CLEW a reasonable deadline for subsequent performance. CLEW is entitled to refuse the form of subsequent performance chosen by the customer if this involves disproportionate costs. This is especially the case if the costs of subsequent performance exceed the value of the goods, if they were free of defects, or if the costs of subsequent performance exceed the amount by which the defect reduces the value of the purchased item or if the form of subsequent performance other than the one chosen by the customer is more favorable and does not mean any significant disadvantages for the customer.
- The customer’s warranty claim of the above-mentioned case is limited to the other type of subsequent performance. If the other type of subsequent performance also involves disproportionate costs, CLEW may refuse subsequent performance altogether.
- Warranty or guarantee claims do not exist for defects that are based on handling errors as well as interventions or repairs by the customer or third parties not authorized by CLEW. This also applies to natural wear and tear, temperature, and weather effects as well as the use of unsuitable accessories, unless CLEW is responsible for these effects.
- Retention of title
10.1 Delivered goods remain the property of CLEW until the purchase price has been paid in full and all claims from the delivery contract have been settled.
10.2 If the customer is an entrepreneur (see section 2.2.), CLEW also retains ownership of the delivered goods until all claims that have arisen at the time the contract was concluded, including all claims from follow-up contracts and follow-up orders (hereinafter also referred to as "total claims"). The customer as an entrepreneur assigns to CLEW in full, by way of security, all claims that he acquires against his customer from a resale of the goods. CLEW accepts the assignment. In addition to CLEW, the customer is revocably authorized to collect these claims. CLEW will only revoke the collection authorization and collect the assigned claims itself if the customer is in default with its payment obligations towards CLEW or if an application for the opening of insolvency proceedings against the customer's assets has been filed. The customer is obliged to inform the seller immediately about compulsory enforcement measures against the reserved property and to inform the marshal about the retention of title.
10.3 CLEW obliged to release the existing securities at the customer's request if their value exceeds the total claims by more than 20%. The selection of the securities to be released are at CLEW's discretion.
10.4 CLEW is entitled to withdraw from contracts in which the delivered goods are subject to retention of title if the customer is in default of payment of the purchase price or a total claim of more than 250.00 EUR. This right of withdrawal is limited to contracts in which the value of the delivered goods does not exceed 120% of the total claims.
10.5 The customer is obliged to inform CLEW immediately of any compulsory enforcement measures against the reserved property and to inform the marshal about the retention of title.
- Warranty, Liability
11.1 The statutory warranty law for the customer as a consumer (see section 2.1) applies.
11.2 Claims for damages due to breach of duty and claim in tort as well as claims for reimbursement of wasted expenditure are excluded both against CLEW and against its vicarious agents.
11.3 The limitation of liability in accordance with section 11.2 does not apply if the damage was caused intentionally or by gross negligence, as well as in the event of a breach of essential contractual obligations, i.e., such contractual obligations whose fulfilment makes the proper execution of the contract possible and on whose compliance the customer may regularly rely, and the breach of which, on the other hand, jeopardizes the achievement of the purpose of the contract. Furthermore, the limitation of liability within the meaning of Section 11.2 does not apply to damage resulting from injury to life, limb or health if CLEW is responsible for the breach of duty. Furthermore, the limitation does not apply to damages based on the absence of a warranted characteristic or for which liability is provided for under the Product Liability Act.
11.4 In the event of a claim for damages for a slightly negligent breach of essential contractual obligations (see section 11.3) and in the event of grossly negligent breaches of secondary obligations, liability is limited to the foreseeable damage typical for the contract. This does not apply in the event of personal injury, in the event of damage based on the absence of a warranted characteristic or for which liability is provided for under the Product Liability Act.
- Prohibition of set-off, Right of retention
If the customer is an entrepreneur (see section 2.2), he shall not be entitled to set off claims outside the reciprocal relationship. The prohibition of set-off shall not apply if the counterclaims of CLEW are not disputed, have been legally established, or are ready for a decision. As an entrepreneur, the customer is not allowed to assert a right of retention unless one of the above-mentioned exceptions applies.
- Data protection
- Online registration, Access data
14.1 In principle, there is no registration necessary to place an order. However, CLEW reserves the right to set up an account area for which the customer can register and view his orders, returns, status reports, etc. After registration, a user account is set up for the customer. The customer will be provided with the required login details and usage data (hereinafter referred to as "access data" including the password). CLEW is entitled to change the customer's access data later. In this case, the Customer will be notified of the new access data without delay.
14.2 The customer is responsible for protecting the access data. The access data must be kept secret and may not be made accessible to third parties subject to written consent by CLEW. The customer must be aware that if third parties know his access data, they can place orders with CLEW in the name of the customer. If the customer notices or suspects that his access data are being used by third parties, he shall immediately change his access data or inform CLEW immediately about the use.
14.3 In the event of justified suspicion of misuse of the customer's access data, especially if this has been reported by the customer, CLEW is entitled to block access immediately. CLEW will inform the customer about the blocking.
14.4 CLEW is not liable for any damage incurred by the customer due to misuse or loss of the access data. This does not apply if the damage was caused intentionally or by gross negligence. Furthermore, the exclusion of liability does not apply to damages resulting from injury to life, body, or health if CLEW is responsible for the breach of duty.
14.5 CLEW reserves the right to send push notifications to the customer’s cell phone with the latest information about the service, CLEW offers or update requests or similar at regular intervals. However, the customer will only receive such notifications if he has expressly given his consent. The consent can be revoked at any time by making the appropriate settings in the account area. Further information can be found in the data protection.
- Amendments to these general terms and conditions (GTC)
CLEW is entitled to make changes to these GTC with effect for the future. The amendments become effective if the GTC in their amended form are included in a legal transaction. They are also deemed to have been effectively agreed if CLEW refers to the amendments in electronic form (e-mail), the customer can take note of the amendments and does not object to them within three weeks after receipt of the notification of change. The notification of change contains the deadline and the consequences of failure to meet the deadline. In the event of objection, CLEW reserves the right to terminate the business relationship.
- Final provisions, Dispute resolution procedure
16.1 This contract is exclusively subject to German Law. The application of United Nations Convention on Contracts for the International Sale of Goods and the German private international law is excluded. If the customer is a consumer (see section 2.1), the mandatory consumer protection provisions applicable in the country in which the customer has his habitual residence also apply if these offer the customer further protection.
16.2 If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all claims arising from the contractual relationship is Munich (Munich Regional Court I). This also applies in cases in which the customer's main office or habitual residence is relocated from the area of application of the German Code of Civil Procedure after conclusion of the contract or is unknown at the time of filing an action.
16.3 Even if one or more provisions of these GTC are or become invalid, both the contract and the rest of the GTC remain effective. The customer and CLEW undertake to replace the relevant provision with provisions that economically correspond to the purpose of the contract.
16.4 Link to the ODR platform in accordance with Article 14 (1) of Regulation (EU) No. 524/2013:
CLEW is neither legally nor voluntarily obliged to participate in a dispute resolution procedure before a consumer arbitration board. In the event of a conflict, CLEW will endeavor to find a mutually acceptable solution with the customer. Since arbitration boards are liable for costs, CLEW will not participate in a dispute resolution procedure before a consumer arbitration board, also in the best interest of the customer regarding the costs.