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Terms & conditions of Pensaki GmbH

 

Here you can find a convenience translation of the German terms and conditions of Pensaki GmbH, i.e. in case of any discrepancies solely the German version („Allgemeine Geschäftsbedingungen”) is relevant. Therefore only the German version is the controlling version, i.e. it shall be the only relevant version when a provision is to be interpreted.

Terms and Conditions (T&C)

of Pensaki GmbH (Reilsheimerstraße 15, 69245 Bammental, Germany)

(hereafter referred to as “Pensaki ”)


 

1. Scope of this agreement

  1. As far as the commercial relationship between Pensaki and the customer is concerned only these terms and conditions (hereafter referred to as “T&C”) in the version valid at the time of placing an order are applicable.

  2. Contradicting, differing or amending T&C of the customer will not become part of the agreement unless Pensaki approves their validity explicitly. These T&C are also applicable exclusively if Pensaki, aware of contradicting or deviating customer term and conditions, is providing its services without reservations.

  3. The terms and conditions of PENSAKI shall be applicable also if PENSAKI, while being cognizant of contradictory or divergent terms on the side of the contractual partner, unconditionally accepts the contractually required service of the contractual partner or PENSAKI unconditionally renders the contractually required service. Counter-confirmations on the part of the contractual partner referring to its terms of business or purchasing shall be hereby excluded.

  4. On its website www.pensaki.com Pensaki provides an online platform for the customer/user to order the creation of individual and personalized paper documents (in particular letters, cards etc.) in accordance with the specifications selected by him and with the present T&C.

  5. Apart from ordering the standard services via the online platform, tailor-made solutions and services can be acquired by agreeing to individual contracts which are also governed by these T&Cs unless deviating clauses have been agreed upon in writing.

2. Service provision and responsibilities

  1. The documents and mailing prepared according to the requirements of the user are prepared for dispatch by Pensaki in accordance with the data provided by the user who is the sender and has provided the address of the addressee(s). Pensaki transmits the consignment on behalf of the user to an appropriate dispatch service provider( preferably Deutsche Post).

  2. Placing the order with the dispatch service provider is done on the basis of their standard T&C applicable for this consignment.

  3. The user is responsible for providing correct and complete data in particular with regard to the address of the addressee, but also as far as the contents and the correct spelling of the documents to be produced by Pensaki is concerned. Placing the order via the online platform the user may want to avail himself of the function automatic spelling correction. Pensaki does not offer the service of correcting the spelling or of editing. The user in his own responsibility makes a choice among the Pensaki® products (format, design, writing utensils such as specific fountain pens or ball point pens, types of paper, type of dispatch) or other existing options, if applicable. Special orders, mainly those with a high volume, may differ from the products presented by Pensaki as their standard on the online platform.

3. User registration

  1. Placing an order with Pensaki via the online platform requires the registration of the user. This occurs by entering the required data in a specially provided online form or – if as such foreseen – by registering with a social network. The users’ data will be checked by Pensaki for plausibility.

  2. The user is obliged to register with his own name indicating his real name . Registration under another name or under a pseudonym is inadmissible. Registration presupposes the requires the absolute legal personality and capacity of the customer.

  3. Pensaki reserves the right at their own discretion to refuse the activation of the user account.

  1. In the case of the successful registration of a user account Pensaki informs the user by sending an e-mail with the activating link to the address provided by the user. The user has to follow this link in order to activate his account. In the case of refusing to activate the account Pensaki informs the user via e-mail; Pensaki is not obliged to give reasons for the refusal.

  2. Each party is entitled in written or in text form to cancel the user account with notice given 14 days before the end of the month. The cancellation by the user and the date of its effectiveness will be confirmed by Pensaki via email to the user. Once the cancellation is in effect the user account is frozen. Pensaki freezes the respective user data to the extent they are not required for the handling of still existing orders or have to be stored for legal obligations; they will be erased within reasonable time.

  3. The cancellation of a user account has no impact on the effectiveness of existing orders in the sense of paragraph 4.

  4. The right of extraordinary termination for good cause pursuant to § 314 of the BGB (German Civil Code) shall remain unaffected by the above provisions.


 

4. Preorder and Order

  1. The presentation of services on the online platform of Pensaki does not suggest a legally binding offer by Pensaki but is a non-binding product information and purely visual representation without any claim for completeness. The user may select the products and services he desires on the platform, configure them accordingly and put them into his shopping cart. By clicking the button “purchase” the user executes an order that results in a payment obligation for the services selected by him. Before the legally binding execution of the pre-order, the user may at any time review his order. In any case an pre-order can only be executed if the user accepts the T&C of Pensaki, by clicking the respective box. Before the user confirmed that the content as well address are correct,

  2. Confirmation of the receipt of an order via the online platform is sent out automatically by Pensaki immediately after the receipt of the order. With the confirmation of the receipt of his order the user receives also the T&C for his information. The pre-order confirmation does not represent the acceptance of the order by Pensaki. The contract enters only into force after Pensaki has accepted the users offer by a separate confirmation via e-mail, fax or any other means. The acceptance may occur within three working days after receiving the order.

  3. Users orders for tailor-made products and services may be send to Pensaki via email, fax or letter.

  4. It is up to Pensaki to request that the user submit an offer in written form or that a written individual contract be concluded, in particular in the case of orders with a large volume.

  5. Pensaki may/will reject or terminate orders if the content provided by the user or the purpose of the mailing

  • - violates governing laws, particularly penal law, or would result in any other form of legal offenses.
  • - pursues racist, xenophobic, radical or other anti constitutional aims such as glorifying violence.
  • - is of a sexist nature.
  • - disregards general ethical values, moral standards or would for other reason have to be considered as being immoral.

Pensaki reserves the right to cancel customer accounts in the case of infringements.

 

5.Legal exclusion of the right of withdrawal for users 

The right of withdrawal under §312g para 2 Nr.1 BGB (the German Civil Code)

is not applicable with regard to mail order contracts for the shipping of merchandise

that has not been pre-fabricated and for whose production it is necessary that the user has definitely made an individual choice or which is clearly designed to the specific needs of the user. Pensaki produces highly individualized and personalized documents according to the requirements of its customers. Therefore the user's right of withdrawal is excluded in full compliance with governing German law.


 

6. Shipping and expected delivery times.

  1. Indicated times for the production and delivery correspond to the current state of planning.The total delivery time referred to in the order begins with the conclusion of the contract. Meeting the deadline of the total delivery time presupposes that the shipping agent charged by Pensaki on behalf of the user  meets the deadline promised by him as his standard. Meeting these delivery deadlines is beyond the sphere of influence of Pensaki.

  2. Meeting the total delivery deadline assumes the timely receipt of payment and as far as the user has committed himself to a collaborative effort this has to have been provided in a timely manner. This includes in particular answering necessary questions or -if in special orders the user is requested to correct and release the draft documents – proceeding to these corrections and the release in a timely manner.

  3. Fixed deadlines require the explicit confirmation of Pensaki in writing.

  4. In cases of force majeure the expected delivery time is extended by the duration the obstacle(s) persist.

  5. Delivery shall take place at the address of the recipient indicated by the user.

  6. Pensaki accepts liability for delayed delivery, damage or loss during shipping only if Pensaki can claim compensation from the shipping company. This does not apply if the delay, damage or loss is due to circumstances within the sphere of influence of Pensaki for which Pensaki is responsible; in this case Pensaki accepts liability within the premisses and limits of paragraph 12 .

  7. Once the delivery is completed Pensaki is entitled to return to the user or to erase the information material necessary for the execution of the order.There is no commitment to keep the documents in store.


 

7. Prices, Delivery and shipping costs

  1. All prices indicated are total prices expressed in Euro. They include the legally required sales tax (Value Added Tax) and other price components. In addition , delivery-, shipping or other costs are calculated according to para 7.2.

  2. The actual amount of delivery- and shipping costs depends on the charges of the shipping provider and is given in the description of the product and in the process of ordering. Should duties or tariffs be payable according to laws and regulations it is the user who has to pay them.

  3. In the event of additional costs to be borne by the user in the case of certain types of payment these are shown in the process of ordering and are listed under types of payment and payment respectively.

8. Payment methods and terms

  1. The possible methods of payment are shown on the online platform. On principal only prepayment by credit card or via PayPal is possible. In this case Pensaki delivers only after having received the complete amount to be paid.

  2. Pensaki reserves the right in individual cases to be agreed upon to deliver services against the payment via invoice. The amount to be paid is due immediately after receiving the bill. Payments are to be made without any reduction to one of the accounts indicated on the invoice.


 

9. Restrictions on usage, customer duties and obligations

  1. The customer is obliged to treat the access data of his user account with confidentiality and to protect it from access by third parties. The customer grants Pensaki the rights connected with the transmitted contents and materials necessary for completing the order, in particular the required administrative and rights of reproduction.

  2. The customer commits himself not to produce or send any documents regarding Pensaki which contain declarations of intent in the legal sense in particular no such declarations which require a legal form. Pensaki explicitly points to the fact that the produced documents do not satisfy the legal requirements regarding the written form.

  3. Should the customer in the context of tailor-made orders transmit samples of handwritings it is up to him to make sure that it is the handwriting of the person named by him. It is not permitted to present copies of handwritings of other persons than those named by him.

  4. The customer guarantees that the contents transmitted by him do not infringe the rights of third parties, in particular with regards to commercial industrial property rights, copyrights or other rights of third parties.

  5. The customer guarantees that the content transmitted does not contain harmful software or malware.

  6. The customer hereby represents and warrants that all address data of the recipients of his mailings has been gathered in a legally admissible manner and that sending the mail is not an infringement of any applicable law.

  7. The customer commits himself not to misuse or permit to be misused the online platform of Pensaki and services offered through Pensaki, in particular not to transmit orders with an illegal or immoral content or to point to such information or to use services of Pensaki in order to organize illegal or immoral events, assemblies etc. which serve to incite the people, induce to crimes, glorify violence or are playing down violence, which are sexually offensive or pornographic, which are likely morally to endanger children or young people or to impair them in their wellbeing or which damage the reputation of Pensaki and are in contravention of the rules of fair competition.

  8. The customer makes sure that the services requested by him from Pensaki, in particular the sending of documents with the contents requested by the customer to the addresses given by the customer are legally admissible and do not contravene the law of competition. He will not cause any consignments to be sent, which include chain letters, or the implementation of, the publicity for and the promotion of structural marketing measures such as multi-level-marketing or multi-level-network-marketing.

  9. The customer is obliged to release Pensaki from all claims from third parties which are the result of violating any afore mentioned regulations. Other rights and claims of Pensaki remain valid.

10. Quality of products delivered, liability for defects

  1. Pensaki places great emphasis on the quality of its documents produced on behalf of the customer. Due to the individual unique manufacturing and the very special materials, in particular the fountain pen, ball point, ink and paper used there is a possibility of deviations in the actual execution from the samples depicted on the online platform or the digital proof copies sent to the customer.

  2. In the case of defects the customer  is entitled to rights and claims under the rules of the German statutory warranty rights. Claims for defects become invalid after one year from the date of delivery.

     

11. Liability for compensatory damage.

  1. Pensaki is liable for compensatory damage according to the legal provisions only as far as this paragraph 11 is concerned.

  2. Pensaki is liable in case of damage to life, body or health as well as for damages caused intentionally or by neglect by Pensaki or their agents of vicarious liability, as well as for damages due to non-implementation of a guarantee or because of having deceitfully kept silent over known defects.

  3. Pensaki's liability is limited to the substitution of a foreseeable typical damage caused by a slightly negligent non-implementation of essential contractual obligations by Pensaki or their legal representatives or their agents of vicarious liability. Essential contractual obligations are those which enable the contract to be fulfilled and into the implementation of which the contractual partner may have complete confidence.

  4. Further claims for damage substitution by the customer are excluded.The provisions of the law on product liability remain unchanged.

  5. The limitations of this paragraph 12 are also applicable in favor of the legal representatives and agents of vicarious liability of the supplier should any claims be made against them directly.


 

12. Data protection / privacy, confidentiality

  1. It is up to the customer to adhere to the requirements of the rules on privacy as far as the data he transmits are concerned.

  2. Pensaki uses the personal data of the customer which the supplier receives in connection with implementing this contract, based on the valid rules on privacy and its privacy-policy.

13.Final provisions

  1. The headquarter of Pensaki is the place of fulfilment of all contractual obligations with the customer, provided nothing to the contrary has been defined.

  2. Heidelberg (Germany) is the exclusive place of jurisdiction in disputes with businessmen, legal entities of public law or entities for special capital from contracts

  3. Should Pensaki provide an English translation of these Terms and Conditions this version is only intended to serve as a reading tool for English speaking customers. The only authoritative version is the present German version of the General Terms and Conditions.

  4. In all disputes arising out of these T&C or in connection with the services supplied by Pensaki regardless of the legal reasoning the laws of the Federal Republic of Germany are applied, excluding, however, all non-obligatory provisions of the law of collision which refer to another jurisdiction. This choice of law is not applied to customers who are consumers in as far as they would thus be deprived of the protection offered by those provisions from which – lacking the choice of law – not even an agreement can deviate. The execution of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is also excluded even if the customer has his domicile in a foreign country.


Version 11/2014