Conditions of Use
General Delivery Conditions
Section 1 Area of Application
All deliveries made and services performed by Sinocourse Ltd./ LULU living, in the following text named as LULU, are based exclusively on the edition of these Terms and Conditions valid at the time the contract is concluded. In order to be valid any agreements that diverge from or supplement these Conditions must be in writing. Divergent or supplementary General Terms and Conditions or conditions stipulated by the client shall only form part of the contract if LULU expressly agrees in writing to their validity.
Clients for whom theses General Terms and Conditions apply can be consumers in accordance with Section 13 of the German Civil Code as well as entrepreneurs in accordance with Section 14 of the German Civil Code.
Section 2 Conclusion of a Contract
The contract between the client and LULU shall only become valid as a result of the express acceptance by LULU of an application by the client. Confirmation of the receipt of an order shall not be deemed to be an acceptance. In the case of acceptance LULU shall send confirmation of the contract by e-mail or fax. Dispatch of the ordered goods to the client shall be tantamount to the express statement of acceptance.
LULU concludes contracts with clients who
a) are natural persons with unrestricted legal capacity who have turned 18 years of age
b) are natural and/or legal persons, in each case resident or based in the Federal Republic of Germany, a Member State of the European Union or Switzerland.
Inasmuch as the service provided by a participant who is not accepted by LULU is accepted, then LULU shall be entitled, within an appropriate length of time, to declare its withdrawal from the contract with the client.
With regard to technical changes and other changes e.g., in shape, color and/or weight, the presentation and description of goods, shall be subject to change to an extent that is reasonable for the client. The information, diagrams, illustrations, technical data, weights, dimensions and performance specifications provided in the product descriptions are standard market approximate values and as such shall not be binding.
In the case of clients who are not consumers within the meaning of Section 312 e para. 2 sentence 2 of the German Civil Code, Section 312 e para. 1 sentence 1 no. 1 through 3 and sentence 2 of the German Civil Code are excluded.
Section 3 Delivery and Forwarding Conditions
The choice of route and type of forwarding shall lie within the discretion of LULU. Inasmuch as they are Partial deliveries inasmuch as they are reasonable for the client, shall be permissible. Goods that are in stock shall be forwarded within 7 days. Should the goods not be in stock when the order is placed, LULU shall make every effort to deliver them as quickly as possible.
In cases where the client is an entrepreneur the danger of accidental perishing and the deterioration of the goods shall become the responsibility of said client at the time of handover and, where the contract involves the forwarding of goods, with the delivery of said goods to the hauler, carrier, or other person or institute specified to conduct the forwarding. In cases where the client is a consumer and where the contract involves the forwarding of the goods, the danger of accidental perishing and the deterioration of the goods shall only become the responsibility of said client at the time of handover of the chattels. Handover shall remain unaffected if the client is in default of acceptance. Should problems arise with regard to the delivery, the client shall be informed of these immediately, at the latest after 14 days. LULU shall be entitled to rescind the contract should LULU, for reasons for which LULU is not responsible, not receive deliveries from suppliers or manufacturers. Should LULU make use of this right to rescind, the client shall be informed, and any part of the purchase price already paid be reimbursed.
Should the delivery address provided by the client be incomplete or incorrect and, as a result, LULU incur additional costs with regard to the forwarding, e.g., forwarding charges that are billed again, then the client shall reimburse LULU for these.
Section 4 Payment Conditions
Payment for deliveries in China shall be made by advance payment, cash on delivery (up to RMB 4000 order value), direct debit or by bill (commercial clients only). Payment for deliveries within other countries shall be made advance payment. Where payment is made by bill, LULU shall reserve the right to request a deposit in the case of larger amounts. Should delivery take the form of cash on delivery, in addition to possible packaging and forwarding costs the client shall be subject to a pro-rata basis payment for cash on delivery and money transfer charges.
The purchase price shall be payable in full within the period of time stated on the bill or confirmation sent to the client; receipt of payment by LULU shall be decisive. All payments shall, without exception, be made to the account stated. In the case of bank transfers the purpose stated by LULU shall be stated.
Up until the payment in full of all outstanding amounts the delivered goods shall remain the property of LULU. Should the client get into arrears with payments LULU shall be able to demand interest on arrears of 5% per annum above the base rate. LULU shall reserve the right to make valid higher losses as a result of default.
Section 5 Prices and Forwarding Charges
All gross prices include all price components including all taxes, in particular mandatory VAT.
Unless something different is expressly agreed, these prices shall not include packaging, freight, postal charges and transport insurance. The delivery and forwarding costs, whose total is determined by the specifications provided in conjunction with the relevant presentation of the goods, shall be payable as of the LULU premises. Should delivery be to a client outside China, the delivery and forwarding costs increase in accordance with weight or volume weight.
The share of the packaging, freight, postal and transport insurance costs charged to the client shall be determined by the order value.
Section 6 Off-set and Right of Retention
The client shall only be entitled to the right to off-set if his counterclaims have been deemed res judicata, or are not contested. The client shall only be empowered to exercise his right of retention inasmuch as his counterclaims relate to the same contract.
Section 7 Revocation Right
Consumers shall be able to revoke their contractual statement within two weeks without stating their reasons in text form (e.g. letter, fax, e-mail) or by returning the goods. Should they only be informed of this right of revocation after conclusion of the contract the period of time permitted shall be one month. Said period of time shall begin at the earliest at the point in time at which the consumer was informed in writing of the revocation right, but not, however, before the day on which the goods were delivered. The revocation deadline shall be deemed to have been complied with if the revocation or the goods were dispatched in time. The revocation must be sent to the above address of LULU.
In accordance with Section 312 d para. 4 of the German Civil Code this revocation right shall not apply to contracts for the delivery of goods manufactured to clients’ specifications / wishes or which are clearly tailor-made to their own personal needs, as well as all special editions, i.e. if on account of taking into consideration the consumers’ wishes the goods were unable to be sold elsewhere or only with an unacceptable reduction in price.
In the case of effective revocation the services received by both parties shall be reimbursed and any usage derived surrendered. Should the consumer not be able to reimburse the service received at all or only in part, or only in a worse condition, he shall provide LULU with compensation accordingly. This shall not apply should the deterioration in the condition of the goods be attributable only to their having been examined, as would have been possible, for example, had they been on sale in a shop. Furthermore the consumer can avoid the compensation obligation by not making use of the goods as the owner and refrains from anything that encroaches on their value.
Goods capable of being forwarded by parcel shall be returned in full, in immaculate condition, including all undamaged packaging parts and in an insured parcel to the return address stated on the bill. Goods not able to be forwarded by parcel shall be collected from the consumer by a forwarding company.
The consumer shall cover the costs of the return should the goods delivered correspond to those ordered and should the price of the goods being returned not exceed EUR 40 or should the consumer, in the case of a higher price for the goods, at the time of the revocation not yet have completed his obligations or made a contractually agreed partial payment. The return shall otherwise be free of charge for the consumer.
Section 8 Reservation of Title
Should the client be a consumer, ownership of the goods sold shall be reserved until full payment of the purchase price has been received. Should the client be an entrepreneur, ownership shall be reserved until all receivables ensuing from the business relationship have been settled.
Prior to the change in ownership the client shall not, without the written approval of LULU, be entitled to avail himself of the sold goods or process, alter, or blend them in any way.
In the case of behavior by the client contravening the terms of the contract, e.g. default of payment or violation of one of the obligations mentioned previously LULU shall be entitled to withdraw from the contract and demand surrender of the sold goods.
Section 9 Warranty
In accordance with Section 439 of the German Civil Code the client shall, in the case of faulty goods be able to demand their repair or the delivery of faultless chattels (subsequent fulfillment) as he sees fit. In line with Section 439 of the German Civil Code LULU shall be able to refuse the method of subsequent fulfillment selected by the client should this only be possible at disproportionate cost. Should a second attempt to repair the faulty goods be unsuccessful, the client, in accordance with Section 439 of the German Civil code shall be entitled to demand the delivery of a chattel that is free of defects or a reduction in the purchase price or, or to withdraw from the contract. Such withdrawal shall be ruled out if the defect is minor and negligible. Moreover Section 437 of the German Civil Code shall apply.
LULU shall be allowed to have the corresponding work to repair the defect carried out by third parties.
This warranty shall not extend to normal wear and tear, abrasion, external influences, or operating and application errors. The warranty shall become invalid should the client alter the delivered goods, have them altered by third parties, handle them inappropriately, or put them to a use other than that intended, unless the client shall be able to prove that the defects covered by the warranty were caused neither in full nor in part by the by such alterations and that their repair is not hampered by the alterations.
Irrespective of other claims based on the warranty, LULU shall be notified of complaints relating to the scope of delivery, manifest defects, wrong deliveries and deviations in the number of goods delivered within a period of two weeks following delivery of the goods (telephone/e-mail/fax/post). In the case of concealed defects notification shall also be made within the warranty deadline. The timely dispatch of notification of the defect shall be deemed as adherence to said deadline.
The warranty shall begin with delivery of the goods and is governed by legal stipulations. In the case of consumers the limitation period for legal claims for defects is two years. In the case of entrepreneurs it is one year from delivery of the goods.
The stipulations laid down in Section 377 of the German Commercial Code shall not apply to businessmen. The client must immediately inspect the goods for completeness, conformity to the delivery papers, to the order and for defects. Notice of recognized or recognizable defects must be given in writing. Should no immediate notice to this effect be given the goods shall be recognized as conforming to the contract unless, despite meticulous inspection, the fault was not recognizable.
Section 10 Damage during Transport
Should goods be delivered with manifest damage to the packaging or its contents the client shall report this immediately, without prejudicing his warranty rights, to the hauler/freight company and refuse acceptance, as well as contact LULU by telephone or other means (e-mail/fax/post) at once, in order for LULU to protect possible rights against the hauler/forwarding company. Likewise without prejudicing possible warranty rights, on discovery hidden defects shall also be reported immediately to LULU in order for possible warranty rights to be upheld against preliminary suppliers.
Section 11 Liability
The client shall only be able to make claims for compensation for defects under the following conditions should the subsequent fulfillment have been unsuccessful or LULU have refused said subsequent fulfillment. This shall not affect the client’s right to make further claims for compensation under the following condiitons.
Irrespective of the following restrictions on liability LULU shall be liable without limitation for damage to life, body, and health attributable to the negligent or deliberate violation of duty by the legal representative of or the person employed to perform the duties of LULU, as well as for damage embraced by the German Damage Liability Act, as well as for all damage resulting from intentional or grossly negligent violations of the contract as well as the malice of the legal representative of or the person employed to perform the duties of LULU.
LULU shall also be liable for damage caused by simple negligence inasmuch as this negligence refers to the violation of such contractual obligations whose adherence to is of particular importance (cardinal obligation) for the fulfillment of the contract. LULU shall, however, be liable only for predictable, immediate average damage that is typical for such contracts. In the case of the simple, negligent violation of collateral obligations that are of fundamental importance to the contract LULU shall not be liable to clients who are entrepreneurs; in the case of clients who are consumers LULU shall be liable for predictable, immediate, average damage that is typical for such contracts. LULU shall be held liable for the rectification of immediate damage, in particular lost profit, only in the case of malice aforethought on the part of LULU.
The liability restrictions listed in the previous sentences shall also apply inasmuch as the liability of the legal representatives, managerial staff and other persons employed for the fulfillment of the contract is affected.
Without due consideration of the legal nature of the claim made further liability shall be ruled out. Inasmuch as the liability of LULU is ruled out or limited, this shall also apply to the personal liability of employees, co-workers, representatives and other persons employed for the fulfillment of the contract.
Section 12 Evidence and Force Majeure
Inasmuch as data, in electronic form, are stored at LULU, they shall be regarded as admissible evidence in the proof of contractual agreements, data transfers and completed payments.
Should LULU be unable to perform its due service on account of force majeure (for example war and natural disasters), LULU shall be relieved of the obligation to perform such service for such time as the obstruction continues. Should RADIUS Einrichtungsbedarf be unableGmbH be unable to fulfill the order for longer than one month on account of force majeure the client shall be entitled to withdraw from the contract. The client shall be entitled to no further rights.
Section 13 Data Protection and Security
The client shall agree to the personal data, which he transfers, and which are necessary for the processing of the order being stored electronically. As part of the order processing such data shall only be forwarded to those companies commissioned in each case with the processing, delivery and/ or billing procedures. All personal data shall be treated confidentially. In the online shop the transfer of the client’s personal data to LULU occurs via an SSL-connection that is secure from outside access.
Section 14 Concluding Provisions
The law of the Federal Republic of Germany shall apply. The provisions of the laws of states in which clients who are consumers have their normal place of residence. The United Nations Convention on Contracts for the international Sale of Goods shall not apply, even with regard to cross-border deliveries.
Unless otherwise determined or there is compelling legislation that opposes it, the place of performance shall be Shanghai. In as much as the client is an entrepreneur, a legal person under public law, or public special assets the place of jurisdiction for all legal disputes shall be Shanghai. In all other cases the legal place of jurisdiction shall apply.
Should one or several of the regulations of these General Terms and Conditions be invalid this shall not result in the invalidity of the entire contract. Invalid provisions and incomplete regulations shall be replaced by what corresponds closest with the desired purpose.
