Terms and Conditions of Use (“Terms”) 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
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.
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.
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.
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.
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
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).
Placing the order with the dispatch service provider is done on the basis of their standard T&C applicable for this consignment.
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
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.
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.
Pensaki reserves the right at their own discretion to refuse the activation of the user account.
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.
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.
The cancellation of a user account has no impact on the effectiveness of existing orders in the sense of paragraph 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
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,
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.
Users orders for tailor-made products and services may be send to Pensaki via email, fax or letter.
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.
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.
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.
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.
Fixed deadlines require the explicit confirmation of Pensaki in writing.
In cases of force majeure the expected delivery time is extended by the duration the obstacle(s) persist.
Delivery shall take place at the address of the recipient indicated by the user.
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.
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
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.
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.
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
8.1 The possible payment methods are indicated on the online platform. Basically only prepayment by credit card or Pay-Pal or bank transfer is possible. In any case, the services of Pensaki will only be rendered after receipt of the complete invoice amount. Pensaki.com is entitled to cancel the order if the full purchase price is not paid within 10 working days of the order. If the payment method credit card via Stripe is selected, the invoice amount is due immediately upon conclusion of the contract. Payment by credit card is handled in cooperation with Stripe Payments Europe, Ltd. “(“Stripe”) to which the Provider assigns its payment claim. Stripe Payments Europe, Ltd collects the invoice amount from the customer’s credit card account. In the event of assignment, only Stripe Payments Europe, Ltd may be paid with debt-discharging effect. The credit card is debited immediately after the customer order has been sent to the online shop. The provider remains responsible for general customer enquiries, e.g. regarding goods, delivery times and dispatch, even if the method of payment is selected as credit card payment via Stripe Payments Europe, Ltd.
8.2 Pensaki reserves the right, in individual cases to be agreed individually, to perform services against payment on account. The invoice amount becomes due for payment immediately upon receipt of the invoice by the customer. Payments are to be made without deduction to one of the accounts stated in the invoice.
9 Restrictions of Use; Duties and Obligations of the Customer
9.1 The customer is obliged to treat the access data assigned to him for his customer account confidentially and to protect it from access by third parties. The customer grants Pensaki the rights necessary for the fulfilment of the order to the contents and materials transmitted by him, in particular the necessary processing and reproduction rights.
9.2 The Customer undertakes not to have any documents produced and sent through Pensaki that contain declarations of intent in the legal sense, in particular such declarations of intent that are required in the given circumstances. Pensaki expressly points out that the documents created do not meet the legal requirements of the written form.
9.3 If the customer submits samples of manuscripts within the scope of special orders, he must ensure that the manuscript is that of the person designated by him for this purpose. The submission of samples with manuscripts of persons other than the designated person is not permitted.
9.4 The customer shall ensure that the contents transmitted by him do not infringe any rights of third parties, in particular industrial property rights or copyrights.
9.5 The customer shall ensure that the content transmitted by him does not contain any malware or other malware.
9.6 The customer is responsible for ensuring that the address data of the recipients communicated by him have been collected in a legally permissible manner and that there are no legal reasons for sending the documents to the recipient.
9.7 The Customer undertakes not to misuse the online platform of Pensaki and services offered by Pensaki, in particular not to transmit any orders with illegal or immoral content or to refer to such information or to use the services of Pensaki for the purpose of organizing illegal or immoral events, meetings, etc., without the prior written consent of Pensaki. which, for example, serve the incitement of the people, lead to criminal offences or glorify or trivialize violence, are sexually offensive or pornographic, are likely to endanger children or young people morally or impair their well-being or damage Pensaki’s reputation, or are anti-competitive.
9.8 The Customer warrants that the services provided by Pensaki, in particular the dispatch of the documents with the contents provided by the Customer to the addresses provided by the Customer are legally permissible and in particular do not violate competition law. In particular, it will not initiate any mailings that include chain letters, or the implementation, advertising and promotion of structural marketing measures (e.g. multi-level marketing or multi-level network marketing).
9.9 The customer is obliged to indemnify Pensaki from all claims of third parties resulting from a violation of the above provisions. Other rights and claims of Pensaki remain unaffected.
10. Quality of products delivered, liability for defects
10.1 Pensaki attaches great importance to the quality of the documents created on behalf of the customer. However, due to the individual, unique production and the material used, in particular the fountain pens, ballpoint pens, ink and paper used, deviations of the actual design from the sample images reproduced on the online platform or digital proof copies transmitted to the customer are possible. This applies in particular to Pensaki individual orders in which, for example, the customer’s paper is used.
10.2 In the event of defects, the customer shall be entitled to the rights and claims under the statutory right of liability for defects. Warranty claims expire within two years from delivery if the customer is a consumer, otherwise twelve months from delivery.
11. Liability for damages
11.1 Pensaki shall be liable for damages within the scope of statutory provisions only in accordance with this Clause 11.
11.2 Pensaki is liable for damages resulting from injury to life, body or health as well as for damages based on intent or gross negligence of Pensaki or its legal representatives or vicarious agents, as well as for damages due to non-compliance with a guarantee given by the provider or due to fraudulently concealed defects.
11.3 Pensaki shall be liable for damages based on a slightly negligent breach of essential contractual obligations by him or his legal representatives or vicarious agents, limited to compensation for the foreseeable damage typical for the contract. Essential contractual obligations are obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner may regularly rely.
11.4 Any other claims for damages by the customer are excluded. The provisions of the Product Liability Act remain unaffected.
11.5 The restrictions of this clause 12 also apply in favour of the legal representatives and vicarious agents of the provider if claims are asserted directly against them.
12. Data Protection, Confidentiality
12.1 The customer is responsible for compliance with the requirements of data protection law with regard to the data transmitted by him.
12.2 Pensaki shall use the Customer’s personal data received by the Provider in connection with the execution of this Agreement in accordance with the applicable data protection regulations and in accordance with the separate data protection declaration.
13. final clauses
13.1 The registered office of Pensaki shall be the place of performance for all obligations arising from the contractual relationship existing with the Customer, unless otherwise specified.
13.2 The exclusive place of jurisdiction for disputes with merchants, legal entities under public law or special funds under public law arising from contracts is Heidelberg.
13.3 If Pensaki provides an English-language version of these General Terms and Conditions, it serves only as a reading aid for English-language customers. The legally authoritative language version is the present German version of the GTC.
13.4 All disputes arising from or in connection with these General Terms and Conditions and from and in connection with the services offered by Pensaki shall be governed exclusively by the law of the Federal Republic of Germany, irrespective of the legal reason, to the exclusion of all non-mandatory provisions of conflict of laws provisions which refer to another legal system. The above choice of law shall not apply to customers who are consumers insofar as this would deprive them of the protection granted to them by those provisions from which, in the absence of a choice of law, they may not derogate by agreement. The application of the U.N. purchase right is excluded.