General Terms and Conditions (GTCs)
Status: June 2020
These General Terms and Conditions of Business (hereinafter referred to as 'GTCs') apply to all legal transactions between customers and KM Emporium GmbH (CHE-471.696.291, P.O. Box 530, 4502 Solothurn, Switzerland), which are concluded via the online shop www.km-emporium.ch (hereinafter referred to individually as 'online shop').
KM Emporium GmbH reserves the right to amend these terms and conditions at any time. The version of these GTCs in force at the time of the order is material; the GTCs cannot be changed unilaterally for this order. Customer terms and conditions which conflict with or deviate from these GTCs will not be recognised even if KM Emporium GmbH does not expressly object to them and/or makes deliveries to customers without reservation in the knowledge that the customer has terms and conditions which conflict with or deviate from these GTCs.
The offer is valid as long as the product can be found in the online shop via the search engine and/or stocks last.
For all product orders requiring a minimum age of 18 years, the customer confirms compliance with these legal provisions by placing an order.
2.1 Product and price
Images of products in advertising, brochures and the online shop, etc. are for illustration purposes and are not binding. Obvious errors or mistakes in the offer are not binding for KM Emporium GmbH.
All prices quoted on the website are inclusive of the statutory Swiss value added tax. Please note: in the event of orders that are sent to an address outside Switzerland, customers may be obliged to pay import duties and taxes. The customer is responsible for the payment of these import duties and taxes. It should be noted that KM Emporium GmbH has no influence
on these fees. As these fees vary from country to country, KM Emporium GmbH is not in a position to state their amount in advance. KM Emporium GmbH recommends that customers contact their local customs office for further information.
KM Emporium GmbH reserves the right to change the prices of the products and services offered at any time. The price in the online shop at the time of the order is material for the purchase contract.
2.2 Availability and delivery time
KM Emporium GmbH attaches great importance to providing current and accurate information on availability and delivery times in the online shop. However, KM Emporium GmbH may experience delays in delivery, particularly due to production or supply bottlenecks. All information on availability and delivery times is therefore without guarantee and subject to change at any time.
3 Contract completion
The products and prices in the online shop are non-binding and subject to confirmation.
The acceptance (e.g. in the online shop, by telephone or e-mail) of non-binding offers from KM Emporium GmbH by customers does not yet constitute a contract but is merely deemed to be an order requiring acceptance. By placing an order, the customer is deemed to have accepted these general terms and conditions of KM Emporium GmbH. If a customer enquiry is to be qualified as an offer, it is deemed to be an order requiring acceptance.
The receipt of an online order which requires acceptance is indicated to the customer by means of an automatically generated order confirmation from KM Emporium GmbH sent to the e-mail address provided by the customer, whereby this order confirmation does not constitute acceptance of the order by KM Emporium GmbH. It merely indicates to the customer that the order has been received by the online shop.
The contract (hereinafter referred to as the 'purchase contract') is not concluded until written confirmation that KM Emporium GmbH accepts the customer's order (order confirmation) is received. Delivery itself is also deemed to be the order confirmation constituting the basis of the contract.
The purchase contract is subject to the resolutory condition that delivery is not possible or that the price quoted is incorrect.
4 Date of delivery
If a consignment has not been delivered to the customer's delivery address (or collection point) within 14 days of dispatch, the customer is obliged to notify the KM Emporium GmbH customer service department by e-mail within 14 days (i.e. no later than 28 days after the date of dispatch).
The customer is informed about an expected delivery date in the online shop, in the order confirmation, in the order confirmation and/or in some other way. Any information on the delivery date is generally non-binding and serves only to estimate the expected delivery date. However, KM Emporium GmbH will make every effort to deliver the agreed products to the customer by the expected delivery date. The delivery date is deemed to have been met if the products have been dispatched by the delivery date or if notification of readiness for dispatch has been sent to the customer.
KM Emporium GmbH may change the expected delivery date at any time. In particular, the anticipated delivery date will be delayed appropriately if obstacles arise which KM Emporium GmbH is unable to avert despite exercising due care, regardless of whether they arise at its own premises, those of its customers or those of a third party. Such obstacles include, for example, epidemics, mobilisation, war, riots, significant operational disruptions, accidents, industrial disputes, delayed or defective delivery of the necessary raw materials, semi-finished or finished products, rejects, official measures or omissions, natural disasters, etc.
With the exception of special orders, KM Emporium GmbH grants customers the right to withdraw from the contract from the 30th calendar day after the originally announced expected delivery date. In this case, KM Emporium GmbH will reimburse the customer for any amounts paid in advance. There are no further claims against KM Emporium GmbH (particularly for reimbursement of damages caused by delay, consequential damages caused by delay, costs for covering purchases, loss of profit, etc.).
In general, any possible claim for damages caused by delay is limited in all cases to the value of the (partial) delivery concerned. The following are expressly excluded: consequential damages caused by delay, indirect damages, costs for covering purchases, loss of profit and damages resulting from business interruption.
Products from KM Emporium GmbH cannot be collected on site, as this is an online shop only.
If the customer does not accept the products ordered, if the customer is otherwise in default of acceptance or if the customer violates other duties of cooperation, KM Emporium GmbH may dissolve (cancel) the contract and invoice the customer for the delivery costs incurred and any loss of value (the right to assert further claims is reserved). The customer is responsible for entering the correct delivery address. If an order cannot be shipped due to an error in the delivery address provided by the customer, KM Emporium GmbH accepts no responsibility for the (partial) loss of the shipment. If KM Emporium GmbH requires additional information regarding a delivery address, KM Emporium GmbH is entitled to contact the customer for this additional information. In this case, delays in delivery cannot be ruled out.
If the order that KM Emporium GmbH has sent or will send to the customer is or has been lost or if the customer claims not to have received the order (although information such as the tracking / transport data indicates otherwise), the carrier's complaint procedure will be initiated. A possible refund or re-shipment will only be carried out after this procedure has been completed. The customer agrees to cooperate fully with the carrier's complaint procedure. If a shipment is lost due to an error on the part of the carrier (and after completion of the carrier's complaint procedure), KM Emporium GmbH will either issue the customer with a refund or attempt to resend the product ordered.
6 Obligation to check
The customer must immediately check delivered products for correctness, completeness and delivery damage.
In the case of forwarding deliveries, any delivery damage must be noted on the delivery note.
Delivery damage, incorrect and incomplete deliveries must also be reported within 5 calendar days of the time of collection or delivery for all products. The customer is aware that such notification must be provided by sending an e-mail to email@example.com. Customers may not put such a product into operation. They must keep it in its original packaging as received. Instructions are given by e-mail.
KM Emporium GmbH guarantees that the product ordered is free of defects and functional for 2 years after delivery. The warranty period continues to run regardless of the provision of any warranty services. KM Emporium GmbH may choose to have the warranty honoured by
free repair (original warranty period continues for the whole product);
replacement with a new, equivalent product by KM Emporium GmbH (new warranty period of 2 years as of replacement);
credit note at the current price (at most, the sales price at the time of the order); or
If KM Emporium GmbH decides to remedy the defects brought to its attention, the customer must give it the opportunity to do so. Defective parts must be returned to KM Emporium GmbH - at the latter's request and only with its express consent - at the expense of KM Emporium GmbH in the condition in which they were delivered and in their original packaging if possible.
Wearing parts such as batteries, in particular, are excluded from the warranty. In all other respects, the exclusions of liability set out in section 8 apply.
The warranty on a watch relates to the movement and not to other parts such as the glass or the strap. Signs of wear and tear on the watch are to be regarded as normal consequences of use. The effects of sweat on the strap vary from person to person due to differences in acid content.
KM Emporium watches are water-tight up to 3 ATM: this means that the watch is splash-proof. KM Emporium watches with 3 ATM water-tightness cannot be worn when showering, bathing, swimming or diving. At most, KM Emporium watches should only be exposed to small splashes of water or chemical substances such as perfume, cosmetics and cleaning agents.
The warranty is invalidated if a third party carries out repairs or other work on the product without the prior written approval of KM Emporium.
Any further non-binding statutory provisions concerning the warranty are excluded.
8 Liability and exclusion of liability
Liability is oriented towards the applicable statutory provisions. However, KM Emporium GmbH is in no case liable for (i) minor negligence, (ii) indirect and consequential damage and loss of profit, (iii) unrealised savings, (iv) damage resulting from delayed delivery or (v) any actions or omissions on the part of KM Emporium GmbH's support staff, whether contractual or non-contractual.
KM Emporium GmbH also refuses to accept any liability in the following cases:
improper, non-contractual or illegal storage, discontinuation or use of the products;
any allergies on the part of customers to any materials used in the product;
use of incompatible replacement parts or accessories (e.g. battery);
lack of maintenance and/or improper modification or repair of the products by the customer or a third party;
force majeure, particularly damage caused by natural disaster, moisture, dropping and impact, etc., for which KM Emporium GmbH is not responsible, and official directives.
9.1 Payment options
Payments must be made in Swiss francs. Payments are to be made at the domicile of KM Emporium GmbH without deduction of discounts, expenses, taxes, duties, fees, customs duties and the like. The offsetting of any counterclaims by customers against claims by KM Emporium GmbH is ruled out. The assignment of claims against KM Emporium GmbH is not permissible. Payments must be made regardless of any possible complaints concerning delivery or alleged counterclaims. Withholding payment is not permissible. KM Emporium GmbH is entitled to refuse to remedy any possible defects as long as the customer has not met its payment obligations. Payment of the purchase price is due even if the customer is in default of acceptance.
The customer can use the means of payment offered in the online shop under 'Payment options'.
The current payment fees which may be charged by KM Emporium GmbH can be seen under 'Payment options' and are shown in detail in the order process.
If payment is made by credit card or other means of instant payment, debiting is carried out when the order is placed.
9.2 Default of payment
If the customer fails to meet its payment obligations in whole or in part, all outstanding amounts owed by the customer to KM Emporium GmbH under any title whatsoever become due immediately (in the case of advance payment, within 8 calendar days of the first reminder) and KM Emporium GmbH can demand payment immediately and stop further deliveries of products to the customer without itself being in default. Failure to adhere to the conditions of payment entitles KM Emporium GmbH to withdraw from the contract and to assert claims for damages. KM Emporium GmbH is also entitled to withdraw from the contract and to demand the return of the item from the customer if the item has passed into the customer's possession before the purchase price has been paid. The customer has no right of retention.
In the event of any delay in payment or in the event of liquidity problems on the part of the customer, KM Emporium GmbH is entitled to demand advance payment for further deliveries or to deliver only subject to advance payment, even if other payment and delivery conditions were agreed on completion of the contract, without itself being in default.
KM Emporium GmbH will levy a charge for inconvenience caused; this amounts to CHF 20.00 for the 2nd reminder and CHF 50.00 for the 3rd reminder. If the reminders are unsuccessful, the invoice amounts can be assigned to a collection company. In this case, an additional effective annual interest rate of up to 15% on the invoice amount owed can be invoiced as of the due date. The collection company will claim the outstanding amounts in its own name and on its own account and may charge additional processing fees.
9.3 Retention of title
Ordered products remain the property of KM Emporium GmbH until full payment has been made to KM Emporium GmbH. KM Emporium GmbH is entitled to take back the products, and the customer is obliged to return them. KM Emporium GmbH is entitled to make a corresponding entry in the retention of title register (or to implement similar measures abroad). The customer is obliged to cooperate in any measures required to protect the property of KM Emporium GmbH (in particular, by completing the contract, the customer gives its consent to the entry of the retention of title in the retention of title register). Prior to the transfer of ownership, mortgaging, transfer by way of security, processing or transformation are not permissible without the express consent of KM Emporium GmbH.
Enforcement officers or third parties must be made aware of KM Emporium GmbH's ownership.
10 Change of order or cancellation
Orders oblige the customer to accept the products and services. KM Emporium GmbH may, at its own discretion, accept subsequent changes or cancellations of orders placed by customers and levy a charge for the inconvenience caused amounting to 20% of the cancelled order value, but at least CHF 50.00, as well as any loss in value of the cancelled products since they were ordered.
If (partial) delivery becomes impossible (resolutory condition) after an order has been placed or the completion of a contract in accordance with section 3, the customer will be informed immediately by e-mail. If the customer has already paid, this amount will be refunded. If payment has not yet been made, the customer is released from the obligation to pay. Further claims due to delay in delivery or failure of delivery are ruled out.
11 Return of defect-free goods
KM Emporium GmbH grants the right to return ordered products within a maximum of 14 calendar days of delivery.
Customers must provide notification of the return of the products by sending an e-mail to firstname.lastname@example.org and return them according to the information sent. The products must be properly packaged with all accessories in their original packaging. Used or damaged products will not be taken back or will be invoiced in full to the customer.
If customers exercise their right to return products, KM Emporium GmbH will refund the entire purchase price (less any external costs incurred by KM Emporium GmbH, such as import taxes, duties or customs (processing) charges, etc.). The customer will bear the costs of returning the products.
In this context, the customer assures KM Emporium GmbH that the details and list of products returned are complete and correct according to the return slip generated by the customer in the return process and that the return shipment actually contains the products designated on the return slip. The customer will indemnify KM Emporium GmbH in full against all third-party claims in connection with an incomplete or incorrect customs
declaration caused by the customer. KM Emporium GmbH is entitled to check the information provided by customers at random.
12 Repairs not covered by the warranty
The costs of repairs not covered by the warranty in accordance with section 7 are borne by the customer. In the case of products that have no discernible defects or where the defect is not covered by the warranty in accordance with section 7, KM Emporium GmbH reserves the right to invoice the customer for the costs of checking the claimed defect and the shipping costs.
13 Further provisions
13.1 Non-assignable returns
Returns that cannot be assigned to a customer or returned to a customer will be kept for six months by KM Emporium GmbH and then disposed of.
13.2 Data privacy
The KM Emporium GmbH privacy statement applies to the processing of personal data by KM Emporium GmbH.
13.3 Partial invalidity
Should individual provisions of these GTCs be or become invalid or contain omissions, this will have no bearing on the legal validity of the remaining provisions. In place of the invalid provision, a provision which most closely matches the provision intended by the contracting parties in economic terms will be deemed to have been validly agreed from the outset. The same applies in the event of an omission.
13.4 Legal venue and applicable law
All legal relationships between KM Emporium GmbH and its customers are governed by Swiss substantive law subject to the exclusion of the provisions of private international law (only Art. 116 IPRG (Private International Law Act), which explicitly permits an express choice of law such as this one, should not be affected by this exclusion) and subject to
the exclusion of the Vienna Convention on Contracts for the International Sale of Goods (CISG).
The exclusive legal venue for customers is the registered office of KM Emporium GmbH (Langendorf, Switzerland).
Langendorf, June 2020