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Conditions of Use

General terms and conditions of business

Information about Online Dispute Resolution (ODR): 
With effect from the first quarter of 2016, a service for the online resolution of disputes (the "ODR Platform") will be in place. It has been conceived and designed as a rapid and inexpensive way of settling claims arising from contracts made online. The platform can be accessed via the following link: http://ec.europa.eu/consumers/odr

§ 1 Scope of validity/term definitions
The following general terms and conditions of business apply to all contracts, deliveries and other services concluded between

SINA Spielzeug GmbH
Bahnhofstrasse 17
D-09544 Neuhausen
Germany


(hereinafter called the “Seller”)
and another party (hereinafter called the “Purchaser” or “Customer”) as regards products and/or services presented in the online shop or rendered to the Purchaser. With the tendering of their offer, the “Purchaser” acknowledges the following conditions. Our terms and conditions of business shall apply exclusively; no deviating, contrary or supplementary terms and conditions of business shall form a constituent part of the contract, even upon knowledge thereof, unless their validity is expressly agreed. Individual agreements override the terms and conditions of business and shall not be affected thereby.

Within the scope of these terms and conditions of business, the “consumer” is any individual who concludes a legal transaction for a purpose which can neither be attributed to their commercial nor their self-employed occupational activity.

A “business person” is any individual, legal entity, or incorporated partnership which, in concluding a legal transaction, is acting in pursuit of its commercial or self-employed occupational activity.

 

Important information/consumer information
In accordance with Art. 246 § 1, 2 and 3 EGBGB and § 312g BGB, consumer-relevant information can be found in § 2-7 of these general terms and conditions of business or, with regard to the description of goods, in the relevant article description or, when pertaining to contractual language, in § 1.

 

§ 2 Conclusion of contract

The "offers" in the online shop do not represent a binding offer on the part of the Seller. The conclusion of contract becomes effective through the offer and subsequent acceptance of an offer.

a)
In the case of an offer made over the telephone, the conclusion of contract becomes effective on verbal agreement with the Seller or on the dispatch of goods after the Purchaser has made an bid (order). Where the Customer places an order by fax or by email, the Seller can accept this offer within ten calendar days by a written or electronically transmitted (by fax or e-mail) order confirmation or by delivery of the goods. An order may be declined by the Seller.

b)
Insofar as the Customer only enquires after one item of goods or services by telephone or in writing (by fax or e-mail) and this is then quoted by the Seller by fax, e-mail or telephone including the price then the offer of contract exists on which the Seller is bound for ten calendar days and which the Customer can accept within the above grace period either in writing (by letter, fax or e-mail) or over the telephone. Any confirmation or offer made on the part of the Seller is conditional upon the goods or service being available. The Purchaser and the Seller have the right to withdraw from the contract in the case of non-availability. The Seller is obligated in the case of non-availability to inform the Purchaser without delay and to reimburse any relevant monies received without delay. Withdrawal from the contract is only possible for the Seller where the non-availability of the service due to force majeure or any other unforeseeable event occurs on conclusion of the contract or resulting from untimely delivery by a supplier, notwithstanding that the Seller has concluded a congruent hedging transaction.

c)
By ordering the goods via the "online order form", the Purchaser is making a binding offer of contract to the Seller. The Purchaser is bound by their offer for ten days. After placing an order, an order confirmation is automatically sent to the email address provided by the Purchaser. The contract is concluded with the receipt of this order confirmation. The Purchaser must ensure that no spam filter prevents the receipt of this email. Only the information contained in the confirmation is binding. If such a confirmation does not take place then the contract becomes valid on the dispatch of the goods concerned.

Order confirmation takes place on the condition that the relevant goods or service are available. The Purchaser and the Seller have the right to withdraw from the contract in the case of non-availability. The Seller is obligated in the case of non-availability to inform the Purchaser without delay and to reimburse any relevant monies received without delay. Withdrawal from the contract is only possible for the Seller where the non-availability of the service due to force majeure or any other unforeseeable event occurs on the conclusion of the contract or resulting from untimely delivery by a supplier, notwithstanding that the Seller has concluded a congruent hedging transaction.

Should the goods ordered be identified as unavailable in the online shop, then the Purchaser’s duty to inform and option to withdraw from the contract shall not apply. Payment for goods ordered shall then be considered deferred in this case until the Seller informs the Purchaser of the renewed availability of the goods or service. The above-stated prompt reimbursement of any relevant monies received shall not apply to the Seller in this case.

 

Information in accordance with Art. 246, section 3 EGBGB in connection with § 312g BGB
Technical steps for the conclusion of contract/correction of entry errors/saving of contractual text
1. The contract is concluded by using the online order form as follows:
On the Seller’s ‘goods offered’ page, the Customer will click on the "Order" button for the desired item. The “Shopping cart” is displayed by clicking on the shopping cart on the top right-hand side of the page. After placing any further goods desired in the virtual shopping cart, the Customer must then click on the "Checkout" button.
If the Customer was not yet registered for and logged into the online shop, a new page then opens. On this page, the Customer must either register for the first time and open a customer account (entry of customer details required) or sign in if they are already a Customer. If already registered, the Customer must fill in the "E-mail address" and "Password" boxes, and then click on the "Sign in" button. If not yet registered, the Customer must click on the "Continue" button under "New Customer".
The Customer will then fill in the form and, after checking it through, must confirm their agreement to these terms and conditions of business by ticking the relevant box. Next, the Customer must click on the "Continue" button. A welcome page will then open which is closed by clicking on "Continue". A new page will then open displaying the Customer’s delivery address and giving the Customer the opportunity to edit the address or add further addresses. The courier will also be displayed along with the relevant shipping costs.
Next, after making any necessary changes to their delivery address, the Customer must click on the "Continue" button. A new page will then open on which the Customer must select their desired method of payment and appropriate billing address. They will then be given the opportunity to edit the selected address.
After confirming that they have read and agree to these terms and conditions of business, the Customer must click on the "Continue" button again. A new page will then open summarising the order and providing an overview of all the relevant order details. At this point, the Customer will have the opportunity to check their order details once again before placing a binding order. The Customer may also correct any incorrect entries by clicking on "Edit" and using the conventional keyboard and mouse functions. The checking/correction of entries is possible at all stages of the order process using the conventional keyboard and mouse functions.
After the Customer has checked all of the data entered, they can click on "Buy" to conclude the order, whereby a binding order is placed as defined in § 2. The conclusion of contract thus takes place in accordance with § 2 of the Seller´s general terms and conditions of business (see above).

2. Information on saving the contractual text
The text of the contract is saved in writing by the Seller and sent to the Customer after the latter’s order has been placed, along with these general terms and conditions of business and the Customer’s details (e.g. by fax, e-mail or letter). The contractual text cannot, however, be accessed again by the Customer via the Seller´s internet site after placing their order.

3. Contract language
English and German are available as language for the contract.

§ 2a Return delivery costs in the event of the cancellation of distance selling contracts
It is agreed that the Purchaser, being the consumer, shall bear the routine costs of return delivery in case of cancellation (in accordance with the issued cancellation instructions) where the item to be returned does not exceed the sum of 40 euros or where, in the case of a higher item price, the Purchaser has not yet rendered full or part payment at the time of cancellation, unless the goods delivered do not match those ordered. In all other cases the Seller shall bear the costs of return delivery.

 

§ 3 Guarantee
In the case of claims against the guarantee arising from the purchase, the Seller is liable in accordance with statutory provisions insofar as there are no exceptions.

If the Purchaser is a consumer, the guarantee period for new items is two years. In the case of used items, the guarantee period is one year. If the Purchaser is a business person, the guarantee period for new items is one year. No other guarantees shall apply where the Purchaser is a business person. The above provisions do not apply where the defect has been deceitfully concealed or where a guarantee for the condition of the goods or service supplied has been given, or where the following provides otherwise. The guarantee period commences on the receipt of goods by the Purchaser.

Any claims arising from acquired guarantees or manufacturers´ guarantees remain unaffected.

The statutory periods of limitation for recourse to legal action in accordance with § 478 BGB remain unaffected.

The characteristics of the goods supplied according to the Seller´s specifications, any advertising or labelling only constitute an agreed condition in the case of business persons where this is expressly stated in the offer or confirmed in writing by the Seller, or is specified in the order confirmation.

We provide no guarantee for defects and damage which have arisen as result of unsuitable use or non-observance of the instructions for care and use or incorrect handling.

Drawings or illustrations (photographs) of the products in the online shop are not binding and do not constitute any warrant of characteristics unless this has been expressly agreed in writing.

Because the product is made from natural wood, certain deviations from the product illustration in terms of colour, texture and form are possible. This does not in principle constitute a basic defect where the deviation is still within reason for the Customer.
 
Irrespective of the foregoing provisions on guarantee curtailment on purchase, a period of two years applies as a fundamental contractual obligation for the statute of limitation of claims for damages arising from the guarantee in the case of injury to life and limb. In the case of all other claims for damages arising from the guarantee, this period is also two years, where these claims are based on gross negligence or wilful breach of obligations on the part of the Seller or their vicarious agents. The exclusion of guarantee in the case of business persons does not apply in the aforementioned cases.

§ 4 Prices
All prices stated are in Euros (exception: where the Customer accesses the site via a Google search, in which case prices are displayed in US Dollars (USD) or British Pounds (GBP), according to the daily exchange rate and depending on the country of origin of the search query) and include the relevant statutory value-added tax applicable on the day of dispatch unless otherwise agreed. In deviance to § 2, the prices stated for the articles labelled as “in stock” in the online shop are binding. No additional costs shall accrue to the Purchaser when ordering by means of telecommunication (other than the selected means of telecommunication itself) insofar as nothing hereinafter deviates to the contrary. When placing an order in the online shop or by telephone, then shipping costs shall be accrued in addition to the purchase price (except in the case of collection) in accordance with the list "Shipping costs" set out on the left hand side of the online shop page under “Information”. The costs are likewise always stated on the "Shopping cart" overview page. In the case of delivery to non-European countries, additional customs duties may be incurred.

In the case of contracts with business persons with whom a delivery period of more than four months from the conclusion of contract has been agreed, the Seller is entitled to increase the price appropriately and in line with cost increases in the event that the value-added tax rate changes within this period or that raw material supply costs and/or labour costs increase due to market prevailing prices. The business person is hereby only entitled to withdraw from the contract if the price increases by more than ten percent of the original price quoted. An increase in the rate of value-added tax shall not to be taken into account where the Customer is entitled to reclaim VAT.

 

§ 5 Payment conditions
Payment may made in advance by bank transfer or Paypal, or in cash on delivery (within Germany only) or in cash on collection. In the case of payment by bank transfer or cheque, the payment obligation is only fulfilled when the invoiced amount has been credited to our bank account. In individual cases, a direct debit or payment against invoice can be agreed separately.

§ 6 Delivery
In principle, any risks associated with the dispatch of goods shall be accepted by the Seller until handover to the Purchaser. This does not apply where the Customer is a business person as defined by § 14 BGB. In this case, all risks pass to the Purchaser as soon as the goods have been handed over by the Seller to a reliable transport person (carrier). Where the Purchaser, being a consumer, is in default of acceptance then the risk of accidental damage passes to the Customer from this point in time. If the dispatch is delayed at the request of the Purchaser then the goods are stored at the risk of the Purchaser. Insurance over and above the carrier’s existing insurance for goods in transit will only be taken out by the Seller for normal consignments (currently €500.00 per consignment with DHL and Hermes and €750 with GLS) on behalf of the Customer upon their written instruction.

In the event that the goods are returned to the Seller by the carrier because delivery was not possible then the Purchaser is to bear the costs for the unsuccessful dispatch. This does not apply where the Customer is exercising their right of cancellation through the refusal to accept delivery. Likewise, this does not apply where the acceptance of the consignment by the Purchaser was not possible due to unplanned temporary hindrance (e.g. sudden hospitalisation).
 
§ 7 Delivery period
The handover of goods to the carrier shall take place within five working days at the latest unless another delivery period is explicitly stated in the online offer. The provisions of § 2 remain unaffected by this. Other delivery dates are only binding where these have been agreed separately. The delivery period where the Customer in the online transaction is obligated to make payment in advance commences with the payment of the relevant monies owed or, where the Customer is not obligated to make advanced payment, with the completion of the contract in accordance with § 2. The method of payment selected by the Customer hereby applies.

As a rule, delivery within Germany takes one to two working days. The Customer can only enforce reimbursement for damages resulting from delays in delivery or from the Seller’s failure to fulfil their obligations in accordance with the measures stated in § 9.

§ 8 Refusal of acceptance/consequences of default
In the case of unwarranted refusal to accept the goods then the Seller will charge a lump sum portion of the costs of €12.00 plus any delivery costs accrued. If payment is to be made against invoice then, in the event of non-payment, reminder fees of €5.00 shall be levied from the first reminder. It is the Customer´s responsibility to prove that no or lesser damage has occurred. In the case of return, debit notes for which the Customer is accountable shall incur a processing fee of €12.00 per debit note unless the Customer provides evidence that damage has not occurred or has occurred to a significantly lesser degree.

§ 9 Liability
Irrespective of the provisions in § 3, the Seller is liable for damage and consequential damage other than that resulting other from injury to life and limb and health, or through culpable violation of a fundamental contractual obligation or futile expenditures, only insofar as this damage is due to wilful or negligent action on the part of the Seller or their vicarious agents. All claims for damages in the case of culpable violation of a fundamental contractual obligation are limited to foreseeable contract-typical damage. Liability for damage compensation above and beyond this is excluded. The provisions of the product liability law or other compulsory statutory provisions remain unaffected by this.

§ 10 Set-off/right of retention
A set-off with claims of the Seller is only possible where the demand of the Customer is uncontested or is established in law. This does not apply where it concerns a claim by the Customer which emanates from a non-cash claim entitling the refusal of performance. The Customer can only exercise a right of retention where the counterclaim is based on the same contractual relationship.

§ 11 Retention of title
All goods supplied by us remain our property until the goods supplied are paid for in full.

Where the Customer is a business person, this applies until the latter has discharged their liabilities from the mutual business relationship in full. The Seller is obligated at the demand of the Purchaser to release the goods insofar as the value of the goods provided as a security (against outstanding claims) exceeds the secured claim by more than 10%. A current account will not be agreed with the Purchaser, thus individual claims shall remain separate. The business Purchaser is entitled to resell the goods under retention of title. However, in doing so, the business Purchaser hereby assigns the individual claims from the resale up to the value of the purchase price agreed between the Seller and the business Purchaser for the goods under retention insofar as the claims from the business relationship are still outstanding. The Purchaser remains entitled to recover this claim even after assignation. The authority of the Seller to recover the claims themselves remains unaffected by this. If the Purchaser does not comply with their payment obligations, the Seller can demand that the Purchaser disclose the assigned claims and their debtors and give all details required for collection, surrender the associated documentation and inform the third party of the assignation. The above stated provision on release applies to the assigned claims accordingly. The business Purchaser must advise us without delay of any impairments of the rights of the Seller as regards the goods in the latter´s ownership and in particular of seizures and other attachments.

§ 12 Transport damage/notice of defects
We would ask the Purchaser being a consumer to point out goods with obvious damage to the packaging or to the contents to the carrier or to refuse acceptance and to contact us as quickly as possible. In the case of discovery of concealed defects we would likewise ask for a prompt report. The above requests do not constitute an obligation and have no effect on claims against the guarantee.

Where the purchase constitutes a business transaction for both parties within the meaning of § 343 of the HGB (Commercial Code) then § 377 HGB applies i.e. in particular that the Purchaser must point out defects in the item purchased without delay and at the latest within two weeks. Defects which cannot be noticed within this period even under careful examination must be brought to the attention of the Seller by the Purchaser without delay following their discovery. The Purchaser must have the damaged packaging confirmed in writing by the carrier on acceptance of the goods. Should such damage to the item later become evident then the Purchaser must notify the Seller without delay.

§ 13 Copyright
The Seller retains the rights of title to and copyright on drawings, cost estimates, plans, descriptions and other documentation or photographs. These may not be made accessible to third parties unless expressly consented to.

§ 14 Place of performance and court of jurisdiction
German law shall be applied exclusively. Where the Purchaser is a consumer the statutory provisions and regulations of their place of residence shall remain unaffected by this agreement insofar as these are more favourable to them. The application of UN purchasing shall be excluded. Where the Purchaser is a registered trader as defined by the HGB or legal entity under public law or public special assets, then Chemnitz is agreed as the court of jurisdiction for all disputes arising from the contractual relationship including disputes over bills of exchange and cheque receivables. Place of performance shall be the registered office of the Seller where the Purchaser is a business person and in other cases the place of residence of the Purchaser.

§ 15 Validity of individual provisions
Should any individual provision of these general terms and conditions of business be or become invalid, this shall not affect the validity of the remaining provisions. In the place of all invalid provisions, statutory provisions shall apply.

 

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