General Terms and Conditions (GTC)
§ 1 General - Scope of application
01. - THESE GENERAL TERMS AND CONDITIONS OF SALE (THE "TERMS") ARE APPLICABLE TO THE PERSON, FIRM, COMPANY OR OTHER PURCHASE ENTITY (THE "CUSTOMER") AND WICKEY CORPORATION ("WICKEY") FOR GOODS ORDERED BY THE CUSTOMER IN WHATEVER FORM OR QUANTITY (THE "GOODS") THROUGH WICKEY'S WEBSITE www.wickey.com (THE "SITE"). THE SALE OF GOODS BY WICKEY TO CUSTOMER IS EXPRESSLY LIMITED TO CUSTOMER'S ACCEPTANCE OF THE TERMS OF WICKEY'S PRODUCT LISTING (THE "LISTING"), THE CONFIRMATION EMAIL (THE "ORDER CONFIRMATION"), AND THE TERMS AND CONDITIONS CONTAINED HEREIN (COLLECTIVELY, THE "AGREEMENT"). NO MODIFICATION OR WAIVER OF ANY OF THESE TERMS AND NO ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS SHALL BE EFFECTIVE UNLESS AGREED TO IN WRITING SIGNED BY BOTH PARTIES. NO ORAL AGREEMENT, COURSE OF PERFORMANCE, OR MEANS OTHER THAN SUCH WRITTEN AGREEMENT SIGNED BY BOTH PARTIES EXPRESSLY PROVIDING FOR SUCH MODIFICATION OR WAIVER SHALL BE DEEMED TO MODIFY OR WAIVE ANY OF THE TERMS OF THIS AGREEMENT.
02. - The version of these Terms then in effect at the time the contract is concluded shall apply.
03. - The Order Confirmation controls with respect to the specifics of the order, including the terms of delivery, over any conflicting provisions that may exist in any other agreements. Deviations from these Terms, such as supplementary agreements or any other informal understandings, will only be binding if they are expressly agreed to by WICKEY in writing. The same applies to deferred amendments and supplements to the already completed contracts for delivery.
§ 2 Conclusion of contract
01. - WICKEY's Listings are non-binding unless expressly designated as binding and do not constitute an offer, but are instead non-binding invitations to the Customer to submit a binding offer.
02. - By ordering the desired GOODS, the Customer makes a binding contractual offer. In order to submit a legally binding offer, the Customer places the selected GOODS in the virtual shopping basket, goes through the electronic ordering process and completes the ordering process by clicking on the "Buy" button.
03. - WICKEY may accept or reject the contractual offer contained in the order within two (2) days of receipt by WICKEY.
04. - WICKEY shall confirm receipt of the Customer's order without delay. The Order Confirmation shall constitute a binding acceptance of the order. Receipt of an order by telephone shall not constitute binding acceptance by WICKEY.
05. - WICKEY may limit the order quantity to a customary household quantity.
06. - If the Customer orders the GOODS electronically, the order confirmation shall be stored by WICKEY and sent to the customer by e-mail after conclusion of the contract as well as the legally effective GTC.
07. - Customer shall be solely responsible for the assembly of the GOODS.
§ 3 Customer account
01. - The Customer may place the order as a guest or as a registered customer via their customer account. In the case of registration, the Customer must fill out the registration form completely and correctly. No nicknames, false statements, abbreviations or disguised names are permitted. The Customer must provide truthful, accurate, up-to-date and complete personal or company details (hereinafter referred to as "Registration Data"). The Registration Data shall be updated by the Customer as required and changes shall be entered within a reasonable period of time. After registration, WICKEY shall send the Customer a confirmation e-mail. The Customer must confirm the link inserted in the confirmation e-mail to authorize their profile. The Customer has no right to registration. WICKEY may reject the registration at its sole discretion. WICKEY does not check the Registration Data and is not obliged to do so.
02. - Upon successful registration, a profile is created for the Customer, which the Customer can access using a user name and password provided during registration ("Access Data"). The Customer must keep their Access Data secret and ensure it is not accessible to third parties. The Customer shall inform WICKEY immediately of any known or suspected misuse or disclosure of their Access Data. Customers may not take any action that could impair the smooth operation of WICKEY's website or its use by other customers or WICKEY.
03. - WICKEY may delete the customer account and block the Customer if the Customer has provided untrue, inaccurate or incomplete Registration Data.
§ 4 Retention of title
01. - WICKEY shall retain title to the GOODS until the purchase price has been paid in full.
02. - The Customer shall treat the GOODS with reasonable care for the duration of the retention of title. The Customer must inform WICKEY immediately in writing of all access by third parties to the GOODS, in particular of enforcement measures, as well as of any damage to or destruction of the GOODS.
§ 5 Conditions of return
01. - The Customer may return the GOODS within thirty (30) days of delivery. Prior to returning the GOODS, Customer must notify WICKEY in writing on his return request. For defected GOODS, see § 9.
02. - Wickey will organize the return shipment at the customer's expense. As Wickey subsidized the sending costs, the return shipment costs will be higher as the customer has to bear the actual transportation costs. Wickey customer service will provide customers with information on the applicable actual return transportation costs after customer has notified Wickey according § 5 (1). Customer will also be charged a restocking fee equal to 10 percent (10%) of the purchase price for any returned GOODS. If the GOODS are not in new and unused conditions WICKEY may also deduct a restoration fee. Wickey shall refund the customer the purchase price minus the return shipment costs and the restocking fee and a possible restoration fee after receipt of the GOODS.
03. - The Customer must pack the GOODS for return transport and provide them “free curbside” in commercially reasonable packaging.
04. - Any damage that already exists at the time of delivery must also be reported within the first 30 days in writing. After expiry of the 30 days, an exchange or return is no longer possible.
§ 6 Remuneration
01. - The quoted price is binding and all applicable prices are set forth alongside the GOODS offered on the Site. Such prices are subject to change at any time by WICKEY at its sole discretion.
02. - In cases of obvious error in listed pricing WICKEY may cancel an order at its sole discretion. In such instances, WICKEY will provide a written explanation of such error and offer the Customer an opportunity to place a new order for the GOODS at the updated price.
03. - Customer shall pay the prices stated at the time of the transaction as well as any: (i) sales, use, excise, and related taxes; and (ii) shipping and handling charges.
04. - Payment may be made with a valid credit or debit card, or use of a bona-fide electronic payment provider as offered on the Site. WICKEY may exclude individual payment methods.
05. - In the case of payment in advance, the Customer shall pay the purchase price within seven (7) days of receipt of the Order Confirmation. After expiry of this period, the Customer shall be in default of payment and statutory interest rates shall apply. Wickey may terminate the agreement in such a case.
06. - In the case of credit or debit card payment, WICKEY shall debit the Customer's credit or debit account as soon as the order has been placed. If the payment method is any other form of bona-fide electronic payment provider, such payment provider's terms and conditions shall govern the payment mechanics.
§ 7 Delivery
01. - Unless the Parties agree otherwise, deliveries shall be made FOB Destination.
02. - The choice of transport route and means shall remain at WICKEY's sole discretion unless otherwise agreed.
03. - GOODS that cannot be delivered as parcels shall delivered by the respective forwarding agent selected by WICKEY. Delivery is "free curbside", meaning it will be dropped off at the property boundary at the side of the front door.
04. - WICKEY at the moment does not offer any self-collection options.
05. - WICKEY shall not be responsible for delays or non-performance caused by activities or factors beyond its reasonable control, including without limitation, war, weather, strikes, floods, lockouts, fires, pandemics, local disease outbreaks, public health emergencies, acts of God, terrorism, and/or delivery, vendor, supplier, or other third-party delays, non-performance, or failures of any kind.
§ 8 Transfer of risk
01. - The risk of accidental loss and accidental deterioration of the GOODS shall pass to the Customer upon delivery of the GOODS, even in the case of sale by dispatch.
02. - Customer's default of acceptance shall be deemed equivalent to handover.
§ 9 Warranty
01. - WICKEY represents and warrants that any GOODS purchased from the Site, when used specifically as authorized by WICKEY and without modification thereto, will conform in all material respects to:
a. The specifications set forth on the Site; and
b. Any instruction that WICKEY provides upon delivery of the GOODS
02. - WICKEY further represents and warrants that any GOODS purchased from the Site will be safe for their intended use and free from defects in material, functionality, and workmanship. This warranty shall not apply when GOODS are subject to: (i) negligence, (ii) misconduct, (iii) misuse, (iv) abuse, (v) accident, (vi) improper installation, handling or storage, (vii) unusual environmental conditions, or other extreme stress, (viii) alteration or repair by anyone other than WICKEY (or one of its authorized representatives), (ix) use with any third-party product or service, (x) use in violation of any provided instructions, (xi) damage caused by natural wear and tear, (xii) minor defects that do not significantly impair the value or use of the item, or (xiii) claims arising out of personal injury.
03. - Customer's sole remedy with respect to a breach by WICKEY of any of its warranties shall be to repair or replace the GOODS in questions. It is at the discretion of Wickey whether it repairs or replaces the GOODS in question. Any claim made hereunder shall be made in writing within five (5) days following the time the Customer actually discovered or should have discovered any defect(s) or non-conformance.
04. - Kits are products that are delivered as a set of individual, prefabricated, and unassembled parts. Insofar as only individual parts of a kit to be assembled are defective and the Customer chooses replacement of the kit as a remedy, WICKEY may refuse the new delivery of a new kit if delivery of such kit would create disproportionate or unreasonable costs. In this case, WICKEY may limit the replacement to the defective individual part. WICKEY may only limit the replacement to the defective individual part if the individual part was neither installed nor firmly connected to other parts at the time of delivery and the individual replacement part is an equivalent new individual part.
05. - WICKEY grants a durability warranty (the "Durability Warranty") on all wooden elements of all play towers and on all swings if (i) the purchased item was properly installed in accordance with the installation instructions, (ii) swing anchors officially authorized by WICKEY (when included in the package) were used for this installation and were properly installed in accordance with the installation instructions, (iii) these anchors are used properly and permanently together with the purchased item for the entire service life of the purchased item.
06. - This Durability Warranty includes WICKEY's liability for the rotting of wooden parts of the purchased item due to weather conditions. The Durability Warranty does not apply to additionally purchased accessories that are not included in the scope of delivery. The duration of the Durability Warranty (the "Durability Warranty Period") on wooden parts begins on receipt of the GOODS and is applied as follows: five (5) years when buying a WICKEY playset, with a one (1) year warranty for non-wooden parts in the WICKEY playset; ten (10) years when buying additional officially authorized anchors (together with the playset) by Wickey to also fix the playset or when buying the five (5) year warranty as a separate sold upsell item from WICKEY. This upsell can only be purchased once and together with the playset; with this Customer can get up to fifteen (15) years of Durability Warranty when buying all anchors to fix the entire play set and buying the separate five (5) year warranty as a separate sold upsell item. The Durability Warranty does not apply to beds, spring rockers, sandboxes and products intended for public use. The Durability Warranty expires if the purchased item is sold and the date of expiration shall be the date of the conclusion of the sale transaction. If defects are recognized by the manufacturer, the costs arising from a recall and return action are not covered by this warranty.
07. - The Durability Warranty services will only be provided if the Customer submits within the Durability Warranty Period
a. Photos of the defects in the wooden parts of the play tower or swing,
b. Photos of the anchoring; and
c. A copy of the invoice or Order Confirmation. The invoice or order confirmation must show which products were purchased and that the corresponding anchors were also purchased.
08. - The products sold by Wickey are intended for residential use only. Any use of this product outside of a residential setting will make any warranty or liability given null & void.
§ 10 Limitations of liability
01. - SUBJECT TO APPLICABLE LAW, THE REMEDIES SET FORTH ABOVE ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES AND WICKEY'S ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF ITS LIMITED WARRANTY. SUBJECT TO APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL COMPANY'S OBLIGATION OR LIABILITY HEREUNDER EXCEED THE PURCHASE PRICE CUSTOMER PAID FOR ANY GOODS. ADDITIONALLY, SUBJECT TO APPLICABLE LAW, UNDER NO CIRCUMSTNACES WILL THE COMPANY BE LIABLE FOR ANY LOSS OF USE, DATA, BUSINESS GOODWILL, REPUTATION, OR REVENUE, AND/OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OR OTHER DIRECT OR INDIRECT LOSSES OF ANY KIND.
§ 11 Final provisions
01. - The place of performance of the Agreement is WICKEY's registered office if the Parties do not agree otherwise in the Order Confirmation.
02. - The assignment of a claim of the Customer under the Agreement is only permitted with the express written consent of WICKEY.
03. - The transfer of the Agreement, or any part thereof, including the rights and obligations therein, to third parties is only permitted with the prior written consent of WICKEY.
04. - Changes and additions to the Order Confirmation or the Terms must be in writing to be effective. The same applies for the cancellation of this formal requirement.
05. - These Terms are for the sole benefit of the Customer and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
06. - This Agreement, and all disputes arising out of or in connection therefrom, shall be governed by the Uniform Commercial Code and other applicable laws in effect in North Carolina on the effective date, including its choice of law provisions. The provisions of the United Nations Convention on the International Sale of GOODS shall not apply to this Agreement.
07. - Charlotte, North Carolina shall be the sole and exclusive jurisdiction and venue for any litigation, special proceeding, or other proceeding between the parties that may be brought or arise out of or in connection with or by reason of this Agreement.
08. - WICKEY's failure to enforce any of its rights hereunder shall not constitute a waiver of its right to make such enforcement in the future, subject to applicable law.
09. - Should any provisions or these Terms of the underlying Order Confirmation, in whole or in part, be invalid, ineffective, unlawful, or unenforceable, the remaining provisions shall remain unaffected. In such event, the parties shall replace the invalid, ineffective, unlawful, or unenforceable provision with one that achieves more closely the economic purpose of the provision to the extent permitted by law.