GENERAL CONDITIONS OF SALE
The following general conditions of sale govern any purchase transaction concluded on www.pomoca.com (hereinafter the “Website”) between POMOCA SA with its head office in Route de Préverenges 14, 1026 Denges, Switzerland and registered at the company register under CHE-101.713.847, e-mail: firstname.lastname@example.org, Tel. +41 21 821 52 72, (hereinafter, “Seller”) and any person, who places an order for the Seller’s products through the Website for his/her personal use and not for any commercial or business activity (hereinafter “Customer”).
- the Seller offers products of the brand “Pomoca”, i.e. goods and products in the sports/outdoor sector, for sale on the Website (hereinafter “Products”);
- the Website is primarily a marketing Website, but is also intended for commercial transactions between business and consumers (B2C). The offer of the Seller is exclusively intended for Customers with a billing and delivery address in Switzerland;
- all the distinctive signs and intellectual property related to the Website are the exclusive property of the Seller;
- these provisions are incorporated into and are part of the contract;
The parties hereby agree as follows:
1. SUBJECT OF THE CONTRACT
1.1 The subject of these general conditions, which are provided to the Customer for copying and retention pursuant to Article 12 of Legislative Decree no. 70 of 9 April 2003, is the sale of the Products online through the Website belonging to and operated by the Seller.
1.2 These terms apply to the online sale by the Seller and online purchase by the Customer, respectively, of the Products.
1.3 Key details of the products are illustrated and described on the Website, which provides an accurate, truthful, correct and not misleading description of each Product. Due to technical limitations of the Website, the photographs accompanying a product may not be perfectly representative of its characteristics and the products may differ slightly from those shown on the picture.
2. REGISTRATION TO THE WEBSITE
2.1. All purchases must be made in accordance with the following procedure:
a) Purchase in “guest” mode, i.e. with no requirement to register an account. By using “guest” mode, the Customer’s personal data will not be saved and stored on the Website for subsequent purchases.
2.2. The Customer shall not enter false and/or invented and/or incorrect data during the registration process. The Customer shall not use personal data, including e-mail addresses, of third parties without their consent or imaginary data or e-mail addresses during the registration process. The Customer remains entitled to purchase the Products on behalf of third parties and may indicate a different delivery name and address from his/her address. The Customer is solely responsible for the accuracy and truthfulness of the data provided.
3. PURCHASE PROCEDURE AND CONCLUSION OF THE CONTRACT
3.1 The Customer shall select the Products he/she wishes to purchase on the Website. Before completing the order, the Customer may, at any time, change the Products selected. By clicking on the button “BUY”, the Customer shall proceed to complete his order and will have the option to continue in “guest” mode, as specified under art. 2, by filling his/her contact details, by choosing the desired quantity and by controlling his/her order.
3.2 The general conditions of sale shall be reviewed online by the Customer before completion of the purchase process.
3.4 By clicking on the “CONFIRM ORDER” button, the Customer confirms his/her purchase order online and unconditionally accepts and agrees to be bound by these terms and conditions, and agrees that no other terms and conditions shall apply to the purchase unless agreed in writing with the Seller. Before completing his/her purchase, the Customer may correct and amend any personal data (name, address, etc.) provided.
3.5. The Customer’s order is deemed to be an offer to the Seller to purchase the Products ordered. The e-mail sent by the Seller upon receipt of the order and containing a summary of the same, does only constitute a mere acknowledgment by the Seller that the order has been received. The contract is considered to be concluded once the Customer receives a formal order and dispatch confirmation by e-mail, which should occur within forty-eight (48) hours from the receipt of the order by the Seller. This confirmation e-mail constitutes the Seller’s acceptance of the Customer’s order and the Seller shall be bound to sell and deliver the Products. The Customer is advised to print out and retain a copy of the general conditions as well as a description and specification of the Products purchased.
3.6 The Contract shall be deemed concluded in the place where the head offices of the Seller are located. Except where the Seller is prevented from performing this contract due to events beyond its control, the Seller undertakes to supply the Products ordered by the Customer, subject to availability pursuant to art. 5.
4.1 The retail prices of the products (hereinafter “Retail Price”) shown on the Website shall be expressed in CHF. The Website shall clearly indicate the Retail Prices for each product and the way to calculate the total price of the purchase. The total price of the purchase (hereinafter “Final Price”) will consist of the sum of the Retail Price and the cost of dispatch and delivery of the products by couriers and/or carriers engaged by the Seller. The Customer acknowledges to be aware that by confirming the purchase order he/she will be bound to pay the Final Price once the order is confirmed by the Seller.
4.2 The Retail Prices and Final Prices are inclusive of VAT and any other applicable taxes. The delivery charges are included and specified in the Final Price and, unless otherwise specified and barring special promotions occasionally offered by the Seller, shall be borne by the Customer. The Customer will be told the Final Price before he/she is asked to confirm the order by clicking on the “CONFIRM ORDER” button.
4.3 Despite the best efforts of the Seller, some Product(s) on the Website may be mispriced. Upon receipt of the order, the Seller will verify the pricing before taking payment. If, with the exception of promotional sales, the actual Retail Price, i.e. the price the Seller has decided to charge for a specific Product, is higher than the Retail Price shown on the Website, the Seller will contact the Customer to inquire whether the Customer wants to purchase the Product at the correct Retail Price. If the actual Retail Price is lower than the Retail Price on the Website, only the lesser amount will be charged and the Product(s) will be delivered.
5. AVAILABILITY OF PRODUCTS
5.1 The Seller shall use its best endeavours to keep the Website as updated as possible with regard to the availability of Products and shall check, before sending the formal confirmation pursuant to art. 3.5, the availability of the selected Product(s). The Customer expressly recognizes the option of the Seller to only partially confirm the order, since it may, nonetheless, occur that some or all of the selected Product(s) ordered by the Customer are not available. In that case, the contract will only be concluded for the Product(s) actually available and confirmed.
5.2 Should some or all Product(s) ordered be unavailable, regardless of whether the Customer’s order has been already confirmed, the Seller shall without delay contact the Customer and only the available Products will be delivered. The Retail Price for the unavailable Products will not be charged.
6. MODE OF PAYMENT
6.1 Without prejudicing the Seller’s rights to allow and implement other methods of payment in the future to offer an even higher level of service to users of the Website, the Customer acknowledges and accepts that he/she may currently only pay:
a) Payment with invoice, sent with the products. In case of purchase on invoice, the purchase price is due on the day the customer receives the delivery. If the payment is not done within 30days after the delivery, the Customer shall be in default. In this case, the Seller reserves the right to charge the customer a reminder fee in addition to the invoice amount. Although no fee is charged for the first reminder, the fee for the second reminder is CHF 10.00 and CHF 14.00 for the third reminder. The unpaid amount of the invoice (including interest on arrears and reminder costs) may be assigned or sold for collection. In addition to the payment of the invoice amount, the customer is obliged to reimburse all costs arising from the delay in payment. You agree to receive invoices, credit notes and reminders in electronic or paper form.
7. MODE OF DELIVERY
7.1 The Seller shall deliver the Products, which have been ordered by the Customer and confirmed by the Seller, to the Customer at the address provided by the Customer in the purchase order, by means of couriers and/or carriers engaged by the Seller. Delivery will take place approximately 5 (five) days after the Seller receives the order, as indicated in the confirmation e-mail sent to the Customer, and in any case, within 30 (thirty) days from the date of receipt of the confirmation e-mail by the Customer.
7.2 Upon receipt of the Product(s), the Customer shall verify that the packaging and the Product(s) are intact and that the Product(s) delivered correspond to the Product(s) indicated in the order confirmation. The Customer shall also immediately report any tampering or damage to the packaging and the Product(s). The Customer is advised to inform the Seller of any problems regarding the delivery of the products, in order for the Seller to improve the quality control over the services supplied, directly and/or through third parties.
8. LIMITATIONS OF LIABILITY
8.1 The Seller shall not be liable for minor negligence. Liability for breaches of contract by vicarious agents is excluded (Art. 101 para. 2 CO). The Seller assumes no responsibility for late or non-delivery of the goods due to causes of force majeure such as accidents, explosions, fires, strikes and/or shutouts, earthquakes, floods or other similar events that totally or partially hinder execution within the time indicated under art. 7.1 or otherwise agreed in writing between Customer and Seller.
8.2 The Seller shall not be responsible towards the Customer, except in cases of willful intent or gross negligence, for lack of availability or malfunctions related to the use of the Internet that are outside the control of the Seller.
8.3 The Seller will not be responsible toward any party or third party for damage, losses and costs sustained as a result of failure to comply with the provisions of the contract for the reasons mentioned in this article, and the Customer is only entitled to a refund of any amount paid.
8.4 The Seller assumes no responsibility for the fraudulent, illicit or unauthorized use of credit cards or other methods of payment by third parties, if it demonstrates that it took all the possible precautions according to the best practice and experience at the moment of purchase and based on ordinary diligence.
8.5 The Seller shall have no liability for the erroneous issue of accounting and tax-related documents and for delays and/or not executed deliveries or for any additional costs sustained by the Customer due to false, incorrect or imaginary data provided by the Customer.
8.6 The Seller shall not be liable, except in cases of willful intent or gross negligence, for the unavailability of any Product.
9. WARRANTIES AND ASSISTANCE
9.1 In the event of questions, complaints or suggestions, the Customer may contact the Seller at the e-mail address: email@example.com, or at Customer Care through the specific form available on the "Contact" page of the Website.
9.2 The Customer must check the delivered Products immediately, as soon as the usual course of business permits, and notify the Seller of any defects without delay. Failure by the Customer to make a complaint shall be deemed to be approval of the Products. Approval shall in any case be deemed to have been given if the Customer does not notify the Seller of any defects by e-mail within 8 days of delivery. Hidden defects must be reported to the Seller immediately after their discovery. Please note that the warranty period does not reset with the repair/replacement service.
9.3 The Seller guarantees the elimination of defects within the legal deadlines. The elimination of defects shall take place at the Seller's discretion either by subsequent performance, i.e. repair of defects, or by delivery of a defect-free Product (replacement delivery).
9.4 If subsequent performance fails, the customer is entitled to withdraw from the contract. This does not apply in the case of minor defects. The right to a price reduction is excluded. This exclusion of liability extends to all claims in conjunction with warranty claims, whether these are contractual claims (Art. 97 ss. CO), claims in tort (Art. 41 ss. CO), or rescission of the contract due to error (Art. 23 ss. CO).
10. RIGHT OF WITHDRAWAL
10.1 Without prejudice to of the Customer’s rights under art. 9, the Customer shall be entitled to withdraw from the contract concluded between the Seller and the Customer without giving any reason within 30 days from the day on which he/she or a third party indicated by him/her (other than the carrier or the courier) receives the last of the Product(s) purchased.
Should the Customer decide to return the products invoking his/her right of withdrawal, he/she shall notify the Seller within the time period specified under art. 10.1, sending an e-mail to firstname.lastname@example.org or contacting customer service using the specific form available on the “Contact” page of the Website.
10.2 The burden of proof regarding the exercise of the right of withdrawal, as set forth in this article, shall rest with the Customer. To meet the deadline set forth under art. 10.1, it is sufficient that the communication of withdrawal is sent before the cancellation period has expired.
10.3 If the Customer exercises his/her right to withdrawal, he/she shall return the Product(s) to the Seller at the following: Pomoca SA, Route de Préverenges 14, 1026 Denges, Switzerland. The Customer shall bear all expenses for returning the Product(s) to the seller unless otherwise agreed between Customer and Seller. The Product(s) shall be sent to the Seller within 14 (fourteen) days from the day on which the Customer communicates the withdrawal from the contract to the Seller.
10.4 The Seller shall reimburse, in case of withdrawal from the contract, the Retail Price received for the Product(s) purchased (except the delivery costs) within 15 workdays from the day on which the Seller has received the communication of withdrawal Form of the contract. For the reimbursement, the Seller shall use the same method of payment used for the purchase, unless otherwise agreed with the Customer. The reimbursement does not entail any fees at the expense of the Customer. The Seller may not proceed with the reimbursement unless the Seller receives the Product(s) back or receives evidence from the Customer that the Product(s) have been sent back, whichever is the earliest.
10.5 In order to have the right to a full refund, the Product(s) must be returned intact in their original packaging. The Customer is only entitled to use the Product(s) to the extent necessary to check whether the Product(s) comply with their description and function as expected. The Customer is liable for any loss of value of the Product(s) due to the use of the Product(s) by the Customer which exceeds the legitimate use as described under this clause. In such a case, the Seller is entitled to make a proportionate deduction of the refundable amount, which takes into account the loss of value as described above.
10.6 The Customer’s right to withdraw from the contract shall not apply to contracts regarding the purchase of Product(s) which are made to measure or clearly personalized or which by their nature cannot be returned without risk of rapid deterioration or alteration.
11.1 Except for examples expressly set out above, or where required by law, the Seller and the Customer shall communicate primarily through e-mail messages, which both parties acknowledge and agreed is a valid medium of communication. The Seller may also contact the Customer, either via Customer Care or through its third party logistics operators, for the purposes of dealing with the purchase of the Customer and the delivery or return of the Product(s), using the telephone number provided by the Customer.
11.2 Written communications to the Seller, as well as any complaints, shall be deemed valid only if they are sent to the following e-mail address: email@example.com.
11.3 Both parties may change their e-mail addresses at any time for the purposes of this article, provided that they notify the other party promptly using the existing e-mail addresses known to the parties.
12. PROCESSING OF PERSONAL DATA
12.1 The Customer expressly declares that he/she has read and accepted the statement on the processing of personal data of the Seller.
13. LEGAL JURISDICTION
13.1 In the event of any disputes under or in connection with this Agreement, the parties agree to try to resolve disputes amicably between themselves.
13.2 If any dispute has not been resolved out-of-court, the dispute shall be referred to the jurisdiction of the courts of Denges (Switzerland).
14. APPLICABLE LAW
14.1 The contract shall be governed by Swiss law.
15. FINAL CLAUSES
15.1 The provisions contained in this general conditions of sale nullify and replace any prior agreement, understanding or negotiation, written or verbal, between the parties concerning the purchase of the Products ordered.
15.2 Should any clause be found unenforceable, this shall not invalidate the entire contract.
15.3 The contract for the purchase of the Products will be concluded in English.
15.4 The Seller may amend these General Conditions of Sale at any time. The contract concluded between the Customer and the Seller will be governed by the General Conditions of Sale in force at the time of conclusion of the contract between the Customer and the Seller.