Version 1.0.1 – 2..02.2019
General Terms and Conditions
between Bar9 GmbH, Ravensberger Straße 17a, 10709 Berlin, fax: +49(0)32226424420, entered in the commercial register of the District Court ( Amtsgericht) of Charlottenburg under commercial register number (HRB) 192010 B, represented by managing director Philip Scigala, VAT ID no.: DE 315902106 (hereinafter referred to as “ Bar9“, “ we”, or “ us“) and the Client (hereinafter referred to as “ Client“ or “ you”; Bar9 and the Client together: “Parties”).
The goods offered by Bar9 are raw materials, some of which are subject to considerable price fluctuations. Even if precious metals such as gold are considered a “safe investment” with a stable value, we would like to point out the speculative nature and price fluctuations dependent on the international financial and commodity market, amongst other things. Price development is hereby based on supply and demand, and is determined by numerous factors. This may lead to, among other things, a risk of a loss of value caused by an increase in production capacity on the one hand or a drop in demand on the other. Under no circumstances is Bar9 liable for any potential loss caused by the occurrence of such risks.
You will receive NO investment or asset advice from us! You are solely responsible for the decisions you make involving trade with precious metals. The information we provide does not replace advice and information tailored to your needs, objectives, knowledge, experience, or circumstances. Profits generated in the past are not indicative of future yields.
We explicitly do not offer investment or asset advice and/or brokering services. We recommend seeking assessments from professionally suitable advisors before placing an order if necessary.
Scope of application, definitions
- For all contracts (purchase and storage agreements) that are concluded between you as the Client (consumers and businesspeople) and us as operators of the online shop at www.bar9.com or in other ways by means of distance selling or electronic commerce, these General Terms and Conditions (GTCs) apply in the version that is valid at the time of the order.
- Different or additional general terms and conditions of the Client are not recognised, unless we agree explicitly in writing.
- A consumer in the sense of the legal definition is any natural person that concludes a legal transaction for purposes that can mainly be assigned to neither their commercial nor their independent professional activities. A businessperson is a natural or legal person or a partnership with legal capacity that is executing their commercial or independent professional activity when concluding a legal transaction.
- These GTCs also apply to businesspeople within the context of ongoing business relationships for future transactions, even if the Client only becomes aware of these Terms and Conditions after the first conclusion of a contract between the contracting Parties.
- These GTCs are occasionally updated by us. Before each order, please display the GTCs and familiarise yourself with the Terms and Conditions in each valid version. If possible, print the GTCs for later review and/or save them locally. We will inform the Client in text form, if they are a businessperson, of changes to these GTCs at the latest four (4) weeks before the point in time in which they become effective. The consent of the Client that is a businessperson will be considered granted if they have not indicated their rejection in text form by the point in time in which the changes become valid. We will then separately refer the Client, if they are a businessperson, to this consent in our modification notice.
Offer, conclusion of contract
- The presentation of the precious metals and other services (storage) in our online shop is non-binding and does not constitute a binding offer to conclude a contract.
- An order in our online shop is only possible after prior personal registration, within which you create a personal user account by entering your complete and truthful details and are allocated a password. The details about having a user account with us are set out in Section 11 of these GCTs: “User account, duty of cooperation of the Client”.
- You will be guided through the process required to place an order via our online shop (order routine). By clicking on the order button “Order and pay” ( Zahlungspflichtig bestellen) after fully completing the order page, you will submit a binding transactional offer in accordance with § 145 of the German Civil Code (BGB) to conclude a purchase and storage agreement. Before that, you can check your entries on the order overview page and correct them if necessary. Please note that your order of precious metal is binding as soon as your order is received by us and cannot be revoked by you: see also under Section 7 of these GTCs: “Cancellation right and exclusion”.
- When ordering via our online shop, directly after sending your order you will receive an email from us in which we will confirm receipt of your order (order confirmation). The order confirmation does not yet contain the binding legal acceptance by us of your order.
- We can accept your offer to conclude a purchase and storage agreement within five (5) working days (not including Saturdays, Sundays, and statutory public holidays) from the sending of your order by mailing an order confirmation and invoice in text form; e.g. by post (§ 126 of the BGB). During this time, you are bound by your order. Before we accept your offer by sending an order confirmation, we are free to decline acceptance of your order, in full or in part, during the offer acceptance period without stating reasons. We will not unduly refuse to accept your order.
- Should a purchase and storage agreement not come about between us and you, or only do so partially, you will be informed about this promptly. We will immediately reimburse any consideration already provided to us, via the channel through which we received your consideration.
- We are entitled to revoke our order confirmation if the presentation in our online shop and/or the order confirmation mistakenly contains errors or incompleteness that have a detrimental effect on the content of the Contract (e.g. unintentional deviations from the respective current market price, particularly due to incorrect data processing). In this case, we will declare the revocation within five (5) working days after discovering the error (e.g. via email) and immediately reimburse you the purchase price already paid, if applicable, including ancillary costs. Our statutory rights, in particular to contest the Contract due to error, hereby remain unaffected.
- After the payment of the purchase price, Bar9 will provide the Client with the ownership of the purchased precious metal by granting fractional co-ownership of a collective holding of physical precious metals in bar form (precious metal collective holding) in the possession of Bar9. The storage provisions of the precious metals are specified in Section 9 of these GTCs: “Storage terms, price and cancellation”. The co-ownership of the precious metal collective holding is set out in more detail in the following Section 4 of these GTCs: “Co-ownership of the collective holding, management authorisation”.
- Transfer of ownership is carried out by granting direct ownership, which takes place via the booking of the purchased quantity in the precious metal deposit held by Bar9. Starting on today’s date, the Parties declare their agreement regarding the transfer of ownership.
- A physical delivery of the precious metals will take place in accordance with the requirements set out in Section 10 of these GTCs: “Handing over of precious metals, force majeure”.
Co-ownership of the collective holding, management authorisation
- The amount of the respective precious metal entered in the precious metal management deposit is decisive for the determination of the co-ownership share of the precious metal collective holding of Bar9.
- The statutory regulations for the collective management and disposal in § 742, § 744 to § 746, and § 747(2) of the BGB are excluded. The entitlement of the Client to cancellation is satisfied upon the fulfilment of the requirements specified in Section 10 of these GTCs by the delivery of the precious metals.
- Bar9 can hand over to any Client the quantity of precious metal due to them from the precious metal collective holding, or remove quantity of precious metal that Bar9 is itelf entitled to. This does not require the consent of the other parties involved.
- The applicable sale price on the date the payment of the purchase price is received (effective date) is considered the one agreed upon. The precious metal prices stated in our online shop are subject to final price setting on the effective date. The Client therefore declares their agreement to the specific quantity of precious metal purchased being accordingly set only on the effective date.
- The precious metal prices stated in our online shop are updated daily and calculated using the average price of international trade and commodities exchanges. A price increase on the effective date will affect the quantity of purchased metal as will a corresponding price drop. The smallest unit of precious metal that can be purchased is 1/1000 of a gram.
- The precious metal prices are in EUROS and include, if applicable, the value added tax at the statutory rate (currently 19 percent). In the case of the precious metal gold, value added tax is not levied, in accordance with § 25c of the German Turnover Tax Act (UstG: Umsatzsteuergesetz).
- With the storage of the precious metals, monthly storage costs also apply. The amount of the storage fee is dependent on your co-ownership share in the precious metal collective holding, and is specified under “ storage terms, prices and cancellation” in Section 9.6 of these GTCs. The storage fee will be due monthly and deducted according to the amount of your co-ownership share.
Payment terms, withdrawal and compensation
The payment of the purchase price identified provisionally in the invoice will take place in accordance with options named in the online shop under “payment methods” (Zahlungsarten). Currently, only advance transfer (advance payment) to the following bank account of Bar9 is available:
Account holder: Bar9 GmbH
IBAN: DE07 1005 0000 0190 6918 40
Bank: Berliner Sparkasse
- The purchase price is payable immediately without deductions upon conclusion of the Contract. The payment must be made within three (3) working days, namely by final and unconditional crediting to the named account belonging to Bar9.
- Any costs in connection with the payment that are charged to you or us by third parties and over which we have no influence (e.g. fees for foreign accounts, chargeback costs) must be borne and, if necessary, paid back to us by you.
- If the payment is not carried out within the above payment time, we – even without the setting of a prior grace period ( drop-dead date) – are entitled to withdraw from the Contract and have the right to default interest and compensation. Our compensation claim, depending on the amount, consists of at least the price change that has occurred for the precious metal on the financial market in the meantime ( price deterioration).
- Bar9 reserves the right to subject payments to more precise examination (e.g. payments by third parties) and, if necessary, reject them. We are also entitled to withdraw from the Contract if a payment already made is cancelled for reasons for which we are not responsible ( chargeback) or there are effective indications of improper payment (e.g. transfer fraud). Further claims, particularly to compensation, are reserved.
Cancellation right and exclusion
(Precious metal purchasing in distance selling/electronic commerce)
Please note that the price of precious metals is adjusted daily to correspond with the current precious metal prices, and that there are different terms and conditions when ordering goods for which the prices in the financial market are subject to fluctuations. The price of precious metals depends on fluctuations in the financial market over which we have no influence and that could occur within the otherwise existing cancellation period. Therefore, in accordance with the regulation in § 312g (2) No. 8 of the BGB, relevant in relation to the purchase of precious metals, there is no right of cancellation, even for consumers. Your order of precious metal is therefore binding immediately after we receive your order and cannot be revoked by you.
(Storage agreement in distance selling/electronic commerce)
Regarding the storage agreement concluded via our online shop or as another distance selling transaction, the Client that is a consumer is entitled to cancellation based on statutory provisions. We have provided you with information about this below, in accordance with the statutory template. A revocation of the storage agreement does not affect future purchase contracts concluded for precious metals.
You have the right to withdraw from the storage agreement within fourteen days without stating reasons.
The cancellation period is fourteen days from the date of the conclusion of the Contract.
In order to exercise your cancellation right, you must inform us (Bar9 GmbH, Ravensberger Straße 17a, 10709 Berlin, fax: +49(0)32226424420, email: firstname.lastname@example.org) by means of a clear declaration (e.g. a letter sent by post, fax, or email) of your decision to cancel this storage agreement. You can use the attached cancellation form template, but this is not mandatory.
To adhere to the cancellation period, it is sufficient for you to send the notification that you are exercising your right of cancellation before the expiry of the cancellation period.
Consequences of cancellation
If you cancel the storage agreement, we must repay you all payments that we have received from you in relation to the storage agreement, immediately and within fourteen days at the latest from the date on which we have received the notification about your cancellation of the storage agreement. For this repayment, we will use the same payment method that you used for the original transaction, unless explicitly agreed to otherwise with you; in no case will you be charged fees for this repayment.
If you have requested that the services (storage) begin during the cancellation period, you must pay us a commensurate amount corresponding with the portion of the services already provided up to the point in time at which you inform us that you are exercising your cancellation right regarding the storage agreement, in comparison with the overall scope of the services intended in the Contract.
End of cancellation instructions
With the cancellation form template, we inform you as follows in accordance with the statutory regulations.
Cancellation form template
(If you intend to cancel your storage agreement, please fill out this form and send it back to us.)
- To: Bar9 GmbH, Ravensberger Straße 17a, 10709 Berlin, fax: +49(0)32226424420, email: email@example.com
- I/we (*) hereby cancel the Contract concluded by me/us (*) regarding the purchase of the following goods (*)/ the provision of the following service (*)
- Ordered on (*)/ received on (*) _____________________
- Name of the consumer(s) _____________________
- Address of the consumer(s) _____________________
- Signature of the consumer(s) _____________________ (only for notification on paper)
- Date _____________________
(*) Cross out as applicable
Contract language, storage of the Contract text
- The language available for the conclusion of the Contract is German.
- The Contract text, consisting of an order confirmation with the GTCs and payment confirmation, will be stored by us, subject to data protection, and sent to you via email. You can view previous orders in your user account.
Storage terms, price, and cancellation
- For the implementation of the precious metal storage and duty-free storage, Bar9 keeps a special secure room at a specialist storage company in Switzerland. For security reasons, we cannot grant you direct access to the precious metal storage facility and the precious metals stored there.
- The Client deposits the precious metals purchased via Bar9 with a right to part of a whole (fractional ownership) of the precious metal collective holding at the precious metal storage facility in Switzerland. In the personal user area of our online shop, the Client can see their precious metal holding and its approximate market value at any time online.
- With the conclusion of the purchase agreement regarding precious metals, a storage agreement for the purchased precious metals is concluded between the parties at the same time. The storage begins directly upon the receipt of the purchase price at the behest of the Client and before the expiry of the existing cancellation right to the benefit of consumers.
- The precious metal inventory is insured for a sufficient amount. Collective management is permitted.
- Bar9 is entitled to entrust another depositary with the precious metal collective holding for storage. Bar9 is obliged to inform the depositary of the following client details: surname, first name, address, nationality, date of birth, and gold holding.
- The storage fee is 0.75% per year for each precious metal. It is calculated precisely to the day and deducted in weight at the end of each month from the precious metal holding. The Client will receive a separate invoice at the end of each month via email. The invoice can also be seen in the user area.
- The Client is entitled to demand the surrender of their stored goods at any time. The surrender must be declared in writing. In this respect, the provisions regarding the “handing over of precious metals from collective storage, force majeure” (Section 10 of these GTCs) apply.
- Subject to further changes and legally valid power of attorney that is granted, only the client registered with us or their legal representative are considered authorised to access the precious metals allocated to it in the precious metal stores. Unless otherwise stipulated in a power of attorney document presented to us in its original version, this applies beyond the death of the Client, but does not entitle cancellation, contract changes or the issuing of sub-authorisation.
- The storage agreement is concluded for an indefinite period of time.
- The storage agreement can be cancelled by both Parties with the observance of a notice period of one month until the end of the end of the month, unless there is a compelling reason that authorises the cancellation of the agreement without the observation of a notice period.
- The cancellation must be in writing. It is valid on the date on which the cancellation declaration is received, which we will confirm to you immediately in writing, e.g. via email. Until the actual termination of the storage agreement, the storage fees must continue to be paid.
- After the termination of the storage agreement, the precious metal belonging to the Client will be sent in accordance with the provisions regarding the “handing over of precious metals from collective storage, force majeure” ( Section 10 of these GTCs).
Delivery of precious metals from the collective safekeeping, force majeure
1. the customer may at any time demand the complete or partial liquidation of his precious metal stock by having gold bars delivered, whereby the following must be observed:
2. the following delivery restrictions exist: physical delivery is only possible for gold and only to certain countries. The list of countries to which physical delivery is currently possible can be found at http://www.bar9.com/pricing. Other countries are available on request.
3. the smallest delivery size (minimum quantity) and each additional precious metal unit is 100g gold.
4. fractions are generally calculated and paid out in monetary value based on the current world gold price, as determined on the Hong Kong, New Yor Globex, New Yor Nymex, Sydney and London stock exchanges, for the corresponding type of precious metal.
5. the precious metals are delivered in the form of bars to an internationally recognised refinery (class debt). These internationally recognised refineries include those recognised by the London Bullion Market Association at the time of settlement. The fineness or fineness of the gold is: 999.9/1000
6. unless otherwise agreed, delivery shall be made to the last known address of the customer.
7. the physical delivery of precious metals is at the expense of the customer, whereby e.g. freight charges, insurance costs, administration and handling fees, taxes, customs duties and other country-specific charges are to be paid in advance by the customer. For each physical delivery an individual offer is made to the customer.
8. the delivery of precious metals presupposes that all information and documents to be handed over by the customer and necessary for the execution of the delivery have been handed over to us.
9. the provision of the precious metals requires at least 14 working days.
10. in case of force majeure we are released from our delivery obligation for the duration of the circumstances of force majeure. All circumstances independent of our will and influence are considered force majeure. This includes circumstances which are unforeseeable, serious and not caused by us and which occur after the conclusion of this contract. If we are prevented from fulfilling our contractual obligations by force majeure, this shall not be deemed a breach of contract. Any agreed delivery periods shall be extended by the duration of the force majeure circumstances. We shall do everything in our power to do what is necessary and reasonable to reduce the extent of the consequences caused by force majeure. We will inform you of the beginning and end of the obstacle as soon as possible.
User account, duty of cooperation of the Client
- The opportunity of the client to submit an offer to conclude a purchase and storage agreement requires its prior registration with us at www.bar9.com. Registration is free. Any (internet) connection fees are not taken into account and must be borne by the Client. With registration, you will open a user account and thereby receive the opportunity to use different functions (e.g. order history, data management, overview of your precious metal inventory). We are entitled at any time to amend, extend, restrict, or completely discontinue offered functions and, particularly in the case of suspected misuse, to temporarily or permanently block individual user accounts.
- To set up your personal user account, we require the following details: first and last name, email address, and a password of your choosing supplied by you. The password must consist of letters, numbers, and special characters and be comprised of at least eight (8) characters.
- Following registration, you will automatically receive a confirmation link via email sent to the email address provided by you. Only after clicking on this confirmation link will the registration be confirmed for the user account. You will then receive another automatic email in which you will be informed that your user account has been set up. You can then log on by entering your email address and your password, and enter your other necessary details (e.g. address, billing address, identification documents).
- The email address provided by you serves, together with the password, at the same time as an access code for the user account. Apart from logging on, Bar9 will never ask the Client for their password.
- Due to the relevant provisions of the German Money Laundering Act (GwG: Geldwäschegesetz), Bar9 is obliged to make sure that it and the service provider tasked with the storage of the precious metals, pro aurum Schweiz AG, comply with the duty of care, which includes, inter alia, the identification of the Client and the establishment of the economic beneficiary. The obligatory legitimacy and identification check to determine and document the Client (“KYC” process) that is necessary, amongst other things, for the proper booking of your fractional co-ownership of the precious metal collective holding, includes the following information and data that must be demonstrated by suitable documents: surname, first name, address, telephone number, nationality or place of business, date of birth or founding, identity document or passport number including validity period (date of issue and date of expiry), and bank details. Bar9 tasks a qualified service provider with the execution of the KYC process. We reserve the right to carry out an identity check of our clients, especially in the event of high order volumes or instances of suspicion, independent of the statutory provisions.
- The Client is obliged to provide all information and documents necessary to execute the Contract. The Client assures that all information provided by them is truthful. Changes must be reported to Bar9 immediately and in writing or updated accordingly in the user account.
- Registration is only allowed for natural persons of legal age and with unrestricted contractual capability, legal persons, and partnerships with legal capability. Underage people are not allowed to register with Bar9. The registration of a legal person or partnership may only be carried out by a natural person with authority to represent, whose name must be stated. During registration, only individual persons may be entered as holders of user accounts (in other words, no married couples, registered civil partnerships, or families).
- After successful registration, legal statements (such as invoices) can be legally sent via email to the email address entered in the user account or by configuring the user account.
- The Client is obliged to ensure adherence to all statutory and regulatory provisions applicable to them. In particular, the Client assures that all assets they introduce to the business relationship do not originate from criminal actions or illegal sources, and that they are or will be properly taxed at the location of the Client.
- Subject to other agreements, any agents must identify themselves upon each case of access and, if they are not the Client, identify themselves as authorised to represent the Client. Unless we know otherwise, persons who have already effectively acted in their own name upon the conclusion of the Contract, or persons who have been subsequently granted effective power of attorney by the Client, also after a corresponding identity check, is generally considered authorised to represent the Client (particularly companies).
- Claims of the Client for compensation are excluded. This excludes compensation claims of the Client resulting from loss of life, physical injury, or damage to health, or from the violation of essential contractual obligations and liability for other damage that is based on an intentional or grossly negligent breach of duty by Bar9, its legal representatives, or its vicarious agents. Essential contractual obligations are such obligations of which the fulfilment is necessary to achieve the objectives of the Contract.
- In the event of a violation of essential contractual obligations, we are only liable for foreseeable damage that is typical of a contract if caused by simple negligence, unless it is a compensation claim of the Client resulting from loss of life, physical injury, or damage to health.
- The restriction of the two clauses above also applies to the benefit of the legal representatives and vicarious agents of Bar9, if claims are asserted directly against these parties.
- The liability restrictions in the first two clauses do not apply if Bar9 has fraudulently kept the defect secret or undertaken a guarantee for the condition of the performance object.
- You are not entitled to offset, unless your counterclaims are established by law or are undisputed.
- A surrender of rights from the storage agreement (in particular to surrender the stored goods to a third party) is only valid in writing and with our written consent, for security reasons. In this case, the storage agreement will be transferred to the new Client after they have undergone a successful legitimacy and identity check. We will only refuse to grant permission for good reason. You must inform us immediately if you intend to transfer rights and obligations from the storage agreement with us.
- This Contract overrides all previously concluded arrangements, independent of whether we have concluded these agreements with you in writing or verbally. There are no verbal ancillary agreements.
- Changes, additions, and the cancellation of these GTCs each require written form in order to be valid. This also applies for changes to this written form clause itself. The above written form requirement does not apply for agreements that are made between us and you verbally after the conclusion of the Contract. In this case, we agree that for the content of a verbal agreement, a written confirmation is necessary.
- Unless otherwise stipulated in these GTCs, text form as per § 126b of the BGB, e.g. email, is sufficient for adherence to the written form requirement.
Applicable law, place of jurisdiction
- The law of the Federal Republic of Germany applies to all contracts between us and you, with the exclusion of the UN International Sale of Goods treaty (CISG).
- If you are a consumer and you have your place of residence outside of Germany, it is made clear that absolutely no restrictions of any further mandatory consumer rights in accordance with the law of the country in which you have your place of residence are associated with this choice of jurisdiction.
- If you are a businessperson, merchant within the meaning of the German Commercial Code ( Handelsgesetzbuch) or a legal person under public law, the sole – and international – place of jurisdiction for all disputes resulting from contractual relationships between us and you is our company headquarters. However, we are also entitled to assert claims at your company headquarters. The above does not apply if another – mandatory by law – exclusive legal jurisdiction exists.
We collect and store data about you that is necessary for the processing of transactions. When processing your personal data, we observe the statutory provisions. The details can be found in our privacy statement, which we keep accessible on our website.
- Should individual provisions of these GTCs be or become invalid, this will not affect the validity of the remaining provisions. This does not apply if adherence to them would constitute unreasonable hardship for you or us.
- The EU Commission has created an internet platform for online dispute resolution. The platform serves as a contact point for the extrajudicial settlement of disputes concerning contractual obligations resulting from online purchase agreements. Further information is available at the following link: http://ec.europa.eu/consumers/odr.
We are not obliged to take part, and we do not offer to participate, in a dispute resolution process before a consumer arbitration body.