General Supply and Payment Terms and Conditions, hairtalk GmbH, Am Wolfsmantel 8, 91058 Erlangen
The seller shall provide all supplies on the basis of the following supply and payment terms and conditions (General Terms and Conditions), which are agreed to form an integral part of the sale and purchase agreement. Conditions of the purchaser which are contrary to or deviate from our General Terms and Conditions are not recognised unless we have expressly acknowledged their validity. Our General Terms and Conditions apply even if supplies are delivered to the purchaser without reservation in the knowledge of conditions which are contrary to or deviate from our General Terms and Conditions. Provided that the seller has sent the purchaser the supply and payment terms and conditions in the context of a previous order, it is sufficient for the terms and conditions to apply that the seller refers thereto in follow-on agreements.
2. Effectiveness of the Agreement
Orders are deemed to be a binding offer to treat. We have the option to accept this offer within 2 weeks by sending an order confirmation or by sending the goods ordered to the customer within such period.
Our prices do not include value added tax at the applicable rate. This will be shown separately on the invoice at the rate applicable on the invoice date and is to be paid additionally by the purchaser, insofar as the goods are subject to value added tax. Packaging and shipping costs are also payable in addition. For orders less than 25.00 euros, we have a flat rate administration charge of 7.00 euros.
4. Payment Terms, Payment Arrears
Goods are delivered against invoice. We reserve the right in specific circumstances to request prepayment for our services or delivery against an irrevocable documentary credit confirmed by a top-tier German bank, in accordance with the Uniform Customs and Practice for Documentary Credits (UCP 600) of the International Chamber of Commerce (ICC), Paris, to be opened at the purchaser’s cost by the purchaser in favour of the seller.
Our invoices are payable in euros without deduction within 14 calendar days of the invoice date, or in the case of prepayment by the agreed payment deadline. Payment by bill of exchange or cheque is not accepted as fulfilment of the payment obligation. Payment is only considered to have been made when the money is credited to our account and freely available. In the case of prepayment or payment within 8 days of the invoice date, a discount of 3% will be allowed against the invoice amount (net).
If the payment is not made by the due date, the purchaser shall have an obligation to pay the seller interest at the statutory rate, without requirement for a further reminder. The right is reserved to lodge a further claim for damages for arrears. Reference is made to the seller’s right to withdraw pursuant to Clause 9. In the case of payment arrears, at least 5.00 euros will be added to each further payment demand in each case. The customer shall, however, be entitled to prove that no loss or a loss of less than the flat rate amount has been incurred.
Only counter-claims which are undisputed, legally established as final and binding or acknowledged by us may be offset by the purchaser against the purchase price. The purchaser shall only be entitled to exercise the right to withhold payment insofar as his counter-claim is based on the same legal relationship.
5. Dimensions and Weights
All dimensions and weights are approximate.
6. Special Items
There is no right of return in the case of special or end-of-line items designated as such.
7. Shipment and Passing of Risk
The goods are delivered at the purchaser’s cost and risk, with the seller reserving the right to determine the location from which they will be dispatched. Insurance against damage during transport will only be taken out on the customer’s express instructions and at his cost. The risk is transferred to the purchaser on handover of the goods to the shipping agent, freight forwarder or other person designated as carrier, at the latest on leaving the seller’s business or warehouse.
8. Delivery Dates and Late Delivery
Insofar as the seller specifies delivery dates, these are approximate and non-binding only. Claims for late delivery may only be made against the seller after expiry of a reasonable period of grace. Claims against the seller for damages, not based on injury of life, health or bodily harm, are excluded, unless the seller can be shown to be guilty of wilful misconduct or gross negligence or in the event of the culpable breach of a material obligation of the agreement, performance of which is required for the due implementation of the agreement and on fulfilment of which the purchaser may normally expect to rely.
9. Withdrawal, Damages and Cancellation Charges
If supply of the purchase items is significantly delayed or rendered impossible by production disruptions or circumstances outside the seller’s control, the seller may withdraw fully or in part from the agreement. The purchaser shall not be entitled to claim damages in such circumstances.
If the purchaser is in arrears on payment or is unable to pay or cash payments are not made by him, the seller shall be entitled to withdraw from the agreement. In these circumstances, the seller shall be entitled to request flat rate damages of 30% of the order value. The customer shall, however, be entitled to prove that no loss or a loss of less than the flat rate amount has been incurred. In this case, the damages claim shall be reduced accordingly.
10. Reservation of Title
The goods supplied shall remain the property of the seller until the purchase price has been paid in full, in the case of payment by direct debit until this has been credited, insofar as and to the extent that such reservation of title is effective under the applicable law. The purchaser shall have an obligation to handle the goods with care.
Insofar as and to the extent that the goods in respect of which title is reserved are outside the Federal Republic of Germany and reservation of title in the above form is not effective, the purchaser shall have an obligation to co-operate in whatever legally permitted steps are necessary to protect the seller’s ownership in the country in question (e.g. registration). The provisions on transfer of risk remain unaffected by the reservation of title.
11. Warranty and Liability
The seller warrants that the products being sold are transferred free from material defects and deficiency in title.
The warranty period for customers who acquire the goods in the context of their business is one year. The warranty period begins with the transfer of risk. The limitation period in the event of supplier’s recourse pursuant to Arts. 478, 479 of the BGB (German Civil Code) remains unaffected thereby.
Claims by the purchaser in respect of defects require him to have correctly fulfilled his duty under Art. 377 of the HGB (German Commercial Code) to inspect for and report defects.
To the extent that the goods being purchased are defective, the seller shall have the option of subsequent performance in the form of rectification of the defect or supply of a defect-free item. If subsequent performance fails after at least two remedial attempts, the customer shall have the option to withdraw from the agreement or request a reduction in the purchase price.
The seller shall not be liable for damage which occurs after delivery as a result of improper use, improper or negligent handling, failure to comply with the seller’s operating or care instructions or natural wear and tear on the products.
The seller shall be liable under the provisions of the law, insofar as the customer validates claims for damages based on wilful misconduct or gross negligence, including wilful misconduct or gross negligence on the part of a representative or vicarious agent. To the extent that the seller, and its representatives or vicarious agents, are guilty of a breach of the agreement which amounts to gross negligence, the liability for damages is capped at the level of typically foreseeable damages.
The seller shall further be liable under the provisions of the law, insofar as it commits a culpable breach of a material obligation of the contract performance of which is required for the due implementation of the agreement and on fulfilment of which the purchaser may normally expect to rely; in this case, too, the liability for damages is capped at the level of typically foreseeable damages.
Any other liability, irrespective of the legal basis, is excluded. This applies in particular to claims for damages in respect of culpa in contrahendo, breach of subsidiary provisions of the agreement and breach of other obligations, unlawful conduct or other culpable behaviour, claims for indirect and consequential loss and claims for loss of profit.
The above limitations on liability do not apply to damages in respect of injury of life, health or bodily harm or in the case of strict liability under German product liability legislation.
The above provisions also apply to claims for the reimbursement of wasted expenses.
To the extent that liability is limited under the above provisions, this also applies to the personal liability of our representatives and vicarious agents.
12. Goods on Approval, Return of Goods
The seller shall send the purchaser, on request, hairpieces and wigs on approval on a non-binding basis. Shipping costs are to be borne by the purchaser. The purchaser shall be entitled to return the goods sent on approval in full or in part to the seller within 14 days. If the goods are not returned at the latest within 15 days of dispatch to the purchaser or if they are not returned in the condition in which they left the factory, fit for resale, in their original packaging and with their original labels, the purchase agreement is deemed to have come into effect in respect of the goods sent.
Returns can only be processed if the purchaser at the same time notifies the purchase date and invoice or delivery note number. If the purchaser does not submit this information in full, the return is not deemed to have been received by the seller. In the case of a warranty claim, the purchaser must also give the reason for the claim.
If the goods returned were not sent on approval, the purchaser shall not be entitled to return goods supplied in accordance with the agreement against refund of the purchase price or a credit note; warranty claims by the purchaser remain unaffected hereby.
13. Export Certificates
If the purchaser is based outside the Federal Republic of Germany or if a purchaser based in the Federal Republic of Germany is sending or transporting the goods covered by the agreement outside the Federal Republic of Germany, export certificates and any other certificates required from a tax point of view are to be provided without delay. In the case of deliveries within the European Union, the purchaser must provide his VAT identification number. In other cases, the customer must pay the statutory value added tax payable on the invoice amount for deliveries within the Federal Republic of Germany.
14. Export Controls
The purchaser acknowledges that deliveries may be subject to American and/or European and/or other export control legislation, which may prohibit delivery to certain countries. Performance of our obligations under the contract is subject to the reservation that any export licences required are granted and that performance is not prevented by American, European or other export control legislation. We shall have no obligation to deliver insofar as and to the extent that delivery is not possible owing to the absence of an export licence. The customer undertakes to us to comply with all and any applicable export regulations.
15. Place of Performance, Applicable Law and Place of Jurisdiction
The place of performance is Erlangen, Germany.
The law of the Federal Republic of Germany shall apply exclusively; application of the United Nations Convention on Contracts for the International Sale of Goods and of international conflict law is excluded.
The exclusive place of jurisdiction for all disputes arising from and in connection with the contractual relationship with business persons or legal entities is – subject to Clause 15 sentence 4 – Erlangen, Germany. The seller shall also be entitled to bring proceedings at the location of the customer’s registered office.