General Terms and Conditions (GTC) of the Sales Office Germany


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General terms and conditions with customer information
Table of contents
-1. scope of application
-2. conclusion of contract
-3. right of revocation
-4. prices and terms of payment
-5. delivery and shipping conditions
-6. retention of title
-7. liability for defects
-8. liability
-9. indemnification in case of violation of third party rights
-10. applicable law

1) Scope of application
These General Terms and Conditions (hereinafter referred to as "Terms and Conditions") of TCM-Shop Brigitte Bayerlein (hereinafter referred to as "Seller"), apply to all contracts concluded by a consumer or entrepreneur (hereinafter referred to as "Customer") with the Seller regarding the goods presented by the Seller in its online store. The inclusion of the Customer's own terms and conditions is hereby objected to, unless otherwise agreed.
 Consumer in the sense of these GTC is any natural person who enters into a legal transaction for purposes that can predominantly be attributed neither to his commercial nor to his independent professional activity. An entrepreneur within the meaning of these GTC is any natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his independent professional or commercial activity.

2) Conclusion of contract

2.1 The product descriptions contained in the Seller's online store do not constitute binding offers on the part of the Seller, but serve for the submission of a binding offer by the Customer.

The Customer may submit the offer via the online order form integrated into the Seller's online store. In doing so, the Customer, after having entered the selected goods into the order form, submits a legally binding contractual offer with regard to the ordered goods by clicking the button concluding the ordering process. Furthermore, the customer can also submit the offer to the seller by telephone, fax, e-mail or post.

The Seller may accept the Customer's offer within five days,
-by sending the Customer a written order confirmation or an order confirmation in text form (e-mail), in which case the receipt of the order confirmation by the Customer shall be decisive, or
-by delivering the ordered goods to the customer, in which case the receipt of the goods by the customer shall be decisive, or
-by requesting payment from the customer after the customer has placed the order.
If there are more than one of the aforementioned alternatives, the contract shall be concluded at the time when one of the aforementioned alternatives occurs first. If the Seller does not accept the Customer's offer within the aforementioned period, this shall be deemed to be a rejection of the offer with the consequence that the Customer shall no longer be bound by its declaration of intent.
The period for acceptance of the offer shall commence on the day following the dispatch of the offer by the Customer and shall end at the end of the fifth day following the dispatch of the offer.
Only the German language is available for the conclusion of the contract.
The order processing and contacting usually take place by e-mail. The customer must ensure that the e-mail address provided by him for order processing is correct, so that e-mails sent by the seller can be received at this address. In particular, when using SPAM filters, the customer must ensure that all e-mails sent by the seller or by third parties commissioned by the seller to process the order can be delivered.

3) Right of withdrawal
Consumers are generally entitled to a right of withdrawal within the five-day period, so that the seller also has the opportunity to cancel the goods before shipment.

4) Prices and terms of payment
Unless otherwise stated in the Seller's offer, the prices quoted are final prices that include the statutory VAT, excluding any shipping and postage costs that may still be incurred.  Tubes up to 500gr will be shipped uninsured for 3,80 EUR, all above insured via Hermes Paketservice for 5,50 EUR. If the order value exceeds 500,-- EUR we ship for 10,-- EUR shipping costs. For goods deliveries in the EU country please ask for the postage costs, because they can be different depending on weight and size.
The customer has various payment options. Generally, we deliver on account. If other payment methods are desired, the seller asks for contact. The seller reserves the right, for new customers, to deliver against prepayment.
 If payment in advance is agreed, the payment is due immediately after conclusion of the contract. In case of delivery on account, the amount is to be paid within the next 10 days after receipt of the goods.

5) Delivery and shipping conditions

The delivery of goods is made by shipping to the delivery address specified by the customer, unless otherwise agreed. When processing the transaction, the delivery address specified in the Seller's order processing shall be decisive. 
If the transport company returns the shipped goods to the Seller because delivery to the Customer was not possible, the Customer shall bear the costs for the unsuccessful shipment. This does not apply if the customer is not responsible for the circumstance that led to the impossibility of delivery or if the customer was temporarily prevented from accepting the offered service, unless the seller had given the customer reasonable advance notice of the service.

In principle, the risk of accidental loss and accidental deterioration of the goods sold shall pass to the customer or a person authorized to receive the goods upon handover. If the customer is acting as an entrepreneur, the risk of accidental loss and accidental deterioration in the case of a mail order purchase shall pass upon delivery of the goods to a suitable transport person at the seller's place of business.

The Seller reserves the right to withdraw from the contract in case of incorrect or improper self-delivery. This shall only apply in the event that the Seller is not responsible for the non-delivery and the Seller has, with due diligence, concluded a specific covering transaction with the supplier. The Seller shall make all reasonable efforts to procure the goods. In the event of non-availability or only partial availability of the goods, the customer will be informed immediately and the consideration will be refunded without delay.

In the event of self-collection, the Seller shall first inform the Customer by e-mail that the goods ordered by the Customer are ready for collection. Upon receipt of this e-mail, the Customer may pick up the goods at the Seller's registered office after consultation with the Seller. In this case, no shipping costs will be charged.

6) Retention of title

6.1 With respect to consumers, the Seller retains title to the delivered goods until the purchase price owed has been paid in full.

6.2 With respect to entrepreneurs, the Seller shall retain title to the delivered goods until all claims arising from an ongoing business relationship have been settled in full.

6.3 If the customer acts as an entrepreneur, he shall be entitled to resell the reserved goods in the ordinary course of business. The customer shall assign to the seller in advance all claims against third parties arising therefrom in the amount of the respective invoice value (including value added tax). This assignment shall apply regardless of whether the reserved goods have been resold without or after processing. The customer shall remain authorized to collect the claims even after the assignment. The authority of the seller to collect the claims himself remains unaffected. However, the Seller shall not collect the receivables as long as the Customer meets its payment obligations to the Seller, is not in default of payment and no application for the opening of insolvency proceedings has been filed.

7) Liability for defects

If there is a defect in the purchased item, the statutory provisions shall apply. This does not apply to items that have not been used for a building in accordance with their normal use and have caused its defectiveness:

7.1 For entrepreneurs
-an insignificant defect shall in principle not give rise to any claims for defects,
-the Seller shall have the choice of the type of subsequent performance,
-in the case of new goods, the limitation period for defects shall be one year from the transfer of risk.
-in the case of used goods, the rights and claims due to defects are generally excluded.
-the limitation period shall not start again if a replacement delivery is made within the scope of liability for defects.

7.2 For consumers, the limitation period for claims based on defects is as follows
-for new goods, two years from delivery of the goods to the customer.

7.3 For entrepreneurs and consumers, the above limitations of liability and limitation periods in Clause 7.1 and Clause 7.2 shall not apply to claims for damages and reimbursement of expenses which the Buyer may assert under the statutory provisions due to defects in accordance with Clause 8.

7.4 Furthermore, for entrepreneurs, the statutory limitation periods for the right of recourse pursuant to § 478 BGB shall remain unaffected. The same shall apply to entrepreneurs and consumers in the event of intentional breach of duty and fraudulent concealment of a defect.

7.5 If the customer acts as a merchant within the meaning of § 1 of the German Commercial Code (HGB), he shall be subject to the commercial duty of inspection and notification of defects pursuant to § 377 of the German Commercial Code (HGB). If the customer fails to comply with the notification obligations regulated therein, the goods shall be deemed to have been approved.

7.6 If the Customer is acting as a consumer, he is requested to complain about delivered goods with obvious transport damage to the deliverer and to inform the Seller thereof. If the customer does not comply with this, this shall have no effect on his statutory or contractual claims for defects.

7.7 If the supplementary performance is carried out by way of a replacement delivery, the Customer shall be obliged to return the goods first delivered to the Seller within 30 days at the Seller's expense. The return of the defective goods shall be made in accordance with the statutory provisions.

8) Liability

The Seller shall be liable to the Customer for all contractual, quasi-contractual and statutory, including tortious claims for damages and reimbursement of expenses as follows:

8.1 The Seller shall be liable without limitation for any legal reason whatsoever
-in case of intent or gross negligence,
-in case of negligent or intentional injury to life, body or health,
-on the basis of a warranty promise, unless otherwise regulated in this respect,
-on the basis of mandatory liability such as under the Product Liability Act.

8.2 If the Seller negligently breaches an essential contractual obligation, liability shall be limited to the foreseeable damage typical for the contract, unless liability is unlimited pursuant to Section 8.1. Material contractual obligations are obligations which the contract imposes on the Seller according to its content in order to achieve the purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place and compliance with which the Customer may regularly rely on.

8.3 Otherwise, any liability of the Seller shall be excluded.

8.4 The above liability provisions shall also apply with regard to the Seller's liability for its vicarious agents and legal representatives.

9) Indemnification in case of violation of third party rights

If, according to the content of the contract, the Seller, in addition to the delivery of the goods, also owes the processing of the goods according to certain specifications of the Customer, the Customer shall ensure that the contents provided to the Seller by the Customer for the purpose of processing do not infringe the rights of third parties (e.g. copyrights or trademark rights). The Customer shall indemnify the Seller against any claims of third parties which the latter may assert against the Seller in connection with an infringement of their rights by the contractual use of the Customer's content by the Seller. In this context, the customer shall also bear the reasonable costs of the necessary legal defense, including all court and attorney's fees in the statutory amount. This does not apply if the customer is not responsible for the infringement. In the event of a claim by a third party, the customer is obligated to provide the seller immediately, truthfully and completely with all information necessary for the examination of the claims and a defense.

10) Applicable law

The law of the Federal Republic of Germany shall apply to all legal relationships between the parties to the exclusion of the laws on the international purchase of movable goods. In the case of consumers, this choice of law shall only apply to the extent that the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer has his habitual residence.