General Terms and Conditions of Business of EasyMotionSkin Tec GmbH
1.1. These General Terms and Conditions ("GTC") apply to all orders, sales and deliveries of products ("Products") and the provision of services ("Services") offered, distributed and sold or provided by EasyMotionSkin Tec GmbH, FN 446877y, Gewerbegebiet 47, A-6103 Reith bei Seefeld, ("EMS").
1.2. These GTC are applicable if the buyer is a consumer or an entrepreneur within the meaning of § 1 KSchG (both referred to as "customer"). Insofar as provisions of these GTC are not applicable to consumers, this is expressly clarified below.
1.3. General terms and conditions of the Customer, in particular general terms and conditions of purchase, shall not apply, even if EMS does not expressly object to them. Such conditions shall only apply if the parties have reached a corresponding written agreement in the individual case.
1.4. EMS reserves the right to amend these GTC at any time. The GTC applicable at the time of the customer's order shall apply in each case to the sale and delivery of products.
1.5. If EMS intends to amend these GTC, in particular for the provision of services, the customer shall be notified of the intended amendment in writing or by e-mail in advance. If the customer does not object within fourteen days, the customer shall be deemed to have agreed to the amendment of the GTC. EMS shall make special reference to the significance of the failure to object.
1.6. If the customer objects to the amendment of the GTC, EMS shall be entitled to terminate the contract extraordinarily subject to a notice period of two weeks.
2. Order, Order Confirmation and Dispatch Confirmation
2.1. The products and services of EMS presented and the associated price quotations shall constitute an invitation to the Customer to submit a binding offer to EMS for the purchase of the products or the service ("Order"). Unless otherwise agreed, orders of the Customer shall be binding for a period of 14 (fourteen) days.
2.2 In the event of an order in the web shop, EMS shall send the Customer a confirmation to the e-mail address provided by the Customer that the order has been received by EMS ("Order Confirmation"). If the customer orders from EMS via another channel, EMS shall send the customer an order confirmation ("Order Confirmation"). This order confirmation and the acceptance confirmation do not constitute acceptance of the customer's order, but merely confirm receipt. EMS shall be free to accept or reject the Customer's order in whole or in part without giving reasons.
2.3. The Customer's order shall be accepted by EMS (i) if all or individual products are actually handed over to the shipping service provider for shipping or (ii) if the acceptance of the order is explicitly declared by EMS. EMS shall send the Customer a confirmation of dispatch of all or individual Products to the e-mail address provided by the Customer ("Dispatch Confirmation").
2.4. Upon receipt of the Dispatch Confirmation or explicit confirmation of the acceptance of the contract, the contract for the sale and delivery of the Products shall be concluded between the Customer and EMS. The agreed content of the contract shall be specified in the order confirmation or, in the case of an order in the webshop, in the dispatch confirmation.
2.5. Illustrations, drawings and specifications of dimensions and performance as well as public statements (e.g. on the website or in marketing documents) shall not form part of the contract unless they are expressly designated as binding in the description of the products.
3. Prices and payment
3.1. All prices quoted are in euros and include VAT, but exclude shipping costs, unless otherwise stated.
3.2. Unless otherwise agreed, EMS shall deliver products and provide services only after the agreed payment has been received in full by EMS. EMS shall therefore only be obliged to deliver once payment has been received from the customer ("advance payment").
3.3. In the event that the customer is in default of payment, interest on arrears of 7% p.a. shall be agreed. A lump sum of EUR 15.00 shall be charged for reminders.
3.4. Unless otherwise stated, the shipping costs for delivery addresses in Austria and Germany amount to EUR 250 gross.
4. Delivery date and delay
4.1. Delivery dates stated by EMS shall be based on the information provided by the shipping service provider commissioned and shall not be binding unless otherwise agreed.
4.2. If the non-observance of a performance or delivery date expressly agreed as binding is due to force majeure, industrial disputes or other events beyond the control of EMS, the performance period shall in any case be extended appropriately for the duration of the obstacle. EMS shall notify the customer of the beginning and end of such circumstances as soon as possible, without the customer being able to derive any claims whatsoever from the failure to notify.
4.3. In the event that EMS is in default, the Customer shall set EMS a grace period of at least four weeks in writing. Withdrawal from the contract by the customer due to default on the part of EMS shall only be permissible after fruitless expiry of the grace period set. This provision shall not apply if the customer is a consumer.
5. Delivery and transfer of risk
5.1. If the customer is a consumer and EMS ships the products, the risk of loss or damage to the products shall only pass to the customer when the products are delivered to the customer or to a third party designated by the customer. If the customer has concluded the transport contract himself/herself without making use of a selection option proposed by EMS, the risk shall already pass when the products are handed over to the shipping service provider.
5.2. If the customer is an entrepreneur and nothing to the contrary has been agreed, the place of business of EMS shall be FCA (Incoterms 2020).
6. Retention of title
6.1. EMS shall retain ownership of the products until full payment of the purchase price and the ancillary charges (in particular shipping costs) by the customer.
6.2. If the customer sells the products, he shall already now assign to EMS the claims against the third party arising from the sale with all ancillary rights until complete fulfilment.
6.3. The customer shall inform EMS immediately of all events affecting the retention of title, in particular of enforcement measures.
7.1. EMS shall not provide any warranty for defects which are due to information or individual wishes of the customer.
7.2. No warranty shall be assumed in the following cases: Unsuitable or improper use, natural wear and tear, improper, faulty or negligent handling and unusual influences.
7.3. In the event of a defect covered by warranty, EMS shall be entitled to improve or exchange the products at its own discretion at the place of business of EMS. Costs for the return shipment of the products shall be borne by the customer.
7.4. The customer shall have the right to withdraw from the contract if there is no merely minor defect and EMS allows a set period of fourteen days for improvement or replacement to expire fruitlessly. If the defect is insignificant, the customer shall only be entitled to a reduction of the purchase price. 6.9.
7.5. If the customer is an entrepreneur, § 924 ABGB is not applicable. In addition, the customer shall give notice of defects without undue delay, at the latest, however, within fourteen days, otherwise excluded under § 377 UGB (Austrian Commercial Code).
8. Liability and compensation
8.1. The liability of EMS for damage caused by slight negligence (with the exception of personal injury which occurs despite proper handling of the products or services) shall be excluded. If the customer is an entrepreneur, liability shall also be excluded for simple gross negligence.
8.2. Liability is excluded for pure financial loss, loss of profit, damage to third parties, indirect damage and consequential damage. If the customer is a consumer, this exclusion of liability shall only apply in the case of slight negligence.
8.3. The liability of EMS shall be capped at the amount of the purchase price actually paid by the customer, but not more than EUR 100,000.00 (in words: one hundred thousand euros).
8.4. Claims for damages against EMS or EMS employees shall expire within six months of knowledge of the damage and the damaging party. If the customer is a consumer, the claims shall expire within the statutory period of three years.
9. General provisions
9.1. All legal relations between EMS and the customer shall be governed exclusively by Austrian law, excluding the conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods.
9.2. The place of jurisdiction shall be the court having subject-matter jurisdiction for the registered office of EMS. The customer shall also be entitled to bring an action at his place of residence.
9.3. The place of performance for the obligations arising from the contractual relationship shall be the registered office of EMS.
9.4. The customer may not transfer or assign this contract to third parties without the written consent of EMS.
9.5. The customer may only offset claims against claims of EMS if the claims are legally related to the claims, have been recognised or have been established by a court.
9.6. The customer shall be obliged to inform EMS of any changes of address. If the customer does not notify EMS of a change of address, a statement sent by EMS to the last address notified shall nevertheless be deemed to have been received by the customer.
9.7. Amendments or supplements to this contract must be made in writing. This shall also apply to any waiver of the written form requirement.
Status: December 2021