1. GENERAL
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, sold, or provided by EasyMotionSkin Tec GmbH, FN 446877y, Gewerbegebiet 47, A-6103 Reith bei Seefeld, ("EMS").
1.2 These GTC apply when the buyer is a consumer or a business within the meaning of § 1 KSchG (both referred to as "Customer"). If provisions of these GTC are not applicable to consumers, this will be expressly clarified below.
1.3 General terms and conditions of the customer, in particular general purchasing conditions, do not apply, even if EMS does not expressly object to them. Such conditions apply only if the parties have agreed on a corresponding written agreement in individual cases.
1.4 EMS reserves the right to amend these GTC at any time. For the sale and delivery of products, the GTC valid at the time of the customer's order apply.
1.5 If EMS intends to amend these GTC, especially for the provision of services, the intended amendment will be communicated to the customer in writing or by email in advance. If the customer does not object within fourteen days, the customer's consent to the amendment of the GTC is deemed to have been granted. EMS will particularly emphasize the significance of the omission to object.
1.6 If the customer objects to the amendment of the GTC, EMS is entitled to terminate the contract with immediate effect subject to a notice period of two weeks.
2. ORDERING, ORDER CONFIRMATION, AND DISPATCH CONFIRMATION
2.1 The displayed products and services of EMS along with the associated price information constitute an invitation to the customer to submit a binding offer to purchase the products or services from EMS ("Order"). Orders placed by the customer are binding for a period of 14 (fourteen) days, unless otherwise agreed.
2.2 In the case of an order placed through the webshop, EMS will send the customer a confirmation to the email address provided by the customer, acknowledging receipt of the order ("Order Confirmation"). If the customer orders through another means with EMS, EMS will send the customer an order confirmation ("Order Confirmation"). These order confirmations do not constitute acceptance of the customer's order but merely confirm receipt. EMS is free to accept or reject the customer's order in whole or in part without providing reasons.
2.3 EMS accepts the customer's order when (i) all or some products are actually handed over to the shipping service provider for dispatch or (ii) acceptance of the order is explicitly confirmed by EMS. EMS will send the customer a confirmation of dispatch for all or some products to the email address provided by the customer ("Dispatch Confirmation").
2.4 Upon receipt of the dispatch confirmation or explicit confirmation of contract acceptance, the contract for the sale and delivery of the products between the customer and EMS is concluded. The agreed content of the contract is specified in the order confirmation or, in the case of orders placed through the webshop, in the dispatch confirmation.
2.5 Illustrations, drawings, measurements, performance specifications, and public statements (e.g., on the website or in marketing materials) are not part of the contract unless expressly designated as binding in the product description.
3. PRICES AND PAYMENT
3.1 All prices stated are in Euro inclusive of VAT, but exclusive of shipping costs unless otherwise specified.
3.2 Unless otherwise agreed, EMS delivers products and provides services only after the agreed payment has been received in full by EMS. EMS's obligation to deliver arises only when the customer's payment has been received ("Advance Payment").
3.3 In the event that the customer is in default of payment, late payment interest of 7% per annum is agreed upon. A flat fee of EUR 15.00 will be charged for reminders.
3.4 Unless otherwise specified, the shipping costs for delivery addresses in Austria and Germany are EUR 250 gross.
4. DELIVERY DATE AND DEFAULT
4.1 Delivery dates provided by EMS are based on information from the appointed shipping service provider and are non-binding unless otherwise agreed upon.
4.2 If the failure to meet an explicitly agreed upon performance or delivery deadline is due to force majeure, labor disputes, or other events beyond EMS's control, the performance period shall be extended appropriately for the duration of the obstacle. EMS will inform the customer of the beginning and end of such circumstances as soon as possible, without the customer being able to derive any claims of any kind from the failure to provide notification.
4.3 In the event that EMS is in default, the customer must set a written grace period of at least four weeks for EMS. The customer's withdrawal from the contract due to EMS's default is only permissible after the fruitless expiration of the set grace period. This provision does 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 passes to the customer only when the products are delivered to the customer or to a third party designated by the customer. If the customer has entered into the transport contract himself without using a selection option proposed by EMS, the risk passes already upon delivery of the products to the shipping service provider.
5.2 If the customer is a business entity and no deviation has been agreed upon, FCA EMS's place of business (Incoterms 2020) shall be deemed agreed upon.
6. PROPERTY RESERVATION
6.1 EMS reserves ownership of the products until full payment of the purchase price and ancillary charges (in particular shipping costs) by the customer.
6.2 If the customer sells the products, he hereby assigns to EMS, with all ancillary rights, the claims arising from the sale until complete fulfillment.
6.3 The customer must inform EMS immediately of all events affecting the reservation of ownership, especially enforcement measures.
7. WARRANTY
7.1 EMS does not provide any warranty for defects attributable to information or individual requests from the customer.
7.2 No warranty is assumed in the following cases: Unsuitable or improper use, natural wear and tear, improper, faulty, or negligent handling, as well as unusual influences.
7.3 In the event of a warranty claimable defect, EMS is entitled to improve or replace the products at EMS's discretion at the seat of EMS. The customer is responsible for the cost of returning the products.
7.4 The customer has the right to withdraw from the contract if there is no minor defect, and EMS lets a period of fourteen days for improvement or replacement pass fruitlessly. In the case of a minor defect, the customer is only entitled to a reduction of the purchase price.
7.5 If the customer is a business entity, § 924 ABGB (Austrian Civil Code) does not apply. Furthermore, the customer must report defects immediately, but no later than within fourteen days, under penalty of exclusion within the meaning of § 377 UGB (Austrian Commercial Code).
8. LIABILITY AND DAMAGES
8.1 EMS's liability for damages caused by slight negligence (excluding personal injury arising despite proper handling of the products or services) is excluded. If the customer is a business entity, liability is also excluded for gross negligence.
8.2 Liability is excluded for pure financial losses, loss of profit, damages to third parties, indirect damages, and consequential damages. If the customer is a consumer, this limitation of liability applies only in cases of slight negligence.
8.3 EMS's liability is capped at the amount of the actual purchase price paid by the customer, but not exceeding EUR 100,000.00 (one hundred thousand euros).
8.4 Claims for damages against EMS or its employees expire within six months of knowledge of the damage and the person causing it. If the customer is a consumer, claims expire within the statutory period of three years.
9. GENERAL PROVISIONS
9.1 Austrian law shall exclusively apply to all legal relationships between EMS and the customer, excluding conflict of law rules and the UN Convention on Contracts for the International Sale of Goods (CISG).
9.2 The competent court for disputes is the court having jurisdiction over the registered office of EMS. The customer is also entitled to file a lawsuit at their place of residence.
9.3 The place of performance for the obligations arising from the contractual relationship is the registered office of EMS.
9.4 The customer may not assign or transfer this contract to third parties without the written consent of EMS.
9.5 The customer may only set off claims against EMS if the claims are legally related, acknowledged, or judicially determined.
9.6 The customer is obliged to inform EMS of any changes to their address. If the customer fails to notify EMS of a change of address, any statement sent by EMS to the last known address shall still be deemed received by the customer.
9.7 Changes or additions to this contract require written form. This also applies to deviating from the written form requirement.
10. SUBSCRIPTION MODEL TERMS („VBA“)
10.1 Scope
The contractual partner of the customer shall be EasyMotionSkin Tec GmbH, FN 446877y, Commercial Area 47, 6103 Reith bei Seefeld (EMS). Some provisions of the General Terms and Conditions (AGB) shall only apply to the customer if they are a consumer within the meaning of § 13 BGB (German Civil Code) or a businessperson within the meaning of § 14 BGB. The customer is a consumer within the meaning of § 13 BGB if they use the services of the provider for a purpose that cannot be attributed to either commercial or independent professional activity. The agreements made between the provider and the customer "for rent" are governed by the following SMT, the privacy policy, and the order confirmation. Deviating or supplementary regulations of the customer shall not apply. They shall not apply even if the provider does not expressly object to their inclusion.
10.2 Subject Matter of the Contract
This contract governs the rental of goods, hereinafter referred to as "Goods."
10.3 Conclusion of the Rental Agreement, Shipping, or Handover of the Goods
a. Conclusion of the Contract
The order process leading to the conclusion of the contract included the following steps:Selection of the Goods in the desired specification (type of item, duration/frequency of payments, as well as size and color of the item)Providing the billing and delivery addressSelection of the payment methodUpon ordering the Goods, the customer receives a non-binding confirmation of the rental request. After successful examination of the order, the rental agreement is concluded.The customer assures that all data provided by them during registration or ordering (e.g., name, address, email address, bank details, if applicable VAT ID) are correct and that they have not used data from third parties. The customer undertakes to promptly notify the provider of any changes to the data. The customer is liable for the misuse of access data by third parties, insofar as they are responsible for this. This may also result in the customer being obliged to pay fees for the use of Goods that they did not order.The privacy policy applies to the personal data of the user collected during registration.When ordering via the website, the provider only enters into contractual relationships with fully legally competent natural persons who are of legal age. We ensure the minimum age by using a reliable procedure involving personal identity and age verification. Orders can also be placed by a legal entity or partnership. The registration of a legal entity or partnership as a customer may only be carried out by a natural person authorized to represent it or a person authorized by it, who must be named, hereinafter referred to as the "Authorized Representative."
b. Shipping or Handover of the Goods:
If the Goods are ordered, they will only be shipped once the customer has paid the first month's rent. As long as the condition of the successful first payment is not fulfilled, the provider is entitled to retain the Goods. No usage fee is payable for the period between the dispatch of the Goods and their delivery to the customer (see section 10.6). The paid rent begins only upon delivery of the Goods to the customer.
10.4 Right of Withdrawal
If the customer is a consumer, they are entitled to withdraw their declaration of contract. Customers who are entrepreneurs do not have a right of withdrawal. Information on the conditions for exercising and the legal consequences of withdrawing the rental is provided in separate withdrawal instructions, which are referred to at this point.
10.5 Start of Rental, Duration of Contract, Termination
If the customer rented the Goods via the website (section 10.3.a.(i.)(a)), the rental period begins with the delivery of the Goods to the customer, hereinafter referred to as "Delivery." The Goods are considered delivered for the purposes of this provision when the supplier appointed by the provider has delivered the Goods to the customer.
The term of the contract and the right of termination depend on the customer's choice when ordering. Unless otherwise agreed:
a) In the case of a specific minimum term: The contract is concluded for the duration specified in the order. The parties have the right to terminate the contract with one month's notice to the end of the contract term without giving reasons. If the parties do not exercise this right of termination, the contract automatically extends for an indefinite period with a possibility of termination under the conditions described in (b) of "Pay as you go".
b) In the case of an indefinite contract term, so-called "Pay as you go": The contract is concluded for an indefinite period. Both parties have the right to terminate the contract monthly without giving reasons. The right to terminate for cause remains unaffected. In particular, but not exclusively, the provider is entitled to terminate for cause in cases of:
- default in payment of two consecutive usage fees;
- untimely payment of the usage fee if the customer has already been warned or reminded due to repeated payment delays;
- sustained garnishments or other enforcement measures directed against the customer, or initiation of judicial or extrajudicial insolvency proceedings against the customer;
- unauthorized transfer of the Goods to third parties;
- significant risk to the Goods due to lack of care or improper and unlawful use; or
- other important reasons on the part of the provider.
Termination requires written form. Termination becomes effective upon receipt by the provider. If the provider terminates a rental agreement, the customer is obliged to return the rental items with all accessories to the provider immediately. Advance payments will not be refunded, regardless of when the customer returns the device.
10.6 Delivery Conditions
The product will be delivered to the shipping address provided by the customer. The provider is entitled to partial deliveries to a reasonable extent. If the provider determines during the processing of the order that the product ordered by the customer is not available despite careful examination of the inventory and for reasons not attributable to the provider, the customer will be informed by email, and a contract will not be concluded. If the provider has previously accepted the customer's contract offer through the rental or purchase confirmation, the provider is entitled to withdraw. Any payments made will be refunded promptly. The delivery times provided in connection with the presentation of the offer are approximate. They are therefore only considered as approximately agreed. If the specified delivery date is exceeded by more than four weeks, each party is entitled to withdraw from the contract. If the provider has a permanent delivery obstacle, especially force majeure or non-delivery by its own suppliers, although a corresponding cover transaction has been made in good time, and is not responsible for it, the provider has the right to withdraw from a contract with the customer to that extent. The customer will be informed immediately, and received services, especially payments, will be refunded. The obligation to compensate for default damages is limited to foreseeable, typically occurring damages. This limitation of liability does not apply in the event of intentional or grossly negligent breach of contract. The provider's liability for default due to culpable injury to life, body, or health remains unaffected by the preceding limitation of liability.
10.7 Retention of Title
The delivered goods remain the permanent property of the provider. During the rental period, the customer may not allow a third party to use the goods without the prior written consent of the provider, especially not sell, give away, rent, or lend them. An exception to this is the free use of the goods by persons belonging to the customer's household or the customer's employees. The customer is obliged to keep the goods free from third-party rights during the rental period. The customer may not alter the goods. No alteration of the goods constitutes rectification of defects according to the provisions of § 536a para. 2 BGB (German Civil Code) or wear and tear of the goods due to contractual use within the meaning of § 538 BGB. The customer is not entitled to reimbursement for expenses for changes made by him according to § 539 para. 1 BGB. The provider is entitled to restore the original condition at the end of the contract at the customer's expense. The customer is exempt from the obligation to pay costs if restoring the original condition would involve disproportionately high expenses.
10.8 Usage Fees, Shipping Costs
The provider charges usage fees for the use of the goods. The amount of the usage fees is specified in the order confirmation. All rental prices are final prices and include the statutory value-added tax. In addition to the final prices, additional costs may arise depending on the shipping method, which will be indicated and communicated before the order is dispatched.
The provider is entitled to change the usage fees for the next contract period. The provider will inform the customer of the change no later than six weeks before it takes effect. If the customer does not agree to the change, they can terminate the usage agreement up to two weeks before the price change takes effect. If no termination occurs, the customer's consent to the price change is deemed to be given. The provider will separately notify the customer of the possibility of termination and the deadline.
If the customer returns the goods to the provider without the accessories provided by the provider together with the goods or if the goods are returned incomplete, the customer is obliged to return the missing accessories and components to the provider upon request within one month. If the customer fails to return the missing accessories or components despite the provider's request within one month, the provider is entitled to demand the value of the missing accessories or components.
10.9 Payment Terms
The payment processing is handled by the provider of the goods - either in their own name or on behalf of the provider. The customer has the following payment options exclusively: payment service providers (e.g., PayPal, Stripe...), credit card, and SEPA direct debit. When using a payment service provider, it enables the provider and the customer to settle the payment between themselves. The payment service provider forwards the customer's payment to the provider. Further information can be found on the website of the respective payment service provider. When paying by credit card, the customer must be the rightful cardholder. The final charge to the credit card occurs upon confirmation of the rental request. For SEPA direct debit, the customer's bank account details including the bank's BIC and IBAN are required. When the customer selects the SEPA direct debit method, they authorize the provider to collect payments from their bank account via direct debit. At the same time, they instruct their bank to honor the direct debits drawn by the provider to their bank account. The customer's bank account will be debited after completing the order. Under the terms agreed with their bank, the customer can request a refund of the debited amount within eight weeks, starting from the debit date. The customer can revoke their SEPA direct debit mandate in accordance with § 675p BGB.
The usage fees are to be paid by the customer in advance and independent of the actual duration of use of the item and will not be refunded if the customer returns the item to the provider before the end of the contract period. There is no entitlement to partial refund or credit. For a contract with a minimum term, the usage fee is due upon conclusion of the rental agreement, but before the item is shipped (see section 10.3.c.) and subsequently on the 1st day of the first month of each contract extension. For a contract with an indefinite term, the first month's rate is due upon conclusion of the rental agreement, but before the item is shipped (see section 10.3.c.) on the 1st day of each new month of use.
If the customer is in default of payment, the provider is entitled to claim default interest at a rate of 9 percentage points above the base rate, unless the customer is a consumer. In this case, the default interest is 5 percentage points above the base rate. The provider reserves the right to prove higher damages. Customers may only set off against the provider's payment demand with claims that are undisputed by the provider or have been legally determined against the provider. This does not apply if the customer's claim arises from a counterclaim entitling them to refuse performance. Customers may only exercise a right of retention if their counterclaim arises from the same contractual relationship.
10.10 Customer Responsibility
The use must be carried out with customary care, minimizing expected damage. In the event of any damage or other impairment to the rented item during the rental period, the customer is obliged to inform the provider immediately in writing about all details of the event that led to the damage to the item. In case of damage to the goods and other breaches of the rental agreement concluded between the customer and the provider, the customer is generally liable according to legal regulations.
10.11 Provider's Indemnification
The customer indemnifies the provider from all claims that third parties assert against the provider due to improper, contractually non-compliant, or unlawful use of the rented item, unless the customer is not responsible for this. In the event of indemnification under sentence 1, the customer shall compensate the provider for any damage incurred by the provider due to improper, contractually non-compliant, or unlawful use, including any costs of legal defense. The user shall immediately inform the provider if third parties assert claims due to improper, contractually non-compliant, or unlawful use of the goods and shall support the provider in defending against such claims.
10.12 Assignment, Pledge, Prohibition of Transfer of Use
Claims or rights of the customer against the provider may not be assigned or pledged without the provider's consent, unless the customer has demonstrated a legitimate interest in the assignment or pledge. During the term of the rental agreement, any goods in the customer's possession that nevertheless belong to the provider or one of its business partners, sister or subsidiary companies, or other contractual partners may not be transferred to a third party, sublet, leased, sold, encumbered with a lien, or otherwise made the subject of a transaction by the customer.
10.13 Privacy policy
The data protection provisions are outlined in our privacy policy.
10.14. Online dispute resolution and consumer arbitration board
If the customer is a consumer, the following notice applies: The European Commission provides a platform for online dispute resolution, which can be found at http://ec.europa.eu/consumers/odr/. The provider is neither willing nor obliged to participate in dispute resolution proceedings before consumer arbitration boards.
10.15 Customer Service
You can reach our customer service using the contact information published on our website.
10.16 Changes
The provider is entitled to make changes to the terms of use at any time, provided that essential provisions of the contractual relationship (in particular nature and scope, term, termination) are not affected. The amended terms will be communicated to the customer in writing at least six weeks before they take effect. The changes will be deemed approved if the customer does not object to them within six weeks of receiving the notification. The provider will separately inform the customer about the possibility of objection and the deadline for doing so. If the right to object is exercised, the changes will not become part of the contract, and the contract will continue unchanged.
In the event of a timely objection by the customer to the amended subscription model terms, the provider is entitled to terminate the contract with the customer at the time the changes take effect, while preserving the legitimate interests of the customer. Corresponding user content will then be deleted from the database. The user cannot claim any rights against the provider in this regard.
10.17 Applicable Law
The terms and conditions (AGB) and the contractual relationship between the provider and the customer are governed by the law of the Federal Republic of Germany. The application of German international private law and the UN Sales Convention is excluded. If the customer is a consumer, the choice of law does not result in the loss of protection afforded to the customer under the mandatory consumer protection provisions of the law applicable at their habitual residence. The choice of law also does not mean that the customer must enforce their rights before a foreign court.
10.18 Final Provisions
Should individual provisions of the terms and conditions (AGB/VBA) be ineffective, this does not affect the validity of the remaining provisions. If the customer is a merchant within the meaning of the Commercial Code, Innsbruck (AT) is agreed upon as the place of jurisdiction for all disputes arising between the customer and the provider.
