1.1. These are the general conditions of sale (the „General Terms and Conditions”) of smilecare GmbH, Osterwaldstrasse 113c, 80805 München (hereinafter referred to as “smilecare”).
1.2. smilecare offers dental care products (inter alia toothpaste, toothbrushes, mouthwashes, lip care products and dental floss) over the website www.smilecare.de (hereinafter referred to as “Website”) and/or product brochures respectively other advertisements (hereinafter referred to as “Other Distribution Channels”) (hereinafter jointly referred to as “Distribution Channel”). Customers may order such products by email, telephone or letter.
2. General Clauses, Customers, Contractual Language
2.1 All offers, sales contracts, deliveries and services made on the basis of any orders by our customers (each, a „Customer”) independent from the Distribution Channel shall be governed by these General Terms and Conditions.
2.2 The product offerings of smilecare independent from the Distribution Channel are directed to both Consumers and Business Customers (as defined below). For the purpose of these General Terms and Conditions, (i) a „Consumer” is any individual entering into the contract for a purpose not related to his or her business, trade or self-employed professional activity (Sec. 13 of the German Civil Code), and (ii) a „Business Customer” is an individual, company or partnership vested with legal capacity who enters into the relevant contract in the conduct of its business or its self-employed professional activity (Sec. 14 (1) of the German Civil Code).
2.3 Standard terms and conditions of the Customer do not apply, regardless of whether or not we expressly object to them in a particular case.
2.4 Our contracts with the Customer shall be made exclusively in the German or English language, in each case depending on the contractual language. Contractual language is the language used in the order. If the Customer makes the relevant order in English, exclusively the English version of these General Terms and Conditions shall be relevant. If the order is made in German, exclusively the German version of these General Terms and Conditions shall be relevant. In case of uncertainties, the English version shall prevail.
3. Conclusion of Contract
3.1 Our product display on the Website or other Distribution Channels are non-binding.
3.2 Upon receipt of an inquiry that includes product name, product quantity as well as contact details of the Business Costumer, smilecare will send a binding offer (within the meaning of sec. 145 of the German Civil Code) for the sell of the products. The offer will remain open for acceptance by the Business Customer us for a period ending at the end of the fifth business day following the day of the offer.
3.3 Customers that are Consumers will send an unbinding inquiry per email, letter or will contact smilecare by phone. The inquiry shall include the product name, product quantity and contact details. smilecare will send a binding offer (within the meaning of sec. 145 of the German Civil Code) for the sell of the respective products. This offer will include all contractual terms including this General Conditions of Sale. The offer will remain open for acceptance by the Business Customer us for a period ending at the end of the fifth business day following the day of the offer.
3.4. Any Customer who is a Consumer shall be entitled to revoke the offer and return the product in accordance with the withdrawal and return policy, as set out in section 12 of this General Conditions of Sale.
4. Prices and Payment
4.1 Indicated prices in offers to Business Customers, do not include statutory VAT; statutory VAT (where applicable) will be added. Any shipping costs, customs duties and similar public charges shall be borne by the Customer, unless declared otherwise.
4.2 Indicated prices on the Website or Other Distribution Channels, respectively offers directed to Customers who are Consumer, include statutory VAT. Any shipping costs, customs duties and similar public charges shall be borne by the Customer, unless declared otherwise. Offers for Consumers will expressly list shipping costs and any possibly existing public charges and other costs.
4.3 Unless expressly otherwise agreed, all shipments by us shall require advance payment upon receipt of an invoice or payment after delivery. We will indicate the applicable method in our offer.
4.4 In the event that we have agreed to payment after delivery, our invoices shall be due and payable by the Customer within 14 business days upon receipt of the product and the invoice.
4.5 The Customer shall have no right of set-off or retention, except to the extent that the counterclaim has not been disputed by us or been determined by a final and binding decision.
5. Dispatch of the Product
5.1 Any time period relevant to determine the date of dispatch pursuant to this Section 5 (as specified by us when the offer is made or as otherwise agreed upon) shall begin (i) in case of advance payment, upon receipt by us of the full purchase price (including VAT and shipping costs) or (ii) if cash on delivery or payment after delivery has been expressly agreed, upon the conclusion of the sales contract.
5.2 With regard to Business Customers, the date of dispatch shall be such day on which the product is handed over by us to the carrier.
5.3 With regard to Business Customers, partial deliveries of products included in the same order shall be permitted, provided that the products can be used separately and provided further that we shall bear any additional shipping costs caused thereby.
6. Shipment, Insurance and Passing of Risk
6.1 Unless expressly otherwise agreed upon we dispatch our products with DHL, UPS or with a forwarder. Unless expressly otherwise agreed upon, we shall be free to determine the appropriate mode of shipment and to select the carrier at our reasonable discretion.
6.2 With regard to Business Customers, we shall only be obliged to properly and timely deliver the product to the carrier and shall not be responsible for any delays caused by the carrier. Any transit times specified by us shall therefore only be non-binding estimates.
6.3 If the Customer is a Consumer, the risk of accidental destruction, damage or loss of the delivered product shall pass to the Customer upon delivery of the product to the Customer or upon the Customer’s default of acceptance. In all other cases, such risk shall pass to the Customer upon delivery of the product by us to the carrier.
7. Retention of Title
7.1 We retain legal title to any product supplied by us until the purchase price (including shipping costs, where applicable statutory VAT, customs duties and similar public charges) for such product has been fully paid (hereinafter referred to as “Reserved Goods”).
7.2 Such Customers, that have not expressly purchased products as a Reseller, shall not be entitled to resell any Reserved Goods (for clarification: products delivered by us which are still under retention of title), except with our prior written consent. The Customer shall handle the Reserved Goods with due care and shall immediately inform us if the Reserved Goods become subject to rights of third persons or other encumbrances and shall point out our ownership to such third party.
7.3 Reseller und Unternehmer
7.3.1 In case of Business Costumers, we reserve the right to take possession of the Reserved Goods, in case the Business Customer is in breach of contract (including, without limitation, default in payment) and after setting an appropriate deadline to perform. The Business Customer will bear the costs for the recollection.
7.3.2 The Business Customer shall handle the Reserved Goods with due care, maintain suitable insurance for the Reserved Goods and, to the extent necessary, service and maintain the goods.
7.3.3. As long as the purchase price has not been completely paid, the Business Customer shall point out our ownership and shall immediately inform us in writing if the Reserved Goods become subject to rights of third parties or other encumbrances. Where the third party is not in a position to reimburse us for the legal or out of court expenses incurred, this shall be the responsibility of the Business Customer.
7.3.4. Business Costumer, who expressly buy the products as reseller (hereinafter referred to as “Reseller”), may resell Reserved Goods only in the course of his regular business. Pledges or security transfers of the Reserved Goods are not permitted. In case the Reserved Goods are resold, the Business Costumer hereby assigns all claims arising out of such resale as well as claims against third parties which arise on any other legal basis in connection with Reserved Goods, to us. We accept such assignment. Notwithstanding our right to claim direct payment the Business Costumer shall be entitled to receive the payment on the assigned claims, as long as we have not revoked this authority. To this end, we agree to not demand payment on the assigned claims to the extent the Business Costumer complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.
7.3.5. Insofar as the above securities exceed the secured claim by more than 10 %, we are obligated, to release such securities upon the Business Costumer’s request.
8.1 Legal provisions shall apply with regard to defects of the delivered product. Notwithstanding the foregoing, if the Customer is a Business Customer, we shall have the right to choose between any such remedies at our discretion, provided that such choice shall be made by us by written notice (in „text form”, including by telefax or by e-mail) within a period of three business days following receipt of the Customer’s notice of the defect. We may refuse to remedy a defective product in the manner requested by the Customer if such remedy would result in unreasonable costs.
8.2 The warranty period shall be two years upon delivery of the Product if the Customer is a Consumer or otherwise twelve months upon delivery of the product.
8.3 With regard to Business Customers only, the following shall apply: The Customer shall promptly upon delivery inspect the product with due care. The delivered product shall be deemed to be approved by the Customer unless the defect is notified to us (i) in case of any obvious defects within a period of five business days upon delivery or (ii) otherwise within five business days from the day when the defect has been identified.
9. Intellectual Property Rights
9.1 All industrial property rights (including, but not limited to, registered and unregistered designs, copyrights and/or trademarks) and know-how (“Intellectual Property Rights and Know-how”) shall remain exclusively at smilecare. Unless otherwise expressly agreed, the Costumer shall not obtain any rights to use the Intellectual Property Rights and Know-How. This also applies in the case product adaptions wished by the Costumers are made.
10.1 We shall be liable only for intent, gross negligence, injury of life, personal harm or injury of health, fraudulent concealment of defects and assumption of guarantees as well as according to the Product Liability Act. Our liability for slight negligence is restricted to claims based on violation of a material contractual obligation whereby the amount of damages shall be limited to the typical foreseeable damages. Material contractual obligations are such obligations which are to be imposed on us according to the spirit and objective of these General Terms and Conditions or which are essential to facilitate the proper implementation of the contract and upon which Customer may regularly rely on.
11. Data Protection
11.1 We may save and process any data relating to the Customer, to the extent necessary for the purpose of the execution and implementation of the sales contract and as long as we are required to keep such data in accordance with applicable law.