VALID FROM 01.04.2023
(1) Our deliveries, services and offers for contract conclusion are made exclusively on the basis of these General Terms and Conditions of Business (hereinafter referred to as “GTC“); we do not accept any conflicting terms and conditions of the customer or terms and conditions of the customer which deviate from our GTC unless we have explicitly consented to their application in writing. Our GTC shall also apply if we deliver to the customer without any reservations although we are aware of customer’s terms and conditions which contradict or deviate from our GTC.
(2) Our GTC only apply in relationships with entrepreneurs (§ 14 BGB – German Civil Code), legal persons under public law and special funds under public law
2. CONTRACT CONCLUSION
The contract is deemed concluded only upon our acceptance of the customer’s purchase offer by explicit confirmation or by delivery of the goods ordered.
3. DELIVERY / DELIVERY TIMES
(1) Unless explicitly agreed otherwise, the indicated delivery times are approximate only. The period for delivery only starts to run after all details of order execution have been clarified and both parties have mutually agreed on the conditions of the order. Any agreed delivery dates will be postponed accordingly.
(2) If we are prevented from complying with the agreed delivery dates due to force majeure, labour disputes, governmental or regulatory action, energy or raw material shortage, transport bottlenecks or hindrances, pandemics, operational hindrances, for example due to fire, water and/or engine breakdown all for which we are not responsable or other disruptions in the flow of operations either at our premises or those of suppliers or subcontractors for which we are not responsible and which can be proved to have a significant impact, we are obliged to inform the customer without undue delay (“unverzüglich”). In such cases we are entitled to extend the delivery time by the duration of the force majeure event or disruption provided that we have informed the customer as stipulated above. If delivery becomes impossible as a result of any of the afore-mentioned events, we are released from our obligation to deliver in which case we cannot be held liable for damages. If the customer proves that, due to the delay, subsequent performance is of no interest to him, he may rescind the contract in which case the customer is however not entitled to any further claims. If the force majeur event or disruption lasts longer than one month, we may rescind the contract with regard to that part which has not yet been performed provided that we have informed the customer as stipulated above and further provided that we have not assumed the risk of procurement (“Beschaffungsrisiko”) or given a delivery guarantee.
(3) Furthermore our delivery obligation is subject to the condition of timely delivery by our own suppliers, i.e. we are not obliged to deliver resp. to deliver within the agreed delivery period if, before contract conclusion, we have entered into a congruent covering transaction with the customer and our own supplier completely fails to supply us or fails to supply us correctly or on time and this failure is not attributable to us. In these cases, we are obliged to inform the customer of the non-availability of the goods without undue delay („unverzüglich“) and refund to the customer any amounts already paid by him without undue delay („unverzüglich“).
(4) If we are in default („Verzug“), the customer is entitled to withdraw from the contract according to the applicable statutory provisions. The customer may only claim damages for non-performance or damages for default under the conditions set out in sec. 9 of these GTC.
(5) We are entitled to make partial deliveries if and to the extent that they are reasonably acceptable for the customer when considering the customer’s interests. The customer is obliged to pay such partial deliveries on a pro-rata basis depending on the total amount of goods ordered by him.
4. DISPATCH
(1) Unless explicitly stated otherwise in the order confirmation, delivery EXW (pursuant to the Incoterms 2020 or the respective current version) is deemed agreed between the parties. The place of hand-over and place of performance (“Erfüllungsort”) is our warehouse in Troisdorf. This shall also apply if we have assumed the transport costs or paid them in advance for the customer or if partial deliveries are made.
(2) The risk of accidental destruction and accidental deterioration of the goods shall pass to the customer upon hand-over at the latest. If we have agreed to carry out dispatch of the goods, the risk of accidental destruction or accidental deterioration of the goods will pass to the customer upon hand-over of the goods to the freight forwarder or any other person or establishment entrusted with the execution of the dispatch. If the customer is in default of acceptance, this shall be equivalent to the hand-over or formal approval.
5. PRICES
(1) Our prices are set out in our current price list valid on the order date. We will inform the customer about any prices not set out in our current price list, especially prices for customized goods, upon request.
(2) All prices are ex our warehouse in Troisdorf, exclusive of the costs of dispatch and packaging and exclusive of the statutory value-added tax (VAT) all of which have to be paid on top.
(3) From an order value of € 425.00 net, the delivery for immediate firm purchase is free of shipping costs within Germany. In the case of extra costs incurred for express or urgent dispatch or special modes of dispatch or packaging requested by the customer, the full amount of such costs will be borne by the customer.
6. PAYMENT
(1) Unless otherwise agreed in writing in individual cases, invoices of the seller are due for payment without deduction within 30 days from dispatch of the invoice and delivery of the goods. If the customer, according to our agreement, is entitled to discount, ancillary costs (such as costs of dispatch and packaging) are not eligible for discount.
(2) We are entitled to set any payments made by the customer off against any existing previous debts of the customer first. If costs and interest have accrued, we may set any payments received from the customer off against the costs first, secondly against the interest accrued and finally against the principal claim.
(3) The customer is not entitled to withhold payments on grounds of counter-claims of the customer arising from other contractual relationships nor is he entitled to set such counter-claims off against our claims unless such counter-claims have been acknowledged by us or are undisputed by us or have been established by a final non-appealable court decision (res judicata). However, counter-claims of the customer existing or arising under the same contract for defects or non-performance and/or unfinished or incomplete performance remain unaffected.
7. PURCHASE ON APPROVAL
(1) If purchase on approval has been agreed with the customer, the purchase contract is concluded subject to the condition precedent of approval of the goods by the customer, according to § 454 BGB (German Civil Code). The period granted for approval of the goods is 14 days from delivery of the goods to the customer. Silence by the customer is deemed to constitute approval. With approval of the goods, the purchase contract is effectively concluded.
(2) We only accept returned goods in the condition they were in when received by the customer. For hygienic reasons, it is necessary to wear a „Medicap“ (underwear hair cover) each time hair systems/wigs or headgear is tried on.
(3) If the customer processes or modifies the goods, approval is deemed granted. The goods may no longer be returned to us after such processing or modification.
(4) If hair systems or headgear are tried on without a Medicap, approval of the goods is deemed granted, too. We will not accept return of hair systems or headgear that have been worn without a Medicap for hygienic reasons.
(5) If the customer does not grant approval, which he must have declared within the period specified in sec. 7 subs. 1 of these GTC (receipt by us), he must return the goods to us without undue delay („unverzüglich“). The customer will bear the costs of return of the goods as well as the costs of reconditioning, if any reconditioning is necessary.
(6) If the customer intentionally or negligently contravenes his obligation to return or carefully treat the goods, the customer will be liable to compensate us for the damage incurred as a result thereof.
(7) If the purchase contract is concluded, assertion by the customer of warranty claims is subject to the condition that the customer, without undue delay („unverzüglich“) after delivery of the goods, has duly complied with his obligation to inspect the goods and give notice of defects, if any, according to § 377 HGB (German Commercial Code) beforehand. Otherwise the following sec. 8 applies.
8. WARRANTY
(1) The customer’s rights in the case of defects in quality or title (including wrong delivery (aliud delivery) and short delivery) are governed by the statutory provisions unless otherwise stipulated hereinafter. In all cases, the special statutory provisions applicable in the case that the customer finally resells and delivers the goods to a consumer (§§ 445a, 445b, 478 subs. 1 BGB – German Civil Code) remain unaffected.
(2) Assertion by the customer of warranty claims is subject to the condition of due compliance by the customer with his obligation to inspect the goods and give notice of defects, if any, according to § 377 HGB (German Commercial Code). If the contractual relationship between us and the customer is a contract for work and services (in terms of a „Werkvertrag“ under German law), § 377 HGB (German Commercial Code) applies accordingly.
(3) In case of improper treatment or handling or regular wear and tear of the purchased object, warranty claims are excluded.
(4) If the delivered goods or generated work are/is defective, the customer is entitled to the statutory rights, subject to the following provisions:
(i) We are first entitled, at our discretion, to either remedy the defect or deliver a non-defective product to the customer or, in the case of a contract for work and services („Werkvertrag“), to generate a new work (subsequent performance – “Nacherfüllung”). The customer is obliged to grant us the time and opportunity required to provide such subsequent performance. Our right to refuse subsequent performance under the statutory provisions remains unaffected.
(ii) We are liable to pay all expenses which are necessary to carry out subsequent performance including but not limited to the costs of transport, labour, material and tolls, provided that the goods actually prove to be defective. If the customer’s request for subsequent performance proves to be unjustified, we are entitled to claim from the customer compensation of the costs incurred by us as a result of the unjustified request.
(iii) In the case of substitute delivery or production of a new work in the case of a contract for work and services („Werkvertrag“), the customer is obliged to return the defective goods to us upon request.
(iv) We are entitled to make the subsequent performance dependent on the customer’s payment of the purchase price agreed for the goods delivered. The customer is however entitled to withhold an adequate part of the purchase price.
(v) If the subsequent performance fails, the customer is entitled, at his choice, to either rescind the contract or claim reduction of the agreed purchase price. In case of a minor defect, the right of rescission is excluded.
(vi) Claims of the customer for compensation of damages or replacement of expenses only apply in accordance with the provisions in sec. 9 of these GTC and shall otherwise be excluded.
(5) The limitation periods are governed by sec. 10 of these GTC.
9. LIABILITY
(1) Subject to the provisions in the following subs. 2, we are only liable for contractual, non-contractual and other claims for damages, regardless of the legal basis, including but not limited to claims for defects, default („Verzug“) or impossibility of performance („Unmöglichkeit“), culpa in contrahendo and tort, in the case of intentional and/ or grossly negligent conduct including intentional and/ or grossly negligent conduct of our representatives and vicarious agents or other persons engaged by us in the performance of our obligations (“Erfüllungsgehilfen”). In addition, in the case of simple negligence („einfache Fahrlässigkeit“) including simple negligence of our representatives and vicarious agents or other persons engaged by us in the performance of our obligations (“Erfüllungsgehilfen”), we are liable for any damage resulting from the breach of a fundamental contractual duty (“wesentliche Vertragspflicht”), i.e. a duty the fulfilment of which is an indispensable condition for the proper performance of the contract and on the fulfilment of which the customer, as a rule, is hence reasonably allowed to rely (“Kardinalpflicht”). If and to the extent that we are not liable on grounds of an intentional breach of duty, our liability for damages is limited to the typical foreseeable damage.
(2) The exclusion and/ or limitation of liability stipulated in the preceding subs. 1 is without prejudice to the customer’s claims for damages arising from the injury of the life or limb or health as well as claims of the customer pursuant to the Produkthaftungsgesetz (German Product Liability Act) and the special statutory provisions on final delivery of the goods to a consumer (§§ 478, 479 BGB – German Civil Code) as well as other mandatory statutory liability regulations. The above exclusions and/or limitation of liability do not apply either if and to the extent that we have fraudulently concealed a defect or have given a guarantee or have assumed the risk of procurement (“Beschaffungsrisiko”).
(3) The preceding subs. 1 and 2 also apply if the customer, instead of claiming damages in lieu of performance („Schadenersatz statt der Leistung“), claims reimbursement of futile expenses („Ersatz nutzloser Aufwendungen“).
(4) If and to the extent that our liability for damages is excluded or limited, this also applies with regard to the personal liability for damages of our employees, personnel, staff, representatives, vicarious agents and other persons engaged by us in the performance of our obligations (“Erfüllungsgehilfen”) provided such liability is based on the same legal cause.
10. LIMITATION
(1) The customer’s claims for defects in quality or title become time-barred after expiry of one year from delivery of the goods.
(2) Any existing mandatory statute of limitations remains unaffected. Hence the reduced limitation period stipulated in the preceding subs. 1 does not apply to claims based on the injury of the life or limb or health, claims based on intentional and/ or grossly negligent conduct and claims based on the assumption of a guarantee or the assumption of the procurement risk („Beschaffungsrisiko“). The extended limitation periods under § 438 subs. 1 no. 1 BGB (German Civil Code) (third-party rights in rem) and §§ 438 subs. 3, 634a subs. 3 BGB (German Civil Code) (fraudulent intent) remain unaffected. If the ultimate contract in the supply chain is a consumer goods purchase according to § 474 BGB (German Civil Code) (i.e. in the case of ultimate delivery of the goods to a consumer), the limitation periods stipulated in § 445b BGB (German Civil Code) shall also remain unaffected.
(3) The limitation periods pursuant to the preceding subs. 1 and 2 which apply in the case of defects in quality or title apply mutatis mutandis to any concurrent contractual and non-contractual claims for damages of the customer which are based on a defect of the contract goods. If however, in individual cases, the application of the statutory provisions on limitation would cause the concurrent claims to become time-barred at an earlier point in time, such concurrent claims are deemed to be subject to the statutory limitation period. In any case, the statutory limitation periods stipulated by the Produkthaftungsgesetz (German Product Liability Act) remain unaffected.
(4) If and to the extent that, in the relationship between us and the customer, the limitation periods for claims are shortened according to the preceding subs. 1 to 3, these shortened periods also apply mutatis mutandis to any claims of the customer asserted against our legal representatives, employees, personnel, staff, agents and vicarious agents and other persons engaged by us in the performance of our obligations or subjected to our instructions (“Erfüllungsgehilfen“ / “Verrichtungsgehilfen“) provided such claims are based on the same legal cause.
11. TERMINATION, WITHDRAWAL
(1) If the contract in question is a contract for work and services (“Werkvertrag”) or a contract for work and services under which movable items are to be made (“Werklieferungsvertrag”), the right of the customer to freely terminate the contract (according to §§ 651, 649 BGB – German Civil Code) is excluded.
(2) Due to a breach of duty on our part, which does not consist of a defect, the customer is only entitled to withdraw from the contract if we are responsible for the breach of duty.
12. RESERVATION OF TITLE
(1) We reserve title to the delivered goods until we have received all payments due from the business relationship with the customer.
(2) The goods subject to reservation of title may not be pledged to third parties or assigned as security by the customer without our express written consent prior to full payment of the secured claims. In the event of pledges or other third party intervention, the customer must notify us without undue delay (“unverzüglich“) in writing so that we can take legal action pursuant to § 771 ZPO (German Code of Civil Procedure). If and to the extent that the action was successful and the third party is not able to reimburse us for the court or out-of-court costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the costs incurred by us.
(3) The customer shall be entitled to resell the delivered goods in the ordinary course of business. However, he hereby assigns to us all claims amounting to the final invoice amount (including VAT) of our claims which accrue from the resale to his customers or third parties, irrespective of whether the purchased goods have been resold with or without further processing. After such assignment the customer shall also remain authorized to collect this claim. Our right to collect the claim ourselves shall remain unaffected thereby. However, we undertake not to collect the claim ourselves provided that no bill or check protests occur, the customer fulfils his payment obligations using the proceeds earned, is not in default of payment and no petition for the opening of insolvency proceedings against his assets has been filed. If this is the case, however, we may demand that the customer notifies us of the assigned claims and their debtors, provides all information necessary for collection, delivers the associated documents and informs the debtors (third parties) of the assignment.
(4) The processing or transformation of the goods subject to reservation of title shall always be deemed to be performed for us and on our behalf. If the goods subject to reservation of title are processed with other objects / materials not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods subject to reservation of title to the other processed objects / materials at the time of processing. In all other respects, the same shall apply to the item created by processing as to the goods subject to reservation of title.
(5) If the goods subject to reservation of title are inseparably mixed or combined with other objects / materials not belonging to us in such a way that they become integral parts of a unified object, we shall acquire co-ownership of the new object in the ratio of the value of the reserved goods to the other mixed or combined objects / materials at the time of the combination or mixing. If the combination or mixing is carried out in such a way that the customer‘s item is to be regarded as the main item, it is already agreed now that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall keep the jointly held property thus produced in safe custody for us. Furthermore, the same shall apply to the item created by combining or mixing as to the goods delivered under reservation.
(6) The customer is obliged to treat and handle the goods delivered subject to reservation of title with care, in particular the customer is obliged to take out at his own expense adequate new value insurance for these goods against damage by fire and water and against theft.
(7) In the event of loss or damage to the goods subject to reservation of title, the customer hereby assigns to us in advance any claims to insurance payments existing in this connection in the amount of the final invoice (including VAT) of our claims with respect to the object of delivery by way of additional security.
(8) In case of deliveries abroad, if certain measures and/or declarations by either party are necessary to be taken in the importing country to ensure the effectiveness of the above-mentioned reservation of title and/ or other rights in our favour mentioned in the preceding subsections, the customer is obliged to inform us to that effect in writing or in text form („Textform“ in terms of § 126b BGB – German Civil Code) without undue delay („unverzüglich“) and take all such measures and/ or make all such declarations at his own expense without undue delay („unverzüglich“). If the law of the importing country does not permit any reservation of title to the delivered goods, the customer is obliged to provide us, at his expense and without undue delay („unverzüglich“), with another appropriate security interest in the delivered goods or any other equivalent security or collateral to be chosen in his reasonably exercised discretion (§ 315 BGB – German Civil Code).
(9) We are obliged to release, upon the customer’s request, the security granted to us if and to the extent that the realizable value of the security exceeds the claims to be secured by more than 10 %; we will determine those parts of the security which we are willing to release in our sole discretion.
13. COMPLIANCE, GOVERNING LAW, PLACE OF JURISDICTION
(1) Being part of an international group with a Japanese parent company, we refuse to supply to any buyer or any of their respective Subsidiaries (where applicable) where they (i) are or have been classified as an Anti-Social Group, (ii) have, or have had, any Anti-Social Relationship and/or (iii) engage, or have engaged, in Anti-Social Conduct, whether directly or indirectly through a third party.
(2) These GTC as well as all legal relationships between us and the customer are governed by the law of the Federal Republic of Germany. UN Sales Law does not apply.
(3) If the customer is a merchant (“Kaufmann” in terms of the HGB – German Commercial Code) or legal person under public law or a special fund under public law (“öffentlich rechtliche Sondervermögen”), the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Troisdorf; we are however also entitled to sue the customer before the court of his domicile.
(4) If any provision of these GTC should be invalid or infeasible, this will be without prejudice to the validity of the remaining provisions hereof which will continue in effect.
Troisdorf, March 2023