GENERAL TERMS AND CONDITIONS
OF UNITED SALON TECHNOLOGIES GMBH FOR THE UST ONLINE SHOPS
1.1. All deliveries, services and offers of United Salon Technologies GmbH (hereinafter referred to as “Seller”) are made exclusively on the basis of these General Terms and Conditions of Delivery. These are an integral part of all contracts that the Seller concludes with its contractual partners (hereinafter referred to as “Client”) concerning the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or offers to the Client, even if they are not separately agreed again.
1.2. Terms and conditions of the Client or third parties shall not apply, even if the Seller does not separately object to their validity in individual cases. Even if the Seller refers to a letter containing or referring to the Client’s or a third party’s terms and conditions, this shall not constitute an agreement to the validity of those terms and conditions. Any conflicting prohibition on assignment of claims is hereby expressly ruled out. We are entitled to assign the claims arising from our business relationship.
2. OFFER AND CONCLUSION OF CONTRACT
2.1. All offers made by the Seller are subject to change without notice and are non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Orders or contracts may be accepted by the Seller within 14 days of receipt.
2.2. The legal relationship between the Seller and the Client shall be governed solely by the written contract of sale, including these General Terms and Conditions of Delivery. This contract fully reflects all agreements between the contracting parties on the subject matter of the contract. Verbal promises made by the Seller prior to the conclusion of this contract are not legally binding and verbal agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they continue to be binding.
2.3. Supplements and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be in writing in order to be effective. With the exception of managing directors or authorised signatories, the Seller’s employees are not entitled to make verbal agreements that deviate from the written agreement. Transmission by telecommunication, in particular by fax or by e-mail, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.
2.4. Information provided by the Seller on the subject matter of the delivery or service (e.g., weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as the Seller’s representations of the same (e.g., drawings and illustrations) shall only be approximate unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components with equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
2.5. The Seller retains ownership or copyright of all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Client. The Client may not make these items available to third parties, either as such or in terms of content, disclose them, use them itself or through third parties or reproduce them without the Seller’s express consent. At the Seller’s request, the Client shall return these items in full to the Seller and destroy any copies made if they are no longer required by the Client in the ordi- nary course of business or if negotiations do not lead to the conclusion of a contract. The storage of electronically provided data for the purpose of usual data backup is excluded from this requirement.
3. PRICES AND PAYMENT
3.1. The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. Prices are quoted in EUR ex works plus packaging, the statutory value-added tax (valid at the time), customs duties in the case of export deliveries as well as fees and other public charges.
3.2. Invoice amounts are to be paid within thirty days without any deduction, unless otherwise agreed in writing. The bank account details must be taken from the note in the invoice. The date of receipt by the Seller shall be decisive for the date of payment. Payment by cheque is excluded unless agreed separately in individual cases. If the Client fails to make payment when due, interest of 5% p.a. shall be payable on the outstanding amounts from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected. In the event of default of more than one liability, all claims against the Client are due and payable immediately. The statutory default interest applies.
3.3. Offsetting against counterclaims of the Client or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established or arise from the same order under which the delivery in question was made.
3.4. The Seller shall be entitled to perform or render outstanding deliveries or services only against advance payment or the provision of security if, after the conclusion of the contract, circumstances become known to the Seller which are likely to substantially reduce the creditworthiness of the Client and as a result of which the payment of the Seller’s outstanding claims by the Client under the respective contractual relationship (including under other individual orders to which the same framework agreement applies) is jeopardised.
4. DELIVERY AND DELIVERY TIME
4.1. Deliveries will be made ex works.
4.2. Deadlines and dates for deliveries and services promised by the Seller shall always be approximate only, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.
4.3. The Seller may – without prejudice to its rights arising from default on the part of the Client – demand from the Client an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Client fails to meet its contractual obligations towards the Seller.
4.4. ICC clause on force majeure (“Force Majeure Clause”):
4.4.1. Definition: “Force Majeure” means the occurrence of an event or circumstance (“force majeure event”) that prevents a party from performing one or more of its obligations under the contract if and to the extent that the party affected by the impediment (“affected party”) proves that:
126.96.36.199. this impediment is beyond its reasonable control; and
188.8.131.52. it could not reasonably have been foreseen at the time of entering into the contract; and
184.108.40.206. the effects of the impediment could not reasonably have been avoided or overcome by the af- fected party.
4.4.2. Non-performance by third parties: If a party to a contract fails to perform one or more of its obligations under the contract because of a failure by a third party to whom it has entrusted the performance of the whole or part of the contract, that party may invoke force majeure only to the extent that therequirements for presuming the existence of force majeure, as defined in 4.4.1, apply not only to the party to the contract but also to the third party.
4.4.3. Presumed force majeure events: Unless proven otherwise, the following events affecting a party shall be presumed to meet the requirements for the presumption of force majeure under § 220.127.116.11 and §
18.104.22.168. In this case, the affected party only has to prove that the condition under § 22.214.171.124 is actually fulfilled:
- War (declared or undeclared), hostilities, attack, acts of foreign enemies, extensive military mobilisation;
- Civil war, riot, rebellion and revolution, military or other seizure of power, insurrection, acts of terrorism, sabotage or piracy;
- Monetary and trade restrictions, embargoes, sanctions;
- Lawful or unlawful official acts, compliance with laws or government orders, expropriation, seizure of works, requisition, nationalisation;
- Plague, epidemic, pandemic (including but not limited to COVID-19), natural disaster or extreme natural event;
- Explosion, fire, destruction of equipment, prolonged failure of transportation, telecommunications, information systems, power or raw materials;
- General labour unrest such as boycotts, strikes and lockouts, slowdowns, occupation of factories and buildings.
4.4.4. Notification: The affected party shall immediately notify the other party of the event.
4.4.5. Consequences of force majeure: A party who successfully invokes this clause shall be released from the obligation to perform its contractual obligations and from any liability for damages or any other contractual remedy for breach of contract, but only if it gives immediate notice thereof. However, if the notice is not given immediately, the release shall take effect only from the time when the notice reaches the other party. The other party may suspend the performance of its obligations, if force majeure is indeed to be presumed, from the time of such notification.
4.4.6. Temporary hindrance: If the effect of the impediment or event claimed is temporary, the consequences set out in §4.4.5 shall apply only for as long as the obstacle claimed prevents the performance of the contractual obligations by the affected party. The affected party must notify the other party as soon as the impediment no longer prevents the performance of its contractual obligations.
4.4.7. Duty to mitigate: The affected party has a duty to take all reasonable steps to mitigate the effects of the event relied upon in the performance of the contract.
4.4.8. Termination of contract: If the duration of the impediment relied upon has the effect of substantially depriving the parties to the contract of what they had a right to expect by virtue of the contract, the party concerned shall be entitled to terminate the contract affected by giving notice to the other party within a reasonable time. Unless otherwise agreed, the parties expressly agree that the contract may be terminated by either party if the duration of the impediment has exceeded 120 days.
4.4.9. Unjustified enrichment: If 4.4.8 is applicable and a party to the contract has gained an advantage through an act of another party in the performance of the contract prior to termination of the contract, it must pay the other party a sum of money equal to the value of the advantage.
4.5. ICC hardship clause:
4.5.1.A contracting party is obliged to perform its contractual obligations even if events have made performance more difficult than could reasonably be expected at the time the contract was concluded.
4.5.2. If, notwithstanding § 4.5.1, a contracting party proves that:
- the further performance of its obligations under the contract has been made more difficult because of an event beyond its reasonable control which could not reasonably have been expected at the time of entering into the contract; and that
- the party to the contract could not reasonably have avoided or overcome the event or its consequences, the parties shall be required to negotiate alternative terms of the contract within a reasonable time after the invocation of this clause which will reasonably overcome the consequences of the event.
4.5.3. If § 4.5.2 applies but the parties have been unable to agree alternative contract terms in accordance with that sub-clause, the party invoking that clause shall be entitled to rescind the contract but shall not be entitled to seek adjustment by the judge or arbitrator without the consent of the other party.
4.6. The Seller shall only be entitled to make partial deliveries if the partial delivery is usable for the Client within the scope of the contractual purpose, the delivery of the remaining goods ordered is ensured and the Client does not incur any significant additional expense or costs as a result (unless the Seller agrees to bear such costs).
4.7. If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for the Seller for whatever reason, the Seller’s liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions of Delivery.
5. DISPATCH AND TRANSFER OF RISK
5.1. The place of performance for all obligations arising from the contractual relationship is Solingen, unless otherwise specified.
5.2. The mode of dispatch and the packaging shall be at the Seller’s discretion.
5.3. The risk shall pass to the Client at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or the Seller has assumed other services (e.g., shipping or installation). If dispatch or handover is delayed due to a circumstance caused by the Client, the risk shall pass to the Client from the day on which the delivery item is ready for dispatch and the Seller has notified the Client of this.
5.4. Storage costs after the transfer of risk shall be borne by the Client. In the event of storage by the Seller, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. The right to claim and prove further or lower storage costs is reserved.
5.5. The Seller shall only insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks at the Client’s express request and at the Client’s expense.
5.6. Insofar as acceptance is to take place, the object of sale shall be deemed to have been accepted when:
- the delivery has been completed,
- the Seller has notified the Client of this fact with reference to the presumption of acceptance in accordance with this § 5.6 and has requested the Client to accept the goods,
- 10 working days have elapsed since delivery or the Client has started to use the object of sale and in this case 5 working days have elapsed since delivery, and
- The Client has failed to take delivery within this period for a reason other than a defect notified to the Seller which makes the use of the object of sale impossible or significantly impairs it.
6. RIGHT OF WITHDRAWAL
6.1. As a consumer, you have the right to cancel this contract within 14 days without giving any reason. This right does not apply to entrepreneurs.
6.2. The cancellation period is 14 days from the day
6.2.1. in the case of a contract of sale: on which you or a third party named by you, who is not the carrier, have taken or has taken possession of the goods;
6.2.2. in the case of a contract for several goods which you have ordered as part of a single order and which are delivered separately: on which you or a third party named by you, who is not the carrier, have taken or has taken possession of the last goods;
6.2.3. in the case of a contract for the delivery of goods in several instalments or pieces: on which you or a third party named by you who is not the carrier takes possession of the last instalment or piece;
6.2.4. In the case of a contract for the regular delivery of goods over a fixed period of time: on which you or a third party named by you, who is not the carrier, have taken or has taken possession of the first Goods.
6.3. In order to exercise your right of withdrawal, you must inform us (United Salon Technologies GmbH, Kundenservice, Ketzberger Str. 34, 42653 Solingen, Germany, firstname.lastname@example.org, +49 212 658625) by means of a clear declaration (e.g., a letter sent by post, fax or e-mail) of your decision to withdraw from this contract. You can use the attached model withdrawal form for this purpose, which is, however, not mandatory.
6.4. In order to comply with the withdrawal period, it is sufficient to send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period.
6.5. Consequences of withdrawal:
6.5.1. If you withdraw from this contract, we must refund all payments we have received from you, including the delivery costs (with the exception of the additional costs resulting from the fact that you have chosen a type of delivery other than the cheapest standard delivery offered by us), without delay and at the latest within 14 days from the day on which we received the notification of your withdrawal from this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged any fees because of this repayment. We may refuse repayment until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earlier.
6.5.2. You must return or hand over the goods to us (United Salon Technologies GmbH, Kundenservice, Ketzberger Str. 34, 42653 Solingen, Germany) without undue delay and in any event no later than 14 days from the day on which you notify us of the cancellation of this contract. The deadline is met if you send the goods before the end of the 14-day period.
6.5.3. If you use a return label provided by us, the return is free of charge for you. Return labels can be requested from our customer service (email@example.com) at any time. If you do not use our return label, you will bear the direct costs of returning the goods.
6.6. The withdrawal is excluded if goods are delivered that are not prefabricated, for the manufacture of which an individual selection or determination by the customer is decisive, or which are clearly tailored to the personal needs of the customer.
6.7. Model cancellation form: If you wish to withdraw from the contract, please complete and return this form:
United Salon Technologies GmbH
Ketzberger Str. 34
I/we hereby withdraw from the contract concluded by me/us for the purchase of the following goods/provision of the following services:_______________________________________________________________________________________________________________
Ordered on__________, received on ________________________________________________________________________________
Name of consumer(s): ____________________________________________________________________________________________
Address of the consumer(s): _______________________________________________________________________________________
Signature of consumer(s), only in case of communication on paper:__________________________________________________________________________________________________________
7. WARRANTY, MATERIAL DEFECTS
7.1. The warranty period for entrepreneurs is one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by the Client arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents, which shall each be time-barred in accordance with the statutory provisions.
7.2. The warranty claims of consumers shall become statute-barred in accordance with the periods provided by law.
7.3. If the Client is an entrepreneur, the delivered items must be carefully inspected immediately after delivery to the Client or to the third party designated by the Client. With regard to obvious defects or other defects which would have been recognisable in the course of an immediate, careful inspection, they shall be deemed to have been approved by the buyer if the Seller does not receive a written notification of defects within six working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the buyer if the notice of defect is not received by the Seller within five working days after the point in time at which the defect became apparent; if, however, the defect was already apparent at an earlier point in time during normal use, this earlier point in time shall be decisive for the commencement of the period for giving notice of defect. At the Seller’s request, a rejected delivery item shall be returned to the Seller carriage paid. In the event of a justified complaint, the Seller will reimburse the costs of the most favourable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
7.4. In the event of material defects in the delivered items, the Seller shall first be obliged and entitled to rectify the defect or to make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e., impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the Client may withdraw from the contract or reasonably reduce the purchase price.
7.5. If a defect is due to the fault of the Seller, the Client may claim damages under the conditions set out in § 8.
7.6. In the event of defects in components of other manufacturers which the Seller cannot remedy for licensing or factual reasons, the Seller will, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the Client or assign them to the Client. In the event of such defects, warranty claims against the Seller shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g., due to insolvency. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the Client against the Seller shall be suspended.
7.7. The warranty shall lapse if the Client modifies the delivery item or has it modified by a third party without the Seller’s consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the Client shall bear the additional costs of remedying the defect resulting from the modification.
7.8. Any delivery of used items agreed with the Client in individual cases shall be made to entrepreneurs to the exclusion of any warranty for material defects.
8. LIABILITY FOR DAMAGES DUE TO FAULT
8.1. The Seller’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this § 8, insofar as fault is involved in each case.
8.2. The Seller shall not be liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item in due time, its freedom from defects of title as well as such material defects that impair its functionality or usability more than insignificantly, as well as consulting, protection and care obligations that are intended to enable the Client to use the delivery item in accordance with the contract or are intended to protect the life or limb of the Client’s personnel or to protect the Client’s property from significant damage.
8.3. Insofar as the Seller is liable for damages on the merits pursuant to § 8.2, this liability shall be limited to damages which the Seller foresaw as a possible consequence of a breach of contract at the time of the conclusion of the contract or which it should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item shall also only be compensable insofar as such damage is typically to be expected when the delivery item is used for its intended purpose.
8.4. In the event of liability for simple negligence, the Seller’s obligation to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to the amount covered by the business liability insurance of €3,000,000.00 per damage event, even if this involves a breach of material contractual obligations.
8.5. The above exclusions and limitations of liability shall apply to the same extent in favour of the bodies, legal representatives, employees and other vicarious agents of the Seller.
8.6. Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of performance owed by the Seller, this shall be done free of charge and to the exclusion of any liability.
8.7. The limitations of this § 8 shall not apply to the Seller’s liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
9. RETENTION OF TITLE
9.1. The retention of title agreed below serves to secure all current and future claims of the Seller against the Client arising from the supply relationship existing between the contracting parties (including balance claims from a current account relationship limited to this supply relationship) With respect to consumers, the retention of title shall be limited to the (purchase price) claim(s) arising from the underlying purchasecontract.
9.2. The goods delivered by the Seller to the Client shall remain the property of the Seller until all secured claims have been paid in full. The goods as well as the goods covered by the retention of title taking their place in accordance with the following provisions shall hereinafter be referred to as “goods subject to retention of title”.
9.3. The Client shall store the goods subject to retention of title for the Seller free of charge.
9.4. The Client is revocably entitled to sell the goods subject to retention of title in the ordinary course of business until the event of realisation (§ 9.8) occurs. Claims to payment of the purchase price arising from the resale are hereby assigned to the Seller. Pledges and transfers of ownership by way of security are not permitted.
9.5. In the event of resale of the goods subject to retention of title, the Client hereby assigns to the Seller by way of security the resulting claim against the purchaser – in the event of co-ownership of the Seller in the reserved goods, in proportion to the co-ownership share. The same shall apply to other claims which take the place of the goods subject to retention of title or otherwise arise in respect of the goods subject to retention of title, such as insurance claims or claims in tort in the event of loss or destruction. The Seller revocably authorises the Client to collect the claims assigned to the Seller in its own name. The Seller may only revoke this collection authorisation in the event of realisation. If there is a current account relationship between the Seller and Client pursuant to § 355 of the German Commercial Code (HGB), the advance assignment also concerns the recognized balance. Any processing or transformation of the object of sale by the Client is always deemed to have been performed on the Seller’s behalf. If the object of sale is processed or connected with other objects that do not belong to the Seller, the Seller acquires co-ownership of the new object in proportion to the ratio of the value of the object of sale to the other objects processed at the time of processing. If the object of sale is combined with other objects that do not belong to the Seller, the Seller acquires co-ownership of the new object in proportion to the ratio of the value of the object of sale to the other object mixed at the time of processing. If the Client’s object should be viewed as the main object, the Client must transfer proportional co-ownership to the Seller. There is no need to rescind the contract to assert claims concerning retention of title unless the Client is a consumer.
9.6. If third parties gain access to the goods subject to retention of title – in particular by way of seizure – the Client shall immediately draw their attention to the Seller’s ownership and inform the Seller thereof in order to enable it to enforce its ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Client shall be liable to the Seller for this.
9.7. The Seller shall release the goods subject to retention of title as well as the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 50%. The choice of the items to be released thereafter shall be made by the Seller.
9.8. If the Seller withdraws from the contract in the event of a breach of contract by the Client – in particular default of payment – the Seller shall be entitled to demand return of the goods subject to retention of title.
10. FINAL PROVISIONS
10.1. If the Client is a merchant, a legal entity under public law or a special fund under public law or if the Client has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Seller and the Client shall be Solingen (Germany) or the registered office of the Client, at the Seller’s discretion. However, Solingen shall be the exclusive place of jurisdiction for actions against the Seller in such cases. This provision shall not affect mandatory statutory provisions on exclusive places of jurisdiction.
10.2. The relations between the Seller and the Client shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 Apr. 1980 (CISG) shall not apply.
10.3. Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.
United Salon Technologies GmbH