General terms and conditions of KinderDent GmbH
I. General points and scope
1. For all contracts with the purchaser, only our general terms and conditions apply (henceforth also “GTC”). We do not recognize any conditions of the purchaser, which are contrary to our GTC, deviate from or complement them unless we have expressly agreed to their validity. Our GTC shall also apply exclusively if we carry out the delivery to the purchaser unconditionally in the knowledge of terms of the purchaser that are contradictory, deviating or supplementary to our GTC.
2. These GTC shall apply to all orders placed by you as purchaser via the catalogue mail order business (hereinafter referred to as “catalogue mail order”) or via our online sales platform www.kinderdent.com (hereinafter referred to as “online shop”) by KinderDent GmbH, Gutenbergstraße 7, D-28844 Weyhe, Germany (service hotline: please call +49 4203-43332).
3. These GTC apply only to purchasers who are entrepreneurs within the meaning of sections 14 (1) and 310 (1) of the German Civil Code (BGB) or a legal entity under public law or public special assets. With his order, the purchaser confirms that he will not use the goods as an end user or in the same manner of an end user, and that he accepts these GTC. With its catalogue mail order business and the online shop www.kinderdent.com, the KinderDent GmbH does not enter into business relations and does not conclude contracts with consumers in the sense of section 13 BGB. KinderDent does not supply resellers or other distributors who wish to resell the goods. However, if this should happen, it must be coordinated and agreed in advance.
4. In each case, the version of the GTC valid at the time of conclusion of the purchase contract shall be decisive. The currently valid GTC can be accessed and printed out on the website https://www.kinderdent.com/.
II. Offer, conclusion of contract, modifications, errors and cancellation in case of supply shortage
1. Offer in the catalogue mail order
1.1 All depictions of our goods and services in the catalogue are nonobligatory and non-binding. The current catalogue is the basis for catalogue orders. When a new catalogue is published, any reference to earlier catalogues is ruled out.
1.2. If an order is sent by the purchaser by means of the valid catalogue in the form of a completed order form, an order by post, fax, e-mail or a telephone order, this shall be a legally binding order addressed to us with the purpose of buying the ordered product(s) under our GTC. An order confirmation issued to the purchaser by us, depending on the way of ordering, by telephone, in writing or in text form, merely confirms receipt of the order and does not constitute an acceptance of the order in legal terms. Our sales persons are not authorized to make oral side agreement or give any assurances.
2. Offer in the online shop www.kinderdent.com
2.1 All depictions of our goods and services in the online shop (www.kinderdent.com) are nonobligatory and non-binding. In particular, they are not a binding offer for the conclusion of a purchase contract. Rather, it is a non-committal invitation to order goods in the online shop. The depictions of the goods, therefore, serve as an invitation to submit a binding offer by the purchaser.
2.2 After placing the selected goods in the virtual shopping cart and having completed the electronic ordering process, the customer places a legally binding purchase offer with respect to all goods contained in the shopping cart in the specified quantity and at the stated price by clicking on the button “Order now payable” that will conclude the order process.
2.3 Upon receipt of the purchase offer with us, the purchaser receives an automatically generated e-mail, with which we first confirm that we have received the order (confirmation of receipt). This confirmation of receipt does not constitute acceptance of the purchase offer. A contract is not yet concluded by confirmation of receipt.
3. Conclusion of contract, modifications, errors and cancellation in case of supply shortage
3.1 We reserve the right to make a decision about any purchase offer. A purchase contract for the goods only comes into existence when we explicitly declare the acceptance of a purchase offer or if we send the goods to the purchaser without a prior explicit declaration of acceptance.
3.2 If an ordered product is not available or is not sufficiently available because we are not supplied with this product by our suppliers through no fault of our own, we can withdraw from a contract which may have been concluded. In this case, we will instantly notify the purchaser and, if possible, propose the delivery of a comparable product. If no comparable product is available or the purchaser rejects the delivery of a comparable product, we will immediately reimburse any compensating measures already paid.
3.3 We reserve the right to make modifications to our products and services, in particular with regard to design, colour and/or technical aspects, which primarily serve to improve the quality of the product, without a prior notice, the same applies to errors. Depictions and details of our products in brochures, advertisements, catalogues or on the website are only similar and are not totally accurate in scale or colour. Such depictions and details are only part of the agreed upon nature of the delivery item if the purchaser and we have explicitly agreed on this.
III. Prices, terms of payment, offsetting and right of retention
1. Unless explicitly agreed otherwise, our prices shall be understood as net prices, excluding additional costs such as freight, customs, and taxes. These are invoiced separately or stated separately on the invoice in case they arise. VAT is not included in our prices. If VAT is incurred, it is stated separately on the invoice in the amount valid on the day of the invoice.
2. The prices indicated in the respective depictions and advertising materials, in particular in the catalogue, relate in each case to the date of publication of the respective advertising medium; price changes after this date are reserved.
3. If our delivery is made within four months after the conclusion of the contract, as agreed upon or for reasons under the responsibility of the purchaser, we are entitled to increase the purchase price of a product adequately if and to the extent that the supplier of the product concerned increases the prices for the product after conclusion of the contract. This applies only when there is no compensation for the increased purchase price by other cost factors.
4. Unless expressly agreed otherwise, the goods are delivered from our warehouse to the delivery address stated by the purchaser. The shipping costs incurred for the delivery and not included in the price are indicated in the catalogue below the GTC or in the online shop by clicking on the link “Shipping and delivery costs”.
5. Provided we have not agreed to bank deposits, prepayments or credit card payments with the purchaser in the case of catalogue orders, the purchaser is obliged to pay the invoice amount without deductions in cash or by paying free of charge to one of our accounts within 14 calendar days after the invoice date. The receipt of the money with us or the crediting of the amount on our account is decisive. After expiry of the 14-day period, the purchaser is in default of payment. During the delay, the purchaser must pay interest on the debt of 9 percentage points above the respective base rate of the European Central Bank. We reserve the right to prove and assert a higher damage caused by the delay.
6. The regulations under no. 5 apply accordingly for orders via the online shop, if the purchaser in individual cases gets the goods delivered on invoice (payment by invoice) - sufficient creditworthiness provided.
7. In the online shop, there are various payment options at the purchaser’s disposal. These payment options, which are available at the time, are indicated in the online shop under payment options.
IV. Shipping, transfer of risk, storage costs and transport insurance
1. Unless explicitly agreed otherwise in the contract, delivery is agreed on.
2. With the handover, in case of sale by dispatch the handover to the freight forwarder, the freight carrier or the person otherwise destined to carry out the dispatch, the risk of accidental loss or accidental deterioration of the delivery item shall be transferred to the purchaser at the time of the shipment, irrespective of the place of shipping. This also applies to partial deliveries and regardless of whether freight-free delivery is agreed on. If the shipment is delayed at the purchaser's request, or if the purchaser is in default of acceptance or of payment, the risk passes to him even on the day of dispatch. The purchaser shall bear the costs resulting from the delay (in particular, for storage).
3. By request of the purchaser, we will conclude a transport insurance, the costs of which are borne by the purchaser.
V. Delivery, delivery time, default of acceptance and of delivery
1. Deliveries are generally made as a total delivery of the entire order. Part deliveries are permissible insofar as they are reasonable for the purchaser. Additional costs of part deliveries in relation to the cost of a total delivery are borne by us if the purchaser does not expressly request part deliveries.
2. Despite careful stockage, in exceptional cases, it is possible that ordered goods are sold out faster than planned and / or can no longer be delivered by our suppliers. A delivery guarantee is therefore not provided.
3. Compliance with our delivery obligation requires the timely and proper fulfilment of all obligations of the purchaser, in particular, the fulfilment of agreed payment obligations and, if applicable, the provision of agreed securities. The objection to the unfulfilled contract remains reserved.
4. If the purchaser is in default of acceptance, he has to compensate us for any extra charges (e.g. due to the storage of the delivery item). If the purchaser is guilty of any other obligation to cooperate, he has to compensate us for the damage incurred (including extra charges). Any further claims are reserved, in particular claims for damages, if the purchaser is at the same time in default of acceptance and of payment.
5. In the case of force majeure and similar circumstances (unforeseen circumstances and occurrences which are not under our responsibility, which we could not have avoided with due diligence, e.g. labor disputes with us or our suppliers, war, fire, transport impediments, administrative measures, natural catastrophes or lockouts), the mutual contractual obligations are suspended for a period of time plus an appropriate start-up period if and to the extent to which that this is necessary with regard to the specific obligation, taking into account the extent and intensity of force majeure and the like. This also applies if a party is already in default. The parties shall notify each other immediately of the occurrence of a case of force majeure or the like and the foreseeable duration of the interruption. Both parties shall be entitled, after a reasonable period of at least three months, to resign in whole or in part for the unfulfilled portion of the contract if it is not reasonable to the resigning party to fulfil the contract due to the duration of force majeure, also considering the interests affected of the other party. A delayed or failed delivery cannot give rise to claims for damages in cases of force majeure or the like.
6. Our liability for delays in delivery is governed by clause IX.
VI. Voluntary return rights
1. We grant the purchaser a voluntary return right for delivered goods. Within one week after delivery, delivered goods can be returned or exchanged, in so far they are originally packaged and are in perfect and re-saleable condition. For the observance of the time limit - depending on what first occurs - the purchaser's respective declaration of return or the time of sending of the goods is decisive. All milk tooth crowns, steel crowns, and spacer systems are excluded from the exchange and voluntary return right, as well as articles individually printed for the purchaser. Special orders which are not included in our regular catalogue or online shop are also excluded from the voluntary return right.
2. The purchaser has to dispatch the goods unused, in original packaging and break-proof. In principle, the purchaser bears the costs and the risk of the return when the voluntary return right is exercised. We assume no liability for transport and transport damage. Not prepaid shipments are not accepted in any case. If the purchaser receives a return label case for the return of goods from us in the individual, we bear the costs of the return label as a gesture of goodwill.
VII. Retention of title
1. We retain title to the delivery item (henceforth also “retention goods”) until the purchase price has been paid in full and all claims arising from the current business relationship with the purchaser have been settled. The inclusion of individual claims into a current invoice as well as the balance do not affect the retention of title; in this case, the retention refers to the recognized or actual balance. As payment, we consider only the receipt of the respective amount to us or on our bank account.
2. In the event of a breach of contract by the purchaser, in particular, in the event of a delay in payment, we are legally entitled to withdraw from the contract and to take back the delivered goods. For the purpose of taking back the goods, the purchaser hereby irrevocably permits us to enter his business and storage rooms unhindered, or let our performing agent enter them, and to take the goods belonging to us. Taking back the delivery item always includes a withdrawal from the contract. We are entitled to use the goods after their return. The earnings from the disposal shall be offset against the accounts of the purchaser – after deducting appropriate costs of disposal – according to section 367 of the German Civil Code (BGB).
3. In the case of seizures or other interventions by third parties on the retention goods, the purchaser has to notify us immediately in writing and in advance by telephone, fax and/or e-mail so that we can take appropriate measures, in particular, lawsuits pursuant to section 771 Civil Process Order (ZPO).
4. The purchaser is entitled to resell the retention goods in the ordinary course of business. This shall not apply if, within the scope of the disposal, it is agreed that the claim of the purchaser against the third party will be nullified by offsetting. In the interest of safety, the purchaser he cedes to us at this point in time all receivables which may arise from a sale to his client or another third party to the level of the final invoice amount (including VAT) of our claim, regardless of whether the purchase object has been the subject of additional processing or not. We hereby accept the cession. The purchaser shall remain authorized to collect these receivables even after the cession. Our authority to collect the receivable is unaffected. However, we undertake not to collect the receivables as long as the purchaser meets his payment obligations from the revenues collected in an appropriate amount, is not in default of payment and does not ceases to pay. If this is the case, however, we can demand that the purchaser communicates to us all ceded receivables and the relevant debtors, together with all information required for collection, especially full name and postal address of the debtors, that he transmits to us all relevant documentation and that he informs his debtors of the cession.
5. The purchaser shall bear all pretrial, judicial and extra-judicial costs which must be used for the annulment of a seizure or other access by a third party to the retention goods and the returning of the retention goods, insofar as they cannot be withdrawn by the third party. If on the basis of this clause VII., we are entitled to assert claims assigned to us, the purchaser shall reimburse us the necessary pretrial, judicial and extrajudicial costs.
6. We undertake to release the securities to which we are entitled at the purchaser's request if the realizable value of our securities exceeds the claims to be secured by more than 10%; the securities released are our responsibility.
1. The warranty shall be governed by the statutory provisions if and to the extent that nothing deviating from this is agreed on in the following.
2. Claims and rights of the purchaser due to defects (henceforth also “claims for defects”) presuppose that he has duly fulfilled his duty to inspection and objection according to section 377 German Commercial Code (HGB), in particular, to transport damages, completeness, and correctness. The purchaser must notify us immediately in writing of any shortcomings in the delivery, but at the latest within 7 calendar days after receipt of the delivery. Concealed defects are objected in due time if the purchaser notifies the defect in writing within 7 calendar days after discovery.
3. Claims for defects do not exist if and insofar as the purchaser carries out improper modifications on the delivered goods without our consent, or assigns another party to do so.
4. If and to the extent to which the delivery item has a defect, deviating from section 439 (1) German Civil Code (BGB) with regard to the supplementary performance, we chose between remedying the defect or delivering a new defect-free item. In the case of supplementary performance, we are obliged to bear the expenses necessary for the purpose of supplementary performance, in particular transportation, travel, work and material costs, insofar as these do not increase due to the delivery item being transported to a place other than the place of performance, unless the shipment corresponds to its intended use.
5. If the supplementary performance fails, the purchaser is entitled, at his discretion, to demand rescission or reduction. The purchaser's demand for damages instead of the performance is excluded until the failure of the supplementary performance unless a demand for supplementary performance is dispensable according to the law. The supplementary performance shall be deemed to have failed if two attempts to remedy the complained defect did not lead to the lack of defect of the delivery item or was not undertaken within a reasonable period of time.
6. The purchaser is only entitled to claim damages in accordance with the additional requirements of section IX.
IX. Liability for damages
1. Our liability for damages, irrespective of the legal basis, in particular also from impossibility, delay in delivery, breach of obligations in the case of contractual negotiations or unauthorized action, shall be limitedly subject to the provisions of this clause IX.
2. We shall be liable without limitation, where applicable, in case of lawfully ordered strict liability (e.g. according to the Product Liability Act), in case of fraudulent concealment of a defect, for damages from injury to life, body or health, in case of intent, gross negligence, or as far as we have expressly assumed a guarantee. Liability for the negligent violation of an insignificant contractual obligation by a performing agent is excluded.
3. In the case of the slight negligent violation of essential rights or obligations arising from the content and purpose of the contract (so-called cardinal duties), we are only limitedly liable to the foreseeable, contract-type damage; but limited in any case to the net order value of the defective delivery. Except in the cases described in clause IX. (2) and (3) sentence 1, we shall not be liable for damages caused by slight negligence on our part or by our performing agents.
X. Statute of limitations
1. The warranty claims for all goods are subject to the statutory limitation periods, if and to the extent that nothing deviating from this is agreed on in the following. The period of limitation for warranty claims due to defects in the delivery item is 1 year.
2. Any other claims of the purchaser due to a breach of duty by us, in particular claims for damages, or claims arising from a guarantee, lapse in one year. In derogation from the preceding No. 1 and No. 2 sentence 1, the statutory periods of limitation shall apply to the following claims of the purchaser:
2.1. claims under the Product Liability Act as well as claims for damages resulting from injury to life, body, health or essential rights and obligations under the contract,
2.2. claims for damages resulting from an intentional or grossly negligent breach of duty by us or our performing agents,
2.3 claims for fraudulent concealment of a defect
2.4 other claims, where the shortening of the limitation periods by GTC is legally excluded.
XI. Procurement risk and guarantees
We do not assume any procurement risks or guarantees unless we have concluded an explicit written agreement with the purchaser. Manufacturing guarantees remain unaffected by this provision.
XII. Place of jurisdiction, place of performance and applicable law
1. Exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship shall be the registered office of the company KinderDent GmbH. This also applies in case the purchaser does not have a general place of jurisdiction in Germany or if his domicile or place of habitual residence is transferred abroad or his domicile or place of habitual residence is not known at the time of filing of action. However, we reserve the right to sue the purchaser at his general place of jurisdiction.
2. Unless we have explicitly agreed otherwise with the purchaser, the place of performance for all services we owe is the registered office of the company KinderDent GmbH.
3. The law of the Federal Republic of Germany applies, with the exception of German private international law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
XIII. Final provisions
1. Should individual provisions of the contract concluded between us and the purchaser be or become invalid or void, this shall not affect the validity of the contract. The invalid or void provision shall be deemed to be replaced by such a provision which most closely resembles the economic spirit and purpose of the invalid or void provision. The above provision applies in the case of omission accordingly.
2. Should individual clauses of this GTC be or become invalid, deviating from section XIII. (1) the sections 306 (1) and (2) of the Civil Code (BGB) apply.
3. No action by us, other than an explicit written declaration of renouncement, constitutes a waiver of a right to which we are entitled under the contract, this GTC or the law. A delay in the exercise of our rights shall also not be deemed a waiver of the law concerned. A one-time waiver of a right shall not be deemed a waiver of such right on another occasion.
As of: December 2016