General terms and conditions of business, ADA shop

of

ADA Cosmetics International GmbH
(hereinafter called "Supplier")

Rastatter Straße 2AD - 77694 Kehl

Tel.: +49 (0) 7853 898 525
Telefax: +49 (0) 7853 898 540

Email: info@ada-cosmetics.com

Trade Register, Freiburg Commercial Court - HRB 700719
VAT no.: DE252459565

CEO: Wilhelm B. Könning

 

Preliminary remark

Supplier offers products, mainly body care products and bathing accessories, for sale via the Internet under the domain www.ada-shop.com as well as for order by phone and fax using the catalogue (hereinafter, the order facilities will be jointly called "ADA shop")

Consumers and entrepreneurs buying products via the ADA shop are Contractual Partners in the sense of these General Business Terms.

 

Consumers are all natural persons concluding a legal business for a purpose not related to a commercial activity and which can also not be attributed to their capacity as self-employed individuals.
Entrepreneurs are natural persons or legal entities or legal partnerships acting in their capacity as a commercial or self-employed person or entity.
If the Contractual Partner is a cosumer, the special distance-selling regulations (see appendix to these Terms) also apply.
 

Art. 1 Scope
The following General Business Terms in the version valid at the time of the order apply exclusively. Supplier shall not accept any provisions by Contractual Partner to the contrary or varying from these Terms, except if Supplier expressly agrees that they apply.
Art. 2 Registration for purchasing online offers

(1) To the extent that Contractual Partner places an order regarding Supplier's Internet offer, Supplier has the option of setting up the unique registration for Contractual Partner as part of the order process of the Internet offer, assigning a user name and password.

(2) The unique registration of Contractual Partner as part of the order process of Supplier's Internet offer is provided free of charge. The right to a permit does not apply. Only persons of full legal capacity are authorised to participate. Contractual Partner shall complete the approval electronically as part of the registration form of Supplier's Internet offer. Contractual Partner shall provide the data required for the registration completely and truthfully. Contractual Partner selects a personal user name and password during registration. Contractual Partner is obligated to keep this password confidential and not to pass it on to third parties.

(3) To the extent that Contractual Partner has performed the registration and Contractual Partner's personal details change, Contractual Partner is himself responsible for updating them. All changes can be made online after logging on to "My ADA". Contractual Partner can delete his registration again at any time.
 
Art. 3 Product selection

(1) Contractual Partner has the option of choosing and ordering from among the ADA shop's products. Contractual Partner can obtain a separate product description for each product, which does not constitute a warranty of characteristics but merely describes the product.

(2) Contractual Partner can – to the extent that he makes use of the opportunity to order products as part of Supplier's Internet offer – select the desired products from the Internet offer. The selected products are collected in a shopping cart. At the end of his purchase, Contractual Partner receives a summary of the products showing their individual prices and the total including VAT.

(3) When ordering via Supplier's website, Contractual Partner may, before dispatching the order, check the correctness of its content, especially regarding price and quantity, and to correct this if necessary.

Art. 4 Conclusion of contract, saving of contract text

(1) All of Supplier's offers are subject to confirmation. If products are unavailable, the Supplier is not obliged to provide the services.

(2) By ordering an item, Contractual Partner binding declares his desire to purchase the ordered goods at Supplier's Business Terms (offer). When ordering via Supplier's website, Contractual Partner is informed of the status of his order by email. Supplier will instantly confirm receipt of the order (order confirmation). However, this order confirmation does not yet signify a binding acceptance of the order.  Supplier may accept the order by sending an order confirmation by email or by delivering the items within five days. To the extent that Contractual Partner places an order by phone or fax, the contract shall only be deemed agreed when the goods have been sent.

(3) Supplier does not accept procurement risk. Supplier is entitled to withdraw from the contract if he does not receive the delivery item in spite of previously concluding a purchase agreement; this shall not affect Supplier's responsibility regarding intent and gross negligence. Supplier shall inform Contractual Partner immediately if the delivery item is not available in time and, if he wishes to withdraw, exercise his right to withdrawal immediately; in the case of a withdrawal, Supplier shall return the relevant consideration to Contractual Partner immediately.

(4) The General Terms and Conditions of this contract can be viewed and/or printed out at any time via the link Business Terms of the ADA shop's Internet offer. The precise order details will be sent to Contractual Partner by email and can be viewed under "My ADA" after registration. Supplier does not save the contract text and this can no longer be viewed after the end of the order process. Contractual Partner can print out his order details immediately after placing the order.

Art. 5 Right to withdrawal within two 2 weeks, exclusion criteria

Instruction regarding the Supplier's right of withdrawal:

Right of withdrawal:

You may withdraw your contractual declaration in writing (e. g. letter, fax, email) or – if the item is sent to you before the deadline – by returning the item within two weeks without providing a reason. The period shall start after this instruction has been received in writing, however not before the recipient has received the goods (not before the receipt of the first partial delivery for the recurring delivery of similar goods) and also not before we have fulfilled our duty of information according to Art. 246 Section 2 in conjunction with section 1 (1) and (2) of the Introductory Act to the Civil Code (EGBGB) and our duties according to Section 312g (1) 1 BGB in conjunction with Art. 246 Section 3 EGBGB. In order to observe the right of withdrawal, the timely dispatch of the revocation or the item suffices. The revocation should be addressed to:

Consequences of a revocation

In the case of an effective revocation, the services received by both Parties shall be returned and any potential benefits (e. g. interest) shall be transferred. If you are unable to return the benefit to us in full or in part or only in a worse conditions (e.g. rights of use), you shall provide compensation for lost value to this extent. You are only liable to pay a compensation if the deterioration is due to a treatment of the item exceeding checking its properties and functionality. "Checking properties and functionality" means testing and trying out the items, to the extent that this would have been possible and common in a shop. Items ready to be dispatched shall be returned at our risk. You shall pay the costs of returning the items if the items correspond to those ordered and if the price of the items to be returned does not exceed 40 Euros or if you have not paid the consideration or a contractually agreed partial payment at the time of the revocation. In all other cases, you shall not be charged for returning the items. Items not ready for dispatch will be collected. Repayment duties for payments must be fulfilled within 30 days. For you, this period shall start with the dispatch of the notice of withdrawal or of the item; for us, with their receipt.

END OF THE INSTRUCTION ON WITHDRAWAL

You shall enjoy a right of withdrawal regardless of your warranty rights, if the goods are defective. To the extent that a defect covered by warranty exists, you shall be authorised, in accordance with the legal regulations, to ask to withdraw from the contract or to reduce the purchase price after its performance.

This right of withdrawal shall not apply

- for contracts which we have manufactured based on your specifications
or which were clearly tailored to your personal needs
or whose nature makes them unsuitable for a return
or which are perishable or
whose sell-by date has been exceeded,

- for contracts regarding the delivery of audio or video recordings or of software if you have broken the seal of the data storage medium.
- for contracts regarding the delivery of newspapers, magazines and pictorials, except if you made your contract declaration on the phone.
               

Art. 6 Delivery/ Deadlines

(1) Delivery dates and/or periods are usually provided for the individual products available via the shop.

(2) If no particular delivery date or period is shown/agreed, then a delivery/performance period for the goods of 3 working days within Germany, 7 working days within Europe and 10 working days outside Europe is regarded as a reasonable period for the Supplier.

(3) To the extent that delivery to Contractual Partner is not possible because the delivered goods do not fit through the entrance door, door of the house or staircase, or because Contractual Partner is not available at the delivery address provided even though Contractual Partner was informed of the delivery time reasonably in advance, Contractual Partner shall be responsible for paying for the failed delivery.

(4) Partial deliveries are permitted to the extent that this is reasonable for the Contractual Partner.

 
Art. 7 Prices / Payment terms

(1) To the extent that this is not specified to the contrary in the offer or the order confirmation, Supplier's prices shall be "ex Supplier's works". Statutory VAT shall be included in Supplier's prices; its statutory amount shall be shown separately on the invoice on the day of invoicing. Contractual Partner shall be charged separately for postage according to the details given in the ADA shop.

(2) Supplier shall issue an invoice to Contractual Partner for the ordered goods, which shall be handed over on delivery. The purchase price shall become due in full with the order. Contractual Partner shall pay for the goods immediately by using one of the payment methods made available to him. An exception to this only applies if Contractual Partner has been granted payment on account. In such a case, the calculated price becomes due when the invoice is received.

(3) Contractual Partner shall have defaulted after 14 days even if Supplier does not declare this. To the extent that Contractual Partner defaults on the payment, statutory default interest of currently 5% over the base rate for Consumers and 8% over the base rate for Entrepreneurs shall be charged. If it can be shown that Supplier has suffered higher damages due to the default, Contractual Partner shall be liable for compensation.

(4) If defects exist, Contractual Partner shall not have a right of retention to the extent that this does not reasonably correspond to the defects and to the expected costs of subsequent performance (particularly defect correction). Otherwise, Contractual Partner shall only be entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship. Contractual Partner shall only be entitled to set-off rights if his counterclaims have been legally asserted, are uncontested and have been accepted by Supplier.

(5) The delivery item shall remain Supplier's property until paid for in full.


Art. 8 Transfer of risk

(1) The risk of an incidental loss or incidental deterioration of the goods shall only be transferred to Contractual Partner when the goods are handed to him. If Contractual Partner has delayed acceptance, this shall not affect the transfer.

(2) If Supplier sends to goods to a location other than Contractual Partner's place of business at Contractual Partner's request and if Contractual Partner is a consumer, risk shall be transferred to Contractual Partner as soon as the goods have been handed over to the carrier, haulier or other person or institution responsible for the dispatch.

Contractual Partner, regardless of whether he is a Consumer or an Entrepreneur, shall be responsible for the costs of postage from Supplier's premises, except if these are not reasonable in comparison to the value of the delivery item.
 

Art. 9 Warranty

(1) Supplier is obliged to provide Contractual Partner with the goods free of material and legal defects. The item must be free of defects when risk is transferred to the Contractual Partner.

(2) If a material defects occurs, Contractual Partner's liability rights are initially limited to the right to supplementary performance If Contractual Partner is an Entrepreneur in the sense of Section 14 of the Civil Code (BGB), Supplier shall, regarding item defects, at his discretion first of all provide repairs or substitute deliveries. If Contractual Partner is a Consumer in the sense of Section 13 BGB, Contractual Partner shall initially have the choice of supplementary performance through repairs or substitute delivery.

(3) Supplementary performance requested by Contractual Partner or offered by Supplier must occur within a reasonable period; a repair period of 20 working days is generally deemed reasonable. However, Supplier is entitled to reject the type of supplementary performance chosen if this is only possible for Supplier by incurring disproportionate costs and if a different type of subsequent performance does not result in significant disadvantages for Contractual Partner.

(4) If supplementary performance fails, Contractual Partner may generally demand the consideration to be reduced (reduction) or to withdraw from the contract (withdrawal). In the case of a minor infringement of the contract, especially in the case of minor defects, Contractual Partner shall not have the right to withdrawal.

(5) If Contractual Partner is a Consumer, he is obligated to to inform Supplier of the material or legal defect in writing within two months of the time when he discovered the defect by attaching the invoice of receipt. In this context, Contractual shall describe the defects in as much detail as possible. Supplier's receipt of the notice shall be material in terms of compliance with the deadline. This provision shall not constitute a preclusion period for Contractual Partner's defect rights.

If Contractual Partner is an Entrepreneur, the complaint shall be in accordance with the provisions of the Commercial Code (HGB). If the Entrepreneur fails to send this notice, his warranty rights regarding a defect shall expire after the end of the legal defect notice period, to the extent that Supplier is not guilty of malice regarding the defect.

(6) Warranties generally relate only to the warranty declared by the goods' manufacturer, if Supplier has not in individual cases stated the contrary or if the Parties have not made an agreement to the contrary.

To the extent that products with a manufacturer warranty or with the warranty of a manufacturer are sold, Contractual Partner's claims regarding this warranty shall be addressed only to the manufacturer according to his warranty conditions.


Art. 10 Limitation period

(1) To the extent that a used item is a delivery item, the limitation period for compensation claims due to defects – regardless of the legal reason – shall be six month; for all other claims and rights due to defects, this shall be one year.

(2) To the extent that a new item is a delivery item, the limitation period for compensation claims due to defects – regardless of the legal reason – shall be one year.

(3) The limitation periods according to Paragraphs 1 and 2 shall also apply to other compensation claims against the seller, regardless of the legal basis. They shall also apply if the claims are not in relation to a defect.

(4) The above-mentioned limitation periods apply with the following proviso:

(a) The limitation periods is paragraphs 1 and 2 generally do not apply in the case of intent;

(b) the limitation periods in paragraphs 1 and 2 also do not apply if the seller has maliciously concealed the defect or if the seller has accepted warranty for the condition of the delivery item. If the seller has maliciously concealed the defect, the periods applicable according to Section 438 (1) 2 BGB or 3 BGB shall apply instead of the periods mentioned in paragraphs 1 and 2, excluding the extension of the period for malice according to Section 438 (3) BGB if there is no exception according to this paragraph 4.

(c) The limitation periods of paragraphs 1 and 2 also shall not apply if we are dealing with the right in rem of a third party, according to which the return of the delivery item can be demanded.

(d) The limitation periods in paragraphs 1 and 2 furthermore apply to compensation claims in the case of loss of life, bodily injuries or violations of health or liberty, to claims according to the Product Liability Act, to grossly negligent breaches of duty or to the violation of material contractual duties in breach of the contract.

(e) To the extent that Supplier's contractual liabillity can be precluded or is limited, this shall also apply to the personal liability of Supplier's employees, representatives or vicarious agents.

(4) To the extent that this has not been expressly agreed to the contrary, the legal provisions regarding the start of the limitation period, suspension of the statute of limitations, suspension or new start of the periods shall remain unaffected.

(5) The above-mentioned provisions shall not result in a change to the burden of proof to the buyer's disadvantage.

 
Art. 11 Limitation of liability

(1) Supplier shall not be liable for material defects of deliveries which he receives from third parties and forwards unchanged; this shall not affect responsibility for intent and gross negligence.

(2) In the case of intent or gross negligence, Supplier or a representative or a vicarious agent shall be liable according to the legal provisions. Otherwise, the Supplier shall be liable in accordance with the Product Liability Act regarding loss of life, bodily harm or damages to health in the case of a violation of material contractual duties in breach of contract or if the seller has maliciously concealed the defect or has accepted warranty for the condition of the delivery item. In this context, compensation claims due to the violation of material contractual shall be limited to the typical foreseeable damages from the contract. Liability for damages to the buyer's legal interests due to the delivery item, e.g. damages to other items, is precluded in full. The provisions of sentences 3 and 4 do not apply to the extent that intent or gross negligence exists or liability applies due to loss of life, bodily harm or damages to health or if the seller has maliciously concealed the defect or has accepted warranty for the condition of the delivery item.

(3) The provisions of the paragraph above comprise compensation in addition to performance and compensation instead of performance, regardless of the legal reason, especially due to defects, the violation of duties from the contractual relationship or tort action. This shall also apply for claims regarding compensation for wasted expenditure.

(4) If the non-compliance with deadlines is due to Acts of God, e.g. mobilisation, war, riots, or similar events, particularly strikes or lockouts, the periods shall be reasonably extended.

In the case of intent or gross negligence, Supplier or a representative or a vicarious agent shall be liable for delays according to the legal provisions. In other cases of a delayed performance, Supplier's liability for compensation in addition to and instead of performance due to delays shall be limited to 5% of the value of the partial delivery affected. Other claims of Contractual Partner - also after a period for performance set for Supplier – are precluded. The above-mentioned limitation to liability shall not apply for loss of life, bodily harm or damages to health.

(5) To the extent that delivery is impossible, Contractual Partner is entitled to demand compensation according to the legal provisions. However, Contractual Partner's claim for compensation in addition to and instead of performance and for wasted expenditore shall be limited to 10% of the value of that part of delivery which cannot be used due to the impossibility. This limitation shall not apply in the case of intent, liability for loss of life, bodily harm or damages to health. This shall not affect Contractual Partner's right to withdraw from the contract.

(6) The above-mentioned paragraphs (2) and (5) shall not result in a change to the burden of proof to the buyer's disadvantage.

(7) Data communication via the Internet can, according to the current level of technology, not be provided free of defects and/or be available at all times. As a result, Supplier shall not be liable for the permanent and uninterrupted availability of the Internet offer nor for technical or electronic errors during sales events, which are beyond Supplier's control, and especially not for a delayed processing or acceptance of offers.


Art. 12 Agreement on responsibility for costs

If Contractual Partner uses his revocation right, he shall pay the regular costs of returning the items if the items correspond to those ordered and if the price of the items to be returned does not exceed 40 Euros or, in the case of a higher item price, if he has not paid the consideration or a contractually agreed partial payment at the time of the revocation. In all other cases, Contractual Partner shall not be charged for returning the items.


Art. 13 Sending product information

Supplier shall particularly use the data obtained from Contractual Partner as part of purchasing in order to send information and offers compiled by Supplier – e.g. as a newsletter. If Contractual Partner does not wish to receive this information, he may inform Supplier of this by email using the following address: info@ada-shop.com.


Art. 14 Final provisions

(1) Amendments or appendices to these General Terms and Conditions must be in writing. This also applies to cancelling the written form requirement.

(2) To the extent that Contractual Partner is an Entrepreneur, the following provisions also apply:

(a) The law of the Federal Republic of Germany shall apply excluding UNCISG. This shall not affect the statutory provisions of the country in which the Contractual Partner is ordinarly resident.

(b) The place of performance and jurisdiction for both parties shall be Supplier's place of business to the extent that legal provisions do not necessarily specify something to the contrary. The contract languages are German and English.

(c) If one of the above-mentioned provisions is or becomes invalid in part or in full, this shall not affect the remaining provisions. The invalid provision shall be replaced by a provision that approximates the economic purpose of the invalid provision in a legally effective form as closely as possible. The above-mentioned provision shall correspondingly apply to contractual gaps.

 
ADA Cosmetics International GmbH

As at: October 2011

______________________________________________

Appendix

Notice regarding Internet, phone, fax and catalogue purchases

To the extent that you are ordering goods by visiting our website www.ada-shop.com, by phone or by fax, which are not used for commercial purposes or in your capacity as a self-employed person, we would like to point out the following:

(1) The languages available for the contract are German and English.

(2) You can find the most important features of the goods offered by us as well as the validity of limited offers in the individual product descriptions in the ADA shop.

(3) The presentation of our goods – particularly in the catalogue and online - does not constitute a binding offer. Only orders of particular goods are binding offers. We confirm your order by email. This confirmation email does not yet signify acceptance of your contractual offer. The sales contract has been agreed when we send the goods to you.

(4) You can identify any potential input errors occurring during your online order placing during final confirmation before "Checkout" and correct them with the help of the delete and edit functions at any time before sending your order.

(5) Should the goods that you have ordered not be available, we reserve the right not to provide the services.

(6) The prices that we quote are final prices including tax. You will be charged separately for postage.

(7) The purchase price is due at the time of the order. Payment for goods can be made using the option of your choice from among the payment methods available on our website. Our bank details are: Deutsche Bank Offenburg (Sort Code 664 700 35) Account 087 079 000 ∙ Commerzbank Baden-Baden (Sort Code 662 400 02) Account115 063 000.

(8) You have a right of withdrawal:

Instruction regarding the provider's right of withdrawal:
Right of withdrawal:

You may withdraw your contractual declaration in writing (e. g. letter, fax, email) or – if the item is sent to you before the deadline – by returning the item within two weeks without providing a reason. The period shall start after this instruction has been received in writing, however not before the recipient has received the goods (not before the receipt of the first partial delivery for the recurring delivery of similar goods) and also not before we have fulfilled our duty of information according to Art. 246 Section 2 in conjunction with section 1 (1) and (2) of the Introductory Act to the Civil Code (EGBGB) and our duties according to Section 312g (1) 1 BGB in conjunction with Art. 246 Section 3 EGBGB. In order to observe the right of withdrawal, the timely dispatch of the revocation or the item suffices. The revocation should be addressed to:

Consequences of a revocation

In the case of an effective revocation, the services received by both Parties shall be returned and any potential benefits (e. g. interest) shall be transferred. If you are unable to return the benefit to us in full or in part or only in a worse conditions (e.g. rights of use), you shall provide compensation for lost value to this extent. You are only liable to pay a compensation if the deterioration is due to a treatment of the item exceeding checking its properties and functionality. "Checking properties and functionality" means testing and trying out the items, to the extent that this would have been possible and common in a shop. Items ready to be dispatched shall be returned at our risk. You shall pay the costs of returning the items if the items correspond to those ordered and if the price of the items to be returned does not exceed 40 Euros or if you have not paid the consideration or a contractually agreed partial payment at the time of the revocation. In all other cases, you shall not be charged for returning the items. Items not ready for dispatch will be collected. Repayment duties for payments must be fulfilled within 30 days. For you, this period shall start with the dispatch of the notice of withdrawal or of the item; for us, with their receipt.

END OF THE INSTRUCTION ON WITHDRAWAL

You shall enjoy a right of withdrawal regardless of your warranty rights, if the goods are defective. To the extent that a defect covered by warranty exists, you shall be authorised, in accordance with the legal regulations, to ask to withdraw from the contract or to reduce the purchase price after its performance.

This right of withdrawal shall not apply

- for contracts which we have manufactured based on your specifications
or which were clearly tailored to your personal needs
or whose nature makes them unsuitable for a return
or which are perishable or
whose sell-by date has been exceeded,

- for contracts regarding the delivery of audio or video recordings or of software if you have broken the seal of the data storage medium.
- for contracts regarding the delivery of newspapers, magazines and pictorials, except if you made your contract declaration on the phone.

(9) We will save the data required between yourselves and us to process your contract and you may access this as all times. In this context, we refer to our Data security notification.

(10) We are not subject to any special Codes of Conduct not mentioned above.

(11) In all other cases, we refer to the General Terms and Conditions, on which this contract is based.