General terms & conditions of Nesmuk GmbH & Co. KG in the Federal Republic of Germany
1 General information, scope of valdility
1.1 We work, sell and supply our products only in accordance with the following Terms & Conditions, as amended from time to time. These Terms & Conditions govern all contractual relationships which we enter into. We do not recognise customer Terms & Conditions which conflict with or deviate from our own Terms & Conditions. Our Terms & Conditions shall also apply if, in the awareness of customer terms and conditions which conflict with or deviate from our own Terms & Conditions, we effect delivery to customer without reservation.
1.2 Generally, unless we have provided our express and revocable written consent, the merchandise shall only be retailed or offered for sale in the specified online shop, by our other services or by contractual partners. Product sales via eBay, eBay agencies/agents or similar online marketplaces and agencies are prohibited. Plagiarised products may not be sold via the online shop.
1.3 The products shall be offered for sale at the recommended retail price in euro.
1.4 The contractual language is German.
2 Nesmuk.de provider information
The nesmuk-shop.de and nesmuk.de website provider is Nesmuk GmbH & Co. KG, Burgstraße 101, 42655 Solingen, Germany. The website owner – hereinafter also referred to as the Seller – sells Nesmuk brand products to customers. The proprietor of the Nesmuk brand is Nesmuk GmbH & Co. KG.
3 Saving option and inspection of contract text
3.1 The Customer may inspect our Terms & Conditions on the website at any time. The Customer may also print out, save or download this document in PDF format.
3.2 Order data is stored in conformity with German Data Protection Law requirements and it may therefore not be possible to access it directly. If necessary for security reasons, we will provide each customer with password protected access. This will enable the Customer to inspect the status of transacted, pending and dispatched orders, to edit address and bank details and, if the Customer is a newsletter subscriber, to administer and save the newsletter. The Customer undertakes to treat the personal login data as confidential and to prevent unauthorised third parties from gaining access to it.
3.3 The Seller may also, after receiving an order, send an automatic order confirmation e-mail to the Customer containing the order data and these Terms & Conditions. The Customer can save this e-mail using his or her browser’s functions.
4 Contractual partners, panguage and contract formation
4.1 Your contractual partner is Nesmuk GmbH & Co. KG, Burgstraße 101, 42655 Solingen, Germany. The contractual language is German.
4.2 The prices and product information published on our website constitute a non-binding invitation to the Customer to submit a purchase offer and are provided to enable potential Customers to place orders. We reserve the right to accept or decline purchase offers.
4.3 All prices and product information published on our website are provided without engagement and are only legally binding after we have provided additional written confirmation. Errors excepted.
4.4 When the Customer has entered his or her personal details for order processing and invoicing purposes, which are not saved on the internet, he or she provides binding confirmation of the order by clicking the send button in the menu which is displayed in the last step of the order process for the items contained in the shopping basket/ listed on the order form. Confirmation of order receipt is provided in an automatic e-mail which is sent out by our system. This message contains important information about the further processing of the order. The Customer herewith undertakes to read this information.
4.5 The contract of purchase enters into force when you send your order (“order in obligation”-button) and receive our order confirmation directly after your order. Please remember items purchased against cash in advance are not delivered until the full amount (purchase price plus delivery costs) has been credited to our bank account. The contractual acceptance period does not commence until this time.
5 Prices, shipping costs
The prices which are listed on the website at the time when the order is placed shall be effective. The specified prices are final prices, which means that they include the statutory VAT and other price components plus the shipping costs which are shown in the order process.
6 Delivery, passing of the risk
6.1 The time to delivery for each article may be specified in the product information text. If the product, contrary to expectations, cannot be delivered we will inform you immediately. All information provided is without obligation. Errors excepted.
6.2 The delivery time shall be reasonably extended if incidents occur such as stoppages, particularly strikes and lock-outs, or if delays are caused by other circumstances which are beyond our control, such as legal or official orders (e.g. import or export restrictions) or force majeure. We shall notify Customers without delay of the beginning and end of such incidents.
6.3 If not all of the ordered merchandise is in stock, we are entitled to make part deliveries at our expense and provided that this is acceptable to the Customer.
6.4 When products are supplied to consumers, the risk of accidental loss or deterioration passes to the Customer upon hand-over, even if the transaction qualifies as a sale to destination as per the buyer’s instructions. When products are supplied to business owners, the risk of accidental loss or deterioration passes to the Customer upon hand-over and, in transactions which qualify as sales to destination, when the products are handed over to the carrier or the person/organisation appointed by the company to handle shipment.
7 Payment, offsetting, right of retention
7.1 The payment methods available to the Customer are displayed in the order process. Generally, deliveries from other countries than Germany can be paid by pre-payment (payment in advance), PayPal or credit card (VISA or MasterCard). In Germany we additionally offer payment by direct e-banking (“Sofortüberweisung”).
In cooperation with Klarna Bank AB (publ), Sveavägen 46, 111 34 Stockholm, Sweden, we offer you the following payment options: invoice, part payment and direct debit. Payment is to be made to Klarna:
Get first. Pay later (in 14 days): The payment period is 14 days from shipment of the goods or tickets/ availability date of the service. The complete terms and conditions you can find here.
Slice it: With the financing service from Klarna you can pay your purchase in flexible monthly instalments of at least 1/24 of the total amount (at least 6.95 €) or else according to the conditions stated in the checkout. The instalment payment is due at the end of each month after submission of a separate monthly invoice by Klarna. Further information regarding Part Payment including terms and conditions and Standard European Consumer Credit Information you can find here.
Pay Now (Sofort direct banking): Your account will be debited directly after placement of your order.
Direct Debit: Your account will be debited after shipment of the goods. You will be notified about the date by email.
[PLEASE ADJUST ABOVE AND BELOW IN ACCORDANCE WITH THE PAYMENT METHODS USED]
The payment methods invoice, part payment and direct debit are only available in case of a positive credit assessment. For this purpose, during the order process and handling of your purchase, we forward your data for an address and credit check to Klarna. We can only offer you the payment methods available based on the result of the credit check. Further information and Klarnas user terms you can find here.. General information on Klarna you can find here. Your personal data is handled in accordance with applicable data protection law and in accordance with the information in Klarnas privacy statement.
For this payment method you need a PayPal customer account. When paying with PayPal you will automatically be forwarded to the PayPal payment dialog in encrypted form. Your bank or credit card details are only stored with PayPal and do not need to be re-entered and sent over the Internet. With this payment method you will not incur any further costs on our part or on the part of the payment service provider.
Translated with www.DeepL.com/Translator
7.3 Deliveries which are effected against payment in advance are subject to payment, including packaging and shipment costs, immediately upon receipt of invoice and without any deductions or charges to us, to the bank account specified on the invoice. Discounts on the invoiced amount are only granted with our written confirmation. However, if such discounts are specified on the invoice, these shall be exclusive of freight, postage, insurance and other shipment costs. Telephone, electronic and unilateral agreements to the contrary are non-binding for us.
7.4 The Customer is only entitled to set off own claims if its counterclaims have been judicially determined as non-appealable, are legally undisputed or have been acknowledged by us.
7.5 The Customer may only exercise a right of retention if the counterclaim arises from the same contractual relationship.
8 Consumer right of revocation
8.1 If the Customer is a consumer, he or she shall have right of cancellation in accordance with the following statutory information pertaining to the requirements and consequences of consumer right of revocation.
INFORMATION ABOUT CONSUMER RIGHT OF REVOCATION
You have the right to revocate from this contract within 14 days without giving any reason. The revocate period will expire after 14 days from the day on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the goods.
To exercise the right of revocation, you must inform us:
Nesmuk GmbH & Co. KG
FAX +49 212 – 235 732 29
of your decision to revocate from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). To meet the revocation deadline, it is sufficient for you to send your communication concerning your exercise of the right of revocation before the withdrawal period has expired.
Consequences of revocation
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
END OF THE NOTIFICATION REGARDING REVOCATION
9 Liability for defects
9.1 We warrant that the supplied merchandise is free of defects and manufacturing faults at the time of the passing of the risk and that it conforms to the contractually agreed quality.
9.2 We accept no liability for defects or damage caused by the improper use of the merchandise, the non-observance of instructions for use or incorrect/ careless handling.
9.3 Consumers may request us, by way of subsequent performance, to either remedy the defect or supply a replacement item. We are entitled to refuse to comply with the selected method of subsequent performance if it would involve unreasonable costs for us and the other method of subsequent performance would not result in any substantial disadvantages for the consumer. If the Customer is a business owner, we are at liberty to either remedy the defect or supply a replacement item.
9.4 If subsequent performance fails, the Customer is entitled to demand a reduction in the purchase price, cancel the contract or demand compensation in lieu of performance. If the Customer opts for compensation in lieu of performance, the liability limitations pursuant to section 11.1 of these Terms & Conditions applies. In the case of negligible defects, the Customer does not have the right to cancel the contract.
9.5 Business owners must notify us without delay of obvious defects immediately after receipt of the merchandise; otherwise they are not entitled to exercise their right to receive compensation. Timely dispatch of the notification shall suffice for compliance with the time-limit.
9.6 The warranty period granted to consumers is 2 years and to business owners 1 year, commencing on the date of merchandise delivery.
9.7 Please address warranty enquiries, criticisms and complaints to: Nesmuk GmbH & Co. KG, Burgstraße 101, 42655 Solingen, Germany, phone: t +49 212 235 732 0 f +49 212 235 732 29, e-mail: office(aet)nesmuk.de
10.1 We are liable to pay compensation for damages in connection with warranty claims and claims asserted on other legal grounds – particularly claims in connection with tort, failure to set up proper procedures for contract formation or any other strict liability claims arising from failure to meet obligations – only to the extent that we or our vicarious agents have acted with gross negligence or the damages are due to the breach of a material contractual obligation and in the case of claims pertaining to product liability. The above exclusion of liability for simple negligence does not apply in cases of injury to life, limb or health, if we provide a quality guarantee or if we fraudulently conceal a defect pursuant to section 444 of the German Civil Code. In such cases, we also accept liability for the simple negligence of our legal representatives or vicarious agents.
10.2 We accept no liability for loss of profits, personal injury caused by the improper use of the merchandise or for failure to meet expectations. In commercial transactions, we shall not be liable for damages arising as a consequence of a defect.
10.3 We accept no liability for the permanent and interruption-free availability of our website.
11 Retention of title
11.1 We shall retain title to the merchandise delivered by us until payment in full has been effected.
11.2 The Customer is only entitled to resell the merchandise prior to payment in an orderly business procedure and provided that the resale of the merchandise is not precluded by these Terms & Conditions (section 2.2 Terms & Conditions). If the Customer resells the merchandise, all ensuing claims shall be assigned to us. We herewith accept the assignment. Otherwise, the Customer is not entitled to dispose of the merchandise to which title has been retained and, in particular, to transfer ownership of said merchandise by security lien or global assignment or to pledge it to third parties.
11.3 Until transfer of ownership takes place, the Customer undertakes to treat the merchandise with due care. The Customer undertakes to inform us without delay if a third party gains access to the merchandise, if it is damaged in any way or if it is destroyed.
12 Customer data
13 Applicable law, place of jurisdiction and severability clause
13.1 The law of the Federal Republic of Germany shall govern all legal transactions and legal relationships with us, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG), even after it its adoption as German law. Contracts with an object which is unrelated to the professional or commercial activity of the beneficiary (consumer) are only governed by this applicable law if no protection is provided by mandatory statutory provisions in the consumer’s country of habitual residence.
13.2 The courts at our company’s legal domicile shall have jurisdiction in all legal disputes arising from the contract, including actions on dishonoured bills of exchange and cheques, in business transactions with entrepreneurs or public authorities. We are also entitled to bring an action at the customer’s legal domicile.
13.3 Should any provision of these Terms & Conditions be or become invalid or unenforceable for any reason, this shall not affect the validity or enforceability of the remaining provisions.