Terms and Conditions
0. Table of contents
A. General Terms and Conditions 1
I. Scope of application 1
II. Contract conclusion 1
III. Right of withdrawal 2
IV. Payment and delivery 3
V. Retention of title 4
VI. Warranty 4
VII. Limitation of liability 4
VIII. Data protection 4
IX. Final provisions 5
X. Dispute settlement 6
A. General Terms and Conditions
I. Scope of application
These General Terms and Conditions (T&C) form part of all the contracts concluded by Kowa Optimed Deutschland GmbH, Fichtenstr. 123, 40233 Düsseldorf, Germany (the “Supplier”) with a contractual partner (the “Customer”) regarding the purchase of goods over the Internet. The version in force on the date of concluding the contract applies. None of the Customer’s deviating terms and conditions form part of the contract, unless the Supplier expressly agrees that they apply. Any deviating agreements made by the Parties or details provided in the online shop, particularly in the product description, precede the provisions of these T&C.
II. Contract conclusion
(1) The contract is concluded online via the Supplier’s website, that is, the site “www.kowaoptic.com” and all its subpages (the “Online Shop”). In principle, the presentation and marketing of goods in the Online Shop does not constitute a binding offer by the Supplier to conclude a contract.
(2) Instead, the Customer makes a binding offer to conclude a contract by placing their order via the Online Shop (“Contract Offer”). Orders are placed online by clicking the button labelled “pay and order” or with similar clear wording. Until they have clicked this button, the Customer can abort the order process at any time; in particular, items can therefore initially be placed in the shopping basket with no obligation. On the summary page, which is displayed to the Customer in the last stage of the order process (“Order Summary”), the Customer can identify any errors. By clicking the back button on their Internet browser, they can return to the previous stages of the order process, correct the error and continue with the order process.
(3) The Supplier confirms to the Customer via email that it has received an order (“Confirmation of Receipt”). The Confirmation of Receipt is also used to verify the
email address that the Customer provided when placing their order. However, the Confirmation of Receipt does not constitute a binding acceptance of the Contract Offer in principle. Instead, Supplier accepts an Offer either by way of sending a separate notification (“Confirmation of Contract”) or by delivering the goods ordered. When the Supplier sends an invoice or other request for payment, this also constitutes acceptance of an Offer. Request for payment can also be made together with Confirmation of Receipt. In this case, Confirmation of Receipt also constitutes Confirmation of Contract. The same applies for a request for payment made in the last stage of the order process, depending on the payment method chosen.
(4) The Supplier does not save the text of the Contract and therefore does not itself provide the text of the Contract to the Customer following conclusion of the Contract either. However, the Customer can save or print the text of the Contract using the corresponding function in their browser when viewing the Order Summary. The same applies for linked documents in the order process, particularly these T&C. Using the corresponding function in their email program, the Customer can also save or print the Supplier’s email, particularly the Confirmation of Receipt which contains another summary of the content of the Contract. The language of the Contract is German or English: If the Customer places their order in the German version of the Online Shop, the language of the Contract is German. If the Customer places their order in the English version of the Online Shop, the language of the Contract is English.
III. Right of withdrawal
(1) Customers who are consumers have a (statutory) right of withdrawal in principle. Customers who are not consumers do not have this right of withdrawal. In this context, a consumer is any natural person who enters into a legal transaction for purposes which cannot predominantly be attributed to either their commercial or independent professional activity. The Supplier will notify the Customer of their right of withdrawal separately. Such notice of a right of withdrawal given to a Customer who is not a consumer is not grounds for a (contractual) right of withdrawal.
IV. Payment and delivery
(1) All prices stated in the Online Shop are final prices and include the statutory VAT, where this is applicable. The costs of delivery can be found on the corresponding subpage; they are also listed again separately in the Order Summary. In principle, no extra costs, i.e. those that are not stated in the Order Summary, are incurred when placing an order. If no delivery costs are stated, delivery is free of charge.
(2) Payment is cashless and is made via the method chosen by the Customer when placing their order. In principle, the Customer can choose between payment by bank transfer, credit card (Visa or Mastercard) and PayPal. Unless otherwise agreed, payment is due in advance, when concluding the Contract. Except for when paying by bank transfer, payment is made via the relevant payment service provider’s payment page. The Supplier sends the Customer a link to this page after concluding the Contract, or the Customer is redirected to the payment page after the last stage of the order process.
(3) When payment is made by direct debit or credit card, the Customer must ensure that there are sufficient funds in the relevant account. If a direct debit cannot be collected or the credit card cannot be charged (dishonoured payment), the Customer is obliged to pay a fixed fee of €5.00. This does not apply if the Customer is not responsible for the dishonoured payment. The Customer is also free to provide proof that the Supplier has not even suffered a loss or that the loss is significantly less than the fixed fee. Conversely, the Supplier is free to provide proof of a greater loss.
(4) The Customer receives an invoice by email or post at the address provided when placing their order. Sending an invoice is not a prerequisite for the possibility of default by the Customer. This does not apply for the VAT that must be charged if the Customer is entitled to deduct input tax.
(5) Delivery is made by shipment of a parcel to the address the Customer provided when placing their order. In principle, it is not possible to collect the goods yourself. The delivery date (delivery time) for an item can be found on the relevant product page. If several items are ordered, these are also delivered together, in case of doubt. In this case, the delivery time is the one stated for the item with the longest delivery time. If one is not stated, the delivery time for the relevant item may be up to 5 working days. If the last day of the delivery period falls on a Sunday or a public holiday at the place of delivery, the next working day applies instead of this day. Unless otherwise agreed, delivery is made following full payment of the purchase price, including any delivery costs. In this respect, the delivery period begins on the day after the Customer has made payment.
V. Retention of title
The delivered goods remain the property of the Supplier until full payment of the purchase price, including any delivery costs.
VI. Warranty
(1) The Customer’s defect rights are in line with legal requirements (warranty); the limitation of liability laid down in § 7 also applies in respect of liability for damages due to defects.
(2) There is only considered to be a guarantee from the Supplier in excess of the warranty if the Supplier has expressly provided one, for example, in the relevant product description. Reference to a manufacturer’s warranty does not constitute provision of a warranty by the Supplier.
VII. Limitation of liability
The Supplier is liable without limitation for intent and gross negligence, for injury to life, body and health, in accordance with the provisions of the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG) and to the extent of a guarantee assumed by him. When a fundamental contractual obligation is breached through ordinary negligence, the Supplier’s liability is limited to the level of damage that is typical and foreseeable based on the nature of the business in question. Fundamental contractual obligations are obligations that must be fulfilled in order to ensure the proper performance of the Contract and that the Customer can regularly expect to be fulfilled. The Supplier’s liability is otherwise excluded. This also applies for the personal liability of the Supplier’s legal representatives and agents.
VIII. Data protection
(1) The Supplier observes with the legal data protection regulations. It processes the Customer’s personal data, which the Customer provides to it when placing their order or otherwise in the course of executing the Contract (particularly their name, address and email address), for the purpose of executing the Contract. Besides processing the Customer’s personal data, the Supplier is also entitled to share it with third parties when necessary to execute the Contract (particularly with the delivery company for making the delivery and the payment service provider for processing the payment). The Customer can set up a customer account when placing an order. The Customer’s address and order details are stored in this account. They are generally stored by the Supplier in Germany, but in any event in the member states of the European Union (EU). The Customer receives login details for the account, which they must keep secret and properly protect against third-party access. The Customer is responsible for all actions taken using these login details. This does not apply when the action in question is taken by an unauthorised third party and the Customer is not responsible for this, particularly when they have fulfilled their obligation to keep their login details secret and protect them. If the Customer has given their express consent for their personal data to be processed in any other way, the data is processed in line with this consent.
(2) In accordance with the legal data protection regulations, the Customer has the right to object to the processing of their personal data. The Customer also has the right to lodge a complaint regarding the processing of their data with the competent supervisory authority for data protection. The Customer can withdraw any consent granted at any time with future effect. On request, the Supplier shall give the Customer access to the personal data concerning them that is being processed, which includes the right to a copy and the transmission and portability of the data. The Customer can obtain from the Supplier the rectification of inaccurate personal data concerning them, including the completion of incomplete data. The Customer can also obtain the erasure of their personal data. However, the Customer’s personal data cannot be erased if it is still required to execute the Contract or is subject to any statutory retention periods. Where possible, however, the data is blocked until it is erased, i.e. further data processing is restricted. The Supplier will also erase the Customer’s personal data after the Contract has been fully executed, unless a customer account has been set up and provided that it is no longer subject to any statutory retention periods.
(3) The Customer can contact the Supplier at any time in order to exercise their rights and if they have any questions regarding data protection. They can do so using the address provided in § 1 or the contact details stated in the Legal Notice for the Online Shop. A customer account can also be deleted using the settings there. When the Customer has given their express consent, this forms the legal basis for processing for the purposes the Customer has given their consent for. If processing is necessary in order to perform or initiate the Contract, this forms the legal basis. Otherwise, the legal basis is the Supplier’s legitimate economic interest in running the Online Shop. Additionally, specifically on the grounds of use of the website as such, please refer to the Data Protection Notice, which is available via the Online Shop in a format that can be printed and saved.
IX. Final provisions
(1) Even if certain parts of the Contract are legally ineffective, the other parts will remain binding. The ineffective parts will be replaced by the legal regulations, where applicable. However, should this constitute undue hardship for either Party, the Contract will become invalid in its entirety.
(2) If the Customer is a merchant, a legal entity under public law or a special fund under public law, Düsseldorf, Germany is agreed as the exclusive place of jurisdiction for all claims arising from or on the grounds of the Contract. The same applies if the Customer does not have a general place of jurisdiction in Germany and the Contract has been concluded in writing or confirmed in writing.
(3) The law of the Federal Republic of Germany applies. The application of the UN Sale of Goods Law is precluded. However, if the Customer is a natural person and they conclude the Contract for purposes which cannot predominantly be attributed to either their commercial or professional activity, the mandatory consumer protection regulations of the state in which the Customer’s usual place of residence is located also apply.
(4) The Customer can only offset claims against the Supplier’s claims if it is entitled to such claims on the grounds of the same contractual relationship or such claims are undisputed by the Supplier or are legally binding. The Customer can only exercise a right of retention in respect of counter-claims from the same contractual relationship.
X. Dispute settlement
The European Commission provides a platform for online dispute resolution (ODR), which you can access via the following link: http://ec.europa.eu/consumers/odr/ The Supplier’s email address is: scope@kowaoptimed.com However, the Supplier is neither obliged nor willing to participate in dispute resolution proceedings before a consumer dispute resolution board.