General Terms and Conditions of Marlies Grace Ltd. (hereinafter: "MARLIES GRACE") for contracts that are entered into using exclusively means of distance communication.
1. General terminology
The following terminology is used as the basis for these General Terms and Conditions (GTC):
The contract between MARLIES GRACE and the customer for the delivery of goods from the online store.
A natural or legal person or partnership with legal status who enters into a commercial contract with MARLIES GRACE.
Remote sales contract:
Remote sales contracts are contracts where the trader or a person acting in his name or on his behalf and the consumer use exclusively means of telecommunications for the contract negotiations and the conclusion of the contract, unless the conclusion of the contract does not take place within the framework of a distribution or service system organized for remote sales.
An entrepreneur is a natural or legal person or a partnership with legal capacity who, upon conclusion of the sales contract, acts in the exercise of his commercial or freelance professional activity.
A customer is any natural person who enters into a legal transaction for purposes that can predominantly be attributed neither to his commercial nor to his freelance professional activity.
Means of telecommunication:
Means of telecommunication are all means of communication that can be used to initiate or conclude a contract without the parties to the contract being physically present at the same time, such as letters, catalogs, telephone calls, telecopies, e-mails, messages sent via mobile phone service (SMS), as well as broadcasting and telemedia.
2. Scope of application
These GTC apply exclusively to the sales contracts between MARLIES GRACE and the customers. Conflicting or from these GTC deviating general terms and conditions of the customer are not recognized, unless MARLIES GRACE has agreed to these in written form in individual cases.
3. Conclusion of the contract
a) Offer to conclude a sales contract by the customer
The presentation of the products in the online store of MARLIES GRACE does not represent a binding offer for the conclusion of a purchase contract by MARLIES GRACE, but is merely an invitation to the customer to make a purchase offer to MARLIES GRACE himself (also known as invitatio ad offerendum).
As a visitor to the MARLIES GRACE online store, each customer automatically receives a "shopping cart". In it the selected products can be collected. As soon as the online store is left without a binding offer being made by the customer, the contents of the shopping cart expire. In this case, a legal transaction has not been concluded. It is possible for each customer to register as a "customer" and set up a personal customer account. Here the selection of the customer remains stored until the next visit (login). A registered customer can shop comfortably in the Onlineshop of MARLIES GRACE, at any time the status of its order query and has always a current survey of its previous orders. After initial registration, the customer can log in to the online store with his e-mail address and personal password.
The order of products in the online store of MARLIES GRACE takes place in such a way that the customer selects and clicks on the desired article or articles from the product offer represented in the online store. Here he receives information about the product.
Once the customer has decided on an item and, if necessary, selected other options associated with the product, the item can be placed in the personal shopping cart by clicking on the button "add to cart".
The customer has not yet made an offer by placing the product in the shopping cart. The products can be removed from the shopping cart by clicking on the "Remove" box. If the customer has decided to purchase the products in his shopping cart, he can click on the "Checkout" button.
In the ordering screens that now open, the customer must fill in the required information.
By ticking the box provided for this purpose, the customer confirms that he/she has read the General Terms and Conditions of the MARLIES GRACE online store. Without ticking the box, the ordering process cannot be completed .
In the following step, the entered data must be confirmed. Subsequently, the order is completed by clicking on the button "buy now !”
Not until clicking the button "buy now!" the customer submits a binding offer for the products in his shopping cart at that time. Up to this point, the customer can check and, if necessary, correct his data at any time within the framework of the order masks of the online store before sending the data.
Upon receipt of the order by MARLIES GRACE, the Customer will receive an e-mail automatically generated by the MARLIES GRACE ordering system confirming the receipt of the offer by MARLIES GRACE. Here the Customer can once again check the information contained therein, in order to be able to correct any errors in the order in time, if necessary. The confirmation e-mail also contains information on the ordered product as well as the General Terms and Conditions and the instruction on the right of cancellation.
b) Acceptance by MARLIES GRACE of the proposal to conclude the purchase agreement
The products and prices in MARLIES GRACE's online store are subject to change and non-binding until MARLIES GRACE accepts the customer's purchase offer. MARLIES GRACE undertakes to immediately notify the customer about the unavailability of the goods and to immediately refund any compensation already received.
The customer's offer to conclude a purchase contract is accepted by MARLIES GRACE via the e-mail automatically generated by the MARLIES GRACE ordering system, at the very latest, however, by handing over the ordered products to the customer.
4. Payment due date, method of payment and default
The purchase price for the product is due immediately. Payment of the purchase price is to be made via credit card or paypal. The methods of payment offered by MARLIES GRACE in individual cases depend, among other things, on the value of the goods, the type of product, the amount of the total order, the duration of the business relationship, etc. and are determined exclusively by MARLIES GRACE without the need to provide any reasons.
If the customer falls into arrears, MARLIES GRACE is entitled to demand the statutory interest on arrears (currently 5 percentage points above the respective base interest rate in the case of a consumer and 8 percentage points above the respective base interest rate in the case of an entrepreneur). The right of MARLIES GRACE to claim higher interest or further damages for any other legal reason remains unaffected.
In addition, MARLIES GRACE is entitled in case of default of payment of the customer, who is not a consumer, to assert fixed reminder fees in the amount of EUR 40.00, which, however, are to be credited against damages owed by the customer, as far as the damage is justified in costs of legal prosecution. This shall also apply in the case of payment on account or other payment by installments.
5. Right of revocation and consequences of revocation; exclusion of the right of revocation; model revocation form
If you are a Consumer (§ 13 BGB), you are entitled to a statutory right of revocation:
Right of revocation
You have the right to cancel this contract within fourteen days without providing any reason.
The revocation period is fourteen days from the day on which you or a third party named by you, who is not the carrier, have taken possession of the final goods.
To exercise your right of revocation, you must send us
by means of a clear declaration (e.g. a letter sent by mail, fax or e-mail) about your decision to revoke this contract. You can use the enclosed sample revocation form for this purpose, which is, however, not mandatory.
In order to comply with the revocation period, it is sufficient that you send the notification of the exercise of the right of revocation before the expiration of the revocation period.
Consequences of revocation
If you revoke this contract, we shall reimburse you all payments we have received from you, including delivery costs (with the exception of additional costs resulting from the fact that you have chosen a type of delivery other than the most favorable standard delivery offered by us), without undue delay and no later than within fourteen days from the day on which we received the notification of your revocation of this contract. For this refund, 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 refund. We can refuse the repayment until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the sooner.
You must return or hand over the goods without delay and in any case no later than fourteen days from the day on which you notify us of the revocation of this contract to ... us or to [insert here, if applicable, the name and address of the person authorized by you to receive the goods]. The deadline is met if you send the goods before the expiry of the period of fourteen days .
We bear the costs of returning the goods.
You only have to pay for any loss of value of the goods if this loss of value is due to the handling of the goods which is not necessary for the inspection of the condition, properties and functioning of the goods.
Exclusion of the right of revocation
The right of revocation of your explanation directed on conclusion of a sales contract over the commodity opposite MARLIES GRACE does not exist with remote sales contracts
□ for the delivery of goods which are not prefabricated and for the production of which an individual selection or determination by the consumer is decisive or which are clearly tailored to the personal needs of the consumer,
□ for the delivery of sealed goods that are not suitable for return for reasons of health protection or hygiene, if their seal was removed after delivery,
□ for the delivery of goods if these have been inseparably blended with other goods after delivery due to their nature,
Template revocation form
(If you want to revoke the contract, please fill out and return this form).
To Marlies Grace Ltd.
- I/we (*) hereby revoke the contract concluded by me/us (*) for the purchase of the following goods (*)/provision of the following service (*)
- Ordered on (*)/received on (*)
- Name of the consumer(s)
- Address of the consumer(s)
- Signature of the consumer(s) (only in case of notification on paper)
(*) Delete where inapplicable.
6. Balancing, right of retention
The customer is only entitled to the right of balancing if his counterclaims are legally established, undisputed or recognized by MARLIES GRACE. The customer is authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
These restrictions do not apply to consumers.
7. Transfer of risk
In the case of deliveries to consumers (§ 13 BGB), the risk of accidental loss and accidental deterioration of the products shall pass to the consumer as soon as the products are handed over by the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment to the consumer or the consumer's authorized representative or at the delivery address specified by the consumer. In deviation from sentence 1, the risk of accidental loss and accidental deterioration of the Products shall pass to the Consumer as soon as the Products are handed over to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment, if the Consumer has commissioned the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment and MARLIES GRACE has not previously designated this person or institution to the Consumer.
In the case of deliveries to entrepreneurs (§ 14 BGB), the risk of accidental loss and accidental deterioration of the products shall pass to the entrepreneur as soon as the products are handed over to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment.
8. Retention of ownership
a) For contracts with consumers
The products delivered by MARLIES GRACE remain the property of MARLIES GRACE until the fulfillment of all claims arising from the purchase contract between the customer and MARLIES GRACE. Until this time, the customer is obliged to handle the product with care.
The customer undertakes to dispose of the product before the transfer of ownership only with the prior written consent of MARLIES GRACE. In case of access of third parties, especially in case of seizure of the product, the customer has to inform MARLIES GRACE immediately in written form and to inform the third party immediately about the retention of title of MARLIES GRACE.
b) For contracts with entrepreneurs
The products delivered by MARLIES GRACE remain the property of MARLIES GRACE until all claims arising from the commercial contract between the customer and MARLIES GRACE have been fulfilled. This also applies to all future deliveries, even if MARLIES GRACE does not always expressly invoke this. MARLIES GRACE is entitled to take back the object of purchase if the customer behaves contrary to the contract.
The customer is obliged, as long as the ownership has not yet passed to him, to treat the object of purchase with care. If maintenance and inspection work has to be carried out, the customer shall carry this out in a timely manner at his own expense. As long as the ownership has not yet been transferred, the customer has to inform MARLIES GRACE immediately in writing, if the delivered object is impounded or exposed to other interventions of third parties. As far as the third party is not able to reimburse MARLIES GRACE for the judicial and extrajudicial costs of an action according to § 771 ZPO (German Code of Civil Procedure), the customer is liable for the loss incurred by MARLIES GRACE.
The customer is entitled to resell the reserved goods in the regular course of business. The Customer hereby cedes to MARLIES GRACE the Buyer's claims arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with MARLIES GRACE (including VAT). This cession applies regardless of whether the object of purchase has been resold without or after processing. The Customer remains authorized to collect the claim even after the assignment. The authority of MARLIES GRACE to collect the claim itself after disclosure of the cession remains unaffected. However, MARLIES GRACE will not collect the claim as long as the Customer meets his payment obligations from the collected proceeds, is not in default of payment and, in particular, no application for the opening of insolvency proceedings against his assets has been filed or there is no cessation of payments.
9. Implied warranty and notice of defects
MARLIES GRACE warrants that the products are not defective as defined by the Civil Code.
Unless expressly agreed otherwise below, the statutory liability for defects shall apply.
The following restrictions and shortening of time limits do not apply to claims due to damages caused by MLW, the legal representatives of MARLIES GRACE or vicarious agents of MARLIES GRACE
- in case of injury to life, the body or health
- in case of intentional or grossly negligent breach of duty as well as fraudulent intent
- in case of violation of essential contractual obligations, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner may regularly rely (cardinal obligations)
- within the scope of a guarantee promise, if agreed, or
- insofar as the scope of application of the Product Liability Act is opened.
Restrictions against entrepreneurs
The customer must, if he is a merchant, have fulfilled his inspection and complaint obligations according to § 377 HGB (German Commercial Code) in order to be able to assert implied warranty rights. Obvious defects are to be reported to MARLIES GRACE in writing immediately, but at the latest within 7 days after receipt of the goods. Latent defects must also be reported to MARLIES GRACE in writing immediately, at the latest, however, within 7 days after detection of the defect. If this notification is omitted, the delivery is considered as approved.
Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear and in the case of damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive stress, the use of accessories not produced or approved by the manufacturer of the product or as a result of special external influences which are not a prerequisite under the contract. If the customer or a third party carries out improper repair work on or changes to the product, there shall also be no claims for defects for these and the resulting consequences.
If the customer notifies MARLIES GRACE in time of a defect that was already present at the time of the transfer of risk, the customer is entitled, at MARLIES GRACE's discretion, to have the defect remedied free of charge or to have a defect-free item delivered (subsequent performance). MARLIES GRACE is always to be given the opportunity for rectification of the defect within a reasonable period of time. MARLIES GRACE may refuse a type of rectification or the entire rectification if it is only possible with disproportionate costs.
Return shipments of defective goods to MARLIES GRACE for the purpose of supplementary performance may only be made with the written consent of MARLIES GRACE. The risk of accidental loss and accidental deterioration of the returned goods shall not pass to MARLIES GRACE until they are handed over at MARLIES GRACE's place of business. If MARLIES GRACE delivers a replacement item for the purpose of rectification, the customer has to return the originally delivered item immediately. Replaced parts become property of MARLIES GRACE.
If the rectification fails or is refused, the customer may - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.
Claims of the customer because of the expenditures necessary for the purpose of the remedy, in particular transport, way, work and material costs are excluded, as far as the expenditures increase, because the product supplied by MARLIES GRACE was brought afterwards to another place than the establishment of the customer, unless the transfer corresponds to its intended use.
Claims for defects in the delivery of new products expire 12 months after the transfer of risk, unless the defect was fraudulently concealed. The liability warranty is excluded for the delivery of used products.
The statutory limitation periods for the recourse claim pursuant to § 445a BGB shall remain unaffected.
MARLIES GRACE is liable for damages for defects only according to the provisions of item 10.
MARLIES GRACE will pay damages, regardless of the legal grounds, only to the following extent:
MARLIES GRACE is liable without limitation for damages to life, body and health, which are based on a negligent or intentional breach of obligation of its legal representatives or vicarious agents, as well as for damages covered by the liability under the Product Liability Act, and for all damages based on intentional or grossly negligent breaches of contract as well as fraudulent intent of its legal representatives or vicarious agents. As far as MARLIES GRACE has given a quality and/or durability guarantee with regard to the goods or parts thereof, MARLIES GRACE is also liable within the scope of this guarantee. MARLIES GRACE is only liable for damages, which are based on the lack of the guaranteed quality or durability, but which do not occur directly on the goods, if the risk of such a damage is obviously covered by the quality and durability guarantee.
MARLIES GRACE is also liable for damages caused by simple negligence, as far as this negligence concerns the violation of such contractual obligations, the compliance with which is of particular importance for the achievement of the purpose of the contract (cardinal obligations). However, MARLIES GRACE is only liable as far as the damages are typically connected with the contract and foreseeable. MARLIES GRACE is not liable for simple negligent violations of secondary obligations that are not essential to the contract. The limitations of liability contained in sentences 1 - 3 also apply as far as the liability for the legal representatives, executive employees and other vicarious agents is concerned.
Any further liability is excluded regardless of the legal nature of the asserted claim. As far as the liability is excluded or limited, this also applies to the personal liability of the employees, representatives and vicarious agents of MARLIES GRACE.
11. Dispute resolution in consumer matters pursuant to Art. 14 (1) ODR Regulation and Section 36 VSBG
Online dispute resolution pursuant to Art. 14 (1) ODR Regulation: The European Commission provides a platform for online dispute resolution (OS), which you can find at http://ec.europa.eu/consumers/odr/ .
MARLIES GRACE is not obligated to participate in a dispute resolution procedure before a consumer arbitration board and is generally not willing to do so.
12. Jurisdiction, Choice of Law
If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of business of MARLIES GRACE is the place of jurisdiction for all disputes arising from the contractual relationship. However, MARLIES GRACE is entitled to sue the customer also at the court of his residence.
If the customer is not a merchant, the statutory regulation shall apply.
This contractual relationship and its interpretation shall be governed by the laws of the Federal Republic of Germany. This choice of law shall not affect mandatory provisions for the protection of the consumer under the law applicable at his habitual place of residence if the law of the Federal Republic of Germany falls short of this in the specific case.
The validity of the UN Convention on Contracts for the International Sale of Goods is excluded.
13. Text form, salvatorian clause
Unless otherwise stipulated in these GTC, amendments, supplements and ancillary agreements must be made in text form to be effective. The text form requirement shall also apply to the waiver of this form requirement.
Should any of the preceding provisions be invalid or unenforceable, the validity of the remaining provisions shall not be affected thereby. In place of the invalid or unenforceable provision, a suitable legally valid replacement provision that comes as close as possible to the economic success shall be agreed by mutual consent.
General Terms and Conditions as of 03.07.2023