General Terms and Conditions of Business
The high quality of our products and our endeavours to ensure targeted use of these products in accordance with each consumer’s skin requirements and skin condition necessitate the provision of premium-quality advice for our trade customers. To this end, we strive to secure a long-term, trustful collaboration with selected trade customers, wholesalers and sales partners who are willing and able to fulfil the standard of quality demanded by our products and brands, and also to provide professionally competent advice for end consumers in accordance with their skin requirements.
1. Sales channels and distribution territory
(1) In order to provide an optimum quality of advice, neubourg skin care has harmonized its product portfolio for a range of target groups. The purchaser thus acknowledges the associated exclusive distribution channels for products of the brands Podoexpert®, Allpresan®, Onyfix®, Fußpunkt®, Sixtus®, Allpremed® and Skincair®.
(2) Additionally, only specialist customers who operate one or more quality-orientated specialist store(s) with the option to advise and support the end customer as regards our products and brands, or who supply such customers as a specialist wholesaler, may act as purchasers and distributors. This characteristic is expressly met by pharmacies, mobile and fixed-location chiropody and podiatry services, massage establishments with pedicure and/or cosmetic offerings, cosmetic establishments along with the specialist wholesalers who supply them, provided that they cannot be categorized as drug stores, supermarkets or convenience stores within the conventional retail sector and whose name, appearance or other image-related aspects cannot be subsumed under the term “discount” or otherwise come across in this way. Similarly, we presume that the quality of advice we require can be provided by the operators of health-oriented online stores offering special products for people with diabetes, skin conditions (such as atopic dermatitis) and/or chiropody and cosmetic products if they can demonstrate a level of specialist expertise comparable with the foregoing providers, can provide corresponding specialist advice especially via the telephone and additionally present our products on their websites with the requisite specialist competence.
Our aspiration to be the originator of brands with a high quality of advice requires our products to be dispensed to consumers exclusively by highly qualified specialist staff and for consumers to be comprehensively and expertly advised as part of this process.
(3) As regards the promotional presentation of our products – in particular in the process of online reselling – only photos of the pure packaging and/or repackaging of the product in question that are utilized for the specific product at www.neubourg-shop.de shall be used. If the purchaser acquires the corresponding product, neubourg skin care shall grant to them a non-exclusive usage right to the promotional photographs described above in further detail for the period during which they sell the product procured in our online shop. In this context, the usage right merely comprises photographs of the packaging or repackaging as such. Photographs in which the packaging/repackaging is depicted in composition with other objects or motifs are expressly not covered by the usage right as granted.
(4) Distributing our brands’ products on generally accessible online marketplaces is essentially prohibited. Distribution on generally accessible online marketplaces is only permissible in exceptional cases if the purchaser can ensure that this meets the criteria set out in para. 2. Additionally, the purchaser undertakes to use the product information and materials we provide for purposes of product presentation and to keep such up to date at all times. Products of the “Podoexpert” brand are excluded from the exception covered by sentence 2.
(5) Upon entering into a purchase contract for our products, the purchaser similarly undertakes only to resell the products acquired from neubourg skin care to specialist retailers with the option of advice and support – such as pharmacies, chiropody and podiatry practices, massage establishments with pedicure and/or cosmetic offerings and cosmetic establishments. Resale of the products to end customers (consumers under section 13 German Civil Code (BGB)) – in particular online – is only permissible in the cases provided for in para. 2.
(6) In the event of any unauthorized distribution of our brands’ products via online marketplaces, the parties agree that the purchaser shall pay to the seller a reasonable amount of liquidated damages, whereby the seller shall determine the amount at its reasonable discretion as defined in section 315 BGB and, in the event of dispute, the reasonableness of the liquidated damages may be reviewed by the competent court. The seller may assert liquidated damages of a maximum of [€10,000.00] for each breach of the prohibition. The right to assert claims for further losses is reserved, whereby the liquidated damages shall be offset against the additional compensation for damages.
(7) The purchaser may only sell the products procured from neubourg skin care in the country in which the purchaser has their registered office. The right to distribute the products to other Member States of the European Union or the European Economic Area is reserved to neubourg skin care or national distributors nominated by neubourg skin care or one of the subsidiaries of neubourg skin care. Sale to customers with a delivery address in these countries is only possible at the request of a customer, i.e. as a passive sale as defined in Art. 1(1)(m) Vertical Block Exemption Regulation. Active sales to purchasers with a delivery address in these countries, in particular but not exclusively the provision of advertising, aimed at purchasers with a delivery address in these countries are not permitted. Active selling is deemed to constitute in particular keyword advertising in country-specific internet search engines or country-specific internet portals, email advertising, banner advertising, retargeting, personalized direct advertising, operating a website with a country-specific domain, foreign-language meta tags or measures in HTML code that optimize foreign-language search engines. The customer shall further refrain from sales to end customers with a delivery address outside the distribution territory (Germany) to the extent that these infringe the applicable statutory provisions concerning the import and marketability of the products, in particular for instance for labelling on the product packaging in the local language and the provisions under customs regulations. The right to impose additional restrictions under trademark law remains further reserved.
2. Prices and orders
All prices are non-binding. A contract shall only come into effect on receipt of our written order confirmation. Verbal ancillary agreements also require written confirmation. In the case of goods that can be supplied promptly, our invoice also serves as an order confirmation and shipping notice. The goods are delivered with the design and specifications that are usual at the time of delivery. Technical modifications are possible. Prices valid on the order date apply. All prices are additionally subject to any legal sales taxes.
3. Delivery and delivery times
Our goods are shipped at the risk and expense of the purchaser. Operational disruptions, lack of raw materials, transport difficulties or other unforeseeable events, force majeure, action by official bodies, etc. release us from our delivery obligations for the duration of the disruption.
Should doubts arise with regard to the creditworthiness of a purchaser, we are authorized at any time to demand securities or recall the delivered goods and to withhold any outstanding deliveries. We may further rescind the contract if it is no longer reasonable for us to satisfy the contract for the reasons set out above. No obligation to compensate the purchaser shall arise.
We endeavour to deliver within the specified delivery times; however, no claims of any kind can be made by the purchaser on the grounds of late delivery. The purchaser may only take advantage of their statutory rights, and in particular the right of recission on grounds of default, if they have previously set a grace period and this has elapsed to no avail. Partial deliveries are regarded as a single order in accordance with our conditions of delivery and payment.
The purchaser shall lodge a complaint in respect of apparent defects and further identifiable breaches of duty on grounds of inadequate performance without undue delay and no later than by a deadline of eight days of receipt of the goods. Complaints about “latent defects” shall be made without due delay as soon as they become apparent. If the customer fails to lodge the complaint in good time, all claims accruing to the customer on account of these defects shall lapse. The warranty period for demonstrable defects shall be limited to one year calculated from the day of the commencement of the statutory limitation period. The statutory provisions and limitation periods shall additionally apply.
5. Terms of payment
Full net payment of our invoices is due without discount within 30 days of the invoice date. We grant a 2% discount for payments made within ten days for goods deliveries. Recurring SEPA direct debits are collected within five days, with prior notice given on the previous day. We reserve the right to make special separate agreements.
Neither discount nor direct-debit rules apply to invoices for training and/or academy events. In these cases, payment of the invoice is due within 30 days of the invoice date. Customer cancellations up to four weeks prior to the start of an event shall incur a processing fee of €50.00. Cancellations made four weeks or less prior to the start of the event shall be subject to cancellation fees of one hundred percent (100%).
If the due date is exceeded, we are entitled to charge reminder fees and interest on the overdue amount. In the case of payment by instalments, if the purchaser is in arrears either in whole or in part by a period of more than one week, the full remaining amount of the instalment shall be due immediately.
Invoice deductions (e.g. for goods returned) are only accepted if a credit note has been issued by us. Returned goods can only be processed if the invoice date, invoice number, customer number and cause for complaint are given. Please state the invoice details (invoice no., customer no., invoice date) on all payments. For the purpose of credit assessment CRIF Bürgel GmbH, Radlkoferstrasse 2, 81373 Munich, Germany shall provide us with your personal address and credit information as stored in its database, including any information obtained based on mathematical and statistical methods, insofar as we can demonstrate our legitimate interest in this data.
6. Reservation of title
We shall retain title to goods supplied by us until all claims under the commercial relationship with the purchaser, including future claims under contracts to be entered into at a subsequent time point, have been settled.
The customer shall take out adequate insurance cover for the supplied goods that are subject to the reservation of title, in particular also against fire and theft. Existing claims accruing to the customer under the obligatory insurance policy for the supplied goods that are subject to the reservation of title shall be hereby assigned to us up to the total value of the goods that are subject to the reservation of title.
The purchaser is permitted to sell the goods in the context of regular business operations. The purchaser is not permitted to pledge the goods or furnish them as collateral to third parties. If the purchaser sells the supplied goods that are subject to the reservation of title to third parties and they are not paid for immediately, the purchaser undertakes only to resell them to third parties subject to the purchaser’s own reservation of title. The permission to resell the supplied goods that are subject to reservation of title shall lapse without a claim to compensation if the purchaser discontinues their payments or falls into arrears with their payments due to us.
Sales in connection with the sale of a business as a whole or as a lease are not regarded as a sale in connection with regular business operations and require our authorization. Upon request, the purchaser may be obliged at any time to provide us with information on the whereabouts of the goods supplied under reservation of ownership and on the receivables from resale. This information includes in particular name and address of the purchaser of the goods subject to reservation of title, invoice date and amount of claim. The purchaser hereby assigns to us all claims, including collateral and subsidiary rights, that arise in conjunction with the resale to their customers of supplied goods subject to reservation of title. Any agreement with third-party purchasers on the exclusion of our rights vis-à-vis our purchaser shall be impermissible.
7. Right of retention and set-off
No right of retention may be asserted unless this has been recognized for the benefit of the purchaser in respect of a purchase-price claim or the purchaser is entitled to warranty claims that have been legally established under the same contractual relationship. Any counterclaims may not be set off unless they are undisputed or have been legally established.
8. Complimentary goods
Complimentary goods that are provided by us and are labelled or to be labelled “not for sale” ‒ particularly testers, samples and goods for use in clinics or therapeutic practices ‒ may not be sold to third parties. The “not for sale” label on these products may not be removed or concealed.
9. Addenda and amendments
Any addenda and amendments to a concluded contract must be in writing in all cases. This shall also apply to a waiver of requirement for the written form by the parties to the contract. Any verbal ancillary agreements or amendments to contractual terms shall be void unless confirmed in writing. This is, however, without prejudice to the priority of individually agreed terms pursuant to section 305b German Civil Code (BGB).
10. Place of performance
The place of performance for obligations arising from this contractual relationship for both parties is 48268 Greven, Germany. The place of jurisdiction shall be Münster if the purchaser is a merchant or a legal entity. This shall also apply to processes involving cheques or bills of exchange. However, the purchaser may also be sued for outstanding payments at their general place of jurisdiction.