§1 Scope
The following General Terms and Conditions (GTC) ultimately regulate the contractual relationship between the seller, Zahnspektakel GmbH, Rotkreuzstraße 13, 97080 Würzburg and the respective buyer. A contractual relationship is any contract concluded via the communication channels specifically designated by the seller, on the basis of which the seller is obligated to deliver goods and services to the buyer. By placing an order, the buyer expressly confirms that he has read and accepted the seller’s terms and conditions.
Buyers can be both consumers and entrepreneurs. A consumer is any natural person who concludes a legal transaction for purposes that are predominantly neither commercial nor their independent professional activity (§ 13 German Civil Code). Entrepreneur is a natural or legal person or a legal partnership that acts in the execution of a legal transaction in the exercise of their commercial or independent professional activity (§ 14 German Civil Code).
Own conditions of the buyer are hereby contradicted, unless otherwise agreed.
§2 Subject of the Contract
Subject of the contract is the sale of goods by the seller to the buyer via the specified communication channels (e-mail, telephone, messenger, social media et al.). The seller offers the buyer the opportunity to create individual special-effect teeth based on their wishes and their dental impressions or to have special-effect teeth from the seller’s portfolio created based on the customer’s dental impression.
Important note: The buyer has no right to exclusivity of his design in the event that he has individual special-effect teeth created according to his own design. This means that the seller is entitled to include such customized teeth in its portfolio and to also offer this style for sale to other buyers. The buyer grants the seller the necessary rights of use upon conclusion of the contract. This granting of rights also includes the use of the buyer’s design templates for series production.
§3 Conclusion of contract
The buyer can order goods via the communication channels as designated by the seller by first submitting an enquiry specifying order details. The buyer’s exact order details and personal information will be logged and processed within the scope of the consecutive communication.
Once the buyer completes the order, the seller will send an order confirmation to the buyer’s email address which will again include the buyer’s order. The order confirmation does not constitute an acceptance of the buyer’s application for the concluding a purchase contract; a contract of sale is therefore not concluded upon order confirmation. In addition, confirmation of order confirmation does not constitute confirmation of the availability of the ordered goods, especially since the production of the product by the seller takes place anyway based on the dental impression to be provided by the buyer.
A sales contract comes about only after the seller sends the buyer a shipping confirmation by email. If the buyer has special-effect teeth created, further agreements, in particular those related to the wishes of the buyer, their feasibility, the production of the special-effect teeth and the price, must first be conveyed to and be coordinated in individual communication with the seller.
§4 Contract, shipping, delivery
All prices are stated as gross Euro prices, plus possible packaging and shipping costs.
The buyer will be informed about the shipping costs by way of individual communication.
The seller agrees to send the goods immediately after conclusion of the purchase contract and as soon as the buyer has paid the seller in full by mail.
Delivery is always at the risk and expense of the buyer, unless the buyer is not a consumer. If the buyer requests it, the seller can but is not obligated to insure the goods at the buyer’s expense.
Delivery is 2-5 weeks after the seller receives the buyer’s individual dental impression if it is shipped to an address in Germany. The seller will inform the buyer about different lead times regarding production and delivery (e.g. international shipping) by way of individual communication.
§5 Right of withdrawal
If the buyer is a consumer, he is legally entitled to a 14-day right of withdrawal. A consumer is any natural person who enters into a legal transaction for purposes of which are predominantly neither commercial nor self-employed.
The right of withdrawal does not apply to contracts concluded with the seller for delivery
- of goods that are not prefabricated and whose manufacture is determined by an individual choice or determination by the purchaser, or that are clearly tailored to the personal needs of the consumer (for example, special-effect teeth individually created based on one’s dental impression)
- Sealed goods which, for reasons of health or hygiene, are not suitable for return if their seal has been broken after delivery.
Instructions regarding the right of withdrawal can be found in the seller’s detailed cancellation policy (available online at https://alphabite.de/de/widerrufsbelehrung). Once the order has been placed and the contract concluded, the buyer will receive an order confirmation that also states the right-of-withdrawal policy and information regarding how to exercise this right to withdrawal, e.g., by following the attached instructions Sample withdrawal form.
§6 Liability/indemnity
The seller is liable without limitation for causing intentionally or grossly negligent damage, fraudulent concealment of defects, assumption of a guarantee of quality, for claims based on the Product Liability Act and for injury to life, limb or health.
The seller is not liable for any other damage if the seller, a legal representative or vicarious agents caused the damage through negligence. If essential contractual obligations are breached, the fulfillment of which enables the proper execution of the contract and on the compliance of which the buyer may regularly trust (cardinal obligations), the seller is liable for damages limited to the replacement of the contract typical, foreseeable damage, if this was simply caused by simple negligence.
The statutory provisions that subject the seller to liability for any specific acts or omissions without fault are not affected by the above disclaimers and limitations.
Liability provisions in product descriptions or instructions for use remain unaffected.
If the buyer provides the submission for the special-effects teeth to be produced by the seller and has accepted the submission from a third party, the buyer assures that he holds the rights to the special-effect teeth to be produced and that he is able to sell them to the seller to grant the necessary rights. The buyer further warrants that the submission provided by him is free of third party rights, which could be contrary to the contractual right of disposal. Furthermore, the buyer assures that the author will not proceed against disclosure by the seller. The buyer assures that the work has already been disclosed and that the use of the work under this contract does not violate the privacy rights of third parties, in particular that persons depicted agree with the contractual use of the work.
The buyer indemnifies the seller from all claims of third parties, in particular claims based on copyright, design right/design rights, trademark and personal rights violations, which could be brought against the seller in connection with exercising the contractual rights upon first request. The buyer must immediately notify the seller of any violation of the contractual rights that he, the buyer, learns or is aware of. The seller is entitled to take suitable action to ward off claims of third parties or to pursue his legal rights. The indemnification also includes the reimbursement of the costs incurred by the seller in pursuing legal action/defending himself/herself.
The indemnifications mentioned in paragraph 6 do not apply if the seller manufactures the special-effect teeth in knowledge of or in gross negligent ignorance of the violation. Furthermore, paragraphs 1 and 2 remain unaffected by the present indemnification.
§7 Warranty
In the event of defective goods, the seller is liable in accordance with the statutory provisions of the purchase right (§§ 434 ff. German Civil Code).
The warranty period of the rights under § 437 German Civil Code is for 1 year starting from the date of delivery of the ordered goods to the buyer, if the buyer is not a consumer. The shortened warranty period does not apply to claims on the part of the buyer for which the seller is liable without restriction according to § 7. In all other cases, the statutory warranty period shall apply starting with the delivery of the ordered goods to the buyer.
If the buyer is not a consumer, the seller has the legal option to correct the defect or to deliver a defect-free item in accordance with § 439 para. 1 German Civil Code.
The buyer shall examine the ordered goods immediately upon delivery, as long as the purchase involves a mutually beneficial business transaction as defined in the German Commercial Code. This inspection upon delivery applies in particular to the completeness of the goods and the respective functionality. Defects that are detected or easily ascertainable must be reported to the seller without delay. The buyer must include a detailed description of the defect. If the buyer fails to do so, then the goods shall be deemed to have been approved unless they are defects that were not identifiable during the inspection upon receipt of the goods.
Defective goods that are not immediately ascertainable upon their receipt, but are discovered at a later date, must be immediately reported to the seller, as long as the purchase is a mutual business transaction; otherwise, the goods are also considered to be approved by the buyer despite the defect(s).
Differences in the goods in terms of shape and color are due to manual and individual production and are not a defect.
§8 Terms of payment, default and retention of title
The purchase price is due immediately after the conclusion of the purchase contract. The buyer shall render payment using the option individually agreed upon.
The buyer, if he is not a consumer, is in default if he has not paid within 30 days of the due date. Consumers will also be in default within 30 days of their due date if they are advised of this consequence on the invoice or payment request. If the buyer defaults on payment, the purchase price shall be charged during the default period in the amount of 5% points above the basic interest rate. The seller reserves the right to show evidence of greater damage caused by the buyer’s default and to assert it against the buyer.
The delivered goods remain the property of the seller until full payment of the purchase price.
In commercial transactions, ownership of the purchased goods only passes from the seller to the buyers when the buyer has settled all claims arising from the business relationship with the seller (extended retention of title).
If the seller’s retention of title to a product purchased in commercial transactions expires through resale, connection or processing of the purchased goods by the buyer, the new item or the claim arising from one of the specified actions (extended retention of title) shall replace the purchased item.
§9 Final provisions
Only German law, excluding the UN Sales Convention, is applicable to these General Terms and Conditions and to the respectively concluded purchase contract. In the event that the buyer is a consumer, this applies only to the extent that the protection afforded by mandatory provisions of the law of the state in which the consumer has his habitual residence is not withdrawn.
If the buyer is a registered trader, a legal entity under public law or a public special estate, Würzburg is the place of jurisdiction for all disputes arising out of or in connection with this contract.
If one or more clauses of these terms and conditions should be or become wholly or partially invalid, this shall not affect the validity of the remaining clauses.
§10 Information on the EU commission portal for online dispute resolution, alternative dispute eesolution
The EU Commission provides an online dispute resolution portal (“OS platform”), which can be reached by clicking on the link. https://ec.europa.eu/consumers/odr If the buyer is a consumer resident in the European Union, it is possible to use this platform for out-of-court settlement of disputes regarding contractual obligations arising from online purchase contracts.
Status of the terms and conditions: September 2021