General terms and conditions of business
1. Scope
1.1 These General Terms and Conditions (hereinafter referred to as "GTC") apply to all purchases of goods by customers from KIRCHBERGER KOSMETIK and the related declarations of intent and legal transactions in the version valid at the time of the order. We expressly object to any conflicting or deviating terms and conditions of the customer. They will not become part of any agreements with us unless we expressly agree to their validity in writing.
1.2 If the customer is a business (see section 2.2), these terms and conditions shall apply from the date of their initial inclusion to all future legal transactions between the parties. Subsequent amendments may be made in accordance with section 18 of these terms and conditions.
2. Definitions
2.1. For the purposes of these terms and conditions, a "consumer" is any natural person who enters into the contract for purposes that are predominantly neither attributable to their commercial nor their independent professional activity.
2.2. For the purposes of these terms and conditions, an "entrepreneur" is any customer who, when concluding the contract, is acting in the course of their commercial or independent professional activity.
2.3. “Retail customers” are entrepreneurs who purchase goods from KIRCHBERGER KOSMETIK and resell them to end customers in their own name and on their own account.
3. Offers, conclusion of contract and contract in the webshop
3.1. The representations of goods (such as drawings, illustrations, product data, etc.) in catalogs, documents, advertising materials, or on the KIRCHBERGER KOSMETIK website are non-binding and do not constitute an offer to conclude a purchase agreement. Any assurances or guarantees regarding characteristics will be expressly designated as such in writing. In particular, the color representations of the product in the online shop or its external design may differ from the actual product.
3.2 When placing orders in the KIRCHBERGER KOSMETIK online shop, the customer submits a binding offer to conclude a purchase agreement after selecting the goods and clicking the "Place order" button at the end of the ordering process. A subsequent confirmation of receipt of the order sent by KIRCHBERGER KOSMETIK does not yet constitute acceptance of the customer's offer. We reserve the right to refuse to enter into a contract with any customer without giving reasons. In any case, we will declare the binding acceptance or rejection of the offer within a maximum of three business days after receipt of the order. If the customer initiates payment to KIRCHBERGER KOSMETIK during the ordering process, the receipt of the purchase price by KIRCHBERGER KOSMETIK is considered binding acceptance. The contract for the goods is concluded upon receipt of the purchase price or upon receipt of the order confirmation by KIRCHBERGER KOSMETIK. Dispatch of the ordered goods or a shipping confirmation to the customer is equivalent to an express declaration of acceptance.
3.3 After placing an order in the KIRCHBERGER KOSMETIK online shop, the customer will receive an order confirmation, the invoice, and these terms and conditions of sale via email. However, we do not store a separate contract text that would be accessible to the customer online.
3.4 The following languages are available for concluding the contract: German.
4th delivery
4.1 Orders placed via the webshop require a delivery address in Germany. Retail customers are also supplied in Switzerland and Italy. Other exceptions may apply to specific distributors by separate, explicit agreement.
4.2 KIRCHBERGER KOSMETIK generally delivers orders consisting of multiple items as a single shipment. In the case of partial deliveries at the customer's specific request, shipping costs will be charged for each partial delivery in accordance with section 5, unless section 5.5.3 of these Terms and Conditions applies.
4.3 Delivery is made via parcel service or freight forwarder. Shipping costs are shown separately.
5. Prices, shipping costs, payment
5.1 Our prices in euros, valid at the time of ordering, apply, plus the applicable statutory value-added tax and shipping costs, which are shown separately during the ordering process. If delivery is made by cash on delivery (COD) by separate agreement between the parties, the customer shall bear the COD and money transfer fees for each individual shipment, which are also shown separately during the ordering process.
5.2 Discounts or rebates require a separate agreement.
5.3 The customer can choose between the payment methods offered by KIRCHBERGER KOSMETIK, which depend in particular on the order total, the delivery method, the shipping destination, and the settings during the ordering process. When ordering via the webshop without a merchant customer login, the customer generally only has PayPal Plus available as a payment method, which is free of charge for the customer. PayPal Plus offers the customer various payment options such as PayPal, direct debit, credit card, and purchase on account. However, there is no entitlement to a specific payment method.
5.4 In the event of default of payment by the customer, we are entitled, without prejudice to the assertion of further damages, to charge interest at the respective bank overdraft rates, but at least 5 percentage points above the base interest rate for contracts with consumers (see section 2.1) and 8 percentage points above the base interest rate for contracts with businesses (see section 2.2). The customer is entitled to prove that we have incurred no damage or a lesser amount of damage than the aforementioned lump sum for default.
5.5. The following supplementary provisions apply to dealer customers (see section 2.3):
5.5.1 The invoice will be issued upon delivery of the goods.
5.5.2 Payment of the invoice amount is due within 30 days without deduction, unless different payment terms are stated on the invoice. Payment must be made in such a way that KIRCHBERGER KOSMETIK has the funds available on the due date.
5.5.3 In the event that payments are not made on time, all claims of KIRCHBERGER KOSMETIK against the customer become due immediately, irrespective of any agreed payment terms. In this case, KIRCHBERGER KOSMETIK is entitled to demand security and/or to execute any outstanding deliveries only against prepayment or cash on delivery.
5.5.4 Each reminder will be charged at EUR 5.00 net.
5.5.5 If payment terms are not complied with to a significant extent or if circumstances become known that call into question the customer's creditworthiness, all claims will become due immediately.
5.5.6 The bank charges for a returned direct debit are borne by the customer. KIRCHBERGER KOSMETIK also charges its own processing fee of EUR 6.50 net per returned direct debit.
6. Delivery times
6.1 Delivery times are specified in the online shop and on the order confirmation. For business customers, delivery times begin upon dispatch of our order confirmation to the customer, but not before receipt of any agreed down payment or – in the case of advance payment – payment of the purchase price. The right to assert the defense of non-performance of contract remains reserved.
6.2 Unless otherwise agreed, delivery dates or deadlines for deliveries to entrepreneurs (see section 2.2) are deemed to have been met if the goods have left the KIRCHBERGER KOSMETIK warehouse or the customer has been notified of their readiness for shipment by the end of the period.
6.3 If, after placing an order, the expected delivery or shipping date changes, the customer will be informed immediately by email. The delivery time will be extended appropriately in the event of labor disputes, in particular strikes and lockouts, as well as in the event of unforeseen obstacles beyond our control or sphere of influence, provided that such obstacles demonstrably affect the completion or delivery of the goods. If the customer is a consumer (see section 2.1), they may withdraw from the contract or make changes to the order at any time before the goods are made available or delivered. If the customer is a business (see section 1.4), they must grant us a reasonable grace period before exercising their statutory rights after the delivery or availability deadline has passed.
7. Right of withdrawal for consumers
Customers who order from us as consumers (see section 2.1) have a statutory right of withdrawal, about which we inform them as follows:
Cancellation policy
Right of withdrawal
You have the right to withdraw from this contract within fourteen days without giving any reason.
The cancellation period is fourteen days from the day on which you or a third party named by you, who is not the carrier, took possession of the last goods.
To exercise your right of withdrawal, you must inform us (Kirchberger Kosmetik GmbH, Jahnstraße 6A, 85646 Anzing near Munich, Germany, telephone +49 89 41612140, fax +49 89 416124199, email returns@horstkirchberger.com) of your decision to withdraw from this contract by means of an unequivocal statement (e.g. a letter sent by post, fax or email). You may use the attached model withdrawal form, but it is not obligatory.
To meet the cancellation deadline, it is sufficient that you send your notification of exercising your right of cancellation before the cancellation period expires.
However, the right of withdrawal does not apply to contracts for the supply of goods that are not prefabricated and for whose production an individual selection or specification by the consumer is decisive or which are clearly tailored to the personal needs of the consumer.
Consequences of the revocation
If you withdraw from this contract, we will reimburse all payments received from you (excluding delivery costs), without undue delay and no later than fourteen days from the day on which we received your notification of withdrawal. For this reimbursement, we will use the same payment method that you used for the original transaction, unless expressly agreed otherwise; in no case will you be charged any fees as a result of this reimbursement. We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earliest.
You must return or hand over the goods to us without undue delay and in any event no later than fourteen days from the day on which you notify us of your withdrawal from this contract. The deadline is met if you send the goods before the period of fourteen days has expired.
You bear the direct costs of returning the goods.
You are only liable for any loss in value of the goods if this loss in value is due to handling of the goods that is not necessary for testing their condition, properties and functionality.
Sample cancellation form
(If you wish to cancel the contract, please fill out this form and return it.)
- To:
Kirchberger Kosmetik GmbH
Jahnstraße 6A
85646 Anzing near Munich
Fax +49 89 4161214-99
e-mail returns@horstkirchberger.com
- I/We (*) hereby revoke the contract concluded by me/us (*) for the purchase of the following goods (*)/ the provision of the following service (*)
- Ordered on (*)/received on (*)
- Name of consumer(s)
- Address of the consumer(s)
- Signature of the consumer(s) (only for notifications on paper)
- Date
(*) Delete as appropriate.
8. Returns policy for businesses (see section 2.2)
8.1 Returns require the prior consent of KIRCHBERGER KOSMETIK. Defects in part of the delivery do not entitle the customer to reject the entire delivery, unless the entire delivery is unusable for the customer.
8.2 No credit note will be issued for goods returned by the customer without prior agreement with KIRCHBERGER KOSMETIK. The goods will be returned to the customer at the customer's expense.
8.3 Returns are handled exclusively by the assigned KIRCHBERGER KOSMETIK account manager. If no account manager has been assigned, our customer service department will process the return.
8.4 The customer bears the shipping risk. Goods arriving at KIRCHBERGER KOSMETIK damaged due to improper packaging will not be refunded.
8.5 Returned goods will only be refunded in the form of a credit note and will be processed with the subsequent order; the credit note will not be paid out in cash.
8.6 A final review and approval of the return is carried out by the customer service department of KIRCHBERGER KOSMETIK.
9. Further special provisions for entrepreneurs
For customers acting as entrepreneurs (see section 2.2), the following additional provisions apply:
9.1 The place of performance is the registered office of KIRCHBERGER KOSMETIK.
9.2 For deliveries to a different location, the risk of accidental loss or accidental damage passes to the customer no later than upon handover to the commissioned transport company. This also applies if KIRCHBERGER KOSMETIK has assumed the transport costs.
9.3 The customer is obligated to accept delivery. If the customer fails to accept the goods even after a reasonable grace period, KIRCHBERGER KOSMETIK is entitled to claim damages amounting to 20% of the agreed price, unless the customer proves that KIRCHBERGER KOSMETIK incurred only a lesser amount of damages than the aforementioned lump sum. The customer will be invoiced for the costs of refused or uncollected shipments.
9.4 The customer is obligated to inspect the goods immediately upon receipt and, if a defect is found, to notify KIRCHBERGER KOSMETIK immediately. If the customer fails to provide such notification, the goods are deemed approved, unless the defect was not discoverable upon inspection. If such a defect becomes apparent later, it must be reported immediately upon discovery; otherwise, the goods are also deemed approved with respect to this defect.
9.5 Notice of defects must be given in writing and must include a specific description of the defect. The deadline for giving notice of defects is 3 working days from receipt of the goods, or, in the case of latent defects, 3 working days from discovery of the defect, unless the customer proves that they were unable to meet the deadline even after taking reasonable steps.
10. Warranty
10.1 There is a statutory warranty right. The warranty is governed by the statutory provisions and the following regulations.
10.2 In the event of a defect in the goods, the customer shall request KIRCHBERGER KOSMETIK to remedy the defect. If the customer sets a deadline for this, it must be reasonable.
10.3 If the customer is a merchant and the order is part of their commercial business, the statutory provisions apply to complaints regarding defects. Notices of defects must be submitted in writing and in accordance with clauses 9.4 and 9.5.
10.4 Claims for defects in the goods shall become time-barred two years after delivery of the goods. If the customer is a business (see section 2.2), claims for defects in the goods shall become time-barred one year after delivery of the goods. The statutory limitation period for recourse claims (§ 479 German Civil Code) remains unaffected.
10.5 The limitation periods specified in clause 10.4 sentence 2 do not apply in the case of intent or fraudulent concealment of a defect, or where KIRCHBERGER KOSMETIK has assumed a guarantee for the quality of the delivered item. They also do not apply to claims for defects in cases of injury to life, body or health, claims under the Product Liability Act, gross negligence, or culpable breach of essential contractual obligations (see clause 12.3).
11. Retention of title
11.1 The delivered goods remain the property of KIRCHBERGER KOSMETIK until the purchase price has been paid in full.
11.2 If the customer is a business (section 2.2), KIRCHBERGER KOSMETIK retains title to the delivered goods until all claims existing at the time of conclusion of the contract, including all claims arising from subsequent contracts and repeat orders, have been settled (hereinafter also referred to as "total claims"). The customer, as a business, hereby assigns to KIRCHBERGER KOSMETIK, as security, all claims acquired from the resale of the goods against its customers. The customer is revocably authorized to collect these claims. KIRCHBERGER KOSMETIK will only revoke this authorization and collect the assigned claims itself if the customer defaults on its payment obligations to KIRCHBERGER KOSMETIK or if insolvency proceedings have been initiated against the customer's assets.
11.3 KIRCHBERGER KOSMETIK is obligated to release existing collateral at the customer's request to the extent that its value exceeds the total claims by more than 20%. The selection of the collateral to be released is at KIRCHBERGER KOSMETIK's discretion.
11.4. If the customer is a business (section 2.2), the customer must immediately notify KIRCHBERGER KOSMETIK of any third-party access to goods owned or co-owned by KIRCHBERGER KOSMETIK. The customer shall bear any costs incurred for extrajudicial release resulting from such access.
11.5 KIRCHBERGER KOSMETIK is entitled to withdraw from contracts where the delivered goods are subject to retention of title if the buyer defaults on payment of the purchase price or on a total amount owed exceeding €250.00. This right of withdrawal is limited to contracts where the value of the delivered goods does not exceed 120% of the total amount owed.
12. Liability
12.1 Claims for damages due to breach of duty and tort, as well as claims for reimbursement of wasted expenses, are excluded both against KIRCHBERGER KOSMETIK and against its vicarious agents and assistants.
12.2 This limitation of liability does not apply if the damage was caused intentionally or by gross negligence, nor in the case of a breach of essential contractual obligations, i.e., those contractual obligations whose fulfillment is essential for the proper performance of the contract and on whose compliance the contractual partner may regularly rely, and whose breach, on the other hand, jeopardizes the achievement of the purpose of the contract. It does not apply to damages resulting from injury to life, body, or health if KIRCHBERGER KOSMETIK is responsible for the breach of duty. Furthermore, the limitation does not apply to damages resulting from the absence of a warranted characteristic or for which liability is provided under the Product Liability Act.
12.3 In the event of a claim for damages due to slight negligence in the breach of essential contractual obligations and in cases of gross negligence in the breach of ancillary contractual obligations, liability is limited to the foreseeable damage typical for this type of contract. This does not apply in cases of personal injury, damage resulting from the absence of a warranted characteristic, or for which liability is provided under the Product Liability Act.
13. Prohibition of set-off, right of retention
If the customer is a business (section 2.2), they are not entitled to set off claims that are outside the scope of the reciprocal relationship. This prohibition on set-off does not apply if KIRCHBERGER KOSMETIK's counterclaims are undisputed, legally established, or ready for adjudication. The customer, as a business, cannot assert a right of retention unless one of the aforementioned exceptions applies.
14. Online registration, access data
14.1 Placing an order in our online shop does not generally require registration. However, registration facilitates future purchases. If the customer chooses to register, they select their own username and password (hereinafter referred to as "login details"). The customer must promptly update any changes to their personal data (e.g., email address) in their account or notify us otherwise.
14.2 For the dealer customer login, the access data will be assigned by KIRCHBERGER KOSMETIK after the customer has approved it as a dealer customer and communicated to the customer.
14.3 The customer is solely responsible for protecting their access data. Access data must be kept confidential and may not be disclosed to third parties without our consent. If the customer discovers that their access data is being used by a third party, they are obligated to change it immediately or, if this is not possible, to notify us immediately.
14.4. In the event of a justified suspicion of misuse of the customer's access data, particularly if this has been reported by the customer, KIRCHBERGER KOSMETIK is entitled to immediately block access. KIRCHBERGER KOSMETIK will inform the customer of the block.
14.5. KIRCHBERGER KOSMETIK is not liable for damages incurred by the customer due to misuse or loss of access data. This does not apply if the damage was caused intentionally or through gross negligence. Furthermore, this exclusion of liability does not apply to damages resulting from injury to life, body, or health if KIRCHBERGER KOSMETIK is responsible for the breach of duty.
15. Data protection
KIRCHBERGER KOSMETIK's data protection practices comply with the relevant data protection regulations (GDPR, BDSG, TMG). All information regarding the collection, processing, and use of users' personal data can be found in the privacy policy .
16. Legal notice regarding the content of the websites and ownership and copyrights
The content of the KIRCHBERGER KOSMETIK website is created and updated with considerable economic effort. KIRCHBERGER KOSMETIK reserves all proprietary rights, copyrights, and other intellectual property rights to images, drawings, calculations, designs, plans, and other documents. The content of the KIRCHBERGER KOSMETIK website may only be used for the customer's own informational purposes.
Any further use of the content or linking to the content for commercial purposes is prohibited, unless expressly permitted otherwise (e.g., the temporary provision of product photos to retail customers). In any case, even where commercial use is permitted in individual instances, a suitable copyright notice must be used for copyrighted works.
17. Customer Service
Our customer service department is available for questions, complaints and grievances from Monday to Thursday from 9:00 am to 4:00 pm and Friday from 9:00 am to 12:00 pm at
Phone +49 89 41612140
Fax +49 89 416121499
e-mail returns@horstkirchberger.com
available.
18. Changes to the Terms and Conditions
KIRCHBERGER KOSMETIK reserves the right to amend these Terms and Conditions with future effect. The amendments will become effective when the amended Terms and Conditions are incorporated into a legal transaction. They will also be deemed effectively agreed upon if KIRCHBERGER KOSMETIK notifies the customer of the amendments electronically (via email), the customer is able to review the amendments, and the customer does not object to them within three weeks of receiving the notification. The notification of amendment will specify the deadline and the consequences of missing it. In the event of an objection, KIRCHBERGER KOSMETIK reserves the right to terminate the business relationship.
19. Final provisions, dispute resolution procedure
19.1 This contract is governed exclusively by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) and German private international law is excluded. If the customer is a consumer (see section 2.1), the mandatory consumer protection provisions applicable in the state where the customer has their habitual residence also apply, provided these offer the customer greater protection.
19.2 If the customer is a merchant, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all claims arising from the contractual relationship is Munich. This also applies in cases where the customer's registered office or habitual residence is moved outside the scope of the Code of Civil Procedure after conclusion of the contract or is unknown at the time legal action is initiated.
19.3 Should one or more provisions of these Terms and Conditions be or become invalid, the remaining provisions of both the contract and these Terms and Conditions shall remain in full force and effect. The customer and KIRCHBERGER KOSMETIK undertake to replace the invalid provision with a valid provision that most closely reflects the economic purpose of the contract.
19.4 Link to the OS platform pursuant to Article 14(1) of Regulation (EU) No 524/2013: http://ec.europa.eu/consumers/odr/ .
KIRCHBERGER KOSMETIK is neither legally nor voluntarily obligated to participate in dispute resolution proceedings before a consumer arbitration board. In the event of a conflict, KIRCHBERGER KOSMETIK will endeavor to find a mutually acceptable solution with the customer. Since arbitration services are subject to fees, KIRCHBERGER KOSMETIK will not participate in dispute resolution proceedings before a consumer arbitration board, also in the customer's best interest regarding costs.
As of February 14, 2023