General Terms and Conditions Including Customer Information

Table of Contents

1. Scope of Application

2. Conclusion of the Contract

3. Right of Withdrawal

4. Prices and Payment Terms

5. Delivery and Shipping Conditions

6. Retention of Title

7. Liability for Defects (Warranty)

8. Liability

9. Governing Law

10. Place of Jurisdiction

11. Alternative Dispute Resolution

1. Scope of Application

1.1

These General Terms and Conditions, hereinafter referred to as the “GTC”, of XYBA Naturprodukte UG (haftungsbeschränkt), hereinafter referred to as the “Seller”, shall apply to all contracts for the supply of goods concluded between a consumer or business customer, hereinafter referred to as the “Customer”, and the Seller in respect of the goods displayed by the Seller in its online shop.

The inclusion of any terms and conditions of the Customer is hereby rejected unless otherwise expressly agreed.

1.2

For the purposes of these GTC, a “Consumer” is any natural person who enters into a legal transaction for purposes that can predominantly be attributed neither to their commercial nor to their independent professional activity.

1.3

For the purposes of these GTC, a “Business Customer” is a natural or legal person or a partnership with legal capacity who, when entering into a legal transaction, acts in the course of their commercial or independent professional activity.

2. Conclusion of the Contract

2.1

The product descriptions contained in the Seller’s online shop do not constitute binding offers on the part of the Seller. They serve solely to enable the Customer to submit a binding offer.

2.2

The Customer may submit an offer using the online order form integrated into the Seller’s online shop.

After placing the selected goods in the virtual shopping basket and completing the electronic ordering process, the Customer submits a legally binding contractual offer regarding the goods contained in the shopping basket by clicking the button that completes the ordering process.

The Customer may also submit an offer to the Seller by email, online contact form, post or telephone.

2.3

The Seller may accept the Customer’s offer within five days:

• by sending the Customer a written order confirmation or an order confirmation in text form, such as by fax or email, whereby receipt of the order confirmation by the Customer shall be decisive;

• by delivering the ordered goods to the Customer, whereby receipt of the goods by the Customer shall be decisive; or

• by requesting payment from the Customer after the Customer has placed the order.

Where more than one of the above alternatives applies, the contract shall be concluded at the time when the first of these alternatives occurs.

The period for acceptance of the offer shall commence on the day following the date on which the Customer sends the offer and shall end upon expiry of the fifth day following the date on which the offer was sent.

If the Seller does not accept the Customer’s offer within the aforementioned period, the offer shall be deemed rejected and the Customer shall no longer be bound by their declaration of intent.

2.4

Where the Customer selects a payment method offered by PayPal, payment shall be processed by the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22–24 Boulevard Royal, L-2449 Luxembourg, hereinafter referred to as “PayPal”.

The PayPal Terms of Use shall apply and are available at:

https://www.paypal.com/de/legalhub/paypal/useragreement-full

Where the Customer does not have a PayPal account, the terms and conditions for payments without a PayPal account shall apply and are available at:

https://www.paypal.com/de/legalhub/paypal/privacywax-full

Where the Customer pays using a payment method offered by PayPal and available during the online ordering process, the Seller hereby declares acceptance of the Customer’s offer at the time the Customer clicks the button completing the ordering process.

2.5

When an order is placed using the Seller’s online order form, the wording of the contract shall be stored by the Seller after conclusion of the contract and sent to the Customer in text form, for example by email, fax or letter, after the Customer has submitted the order.

The Seller shall not make the wording of the contract available by any additional means.

Where the Customer created a user account in the Seller’s online shop before submitting the order, the order data shall be archived on the Seller’s website. The Customer may access this data free of charge through their password-protected user account by entering the relevant login details.

2.6

Before submitting a binding order using the Seller’s online order form, the Customer may identify possible input errors by carefully reviewing the information displayed on the screen.

The browser’s zoom function may be used as an effective technical means of identifying input errors by enlarging the information displayed on the screen.

During the electronic ordering process, the Customer may correct their entries using the usual keyboard and mouse functions until they click the button that completes the ordering process.

2.7

The contract may be concluded in the German language.

2.8

Order processing and communication shall generally take place by email and through automated order-processing systems.

The Customer must ensure that the email address provided for order processing is correct and that emails sent by the Seller can be received at that address.

In particular, where spam filters are used, the Customer must ensure that all emails sent by the Seller or by third parties commissioned by the Seller to process the order can be delivered.

3. Right of Withdrawal

3.1

Consumers generally have a statutory right of withdrawal.

3.2

Further information regarding the right of withdrawal is provided in the Seller’s withdrawal policy.

3.3

The right of withdrawal shall not apply to Consumers who, at the time the contract is concluded, are not nationals of a Member State of the European Union and whose sole place of residence and delivery address are located outside the European Union at that time.

4. Prices and Payment Terms

4.1

Unless otherwise stated in the Seller’s product description, the prices indicated are total prices including the applicable statutory value-added tax.

Any additional delivery and shipping costs shall be stated separately in the relevant product description.

4.2

For deliveries to countries outside the European Union, additional costs may arise in individual cases for which the Seller is not responsible and which must be borne by the Customer.

These may include, for example, charges for transferring funds through financial institutions, such as bank transfer charges or currency exchange fees, as well as import duties or taxes, such as customs duties.

Such charges relating to the transfer of funds may also arise where the goods are not delivered to a country outside the European Union but the Customer makes the payment from a country outside the European Union.

4.3

The payment methods available to the Customer shall be stated in the Seller’s online shop.

4.4

Where advance payment by bank transfer has been agreed, payment shall become due immediately upon conclusion of the contract unless the parties have agreed on a later due date.

4.5

Where the Customer selects a payment method offered through the PayPal payment service, payment shall be processed through PayPal. PayPal may also use the services of third-party payment service providers for this purpose.

Where the Seller offers payment methods through PayPal under which the Seller provides goods or services before receiving payment, such as purchase on account or instalment payments, the Seller shall assign the relevant payment claim to PayPal or to the payment service provider commissioned by PayPal and specifically identified to the Customer.

Before accepting the Seller’s declaration of assignment, PayPal or the payment service provider commissioned by PayPal shall carry out a creditworthiness assessment using the Customer data provided.

The Seller reserves the right to refuse the selected payment method where the result of the creditworthiness assessment is negative.

Where the selected payment method is approved, the Customer must pay the invoice amount within the agreed payment period or according to the agreed payment instalments.

In this case, payment with discharging effect may only be made to PayPal or to the payment service provider commissioned by PayPal.

Even where the payment claim has been assigned, the Seller shall remain responsible for general Customer enquiries concerning, for example, the goods, delivery times, shipping, returns, complaints, declarations and returns relating to withdrawal, and credit notes.

4.6

Where payment by SEPA direct debit is selected, the invoice amount shall become due after a SEPA direct debit mandate has been issued, but not before expiry of the period specified in the advance notification of the debit.

The direct debit shall be collected when the ordered goods leave the Seller’s warehouse, but not before expiry of the period specified in the advance notification.

“Advance notification” or “pre-notification” means any communication from the Seller to the Customer, such as an invoice, policy or contract, announcing that a payment will be collected by SEPA direct debit.

If the direct debit cannot be collected because the account contains insufficient funds, because incorrect bank details were provided, or because the Customer objects to the debit without being entitled to do so, the Customer shall bear the charges incurred by the relevant financial institution as a result of the returned debit, provided that the Customer is responsible for the circumstances causing the returned debit.

5. Delivery and Shipping Conditions

5.1

Where the Seller offers shipment of the goods, delivery shall be made within the delivery area specified by the Seller to the delivery address provided by the Customer, unless otherwise agreed.

The delivery address specified during the Seller’s order-processing procedure shall be decisive for the performance of the transaction.

5.2

Where delivery of the goods fails for reasons attributable to the Customer, the Customer shall bear the reasonable costs incurred by the Seller as a result.

This shall not apply to the original shipping costs where the Customer validly exercises their right of withdrawal.

Where the Customer validly exercises the right of withdrawal, the provisions concerning return shipping costs contained in the Seller’s withdrawal policy shall apply.

5.3

Where the Customer is a Business Customer, the risk of accidental loss or accidental deterioration of the goods sold shall pass to the Customer as soon as the Seller has handed the goods over to the forwarding agent, carrier or other person or organisation appointed to carry out the shipment.

Where the Customer is a Consumer, the risk of accidental loss or accidental deterioration of the goods sold shall generally pass to the Customer only when the goods are handed over to the Customer or to a person authorised to receive them.

By way of exception, the risk shall also pass to a Consumer as soon as the Seller hands the goods over to the forwarding agent, carrier or other person or organisation appointed to carry out the shipment where the Customer commissioned that person or organisation and the Seller did not previously identify that person or organisation to the Customer.

5.4

Where the Customer is a Consumer resident in Germany or a Business Customer, the Seller reserves the right to withdraw from the contract in the event that the Seller does not receive correct or proper delivery from its own supplier.

This shall apply only where the failure to deliver is not attributable to the Seller and the Seller has, with due care, concluded a specific covering transaction with the relevant supplier.

The Seller shall make all reasonable efforts to obtain the goods.

Where the goods are unavailable or only partially available, the Customer shall be informed without undue delay and any payment already made shall be refunded without undue delay.

5.5

Where the Seller offers the goods for collection, the Customer may collect the ordered goods during the business hours and from the address specified by the Seller.

No shipping costs shall be charged in this case.

6. Retention of Title

Where the Seller supplies the goods before receiving full payment, ownership of the delivered goods shall remain with the Seller until the purchase price owed has been paid in full.

7. Liability for Defects (Warranty)

Unless otherwise provided below, the statutory provisions concerning liability for defects shall apply.

The following provisions shall apply by way of derogation to contracts for the supply of goods.

7.1

Where the Customer is a Business Customer:

• the Seller shall be entitled to choose the type of subsequent performance;

• the limitation period for claims relating to defects in new goods shall be one year from delivery of the goods;

• claims relating to defects in used goods shall be excluded; and

• the limitation period shall not recommence where replacement goods are supplied as part of the Seller’s liability for defects.

7.2

The limitations of liability and reductions of limitation periods set out above shall not apply:

• to claims by the Customer for damages or reimbursement of expenses;

• where the Seller has fraudulently concealed the defect;

• to goods that have been used for a building in accordance with their customary purpose and have caused the building to be defective; or

• to any obligation of the Seller to provide updates for digital products in connection with contracts for the supply of goods containing digital elements.

7.3

In addition, in relation to Business Customers, the statutory limitation periods applicable to any statutory right of recourse shall remain unaffected.

7.4

Where the Customer is a merchant within the meaning of Section 1 of the German Commercial Code, Handelsgesetzbuch or “HGB”, the Customer shall be subject to the commercial duty to inspect the goods and give notice of defects in accordance with Section 377 HGB.

If the Customer fails to comply with the notification obligations provided for therein, the goods shall be deemed approved.

7.5

Where the Customer is a Consumer, the Customer is requested to report goods showing obvious transport damage to the delivery company and to inform the Seller accordingly.

Failure to do so shall have no effect on the Customer’s statutory or contractual claims relating to defects.

8. Liability

The Seller shall be liable to the Customer in respect of all contractual, quasi-contractual and statutory claims, including claims in tort, for damages and reimbursement of expenses as follows.

8.1

The Seller shall be liable without limitation, irrespective of the legal basis:

• in cases of intent or gross negligence;

• in cases of intentional or negligent injury to life, body or health;

• on the basis of a guarantee, unless otherwise stipulated in the relevant guarantee terms; and

• on the basis of mandatory statutory liability, including liability under the German Product Liability Act.

8.2

Where the Customer is a Consumer resident in Germany or a Business Customer, the following limitations of liability shall apply.

Where the Seller negligently breaches a material contractual obligation, the Seller’s liability shall be limited to the foreseeable damage typically associated with the contract, unless the Seller is liable without limitation pursuant to Section 8.1 above.

Material contractual obligations are obligations imposed on the Seller by the contract that are essential to achieving the purpose of the contract, whose fulfilment is necessary for the proper performance of the contract and on whose compliance the Customer may normally rely.

In all other respects, the Seller’s liability shall be excluded unless the Seller is liable without limitation pursuant to Section 8.1 above.

8.3

The above liability provisions shall also apply with regard to the Seller’s liability for its agents, employees and legal representatives.

9. Governing Law

9.1

All legal relationships between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the laws governing the international sale of movable goods.

In relation to Consumers, this choice of law shall apply only to the extent that it does not deprive the Consumer of the protection granted by mandatory provisions of the law of the country in which the Consumer has their habitual residence.

9.2

Furthermore, this choice of law shall not apply to the statutory right of withdrawal in relation to Consumers who, at the time the contract is concluded, are not nationals of a Member State of the European Union and whose sole place of residence and delivery address are located outside the European Union at that time.

10. Place of Jurisdiction

Where the Customer is a merchant, a legal entity under public law or a special fund under public law having its registered office within the territory of the Federal Republic of Germany, the Seller’s registered office shall be the exclusive place of jurisdiction for all disputes arising from the contract.

Where the Customer has its registered office outside the territory of the Federal Republic of Germany, the Seller’s registered office shall be the exclusive place of jurisdiction for all disputes arising from the contract, provided that the contract or the claims arising from the contract can be attributed to the Customer’s professional or commercial activity.

In the aforementioned cases, however, the Seller shall in all circumstances also be entitled to bring proceedings before the competent court at the Customer’s registered office.

11. Alternative Dispute Resolution

The Seller is neither obliged nor willing to participate in dispute resolution proceedings before a consumer arbitration board.