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General Terms and Conditions
agreed between
Pharmact GmbH, represented by its Managing director Eric Schaber, Soldnerstr. 11, 68219 Mannheim, Germany, registered in the Commercial register of the Mannheim District Court under HRB 733657, VAT identification number: DE324832035,
– hereinafter referred to as “Provider” –
and
the customer referred to in Section 2 of the contract
– hereinafter referred to as “Customer” –
§ l Scope, definitions
(1) For the business relationship between the provider and the customer, the following General terms and conditions apply exclusively in the version valid at the time of the order. Deviating general terms and conditions of the customer are not recognized, unless the provider expressly agrees to their validity in writing.
(2) The customer is a consumer insofar as the purpose of the goods and services ordered cannot be attributed predominantly to his or her commercial or independent professional activity. An entrepreneur is any natural or legal person or a legal partnership that, on conclusion of a legal transaction, does so in their commercial or professional capacity.
§ 2 Conclusion of contract
(1) The customer can select products from the range of the provider, in particular ordering medical products with an obligation to pay. In doing so, the customer makes a binding request to purchase the goods in the shopping cart. Before submitting the order, the customer can change and view the data at any time. However, the request can only be submitted and transmitted if the customer has accepted these contractual terms and conditions by clicking on the “Accept General Terms and Conditions” button which then includes them in the request made.
(2) The provider then sends the customer an automatic confirmation of receipt by email, in which the customer’s order is listed again and which the customer can print out using the “Print” function. The automatic confirmation of receipt only documents that the customer’s order has been received by the provider and does not constitute acceptance of the request. The contract is only concluded when the provider submits a declaration of acceptance, which is sent in a separate email (order confirmation). In this email or in a separate email, but no later than upon delivery of the goods, the text of the contract (consisting of order, General terms and conditions and order confirmation) will be sent to the customer by us on a permanent data carrier (email or paper printout) (contract confirmation). The text of the contract is saved in compliance with data protection laws.
(3) In the case of a request in a different way from a customer, he or she will receive an offer by email, whereby the validity of these General terms and conditions is referred to according to Section 1, and the request to confirm the offer by email after checking is made. Also in this case, the contract is only concluded with the submission of the declaration of acceptance, which is sent in a separate email (order confirmation). Otherwise, Section 2 number 2 applies. (4) The contract is concluded in German.
§ 3 Delivery, availability of goods
(1) Delivery times specified by us are calculated from the time of our order confirmation, provided that the purchase price has been paid in advance (except for purchase on account). The provider informs the customer of the delivery time with the order confirmation. In case of doubt, the delivery times specified by the provider are calculated from the time of the order confirmation, provided that the purchase price has been paid in advance.
(2) If the product that the customer selects is out of stock at the time of the customer’s order, the provider will immediately inform the customer of this in the order confirmation. If the product is permanently unavailable, the provider will refrain from making a declaration of acceptance. A contract is not concluded in this case.
(3) If the product specified by the customer in the order is only temporarily unavailable, the provider will also notify the customer of this immediately in the order confirmation.
§ 4 Reservation of title
The delivered goods remain the property of the provider until full payment has been made.
§ 5 Prices and shipping costs
(1) All prices stated on the website of the Provider are exclusive of the applicable statutory value added tax unless otherwise stated.
(2) The corresponding shipping costs are stated to the customer in the order form and are to be paid by the customer, unless the customer makes use of his or her right of withdrawal.
(3) The goods are dispatched by DHL or another courier service. The provider bears the shipping risk if the customer is a consumer.
(4) In the event of a cancellation, the customer has to bear the direct costs of the return.
§ 6 Payment terms
(1) The customer can pay in advance or by PayPal. Payments on account require prior agreement.
(2) The customer can change the payment method saved in his or her user account at any time.
(3) Payment of the purchase price is due immediately upon conclusion of the contract. If the payment due date is determined by the calendar, then the client is already in default if the deadline is missed. In this case, he or she has to pay the provider default interest of 5 percentage points above the base rate for the year.
(4) The obligation of the customer to pay default interest does not exclude the right of the provider to assert other claims for damages resulting from delay.
§ 7 Warranty for material defects, guarantee
(1) The provider is liable for material defects in accordance with the applicable statutory provisions, in particular Section 434 ff of the German Civil Code (BGB). For entrepreneurs, the warranty period for items delivered by the provider is 12 months.
(2) If the buyer is an entrepreneur, the prerequisite for any liability is the proper fulfillment of the inspection and complaint obligations owed according to Section 377 German Commercial Code (HGB).
(3) It should be noted that medical products are sold, in particular antibody tests and antigen tests (so-called in-vitro diagnostics, IVD), which must be carefully stored, i.e. in the present case at a storage temperature of 2°-30°. Some products also have an expiry date, which excludes a warranty for material defects after it has expired.
(4) An additional guarantee exists for the goods delivered by the provider only if this was expressly stated in the order confirmation for the respective article.
§ 8 Liability
(1) Claims by the customer for damages are excluded. This excludes claims for damages by the customer from injury to life, limb, health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damage based on an intentional or grossly negligent breach of duty by the provider, its legal representatives or vicarious agents. Essential contractual obligations are those which are essential to achieving the purpose of the contract.
(2) In the event of a breach of essential contractual obligations, the provider is only liable for the foreseeable damage typical of the contract, if this was caused simply by negligence, unless the customer is entitled to claims for damages resulting from injury to life, limb or health.
(3) The limitations of paragraphs 1 and 2 also apply in favor of the legal representatives and vicarious agents of the provider if claims are asserted directly against them.
(4) The limitations of liability resulting from paragraphs 1 and 2 do not apply if the provider fraudulently concealed the defect or has assumed a guarantee for the quality of the item. The same applies if the provider and the customer have made an agreement on the nature of the item. The provisions of the Product Liability Act remain unaffected.
§ 9 Cancellation policy
(1) Consumers generally have a statutory right of withdrawal when concluding a distance selling transaction, which the provider informs about in accordance with the legal model below. The exceptions to the right of withdrawal are regulated in paragraph (2). A sample cancellation form can be found in paragraph (3).
(2) The right of withdrawal does not apply to contracts for the delivery of goods that can spoil quickly or whose expiry date would be exceeded quickly, contracts for the delivery of sealed goods that are unsuitable for return for reasons of health protection or hygiene if their seal has been removed after delivery.
(3) The provider informs about the model cancellation form according to the legal regulation as follows:
Sample cancellation form
(If you would like to cancel the contract, please complete this form and send it back to us.)
To: Pharmact GmbH, Soldnerstr.11, 68219 Mannheim, Germany E-Mail: support@gaumfit.de
— I / we (*) hereby revoke the contract concluded by me / us (*) about 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 if this is a notification on paper)
— Date (*) Cross out what does not apply
§ 10 Final provisions
(1) The law of the Federal Republic of Germany applies to contracts between the provider and the customer, excluding the UN Sales Convention. The statutory provisions on the restriction of the choice of law and the applicability of mandatory provisions, in particular of the State in which the customer as a consumer has his or her habitual residence, remain unaffected.
(2) Provided that the customer is a merchant, a legal entity under public law, or a special fund under public law, the place of jurisdiction for all disputes arising from contractual relationships between the customer and the provider is the registered address of the provider.
(3) The contract remains binding in its remaining parts even if individual points are legally ineffective. The invalid points will be replaced by any statutory provisions if available. If this would constitute undue hardship for a contracting party, the contract becomes ineffective in its entirety.