General Contract Conditions
We welcome you, on the behalf of our company, as new commercial contract partner (future authorised buyer) and we wish you the best possible success for your work as independent authorised buyer for the Fúmée Perfume & Cosmetics GmbH, Radlpaßstraße 98, 8511 St. Stefan ob Stainz/AUSTRIA (in the following: FUMEE) and especially a lot of pleasure in the distribution of our goods. When distributing our goods and when you have contact with other people, consumer convenience and security, integrity, a fair cooperation as well as in the whole environment of network-marketings, of the party distribution and other direct distribution, as well as the protection of the law and good manners are in the foreground.
That is why we ask you to read thoroughly through the following ethnical rules, as well as our general contract conditions and to make them to your daily theme for the exercise of your tasks.
Ethnical rules for the handling of consumers
- Our authorised buyers advise their customers honestly and sincerely and clear up any misunderstandings about goods, the business opportunity or other statements during a consultation.
- In personal and telephone contact with the consumer at the beginning of the sales conversation, the persons authorised to purchase introduce themselves unsolicited and truthfully with their name and as the person authorised to purchase from FUMEE. In addition, at the beginning of the sales conversation, they disclose the business purpose of their visit or call and make clear which goods or services are to be offered.
- At the customer’s request, a sales talk is dispensed with, the conversation is postponed or a conversation that has already begun is friendly broken off.
- Persons authorised to purchase never behave in an obtrusive manner. In particular, visits and telephone contacts must take place at appropriate times, unless the consumer has expressly requested otherwise. The companies or their authorised authorised buyers shall not call a consumer for advertising purposes without the consumer’s prior express consent. The caller’s telephone number must be provided.
- During a customer contact, the person authorised to purchase informs the consumer of all the points concerning the goods offered and, if the consumer so wishes, the possibility of distribution.
- All information on the goods must be comprehensive and truthful. A person authorised to purchase is prohibited from making misleading statements or even promises in any form about the goods.
- A person entitled to purchase may not make any claims about goods, their prices or contractual conditions, unless these have been approved by FUMEE.
- Authorised buyers will only refer to letters of recommendation, test results or other persons for business purposes vis-à-vis the consumer if they are authorised by both the referencing party and FUMEE, these must be accurate and not outdated. Furthermore, letters of recommendation, tests and personal references must always be related to the intended purpose.
- The consumer will not be induced to buy products by dubious and/or misleading promises, nor by promises of particular benefits, if these benefits are linked to future, uncertain successes. Those entitled to purchase will refrain from doing anything that could lead the consumer to accept the offer made solely in order to do the person entitled to purchase a personal favour, to end an unwanted conversation or to enjoy an advantage that is not the subject of the offer or to show their appreciation for giving such an advantage.
- A person entitled to purchase may not provide any information regarding his remuneration or the potential remuneration of other persons entitled to purchase. Furthermore, a person entitled to purchase may not guarantee, promise or otherwise raise expectations.
- Persons authorised to purchase shall show consideration for persons who are inexperienced in business and shall under no circumstances take advantage of their age, illness or limited powers of insight to induce them to conclude a contract.
- In contacts with so-called socially weak or foreign-language population groups, the persons entitled to purchase will take due account of their financial capacity and their ability to understand and speak the language and, in particular, will refrain from doing anything that might induce members of such groups to place orders that do not correspond to their circumstances.
Ethical rules for dealing with authorised buyers
- Authorised buyers always treat each other fairly and respectfully. The aforementioned also applies to dealings with authorised buyers from other competitors or other network marketing companies, party distribution companies or other direct distribution companies.
- New authorised buyers are truthfully informed about their rights and obligations. Information on possible sales and acquisition opportunities is to be omitted.
- No verbal assurances may be made about goods and services from FUMEE.
- Persons entitled to purchase are not permitted to entice away persons entitled to purchase from other companies. Furthermore, authorised authorised buyers are not permitted to induce other authorised authorised buyers to change sponsors within FUMEE.
- The obligations of the following General Terms and Conditions of Contract must always be observed as ethical rules.
Ethical rules for dealing with other companies
- FUMEE’s purchasing agents always behave fairly and honestly towards other competitors or other companies in the network marketing sector, party sales or other direct sales.
- Systematic enticements of authorised buyers from other companies are avoided.
- Disparaging, misleading or unfair comparative claims about other companies’ goods or distribution systems are prohibited.
The above-mentioned ethical rules must also be observed at all times and in full in relation to FUMEE, affiliated companies and their representatives (e.g. trainers, instructors).
Having preceded these ethical rules of our company, we would now like to familiarize you with the General Contract Terms of FUMEE.
- 1 Scope of application
(1) The following General Terms and Conditions of Contract are an integral part of every contract between Fúmée Perfume & Cosmetics GmbH, Radlpaßstraße 98, 8511 St. Stefan ob Stainz/Austria (hereinafter referred to as FUMEE), e-mail contact: email@example.com. and the independent and self-employed authorised authorised buyer. It shall form the basis of a joint, fair and successful business relationship.
(2) FUMEE provides its services exclusively on the basis of these terms and conditions.
- 2 Subject matter of the contract
(1) FUMEE is a company which distributes high quality cosmetics & lifestyle products (in future: goods) via a direct sales concept. The person authorised to purchase is to resell the goods for FUMEE, so that the provision of resale of the goods forms the basis of the business of a person authorised to purchase. For this activity it is not necessary for the person entitled to purchase to purchase/acquire a minimum number of goods or other services from FUMEE or for the person entitled to purchase to recruit other persons entitled to purchase. Only registration and purchase of a starter set depending on the current validity is required.
(2) In addition, there is the possibility, but not the obligation, to recruit other persons entitled to purchase. For this activity, the advertising authorised authorised buyer shall receive a corresponding commission on the product turnover of the recruited authorised authorised buyer if the required qualification is achieved. However, no commission is expressly paid for the mere advertising of a new authorised buyer. The commission, as well as the method of payment, is based on the earnings plan applicable at that time.
(3) Upon successful registration, FUMEE shall provide the authorized buyer with training and personalized advertising tools, an online back office and landing page, including a right of use within the meaning of § 6 (1), which enables the authorized buyer, among other things, to have a constantly updated and comprehensive overview of his brokered sales, commission claims, settlements, as well as the authorized buyer and downline developments.
- 3 General conditions for the conclusion of the contract
(1) It is possible to conclude a contract with corporations, partnerships or with natural persons who have reached the age of 18 and are entrepreneurs who hold a trade licence (e.g. trade licence) (where required). A contract cannot be concluded by consumers. Per natural person, partnership (e.g. GbR, OHG, KG) and corporation (e.g. AG, GmbH, Ltd.) only one application for an authorised authorised buyer is accepted, just as a natural person is not entitled to register additionally as a partner in a partnership or corporation or otherwise several times indirectly.
(2) If a corporation submits an application for an authorisation to purchase, a copy of the relevant extract from the commercial register regarding registration as well as the VAT identification number and, if not available, the tax number must be submitted. All partners and, if applicable, also the partners of the partners, provided that a partner is also a corporation or a partnership, must be named by name, must be at least 18 years of age and sign the application. The partners are each personally liable to FUMEE for the conduct of the corporation.
(3) In the case of partnerships, a copy of the relevant extract from the commercial register on registration and the value added tax identification number, if available, must be submitted. All partners and, if applicable, also the partners of the partners, provided that a partner is also a corporation or a partnership, must be named by name, must be at least 18 years of age and must sign the application. The partners are each personally liable to FUMEE for the conduct of the partnership.
(4) Insofar as order or contract forms are used, these shall be deemed to be an integral part of the contract.
(5) The person authorised to make purchases can register online or offline with FUMEE for the start of his activity as a team partner. When registering, the person authorised to purchase is obliged to complete the application form for the person authorised to purchase completely and correctly, to sign it in the case of offline registration and then to send the application to FUMEE in the specified way and in the case of online registration to send it in the specified electronic way. In addition, in the case of an online registration, the person authorised to purchase accepts these General Terms and Conditions of Contract as having read and accepted them as an integral part of the contract by checking the corresponding box and in the case of an offline registration by signing the application prior to transmission of the application to the person authorised to purchase.
(6) FUMEE reserves the right to reject applications for purchasing authorisation at its own discretion without any justification.
(7) In the event of a breach of the obligations regulated in paragraphs (1) to (3) and (5) sentence 2, FUMEE is entitled to terminate the contract without notice without prior warning. In addition, FUMEE expressly reserves the right to assert further claims for damages in this case of termination without notice.
- 4 Status of the person authorised to purchase as an entrepreneur
(1) The person authorised to purchase shall act as a self-employed and independent contractor. The parties agree that the person authorised to purchase shall initially work part-time. He is neither an employee nor a commercial agent, franchisee or broker of FUMEE. There are no sales targets, acceptance or other activity obligations. With the exception of contractual obligations, the authorized buyer is not subject to any instructions from FUMEE and bears the full entrepreneurial risk of his business activities, including the obligation to bear all business costs. The person authorised to purchase shall set up and operate his business – as far as necessary – in the sense of a prudent businessman, which also includes – as far as necessary – the operation of his own offices or a workplace managed in the sense of a prudent businessman.
(2) As an independent entrepreneur, the person authorised to purchase is responsible for compliance with the relevant legal provisions, including tax and social law requirements (e.g. obtaining a VAT identification number or registering his employees with the social security authorities, as well as for obtaining a trade licence, if necessary). In this respect, the person authorised to purchase assures that all resale and commission income that he/she generates in the course of his/her activities for FUMEE is duly taxed at his/her place of business. FUMEE reserves the right to deduct the respective amount for taxes and duties from the agreed commission or to claim damages or reimbursement of expenses, which it incurs due to a violation of the aforementioned requirements, unless the authorized buyer is not responsible for the damage or expense. FUMEE will not pay any social security contributions under the ASVG (or other legal requirements) for the person entitled to purchase.
- 5 Voluntary contractual cancellation policy
You register with FUMEE as an entrepreneur and not as a consumer, so that you have no legal right of withdrawal. Nevertheless, FUMEE grants you the following voluntary 14-day contractual right of withdrawal.
Voluntary right of withdrawal
You may revoke your contractual declaration within 14 days without stating reasons in text form (by letter or e-mail) to the address or e-mail address stated in § 1. The period begins with the transmission of the application for authorisation to purchase. The timely dispatch (date of the postmark/e-mail) of the revocation suffices to comply with the revocation period.
Consequences of withdrawal:
After your revocation, you may return to FUMEE all unopened and resaleable goods purchased as a buyer and other services subject to charges against reimbursement of the full payments made for them. The return must be at the expense and risk of the person entitled to purchase. After receipt of the returned goods and inspection of the same for freedom from defects, unopened and resalability, the purchase price will be refunded at 100%.
A person entitled to purchase can register again with FUMEE through another sponsor after the revocation of his old position. The prerequisite is that the revocation for the old position of the person entitled to purchase was made at least 12 months ago and the revoking person entitled to purchase has not performed any activities for FUMEE during this time.
- 6 Use of the back office and landing page
(1) With the registration and purchase of the starter set, the person entitled to purchase acquires a right to use the back office and landing page made available to him.
(2) The right of use of the Back Office and the Landing Page made available to him is a simple, non-transferable right of use relating to the specific Back Office and the Landing Page; the Purchasing Party shall have no right to change, edit or otherwise alter the Back Office and the Landing Page, nor shall he have any right to grant sublicenses.
- 7 Obligations of the person authorised to purchase
(1) The person authorised to purchase is obliged to protect his or her personal passwords and login IDs from access by third parties and must notify FUMEE immediately of any changes to his or her contractual data.
(2) The person authorised to purchase is prohibited from violating competition law in his activities, infringing the rights of FUMEE, its authorised to purchase, affiliated companies or other third parties, harassing third parties or otherwise violating applicable law. In particular, this includes the prohibition of misleading advertising, unauthorised telephone advertising and the sending of unsolicited and unapproved advertising e-mails, advertising faxes or advertising SMS (spam), as well as social media spam or other unauthorised forms of messages.
(3) Special advertising guidelines
(a) The person entitled to purchase may only provide true information about his income or the earning potential of FUMEE making and may under no circumstances place his own income in the foreground of advertising. He is forbidden to make cheques, back-office statements or any other actions praising his income in the context of advertising his activity for FUMEE or initiation talks, just as he is not allowed to boast about his own wealth in the context of recruiting new authorised buyers and/or to use “status symbols” emphasising wealth (e.g. luxury cars, houses or watches) in advertising material. Rather, there is always the obligation to expressly point out to potential authorised buyers in the course of initial talks that it is only possible to generate income through very intensive and continuous work.
(b) Distribution and marketing acts shall not simulate commissions that are to be understood as “head premiums” or other commissions in connection with the mere recruitment of a new buyer or otherwise act to create the appearance that the advertised distribution system is an illegal distribution system, namely an illegal progressive snowball or pyramid scheme or any other fraudulent distribution system. It must not be given the impression that the purchase of goods is necessary in order for a person entitled to purchase to be able to work for FUMEE.
(c) distribution and marketing activities must not be aimed at minors or persons inexperienced in business and must in no way take advantage of their age, illness or limited capacity to understand in order to induce consumers to conclude a contract In the case of contact with so-called socially disadvantaged or foreign-language population groups, the persons entitled to purchase will take due account of their financial capacity and their ability to understand and speak the language, and will in particular refrain from doing anything which might induce members of such groups to place orders which are not appropriate to their circumstances.
(d) No distribution and marketing actions shall be undertaken which are unreasonable, illegal, unsafe or put undue pressure on the selected consumers.
(e) Authorised buyers will only refer to letters of recommendation, test results, references or other persons for business purposes vis-à-vis the consumer if they are officially authorised by both the referencing party and FUMEE and if these are accurate and not outdated. Furthermore, letters of recommendation, tests and personal references must always be related to the intended purpose
(f) The consumer is not induced to buy goods by dubious and/or misleading promises, or by promises of special benefits, if these benefits are linked to future, uncertain outcomes. The persons entitled to purchase will refrain from doing anything that could lead the consumer to accept the offer made solely in order to do the supplier a personal favour, to end an unwanted conversation or to enjoy an advantage that is not the subject of the offer or to show their appreciation for giving such an advantage.
(g) A person entitled to purchase may not claim that the earnings plan or the goods of FUMEE are approved or permitted or supported by a state authority or are classified as legally secure by a law firm.
(h) As a reseller, the person authorized to purchase undertakes to duly inform his customers about their right of revocation in compliance with the regulations for made-to-measure clothing, their rights as buyers and about the applicable data protection law and guarantees that personal customer data transmitted to FUMEE may be used by FUMEE for the production of made-to-measure clothing and other contractual services within the framework of the applicable data protection law, which includes in particular the possibly necessary obtaining of declarations of consent under data protection law from the customers of the person authorized to purchase.
(4) The use, production and distribution of own websites, sales documents, sales concepts, price lists, product samples, own product brochures, video content, audio content, the creation of own internet presences, including professional social media business presences or other independently created sales or advertising material, as well as the modification of the landing page made available to the person entitled to purchase, is only permitted with the prior express written consent of FUMEE, which is at the free discretion of FUMEE. It is always prohibited to operate an Internet site, an Internet portal, a social media presence or any other online application with several authorised buyers. In the event that the person authorized to purchase FUMEE goods in other Internet media, such as social networks (e.g. Facebook or Instagram), online blogs or chat rooms (e.g. WhatsApp, Slack or Snapchat), he/she may only ever use the official FUMEE advertising statements, he/she must identify him/herself in an easily recognisable manner with his/her full name (anonymous or pseudonymous postings are prohibited) and may not provide any information about his/her income or earning opportunities at FUMEE or advertise for employment at FUMEE as an employee or similar, just as he/she may only carry out social media advertising within the framework of his/her own private social media channels on the side and in addition and may not create professional social media business appearances. Goods may only be sold via the “landing pages” provided by FUMEE.
(5) The goods of FUMEE may be presented and sold revocably within the framework of the applicable law in four- or more eye talks, at home parties, online home parties, online network events and/or in online conferences by the person entitled to purchase. The goods of FUMEE may not be offered at other sales locations, in particular retail shops (such as supermarkets), Internet trading platforms such as eBay, Amazon, in television sales shows, via telemarketing, teletext marketing or via comparable sales channels.
(6) It is always prohibited for the authorized buyer to sell or otherwise distribute his own marketing and/or sales documents, training or lead generation tools or other services related to the FUMEE business to other authorized buyers of FUMEE.
(7) The goods may also be presented by the person authorised to purchase at trade fairs and exhibitions with the written consent of FUMEE.
(8) The person authorised to purchase may not give the impression in business dealings that he is acting on behalf or in the name of FUMEE. Rather, he is obliged to present himself as an “independent FUMEE purchasing agent”. Internet homepages, letterheads, business cards, car lettering as well as advertisements, promotional material and the like must always bear the words “independent FUMEE buyer” and may not contain the FUMEE trademark and/or the trademarks, work titles, business names and other marks of FUMEE without prior, express, written consent. Furthermore, the person authorized to purchase is prohibited to apply for and take out loans in the name of FUMEE for or in the interest of or on behalf of the aforementioned companies, to make expenditures, enter into obligations, open bank accounts, conclude other contracts or otherwise make binding declarations of intent. The person authorized to purchase is not granted a power of collection, nor is he authorized to represent FUMEE towards third parties. Likewise, the person authorised to purchase is not responsible for the fulfilment of the liability from a brokered transaction.
(9) The person entitled to purchase is not entitled in the course of business to name brands of competing companies in a negative, derogatory or otherwise unlawful manner or to evaluate other companies in a negative or derogatory manner or to use negative, derogatory or otherwise unlawful evaluations to entice away persons entitled to purchase from other companies.
(10) All presentation, advertising, training and film materials, product labels etc. shall be returned to the customer. (including photographs) of FUMEE are protected by copyright. They may not be reproduced, distributed, made publicly accessible or processed, either in whole or in part, without the prior express written consent of FUMEE.
(11) The use of the FUMEE label and/or the brands, work titles and business designations and other labels of FUMEE are also only permitted with express prior written consent. This also applies to the registration of Internet domains. FUMEE may demand that internet domains using the name FUMEE and/or the trademarks, work titles and business designations and other distinctive signs of FUMEE and the use of which has not been approved by FUMEE in writing, be deleted and/or transferred to FUMEE. The pure takeover costs of the providers but not other costs or a license or other compensation for the domain will be borne by FUMEE in the event of takeover. It is also prohibited to apply for own trademarks, work titles or other industrial property rights, which contain a trademark, product name, work title or business name of FUMEE that may be registered or otherwise protected in another country/area. The aforementioned prohibition applies to both identical and similar signs or goods. It is also forbidden to use trademarks, brands, work titles or other industrial property rights of FUMEE in so-called search engine advertising (e.g. GoogleAdWords), sponsored links advertising or comparable online advertising actions. Finally, the refilling and/or repackaging of FUMEE’s goods is also prohibited.
(12) A person entitled to purchase can register again with FUMEE after having cancelled his old position. The prerequisite is that the cancellation and the confirmation of cancellation by FUMEE for the old position of the person entitled to purchase was made at least 12 months ago and the cancelling person entitled to purchase has not performed any activities for FUMEE during this time.
(13) The person entitled to purchase is not permitted to answer press enquiries about FUMEE, its goods, the FUMEE earnings plan or other FUMEE services. The person entitled to purchase is obliged to forward all press enquiries to FUMEE without delay.
(14) The person authorised to purchase undertakes – as far as possible – to ensure that the customer data obtained through sales performance is used exclusively within the scope of his activity for FUMEE and in particular is not passed on and/or used to other third parties or for services of third parties.
(15) The person entitled to purchase may only advertise and distribute services for FUMEE or acquire new persons entitled to purchase in such states that have been officially opened by FUMEE. It is not allowed to act as a FUMEE branch, importer or exporter or similar in a state or to establish corresponding business enterprises.
(16) Persons entitled to purchase may not give gifts or other benefits to employees of FUMEE.
(17) FUMEE enables the person entitled to purchase to acquire the goods for business resale and for personal use or the needs of family members. Under no circumstances may the person entitled to purchase himself/herself or his/her family members or other persons entitled to purchase cause products to be purchased or kept in stock in larger quantities that unreasonably exceed the usual business and personal use within a household.
(18) The person authorised to purchase will notify the place, time and content of promotional events aimed at the general public to FUMEE in good time before the invitation is published. FUMEE may demand changes or even the abandonment of the event if this is necessary in the interest of the company and the FUMEE sales organisation together with its members.
(19) The use of premium rate numbers to market the activity or products of FUMEE is not permitted.
(20) In his own interest and in order to secure his commission claims, the person entitled to purchase is recommended to inform FUMEE as promptly and truthfully as possible of any violations of the rules of the General Contract Partner Terms and the FUMEE Code of Conduct as well as all other provisions of the company.
(21) In his own interest, the authorized buyer is recommended to secure his commission claims by supporting his downline or other authorized buyers and customers entrusted to him, by providing sales advice and product selection, by ensuring the flow of information from FUMEE to his downline and by forwarding event information and sales instructions from FUMEE within his downline as quickly as possible.
- 8 Non-competition / poaching
(1) The person authorised to purchase is permitted to distribute goods and/or services for other companies, including network marketing companies, party distribution companies or other direct distribution companies, even if they are competitors. The person entitled to purchase has to inform FUMEE in case of sales activities for other direct sales companies
(2) Notwithstanding the permission formulated in paragraph 1, the person authorised to purchase is not permitted to distribute products or services of other companies, as well as advertising material and comparable content for the operation of the FUMEE business, to other FUMEE authorised buyers.
(3) Insofar as the person authorised to purchase is simultaneously active for several companies, including network marketing companies, party sales companies or other direct sales companies, he undertakes to structure the respective activity (together with his respective downline) in such a way that no connection or mixing with his activity occurs for the other company. In particular, the person authorised to purchase products other than FUMEE products may not offer or advertise at the same time, in the same place or in the immediate vicinity or on the same Internet site, Facebook page, other social media platform, Internet platform, own offline sales event or company event.
(4) In addition, the person entitled to purchase is prohibited from enticing away or attempting to entice away other FUMEE authorised buyers and customers of FUMEE for the distribution of other products.
(5) The party entitled to purchase shall also be prohibited from violating other agreements with other companies entitled to purchase or other distribution agreements, which he has concluded with other companies and whose clauses still have effect, by concluding a contractual partner agreement.
- 9 Confidentiality
The person authorised to purchase must maintain absolute secrecy about FUMEE’s business and trade secrets and about its structure. The business and trade secrets and at the same time property rights of FUMEE include in particular the information on downline activities and placements, as well as the downline genealogy and the information contained therein, the data of persons entitled to purchase, customers and contractual partners, as well as the information on business relations of FUMEE and its affiliated companies and other providers and suppliers. This obligation continues even after termination of the contract partner contract.
- 10 Protection of Authorised buyers / Prohibition of Crossline Sponsoring and Bonus Manipulation
(1) To that active Purchasing Authorized Party who acquires a new Purchasing Authorized Party for the first time for a distribution of FUMEE products, the new Purchasing Authorized Party shall be assigned to its structure in accordance with the Earnings Plan and the placement requirements regulated therein (contractual partner protection), whereby the date and time of receipt of the registration application from the new Purchasing Authorized Party by FUMEE shall apply for the assignment. It is not possible to change the “seed position” of a directly or indirectly sponsored authorised authorised buyer.
(2) FUMEE has the right to delete all personal data, including the e-mail address, of a sponsored eligible authorised buyer from its system if mailings, cover letters or e-mails with the notations “moved”, “deceased”, “not accepted”, “unknown” or similar are returned and the new recruited eligible authorised buyer or sponsor does not correct the incorrect data of the newly recruited eligible authorised buyer within a reasonable period of 14 days. If FUMEE incurs costs due to undeliverable advertising mail and parcels, it is entitled to claim back the costs, unless the faulty delivery was not caused by its own fault.
(3) Furthermore, crossline sponsoring and any attempt to do so within the company is prohibited. Crossline sponsoring means the acquisition of a natural person or corporation or a partnership that is already an authorised buyer for FUMEE in another distribution chain or has had a contract partner agreement within the last 12 months. In this respect, it is also prohibited to use the name of the spouse of the person entitled to purchase, relatives, trade names, corporations, partnerships, trust companies or other third parties in order to circumvent this provision.
(4) Bonus manipulations are prohibited. This includes in particular the sponsoring of persons entitled to make purchases, who actually do not carry out the FUMEE business at all (so-called straw men), as well as open or veiled multiple registrations, insofar as this is prohibited. In this respect, it is also prohibited to use the name of the spouse of the person entitled to purchase, relatives, trade names, corporations, partnerships, trust companies or other third parties in order to circumvent this provision. It is also prohibited to induce third parties to sell or purchase goods in order to achieve a better position in the earnings plan, to manipulate the group bonus or to otherwise manipulate the bonus.
- 11 Warning, contractual penalty, compensation for damages, release from liability
(1) In the event of a first violation of the obligations of the person entitled to purchase as regulated in § 7, a written warning shall be issued by FUMEE, setting a deadline of 10 days to remedy the violation of obligations. The person entitled to purchase undertakes to reimburse the costs of the warning, in particular the lawyer’s fees incurred for the warning.
(2) Express reference is made to § 16 paragraph (2), according to which FUMEE is entitled to extraordinary termination without prior warning in the event of a breach of the obligations regulated in §§ 8, 9 and 10 (3) and (4), 18 (2) and 19, as well as in the event of a particularly serious breach of the obligations regulated in § 7, other applicable contractual or statutory law, but is also entitled to take the measures pursuant to § 11 (1) at its own discretion in the event of a first breach of obligations. Irrespective of the right of immediate extraordinary termination regulated in § 16 (2), FUMEE has the right in individual cases, in the event of one of the aforementioned breaches of duty, to issue a warning notice in the sense of paragraph (1) at its own free discretion before issuing the extraordinary termination notice, even with a shortened deadline for rectification.
(3) If the same or a similar violation occurs again after the expiration of the time limit set by the warning, or if the original violation is not remedied, a contractual penalty at the discretion of FUMEE and, in case of dispute, to be examined by the competent court shall be due immediately. For the assertion of the contractual penalty, further legal fees are also incurred, which the person entitled to purchase is obliged to reimburse.
(4) Notwithstanding the contractual penalty incurred, the person entitled to purchase shall also be liable for all damages incurred by FUMEE as a result of a breach of duty by the person entitled to purchase, unless the person entitled to purchase is not responsible for the breach of duty.
(5) The person authorized to purchase shall indemnify FUMEE from liability in the event of a claim by a third party, due to a breach of one of the contractually regulated obligations or any other breach of applicable law by the person authorized to purchase, upon the first request of FUMEE. In particular, the authorized buyer undertakes in this respect to assume all costs, in particular lawyer’s fees, court costs and damages, which FUMEE incurs in this connection.
- 12 No territorial protection
The person entitled to purchase is not entitled to territorial protection.
- 13 Advertising materials, grants
All free advertising material and other benefits from FUMEE can be revoked at any time with effect for the future.
- 14 Remuneration, commissions and accounting
(1) As remuneration, the person entitled to purchase as an independent reseller receives a commission on the product sales turnover of his downline, in addition to the profit margin from the difference between the purchase price of the person entitled to purchase and the recommended sales price, if he has achieved the required qualifications. All remuneration and commission claims result from the respectively valid earnings plan, which the authorised buyer can call up in his back office and which can be viewed in the back office. The payment of the remuneration covers all costs incurred by the person entitled to purchase for the maintenance and execution of his business, unless they have been separately agreed by contract.
(2) A successful brokerage in the sense of (1) of this contract is only deemed to exist if the contractual relationship between the customer and FUMEE has been effectively established and the customer has not revoked his request to conclude a contract, in particular in accordance with the provisions on distance selling or door-to-door business. Furthermore, a claim for remuneration only arises when the payment by the customer has been credited to the account of FUMEE and all other conditions for payment are met.
(3) A claim for commission shall not arise in particular if
a.) the customer makes use of his right of withdrawal,
b.) the contract is legally challenged by the customer or a withdrawal from the contract takes place,
c.) the customer order has been placed unlawfully,
d.) FUMEE refuses to accept the contract,
e.) incorrect and incomplete customer orders are submitted.
In addition, in cases of fraudulent mediation, either through fraudulent or abusive measures by the customer, the person entitled to purchase or his vicarious agents, no claim for commission arises.
(4) FUMEE reserves the right to request the person entitled to purchase to prove his identity (or in the case of corporations or partnerships, that of the person(s) acting) by sending a copy of his identity card or passport and trade licence by e-mail (as PDF) or post to FUMEE before commissions are paid for the first time. In the case of corporations or partnerships (if entered in the commercial register) or registered traders, FUMEE also reserves the right to submit a copy of the current extract from the commercial register (not older than one month). Decisive for the time of receipt of the proof of identity is the confirmation of receipt by FUMEE, not the sending of a document.
(5) The person authorised to make purchases is initially listed as a small trader with FUMEE, so that the value added tax (VAT) is not shown. He will inform FUMEE immediately by communicating his tax number and by presenting a confirmation from the tax office responsible for him as soon as he opts to pay value added tax (VAT) within the scope of his commercial activities or if he exceeds the small business limits or if he otherwise has a VAT identification number. As soon as a person entitled to purchase has a VAT identification number, the payment of the remuneration plus VAT (value added tax) will be made.
(6) As a rule, commissions of the person entitled to purchase shall be paid out on the 16th of the following month (if on working days) at the latest by the end of the following month and can, unless a different account has been expressly accepted separately in writing by FUMEE, only be paid out to accounts in his name or in the name of a partnership or a corporation that has a contractual relationship with FUMEE. Disbursements to subsidiaries or other third parties as well as disbursements to third-party accounts or to a bank account other than the registered bank account cannot be made.
(7) The parties agree that no claims for a higher commission than that on which this contract is based exist or can be asserted. The commission shall cover all claims of the party entitled to purchase, in particular all travel costs, expenses, office costs, telephone costs or other expenses for advertising materials, as well as all other costs incurred in connection with the performance of the contract. Payment of the remuneration in accordance with (1) also covers all services provided by the authorized buyer, in particular for the production and maintenance of the contractual partner’s portfolio, the customer base as well as the resulting future market potential and is in the sense of an advance payment for this, so that in the event of termination of the contract by either party for whatever reason, no compensation and/or compensation claims for whatever legal reason are to be paid by FUMEE. Express reference is made to § 16 (4).
(8) FUMEE is entitled to assert a right of retention within the scope of the statutory provisions. In addition, FUMEE is entitled to assert a right of retention due to the payment of commission if not all contractually or legally required documents are available prior to the first payment. In the event that FUMEE exercises the right of retention of commission payments, it is agreed that the person entitled to purchase is not entitled to interest for the period of the retention of commission.
(9) FUMEE is entitled to offset claims, to which FUMEE is entitled against the authorized buyer, also from the latter’s orders for goods, with the latter’s commission claims in whole or in part. The authorized buyer is entitled to offset if the counterclaims are undisputed or legally binding.
(10) Assignments and pledging of claims of the person entitled to purchase from contractual partner contracts are excluded, unless this is contrary to mandatory law. The contract may not be encumbered with third party rights unless this is contrary to mandatory law.
(11) The person authorised to purchase will check the issued invoices as soon as possible and notify FUMEE immediately of any objections. All commission claims shall result from the respectively valid earnings plan, which the person authorised to purchase can call up in his back office and which can be viewed in the back office. Incorrect commissions, bonuses or other payments must be reported to FUMEE in writing within 60 days of the incorrect payment. After this time, the commissions, bonuses or other payment are considered as approved.
(12) FUMEE reserves the right to transfer commissions only from a total amount of € 50.00. From reaching the minimum payout amount of € 50.00 up to the remuneration payout amount of € 140.00, the person entitled to purchase may choose whether he/she wishes to have the remuneration paid out or whether he/she will use the remuneration in its entirety for the purchase of goods (only partial use of the remuneration for the purchase of goods is expressly not permitted). If he/she wishes to receive payment, the person entitled to purchase may request payment in accordance with the instructions of the back office. As soon as the monthly remuneration amounts to at least € 140.00, the full payment of the remuneration shall automatically be made in accordance with § 14 paragraph (6). In the event that the minimum payment amount is not reached in one month, the commission claims shall not be transferred or credited in the following month, but may still be used for the purchase of goods.
- 15 Blocking the person entitled to purchase
(1) In the event that the person entitled to purchase does not provide the requested proofs [see e.g. § 14 paragraph (4)] within 30 days of becoming aware of the requirements for payment of remuneration or commission advances or other payments, FUMEE is entitled to temporarily block the person entitled to purchase in the FUMEE system until the required documents have been provided. The period of a block does not entitle the person entitled to purchase to extraordinary termination and does not cause a claim for repayment of the starter set already paid for or any other claim for damages, unless the person entitled to purchase is not responsible for the block.
(2) For each case of reminder of documents not provided pp. in the sense of (1) after the ban has been imposed, FUMEE is entitled to reimbursement of the costs required for this reminder.
(3) Remuneration or commission advances or other payments that cannot be paid out due to the above-mentioned reasons shall be booked by FUMEE as non-interest-bearing reserves and shall become time-barred at the latest within the statutory limitation periods.
(4) Irrespective of the reasons for blocking mentioned in paragraph (1), FUMEE reserves the right to block for an important reason. In particular, FUMEE reserves the right to block the access of the authorized buyer to the back office and other systems of FUMEE without notice if the authorized buyer violates his contractual obligations or other applicable law. The blocking shall remain in effect until the breach of duty is remedied following a corresponding warning from FUMEE. If it is a serious breach of duty that leads to an extraordinary termination of the contractual relationship, the block will remain in force permanently.
- 16 Duration of contract, termination of contract
(1) This contract is agreed for a period of 12 months. This Agreement shall be automatically extended by a further 12 months, provided that the Purchasing Authorised Party places at least one order in the 12 months and the Agreement is not duly terminated by either party with one month’s notice to the end of the Agreement. If at least one order is not placed in the 12 months, the contract shall end without the need for a separate termination.
(2) Irrespective of the reason for termination in (1), both parties shall have the right to terminate the contractual partner contract extraordinarily for an important reason. An important reason for termination by FUMEE exists if the party entitled to purchase is inactive for a period of 12 months (he does not make at least one order) and also in the event of a breach of one of the obligations regulated in § 7, if a party entitled to purchase does not comply with his obligation of elimination in the sense of § 11 paragraph (1) in a timely manner or if the same or a comparable breach occurs again at a later date after the elimination of the breach of obligation. In the event of a breach of the obligations regulated in §§ 8, 9 and 10 (3) and (4), 18 (2) or 19, as well as a particularly serious breach of the obligations regulated in § 7 or any other applicable contractual or legal right, FUMEE is entitled to extraordinary termination without prior warning. Furthermore, an extraordinary reason for termination exists for each party if insolvency proceedings have been opened against the other party, or if the opening has been rejected due to lack of assets, or if the other party is otherwise insolvent, or has made an affidavit of insolvency in the course of execution. The right to extraordinary termination shall be without prejudice to further claims.
(3) After termination of a contract by ordinary notice, a new contract may be concluded after a period of at least 12 months.
(4) Upon termination of the contract, the person entitled to purchase shall no longer be entitled to commission. This shall not apply to contracts already successfully brokered at this time. The right to these commissions remains unaffected. Furthermore, upon termination of the contract, the person entitled to purchase shall no longer be entitled to compensation from the commercial agent, as the person entitled to purchase pursuant to § 4 (1) is not a commercial agent within the meaning of the German Commercial Code.
(5) Notices of termination shall only be accepted in written form, whereby an ordinary notice of termination can also be sent by e-mail.
(6) If a person entitled to purchase simultaneously claims other services from FUMEE independent of the contractual partner contract, these services remain unaffected by the termination of the contractual partner contract, unless the person entitled to purchase also expressly demands their termination with the termination. If the authorized buyer continues to purchase services from FUMEE after termination of the contract, he will be treated as a normal customer.
- 17 Data protection obligations of the person authorised to purchase
The person authorised to purchase is forbidden to pass on, store or use the personal or customer-specific data of other persons authorised to purchase and customers that come to his knowledge to third parties beyond the contractual rights and/or specifications.
- 18 Transfer of business operations / transfer of the sponsored structure to third parties / death of the person entitled to purchase
(1) FUMEE may transfer its business operations in whole or in part or individual assets to third parties at any time, provided that the acquirer complies with the applicable law.
(2) If a new corporation or partnership registered as a party entitled to purchase wants to take in a new partner, this is possible up to a transfer of 20% of the company shares, provided that the previous partner(s) who applied for the contractual partnership also remain partners. If a partner wishes to withdraw from the corporation or partnership registered as a party entitled to purchase, or if the shares of one or more partners are to be transferred to third parties in an amount of more than 20 %, this action is only permitted upon written application, if necessary upon presentation of the corresponding notarial deed and in accordance with the provisions of this contract, and only with prior written consent, which is at the free discretion of FUMEE. FUMEE charges an administrative fee of 25.00 € for the processing of the aforementioned application. If this requirement is not complied with, FUMEE reserves the right to extraordinary termination of the contract of the corporation or partnership registered as the person entitled to purchase.
(3) A transfer of the distribution structure is only permitted after the conclusion of a separate supplementary agreement for executives and in accordance with the provisions set out therein.
(4) The contractual partner contract ends at the latest with the death of the person authorised to purchase. The contractual partner agreement may be inherited subject to compliance with the legal requirements. A new contractual partner agreement must be concluded with the heir(s) within 6 months of the death, through which he/she enters into the rights and obligations of the testator. If the heir or one of the heirs is already registered as a natural person with FUMEE as the person entitled to purchase, the heir must give up his previous position in the distribution structure of FUMEE, as only one position in the earnings plan may be awarded per natural person. The death must be documented by a death certificate. If there is a will on the inheritance of the contractual agreement, a notarised copy of the will must be submitted. After the six-month period has elapsed unused, all rights and obligations from the contract are transferred to FUMEE.
(5) In the event that a person entitled to purchase wishes to carry out his or her activity in the future under a different name, through a corporation, partnership, as a married couple, as a registered civil partnership or from other formation in the future under a different designation, this is only possible upon application, whereby FUMEE is entitled to reject the application at its free discretion.
- 19 Disconnection / resolution
In the event that a person entitled to purchase registered as a married couple/registered partnership, corporation or partnership terminates his or her company internally, it shall apply that even after the separation, dissolution or other termination, one of the aforementioned companies shall only retain one contractual partner position. The separating spouses/members/partners must agree internally by which spouse/member/partner the contractual partnership is to be continued and notify this to FUMEE by means of a written notification signed by both parties and certified by a notary public or by presenting a corresponding court order. In the event of an internal dispute about the consequences of separation, divorce, dissolution, or other termination in relation to the contractual partnership at FUMEE, FUMEE reserves the right to extraordinary termination, if such a dispute leads to neglect of the obligations of the person entitled to purchase, to a violation of these General Contractual Partner Consultant Terms, to a violation of applicable law or to an unreasonable burden on the down- or upline.
- 20 Consent to use photographic and audiovisual material, use of recordings of materials and presentations
(1) The person entitled to purchase grants FUMEE free of charge the right to record or execute photographic and/or audiovisual material with his or her portrait, voice recordings or statements and quotations from him or her in the context of his or her function as a person entitled to purchase. In this respect, the authorized buyer expressly consents to the publication, use, duplication and modification of his quotations, recordings or recordings by transmitting the contractual partner application and taking note of these general contractual partner terms.
(2) The person authorised to purchase is not permitted to make audio, video or other recordings of events sponsored by FUMEE, as well as conference calls, speeches or meetings, for the purpose of sale or for personal or business use. Furthermore, a person entitled to purchase may not record, prepare or compile audio or video presentations or recordings of FUMEE events, speeches, telephone conferences or meetings without the prior written consent of FUMEE.
- 21 Data protection regulations
The following data protection provisions of FUMEE apply, which can be accessed here by the person authorized to purchase and which he/she also confirms as having taken note of and accepted as an integral part of the contract by sending his/her application for authorization to purchase:
The protection of your personal data is of particular concern to us. We therefore process your data exclusively on the basis of the statutory provisions and in compliance with the relevant data protection regulations. The responsible body within the meaning of the data protection laws is
Fúmée Perfume & Cosmetics GmbH
v.d.d. Managing Director Mr Walter Rauch
8511 St. Stefan ob Stainz/Austria
Phone: +43 (0) 3136 / 21 100
Fax: +43 0) 3136 / 21 100
(1) Purposes and legal bases of the processing of data
We collect personal data for the following purposes and legal bases of data processing. We process your personal data in compliance with the Basic Data Protection Regulation (DSGVO), the Federal Data Protection Act (BDSG-neu) and all other relevant laws.
(2) Storage of personal data
We store your personal data for as long as it is necessary to achieve the respective purpose of the processing or the storage is subject to a legal retention period. We store data that we process on the basis of your consent until you revoke your consent. We store data that we process in order to execute a contract with you for as long as the contractual relationship exists and, if necessary, beyond that if legal retention periods oblige us to do so. Data that we process on the basis of our legitimate interests will be stored as long as your interest in deleting the data does not outweigh our own.
(3) Data processing during the execution of a contract as a party entitled to purchase, transfer to third parties
We process the following personal data for the conclusion and implementation of a contract as a party entitled to purchase:
- First name
- Last name
- full address
- Date of birth
- Telephone number(s) Fixed network
- Mobile phone number(s)
- Fax number
- E-mail address(es)
necessary data for possible commission payments:
- Note on VAT eligibility (“Entitled to VAT” or “Small business
- Sales tax ID number
- Account holder
- Name of the bank
- Intended use
- further, mandatory information in connection with possible commission payments
other data relating to the activity of the person entitled to purchase:
- Distributor number assigned by FUMEE (“Number”)
- Country allocation according to the sales territory structure defined by FUMEE (“country allocation”)
- Date of commencement of my activity as authorised authorised buyer at FUMEE (“date of accession”)
- the rank achieved and the following rank according to the career levels achieved in the FUMEE merit order (“rank”)
- “Hash” of the password for the FUMEE sales partner application
- complete shipping address differing from the address
- further, absolutely necessary information in connection with my activity as a person entitled to purchase
- Sponsor assignment
- Recommendation assignment
- Position within the FUMEE structure tree
- Information on placed orders/orders
- Turnover and sales statistics (own and team)
Note: All data for the operation of the FUMEE sales partner application is stored on a server of Host Europe GmbH, Hansestraße 111, 51149 Cologne.
Should I wish to be named on the FUMEE website as a customer contact person, the following data will be mentioned in connection with my person:
- First and last name
- Place of residence or customer catchment area
- Telephone number(s) Fixed network
- Mobile phone number(s)
- E-mail address(es)
If the person entitled to purchase should obtain a management position within the FUMEE team or wish to act as a sponsor or manager, his name and contact details will be published and passed on within the team.
In addition, the data of the person authorised to purchase is passed on to the respective organisation manager (executive) so that he or she can view the data of the entire structure.
This data processing is necessary for the establishment and execution of the contract as the person entitled to purchase, in particular for the processing of commission payments and for the implementation of the sales structure. The legal basis for the processing of this data is Art. 6 para. 1 sentence 1 lit. b DSGVO.
(4) Processing of photographs and video recordings
For the purpose of public relations, FUMEE will process photos and video recordings of the persons entitled to purchase, stating the name of the person entitled to purchase, on its website, its official social media site as well as in selected online or print advertising media.
The legal basis for this data processing is Art. 6 para. 1 sentence 1 letter f) DSGVO.
(5) Your rights:
Persons entitled to purchase have the right as data subjects within the meaning of the DSGVO:
- to request information on the categories of data processed, the purposes of processing, any recipients of the data, the planned storage period (Art. 15 DSGVO);
- to demand the correction of incorrect or incomplete data (Art. 16 DSGVO);
- to revoke any consent granted at any time with effect for the future (Art. 7 para. 3 DSGVO);
- to object to data processing which is to be carried out on the basis of a legitimate interest, for reasons arising from your particular situation (Art. 21 para. 1 DSGVO);
- to demand the deletion of data in certain cases within the framework of Art. 17 DSGVO – in particular if the data is no longer required for the intended purpose or is processed illegally, or if you have revoked your consent or declared an objection;
- under certain conditions, to demand the restriction of the processing of data, insofar as deletion is not possible or the deletion obligation is disputed (Art. 18 DSGVO) to data transferability, i.e. you can receive your data that you have provided us with in a common machine-readable format such as CSV and, if necessary, transfer it to others (Art. 20 DSGVO).
To assert his rights, the person entitled to purchase contacts FUMEE.
If the person authorised to purchase is of the opinion that the processing of his or her data violates data protection law or his or her data protection rights have otherwise been violated, he or she may also contact the competent data protection supervisory authority, for example the data protection officer of his or her country:
(6) Data protection obligations of the person authorised to purchase:
- Within the scope of his activity as a party entitled to purchase, the party entitled to purchase is obliged to comply with and implement the respective applicable statutory provisions of data protection law, in particular the DSGVO. In particular, he is obliged to inform his customers in detail about how their personal data is processed. For this purpose, a valid “Declaration of Consent under Data Protection Law for the Use of Personal Customer Data” must be obtained from his own customers.
- The person authorised to purchase undertakes to inform his customers in detail that all personal customer data required for the execution of the contract will be used, electronically recorded, processed and stored by the person authorised to purchase for his own commercial activities. He is also obliged to inform the customers that their personal data is recorded, processed and stored in the electronic ordering system of FUMEE. FUMEE is thus granted all rights of use to these data.
- In addition, the person authorised to purchase will inform his customers in detail that personal customer data (e.g. body photos without face, sizes and measurement data etc.) will be forwarded to manufacturing companies and mail order companies cooperating with FUMEE or commissioned by FUMEE for the purpose of contract processing and that these third party companies will process these data in the context of order fulfilment. In doing so, the transfer of data will only be limited to the data required for the fulfilment of the contract.
- 22 Disclaimer of liability
(1) FUMEE is only liable for damages other than those resulting from injury to life, body and health if these are based on intentional or grossly negligent action or culpable violation of a fundamental contractual obligation (e.g. payment of commission) by FUMEE, its employees or vicarious agents. This also applies to damages resulting from the violation of obligations during contract negotiations as well as from the performance of unauthorized actions. Any further liability for damages is excluded.
(2) Except in the case of injury to life, body and health or intentional or grossly negligent conduct by FUMEE, its employees or vicarious agents, liability is limited to typically foreseeable damages at the time of conclusion of the contract and otherwise to the amount of average damages typical for the contract. This also applies to indirect damages, in particular loss of profit.
(3) FUMEE shall not be liable for damages of any kind resulting from data loss on the servers, except in the case of gross negligence or wilful misconduct of FUMEE, its employees or vicarious agents.
(4) Contents of the person authorised to purchase secured by FUMEE are foreign information for FUMEE in the sense of telemedia law and/or other applicable law.
- 23 Contractual, delivery and payment conditions for the purchase of goods for the purpose of resale
The following contractual, delivery and payment conditions apply to the sale of goods to authorised buyers who purchase these goods from FUMEE as entrepreneurs for the purpose of resale to their customers. All offers from FUMEE are subject to change. The other provisions laid down in these General Contracting Party Terms and Conditions apply, unless the offers expressly deviate from them.
(1) Offers, prices, conclusion of contract, contract language
- All orders placed by authorised buyers for the purpose of resale are based on the FUMEE price list valid at the time of ordering.
- Orders must be placed directly with FUMEE or a depot authorised by FUMEE.
- The presentation of the goods by FUMEE does not constitute a binding offer to purchase. Only by placing an order in writing, by e-mail or via the FUMEE order platform or by telephone, does the person authorized to purchase submit a binding, irrevocable offer to FUMEE to conclude a purchase contract. In the case of purchases via the FUMEE online shop, the person entitled to purchase shall only order the goods in the shopping cart by clicking on the button “Order with costs”. A contract is only concluded with the order confirmation or – if FUMEE refrains from sending a confirmation – with the handing over of the goods to the person authorised to purchase.
- If additional or increased charges are incurred between conclusion of the contract and delivery due to changed legal norms, FUMEE is entitled to increase the agreed purchase price accordingly.
- FUMEE is entitled to accept orders of the persons entitled to purchase only partially by making deviations or reservations. If the partial acceptance of the order is not acceptable for the persons entitled to purchase, the persons entitled to purchase are obliged to inform FUMEE in writing within three working days from the notification of the deviation or reservation. In this case, the contract is considered not to be concluded. Otherwise, the acceptance of the order shall be deemed to be approved by the person entitled to purchase.
- The contract language for orders from the back office is German.
(2) Delivery conditions, delivery times, availability
- The delivery is made from the manufacturer to the authorised authorised buyer, unless the end customer of the authorised authorised buyer orders goods via the online shop of the authorised authorised buyer – in which case the delivery is made directly from the manufacturer to the end customer of the authorised authorised buyer. Partial deliveries are permitted unless they are unreasonable for the authorised buyer. Compliance with the delivery obligation requires the timely and proper fulfilment of all cooperation obligations of the authorised buyer as the ordering party.
- Ordered goods are usually made available for dispatch within two to four working days of the order and handed over to the delivery company.
- With the handover of the goods to the shipping company, the risk is transferred to the person authorised to purchase, whereby the delivery of the goods is insured. FUMEE must be informed immediately of any damage to the goods caused by transport.
- The delivery address is the address which the person authorised to purchase has communicated as the “delivery address” in the context of his order. If FUMEE incurs additional delivery costs due to the provision of an incorrect delivery address or an incorrect addressee, these costs are to be reimbursed by the person authorised to purchase, unless he is not responsible for the incorrect information.
- If goods cannot be produced or cannot be delivered for other reasons, the person authorised to purchase shall have no claim to the fulfilment of his order. In such a case, FUMEE will fully refund the paid purchase price and the purchase contract will be cancelled. In individual cases, a replacement order may be agreed between the person authorized to purchase and FUMEE (e.g. for production of the goods from an alternative outer fabric).
(3) Shipping costs
- The countries supplied by FUMEE, as well as the respective shipping costs, can be found in the shipping information. The buyer can view the shipping information in the back office and in the online shop.
- All costs incurred within the scope of the delivery, in particular for packaging, transport insurance, as well as any import duties and/or customs duties that may be incurred, shall be borne by the party entitled to purchase, unless expressly agreed otherwise.
(4) Maturity of the purchase price, terms of payment, default, offsetting and right of retention
- The purchase price is due for payment immediately upon receipt of the invoice. This also applies to invoices for partial deliveries. Payment options are available to the person authorised to purchase: Prepayment, PayPal, immediate bank transfer (only in the online shop), credit card (only in the online shop). Partial payments are not possible.
- All prices are quoted in euros including the statutory value added tax applicable at the time of delivery and plus shipping costs and other costs (such as any customs duties that may be incurred).
- In the event of default, all liabilities of the person entitled to purchase towards FUMEE become due immediately. In the event of default in payment, the person entitled to purchase is obliged as an entrepreneur to pay default interest to FUMEE at a rate of 8% above the base rate.
- Irrespective of the minimum default damage mentioned in (c), FUMEE is at liberty to prove a higher default damage, as well as other damage.
- The person entitled to purchase is only entitled to offset if the counterclaims are undisputed or have been legally established. In addition, the party entitled to purchase may exercise a right of retention insofar as a counterclaim is based on the same contractual relationship.
(5) Reservation of title
- The goods remain the property of FUMEE until full payment has been received. If the service consists of divisible services, the reservation of title does not expire until all claims in connection with this order have been settled by the person entitled to purchase. In case of default of payment or other reasons in terms of the reservation of title, FUMEE is entitled to take back the goods. The taking back of the goods by FUMEE does not constitute a withdrawal from the contract, unless FUMEE has expressly declared this in writing. After taking back the goods, FUMEE is authorized to exploit them. The proceeds of the realization shall be credited against the liabilities of the person entitled to purchase – less reasonable realization costs.
- The person entitled to purchase may only sell the goods subject to retention of title in the ordinary course of business. The person entitled to purchase is not entitled to pledge the goods, to transfer them by way of security or to make other dispositions that endanger the property of FUMEE. The authorized authorised buyer hereby assigns to FUMEE the claim from the resale of the reserved goods; FUMEE hereby accepts this assignment. The authorized authorised buyer is revocably authorized to collect the claims assigned to FUMEE in trust for FUMEE in his own name. FUMEE may revoke this authorization, as well as the authorization for resale, if the person authorized to purchase is in default with essential obligations, such as payment, towards FUMEE. In case of revocation, FUMEE is entitled to collect the claim itself.
- In the event of seizure or other access by third parties to the goods delivered under reservation of title, the party entitled to purchase must inform FUMEE immediately in writing, handing over the documents necessary for an intervention (third-party action against execution according to 771 ZPO). This also applies to impairments of any other kind. Irrespective of this, the party entitled to purchase must inform the third parties in advance of the rights existing in the goods. Insofar as the third party is unable to reimburse the costs, the party entitled to purchase shall be liable for the judicial and extrajudicial costs of legal action.
- FUMEE undertakes to release the securities to which it is entitled at the request of the person entitled to purchase insofar as the realizable value of its securities exceeds the claims to be secured by more than 10%.
(6) Duty of inspection and notification of defects, warranty, liability for defects, limitation period
- With regard to the warranty, the statutory provisions shall apply unless otherwise agreed in (b) – (f).
- All made-to-measure articles are manufactured on the basis of the data and measurements provided by the person authorised to purchase within the scope of his order (design wishes, dimensions etc.). In this context, FUMEE is not obligated to inform the authorized buyer of incorrect dimensions; in particular, custom-made articles manufactured on the basis of incorrect dimensions do not constitute defective goods, for which the authorized buyer is entitled to warranty claims against FUMEE. Nor do fitting errors on the part of the customer, which occur despite implementation of the ordered dimensions, represent defects for which FUMEE is liable.
- The person entitled to purchase must inspect the goods immediately upon receipt and report any defects to FUMEE in writing or by e-mail (if necessary together with meaningful photographs of the defective goods) without delay, but at the latest within 7 working days of receipt. Otherwise the goods are considered as approved and liability for obvious defects is excluded.
- FUMEE is especially liable for the following defects:
- Incorrect implementation of the ordered design;
- Incorrect implementation of the dimensions ordered which exceed the applicable manufacturing tolerances according to the “FUMEE dimensional instructions”;
- Defects in the materials processed, such as upper and lining materials;
- obvious production faults, such as open
However, the following circumstances are not defects, so that FUMEE cannot accept any liability for them:
- Colour deviations from the product displays on the FUMEE website (these can occur due to the respective colour setting of the website visitor’s monitor with regard to brightness, contrast, etc.);
- Colour differences between two goods of the same material (due to variations in the bleaching process these can occur);
- Colour differences between goods of the same material from one order (these can occur due to the way the material is processed);
- Deviations from the simple product presentations (preview) on the FUMEE website.
- If the notification of defects is justified, FUMEE has the following options for remedying the defects:
- free replacement delivery against return of the defective goods. If the replacement delivery should finally fail through the fault of FUMEE, the person entitled to purchase has the right to cancel the contract within the framework of the legal requirements, to demand a reduction in price or compensation for damages or reimbursement of expenses. A replacement delivery shall be deemed to have failed after an unsuccessful second attempt, unless something else arises in particular from the type of goods or defect or other circumstances. If claims for damages or reimbursement of expenses are asserted, the liability of FUMEE is limited as described in 22 of these General Contract Partner Terms.
- Refund of part of the purchase price paid, after consultation with the person entitled to purchase, if the defect can be corrected by a resident alteration cutter.
- Granting a price discount if, for example, a design specification was not adhered to but the customer of the person entitled to purchase would accept the goods at a reduced price.
- The limitation period for claims under warranty for defects is 12 months from the date of delivery of the goods. This does not apply if the law (in particular according to § 478 BGB) prescribes longer periods. Furthermore, the shortened period of limitation shall not apply in the case of damages resulting from injury to life, body and health, the violation of essential contractual obligations (handover and transfer of ownership of the goods) and damages resulting from intentional or grossly negligent conduct. In this case, the statutory limitation regulations apply.
(7) Supplementary applicability of the General Contract Terms
In addition, the other General Contract Partner Conditions also apply to the sale of goods to persons authorised to purchase these goods as entrepreneurs for the purpose of resale to their customers who purchase from FUMEE.
- Section 24 Inclusion of the earnings plan
(1) The FUMEE earnings plan and the specifications contained therein are also an express component of the contractual partner contract. The person authorised to purchase must always comply with these specifications in accordance with the currently valid version.
(2) By sending the application for conclusion of the contractual partner contract to FUMEE, the person entitled to purchase assures at the same time that he has taken note of the FUMEE earnings plan and accepts it as an integral part of the contract.
- 25 Limitation period
(1) All claims arising from this contractual relationship shall become statute-barred for both parties within 12 months, insofar as this is legally permissible. The period of limitation begins with the due date of the claim or at the time the claim arises or is recognisable. Statutory regulations, which mandatorily provide for a longer limitation period, shall remain unaffected.
- 26 Applicable law/jurisdiction
(1) The law of FUMEE’s registered office shall apply, excluding the UN Convention on Contracts for the International Sale of Goods. Mandatory provisions of the state in which the person entitled to purchase has his habitual residence remain unaffected.
(2) If the person entitled to purchase is a merchant, a corporation under public law or a special fund under public law or has no general place of jurisdiction in Germany or moves his place of residence abroad after conclusion of the contract or his place of residence is unknown at the time of filing of action, the place of jurisdiction and place of performance is the registered office of FUMEE.
- Section 27 Final provisions
(1) FUMEE is entitled to amend this contract, these General Contract Partner Terms, its prices, commissions and/or the earnings plan, if this is necessary for economic reasons or legal changes. FUMEE will announce changes with a period of notice of at least two months before the change comes into effect, with concrete designation of the future contract change in the back office of the person entitled to purchase. The person entitled to purchase has the right to object to the amendment or to terminate the contract in text form without observing a period of notice before the amendment comes into force. In case of objection, FUMEE is entitled to terminate the contract in due form. If the person entitled to purchase does not terminate the contract or does not object to the change until the change comes into force, the changes will come into force from the date stated in the change announcement. FUMEE is obliged to inform the person entitled to purchase about the importance of his silence in the change announcement made in the back office.
(2) In all other respects, amendments or supplements to these General Contract Terms and Conditions must be made in writing. This shall also apply to the cancellation of the written form requirement.
(3) If these General Terms and Conditions of Contract are translated into another language and there are contradictions in any provision between the German and the translated version of the General Terms and Conditions of Contract, the German version shall always prevail.
(4) If the person authorised to purchase has questions about his or her activity, the distribution system or the goods of FUMEE, his or her personal sponsor is available to him or her for this purpose, in addition to your manager and FUMEE.
(4) In the event of invalidity or incompleteness of a clause of these General Contract Terms, the entire contract shall not be invalid. Rather, the ineffective clause shall be replaced by one that is effective and comes closest to the economic purpose of the ineffective clause. The same shall apply in the event that a gap requiring regulation is closed.
Legal representation: SBS Legal Rechtsanwälte Schulenberg & Partner, Hans-Henny-Jahnn-Weg 49, DE-22085 Hamburg
Status of the General Contract Terms: 30.06.2020