Table of Contents
- Scope of Application
- Conclusion of the Contract
- Right to Cancel
- Prices and Payment Conditions
- Shipment and Delivery Conditions
- Granting Rights of Use for Digital Content
- Granting Rights of Use for License Keys
- Reservation of Proprietary Rights
- Redemption of Gift Vouchers
- Redemption of Campaign Vouchers
- Applicable Law
- Place of Jurisdiction
- Alternative Dispute Resolution
1) Scope of Application
1.1 These General Terms and Conditions (hereinafter referred to as GTC) of the company h&m gutberlet GmbH (hereinafter referred to as "Seller”) shall apply to all contracts concluded between a consumer or a trader (hereinafter referred to as "Client”) and the Seller relating to all goods and/or services presented in the Seller's online shop. The inclusion of the Client’s own conditions is herewith objected to, unless other terms have been stipulated.
1.2 Regarding contracts for the delivery of vouchers, these GTC apply accordingly, unless expressly regulated otherwise.
1.3 For contracts regarding the delivery of vouchers, these Terms and Conditions shall apply accordingly, unless expressly agreed otherwise.
1.4 A consumer pursuant to these GTC is any natural person concluding a legal transaction for a purpose attributed neither to a mainly commercial nor a self-employed occupational activity.
1.5 A trader pursuant to these GTC is any natural or legal person or partnership with legal capacity acting in the performance of a commercial or self-employed occupational activity when concluding a legal transaction.
2) Conclusion of the Contract
2.1 The product descriptions in the Seller’s online shop do not constitute binding offers on the part of the Seller, but are merely descriptions which allow the Client to submit a binding offer.
2.2 The Client may submit the offer via the online order form integrated into the Seller's online shop. In doing so, after having placed the selected goods and/or services in the virtual basket and passed through the ordering process, and by clicking the button finalizing the order process, the Client submits a legally binding offer of contract with regard to the goods and/or services contained in the virtual basket.
2.3 The Seller may accept the Client’s offer within five days,
- by transferring a written order confirmation or an order confirmation in written form (fax or e-mail), insofar as receipt of order confirmation by the Client is decisive, or
- by delivering ordered goods to the Client, insofar as receipt of goods by the Client is decisive, or
- by requesting the Client to pay after placing his order.
The contract shall be concluded at the time when one of the aforementioned alternatives firstly occurs. Should the Seller not accept the Client's offer within the aforementioned period of time, this shall be deemed as rejecting the offer, with the effect that the Client is no longer bound by his statement of intent.
2.5 When submitting an offer via the Seller's online order form, the text of the contract is stored by the Seller after the contract has been concluded and transmitted to the Client in text form (e.g. e-mail, fax or letter) after the order has been sent. The Seller shall not make the contract text accessible beyond this. If the Client has set up a user account in the Seller's online shop prior to sending his order, the order data shall be stored on the Seller's website and can be accessed by the Client free of charge via his password-protected user account by specifying the corresponding login data.
2.6 Prior to submitting a binding order via the Seller’s online order form, the Client may recognize input errors by attentively reading the information displayed on the screen. Use of the enlargement function of the browser to enlarge the display on the screen may be an effective method for better recognizing input errors.
The Client can correct all the data entered via the usual keyboard and mouse function during the electronic ordering process, until he clicks the button finalizing the ordering process.
2.7 The German and the English language are exclusively available for the conclusion of the contract.
2.8 Order processing and contacting usually take place via e-mail and automated order processing. It is the Client’s responsibility to ensure that the e-mail address he provides for the order processing is accurate so that e-mails sent by the Seller can be received at this address. In particular, it is the Client`s responsibility, if SPAM filters are used, to ensure that all e-mails sent by the Seller or by third parties commissioned by the Seller with the order processing can be delivered.
3) Right to Cancel
3.1 Consumers are entitled to the right to cancel.
3.2 Detailed information about the right to cancel is provided in the Seller’s instruction on cancellation.
4) Prices and Payment Conditions
4.1 Unless otherwise stated in the product descriptions, prices indicated are total prices and include the statutory value-added tax. Any possible additional delivery and dispatch costs are specified separately in the respective product description.
4.2 Payment can be made using one of the methods mentioned in the Seller’s online shop.
4.3 In case of delivery to countries outside the European Union, additional costs may be incurred in individual cases for which the Seller is not responsible and which have to be borne by the Client. This includes, for example, transfer fees charged by banking institutes (transfer charges, exchange fees) or import duties or taxes (customs). Such additional costs regarding money transfer may also be incurred, if the Client carries out the payment from a country outside the European Union, even if delivery is not made in a country outside the European Union.
4.4 If prepayment by bank transfer has been agreed upon, payment is due immediately after conclusion of the contract, unless the parties have arranged a later maturity date
4.5 If a payment method offered via the payment service "Unzer" is selected, the payment shall be processed via the payment service provider Unzer GmbH, Vangerowstraße 18, 69115 Heidelberg, Germany (hereinafter: "Unzer"). The individual payment methods offered via Unzer are communicated to the customer in the seller's online shop. For the processing of payments, Unzer may use the services of third party payment service providers, for which special payment conditions may apply, to which the customer may be informed separately. Further information on "Unzer" is available on the Internet at https://www.unzer.com
4.6 If the payment method "immediate bank transfer" is selected, payment processing is carried out via the payment service provider SOFORT GmbH, Theresienhöhe 12,80339 Munich (hereinafter referred to as "SOFORT"). In order to be able to pay the invoice amount via “immediate bank transfer,” the Client must have an online banking account that is activated for participation in “immediate bank transfer,” he must have the appropriate credentials during the payment process, and he must confirm the payment instruction to SOFORT. The payment transaction will be executed immediately afterwards and the Client’s bank account debited accordingly. Further information on the payment method “immediate bank transfer” can be called up by the Client on the Internet at https://www.klarna.com
5) Shipment and Delivery Conditions
5.1 If the Seller offers to ship the goods, delivery shall be made within the delivery area specified by the Seller to the delivery address specified by the Client unless otherwise agreed. When processing the transaction, the delivery address specified in the Seller's order processing shall be decisive. Deviating from this, if the payment method PayPal is selected, the delivery address deposited by the Client with PayPal at the time of payment shall be decisive.
5.2 Should the assigned transport company return the goods to the Seller, because delivery to the Client was not possible, the Client bears the costs for the unsuccessful dispatch. This shall not apply, if the Client exercises his right to cancel effectively, if the delivery cannot be made due to circumstances beyond the Client's control, or if he has been temporarily impeded from receiving the offered service, unless the Seller has notified the Client for a reasonable time in advance about the service.
5.3 In case the Client is a trader, the risk of accidental destruction and accidental deterioration of the sold goods shall be transferred to the Client upon delivery of the goods to the freight forwarder, carrier or other person or institution designated with the task of performing shipment. In case the Client is a consumer, the risk of accidental destruction and accidental deterioration of the sold goods shall in principle be transferred to the Client upon delivery of the goods to the Client or to an authorized recipient. Deviating from this, even in case the Client is a consumer, the risk of accidental destruction and accidental deterioration of the sold goods is transferred to the Client upon delivery of the goods to the freight forwarder, carrier or other person or institution designated with the task of performing shipment, if the Client has instructed the freight forwarder, carrier or other person or institution designated with the task of performing shipment to carry out the delivery of the goods and if the choice of this person or institution was not previously offered by the Seller.
5.4 The Seller reserves the right to withdraw from the contract in the event of incorrect or improper self-supply. This only applies if the Seller is not responsible for the non-supply and if he has concluded a concrete hedging transaction with the supplier. The Seller shall make all reasonable efforts to obtain the goods. In case of non-availability or partial availability of the goods he shall inform the Client and grant him immediately counterperformance.
5.5 Should the Client collect the goods himself, the Seller informs the Client by e-mail that the goods are available for collection. After receiving the e-mail, the Client may collect the goods in consultation with the Seller at the Seller's place of business. In this case shipment costs will not be charged.
5.6 Digital content will be provided to the Client exclusively in electronic form as follows:
- by direct access via the Seller's website
5.7 Vouchers will be provided to the Client as follows:
- by download
6) Granting Rights of Use for Digital Content
The granting of rights shall become effective only when the Client has fully paid the contractually owed remuneration. The Seller may also grant provisional permission to use the contractual content before this date. Such provisional authorization does not constitute a transfer of rights.
7) Granting Rights of Use for License Keys
If the contract relates to the one-time provision of digital content, the granting of rights shall only become effective when the Client has paid the remuneration owed in full. The Seller may provisionally permit the use of the contractual content even before this time. Such provisional permission shall not constitute a transfer of rights.
8) Reservation of Proprietary Rights
If the Client is a consumer, the Seller retains title of ownership to the delivered goods until the purchase price owed has been paid in full.
8.1 If the Client is a trader, the Seller reserves title to the goods delivered until the fulfillment of all claims arising out of the current business relationship.
8.2 If the Client is a trader, he is entitled to resell the reserved goods in the course of regular business operations. All claims resulting from such course of business against a third party shall herewith be assigned in advance to the Seller in the amount of the respective invoice value (including VAT). This assignment of claims shall be valid regardless of whether the reserved goods are processed prior to or after resale or not. The Client remains entitled to collect the claims even after assignment. However, the Seller shall refrain from collecting the claims as long as the Client meets his payment obligations, he is not in default, and no application has been lodged to open insolvency proceedings.
Unless otherwise stipulated , the provisions of the statutory liability for defects shall apply. Deviating therefrom, the following shall apply to contracts for the delivery of goods:
9.1 If the Client acts as trader
- the Seller may choose the type of subsequent performance,
- for new goods, the limitation period for claims for defects shall be one year from delivery of the goods,
- for used goods, the rights and claims for defects are excluded,
- the limitation period shall not recommence if a replacement delivery is made within the scope of liability for defects.
9.2 The above-mentioned limitations of liability and shortening of the period of limitation do not apply
- to claims for damages and reimbursement of expenses of the Client,
- if the Seller has fraudulently concealed the defect,
- for goods which have been used in accordance with their customary use for a building and which have caused its defectiveness,
- for any existing obligation of the Seller to provide updates for digital products with respect to contracts for the supply of goods with digital elements.
9.3 Furthermore, for traders, the statutory limitation periods for any statutory right of recourse that may exist shall remain unaffected.
9.4 If the Client is a businessperson pursuant to section 1 of the German Commercial Code (HGB) he has the commercial duty to examine the goods and notify the Seller of defects pursuant to section 377 HGB. Should the Client neglect the obligations of disclosure specified therein, the goods shall be deemed approved.
9.5 If the Client acts as a consumer, the forwarding agent has to be immediately notified of any obvious transport damages and the Seller has to be informed accordingly. Should the Client fail to comply therewith, this shall not affect his statutory or contractual claims for defects.
9.6 The Seller shall not be liable for defects in the performance of the telecommunications contract for which the respective service provider is solely responsible. In this respect, the relevant statutory provisions and any deviating contractual conditions of the respective service provider shall apply.
The Seller shall be liable to the Client for any contractual and quasi-contractual claims and for claims of liability in tort regarding damages and effort compensation as follows:
10.1 The Seller shall face unlimited liability regardless of the legal ground
- in case of intent or gross negligence,
- in case of injuries of life, body, or health resulting from intent or negligence,
- in case of a promise of guarantee, unless otherwise provided,
- in case of liability resulting from mandatory statutory provisions such as the product-liability-law.
10.2 If the Seller negligently infringes an essential contractual duty, the liability to pay damages shall be limited to the foreseeable, typically occurring damage, unless unlimited liability applies pursuant to the aforementioned Section. Essential significant contractual obligations are obligations the contract imposes on the Seller according to its content to meet the purpose of the contract and whose fulfillment is essential for the due and proper implementation of the contract and on the fulfillment of which the Client can regularly rely.
10.3 For the rest, the Seller’s liability is excluded.
10.4 The aforementioned provisions on liability apply also to the Seller’s liability regarding his legal representatives and vicarious agents.
11) Redemption of Gift Vouchers
11.1 Vouchers which can be purchased via the Seller’s online shop (hereinafter referred to as "gift vouchers") can be redeemed only in the Seller’s online shop.
11.2 Gift vouchers and remaining assets of gift voucher can be redeemed by the end of the third year following the year of the gift vouchers' purchase. Remaining assets will be credited to the Client’s voucher account.
11.3 Gift vouchers must be redeemed prior to the conclusion of the order procedure. Subsequent offsetting is not possible.
11.4 Only one gift voucher can be redeemed per order.
11.5 Gift vouchers can be used only for the purchase of goods and not for the purchase of other gift vouchers.
11.6 If the value of the gift voucher is not enough for the order, the Client may choose one of the remaining payment methods offered by the Seller to pay the difference.
11.7 The gift voucher credit will not be redeemed in cash and is not subject to any interest.
11.8 The gift voucher is transferable. The Seller may render performance with debt-discharging effect to the respective owner who redeems the gift voucher in the Seller’s online shop. This does not apply, however, if the Seller has knowledge or grossly negligent ignorance of the non-entitlement, legal incapacity, or of the missing right of representation regarding the respective owner.
12) Redemption of Campaign Vouchers
12.1 Vouchers which are issued by the Seller free of charge, for a specific period of validity in the context of promotional activities and which cannot be purchased by the Client (hereinafter referred to as "campaign vouchers”) can be redeemed only in the Seller’s online shop and only within the indicated time period.
12.2 Individual products may be excluded from the voucher campaign, if such a restriction results from the conditions of the campaign voucher.
12.3 Campaign vouchers must be redeemed prior to the conclusion of the order procedure. Subsequent offsetting is not possible.
12.4 Only one campaign voucher can be redeemed per order.
12.5 The goods value should at least be equal to the amount of the campaign voucher. The Seller will not refund remaining assets.
12.6 If the value of the campaign voucher is not enough for the order, the Client may choose one of the remaining payment methods offered by the Seller to pay the difference.
12.7 The campaign voucher credit will not be redeemed in cash and is not subject to any interest.
12.8 The campaign voucher will not be redeemed if the Client, in the context of his legal right to cancel, returns goods paid fully or partially by a campaign voucher.
12.9 The campaign voucher is transferable. The Seller may render performance with discharging effect to the respective owner who redeems the campaign voucher in the Seller’s online shop. This does not apply if the Seller has knowledge or grossly negligent ignorance of the non-entitlement, legal incapacity or of the missing right of representation regarding the respective owner.
13) Applicable Law
The law of the Federal Republic of Germany shall apply to all legal relationships between the parties under exclusion of the laws governing the international purchase of movable goods. For consumers, this choice of law applies only to the extent that the granted protection is not withdrawn by mandatory provisions of the law of the country in which the consumer has his habitual residence.
14) Place of Jurisdiction
If the Client is a businessman, a legal entity of public law, or a separate estate under public law with its seat in the territory of the Federal Republic of Germany, the Seller’s place of business shall be the sole place of jurisdiction for all legal disputes arising from this contract. If the Client is domiciled outside the territory of the Federal Republic of Germany, the Seller’s place of business shall be the sole place of jurisdiction for all legal disputes arising from this contract,provided that the contract or claims from the contract can be assigned to the Client’s professional or commercial activities. In any event however, regarding the aforementioned cases, the Seller is entitled to appeal to the court which has jurisdiction over the area where the Client’s place of business is located.
15) Alternative Dispute Resolution
15.1 The EU Commission provides on its website the following link to the ODR platform: https://ec.europa.eu
This platform shall be a point of entry for out-of-court resolutions of disputes arising from online sales and service contracts concluded between consumers and traders.
15.2 The Seller is not obliged to use ADR entities to resolve disputes with consumers, but he is ready for this.