Terms and Conditions (German)
General Terms and Conditions with Customer Information
Table of Contents
- Scope
- Conclusion of Contract
- Right of Withdrawal
- Prices and Payment Terms
- Delivery and Shipping Conditions
- Retention of Title
- Liability for Defects (Warranty)
- Liability
- Redemption of Gift Vouchers
- Applicable Law
- Alternative Dispute Resolution
1) Scope
1.1 These General Terms and Conditions (hereinafter "GTC") of Kirsten Kaack, operating under "ESPARTO" (hereinafter "Seller"), apply to all contracts for the delivery of goods concluded between a consumer or entrepreneur (hereinafter "Customer") and the Seller regarding the goods displayed in the Seller's online shop. The inclusion of the Customer's own terms and conditions is hereby rejected, unless otherwise agreed.
1.2 These GTC apply accordingly to contracts for the delivery of vouchers, unless otherwise specified.
1.3 A consumer, within the meaning of these GTC, is any natural person who enters into a legal transaction for purposes that are predominantly neither commercial nor their independent professional activity.
1.4 An entrepreneur, within the meaning of these GTC, is a natural or legal person or a legal partnership that acts in the exercise of its commercial or independent professional activity when entering into a legal transaction.
2) Conclusion of Contract
2.1 The product descriptions contained in the Seller's online shop do not constitute binding offers on the part of the Seller, but serve to enable the Customer to submit a binding offer.
2.2 The Customer can submit the offer via the online order form integrated into the Seller's online shop. After placing the selected goods in the virtual shopping cart and completing the electronic ordering process, the Customer submits a legally binding contractual offer concerning the goods contained in the shopping cart by clicking the button that concludes the ordering process. Furthermore, the Customer can also submit the offer to the Seller by email or telephone.
2.3 The Seller can accept the Customer's offer within five days,
- by sending the Customer a written order confirmation or an order confirmation in text form (fax or email), whereby the receipt of the order confirmation by the Customer is decisive, or
- by delivering the ordered goods to the Customer, whereby the receipt of the goods by the Customer is decisive, or
- by requesting payment from the Customer after they have placed their order.
If several of the aforementioned alternatives exist, the contract is concluded at the time when one of the aforementioned alternatives occurs first. The period for accepting the offer begins on the day after the Customer sends the offer and ends at the end of the fifth day following the sending of the offer. If the Seller does not accept the Customer's offer within the aforementioned period, this is deemed a rejection of the offer, with the consequence that the Customer is no longer bound by their declaration of intent.
2.4 If a payment method offered by PayPal is selected, payment processing is handled by the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter: "PayPal"), subject to the PayPal user agreement, viewable at https://www.paypal.com
2.5 When ordering via the Seller's online order form, the contract text is stored by the Seller after the contract is concluded and transmitted to the Customer in text form (e.g., email, fax or letter) after the Customer has sent their order. Beyond this, the contract text is not made accessible by the Seller. If the Customer has created a user account in the Seller's online shop before sending their order, the order data is archived on the Seller's website and can be accessed free of charge by the Customer via their password-protected user account by entering the corresponding login data.
2.6 Before submitting a binding order via the Seller's online order form, the Customer can identify possible input errors by carefully reading the information displayed on the screen. An effective technical means for better recognition of input errors can be the browser's zoom function, which enlarges the display on the screen. The Customer can correct their entries within the electronic ordering process using the usual keyboard and mouse functions until they click the button that concludes the ordering process.
2.7 Different languages are available for the conclusion of the contract. The specific language selection is displayed in the online shop.
2.8 Order processing and contact usually take place via email and automated order processing. The Customer must ensure that the email address provided for order processing is correct so that emails sent by the Seller can be received at this address. In particular, when using SPAM filters, the Customer must ensure that all emails sent by the Seller or by third parties commissioned by the Seller to process the order can be delivered.
3) Right of Withdrawal
3.1 Consumers generally have a right of withdrawal.
3.2 Further information on the right of withdrawal can be found in the Seller's cancellation policy.
3.3 The right of withdrawal does not apply to consumers who, at the time of concluding the contract, do not belong to a member state of the European Union and whose sole domicile and delivery address at the time of concluding the contract are outside the European Union.
4) Prices and Payment Terms
4.1 Unless otherwise stated in the Seller's product description, the prices quoted are total prices that include the statutory value-added tax. Any additional delivery and shipping costs incurred will be stated separately in the respective product description.
4.2 In the case of deliveries to countries outside the European Union, further costs may arise in individual cases for which the Seller is not responsible and which are to be borne by the Customer. These include, for example, costs for money transfers by credit institutions (e.g., transfer fees, exchange rate fees) or import duties or taxes (e.g., customs duties). Such costs may also be incurred with regard to money transfers if the delivery is not made to a country outside the European Union, but the Customer makes the payment from a country outside the European Union.
4.3 The payment option(s) will be communicated to the Customer in the Seller's online shop.
4.4 If payment in advance by bank transfer has been agreed, payment is due immediately after the conclusion of the contract, unless the parties have agreed on a later due date.
4.5 If a payment method offered via the payment service "Shopify Payments" is selected, payment processing is carried out by Shopify International Limited, Victoria Buildings, 2nd Floor, 1-2 Haddington Road, Dublin 4, D04 XN32, Ireland ("Shopify"). The individual payment methods offered via Shopify Payments will be communicated to the Customer in the Seller's online shop. Shopify may use further payment services for payment processing, for which special payment conditions may apply, to which the Customer may be separately informed. Further information on "Shopify Payments" is available online at https://www.shopify.com
5) Delivery and Shipping Conditions
5.1 If the Seller offers shipping of the goods, delivery will be made within the delivery area specified by the Seller to the delivery address provided by the Customer, unless otherwise agreed. The delivery address specified in the Seller's order processing is decisive for the processing of the transaction.
5.2 If the delivery of the goods fails for reasons for which the Customer is responsible, the Customer shall bear the reasonable costs incurred by the Seller as a result. This does not apply to the costs for the outward shipment if the Customer effectively exercises their right of withdrawal. For return costs, if the Customer effectively exercises their right of withdrawal, the provision made in the Seller's cancellation policy applies.
5.3 If the Customer acts as an entrepreneur, the risk of accidental loss and accidental deterioration of the sold goods passes to the Customer as soon as the Seller has delivered the item to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. If the Customer acts as a consumer, the risk of accidental loss and accidental deterioration of the sold goods generally only passes when the goods are handed over to the Customer or a person authorized to receive them. Deviating from this, the risk of accidental loss and accidental deterioration of the sold goods also passes to the Customer, even for consumers, as soon as the Seller has delivered the item to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment, if the Customer has commissioned the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment and the Seller has not previously named this person or institution to the Customer.
5.4 If the Customer is a consumer residing in Germany or an entrepreneur, the Seller reserves the right to withdraw from the contract in the event of incorrect or improper self-supply. However, this only applies if the non-delivery is not the Seller's fault and the Seller has concluded a specific hedging transaction with the supplier with due care. The Seller will make all reasonable efforts to procure the goods. In the event of unavailability or only partial availability of the goods, the Customer will be informed immediately and the consideration will be refunded immediately.
5.5 Self-collection is not possible for logistical reasons.
5.6 Vouchers are provided to the Customer as follows:
- by download
- by email
6) Retention of Title
If the Seller performs in advance, they retain title to the delivered goods until full payment of the owed purchase price.
7) Liability for Defects (Warranty)
Unless otherwise stated in the following provisions, the provisions of statutory liability for defects apply. Deviating from this, the following applies to contracts for the delivery of goods:
7.1 If the Customer acts as an entrepreneur,
- the Seller has the choice of the type of subsequent performance;
- for new goods, the limitation period for defect claims is one year from delivery of the goods;
- for used goods, defect claims are excluded;
- the limitation period does not recommence if a replacement delivery is made within the framework of liability for defects.
7.2 The limitations of liability and reductions of deadlines regulated above do not apply
- to the Customer's claims for damages and reimbursement of expenses,
- in the event that the Seller has fraudulently concealed the defect,
- for goods that have been used for a building in accordance with their usual purpose and have caused its defectiveness,
- for any existing obligation of the Seller to provide updates for digital products, in contracts for the delivery of goods with digital elements.
7.3 Furthermore, for entrepreneurs, the statutory limitation periods for any existing statutory right of recourse remain unaffected.
7.4 If the Customer acts as a merchant within the meaning of Section 1 HGB (German Commercial Code), they are subject to the commercial obligation to examine and give notice of defects in accordance with Section 377 HGB. If the Customer fails to comply with the notification obligations regulated therein, the goods are deemed to have been approved.
7.5 If the Customer acts as a consumer, they are requested to complain about goods delivered with obvious transport damage to the delivery person and to inform the Seller of this. Failure to do so has no effect on their statutory or contractual claims for defects.
8) Liability
The Seller is liable to the Customer for all contractual, quasi-contractual and statutory, including tortious claims for damages and reimbursement of expenses as follows:
8.1 The Seller is liable without limitation on any legal grounds
- in case of intent or gross negligence,
- in case of intentional or negligent injury to life, body or health,
- due to a guarantee promise, unless otherwise regulated in this respect,
- due to mandatory liability such as under the Product Liability Act.
8.2 If the Customer is a consumer residing in Germany or an entrepreneur, the following limitations of liability apply:
If the Seller negligently breaches an essential contractual obligation, their liability is limited to the typical, foreseeable damage, unless they are liable without limitation in accordance with the preceding clause. Essential contractual obligations are obligations that the contract imposes on the Seller according to its content to achieve the purpose of the contract, the fulfillment of which enables the proper execution of the contract in the first place and on whose observance the Customer can regularly rely. Otherwise, the Seller's liability is excluded, unless they are liable without limitation in accordance with the preceding clause.
8.3 The preceding liability regulations also apply with regard to the Seller's liability for their vicarious agents and legal representatives.
9) Redemption of Gift Vouchers
9.1 Vouchers that can be purchased via the Seller's online shop (hereinafter "Gift Vouchers") can only be redeemed in the Seller's online shop, unless otherwise stated on the voucher.
9.2 Gift Vouchers and remaining credit of Gift Vouchers can be redeemed until the end of the third year after the year of the voucher purchase. Remaining credit will be credited to the Customer until the expiry date.
9.3 Gift Vouchers can only be redeemed before the order process is completed. Subsequent offsetting is not possible.
9.4 Gift Vouchers can only be used for the purchase of goods and not for the purchase of further Gift Vouchers.
9.5 If the value of the Gift Voucher is insufficient to cover the order, one of the other payment methods offered by the Seller can be chosen to settle the difference.
9.6 The credit of a Gift Voucher will neither be paid out in cash nor accrue interest.
9.7 The Gift Voucher is transferable. The Seller can discharge their obligation by making payment to the respective holder who redeems the Gift Voucher in the Seller's online shop. This does not apply if the Seller has knowledge or grossly negligent ignorance of the respective holder's lack of authorization, incapacity to act, or lack of power of representation.
10) Applicable Law
10.1 All legal relationships between the parties are governed by the law of the Federal Republic of Germany, excluding the laws on the international sale of movable goods. For consumers, this choice of law only applies insofar as the protection granted by mandatory provisions of the law of the state in which the consumer has their habitual residence is not withdrawn.
10.2 Furthermore, this choice of law does not apply with regard to the statutory right of withdrawal to consumers who, at the time of concluding the contract, do not belong to a member state of the European Union and whose sole domicile and delivery address at the time of concluding the contract are outside the European Union.
11) Alternative Dispute Resolution
The Seller is neither obliged nor willing to participate in a dispute resolution procedure before a consumer arbitration board.
