These General Terms and Conditions Online Shop Purchases ('GTC Online') apply to all contracts concluded through our online shop for deliveries and services between HOTMOBIL Deutschland GmbH ('HOTMOBIL') and the purchaser as an entrepreneur for the purpose of Article 14 of the German Civil Code BGB (contract is part of the business of the purchaser’s company). Further, these Terms and Conditions will apply to the extent the purchaser is a corporate body under public law or of the public separate estate:
I. Area of Application
1. All agreements made between HOTMOBIL and the purchaser in connection with the purchase agreement result in particular from these Terms and Conditions, our non-binding order confirmation and our acceptance declaration by email. Section II applies. The version of the GTC Online that is valid at the time of conclusion of the contract is decisive.
2. The following Terms and Conditions apply exclusively to any deliveries and performances under a purchase contract, including service and consultancy services.
3. The business relationship between HOTMOBIL and the Purchaser is exclusively governed by the following General Terms and Conditions in the version valid at the time of the order. Deviating general terms and conditions of the Purchaser will not be accepted unless HOTMOBIL expressly agrees to their validity in writing. These General Terms and Conditions shall also apply if HOTMOBIL, being aware of conflicting or deviating General Terms and Conditions of the Purchaser, renders performance to the Purchaser without reservation or does not expressly object to the Purchaser's General Terms and Conditions again after receipt.
Personal data is required to maintain a customer account. The required data is marked with an asterisk "*" in the registration. By registering, the purchaser acknowledges that this data will be used for maintaining their account. HOTMOBIL processes this data with the purchaser's consent in order to handle enquiries and to execute the contract in compliance with the applicable data protection regulations.
II. Offer and conclusion of contract
1. All HOTMOBIL offers are subject to change. Any transactions and other agreements must be confirmed by email from HOTMOBIL in order to be binding.
2. The presentation and promotion of articles in HOTMOBIL's online shop does not constitute a binding offer to conclude a purchase contract.
3. By submitting an order through the online shop by clicking on the "Order subject to payment" button, the purchaser is placing a legally binding offer.
4. HOTMOBIL will immediately confirm receipt of the purchaser's order through the online shop by email. This email does not constitute binding acceptance of the order unless it also declares acceptance of the order in addition to the confirmation of receipt.
5. A contract only comes into effect when HOTMOBIL accepts the order by declaration of acceptance by email or with delivery of the ordered items.
6. Should delivery of the goods ordered by the purchaser not be possible, perhaps because the goods are not in stock, then HOTMOBIL will not provide the declaration of acceptance. In this instance, no contract is concluded. HOTMOBIL will inform the purchaser of this immediately and refund any consideration already received without delay.
7. The information and images contained in or enclosed with the product descriptions in HOTMOBIL's online shop are only binding if they are expressly marked as such. Minor optical discrepancies do not constitute a defect of the object of the purchase.
8. HOTMOBIL reserves the title, the copyrights and any other rights in and to the documentation that is part of any offer (e.g. illustrations, drawings, labeling). They must not be disclosed to any third parties unless it has expressly been stated that they are to be circulated or with the prior written consent of HOTMOBIL.
III. Terms of delivery and reserve of advance payment
1. HOTMOBIL is allowed to make partial deliveries provided this is deemed acceptable for the purchaser.
2. The delivery period is between two and five business days, unless otherwise agreed. Subject to the provisions of Item 3, it commences on conclusion of the contract.
3. For orders from purchasers who are based abroad or in cases where there are reasonable indications of a risk of non-payment, HOTMOBIL reserves the right to deliver the goods only after receipt of the purchase price and shipping costs (reserve of advance payment). The purchaser will be informed immediately if HOTMOBIL should wish to make use of the reserve of advance payment. In this instance, the delivery period will commence with payment of the purchase price and shipping costs.
IV. Prices and shipping costs
1. All HOTMOBIL prices are subject to VAT and are denominated in euros. Furthermore, they are made up as follows:
a. Sales price ex works;
b. Surcharge for supplies (if applicable)
c. Basic amount for commissioning, instruction and handover (if applicable)
d. Cost lump sum for transport plus packaging (if applicable)
e. Tariffs and freight charges
2. All prices in the online shop are net prices plus the applicable statutory value added tax, and do not include any shipping costs.
3. Shipping costs are given separately in the pricing information in the online shop. The price excluding VAT and shipping costs will also be displayed in the order form before the purchaser submits the order.
4. If HOTMOBIL fulfils the purchaser's order in accordance with para III no. 1 with partial deliveries, the purchaser will only pay the shipping costs for the first partial delivery. If partial deliveries are made at the purchaser's request, HOTMOBIL will calculate the shipping costs for each partial delivery.
5. In the event of a revocation, the purchaser shall bear the direct costs of the return shipment.
V. Terms of payment, offset, right of retention
1. The purchaser is free to pay the purchase price and shipping costs by PayPal or credit card (VISA, MasterCard), as preferred.
2. The purchase price and shipping costs will be due immediately when ordering in accordance with Section II unless otherwise agreed. If the due date of payment is determined according to the calendar, the Client-purchaser is already in default by missing the due date. In this case he has to pay HOTMOBIL default interest for the year in the amount of 5 percentage points above the base interest rate.
3. In the event of a default in payment, dunning costs of EUR 40.00 will be charged for each reminder.
4. The purchaser's obligation to pay default interest does not preclude HOTMOBIL from claiming further damages for default.
5. Following a successful credit check, purchase on account may be possible. The payment date will be determined individually by HOTMOBIL. HOTMOBIL reserves the right to deliver only by payment in advance. Any discounts must be specifically agreed. HOTMOBIL will only grant a discount if the payment is received by the agreed date or the date stated in the invoice.
6. The purchaser is not entitled to set off against any claims by HOTMOBIL unless these counterclaims are legally established or undisputed. The purchaser is entitled to set off against claims by HOTMOBIL if the purchaser asserts any complaints or counterclaims from the same purchase contract.
7. The purchaser may only exercise a right of retention if the counterclaim derives from the same purchase contract.
8. Regardless of any terms of redemption communicated by the customer, incoming partial payments will at first be credited against any costs, interest receivable and then against the older arrears. HOTMOBIL will provide the client with corresponding statements in this regard.
VI. Deadline for the supply of goods and services
1. A delivery date is only binding if HOTMOBIL informs the purchaser in writing or by email that this date is binding.
2. HOTMOBIL is not obliged to commission the object sold unless this has been explicitly agreed.
3. Should HOTMOBIL be unable to fulfill its obligations on time due to a force majeure event or any other unforeseeable, extraordinary circumstances or events beyond HOTMOBIL’s control, e.g. operating troubles, delivery delays on the part of insuppliers, strikes, traffic jams and official interventions, or any other unforeseeable, unavoidable events for which HOTMOBIL is not responsible, the specified deadline for the supply of goods and services will be extended by the period of the delay. In case of inability to effect delivery because of any of the aforementioned circumstances or events, HOTMOBIL will be released from their delivery obligation.
4. Unless specifically agreed otherwise, the place of performance will be the purchaser's place of business. The transfer of risk takes place upon the handover of the purchased item to the forwarding agent, the haulage contractor or any other person designated to carry out the shipment by HOTMOBIL, who selects the goods with the usual due diligence.
VII. Duty of examination and notification, warranty / defect rights
1. HOTMOBIL must be informed, in writing or by email, of any defects without undue delay, and no later than within a preclusive period of three days following receipt of the goods or occurrence of the defect.
2. HOTMOBIL provides no guarantee for defects caused by non-compliance with the operating instructions and incorrect changes by the purchaser.
3. HOTMOBIL specifically points out that wear parts worn through regular use (such as seals and heating rods) are not covered by the purchaser's rights in the event of defects.
1. Claims of the buyer for damages are excluded. Excluded from this are claims for damages by the Purchaser arising from injury to life, body or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by HOTMOBIL, its legal representatives or vicarious agents. Essential contractual obligations are those whose fulfillment is necessary to achieve the purpose of the contract.
2. In the event of a breach of essential contractual obligations HOTMOBIL is only liable for the foreseeable damage typical of the contract if this was caused by simple negligence, unless it is a matter of claims for damages by the Purchaser arising from injury to life, body or health.
3. The limitations of paragraphs 1 and 2 also apply in favor of HOTMOBIL's legal representatives and vicarious agents if claims are asserted directly against them.
4. The limitations of liability resulting from paragraphs 1 and 2 do not apply insofar as HOTMOBIL has fraudulently concealed the defect or has given a guarantee for the quality of the object. The same applies insofar as HOTMOBIL and the client buyer have reached an agreement on the quality of the object. The provisions of the Product Liability Act remain unaffected.
5. The above exclusions of liability also applies to HOTMOBIL employees, workers, representatives and agents.
IX. Retention of title, resale and assignment
1. HOTMOBIL retains title to the object sold and any accessories until full payment of the purchase price has been made.
2. The purchaser is entitled to resell the object sold and any accessories in the ordinary course of business. The purchaser now assigns to HOTMOBIL any and all claims against his customers to the amount of the net invoice amount charged to his customer which he is entitled to from the resale of the reserved property against his customer.
The purchaser is entitled to collect the receivables from his customers until further notice. This will not affect HOTMOBIL's right to collect the receivables. HOTMOBIL undertakes to not collect the receivables as long as the purchaser meets their payment obligations from consideration collected, is not in default and does not request for the opening of insolvency proceedings regarding the assets of the purchaser. If any of those situations occur, the purchaser will be obliged to notify HOTMOBIL of the assigned receivables and their debtors and to provide HOTMOBIL will all required documents. The purchaser has to inform their customer about such an assignment without undue delay.
3. During the reserved property period the purchaser will be obliged to treat the object sold with due care and to carry out any maintenance work at their own expense. If the purchaser does not fulfill his contractual obligations including, but not limited to, timely payment of the purchase price, HOTMOBIL will, after having set an appropriate deadline, rescind the purchase contract and request from the purchaser or a third party surrender of the goods subject to retention of title.
X. Applicable law / Contractual language
Only the laws of Germany apply; the UN Convention on Contracts for the International Sale of Goods cannot be applied. The contractual language is German.
1. If a provision of this contract is or becomes inoperative or if the contract contains a so-called lacuna, this will not affect the validity of the remaining content of the contract.
2. Inoperative provisions or so-called lacunas shall, to the extent this is compatible with the purpose of the contract, be replaced by other provisions which lead to the same result in legal terms and to a similar result which, in good faith, can be deemed acceptable to the contractual
3. No verbal agreements have been made. Any modifications or amendments to this contract must be made in writing and must be approved by the other contractual party in order to be effective. The same applies to the waiver of the requirement of written form.
4. Any disputes arising directly or indirectly from the contractual relationship shall be exclusively settled by the competent courts at HOTMOBIL's principal place of business. Further, HOTMOBIL will be entitled to take action before the competent courts at the purchaser’s place of business.