Allgemeine Geschäftsbedingungen

General terms and conditions with customer information

Table of contents

1. Scope

2. Conclusion of contract

3. Right of withdrawal

4. Prices and payment terms

5. Delivery and shipping conditions

6. Reservation of title

7. Liability for defects (warranty)

8. Liability

9. Redemption of promotional vouchers

10. Redemption of gift vouchers

11. Applicable law

12. Place of jurisdiction

13. Alternative dispute resolution

1) Scope
1.1 These general terms and conditions (subsequently “GTC”) of Hosta Werk für Schokolade‑Spezialitäten GmbH & Co. KG (subsequently “Seller”) apply to all contracts for the delivery of goods that a consumer or an entrepreneur (subsequently “Customer”) concludes with the Seller in respect of the goods presented by the Seller in its online shop. The inclusion of the Customer’s own terms is hereby expressly rejected, unless otherwise agreed.
1.2 For contracts for the delivery of vouchers, these GTC shall apply accordingly, unless otherwise stipulated.
1.3 For the purposes of these GTC, a consumer is any natural person who enters into a legal transaction for purposes that are not predominantly attributable to their commercial or self‑employed professional activity.
1.4 For the purposes of these GTC, an entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of their commercial or self‑employed professional activity.

2) Conclusion of contract
2.1 The product descriptions contained in the Seller’s online shop do not constitute binding offers by the Seller, but are intended 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 adding the selected goods to the virtual shopping cart and completing the electronic order process, the Customer submits a legally binding contractual offer relating to the goods contained in the shopping cart by clicking the button that finalizes the order process.
2.3 The Seller may accept the Customer’s offer within five days

• by sending the Customer a written order confirmation or a confirmation in text form (fax or e‑mail), in which case the receipt of the order confirmation by the Customer is decisive, or

• by delivering the ordered goods to the Customer, in which case the receipt of the goods by the Customer is decisive, or

• by requesting payment from the Customer after the order has been placed.

If several of the above alternatives occur, the contract is concluded at the moment when one of the alternatives first takes place. The deadline for acceptance of the offer starts the day after the offer is sent by the Customer and ends at the close of the fifth day following the dispatch of the offer. If the Seller does not accept the Customer’s offer within this 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 the Customer selects a payment method offered by PayPal, payment is processed via the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22‑24 Boulevard Royal, L‑2449 Luxembourg (hereinafter “PayPal”), under the PayPal user terms available at https://www.paypal.com/de/legalhub/paypal/useragreement-full or, if the Customer does not have a PayPal account, under the conditions for payments without a PayPal account available at https://www.paypal.com/de/legalhub/paypal/privacywax-full. If the Customer pays via a PayPal payment method selectable in the online order process, the Seller already declares acceptance of the Customer’s offer at the moment the Customer clicks the button that finalizes the order process.
2.5 If the Customer selects the payment method “Amazon Payments”, payment is processed via the payment service provider Amazon Payments Europe s.c.a., 38 avenue John F. Kennedy, L‑1855 Luxembourg (hereinafter “Amazon”), under the Amazon Payments Europe user agreement available at https://pay.amazon.de/help/201751590. If the Customer chooses “Amazon Payments” as the payment method during the online order process, clicking the button that completes the order simultaneously issues a payment instruction to Amazon. In this case, the Seller already declares acceptance of the Customer’s offer at the moment the Customer triggers the payment process by clicking the button that completes the order process.
2.6 When an offer is placed via the Seller’s online order form, the contract text is stored by the Seller after conclusion of the contract and transmitted to the Customer in text form (e.g. e‑mail, fax or letter) after the order is sent. No further provision of the contract text by the Seller is made.
2.7 Before the binding placement of the 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 to better detect input errors can be the browser’s zoom function, which enlarges the on‑screen display. Within the electronic order process, the Customer may correct their inputs using the usual keyboard and mouse functions until they click the button that finalizes the order.
2.8 The German language is available for the conclusion of the contract.
2.9 Order processing and communication generally take place via e‑mail and automated order processing. The Customer must ensure that the e‑mail address provided for order processing is correct, so that e‑mails sent by the Seller can be received. In particular, if spam filters are in use, the Customer must ensure that all e‑mails sent by the Seller or by third parties commissioned by the Seller for order processing can be delivered.

3) Right of withdrawal
3.1 Consumers are granted a right of withdrawal in principle.
3.2 Further information on the right of withdrawal are set out in the Seller’s withdrawal information.
3.3 The right of withdrawal does not apply to consumers who, at the time of conclusion of the contract, do not belong to any member state of the European Union and whose sole place of residence and delivery address, at the time of conclusion of 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 indicated are total prices including the applicable statutory value‑added tax. Any additional delivery and shipping costs are stated separately in the respective product description.
4.2 In individual cases, additional costs may arise for deliveries to countries outside the European Union, which are not attributable to the Seller and must be borne by the Customer. These include, for example, costs for money transfer through credit institutions (e.g. bank transfer fees, currency exchange fees) or customs‑law duties and taxes (e.g. customs duties). Such costs may also arise in relation to money transfers even if the delivery does not take place to a country outside the European Union, if the Customer makes the payment from a country outside the European Union.
4.3 The available payment method(s) are communicated to the Customer in the Seller’s online shop.
4.4 If the Customer selects a payment method offered via the payment service “PayPal”, payment is processed via PayPal, which may in turn use the services of third‑party payment service providers. If the Seller also offers payment methods via PayPal in which it grants the Customer advance performance (e.g. invoice purchase or instalment payment), the Seller assigns its payment claim in such cases to PayPal or to the payment service provider commissioned by PayPal and specifically named to the Customer. Before accepting the Seller’s assignment declaration, PayPal or the payment service provider commissioned by PayPal carries out a credit check using the transmitted customer data. The Seller reserves the right to refuse the selected payment method in the case of an adverse credit check result. If the selected payment method is approved, the Customer must pay the invoice amount within the agreed payment period or in the agreed payment intervals. In this case, the Customer may only make payment to PayPal or the payment service provider commissioned by PayPal with discharge effect. However, even in the case of assignment of the claim, the Seller remains responsible for general customer inquiries, e.g. regarding goods, delivery time, dispatch, returns, complaints, withdrawal declarations and submissions, or credits.
4.5 If the Customer selects a payment method offered via the payment service “Shopify Payments”, payment is processed by the payment service provider Stripe Payments Europe Ltd., 1 Grand Canal Street Lower, Grand Canal Dock, Dublin, Ireland (hereinafter “Stripe”). The individual payment methods offered via Shopify Payments are communicated to the Customer in the Seller’s online shop. To process payments, Stripe may use further payment services, for which special payment terms may apply and to which the Customer may be separately informed. Further information on “Shopify Payments” is available online at https://www.shopify.com/legal/terms-pay chopped.

5) Delivery and shipping conditions
5.1 If the Seller offers to ship the goods, delivery takes place within the delivery area specified by the Seller, to the delivery address provided by the Customer, unless otherwise agreed. For the execution of the transaction, the delivery address indicated in the Seller’s order processing is decisive. By contrast, if the payment method PayPal is selected, the delivery address stored by the Customer with PayPal at the time of payment is decisive.
5.2 If delivery of the goods fails due to reasons attributable to the Customer, the Customer shall bear the reasonable costs incurred by the Seller as a result. This does not apply to the costs of the initial shipment if the Customer effectively exercises their right of withdrawal. For return shipping costs, in the case of effective exercise of the right of withdrawal by the Customer, the regulation set out in the Seller’s withdrawal information applies.
5.3 If the Customer acts as an entrepreneur, the risk of accidental loss or accidental deterioration of the goods sold passes to the Customer as soon as the Seller delivers the goods to the freight forwarder, carrier or other person or institution designated to carry out the shipment. If the Customer acts as a consumer, the risk of accidental loss or accidental deterioration of the goods sold generally only passes when the goods are handed over to the Customer or to an authorised person. By contrast, even for consumers, the risk of accidental loss or accidental deterioration of the goods sold passes to the Customer as soon as the Seller delivers the goods to the freight forwarder, carrier or other person or institution designated to carry out the shipment, if the Customer has commissioned that freight forwarder, carrier or person or institution and the Seller has not previously named that person or institution to the Customer.
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 failure to deliver is not attributable to the Seller and the Seller has concluded a specific covering transaction with the supplier with due diligence. The Seller will make every reasonable effort to procure the goods. In the event that the goods are unavailable or only available in part, the Customer will be informed without delay and the counter‑performance will be refunded immediately.
5.5 Collection of the goods by the Customer is not possible for logistical reasons.
5.6 Vouchers are made available to the Customer as follows:

• by download

• by e‑mail

6) Reservation of title
If the Seller grants advance performance, it reserves title to the goods delivered until the agreed purchase price has been paid in full.

7) Liability for defects (warranty)
Unless otherwise stipulated below, the statutory provisions on liability for defects apply. Deviating from this, for contracts for the delivery of goods:
7.1 If the Customer acts as an entrepreneur,

• the Seller has the right to choose the type of subsequent performance;

• for new goods, the limitation period for defect‑related claims is one year from delivery of the goods;

• defect‑related claims for used goods are excluded;

• limitation does not start again if a replacement delivery is made within the framework of liability for defects.
  7.2 The liability limitations and shortened limitation periods set out above do not apply

• to the Customer’s claims for compensation for damages or reimbursement of expenses,

• if the Seller has knowingly concealed the defect,

• for goods which, in accordance with their usual use, have been used in a construction project and have caused its defectiveness,

• for any existing obligation of the Seller to provide updates for digital products under contracts for the delivery of goods with digital elements.
  7.3 In addition, 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 § 1 of the German Commercial Code (HGB), commercial inspection and complaint obligations pursuant to § 377 HGB apply. If the Customer fails to comply with the notification duties set out there, the goods are deemed to have been approved.
  7.5 If the Customer acts as a consumer, they are requested to complain immediately to the carrier about any obvious transport damage and to inform the Seller accordingly. Failure to do so has no effect whatsoever on their statutory or contractual claims for defects.

8) Liability
The Seller shall be liable to the Customer for damages and reimbursement of expenses arising from all contractual, pre‑contractual and statutory, including tortious, claims as follows:
8.1 The Seller is unrestrictedly liable in all cases

• for intent or gross negligence,

• for intentional or negligent injury of life, body or health,

• on the basis of a guarantee commitment, unless otherwise stipulated,

• under mandatory liability, such as pursuant to the German Product Liability Act.
  8.2 If the Seller negligently breaches a material contractual obligation, liability is limited to the foreseeable, typical contractual damage, unless unlimited liability applies under the preceding paragraph. Material contractual obligations are obligations which the contract imposes on the Seller according to its content to achieve the contractual purpose, the performance of which makes proper performance of the contract possible in the first place and which the Customer may generally rely on.
  8.3 In all other respects, the Seller’s liability is excluded.
  8.4 The above liability provisions also apply with regard to the Seller’s liability for its vicarious agents and statutory representatives.

9) Redemption of promotional vouchers
9.1 Vouchers that are issued free of charge by the Seller as part of advertising campaigns, with a specific validity period and that cannot be purchased by the Customer (hereinafter “promotional vouchers”), may only be redeemed in the Seller’s online shop and only within the stated period.
9.2 Promotional vouchers may only be redeemed by consumers.
9.3 Individual products may be excluded from the voucher promotion, if such a restriction follows from the content of the promotional voucher.
9.4 Promotional vouchers may only be redeemed before completion of the order process. Subsequent offsetting is not possible.
9.5 Only one promotional voucher may be redeemed per order.
9.6 If a promotional voucher relates to a specific amount and not to a percentage discount, the value of the goods must be at least equal to the amount of the promotional voucher. Any remaining credit will not be refunded by the Seller.
9.7 If the value of the promotional voucher does not cover the order in full, the difference may be paid using another of the payment methods offered by the Seller.
9.8 The balance of a promotional voucher will not be paid out in cash and is not interest‑bearing.
9.9 The promotional voucher will not be refunded if the Customer returns the goods that were paid for, in whole or in part, with the promotional voucher, within the scope of their statutory right of withdrawal.
9.10 Promotional vouchers are transferable. The Seller may satisfy the obligation with discharge effect to the respective holder who redeems the promotional voucher in the Seller’s online shop. This does not apply if the Seller has knowledge or grossly negligent ignorance of the holder’s lack of entitlement, legal incapacity or lack of authorisation to represent.

10) Redemption of gift vouchers
10.1 Vouchers that can be purchased via the Seller’s online shop (hereinafter “gift vouchers”) may only be redeemed in the Seller’s online shop, unless otherwise stated in the voucher.
10.2 Gift vouchers and any remaining balances of gift vouchers are redeemable until the end of the third year following the year in which the voucher was purchased. Any remaining balances will be credited to the Customer up to the expiry date.
10.3 Gift vouchers may only be redeemed before completion of the order process. Subsequent offsetting is not possible.
10.4 Only one gift voucher may be redeemed per order.
10.5 Gift vouchers may only be used for the purchase of goods and not for the purchase of further gift vouchers.
10.6 If the value of the gift voucher does not cover the order in full, the difference may be paid using another of the payment methods offered by the Seller.
10.7 The balance of a gift voucher will not be paid out in cash and is not interest‑bearing.
10.8 Gift vouchers are transferable. The Seller may satisfy the obligation with discharge effect 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 holder’s lack of entitlement, legal incapacity or lack of authorisation to represent.

11) Applicable law
11.1 German law shall apply to all legal relationships between the parties, excluding the provisions on the international sale of movable goods. This choice of law only applies to consumers to the extent that the protection afforded by the mandatory provisions of the law of the state in which the consumer has their usual place of residence is not withdrawn.
11.2 This choice of law also does not apply to the statutory right of withdrawal for consumers who, at the time of conclusion of the contract, do not belong to any member state of the European Union and whose sole place of residence and delivery address, at the time of conclusion of the contract, are outside the European Union.

12) Place of jurisdiction
If the Customer acts as a merchant, a public‑law legal person or a public‑law special fund with its seat in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract is the Seller’s place of business. If the Customer has its seat outside the territory of the Federal Republic of Germany, the Seller’s place of business is the exclusive place of jurisdiction for all disputes arising from this contract, if the contract or claims arising from the contract can be attributed to the Customer’s professional or commercial activity. Nevertheless, in the above cases, the Seller is always entitled to bring an action before the court at the Customer’s place of business.

13) Alternative dispute resolution
The Seller is neither obliged nor willing to participate in a dispute resolution procedure before a consumer arbitration board.