General terms and conditions
These contract terms and conditions shall apply for all contracts concluded between melting elements GmbH, Im Wasserturmpalais, Fuhlsbüttler Straße 405, 22309 Hamburg, (in the following referred to as “provider” or “we”) and our customers (in the following referred to as “customer” or “you”) exclusively through means of remote communications (e.g. via the internet or by phone).
§ 1 Scope, definitions
(1) The business relationship between the provider and the customer shall be governed exclusively by the general terms and conditions below in effect at the time the order is placed as follows. Any deviating terms and conditions or contract offers of the customer are hereby rejected.
(2) The customer is deemed a consumer, unless the purpose of the transaction is predominantly attributed to a commercial activity or to a self-employed professional activity. Any natural or legal person, or a judicable partnership that, in concluding a transaction, acts in the execution of its commercial or independent business activity, is deemed a commercial entrepreneur.
(3) On our website, we offer goods on our own behalf. These general terms and conditions apply to this offer. In the case of purchases of third party goods or services from our website, we shall not be contractual partner of the customer. As a rule, such offers are marked as third party offers and the respective contractual partner is evidently indicated on the offer. We do neither act as a broker for third party offers, nor are we in any way involved in the contractual relationship with the respective supplier.
§ 2 Conclusion of contract
(1) The customer may choose from our range of goods and collect them in a so-called cart via the button “add to cart”. Via the button “order with obligation to pay”, the customer submits a binding application to buy the goods collected in the cart.
(2) Prior to submitting the order, the customer may edit, view and correct the data entered at any time. The customer’s application can only be submitted and transferred after accepting these general terms and conditions during the order process.
(3) The provider then will send the customer an automatic confirmation by e-mail stating the customer’s order. This can be printed by the customer choosing “print”. The automatic confirmation only documents that the customer’s order has been received by the provider. It does not represent an acceptance of the application.
The contract will only be concluded upon the provider’s declaration of acceptance sent in a separate e-mail. Billing the customer for their ordered goods substitutes the declaration of acceptance. We reserve right to substitute the declaration of acceptance by carrying out the order within 5 days after receipt. If several of the aforementioned acceptance versions are available, whichever is earliest will conclude the contract. In any event, a contract confirmation as plain text, in accordance with the legal regulations, shall be sent to the customer.
If the customer does not receive a declaration of acceptance, an invoice, or a notification of delivery within 5 days, or if they do not receive the goods, the customer shall no longer be bound to the order. In this case, any services rendered will be refunded immediately to the customer.
(4) If we are to provide a digital item, e.g. a download (e-books, digital images etc.), we shall accept the customer’s contract declaration by no later than the time we are providing the digital content for download or when requesting payment from the customer. The earliest acceptance applies.
The download is, in general, provided immediately after receipt of payment. If the customer has not been provided with the download or payment information within 24 hours after placing the order, the customer shall be released from the contract declaration. In this case, any payment already made will be refunded immediately to the customer. In accordance with legal regulations, the customer will be sent a contract confirmation of the purchase to the e-mail address submitted during registration.
(5) Subject of the delivery or service are the goods and/or services provided by us and ordered by the customer. Unless expressly stated otherwise, all specifications and prices apply to the respective items, however, not to any accessories or decorations possibly depicted with it.
(6) Depictions of and information provided on our products are provided for descriptive purposes only and do not represent a quality guarantee.
(7) We reserve the right to withdraw from the contract if, through no fault of our own, we are unable to deliver the item ordered due to a supplier not performing his contractual duties. However, we may only withdraw from the contract if we have concluded a congruent supply agreement with the respective supplier (i.e. we have bindingly ordered a sufficient quantity of the goods in good time) and cannot be held responsible for the non-delivery of the merchandise for any other reason. In this case, we shall immediately inform the customer that the ordered merchandise is not available. We shall immediately refund any payment already made by the customer.
(8) The contract languages are German and English.
(9) Order processing and customer contacts within the context of fulfilling the order shall, as a rule, be made via e-mail. Therefore, the customer is to ensure that the e-mail address provided for order processing purposes is correct and that reception of contract related e-mails is not prevented by e-mail settings or filters.
(10) If our offers indicate a delivery time, this delivery time and the information provided are preferential for calculating the delivery time. Unless stated otherwise, delivery time will be 7 days. In the case of advance payment, the delivery time shall commence after the day the payment order is placed at the remitting financial institution. In the case of other payment methods, the delivery time shall commence after the day the contract is concluded. In both cases, the delivery time shall end with the expiry of the last day of the term. If the last day for delivery is a Saturday, Sunday or a public holiday at the place of delivery, the delivery time shall be extended to the next working day.
§ 3 Digital products
(1) When our service is to provide a digital product (downloads, e.g. e-books), our contractual obligation will be fulfilled by providing the contents for download to the customer according to contract. Our services do not include repeated provision of digital contents. The customer holds the responsibility to create a back-up of the purchased files. The customer may access the content files of which they have purchased user rights exclusively in electronic form via our website. Further rights, particularly for transferring copies or data carrier, will not be granted. If we, however, provide the option for another download, it is considered a voluntary additional service without entitlement to continued existence or renewed permission.
(2) The customer acquires a simple, non-exclusive, non-transferable user right of the work concerned for their own purposes. Any further usage, in particular reproduction as a whole or in part, distribution, making available to the public, or processing or use for commercial purposes (e.g. for presentations) shall expressly require additionally granted rights. Transfer of user rights including sublicensing is subject to separate and explicit agreement by the owner of the rights.
(3) The customer shall only exercise the purchased user rights to the legally permitted extent. The customer is informed that exercising the user rights beyond the legally permitted extent may lead to injunctive relief, right to information, and claims of the rights owner. Copyright notices may not be removed.
(4) All concessions of user rights shall be effective only if the customer has paid the agreed remuneration and expire in case the contract to acquire these rights is cancelled. In this case, the customer shall undertake to delete any remaining copies of the contents immediately.
§ 4 Retention of title
The delivered goods remain our property until fulfilment of all claims under the contract; if the customer is a legal entity under public law, a separate public estate, or a commercial operator exercising their commercial or independent business activity. This provision shall extend beyond the current business relationship until all claims to which we are entitled in connection with this contract have been compensated.
§ 5 Prices and shipping costs
(1) All prices include the relevant legal value added tax and exclude shipment.
(2) The customer will be informed on the shipping costs before conclusion of the contract. The customer shall bear the shipping costs, unless free shipping has been agreed. Unless otherwise stated, the shipping costs amount to:
§ 6 Payment
(1) The customer may issue the payment according to the payment methods indicated in the respective offer.
(2) Payment of the purchase price is due immediately after conclusion of the contract and must be received by us within 7 calendar days, unless the agreed payment method provides differently.
(3) The customer shall ensure sufficient funds. Losses caused by return debits due to insufficient funds shall be compensated by the customer.
(4) The customer’s obligation to pay default interests does not exclude the assertion of further losses caused by delay.
(5) The customer is only entitled to offset if their counterclaims have been acknowledged by us or have been legally established, or if their counterclaims originate from the same contractual relationship. The customer shall only be entitled to retain if the counterclaim is based on the same contractual relationship.
§ 7 Transfer of risk
(1) In case of consumers, the risk of incidental loss and the incidental impairment of the object of purchase shall, in accordance with legal regulations, be transferred to the consumer upon delivery of the object of purchase to the customer.
(2) Only if the customer acts as an entrepreneur, delivery is effected ex warehouse. The risk of incidental loss and the incidental impairment of the goods shall be transferred to the customer upon handover at the latest. In the case of sale by dispatch, the risk of incidental loss and the incidental impairment of the goods and the risk of delay shall be transferred to the carrier or to the person or institution designated to forward the goods for delivery.
(3) In case the customer defaults the acceptance or fails to act in cooperation or in case that our delivery is delayed for other reasons the customer is held responsible for, we are entitled to claim compensation for the damage resulting therefrom, including additional expenses (e.g. costs for warehousing and transport).
§ 8 Warranty for material defects, guarantee
(1) Claims arising from defects of used goods we delivered shall expire one year after delivery to the customer. In the case of entrepreneurs, the limitation period for claims arising from defects of goods we delivered shall be one year. The statute of limitation is not renewed if a replacement is provided within the scope of liability for defects. Other than that, we are liable for material defects according to the legal regulations, in particular §§ 434 et seqq. BGB (German Civil Code).
(2) Our liability according to § 9 of these general terms and conditions, in particular with respect to damage claims of the customer arising from fatalities, physical injuries or damage to health, or from violation of substantial contractual obligations (see § 9), for damages in accordance with the German Product Liability Act, as well as for any rendered guarantees, shall remain unaffected from limitations resulting from the preceding paragraph 1. The legal periods for recourse actions according to § 478 BGB (German Civil Code) for commercial operators and our liability for fraudulent concealment of damage shall remain unaffected.
(3) Claims by merchants require that the merchant has fulfilled their obligation to inspect and give notice of defects according to §§ 377, 381 HGB (German Commercial Code).
(4) There will be no guarantee of quality or durability according to § 443 BGB (German Civil Code) on our part for goods we delivered, unless expressly stated and agreed upon. All manufacturer’s guarantees shall remain unaffected.
(5) You may submit complaints or warranty claims that may arise to the address indicated in the provider identification.
§ 9 Liability
(1) Claims of the customer for reimbursement of damages are excluded except for such resulting from fatalities, physical injuries and damage to health, or from violation of substantial contractual obligations (cardinal duties), as well as for liability for other damages due to wilful or grossly negligent breach of duty by the provider, their legal representative or assistant. Substantial contractual obligations are those which are necessary to enable the performance of the contract and in the compliance of which the customer may duly rely. In the case of violation of substantial contractual obligations, the provider’s liability shall be restricted to the foreseeable damage typical of the contract if the damage is caused under light negligence, except for damage claims of the customer arising from fatalities, physical injuries or damage of health.
(2) The restrictions stated in the preceding paragraph 1 also apply to the legal representatives and assistants if claims are asserted directly against them, as well as for claims for reimbursement of expenses.
(3) The provisions of the German Product Liability Act and our liability for rendered guarantees shall remain unaffected.
§ 10 Cancellation right
Consumers are entitled to the legal cancellation right. In accordance with legal regulations, you will be informed on our cancellation policy in text form.
In the case that the contract comprises the provision of services, your cancellation right shall expire prematurely when we have fully provided the service you requested and if we have beforehand informed you separately on the expiration of your cancellation right upon provision of the service.
§ 11 Text of the contract
We do not save the text of the contract. After order placement, the text of the contract will no longer be available. The customer may print out these terms and conditions and the order details before submitting the order. The customer will receive a confirmation of the contract in accordance with the legal regulations.
§ 12 Extrajudicial dispute resolution/consumer dispute settlement
(1) For the out-of-court settlement of consumer disputes, the European Union has provided an online platform (“OS platform”). The OS platform aims to serve as a contact point for out-of-court settlements of disputes concerning contractual obligations arising from online purchase contracts. For the platform, see http://ec.europa.eu/consumers/odr.
(2) We are neither willing, nor obliged to participate in dispute settlement proceedings by a consumer arbitration board.
§ 13 Concluding provisions
(1) The law of the Federal Republic of Germany, under exclusion of the UN sales law, shall apply to the contract. This choice of law shall only apply to consumers if the granted protection has not been withdrawn through compelling provisions of the law of the state in which the consumer has their habitual residence.
(2) If the customer is a merchant, a legal entity under public law, or a separate public estate, or if the customer does not have a place of general jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from contractual relationships between the customer and the provider shall be the location of the provider.
(3) Any individual provisions of these general terms and conditions inapplicable shall not affect the validity of the remaining provisions. The inapplicable provision shall be replaced, if available, by legal provisions. If this constitutes an unreasonable hardship for one of the contractual parties, however, the entire contract shall be deemed invalid.
© The contents of our website are in large part protected by copyrights or ancillary copyrights. Copying, downloading, distributing, selling, and storing of these contents is prohibited, with the exception of caching (temporarily storage enabling display of the contents in the internet browser). An exception to this are contents expressly provided for download. In this case, user rights are restricted to usage for personal purposes only. Any further reproduction, publishing, distribution, making available to the public or other usage requires consent of the respective rights owner.
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