General sales and delivery conditions
General Terms and conditions of Elesta building automation GmbH for the online shop EU
For all orders via our online shop EU by consumers and entrepreneurs the following terms and conditions apply:
1. Scope of application
1.1 The following terms and conditions apply to contracts that you conclude with us (Elesta building automation GmbH) via the https://test.mytem-smarthome.com/shop-eu website. Deviating, conflicting or additional terms and conditions will not become part of the contract unless we have expressly agreed to their validity in writing. Our terms and conditions of business also apply even if we carry out delivery to you without reservation in the knowledge of terms and conditions that contradict or deviate from our terms and conditions of business.
1.2 The goods and services offered via the online shop are aimed at consumers and entrepreneurs. A consumer is any natural person who enters into a legal transaction for purposes that are predominantly neither commercial nor their independent professional activity, and an entrepreneur is a natural or legal person or a partnership with legal capacity who, when entering into the contract, acts in the exercise of their commercial or independent professional activity.
2. Conclusion of contract, delivery reservation, dispatch
2.1 The presentation of the goods in our online shop does not represent a legally binding contract offer on our part, but is only a non-binding invitation to the consumer to order goods. All offers in our shop are subject to confirmation. The essential characteristics of the goods offered by us as well as the validity period of limited offers can be found in the individual product descriptions within the framework of our online offer.
2.2 You can place our products in the shopping cart without obligation and correct your entries at any time before sending your binding order by using the correction aids provided and explained in the order process. After calling up the checkout page and entering your personal data as well as the payment and shipping conditions, all order data is finally displayed again on the order overview page.
2.3 Before submitting the order, you have the possibility to check and change all details again (also using the “back” function of the Internet browser) or to cancel the purchase. By submitting the order via the button “order subject to payment” you submit a binding offer to us. We will immediately confirm receipt of your order placed via the online shop by e-mail. Such an e-mail does not constitute a binding acceptance of the order, unless, in addition to confirming receipt, it also declares acceptance. The purchase contract is concluded at our discretion by sending an order confirmation or by sending the ordered goods to the customer.
2.4 If you have not received a corresponding message or delivery of the ordered goods, you are not bound to your order. In this case a contract does not come about. Any services already rendered will be refunded immediately in this case.
2.5 We are entitled to limit the order to a quantity customary in households.
2.6 The agreement of delivery and performance periods and dates must be in text form.
2.7 The conclusion of the contract shall be subject to the reservation that in the event of incorrect or improper self-supply we shall not or only partially perform. In case of non-availability or only partial availability of the service, the customer will be informed within 7 working days. Any consideration already received will be refunded immediately.
2.8 The processing of the order and the transmission of all information required in connection with the conclusion of the contract is carried out by e-mail and partially automated. You must therefore ensure that the e-mail address you have deposited with us is correct, that the receipt of e-mails is technically ensured and in particular that it is not prevented by SPAM filters.
3. Retention of title
3.1 The goods remain our property until the purchase price has been paid in full.
3.2 If you are an entrepreneur, the following applies in addition:
3.2.1 We reserve title to the goods until all claims arising from an ongoing business relationship have been settled in full. You may resell the reserved goods in the ordinary course of business; you assign to us in advance all claims arising from this resale – irrespective of any combination or mixing of the reserved goods with a new item – in the amount of the invoice amount, and we accept this assignment. You remain authorised to collect the claims, however, we may also collect claims ourselves if you do not meet your payment obligations.
3.2.2 In the event of conduct in breach of contract, in particular default of payment, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to take back the goods. The assertion of claims for damages remains unaffected.
4. Terms of delivery
In addition to the indicated product prices there may be shipping costs. You will find more detailed information about possible shipping costs in the offers. We only deliver by mail. Unfortunately, it is not possible to pick up the goods yourself. We do not deliver to packing stations.
In our store you can pay on account.
6.1 The goods are only delivered to addresses within the EU. We reserve the right to send the goods in partial deliveries.
7. Transfer of risk
7.1 If you are a consumer, the risk of accidental loss and accidental deterioration of the sold goods during shipment shall not pass to you until the goods are handed over to you, regardless of whether the shipment is insured or uninsured. This does not apply if you have independently commissioned a transport company not named by the entrepreneur or another person designated to carry out the shipment.
7.2 If you are an entrepreneur, the risk of accidental loss and accidental deterioration shall pass to you as soon as the goods are handed over to the person carrying out the transport or leave our logistics centre for the purpose of dispatch.
8.1 We shall not install the products.
8.2 The customer shall install and commission the products at his own expense and responsibility. Work on the 230 V mains supply may only be carried out by a qualified electrician with relevant electrical engineering knowledge and experience.
9.1 If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled, without prejudice to other contractual and statutory rights, to withdraw from the contract after the unsuccessful expiry of a reasonable grace period.
9.2 We are entitled to withdraw from the contract without granting a grace period if the customer has suspended payments or has applied for the opening of insolvency proceedings or comparable proceedings to settle debts on his assets.
9.3 We shall also be entitled to withdraw from the contract without granting a grace period if a significant deterioration in the customer’s financial circumstances occurs or threatens to occur and the fulfilment of a payment obligation to us is endangered as a result, or if the customer is in a state of insolvency or over-indebtedness.
9.4 The customer shall grant us or persons commissioned by us immediate access to the items subject to retention of title and surrender them after declaration of withdrawal. After appropriate notification in good time, we may otherwise use the items subject to retention of title to satisfy due claims against the customer.
9.5 Statutory rights and claims are not restricted by the regulations contained in this § 9.
10. Liability for defects
10.1 If the customer is a consumer, the statutory warranty claims shall apply.
10.1.1 Within the scope of the warranty, a replacement unit will be delivered by us after a defect in a device has been detected. The customer must return the defective device to us within 14 days of receipt of the replacement device; if the customer does not comply with this deadline, the replacement device will be invoiced to him. In this case, the customer has a 14-day right of revocation in accordance with § 12, which begins with receipt of the invoice. The defective device is to be returned in an outer packaging identical or similar to the original packaging in such a way that it is safe for transport. It is advisable to use the packaging of the new device delivered later for this purpose.
10.1.2 If, however, it is established within the scope of the warranty claim that the warranty period for the returned device has already expired or the claimed defect was caused by misuse, incorrect use, unsuitable packaging or an unauthorized repair attempt, this is not a warranty case. This also applies to modifications to the device, such as painting or conversions. In these cases, the customer will be charged for the replacement unit. The customer has a 14-day right of withdrawal according to §12.
10.1.3 In the case of liability for defects, we will only bear the costs for the return shipment if the customer notifies us of the return shipment and affixes the return label, which is provided to him by e-mail or with the delivery of the replacement device, to the package.
10.2 If you are an entrepreneur, the following applies in deviation from paragraph 1:
10.2.1. only our own specifications and the manufacturer’s product description shall be deemed agreed as the quality of the goods, but not other advertising, public promotions and statements by the manufacturer.
10.2.2 You are obliged to inspect the goods immediately and with due care for deviations in quality and quantity. Obvious defects must be reported immediately, at the latest within 14 days of receipt of the goods, hidden defects immediately after their discovery, in text form (e.g. e-mail). Timely dispatch is sufficient to meet the deadline. In case of violation of the obligation to inspect and give notice of defects, the assertion of warranty claims is excluded.
10.2.3 In the event of defects, we shall provide warranty at our discretion either by repair or replacement. If the rectification of defects fails, you may, at your option, demand a reduction in price or withdraw from the contract. After a second unsuccessful attempt, the rectification of the defect shall be deemed to have failed, unless something else results from the nature of the item or the defect or other circumstances. In the event of rectification of defects, we shall not be obliged to bear the increased costs arising from the transfer of the goods to a place other than the place of performance, unless the transfer is in accordance with the intended use of the goods.
10.2.4 The warranty period is two years from the transfer of risk.
10.2.5 The limitation period for material defects shall commence upon delivery of the goods (transfer of risk).
10.2.6 In the event of a material defect within the limitation period, the cause of which was already present at the time of the transfer of risk, we may, at our discretion, remedy the defect or deliver a defect-free item as subsequent performance.
10.2.7 The period of limitation shall not recommence with the subsequent performance.
10.2.8 There shall be no claims for subsequent performance in the event of only insignificant deviation from the agreed quality or only insignificant impairment of usability. Further rights shall remain unaffected.
10.2.9 Material defects are not
– natural wear and tear;
– condition of the goods or damage arising after the transfer of risk as a result of improper handling, storage or installation, failure to observe installation and treatment instructions or excessive strain or use;
– the nature of the goods or damage caused by force majeure, special external influences or by the use of the goods outside the use presupposed or usual under the contract.
Claims for material defects shall not exist if the goods are modified by third parties or by the installation of parts of foreign origin, unless the defect is not causally connected with the modification.
10.2.10. Claims based on material defects including recourse claims of the customer are excluded if the customer has had the defect remedied by a specialist workshop/service centre not authorised by us.
11.1 We shall be liable without limitation for damages resulting from injury to life, body or health. Furthermore, we shall be liable without limitation in all cases of intent and gross negligence, in case of fraudulent concealment of a defect, in case of assumption of a guarantee for the quality of the object of purchase and in all other cases regulated by law.
11.2 If essential contractual obligations are affected, our liability for slight negligence is limited to the foreseeable damage typical for the contract. Essential contractual obligations are essential obligations which result from the nature of the contract and whose violation would endanger the achievement of the purpose of the contract as well as obligations which the contract imposes on us according to its content in order to achieve the purpose of the contract, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which you may regularly rely.
11.3 In the event of a breach of insignificant contractual obligations, liability for slightly negligent breaches of duty is excluded.
11.4 Mandatory liability under the Product Liability Act remains unaffected by the above limitations of liability.
11.5 Data communication via the Internet cannot be guaranteed to be error-free and/or available at all times given the current state of technology. In this respect, we are not liable for the constant or uninterrupted availability of the website and the services offered there.
Status: September 2019