Terms and Conditions
Table of contents
Conclusion of contract
Right of withdrawal
Prices and terms of payment
Delivery and shipping conditions
Retention of title
Liability for defects (warranty)
Place of jurisdiction
Alternative Dispute Resolution
These general terms and conditions (hereinafter "GTC") of Xochimilco-Market (hereinafter "Seller") apply to all contracts for the delivery of goods that a consumer or entrepreneur (hereinafter "Customer") with the Seller with regard to the seller on the Internet trading platform emissimo.de (hereinafter "Xochimilco-Market"). The inclusion of the customer's own conditions is hereby contradicted, unless something else has been agreed.
A consumer within the meaning of these General Terms and Conditions is any natural person who concludes a legal transaction for purposes that are predominantly neither commercial nor self-employed. Entrepreneur within the meaning of these terms and conditions 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 independent professional activity.
2) Conclusion of contract
The seller's product descriptions presented at Xochimilco-Market do not represent binding offers on the part of the seller, but serve to enable the customer to submit a binding offer.
The customer can submit the offer via the shopping cart system integrated in Xochimilco-Market.
When ordering via the shopping cart system, the customer submits a legally binding contract offer with regard to the goods contained in the shopping cart by clicking the "Buy now" button in the final step of the ordering process. The customer must go through the following technical steps:
The customer first places the goods in the virtual shopping cart by clicking on the "Add to shopping cart" button and then clicks on the "Proceed to checkout" button. In the next step, the customer must log in to his Xochimilco Market customer account or set up one for the first time, providing his e-mail address and password. In the next step, the customer must select the desired shipping method and click the "Buy now" button to complete the order.
Immediately after sending his order, the customer will receive a confirmation email from Xochimilco-Market indicating that the seller has received the offer. 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 e-mail) or having it sent, whereby the receipt of the order confirmation by the customer is decisive in this respect, or
- By delivering the ordered goods to the customer or having them delivered by Xochimilco-Market, in which case the receipt of the goods by the customer is decisive, or
- By asking the customer to pay after placing his order or having the customer asked to pay, or
- If payment by direct debit is offered and the customer decides in favor of this payment method by collecting the total price from the customer's bank account or having it collected by emissimo, whereby the point in time at which the customer's account is debited is decisive in this respect.
If there are several of the above alternatives, the contract is concluded at the point in time at which one of the above alternatives occurs first. The period for accepting the offer begins on the day after the customer has sent 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 to be a rejection of the offer with the result that the customer is no longer bound by his declaration of intent.
The text of the contract is saved by the seller after the conclusion of the contract and sent to the customer in text form (e.g. e-mail, fax or letter) after the order has been placed. The seller does not make the contract text accessible beyond this. In addition, the order data is archived at Xochimilco-Market and can be accessed by the customer free of charge via his password-protected user account at Xochimilco-Market.
When ordering via the Xochimilco-Market shopping cart system, the customer can recognize possible input errors by carefully reading the information displayed on the screen before submitting the order. An effective technical means for better recognition of input errors can be the enlargement function of the browser, with the help of which the display on the screen is enlarged. The customer can continuously correct his entries before the binding submission of the order as part of the electronic ordering process using the usual keyboard and mouse functions. In addition, all entries are displayed again in a confirmation window prior to the binding submission of the order and can also be corrected there using the usual keyboard and mouse functions
Only the German and Spanish languages are available for the conclusion of the contract.
Order processing and contacting take place via e-mail and automated order processing. The customer must ensure that the e-mail address provided by him for order processing is correct so that the e-mails sent by the seller can be received at this address. In particular, when using SPAM filters, the customer must ensure that all e-mails sent by the seller or by third parties commissioned to process the order can be delivered.
3) Right of withdrawal
3.1 In principle, consumers are entitled to a right of withdrawal.
3.2 More information on the right of cancellation can be found in the cancellation policy.
4) Prices and terms of payment
4.1 The prices given by the seller are total prices and include the statutory sales tax. Any additional delivery and shipping costs are specified separately in the respective product description
4.2 Payment is processed via the Xochimilco-Market payment service provider, which the seller has commissioned to process the payment.
5) Delivery and shipping conditions
5.1 Goods are delivered to the delivery address specified by the customer, unless otherwise agreed. When processing the transaction, the delivery address provided by the customer is decisive.
5.2 If 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 with regard to the costs for the delivery if the customer effectively exercises his right of withdrawal. If the customer effectively exercises the right of cancellation, the regulation made in the seller's cancellation policy applies to the return costs.
5.3 If the customer acts as an entrepreneur, the risk of accidental loss and accidental deterioration of the goods sold passes to the customer as soon as the seller has delivered the item to the forwarding agent, carrier or other person or institution responsible for carrying out the shipment. If the customer acts as a consumer, the risk of accidental loss and accidental deterioration of the goods sold only passes when the goods are handed over to the customer or an authorized recipient. Deviating from this, the risk of accidental loss and accidental deterioration of the goods sold also passes to the customer for consumers as soon as the seller has delivered the item to the freight forwarder, the carrier or the person or institution otherwise responsible for carrying out the shipment, if the Customer has commissioned the forwarding agent, carrier or other person or institution responsible for carrying out the shipment and the seller has not previously named this 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 delivery to himself. This only applies in the event that the seller is not responsible for the non-delivery and has concluded a specific hedging transaction with the supplier with due diligence. The seller will use all reasonable efforts to procure the goods. In the case of unavailability or only partial availability of the goods, the customer will be informed immediately and the consideration will be refunded immediately.
6) Retention of title
6.1 In relation to consumers, the seller reserves title to the delivered goods until the purchase price owed has been paid in full.
6.2 In relation to entrepreneurs, the seller reserves title to the delivered goods until all claims from an ongoing business relationship have been settled in full.
6.3 If the customer acts as an entrepreneur, he is entitled to resell the reserved goods in the ordinary course of business. The customer assigns all resulting claims against third parties to the seller in advance in the amount of the respective invoice value (including sales tax). This assignment applies regardless of whether the reserved goods have been resold without or after processing. The customer remains authorized to collect the claims even after the assignment. The seller's authority to collect the claims himself remains unaffected. However, the seller will not collect the claims as long as the customer meets his payment obligations to the seller, does not default in payment and no application for the opening of insolvency proceedings has been filed.
7) Liability for defects (warranty)
If the purchased item is defective, the statutory liability for defects applies. Notwithstanding this, the following applies:
7.1 If the customer acts as an entrepreneur,
- The seller has the choice of the type of supplementary performance;
- In the case of new goods, the limitation period for defects is one year from delivery of the goods;
- In the case of used goods, the rights and claims due to defects are fundamentally excluded;
- The statute of limitations does not begin again if a replacement delivery is made as part of the liability for defects.
7.2 The limitations of liability and shortening of deadlines set out above do not apply
- For items that have been used for a building in accordance with their usual purpose and have caused its defectiveness,
- For claims for damages and reimbursement of expenses by the customer, as well as
- In the event that the seller has fraudulently concealed the defect.
7.3 In addition, it applies to entrepreneurs that the statutory limitation periods for the right of recourse according to § 445b BGB remain unaffected.
7.4 If the customer acts as a merchant within the meaning of Section 1 of the German Commercial Code (HGB), he is subject to the commercial obligation to examine and give notice of defects in accordance with Section 377 of the German Commercial Code. If the customer fails to comply with the notification obligations regulated there, the goods are deemed to have been approved.
7.5 If the customer acts as a consumer, he is asked to complain to the deliverer about delivered goods with obvious transport damage and to inform the seller of this. If the customer does not comply, this has no effect whatsoever on his statutory or contractual claims for defects.
If the customer acts as an entrepreneur, the seller is liable to him for all contractual, quasi-contractual and statutory, including tortious claims for damages and reimbursement of expenses as follows:
8.1 The seller is fully liable for any legal reason
- In the event of intent or gross negligence,
- In the event of intentional or negligent injury to life, limb or health,
- On the basis of a guarantee promise, unless otherwise agreed in this regard,
- Due to mandatory liability such as under the Product Liability Act.
8.2 If the seller negligently violates an essential contractual obligation, liability is limited to the foreseeable damage that is typical for the contract, unless liability is unlimited in accordance with the above paragraph. Essential contractual obligations are obligations which the contract imposes on the seller according to its content in order to achieve the purpose of the contract, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the customer can regularly rely.
8.3 Incidentally, a liability of the seller is excluded.
8.4 The above liability regulations also apply with regard to the liability of the seller for his vicarious agents and legal representatives.
9) Applicable Law
The law of the Federal Republic of Germany applies to all legal relationships between the parties, excluding the laws on the international purchase of movable goods. For consumers, this choice of law only applies insofar as the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer has his habitual residence.
10) Place of jurisdiction
Handelt der Kunde als Kaufmann, juristische Person des öffentlichen Rechts oder öffentlich-rechtliches Sondervermögen mit Sitz im Hoheitsgebiet der Bundesrepublik Deutschland, ist ausschließlicher Gerichtsstand für alle Streitigkeiten aus diesem Vertrag der Geschäftssitz des Verkäufers. Hat der Kunde seinen Sitz außerhalb des Hoheitsgebiets der Bundesrepublik Deutschland, so ist der Geschäftssitz des Verkäufers ausschließlicher Gerichtsstand für alle Streitigkeiten aus diesem Vertrag, wenn der Vertrag oder Ansprüche aus dem Vertrag der beruflichen oder gewerblichen Tätigkeit des Kunden zugerechnet werden können. Der Verkäufer ist in den vorstehenden Fällen jedoch in jedem Fall berechtigt, das Gericht am Sitz des Kunden anzurufen.
11) Alternative Dispute Resolution
11.1 The EU Commission provides a platform for online dispute resolution under the following link: www.ec.europa.eu/consumers/odr
This platform serves as a contact point for the out-of-court settlement of disputes arising from online purchase or service contracts in which a consumer is involved.
11.2 The seller is neither obliged nor willing to participate in a dispute settlement procedure before a consumer arbitration board.