General Terms and Conditions of MAHAG Accessories Shop
1. Scope of Application
1.1 The following General Terms and Conditions shall apply to any and all contracts between MAHAG Automobilhandel und Service GmbH & Co. OHG, Karl-Schmid-Straße 12, 81829 München (Munich), Germany (hereinafter referred to as “MAHAG”), and the customer concluded via the online shop http://vw-bus-camper-shop.de (hereinafter referred to as “MAHAG Accessories Shop”).
1.2 Our General Terms and Conditions (hereinafter referred to as “GTC”) shall apply exclusively. We do not acknowledge any contradicting terms and conditions or terms and conditions of the customer that deviate from our GTC even if they were presented to us, unless we explicitly approved of their application in writing.
1.3 The range of goods is both aimed at consumers and entrepreneurs. For the purposes of these GTC, (i) a “Consumer” is any natural person who concludes the contract for a purpose that is predominantly neither attributed to their commercial, nor to their independent professional activity (Sec. 13 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) and (ii) an “Entrepreneur” is any natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession (Sec. 14 para. 1 BGB).
2. Conclusion of Contract
2.1 Our offers which the customer can access via the MAHAG Accessories Shop are non-binding and subject to change. We reserve the right to remove and/or replace goods from our range of goods, to change prices and other conditions and to modify product specifications.
2.2 Images in catalogues, on data carriers, on electronic media and on any other advertising material are only visual approaches and may be different (e.g. colour, structure, effects) due to technical factors (e.g. screen calibration). Reasonable deviations and technical and other changes of individual goods are explicitly reserved and do not give reasons for complaints insofar as the change does not materially impair the quality of the goods and are acceptable to the customer.
2.3 The customer may choose from the range of goods of MAHAG Accessories Shop and collect these goods via the “Add to shopping cart” button in the so-called shopping cart. Via the “Buy now” button the customer submits a binding offer to purchase the goods collected in the shopping cart. Before submitting the order, the customer may change the data at any time, notice incorrect entries and correct them.
2.4 MAHAG subsequently sends an automatic confirmation of receipt to the customer via email which itemises the customer’s order and which the customer can print via the “Print” button. The automatic confirmation of receipt only documents that the customer’s order has been received by MAHAG but does not constitute an acceptance of the offer to purchase, unless we explicitly declare in the confirmation that we accept the customer’s offer to purchase (“Declaration of Acceptance”). The contract is only concluded when MAHAG declares acceptance of the offer or when MAHAG delivers the goods.
2.5 A delivery to customers is only possible to those countries which are listed in the MAHAG Accessories Shop for the respective goods (section “Delivery information”).
2.6 The exclusive contract language shall be German. We save the contract and send you the order details via e-mail. The GTC can be accessed and printed at any time via the website of MAHAG Accessories Shop. Previous orders can be viewed in the customer’s account provided that the customer created one.
3. Delivery Times, Availability of Goods, Collection of Goods
3.1 We will provide information on our delivery times in the respective ordering process under the section “Delivery information”.
3.2 The customer may also collect his goods directly from an agreed MAHAG branch. In compliance with clause 5.2, the customer shall be informed as soon as the ordered goods are ready for collection at the branch and the purchase price was paid.
3.3 If goods which the customer has chosen are not available at the time of his order, MAHAG will immediately notify the customer in the order confirmation. If the goods are permanently unavailable, MAHAG will not declare acceptance. In such case, a contract is not concluded.
3.4 If goods which the customer has ordered are only temporarily unavailable, MAHAG will also immediately notify the customer in the order confirmation. In the event of a delay in delivery of more than two weeks, the customer has the right to withdraw from the contract. Apart from that, MAHAG is in such event also entitled to dissolve the contract. Payments already effected by the customer shall immediately be refunded.
3.5 Prices and the release dates of goods which are pre-announced as new arrivals are based on non-binding information from suppliers or manufacturers and are subject to change until the release date of the goods. Pre-announced new arrivals may be pre-ordered at the indicated prices. In case of changes, MAHAG Accessories Shop will consult the customer before executing his pre-order. If the customer does not agree to the changes, the order will not be executed.
3.6 In case of partial deliveries which are arranged for or offered by MAHAG Accessories Shop, subsequent deliveries are free of delivery costs. In case of special requests of the customer with regard to a splitting of the order, delivery costs will be charged additionally for each partial delivery.
4. Prices, Delivery Costs, Passing of Risk
4.1 Our prices are those prices which are indicated in the shopping cart of MAHAG Accessories Shop at the time of the order. All prices of MAHAG Accessories Shop are quoted including the respectively valid statutory VAT.
4.2 The customer is informed about the respective delivery costs in the description of the goods (section “Delivery information”) as well as at the end of the ordering process. We will not take back any transport packaging or other packaging in accordance with the German Regulation on Packaging (Verpackungsverordnung, VerpackV); such packaging becomes the property of the customer.
4.3 Delivery is effected ex warehouse which is also the place of performance. If requested by the customer, the goods will be shipped to a different destination at the customer’s expense (sale by delivery, (Versendungskauf)). Unless agreed otherwise, we are entitled to choose the means of shipment (in particular the forwarding company, dispatch route, packaging) at our own discretion.
4.4 The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest at the handover of the goods.
4.5 In case of a sale by delivery where customers purchase goods in exercise of their trade, business or profession (Entrepreneur), the risk of accidental loss and accidental deterioration of the goods as well as the risk of delays shall already pass when the goods are handed over to the forwarding agent, the carrier or another person or entity commissioned with carrying out the shipment. Insofar as an acceptance has been agreed, it shall be decisive for the passing of risk. Also in all other respects, the statutory provisions governing the provision of works and services shall apply mutatis mutandis to an agreed acceptance. The goods shall be considered delivered and/or accepted also if the customer is in delay with accepting delivery.
4.6 In case of customers who make a purchase as a consumer, we will bear the transport risk until the transport company hands the goods over to the customer.
4.7 The customer shall bear the return expenses if he exercises his right of revocation. If the customer exercises his right of revocation, we will reimburse the customer for the delivery costs (original delivery) of the goods in the amount of the cheapest standard delivery option.
4.8 The customer may only offset counterclaims that are undisputed, have been established with legal effect or have been acknowledged by MAHAG. The customer’s right of retention shall only apply for counterclaims resulting from the same contractual relationship.
4.9 If it becomes apparent after the conclusion of the contract that our claim for payment of the purchase price is jeopardised by a lack of capacity to perform on the part of the customer (e.g. due to an application for the opening of insolvency proceedings), we are entitled, pursuant to the statutory provisions, to refuse performance and – possibly after setting a deadline for performance – to withdraw from the contract (Sec. 321 BGB). In case of contracts regarding the manufacturing of non-fungible goods (customised goods), we are entitled to immediately declare a withdrawal; the statutory provisions regarding the dispensability of setting a deadline shall remain unaffected.
5. Terms of Payment
5.1 The customer may effect payment via immediate money transfer (Sofortüberweisung), PayPal or advance payment. If the customer pays the invoice amount via the online provider PayPal, he must have an account with PayPal and/or create an account beforehand. As soon as the access details have been authorised, PayPal can confirm the transfer to us. Further information will be provided to the customer as part of the ordering process.
5.2 The payment of the purchase price shall be due immediately upon the conclusion of the contract. If the customer opted for paying via money transfer, we will send the customer a payment request together with the acceptance of the order. As soon as we have received payment, we will dispatch the customer’s goods or inform the customer that his ordered goods are ready for collection at the selected MAHAG branch. If we do not receive payment within 14 days after receipt of the email containing the payment request, we will set a reasonable deadline for the payment. If payment is not effected within this deadline, we can withdraw from the purchase contract.
5.3 If a payment date is determined by the calendar, the customer shall already be in default when he fails to meet the deadline. In this case the customer has to pay default interest in the amount of five percentage points above the respectively applicable basic interest rate, if he is a Consumer and in the amount of eight percentage point above the basic interest rate, if he is an Entrepreneur. The obligation of the customer to pay default interest shall not exclude MAHAG’s right to claim further damages caused by default.
5.4 Costs of chargebacks of payment transactions due to a lack of coverage or incorrect data submitted by the customer are to be borne by the customer.
6.1 MAHAG shall be liable for material defects pursuant to the applicable statutory provisions.
6.2 If the customer is an Entrepreneur, claims for defects shall be subject to the customer fulfilling his statutory duties to inspect and to report defects (Secs. 377, 381 of the German Commercial Code (Handelsgesetzbuch, HGB)). If a defect becomes apparent during an inspection or afterwards, we must be notified in writing without undue delay (unverzüglich). The notification shall be deemed made without undue delay if it is made within two weeks; the timely dispatch of the notification shall be sufficient to observe the notification period. Irrespective of this duty to inspect and to report defects, customers who are Entrepreneurs must report any obvious defects (including wrong and short deliveries) in writing within two weeks after delivery; again, the timely dispatch of the notification shall be sufficient to observe the notification period. If they fail to duly inspect the delivery and/or to duly report defects, we cannot be held liable for the defect which was not reported.
6.3 If the customer is an Entrepreneur, the limitation period for any claims, especially warranty claims for defects or claims for damages, is one year from the statutory beginning of the limitation period. This shall not apply to claims which are based on intent or gross negligence, in case of damage resulting from injuries to life, body or health or from a violation of a material contractual obligation (an obligation which must be fulfilled to enable a due performance of the contract and on whose fulfilment the contractual partner generally relies and may rely) as well as to claims based on torts or resulting from the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG).
6.4 MAHAG Accessories Shop does not assume any warranties for the usual wear and tear of the goods or for defects which occur due to faulty or negligent handling or operation by the customer or due to extraordinary circumstances of operation.
6.5 If the customer or a third party carries out repairs or alterations of the goods without the written consent of MAHAG, any warranty shall become void, unless the customer proves that the defects in question were not caused by the alterations carried out by himself or the third party. This shall not apply if the customer is a Consumer. In this case, it is assumed in the first six months after the passing of risk that the goods were already defective at the passing of risk.
6.6 MAHAG reserves the right to carry out alterations of construction and form in order to improve the technology or due to statutory requirements between the conclusion of the contract and the delivery of the goods, provided that the goods are not changed or altered considerably and it can reasonably be expected that the customer tolerates these
7.1 Claims of the customer for damages shall be excluded. This shall not apply to claims of the customer for damages resulting from injury to life, body or health or resulting from a violation of a material contractual obligation (obligation which must be fulfilled to enable a due performance of the contract and on whose fulfilment the contractual partner generally relies and may rely) as well as claims for other damage resulting from the violation of an obligation caused by intent or gross negligence of the seller, its legal representatives or vicarious agents. Material contractual obligations are such obligations whose performance is necessary to achieve the objective of the contract.
7.2 In case of a violation of a material contractual obligation (obligation which must be fulfilled to enable a due performance of the contract and on whose fulfilment the contractual partner generally relies and may rely) the seller shall only be liable for the foreseeable damage that might typically occur under the contract if it was caused by simple negligence, unless the customer claims damages on the basis of injury to life, body or health.
7.3 The restrictions of clauses 1 and 2 shall also apply in favour of the legal representatives and vicarious agents of the seller if claims are asserted directly against them.
7.4 The provisions of the ProdHaftG shall remain unaffected.
8. Retention of Title
8.1 Any and all goods delivered by MAHAG Accessories Shop remain the property of MAHAG until they have been fully paid. If the customer is an Entrepreneur, MAHAG retains title to the delivered goods until all of our present and future claims resulting from the purchase contract and an ongoing business relationship (secured claims) are paid in full.
8.2 The customer is neither entitled to pledge the goods under retention of title to a third party nor to use them as a security before the secured claims have been paid in full. The customer must immediately inform us in writing if and insofar as third parties raise any claims regarding the goods we own.
8.3 In case of a breach of contract by the customer, in particular in case of failure to pay the outstanding purchase price, we are entitled to withdraw from the contract pursuant to the statutory provisions and/or to demand surrender of the goods based upon the retention of title. The demand for surrender does not at the same time include a declaration of withdrawal; rather, we are entitled to merely demand surrender of the goods and to reserve the right to withdraw from the contract. If the customer fails to pay the due purchase price, we may only assert these rights if we have previously set the customer an appropriate payment deadline which has expired without results or if it is unnecessary pursuant to the statutory provisions to set such a deadline.
8.4 If the customer is an Entrepreneur, he is entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply additionally:
(a) The retention of title extends to the full value of the products created by way of processing, mixing or combining our goods in which case we shall be considered the manufacturer. If in case of processing, mixing or combining with goods of third parties their rights of title remain in place, we shall obtain joint ownership in the proportion of the invoice values of the processed, mixed or combined goods. In all other respects, the resulting product shall be subject to the same provisions that are applicable to the goods delivered subject to retention of title.
(b) The customer already now assigns to us any claims against third parties resulting from the resale of the goods or of the products completely and/or in the amount of our potential joint ownership share pursuant to the preceding clause as a security. We hereby accept such assignment. The duties of the customer listed in clause 8.2 shall also apply with respect to the assigned claims.
(c) The customer shall remain authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations vis-à-vis us and does not default in payment, no application for the opening of insolvency proceedings is filed and there is no other deficiency in his ability to perform. However, if this is the case, we are entitled to request that the customer discloses to us the assigned claims and the respective debtors, provides all of the information required for the collection, hands over the corresponding documents and informs the debtors (third parties) of the assignment.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the customer’s request.
9. Revocation Instructions of Consumers
10. Data Protection
MAHAG stores and uses personal data of the customer for the processing of orders and complaints, if any. MAHAG only uses the customer’s email address in order to inform him about the orders and for marketing purposes if the customer gave his consent.
11. Final Provisions
11.1 If the customer is a merchant, exclusive place of jurisdiction for all disputes between the contractual parties arising out of or in connection with this contract shall be Munich, Germany.
11.2 The laws of the Federal Republic of Germany shall exclusively apply without giving effect to the UN Convention on the International Sale of Goods (CISG).