General Terms and Conditions of the Motobicycles-36 UG
1. General, Customers, Language
(1) All offers, sales contracts, deliveries and services made on the basis of any orders by our customers (each, a "Customer") through our online shop www.motobicycles.com (the „Internet Shop“), including orders by telephone, e-mail. fax, or mail shall be governed by these general terms and conditions of sale (the „General Terms and Conditions“).
(2) The product offerings in the Internet Shop are directed to both Consumers and Business Customers (as defined below), but in each case only to end users. For the purpose of these General Terms and Conditions,
(i) a „Consumer“ is any individual entering into the contract for a purpose not related to his or her business, trade or self-employed professional activity (Sec. 13 of the German Civil Code), and
(ii) a „Business Customer“ is a Customer (whether an individual, company or partnership vested with legal capacity) who enters into the relevant contract in the conduct of its business or its self employed professional activity (Sec. 14 (1) of the German Civil Code).
(3) Standard business conditions of the Customer do not apply, regardless of whether or not we expressly object to them in a particular case.
(4) Our contracts with the Customer shall be made exclusively in the German or English language, in each case depending on whether the Customer makes the relevant purchase on our German language website or our non German language websites. Therefore, if the order is made on our German website, exclusively the German version of these General Terms and Conditions shall be relevant. If the order is made on our non German language websites, exclusively the English version of these General Terms and Conditions shall be relevant.
2. Conclusion of Contract
(1) Our offerings published in the Internet Shop are non binding.
(2) By placing an order in the Internet Shop (which requires prior registration and acceptance of these General Terms and Conditions), the Customer makes a binding offer to purchase the relevant product. The offer shall remain valid and binding for a period ending on the end of the 14th calendar day following the day of the offer. We are able to accept the order within this period.
(3) Without undue delay upon receipt of the order, we will send to the Customer by e-mail a confirmation of receipt, which shall not constitute an acceptance of the order. The order shall be deemed to be accepted by us either upon subsequent (e-mail) acceptance of the order or by dispatching the product. The sales contract with the Customer shall not become effective until our acceptance.
(4) Any Customer who is a Consumer shall be entitled to revoke the offer and return the product in accordance with the cancellation and return policy as separately made available to the Customer in connection with the e-mail confirming receipt of the order.
3. Prices and Payment
(1) Our prices include statutory VAT, but are net of shipping costs. Any customs duties and similar public charges shall be borne by the Customer.
(2) Unless expressly otherwise agreed by us, all shipments by us shall require advance payment (to be made in the manner specified in our order form) or shall be paid cash on delivery, in each case upon receipt of an invoice (which may be sent by email and included in our notice of acceptance).
(3) The Customer shall have no right of set-off or retention, except to the extent that the counterclaim has not been disputed by us or been determined by a final and binding decision.
4. Dispatch of the Product
(1) We shall dispatch the product prior to or on the date of dispatch (i. e. the date on which the product is handed over by us to the carrier), as set out on the offer page when the Customer places the order; provided, however, that any such date of dispatch shall be only approximate and may therefore be exceeded by up to two business days. If no date of dispatch is indicated, we shall dispatch the product at the latest within five business days for products specified as „IMMEDIATELY“ (subject to a prior sale permitted pursuant to subsection 2 below) and within three weeks for any other products. Any such time period relevant to determine the date of dispatch shall begin (a) if advance payment has been agreed, upon receipt by us of the full purchase price (including VAT and shipping costs) or (b) if cash on delivery or payment after delivery has been agreed, upon the conclusion of the sales contract.
(2) Ist die Ware bei Abgabe des Angebots durch den Kunden im Webshop als „SOFORT“ gekennzeichnet und erfolgt die Lieferung gegen Vorkasse, werden wir die Ware innerhalb eines Zeitraums von fünf Werktagen nach unserer Annahme des Angebots auf Lager halten; geht die Zahlung nicht innerhalb dieses Zeitraums bei uns ein, sind wir jederzeit zum Abverkauf der Ware berechtigt. In diesem Fall erfolgt die Versendung innerhalb der genannten Frist von fünf Werktagen nur, solange der Vorrat reicht. Andernfalls gilt für die Versendung eine Frist von drei Wochen ab Zahlungseingang als vereinbart.
3) In the event that our supplier fails to deliver in a timely manner any products which were not identified on the offer page in the Internet Store (at the time of the order) as „IMMEDIATELY“ or were sold out pursuant to subsection 2, the relevant date of dispatch pursuant to subsections 1 and 2 shall be extended until delivery is made by our supplier plus an additional period of two business days, but in no event by a period of more than three weeks. Any such extension shall be subject to the proviso that we have without undue delay ordered the relevant products from the supplier and that our supplier’s failure to timely supply the products is not a result of our fault or negligence.
(4) In the event that the product is no longer available, or cannot be timely delivered, for any of the reasons set out in subsection 3, we shall without undue delay inform theCustomer thereof. In these cases, we will make an individual agreement with the customer regarding the time of delivery. If the product is no longer available from our suppliers within the foreseeable future, we shall be entitled to terminate the sales contract. In case of any such termination, we shall without undue delay reimburse the Customer any payments which the Customer has made to us in respect of the order. The legal rights of the Customer resulting from late delivery shall not be affected by this
provision; provided, however, that the Customer may claim damages only subject to the provisions of Section 8 of these General Terms and Conditions. In the event that the product is permanently not available, we will not accept the order. In this case, a sales contract with the Customer shall not become effective.
(5) In the event that we fail to keep a date of delivery, the Customer shall provide an appropriate grace period that may not be less than one week.
(6) Partial deliveries of Products included in the same order shall be permitted, provided that the products can be used separately and provided further that we shall bear any additional shipping costs caused thereby.
5. Shipment, Insurance and Passing of Risk
(1) Unless expressly otherwise agreed upon, we shall be free to determine the appropriate mode of shipment and to select the carrier at our reasonable discretion. We shall bear the risk of transport in case the Customer is a consumer.
(2) We shall only be obliged to properly and timely deliver the product to the carrier, and any transit times specified in the Internet Store shall only be non-binding estimates.
(3) If the Customer is a Consumer, the risk of accidental destruction, damage or loss of the delivered product shall pass to the Customer upon delivery of the product to the Customer or upon the Customer’s default of acceptance. In all other cases, such risk shall pass to the Customer upon delivery of the product by us to the carrier.
(4) The Customer shall bear the shipping costs. The shipping costs include the costs for a transport insurance against the usual risks of transportation. We will inform the Customer of the shipping costs in the order form.
(5) The Customer shall bear the usual return shipping costs when exercising the right to revoke in case the delivered product is consistent with the ordered product and the price of the returned product does not exceed EUR 40.00, or in case of a higher price, if the Customer has not paid or had not made an agreed partial payment at the time when exercising the right to revoke.
6. Retention of Title and Resale
(1) We retain legal title to any product supplied by us until the purchase price (including VAT and shipping costs) for such product has been fully paid.
7. Warranty, Guarantee
(1) In the event of a defect of the delivered product, the Customer shall be entitled to request from us to repair the defect or to supply another product (as ordered) which is free from defects.
(2) We may refuse to remedy a defective product in the manner requested by the Customer if such remedy would result in unreasonable costs.
(3) If the remedy (supplementary performance) pursuant to Section 7 fails or cannot reasonably be expected from the Customer or we refuse to so remedy the defect, the Customer shall be entitled to terminate the sales contract, reduce the purchase price or claim damages or frustrated expenses, in each case in accordance with applicable law; provided, however, that damage claims of the Customer shall be subject to the provisions contained in Section 8 of these General Terms and Conditions.
(4) The statutory warranty period shall be two years upon delivery of the Product if the Customer is a Consumer or otherwise twelve months upon delivery of the product.
(i) The guarantee does not cover damages caused by inappropriate or unspecified use according to the fields of use for the particular product as described on our website, as for example
(1) Our liability for negligence, other than for gross negligence, resulting from late delivery shall be limited to an amount equal to (10)% of the aggregate purchase price (including VAT).
(2) We shall not be liable (on whatever legal grounds) for damages which may not reasonably be foreseen, considering the type of the relevant order and product and assuming a normal use of the product. The foregoing limitations of liability shall not apply in cases of wilful misconduct or gross negligence.
(3) Damage claims of the Customer based on obvious defects of the product are excluded, unless the Customer reports the defect within two weeks after the delivery of the product (4) The provisions of this Section 8 shall not apply with respect to our liability for guaranteed product specifications (within the meaning of Sec. 444 of the German Civil Code), personal injury or under the German Product Liability Act.
9. Data Protection
(1) We may save and process any data relating to the Customer, to the extent necessary for the purpose of the execution and implementation of the sales contract and as long as we are required to keep such data in accordance with applicable law.
(2) We shall have the right to submit personal data relating to the Customer to credit agencies, to the extent necessary for a credit check subject, however, to the Customer’s consent in each individual case. We shall neither make available any personal data of the Customer to other third parties without the express consent of the Customer, except to the extent that we are required to disclose any data pursuant to applicable law.
(3) We shall not be permitted to collect, submit to any third party or otherwise process personal data of the Customer for any purpose other than those set forth in this Section 10
10. Applicable Law
(1) Any contracts entered into between us and the Customer shall be governed by the laws of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Goods (CISG), without prejudice to any mandatory conflict of laws provisions.