Our General Terms and Conditions

§ 1 Scope of these terms and conditions

1.1 All deliveries, performances and offers of Motomobil GmbH are based exclusively and solely on these terms and conditions. The valid version is the ruling one. These terms and conditions obtain for all future business relations, even if the parties might not expressively have agreed upon them. At the latest with the receipt of the delivery or the performance these terms and conditions are considered to be accepted. We hereby contradict the validity of all costumers’ references to their own terms and conditions. Our terms and conditions are also valid for unreserved deliveries in full awareness of contradicting or dissenting terms and conditions of the purchaser.

1.2 All variations of these terms and conditions must be in written form to be valid.

§ 2 Offers and Conclusion of the contract

2.1 All offers of Motomobil GmbH are subject to change and noncommittal, unless the written sales confirmation states something else. Declarations of acceptance and all orders need our written confirmation to be legally valid.

2.2 Drafts and drawings, afterimages, measurements, weights and any other data of performance must be in written form to be valid.

§ 3 Rescission

Any order can be withdrawn within 24 hours after placing of order.  Other Consumer rights are not affected by this.

§ 4 Prices

4.1 Unless there is no different agreement, Motomobil GmbH is holding itself bound to the prices of its offers for 30 days, beginning with the date of the offer. Authoritative are the prices resulting from the acceptance of order, including sales tax. Any extra performance or delivery will be charged additionally.

4.2 All prices include packaging. Forwarding charges are not included and will be charged additionally.

4.3 Within Germany outstanding debts will be paid by advance payment or, if the customer is registered, by bank collection. Within the EU outstanding debts will be paid by advance payment after issuing an invoice.

§ 5 Time of performance and delivery

5.1 Time limits either being mandatory or not, are not valid unless they are in written form. Motomobil GmbH will hand out sendings to the transport company within 5 working days.

5.2 Motomobil GmbH is not liable for delays of performance and delivery due to force majeure or due to incidents, which impede or preclude the delivery of Motomobil GmbH, for example strikes, lockouts, official directives etc., even if they only have effect on suppliers or sub-suppliers and even if the parties agreed on valid mandatory time limits. In these cases, Motomobil GmbH has the right to either delay the delivery and performance adequately, including lead time, or to withdraw the contract with respect to the not performable part, either completely or partly.

5.3 If the obstruction lasts longer than three months, Motomobil GmbH has the right to withdraw the contract with respect to the not performable part, after an adequate period of grace. In case of delays or withdrawal of the contract, the buyer has no right to claim remedies. Motomobil GmbH can only draw on the mentioned circumstances for withdrawal, if the buyer is informed immediately about them.

§ 6 Transfer of perils

The perils transfer to the buyer, as soon as the parcel is handed out to the transporting person or it has left the stock Motomobil GmbH for reasons of sending, if the parties of the contract are businessmen as defined by law. If the sending is precluded without Motomobil GmbHs fault, the perils transfer to the buyer with notification that the parcel is ready to be sent., if the buyer is businessmen as defined by law.

§ 7 Warranty

7.1 The customer, who is no consumer as defined by § 13 BGB, is obliged to examine the goods immediately on delivery and to notify the supplier (Post, UPS, haulage company) of any defects due to transportation. Later objections will not be accepted.

7.2 The customer, who is no consumer as defined by § 13 BGB, is obliged to examine the goods immediately for visible defects, which can easily be noticed by an average customer. The customer shall notify of visible damages in writing within two weeks after delivery. If the customer breaches this obligation to examine and to notify the goods are considered to be accepted with regard to this defect. The obligation to examine and notify according to § 377 HGB shall remain unaffected hereby.

7.3 If a good is defective and the customer is no consumer according to § 13 BGB we are entitled to choose either repair or replacement of the good.

7.4 The warranty period for new goods is two years after delivery of the goods if the customer is consumer. The warranty period is one year if the customer is no consumer.

7.5 The warranty period for used goods is one year after delivery of the goods if the customer is consumer. Towards customers who are no consumer a warranty is excluded.

7.6 The legal warranty period for claims of damages (§§ 309 Nr. 7 a) and b) shall be unaffected by the provisions under 4. and 5.

7.7 The warranty in case of granting a guarantee for the quality of the goods or in case of a fraudulent concealment of a defect shall be unaffected by the preceding provisions. The same applies for the provisions of §§ 478, 479 BGB regarding the recourse of the entrepreneur against the supplier.

§ 8 Reservation of proprietary rights

8.1 Until all requirements and bills are fulfilled, including all outstanding balance claims from current account entitled to Motomobil GmbH from any legal base against the buyer now or in the future, the following securities are granted, which will be approved by the buyer, as soon as their value exceeds the bills for more than 20 % in a sustainable way.

8.2 Motomobil GmbH remains the owner of the goods; any converting and alteration happens for Motomobil GmbH as manufacturer, without any obligations for Motomobil GmbH. As soon as the co-ownership expires, it is appointed, that the co-ownership of the good of the buyer merges in value percentage to Motomobil GmbH. The buyer keeps the co-ownership of Motomobil GmbH for free.
Any goods Motomobil GmbH has the co-ownership are called conditional goods in the following.

8.3 The buyer has the right to process and to sell conditional goods in regular business connections, as long as he is not behind schedule. Forfeiting and chattel mortgage are improper. Any claim resulting from the selling-on or from any other legal reason (insurance, tort) according to the conditional goods (including all balance claims from current account) will be transferred immediately and completely for reasons of security to Motomobil GmbH. The buyer has the right to bill the transferred claim in his name and for his account, until Motomobil GmbH recalls this right. This can only be if the buyer does not apply to his paying obligations.

8.4 If any third party reaches for the conditional good, the buyer will be referred to the ownership of the seller and he will be informed immediately.

§ 9 Payment

9.1 All bills are payable by prepayment, cash on delivery collection only check or on delivery, depending on the parties’ agreement. All deliveries are not prepaid, that means the delivery by postal service, conveyance or own car lies within the responsibility and costs of the buyer. For a small fee, all goods can be insured against damages in transit, if the parties of the contract are businessmen as defined by law. Motomobil GmbH has the right, despite notwithstanding any other provisions of the buyer, to deduct payments of the buyer from old impositions. If costs and interests accrued, Motomobil GmbH has the right to deduct payments firstly from the costs, secondly from the interest and thirdly from the basic performance.

9.2 A payment is considered to be made not before the amount is at Motomobil GmbHs disposal. If payments are made by check, the payment is considered to be made not before the check is cashed.

9.3 As soon as the buyer is in delay, Motomobil GmbH has the right to charge interest form that point on. The rate of interest is the same as commercial bank calculate for open current account advance. It can be lowered if the buyer proofs a lower charge.

9.4 If the buyer does not fulfil his payment obligations, particularly if he does not cash a check or discontinues payments, or if Motomobil GmbH gets to know about circumstances which challenge the credit status of the buyer, even if he had accepted check payments. Furthermore, Motomobil GmbH has the right to demand advance payments and provision of security.

9.5 The buyer has the right for summation, withholding or decrease of selling price, even if he refers to counterclaims or notices of defects, only if the counterclaims are legally binding or not in dispute.

§ 10 Prohibition of cession

The cession of claims against Motomobil GmbH to third parties is debarred, as long as Motomobil GmbH does not expressively agree to the cession.

§ 11 Limitation of liability

11.1 For other damages than damages caused by injuries of life, body and health we are only liable if they are based on wilfully or grossly negligent actions or on a culpable breach of an essential contractual obligation by us or our vicarious agents. An exceeding liability as well as the provisions of the Produkthaftungsgesetz (Product Liability Act) shall be unaffected hereby. If an essential contractual obligation is breached negligently the liability is limited to the foreseeable damage.

Essential contractual obligations are such obligations which just enable to carry out the contract and in which adherence the other contractual party regularly may trust.

11.2 The limitations of liability under 1. shall also apply in favour of our employees and representatives.

§ 12  Applying law – Court of Jurisdiction – Place of Performance and payment

12.1 The law of the Federal Republic of Germany applies to these terms and conditions as well as to any other legal relation to the buyer.

12.2 If the buyer is a general merchant in the sense of the German HGB (German Commercial Code), a corporate body of a public corporation or public separate assets, the business location of Motomobil GmbH and the Court of Jurisdiction for all differences arousing either directly or indirectly from the contract is Eglharting, Germany. Nevertheless, Motomobil GmbH is allowed to sue the buyer at the court of the customer's domicile.

12.3 Place of Performance and payment for all rights and duties arousing either directly or indirectly from the contract is, as long as the acceptance of order does not state differing agreements, the business location of Motomobil GmbH.

§ 13 Duty of secrecy

Motomobil GmbH is allowed to use all data from the buyer arousing from the business relations, no matter if they refer to the buyer or any third party, in compliance with the Bundesdatenschutzgesetz (German Data Protection Act). All data are treated confidentially and will not be handed out to any third persons. Particularly they will not be sold, hired or traded.

Last updated: January 2009

Return Policy

Right of Claim

According to EC directive 97/7/EG and German BGB §13 unconditional return of goods can only be supported when, either notice is given in writing (i.e. letter, fax, email), or the goods are returned. In either case the withdrawal must be made within 2 weeks, effective upon receipt of this notice.

Parts or accessories which have been installed or modified cannot be refunded.

Claims should be made either in writing or by returning the goods within the stated period to:

Conditions of Claim

In the case of a successful claim, goods and services and their effects to both parties are to be rescinded. In cases where the customer is not able to return the goods and services fully, or can only return them in a deteriorated condition, the recession is to be accompanied by compensation.

The claim is not affected if goods are deteriorated in the normal course of checking or unwrapping similar to the conditions in a shop. If the goods have not been used, and no action has been taken which could similarly damage or affect their condition, the customer liability to pay compensation is generally reduced.
We recommend that goods are only installed by qualified persons.

The cost of returning goods is the responsibility of the customer, unless previously agreed to be otherwise.

– End of the return policy –

Last updated: March 2008