General Terms & Conditions
of MOTOMOBIL GmbH, represented by the Managing Directors Mr Ralf Esser and Mr Robert Raffner, Georg-Wimmer-Ring 3, 85604 Zorneding, hereinafter referred to as “Seller”.
- Please note, these Terms and Conditions were issued first in the German language, the following are a translation from German into English -
§ 1 General and Application
(1) The Seller offers through the online shop on the website www.motomobil.com mainly automotive parts and car accessories. The following Terms and Conditions apply to every business relation between the Seller and the Customer in its current version at the time of order.
(2) Consumer means, in terms of these general terms and conditions, every natural person who enters into a legal transaction for a purpose that is outside its trade, business or profession. An Entrepreneur means, in terms of these general terms and conditions, a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of its trade, business or profession. Customers for the purposes of such terms and conditions are consumers as well as Entrepreneurs.
(3) Individual contract agreements have priority ante these general terms and conditions. Diverging, conflicting or complementary general terms and conditions do not become a part of the contract, unless, their validity is expressly agreed.
§ 2 Conclusion of the contract
(1) The оffers of the Seller are subject to change and non-binding, unless otherwise gathered from the offer. The ordered goods can, due to different technical factors, slightly diverge from the goods shown on the Site. This particularly applies to colour modifications to a reasonable extend.
(2) The Customer can order on the website, by email, by fax or in writing. The Customer’s order is a binding offer of the ordered product. By clicking the button “Finish my order” during the order process on the website www.motomobil.com, the Customer gives a binding order of the products contained in the shopping cart.
(3) The Seller will immediately confirm the entrance of the Customer’s order by fax or email. The sales contract will not be automatically generated with the order confirmation, but first with the mailing of a delivery confirmation or the delivery of the product. In case of payment via PayPal, the acceptance of the order shall be automatically generated already with the order confirmation. The sales contract shall become binding with the receipt of the order confirmation. In case of direct debit, the contract shall become binding when the Customer completes the order process stating his bank details
(4) The Seller is entitled to accept within ten days the contract offering order. With products ordered on electronic way, the Seller is entitled to accept the order within five working days after receiving this. It amounts to an acceptance when the Seller delivers the ordered goods within this period.
(5) The complete, or partially, conclusion of the contract is subject to correct and punctual supply to the Seller. This is valid only for the case that the non-delivery is not the fault of the Seller, who has accurately negotiated a hedging transaction with the supplier. The Seller will undertake all reasonable strains to purchase the products. Otherwise the quid pro quo is immediately refunded. In case of non-availability or just partial availability of the goods the Customer is immediately informed.
(6) When the Customer orders, the Seller stores the contract text and sends it to the Customer by email together with the legally effective terms and conditions.
§ 3 Retention of title and rescission
(1) With Consumers the Seller reserves himself the property of the product up to the entire payment of the purchase price. With Entrepreneurs the Seller reserves himself the prоperty of the product up to the entire settlement of debt from a current business relation.
(2) With behaviour contrary to the contract of the buyer, in particular with default, misstatements of the Customer about his credit rating or if insolvency proceedings are opened regarding the assets of the buyer, the Seller is entitled to withdraw from the contract and to demand the products back in case that the consideration has not been entirely or completely fulfilled.
(3) The Entrepreneur is entitled to resell the products in the regular course of the business. He transfers to the Seller all demands by the complete amount invoiced, which arise to the Entrepreneur by the resell to third parties. The Seller accepts the assignment. After the assignment the Entrepreneur is authorised for the collection of the demand. The Seller reserves himself to draw the demand independently, as soon as the Entrepreneur does not properly fulfil his payment obligation.
(4) The Seller commits himself to flout the entitled securities when required by the Customer when the realizable value of the securities of the Seller exceeds the demand to be protected about more than 10%. The choice of the securities to be flouted is incumbent upon the Seller.
§ 4 Prices, delivery costs and retention
(1) The quoted price is binding. Prices include statutory Value Added Tax.
(2) Incurred shipping costs are included on following delivery cost report of the Seller. Packaging costs are already included in this delivery costs.
(3) The Customer shall only be entitled to set off in case that his counterclaims are legally established, accepted or are not denied by the Seller. The Customer can carry out a right of retention only if his counterclaim is based on the same contract relation.
§ 5 Payment terms
(1) Customers may pay in advance pre cash / bank transfer, by credit card, PayPal, direct debit or cash on delivery. To realise the payment via PayPal, the Customer has to register under www.paypal.de. The terms and conditions of paypal.de [www.paypal.de] shall apply. The Provider reserves the right to exclude certain terms of payment.
(2) The Customer undertakes to pay the whole price within fourteen days when the contract dates are received by email. The Customer comes to default after expiration of the deadline. During the default, the Consumer has to pay interest at a rate of at least 5 points above the prime rate. During the default, the Entrepreneur has to pay interest at a rate of least 8 points above the prime rate. Compared with the Entrepreneur, the Provider reserves himself to apply higher damage caused by delay.
(3) Products in stock are despatched within 3 working days.
In case of payment in advance / bank transfer, the delivery shall take place only after the invoiced amount has been accredited to the Seller’s account.
In case of payment by credit card, the Customer’s account shall be debited with the shipping confirmation.
In case of payment via PayPal, the despatch shall take place only once the final amount has been accredited to the Seller’s PayPal account.
In case of payment by direct debit, the invoice amount shall be collected from the buyer’s account due to the by the buyer issued authorization. The Customer’s account shall be debited by direct debit by concluding the ordering process.
§ 6 Delivery
(1) The goods will be delivered only to the countries specified in the shipping information.
(2) If the ordered product is not in stock, the Seller will immediately order it, inform the Customer about this order and about the expected delivery date. These products would be accordingly labelled on the website. Concerning the subject to correct and punctual supply the Seller refers to § 2 (5) of these Terms and Conditions.
(3) The Seller is entitled to deliver in partial deliveries, taking into consideration that any conflicting interests of the Customer are not affected. In case a partial delivery, no additional costs will be originated for the Customer.
§ 7 Passing of risk
In case of Consumers, the risk of accidental loss and accidental deterioration of the sold product shall pass to the Consumer at the time of the handover of the goods to the Customer. This also applies in case of sending purchases.
In case of Entrepreneurs, the risk of accidental loss and accidental deterioration of the sold product shall pass to the Entrepreneur once the goods have been given to the shipper, carrier or to the forwarding agent or company. This shall apply even if the Consumer is in default of acceptance.
§ 8 Right of withdrawal for Consumers
Consumers can withdrawal their contractual statement as follows:
Right of Witһdrawal
You have the right to revоke your contractual statement without giving reasons in written form (e.g., letter, fax, email) within 14 days or – if the goods leave to you before the deadline – by returning the goods. The period starts on receipt of this instruction in text form, however, does not begin before receipt of the thing (by partial delivery of goods of similar type not before receipt of the first partial delivery) and also not before fulfilment of our duties of information according to art. 246 § 2 in connection with § 1 paragraphs 1 and 2 EGBGB (Introductory Law to the German Civil Code) as well as our duties according to § 312g paragraph 1 sentence 1 BGB (German Civil Code) in connection with article. 246 § 3 EGBGB (Introductory Law to the German Civil Code). The revocation period shall be deemed by sending the revocation or the thing in due time
Declaration of revocation shall be sent to:
Consequences of the revocation:
In the case of an effective revocation both parties are bound to return the benefits already consumed and any eventual revenue (e.g. interests). If you are not able to return all, or part of, the goods, or if the goods are degraded, you shall pay compensation for the value of the goods. You do not need to pay compensation for the value of the goods if the degradation is caused due to your examining the goods as it would have been possible for you in a store. You do not need to pay compensation for the value of the goods for the degradation caused due to the designated use. Packet transportable goods have to be returned to our risk. You must bear the costs of returning the goods if the article supplied is in accordance with was ordered, and if the price of the item to be returned does not exceed EUR 40 or if, in the event of the price of the article being higher, at the time of the cancellation the Customer had not paid in full or made a contractually abrade payment. In all other cases there is no charge for the return of the goods. Articles which cannot be sent by post will be collected from you. Obligation to refund payments must be fulfilled within 30 days. The deadline begins for you with the dispatch of the notice of revocation or the item in question; for us it begins with the receipt of the same.
End of the revocation instructions
§ 9 Return costs in case of withdrawal
As far as the Consumer exercises his right of withdrawal according to § 8 of these Terms and Conditions, he shall bear the costs of returning the goods if the article supplied is in accordance with was ordered, and if the price of the item to be returned does not exceed EUR 40 or if, in the event of the price of the article being higher, at the time of the cancellation the Customer had not paid in full or made a contractually abrade payment. In all other cases there is no charge for the return of the goods.
§ 10 Warranty
(1) The delivered products can slightly diverse from the products shown on the internet. § 2 paragraph 1 from these Terms and Conditions refers to it.
(2) In case of non-conformity of the goods the Customer is entitled to supplementary performance in the form of remedy of the defect or delivery of conforming goods. The Seller is entitled to disagree with the elected form of supplementary performance when this leads to excessive costs and remains other supplementary performance which does not considerate significant disadvantages for the Consumer. In case of agreements with the Entrepreneur, the Seller is entitled to choose by himself the form of remedy of supplementary performance or delivery.
(3) If the supplementary performance misses, the Customer is entitled to demand a reduction of the purchase price or to withdraw from the contract as well as to demand compensation. A withdraw from the contract is excluded – taking into consideration the interest of both parties – if the defect is irrelevant. Instead of demanding damages in lieu of performance, the Customer may demand reimbursement of the expenses, according to § 284 BGB (German Civil Code), which he has incurred in reasonable reliance on the receipt of performance, save where the purpose of the expenses would not have been achieved. In case of damage compensation in lieu of performance the Customer shall agree with the restrictions of liability §11 from these Terms and Conditions.
(4) Entrepreneurs shall inform the Seller about defects at the latest within two weeks after receiving the service; otherwise the enforcement of the warranty claim is excluded. To meet the deadline, timely mailing, or notice, shall suffice. §377 HGB (German Commercial Code) is valid for merchants.
(5) The Customer shall show to the supplier (shipper / carrier) obvious damages to the packaging and the subsequent damages to the contents, decline the acceptance and inform the Seller immediately about this incident. Not complying with this request does not affect your warranty claim. The statutory limitation periods would not be shortened through the aforementioned request.
(6) If the Customer is an Entrepreneur, only the product description of the manufacturer is valid as a description of the product. Public statements, targeting or advertising of the manufacturer show no stipulated description of the product.
(7) The warranty periоd for Consumers amounts two years from delivery of the product. Deviations of the warranty period for Entrepreneurs: A year from delivery of the product. The warranty period also amounts a year from delivery of the product in case of used goods. The one-year-old warranty period does not apply when the Seller is accusable of gross culpability or fraudulent intent, further not in case of personal injury, impairment to health and death of the Customer, in case of a guarantee as well as in case of a delivery recourse in accordance with §§ 478, 479 BGB (German Civil Code). The liability of the Seller according to the Product Liability Act remains unaffected.
(8) The Seller hands no guarantees in the legal sense over the Customer. Manufacturer's guarantees remain unaffected.
§ 11 Liability
(1) With slightly negligent breaches of duty the liability limits on, depending the kind of product, predictable, cоntractual, immediate average damages. This is also valid to slightly negligent breaches of duty of the statutory agents or assistant or agent of the Seller. The Seller is not liable for slightly negligent violation of inessential contractual obligations. However, the Seller is liable for the violation of the Customer’s essential contract obligated legal positions. Essential contract obligated legal positions are those which the contract has to grant to the Customer according to the subject matter and purposes of the contract. The Seller is further liable for the violation of liabilities whose fulfilment allows the proper realisation of the contract and in whose realisation the Customer shall trust. The preceding restrictions of liability do not concern Customer’s claims from guarantees and/or product liability. The restrictions of liability will not be applied in case of fraudulent intent, violation the essential contractual obligations nor if the Supplier is accusable of personal injury, impairment to health and death of the Customer.
(2) The Seller is only liable for the own contents of his online shop on the website. As far as access to other web pages by means of links is possible, the Seller is not responsible for the external content. The Seller does not embrace the external content. In case that the Seller is informed about illegal contents on external web pages, he will immediately block the access to those sites. §121 paragraph 1 No4.8 TDSG (German Tele Services Data Protection Act) remains.
§ 12 Change of the general business regulations
(1) The Seller reserves the right at any time to make changes of these general terms and conditions under adequate prior notice of at least two weeks. The announcement will be served through publication of the changed general terms and conditions on the Internet indicating the effective date on the website www.motomobil.com. Contractual Customers will be informed via email about any changes of the general terms and conditions.
(2) If the Customer does not disagree within two weeks after publication, the changed terms of business are considered as accepted. In particular, the change announcement will be pointed out to the two weeks term.
§ 13 Final Clause
(1) This agreement shall be governed by the laws of the Federal Republic of Germany. Concerning consumers who enter into the legal transaction for a purpose that is outside his trade, business or profession, these laws shall be insofar considered if this allowed protection were detracted through the consumer’s usual residence mandatory regulations.
The UN Convention on Contracts for the International Sale of Goods regulations shall not be applied.
(2) If the client is a merchant, statutory juristic person or public law special legal estate, the jurisdiction for all litigations from this contract shall be the Court in which the Seller’s business location has its seat, provided that an exclusive jurisdiction is not given. The Seller is also entitled to sue the merchant at his residence or place of business Court. The competence remains unaffected due to an exclusive jurisdiction.