Terms and conditions of E-Cap Marine GmbH
General terms and conditions E-Cap Marine GmbH, status 02/2021
§ 1 General
(1) The following General Terms and Conditions (GTC) apply exclusively to all deliveries and other services of E-Cap Marine GmbH (hereinafter: Seller).
(2) Customers within the meaning of these GTC are both consumers and entrepreneurs.
(3) A consumer within the meaning of these GTC is any natural person who concludes the contract for a purpose that cannot be attributed to his commercial or independent professional activity (§ 13 of the German Civil Code - BGB).
(4) An entrepreneur within the meaning of these General Terms and Conditions is a natural or legal person or a partnership with legal capacity who, when concluding the contract, acts in the exercise of his commercial or independent professional activity (Section 14 (1) of the German Civil Code (BGB)).
(5) Terms and conditions of customers or third parties shall not apply, even if the Seller does not separately object to their application in individual cases. Even if the Seller refers to a letter that contains or refers to the terms and conditions of the Customer or a third party, this shall not constitute an agreement to the validity of those terms and conditions.
§ 2 Offers, scope of services and conclusion of contract
(1) The Seller's contract offers are subject to change and non-binding unless they are expressly marked as binding.
(2) The order confirmation and these General Terms and Conditions shall be exclusively authoritative for the scope of the contractually owed performance. Additions and amendments to the agreements made, including these terms and conditions, must be made in writing to be effective.
(3) Information provided by the Seller on the subject matter of the delivery (quantity, weights, dimensions, etc.) are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Customary deviations are permissible.
(4) Any transfer of concluded contracts to third parties (so-called transfer of contract) shall require the prior consent of the Seller in order to be effective.
§ 3 Prices and terms of payment
(1) Prices quoted are in EURO and do not include the statutory value-added tax if this is not shown separately, nor transport costs. Customs duties and similar charges shall be borne by the customer.
(2) Unless expressly agreed otherwise, the Seller shall deliver only against advance payment.
(3) If the provision of services is the subject matter of the contract, a down payment in the amount of 50% of the total order value shall be due for payment immediately after the conclusion of the contract, the other half after delivery, unless expressly agreed otherwise.
§ 4 Offsetting and retention
(1) The Seller shall be entitled to rights of set-off and retention as well as the defence of non-performance of the contract to the extent provided by law.
(2) The Customer may only set off its own claims against claims of the Seller if the counterclaims are undisputed or have been legally established. The Customer may only retain services owed by it due to justified counterclaims from the same contractual relationship.
§ 5 Delivery times
(1) The periods and dates for deliveries and services promised by the Seller shall always be approximate only unless a fixed period or a fixed date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarder, carrier or other third party entrusted with the transport.
(2) The Seller may - without prejudice to its rights arising from the default of the Customer - demand from the Customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period of time during which the Customer fails to meet its contractual obligations towards the Seller.
(3) The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which the Seller is not responsible. If such events make it substantially more difficult or impossible for the Seller to provide the delivery or service and the impediment is not only of temporary duration, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the Customer cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by means of an immediate written declaration to the Seller.
(4) If the Seller defaults on delivery or service, the Seller's liability for damages shall be limited to 5% of the order value. Otherwise, § 10 of these General Terms and Conditions shall apply. Default shall only occur if the Seller does not perform within a reasonable grace period in response to a reminder from the Customer despite the due date.
§ 6 Service provision
(1) Insofar as the Customer commissions the Seller with the conversion of a product to alternative drive technology, the Customer shall be obligated, after completion of the service provision and setting of a corresponding deadline by the Seller, to collect the removed components or to have them shipped at its own expense.
(2) Any warranty/guarantee claims that may still exist for the product to be retrofitted may be invalidated by the retrofit. The customer is recommended to contact the manufacturer or dealer in advance in this regard. A corresponding inspection is expressly not the subject of the service to be provided by the seller.
§ 7 Shipping, transfer of risk
(1) Unless expressly agreed otherwise, the Seller shall determine the appropriate mode of shipment and the carrier at its reasonable discretion.
(2) The Seller shall only owe the timely, proper delivery of the goods to the transport company and shall not be responsible for any delays caused by the transport company. A shipping time stated by the seller is therefore non-binding. If the Seller has undertaken installation or assembly work at the Customer's location, it shall, however, in deviation from this, owe the timely completion of this work and handover to the Customer on the contractually agreed date.
(3) If the customer is a consumer, the risk of accidental loss, accidental damage or accidental loss of the delivered goods shall pass to the customer at the time the goods are delivered to the customer or the customer is in default of acceptance. In all other cases, if the Seller is only responsible for the shipment, the risk shall pass to the Customer when the goods are handed over to the transport company. If the Seller has undertaken installation and assembly work at the Customer's location, however, the risk shall pass to the Customer upon completion of such work and upon handover of the goods to the Customer.
§ 8 Retention of title
(1) The goods delivered by the seller to the customer remain the property of the seller until full payment of all secured claims.
(2) The customer is not entitled to process and sell the reserved goods. Pledges and transfers by way of security are not permitted.
(3) If the reserved goods are combined by the customer with another item in such a way that they become an integral part of a uniform item, it is agreed that the seller acquires direct ownership or - if the combination is made with movable items belonging to several owners or the value of the other item is higher than the value of the reserved goods - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item.
(4) In the event of resale of the reserved goods, the customer hereby assigns to the seller by way of security the resulting claim against the purchaser - in the event of co-ownership of the seller in the reserved goods, in proportion to the co-ownership share.
(5) If third parties gain access to the goods subject to retention of title, in particular by way of seizure, the customer shall immediately inform them of the seller's ownership and notify the seller thereof in order to enable the seller to enforce its ownership rights.
§ 9 Warranty, defects
(1) If the customer is acting as a consumer, he shall be entitled to statutory rights in the event of defects. If a contract is concluded for the delivery of used items, claims for defects and claims for damages directly related to a defect shall become statute-barred within one year of handover.
(2) If the customer is acting as an entrepreneur, the warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by the customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the seller or his vicarious agents, which shall each be time-barred in accordance with the statutory provisions. If a contract is concluded for the delivery of used items, the delivery shall be made to the exclusion of any warranty for material defects.
(3) If the customer is acting as an entrepreneur, he must carefully inspect the goods delivered by the seller immediately upon receipt. The goods shall be deemed to have been approved insofar as, with regard to obvious defects or other defects which would have been recognisable in the course of an immediate, careful examination, no corresponding notification is made to the seller without delay. With regard to other defects, the goods shall be deemed to have been approved if the seller does not receive notification of the defect within seven working days of the time at which the defect became apparent; however, if the defect was already apparent to the customer at an earlier time during normal use, this earlier time shall be decisive for the start of the period for giving notice of defects.
(4) Further claims of the customer against the seller, insofar as these do not result from the assumption of a guarantee, are excluded. This shall not apply in the event of intent, gross negligence or breach of material contractual obligations on our part.
§ 10 Liability
(1) The Seller shall be liable to the Customer for all contractual, quasi-contractual and statutory claims, including claims in tort, for damages and reimbursement of expenses as follows:
(2) The Seller shall be liable for any legal reason without limitation
- 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, insofar as nothing else is regulated in this respect,
- on the basis of mandatory liability such as under the Product Liability Act.
(3) If the Seller negligently breaches a material contractual obligation, liability shall be limited to the foreseeable damage typical for the contract, unless liability is unlimited pursuant to paragraph 2 above. Material 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 fulfilment of which makes the proper performance of the contract possible in the first place and compliance with which the customer may regularly rely on. With regard to the Seller's liability arising from default, § 5 para. 4 shall apply.
(4) In all other respects, liability on the part of the Seller is excluded.
(5) The above liability provisions shall also apply with regard to the Seller's liability for its vicarious agents and legal representatives.
§ 11 Data protection notice
The seller collects, processes and uses the personal data of the customers, in particular their contact data, for processing the order. The same applies to the e-mail address, insofar as this was provided by the customer.
§ 12 Final provisions
(1) The contract existing between the Seller and the Customer shall be governed by the laws of the Federal Republic of Germany, subject to mandatory international private law provisions, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) The place of performance for all obligations arising from the contractual relationship is Winsen (Luhe), unless otherwise specified. If the seller is also responsible for installation, the place of performance shall be the place where the installation is to take place.
(3) If the Customer is a merchant, a legal entity under public law or a special fund under public law or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Seller and the Customer shall be the Seller's place of business in Winsen (Luhe). The Seller shall also be entitled to bring an action before a court that has jurisdiction over the registered office or a branch of the Customer.
(4) The invalidity of individual provisions of this contract shall not affect the validity of the remaining provisions. The contracting parties are obliged, within the framework of what is reasonable and in good faith, to replace an invalid provision with a valid provision that is equivalent to its economic success, provided that this does not result in a significant change to the content of the contract; the same applies if a matter requiring regulation is not expressly regulated.
§ 13 Consumer dispute resolution
(1) The Seller is neither obliged nor willing to participate in a dispute resolution procedure pursuant to §§ 36 ff VSBG.
(2) Nevertheless, the competent consumer arbitration board is notified as follows:
Universalschlichtungsstelle des Bundes Zentrum für Schlichtung e.V.
Straßburger Straße 8
77694 Kehl am Rhein