General terms and conditions with customer information
Table of Contents
- Conclusion of contract
- Right of withdrawal
- Prices and terms of payment
- Delivery and shipping conditions
- Retention of title
- Liability for defects (warranty)
- Redemption of promotional vouchers
- Redemption of gift vouchers
- Applicable law
- Place of jurisdiction
- Information on online dispute resolution
1) Scope of application
1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) of XP Sport GmbH (hereinafter referred to as “Seller”) shall apply to all contracts concluded by a consumer or entrepreneur (hereinafter referred to as “Customer”) with the Seller with regard to the goods and/or services presented by the Seller in its online shop. The inclusion of the customer’s own terms and conditions is hereby objected to, unless otherwise agreed.
1.2 These General Terms and Conditions shall apply accordingly to the purchase of vouchers, unless otherwise expressly stipulated.
1.3 A consumer within the meaning of these General Terms and Conditions is any natural person who enters into a legal transaction for purposes which can predominantly be attributed neither to his commercial nor to his independent professional activity. 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 a legal transaction, acts in the exercise of his commercial or independent professional activity.
2) Conclusion of contract
2.1 The product descriptions contained in the online shop of the seller do not represent binding offers on the part of the seller, but serve to submit a binding offer by the customer.
2.2 The customer can submit the offer via the online order form integrated in the seller’s online shop. After placing the selected goods and/or services in the virtual shopping cart and going through the electronic ordering process, the customer submits a legally binding offer to enter into a contract with regard to the goods and/or services contained in the shopping cart by clicking the button that concludes the ordering process. Furthermore, the customer may also submit the offer to the seller by telephone, fax or e-mail.
2.3 The Seller may accept the Customer’s offer within five days,
by sending the customer a written order confirmation or an order confirmation in text form (fax or e-mail), in which case the receipt of the order confirmation by the customer is decisive, or
by delivering the ordered goods to the customer, in which case the receipt of the goods by the customer is decisive, or
by requesting payment from the customer after the customer has placed the order.
If several of the aforementioned alternatives exist, the contract shall be concluded at the point in time at which one of the aforementioned alternatives occurs first. If the seller does not accept the customer’s offer within the aforementioned period, this shall be deemed to be a rejection of the offer with the consequence that the customer is no longer bound by his declaration of intent.
2.4 If the customer selects “PayPal Express” as a payment method during the online ordering process, he also issues a payment order to his payment service provider by clicking the button that concludes the ordering process. In this case, the seller declares, notwithstanding section 2.3, the acceptance of the offer of the customer at the time when the customer triggers the payment process by clicking the button that concludes the ordering process.
2.5 The period for acceptance of the offer begins on the day after the customer sends the offer and ends with the expiry of the fifth day following the sending of the offer.
2.6 When submitting an offer via the Seller’s online order form, the text of the contract will be stored by the Seller and sent to the Customer in text form (e.g. e-mail, fax or letter) after the Customer has sent his order together with these General Terms and Conditions. In addition, the text of the contract is archived on the Seller’s website and can be accessed free of charge by the Customer via his password-protected customer account by providing the relevant login data, provided that the Customer has created a customer account in the Seller’s online shop before submitting his order.
2.7 Prior to the binding submission of the order via the Seller’s online order form, the Customer may continuously correct its entries using the usual keyboard and mouse functions. In addition, all entries are displayed again in a confirmation window before the binding submission of the order and can also be corrected there using the usual keyboard and mouse functions.
2.8 Only the German language is available for the conclusion of the contract.
2.9 Order processing and contacting usually take place via e-mail and automated order processing. The customer must ensure that the e-mail address he/she has provided for order processing is correct, so that e-mails sent by the seller can be received at this address. In particular, when using SPAM filters, the customer must ensure that all e-mails sent by the seller or by third parties commissioned by the seller to process the order can be delivered.
3) Right of withdrawal
3.1 Consumers are generally entitled to a right of withdrawal.
3.2 More detailed information on the right of withdrawal can be found in the seller’s cancellation policy.
3.3 The right of withdrawal does not apply to consumers who do not belong to a Member State of the European Union at the time of conclusion of the contract and whose sole place of residence and delivery address are outside the European Union at the time of conclusion of the contract.
4) Prices and terms of payment
4.1 Unless otherwise stated in the Seller’s product description, the prices quoted are total prices which include the statutory value added tax. Any additional delivery and shipping costs will be indicated separately in the respective product description.
4.2 In the case of deliveries to countries outside the European Union, further costs may be incurred in individual cases for which the Seller is not responsible and which are to be borne by the Customer. These include, for example, costs for the transfer of money by credit institutions (e.g. transfer fees, exchange rate fees) or import duties or taxes (e.g. customs duties). Such costs may also be incurred in relation to the transfer of funds if the delivery is not made to a country outside the European Union but the customer makes the payment from a country outside the European Union.
4.3 Various payment options are available to the customer, which are indicated in the online shop of the seller.
4.4 If advance payment has been agreed, payment shall be due immediately after conclusion of the contract.
4.5 In the case of payment by means of a payment method offered by PayPal, the payment shall be processed via the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter referred to as “PayPal”), subject to the PayPal terms and conditions of use, available at https://www.paypal.com/de/webapps/mpp/ua/useragreement-full or – if the customer does not have a PayPal account – subject to the terms and conditions for payments without a PayPal account, available at https://www.paypal.com/de/webapps/mpp/ua/privacywax-full.
4.6 If the SEPA Direct Debit payment method is selected, the invoice amount shall be due for payment after a SEPA Direct Debit mandate has been issued, but not before expiry of the period for advance information. The direct debit is collected when the ordered goods leave the seller’s warehouse, but not before the expiry of the period for advance information. Pre-notification is any communication (e.g. invoice, policy, contract) from the seller to the customer announcing a debit by SEPA Direct Debit. If the direct debit is not honoured due to insufficient funds in the account or due to the provision of incorrect bank details, or if the customer objects to the direct debit even though he is not entitled to do so, the customer shall bear the charges incurred by the respective credit institution as a result of the chargeback if he is responsible for this.
4.7 If the credit card payment method is selected, the invoice amount is due immediately upon conclusion of the contract. The processing of the payment method credit card payment is carried out in cooperation with secupay AG, Goethestr. 6, 01896 Pulsnitz (www.secupay.de) to which the supplier assigns his claim for payment. secupay AG collects the invoice amount from the customer’s specified credit card account. In the event of assignment, payment may only be made to secupay AG with debt-discharging effect. The credit card will be charged immediately after the customer has sent the order in the online shop. Even if the payment method credit card payment via secupay AG is selected, the provider shall remain responsible for general customer inquiries, e.g. regarding the goods, delivery time, shipment, returns, complaints, revocation declarations and deliveries or credit notes.
5) Delivery and shipping conditions
5.1 The delivery of goods shall be made by dispatch to the delivery address specified by the customer, unless otherwise agreed. The delivery address given in the seller’s order processing is decisive for the transaction. Deviating from this, when selecting the payment method PayPal, the delivery address deposited by the customer with PayPal at the time of payment is decisive.
5.2 If the transport company returns the shipped goods to the seller because delivery to the customer was not possible, the customer shall bear the costs for the unsuccessful shipment. This does not apply if the customer effectively exercises his right of withdrawal, if he is not responsible for the circumstance that led to the impossibility of delivery, or if he was temporarily prevented from accepting the offered service, unless the seller had given him reasonable prior notice of the service.
5.3 If the customer acts as an entrepreneur, the risk of accidental loss and accidental deterioration of the sold goods shall pass to the customer as soon as the seller has delivered the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If the customer is acting as a consumer, the risk of accidental loss and accidental deterioration of the goods sold shall in principle not pass until the goods are handed over to the customer or a person entitled to receive them. Notwithstanding the foregoing, the risk of accidental loss and accidental deterioration of the goods sold shall pass to the customer, even in the case of consumers, as soon as the seller has delivered the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment, if the customer has commissioned the forwarding agent, the carrier or any other person or institution designated to carry out the shipment to carry out the shipment and the seller has not previously named such person or institution to the customer.
5.4 The seller reserves the right to withdraw from the contract in the event of incorrect or improper self-delivery. This shall only apply in the event that the Seller is not responsible for the non-delivery and the Seller has concluded a specific covering transaction with the supplier with due diligence. The seller will make all reasonable efforts to procure the goods. In the event of non-availability or only partial availability of the goods, the customer will be informed immediately and the consideration will be refunded without delay.
5.5 In the case of self-collection, the Seller shall first inform the Customer by e-mail that the goods ordered by him are ready for collection. After receipt of this e-mail, the customer can pick up the goods at the seller’s headquarters after consultation with the seller. In this case no shipping costs will be charged.
5.6 Vouchers are provided to the customer as follows:
6) Retention of title
6.1 With respect to consumers, the Seller retains title to the delivered goods until the purchase price owed has been paid in full.
6.2 With respect to entrepreneurs, the Seller shall retain title to the delivered goods until all claims arising from an ongoing business relationship have been settled in full.
6.3 If the customer acts as an entrepreneur, he is entitled to resell the reserved goods in the ordinary course of business. All claims against third parties arising from this shall be assigned by the customer to the seller in advance in the amount of the respective invoice value (including value added tax). This assignment shall apply irrespective of whether the reserved goods have been resold without or after processing. The customer remains authorised to collect the claims even after the assignment. The authority of the seller to collect the claims himself remains unaffected by this. However, the seller will not collect the claims as long as the customer meets his payment obligations to the seller, is not in default of payment and no application for the opening of insolvency proceedings has been filed.
7) Liability for defects (warranty)
If the purchased item is defective, the provisions of the statutory liability for defects shall apply. Notwithstanding the foregoing:
7.1 For entrepreneurs
an insignificant defect shall in principle not constitute grounds for claims based on defects;
the seller has the choice of the type of supplementary performance;
the limitation period for defects in new goods is one year from the transfer of risk;
the rights and claims due to defects are generally excluded in the case of used goods;
the limitation period shall not begin again if a replacement delivery is made within the scope of liability for defects.
7.2 For consumers, the limitation period for claims for defects in used goods is one year from delivery of the goods to the customer, with the restriction of the following clause.
7.3 The above-mentioned limitations of liability and shortening of the statute of limitations shall not apply to
for items which have not been used for a building in accordance with their customary use and have caused its defectiveness,
for damages resulting from injury to life, body or health, which are based on an intentional or negligent breach of duty by the seller or an intentional or negligent breach of duty by a legal representative or vicarious agent of the seller,
for other damages which are based on an intentional or grossly negligent breach of duty by the seller or on an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of the user, as well as
in the event that the seller has fraudulently concealed the defect.
7.4 In addition, for entrepreneurs, the statutory limitation periods for the right of recourse pursuant to § 478 BGB shall remain unaffected.
7.5 If the customer acts as a merchant within the meaning of § 1 of the German Commercial Code (HGB), he shall be subject to the commercial obligation to examine the goods and to give notice of defects pursuant to § 377 of the German Commercial Code (HGB). If the customer fails to comply with the notification obligations regulated therein, the goods shall be deemed to have been approved.
7.6 If the customer is acting as a consumer, he is requested to complain about delivered goods with obvious transport damage to the deliverer and to inform the seller of this. If the customer does not comply with this, this shall have no effect on his statutory or contractual claims for defects.
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:
8.1 The Seller shall be liable without limitation for any legal reason whatsoever
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.
8.2 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 in accordance with the preceding clause. 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 execution of the contract possible in the first place and on the observance of which the customer may regularly rely.
8.3 In all other respects, any liability on the part of the Seller is excluded.
8.4 The above liability provisions shall also apply with regard to the Seller’s liability for its vicarious agents and legal representatives.
9) Redemption of promotional vouchers
9.1 Vouchers which are issued free of charge by the Seller as part of promotions with a specific period of validity and which cannot be purchased by the Customer (hereinafter “Promotion Vouchers”) can only be redeemed in the Seller’s online shop and only during the specified period.
9.2 Individual products may be excluded from the voucher promotion if a corresponding restriction results from the content of the promotion voucher.
9.3 Promotional vouchers can only be redeemed before the order process is completed. Subsequent offsetting is not possible.
9.4 Only one promotional voucher can be redeemed per order.
9.5 The value of the goods must be at least equal to the amount of the promotional voucher. Any remaining credit will not be refunded by the seller.
9.6 If the value of the promotional voucher is not sufficient to cover the order, one of the other payment methods offered by the Seller may be chosen to settle the difference.
9.7 The credit balance of a promotional voucher is neither paid out in cash nor does it earn interest.
9.8 The promotional voucher shall not be refunded if the customer returns the goods paid for in full or in part with the promotional voucher within the scope of his statutory right of revocation.
9.9 The promotional voucher is intended only for use by the person named on it. A transfer of the promotion voucher to third parties is excluded. The seller is entitled, but not obliged, to check the material eligibility of the respective voucher holder.
10) Redemption of gift vouchers
10.1 Gift vouchers that can be purchased via the Seller’s online shop (hereinafter “Gift Vouchers”) can only be redeemed in the Seller’s online shop, unless otherwise stated in the Gift Voucher.
10.2 Gift vouchers and remaining balances of gift vouchers are redeemable until the end of the third year following the year of purchase of the voucher. Remaining credits will be credited to the customer until the expiry date.
10.3 Gift vouchers can only be redeemed before the order process is completed. Subsequent offsetting is not possible.
10.4 Several gift vouchers can also be redeemed for one order.
10.5 Gift Vouchers can only be used for the purchase of Goods and cannot be used to purchase additional Gift Vouchers.
10.6 If the value of the gift voucher is not sufficient to cover the order, one of the other payment methods offered by the Seller may be chosen to settle the difference.
10.7 The balance of a gift voucher is neither paid out in cash nor does it earn interest.
10.8 The Gift Voucher is intended for use only by the person named on it. A transfer of the gift voucher to a third party is excluded. The seller is entitled, but not obliged, to check the material eligibility of the respective voucher holder.
11) Applicable law
11.1 All legal relations between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the laws on the international sale of movable goods. In the case of consumers, this choice of law shall only apply to the extent that the protection granted is not withdrawn by mandatory provisions of the law of the country in which the consumer has his habitual residence.
11.2 Furthermore, this choice of law with regard to the statutory right of withdrawal shall not apply to consumers who do not belong to a Member State of the European Union at the time of conclusion of the contract and whose sole place of residence and delivery address are outside the European Union at the time of conclusion of the contract.
12) Place of jurisdiction
If the customer is a merchant, a legal entity under public law or a special fund under public law with its registered office in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract shall be the registered office of the seller. If the customer is domiciled outside the territory of the Federal Republic of Germany, the seller’s place of business shall be the exclusive place of jurisdiction for all disputes arising from this contract if the contract or claims arising from the contract can be attributed to the customer’s professional or commercial activity. In the aforementioned cases, however, the seller is in any case entitled to appeal to the court at the customer’s place of business.
13) Information on online dispute resolution
The EU Commission will make available an internet platform for the online settlement of disputes (so-called “ODR platform”) in the first quarter of 2016. The ODR platform is intended to serve as a contact point for the out-of-court settlement of disputes concerning contractual obligations arising from online sales contracts.
The ODR platform will be accessible at the following link: http://ec.europa.eu/consumers/odr.