General Terms and Conditions for Customer Information
1) Area of Application
These Terms and Conditions (hereinafter “T&Cs”) of MYMITO GmbH (hereinafter "Seller") apply to all contracts that a consumer or entrepreneur (hereinafter "Customer") concludes with the Seller with regard to the goods and/or services listed by the Seller in the Seller’s online shop. The inclusion of the Customer's own terms is hereby precluded unless otherwise agreed.
1.2 These T&Cs shall apply accordingly for the purchase of vouchers provided no deviation is expressly regulated in this respect.
1.3 Within these T&Cs, a consumer is any natural person who concludes a transaction for purposes which cannot be primarily attributed as either commercial activity or as independent professional activity. Within these T&Cs, an entrepreneur is a natural or legal person or legal partnership who/which is acting in his commercial or professional capacity upon concluding a legal transaction.
2) Conclusion of Contract
2.1 The product descriptions contained in the online shop of the Seller are not binding offers on the part of the Seller, but act as the submission of a binding offer by the Customer.
2.2 The Customer can submit the offer via the built-in order form online in the Seller’s online shop. In this process, after having placed the selected goods and/or services into the virtual shopping cart and having gone through the electronic ordering process by clicking the ordering process finalization button, the Customer provides a legally binding contractual offer in relation to the goods and/or services in the Customer’s cart.
2.3 The Seller may accept the offer of the Customer;
- by delivering the ordered goods to the Customer, whereby in this respect the Customer’s access to the goods is decisive, or
- by demanding payment from the Customer after the submission of his order.
If more than one of the above alternatives is available, the contract will be concluded at the time at which one of the above alternatives first occurs. If the Seller fails to deliver to the Customer within the aforementioned period, the offer shall be considered rejected with the result that the Customer is no longer bound by the Customer’s declaration of intention.
2.4 The order confirmation sent to the Customer following receipt constitutes an acceptance of the offer to the Customer.
2.5 If an offer is submitted via the Seller’s online order form, the contract is saved by the Seller and sent to the Customer together with these General Terms and Conditions in writing (e.g. email, fax or letter) after the Customer submits his order. In addition, the contract is archived on the Seller's website and can be downloaded free of charge by the Customer via the Customer’s password protected account by entering the Customer’s appropriate login information, provided that the Customer has not created an account in the Seller’s online shop before submitting his order.
2.6 Before submitting the order via the Seller’s online order form, the Customer can correct his entries using standard keyboard and mouse functions. Furthermore, all entries are displayed again in a confirmation window before the binding submission of the order and can be corrected using standard keyboard and mouse functions.
2.7 German is available for the conclusion of the contract.
2.8 Order processing and contact normally take place via e-mail. The Customer must ensure that the Customer’s email address designated for the processing of the order is correct, so that emails can be received from the Seller at this address. In particular, if using spam folders, the Customer shall ensure that all of the emails sent by the Seller or third parties responsible for order processing can be delivered.
3) Right of Withdrawal
3.1 Consumers are principally entitled to a right of withdrawal.
3.2 More information on the right of withdrawal can be found in the Seller’s instructions on the right of withdrawal.
4) Prices and Terms of Payment
4.1 Unless the product description of the Seller indicates otherwise, the prices stated are total prices including VAT. If necessary, additional delivery and shipping costs are displayed separately in the product description.
4.2 Other costs may arise for deliveries to countries outside the European Union. The Seller is not responsible for such costs, which shall be borne by the Customer. These include costs for the transfer of funds through banks (e.g. bank transfer fees, exchange fees) and legal import duties or taxes (e.g. customs duties). Such costs may also be incurred with respect to money transfers if delivery is not made in a country outside the European Union, but the Customer makes payment from a country outside the European Union.
4.3 The Customer has several payment options available that are specified in the Seller’s online shop.
4.4 If prepayment is agreed upon, payment is due immediately upon conclusion of the contract.
4.5 If the payment method “PayPal” is choosen, payment processing takes place via the payment service provider PayPal (Europe) S.à rl et Cie, SCA, 22-24 Boulevard Royal, L-2449 Luxembourg under validity of the PayPal User Agreement, available at https://www.paypal.com/de/webapps/mpp/ua/useragreement-full.
5) Delivery and Dispatch Terms
5.1 Goods are delivered by shipment to the shipping address provided by the Customer unless otherwise agreed upon.
5.2 For goods that are shipped by a freight carrier, “free curb" takes place, i.e. up to the nearest public curbside to the shipping address, unless specified otherwise in the shipping information in the Seller’s online shop and unless otherwise agreed upon.
5.3 If the transport company sent the goods back to the Seller as delivery to the Customer was not possible, the Customer shall bear the costs for the unsuccessful delivery. This does not apply if the Customer effectively exercises his right of withdrawal, if the Customer is not responsible for the circumstances that led to the impossibility of delivery, or if the Customer was temporarily prevented from accepting the service offered, unless the Seller previously advertised a reasonable time for performance to the Customer.
5.4 If the Customer is an entrepreneur, the risk of accidental loss and accidental deterioration of the goods sold is transferred to the Customer as soon as the Seller has delivered the object to the forwarder, carrier or the person or entity designated to carry out the shipment. If the Customer operates as a consumer, the risk of accidental loss and accidental deterioration of the goods sold only transfers, in principle, to the Customer or to a person authorized to receive the delivery upon delivery of the goods. Notwithstanding this, the risk of accidental loss and accidental deterioration of the goods sold is also transferred to the Customer, even if the Customer is a consumer, as soon as the Seller has delivered the object to the forwarder, carrier or the person or entity designated to carry out the shipment, if the Customer has charged the forwarder, carrier or the person or entity designated to carry out the shipment with its execution and the Seller has not previously named this person or entity to the Customer.
5.5 The Seller reserves the right to terminate the contract in the case of incorrect or improper delivery. This applies only to the case that the non-delivery is not attributable to the Seller and that the Seller has concluded a specific hedging transaction with the supplier with all due diligence. The Seller will make all reasonable efforts to supply the goods. In case of non-availability or only partial availability of the goods, the Customer will be notified immediately and the refund returned without delay.
5.6 Vouchers are provided to the Customer as follows:
- per email
6) Reservation of Title
6.1 With regard to consumers, the Seller reserves the title to the delivered goods until full payment of the purchase price owed.
6.2 With regard to entrepreneurs, the Seller reserves the title of the goods supplied until full settlement of all claims from an ongoing business relationship.
6.3 If the Customer is an entrepreneur, he is entitled to sell the goods in the course of ordinary business. The Customer shall transfer all resulting claims against third parties at the applicable invoice value (including VAT) to the Seller in advance. This transfer shall apply regardless of whether the reserved goods are resold without or after processing. After the transfer, the Customer also remains authorized to collect receivables. The Seller's right to collect the claims on the Seller’s own behalf remains unaffected. The Seller shall not collect the claims as long as the Customer fulfills his payment obligations towards the Seller, is not in default of payment, and no petition has been filed for the commencement of insolvency proceedings.
7) Liability for Defects
If there is a defect in the goods, statutory provisions apply. In derogation of this provision, the following applies to objects that have not been used in accordance with their normal use for building construction and that have caused defects:
7.1 For Entrepreneurs
- a minor defect in principle is not a ground for a claim or claims,
- the Seller may choose the type of supplementary performance,
- the limitation period for defects is one year from the transfer of risk for new goods.
- the rights and claims for defects are generally excluded for used goods.
- the limitation is not renewed if a replacement is delivered as part of liability for defects.
7.2 For consumers, the limitation period for claims:
- is two years from the date of delivery to the Customer for new goods.
- is one year from the date of delivery to the Customer for used goods, including the restrictions stated in paragraph 7.3.
7.3 For entrepreneurs and consumers, the preceding liability and statute of limitation restrictions in Sections 7.1 and 7.2 do not refer to claims for damages and compensation for expenses that the buyer can assert due to defects in accordance with Section 8 and statutory regulations.
7.4 In addition, for entrepreneurs, the statutory periods of limitations for the right of recourse in accordance with Section 478 BGB (German Civil Code) remains unaffected. The same applies to professionals and consumers in the event of willful misconduct and fraudulent concealment of a defect.
7.5 If the Customer is a merchant in terms of Section 1 HGB (German Commercial Code), the Customer shall comply with the commercial obligation to inspect and give notice of defects in accordance with Section 377 HGB. If the Customer fails the duty to give notice as stated and regulated in these Sections, the goods shall be deemed approved.
7.6 If the Customer is a consumer, the Customer is asked to make a complaint about the delivered goods with obvious shipping damage to the deliverer and to make the Seller aware of this. If the Customer does not comply, this has no effect on his legal or contractual claims for defects.
7.7 If the supplementary performance is accomplished by way of replacement, the Customer is obliged to return the goods within 30 days to the Seller at the expense of the Seller. The defective goods must be returned in accordance with the statutory provisions.
The Seller is liable to the Customer for all contractual, quasi-contractual and statutory claims, including tort claims for damages and expenses as follows:
8.1 The Seller shall be liable for any legal reason to an unrestricted extent
- in cases of intent or gross negligence,
- in cases of negligent or deliberate injury of life, body or health,
- due to a promise of warranty, to the extent otherwise provided in this regard,
- due to mandatory liability, such as under the Product Liability Act.
8.2 Should the Seller negligently breach an essential contractual obligation, the liability is limited to contract-typical, foreseeable damage, provided the Seller is not liable to an unrestricted extent in accordance with Section 8.1. Essential contractual obligations are obligations imposed by the contract on the Seller according to its content for the achievement of the purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place and on which the compliance of the Customer can rely.
8.3 In addition, the liability of the Seller is excluded.
8.4 The above liability regulations also apply with respect to the Seller's liability for its agents and legal representatives.
8.5 A Customer’s (joint) fault as to non-compliance of assembly and user instructions must be taken into account.
9) Redemption of Coupons
9.1 Vouchers that are issued free of charge by the Seller as part of promotions with a defined validity period and that cannot be purchased by the Customer (the “promotional codes"), can only be redeemed in the specified period and only in the Seller’s online shop.
9.2 Individual products may be excluded from the voucher promotion provided that there is a corresponding restriction in the content of the promotional code.
9.3 Promotional codes can only be redeemed prior to the completion of the order process. Subsequent allocation is not possible.
9.4 Only one promotional code can be redeemed at any time per order.
9.5 The value of goods must be at least the amount of the promotional code. Any remaining credit balance is not reimbursed by the Seller.
9.6 Where the value of the promotional code cannot cover the order, one of the other payment methods offered by the Seller must be selected to pay the difference.
9.7 The credit balance of a promotional code is not paid in cash or charged interest.
9.8 The promotional code credit will not be refunded if the Customer returns goods completely or partially paid with the promotional code as part of his legal right of withdrawal.
9.9 The promotional code is transferable. The Seller can make payments with discharging effect to the respective owner who redeems the promotional code in the Seller’s online shop. This does not apply if the Seller has knowledge of or has grossly negligent ignorance of the authorization, the incapacity or the lack of representation of the respective owner.
10) Redemption of Gift Vouchers
10.1 Vouchers that can be purchased via the Seller’s online shop (hereinafter “Gift Vouchers”) can only be redeemed in the Seller’s online shop.
10.2 Gift vouchers and remaining credit balances on Gift Vouchers can only be redeemed up to the end of the third year after the year the Gift Voucher was purchased. Remaining credit balances are credited to the Customer’s voucher account until the expiry date.
10.3 Gift Vouchers can only be redeemed prior to the completion of the order process. Subsequent allocation is not possible.
10.4 Only one Gift Voucher can be redeemed at any time per order.
10.5 Gift Vouchers can only be used to purchase goods and not to purchase further Gift Vouchers.
10.6 Where the value of the Gift Voucher cannot cover the order, one of the other payment methods offered by the Seller must be selected to pay the difference.
10.7 The credit balance of a Gift Voucher is not paid in cash or charged interest.
10.8 The Gift Voucher is transferable. The Seller can make payments with discharging effect to the respective owner who redeems the Gift Voucher in the Seller’s online shop. This does not apply if the Seller has knowledge of or has grossly negligent ignorance of the authorization, the incapacity or the lack of representation of the respective owner.
11) Applicable Law
The law of the Federal Republic of Germany applies for all legal relationships of the parties to the exclusion of the Convention on the International Sales of Goods (CISG). For consumers, this choice of law applies only insofar as the protection provided by mandatory provisions of the law of the State in which the consumer has his habitual residence is not withdrawn.
12) Place of Jurisdiction
If the Customer is a merchant, a legal entity under public law or public law special funds established in the territory of the Federal Republic of Germany, the sole place of jurisdiction for all disputes arising from this contract is the business location of the Seller. If the Customer has his headquarters outside the territory of the Federal Republic of Germany, the business location of the Seller is the sole place of jurisdiction for all disputes arising from this contract if the contract or claims arising from the contract can be attributed to the professional or commercial activity of the Customer. The Seller is entitled, however, in the above cases to call upon the competent court at the headquarters of the Customer.
13) Code of Conduct
The Seller has subjected himself to the “EHI Geprüfter Online-Shop” quality criteria of EHI Retail Institute GmbH which can be viewed online at http://www.shopinfo.net/haendler/kriterien/index.html.
14)Information about online dispute resolution
The EU Commission provides on its website the following link to the ODR platform: http://ec.europa.eu/consumers/odr.
This platform shall be a point of entry for out-of-court resolutions of disputes arising from online sales and service contracts concluded between consumers and traders.