GENERAL TERMS AND CONDITIONS
GENERAL CONTRACTUAL CONDITIONS
In the context of purchase agreements concluded via the online platform mermaid-protector.com between MerPro GmbH / St. Johann, Brückengasse 1b, 78462 Konstanz, Germany, registered in the Commercial Register of the Konstanz District Court under HRB 730346, represented by the managing directors Izabella Meyer and Rainer Rogalla, VAT identification number: DE365458003
– hereinafter referred to as the “Seller” – and
the customer referred to in § 2 of the contract – hereinafter referred to as the “Customer” –
are concluded.
§1 SCOPE, DEFINITIONS
(1) For the business relationship between the webshop operator (hereinafter “Seller”) and the customer (hereinafter “Customer”), only the following General Terms and Conditions in their current version at the time of the order shall apply. Deviating general terms and conditions of the customer will not be recognized unless the seller expressly agrees to their validity in writing.
(2) The customer is a consumer as long as the purpose of the ordered deliveries and services cannot predominantly be attributed to his commercial or self-employed professional activity. On the other hand, an entrepreneur is any natural or legal person or legal partnership capable of holding rights who acts in the exercise of his commercial or self-employed professional activity when concluding the contract.
§2 CONCLUSION OF CONTRACT
(1) The customer can select products, especially bathing, outdoor, and water sports clothing (if applicable, specify other product details) from the seller’s range and collect them in a so-called shopping cart by clicking the “Add to Cart” button. The presentation and promotion of items in the online shop do not constitute a binding offer to conclude a purchase contract. By clicking the “Proceed to Checkout” button, the customer submits a binding request to purchase the items in the shopping cart. Before submitting the order, the customer can change and review the data at any time. However, the request can only be submitted and transmitted if the customer has accepted these terms and conditions by clicking the “Accept Terms and Conditions” button, thereby including them in his request.
(2) The seller then sends the customer an automatic acknowledgment of receipt by email, listing the customer’s order once again and which the customer can print using the “Print” function. The automatic acknowledgment of receipt merely documents that the customer’s order has been received by the seller and does not constitute acceptance of the offer. The seller only delivers against prepayment; the contract is concluded only upon the customer’s irrevocable payment to the seller. The seller will send an invoice to the customer electronically. Furthermore, the customer will be informed of the shipment. At the latest upon delivery of the goods, the contract text (consisting of the order, terms and conditions, and order confirmation) along with the invoice will be sent to the customer by the seller on a durable medium (email or paper print) (contract confirmation). In addition, the contract text is archived on the seller’s website and can be retrieved by the customer free of charge via his password-protected customer account by providing the corresponding login data, provided that the customer has created a customer account in the seller’s online shop before submitting his order. The contract text is stored in compliance with data protection.
(3) The contract is concluded in the English language (if applicable, expand to other languages). A contractual right to exchange or return the goods only exists for stock goods, but not for manufactured goods. Any deviations from this represent a pure voluntary service on the part of the seller. The customer’s right of revocation according to § 9 remains unaffected.
§3 DELIVERY PRODUCT AVAILABILITY
(1) The delivery times specified by the seller are calculated from the time of receipt of payment of the purchase price. If no delivery time is specified for the respective product in the online shop or no deviating delivery time is specified, it is 3-6 days for items in stock. However, since the goods are usually manufactured according to the customer’s specifications, the delivery time is 1-3 months.
(2) The delivery of goods is made by shipping to the delivery address specified by the customer upon receipt of payment by the seller, unless otherwise agreed. The delivery address provided by the customer in the seller’s order processing is decisive for processing the transaction. Self-collection is not possible for logistical reasons.
§4 RETENTION OF TITLE
Until full payment has been made, the delivered goods remain the property of the seller.
§5 PRICES AND SHIPPING COSTS
(1) All prices listed on the seller’s website include the respective applicable statutory value-added tax.
(2) Shipping costs are generally borne by the customer, unless the customer exercises his right of withdrawal in exceptional cases when delivering items from stock. The amount of the shipping costs will be indicated to the customer during the ordering process and must also be paid in advance.
(3) The shipment of goods is made by postal delivery. If the customer is a consumer, the seller bears the risk of shipping.
(4) In the event of a withdrawal, the customer shall bear the immediate costs of returning the goods.
(5) In the case of deliveries to countries outside the European Union, additional costs may arise 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 money transfer by credit institutions (e.g., transfer fees, exchange rate fees) or import duties or taxes (e.g., customs duties). Such costs may also arise 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.
§6 PAYMENT METHODS
(1) The payment options will be communicated to the customer in the seller’s online shop.
When paying by a payment method offered by PayPal, payment processing is carried out by the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter: “PayPal”), in accordance with PayPal’s terms of use, which can be viewed at https://www.paypal.com/de/webapps/mpp/ua/useragreement-full or, if the customer does not have a PayPal account, under the conditions for payments without a PayPal account, which can be viewed at https://www.paypal.com/de/webapps/mpp/ua/privacywax-full .
When paying by a payment method offered by stripe, payment processing is carried out by the payment service provider Stripe Payments Europe, Limited (SPEL), 1 Grand Canal Street Lower, Grand Canal Dock, Dublin, D02 H210, Irland (hereinafter: “stripe”), in accordance with stripe’s terms of use, which can be viewed at https://mermaid-protector.com/wp-content/uploads/2024/01/20221217_withdrawal_EN_edit.pdf. The data protection guidelines can be viewed at https://stripe.com/de/privacy
(2) The customer can change the payment method stored in his user account at any time.
(3) The customer is not entitled to offset against the seller’s claims unless his counterclaims have been legally established or are undisputed. The customer is also entitled to set off against claims of the seller if he asserts claims for defects or counterclaims from the same purchase contract. The exercise of a right of retention is only permissible if the counterclaim is based on the same purchase contract.
§7 WARRANTY FOR MATERIAL DEFECTS, GUARANTEE
(1) The seller is liable for material defects in accordance with the applicable statutory provisions, in particular §§ 434 et seq. BGB. However, the limitation period for warranty claims for used goods is 12 months from the delivery of the goods to the customer. For entrepreneurs, the warranty period for goods delivered by the seller is generally 12 months.
(2) An additional guarantee exists only for goods delivered by the seller if this was expressly stated in the order confirmation for the respective item.
§8 LIABILITY
(1) Claims by the customer for damages are excluded. This does not apply to claims for damages by the customer resulting from injury to life, body, health, or from the violation of essential contractual obligations (cardinal obligations) as well as liability for other damages resulting from an intentional or grossly negligent breach of duty by the seller, its legal representatives or vicarious agents. Essential contractual obligations are those whose fulfillment is necessary to achieve the objective of the contract.
(2) In the event of a breach of essential contractual obligations, the seller is only liable for the foreseeable damage typical for the contract if it was caused by simple negligence, unless it concerns claims for damages by the customer resulting from injury to life, body, or health.
(3) The limitations of paragraphs 1 and 2 also apply in favor of the legal representatives and vicarious agents of the seller if claims are asserted directly against them.
(4) The limitations of liability set out in paragraphs 1 and 2 do not apply if the seller has fraudulently concealed a defect or assumed a guarantee for the quality of the item. The same applies if the seller and the customer have made an agreement on the quality of the item. The provisions of the Product Liability Act remain unaffected.
§9 RIGHT OF WITHDRAWAL
(1) Consumers have a statutory right of withdrawal in the case of distance contracts, which the seller informs the customer about in accordance with the statutory model as follows. Exceptions to the right of withdrawal are regulated in paragraph (2). The right of withdrawal does not apply in the cases of Section 312g (2) and (3) BGB. Since the seller manufactures the goods according to the customer’s individual specifications and the goods, these are contracts for the supply of goods within the meaning of Section 312g (2) No. 1 BGB, according to which the right of withdrawal is excluded. Remaining stock and heavily reduced goods are also excluded from exchange and return. A sample withdrawal form can be found on our website in the section “Right of revocation” https://mermaid-protector.com/wp-content/uploads/2024/01/20221217_withdrawal_EN_edit.pdf.
§10 FINAL PROVISIONS
(1) Order processing and communication:
Order processing and contact between the seller and the customer are usually carried out by email and automated order processing. The customer is obliged to ensure that the email address provided for order processing is correct so that emails sent by the seller can be received properly. In particular, when using spam filters, the customer must ensure that all emails sent by the seller or by third parties on behalf of the seller for order processing can be delivered.
(2) Applicable law and exclusion of the UN Convention on Contracts for the International Sale of Goods:
Contracts between the Seller and the Customer are subject to the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). The mandatory provisions of the law of the country in which the Customer has their habitual residence remain unaffected.
(3) Place of jurisdiction:
For all disputes arising from the contractual relationship between the seller and the customer, the place of jurisdiction shall be the seller’s registered office, provided that the customer is a merchant, a legal entity under public law, or a special fund under public law.
(4) Dispute resolution:
The EU Commission has set up an internet platform for online dispute resolution, which serves as a point of contact for the out-of-court settlement of disputes concerning contractual obligations arising from online purchase contracts. Further information is available at the following link: http://ec.europa.eu/consumers/odr. The seller is neither willing nor obliged to participate in dispute resolution proceedings before a consumer arbitration board.
(5) Severability clause:
Should individual provisions of this contract be wholly or partially invalid, the remainder of the contract shall remain valid. In this case, the invalid provisions shall be replaced by statutory provisions, if available. However, if this would lead to unreasonable hardship for one of the contracting parties, the entire contract shall become invalid.
(6) Agreement on place of jurisdiction and choice of law:
The contract between the customer and the seller is subject to German law. The parties agree that the non-exclusive place of jurisdiction for all disputes arising from or in connection with the contract shall be the city of Konstanz, Germany.
