Our Terms & Conditions
E-Cap Mobility GmbH Terms & Conditions
§ 1 General
(1) The following Terms & Conditions (T&C) shall apply exclusively to all deliveries and other services of E-Cap Mobility GmbH (hereafter referred to as "Vendor").
(2) In these Terms & Conditions, customers are both consumers and entrepreneurs.
(3) In these Terms & Conditions, a consumer means every natural person who enters into a legal transaction for purposes that predominantly are outside his trade, business or profession (Section 13 of the German Civil Code (BGB)).
(4) In these Terms & Conditions, an entrepreneur means a natural or legal person or a partnership with legal entity who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession (Section 14 Paragraph 1 of the German Civil Code).
(5) The Terms & Conditions of customers or third parties do not apply, even if the Vendor does not separately object to their applicability in each individual case. Even if the Vendor should refer to a letter that includes or references the Customer’s or a third party’s Terms & Conditions, this shall not be construed as consent to the application of said Terms & Conditions.
§ 2 Offers, scope of delivery and conclusion of the contract
(1) The Vendor’s contractual offers shall be conditional and non-binding, unless expressly indicated as binding.
(2) The order confirmation and these Terms & Conditions shall be authoritative for the contracted scope of services to be rendered. Alterations and amendments of the individual agreements including these T&C require the written form to be enforceable.
(3) Specifications from the Vendor about the object of delivery (quantity, weights, dimensions, etc.) are not guaranteed qualities, but a description or identification of the goods or service. Deviations customary in the trade shall be permitted.
(4) The transfer of concluded contracts to third parties (assumption of contract) requires the prior consent of the Vendor to be valid.
§ 3 Prices and terms of payment
(1) Prices are stated are in euros and include VAT, but not include shipping. Custom duties and similar charges shall be borne by the Customer.
(2) Unless expressly agreed otherwise, the Vendor shall make delivery only in return for advance payment.
(3) If the provision of services is the object of the contract, unless otherwise expressly agreed, an advance payment of 50% of the total contract value shall be due immediately after conclusion of contract, the other half shall be due for payment following delivery.
§ 4 Set-off and retention
(1) The Vendor shall be entitled to rights of set-off and retention as well as the plea of non-performance of contract to the extent permitted by law.
(2) The Customer may only set off his own claims against claims of the Vendor if the counterclaims are undisputed or legally established. The Customer may only withhold services owed by him due to legitimate counterclaims from the same contractual relationship.
§ 5 Terms of delivery
(1) The deadlines and dates for deliveries and services proposed by the Vendor shall only be approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed upon. If shipping has been agreed, delivery dates and deadlines refer to the time of transfer to the forwarder, carrier, or other third party assigned to transport the goods.
(2) Irrespective of his rights concerning default on the part of the Customer, the Vendor may demand an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the Customer fails to meet his contractual obligations to the Vendor.
(3) The Vendor shall not be liable for deliveries that are not possible or are delayed, insofar as they have been caused by force majeure or other events unforeseeable at the time the contract was concluded (e.g. operational disturbances of all kinds, difficulties in material or energy procurement, transport delays, strikes, legal lockouts, a shortage of workforce, energy or raw materials, difficulties in procuring necessary official approvals, official measures or non-delivery or incorrect or late delivery by suppliers), for which the Vendor is not responsible. Should such events substantially hamper or in fact prevent the Vendor from performing his contractual duty, the obstacle being more than a temporary one, then the Vendor is entitled to withdraw from the contract. In case of temporary obstacles, performance dates are postponed or periods prolonged by the time the obstacle lasts plus an adequate starting period. If, as a result of the delay, the Customer cannot be expected to accept the delivery or service, he may withdraw from the contract by giving the Vendor prompt written notification.
(4) Should the Vendor fall behind on a delivery or service, the Vendor’s liability for damages shall be limited to 5% of order value. § 10 of these Terms & Conditions shall otherwise apply. Default shall occur only if the Vendor does not perform within a reasonable grace period, despite a reminder from the Customer.
§ 6 Service provision
(1) If the Customer commissions the Vendor to retrofit a vehicle with an electric drive, upon completion of the service and an appropriate deadline set by the Vendor, he is required to pick up the dismantled components (e.g. engine, fuel tank, exhaust system) or to have them shipped at his own expense.
(2) Retrofitting may invalidate any existing warranty or warranty claims for the vehicle being converted. The Customer is encouraged to get in touch with the maker or dealer about this in advance. A check of this is expressly not the object of the service being provided by the Vendor.
§ 7 Shipping, transfer or risk
(1) Unless expressly agreed otherwise, the Vendor shall be free to determine the appropriate mode of shipment and to select the carrier at his own discretion.
(2) The Vendor is solely responsible for the prompt, proper delivery of the goods to the shipping company and is not responsible for delays caused by the shipping company. A shipping period specified by the Vendor is therefore not binding. However, deviating from this, if the Vendor carries out installation or assembly work at the Customer's site, he is nevertheless responsible for the completion of this work and transfer to the Customer on the contractually agreed date.
(3) If the Customer is a consumer, the risk of accidental destruction, loss and/or of deterioration of the delivered item shall pass to the Customer upon delivery of the goods to the Customer or when the Customer defaults on acceptance. In all other cases, risk is passed to the Customer upon transfer of the goods to the shipping company, provided the Vendor is only responsible for the shipment. However, if the Customer carries out installation and assembly work at the Customer’s site, risk passes to the Customer upon completion of the work and transfer to the Customer.
§ 8 Retention of title
(1) The goods delivered to the Customer shall remain the Vendor’s property until complete payment of all secured receivables has been effected.
The Customer shall not be entitled to process and sell reserved-title goods. Pledges and transfers by way of security are not allowed.
(3) In the event that the Customer combines the goods subject to retention of title with another item in such a way that they become an integral part of a unified item, it is agreed that the Vendor directly acquires the property or - if the connection with movable property is with several owners or the value of the other items is higher than the value of the reserved title goods - joint ownership (fractional ownership) of the newly created goods in proportion to the value of the goods subject to retention of title to the value of the newly created goods.
(4) In the event that the goods subject to retention of title are resold, the Customer shall assign the Vendor the resulting claims against the buyer in an amount proportionate to the Vendor's ownership of the goods delivered.
(6) If third parties attempt to seize the goods subject to retention of title, specifically through distraint orders, the Customer shall without delay notify them of the Vendor’s ownership and the Vendor of this fact to enable him to take steps to secure his property rights.
§ 9 Warranty, defects
If the Customer is a consumer, he is entitled to the statutory rights for any defects. If a contract for the supply of used items is concluded, claims for defects and compensation directly connected with a defect shall expire one year following delivery.
(2) If the Customer is an entrepreneur, the warranty period is twelve months from the date of delivery or, should acceptance be required, following acceptance. This period does not apply to claims for damages by the Customer resulting from injury to life and limb or health generally or from intentional or grossly negligent breach of duty on the part of the Vendor or his vicarious agents, which expire in accordance with legal requirements. If a contract for the delivery of used items is concluded, delivery shall exclude any and all guarantee for material defects.
(3) If the Customer is an entrepreneur, he shall carefully inspect the goods delivered by the Vendor immediately upon receipt. The goods are deemed to have been accepted if the Vendor promptly receives a report of visible defects or other defects that were detectable on immediate, careful inspection. With respect to other defects, the goods are deemed accepted if the Vendor does not receive notification of defects within seven business days after the date the defect was noticed; if the defect was previously noticed by the user during normal use at an earlier point in time, this earlier time is determinative for the beginning of the complaint period.
(4) Any further claims of the Customer against the Vendor, insofar as these are not the result of an acceptance of guarantee, are excluded. This does not apply in the case of intent, gross negligence or breach of essential contractual obligations on our part.
(1) The Vendor is liable to the Customer for all contractual, contractually-similar and legal, as well as tortious claims for damages and expenses as follows:
(2) The Vendor has unlimited liability on any legal ground
- In the event of intent or gross negligence
- In the event of intentional or negligent injury to life and limb or health generally
- On the basis of a guarantee commitment, insofar as nothing else is stipulated in this regard
- On the basis of statutory liability such as product liability laws.
(3) Provided that the Vendor negligently infringes an essential contractual duty, the liability to pay damages shall be limited to the foreseeable, typically occurring damage, unless unlimited liability applies pursuant to Paragraph 2 above. Essential contractual obligations are obligations the contract imposes on the Vendor according to its content to meet the purpose of the contract and whose fulfilment is essential for the due and proper execution of the contract and fulfilment upon which the Customer may ordinarily trust. Section 5, Paragraph 4 shall apply with respect to the Vendor’s liability due to delay.
(4) Any other liability on the part of the Vendor shall be excluded.
(5) The liability provisions above also apply with regard to the Vendor's liability for his vicarious agents and legal representatives.
The Vendor shall collect, process and use personally-identifiable information from the Customer, their contact details in particular, to process the order. The same applies to the e-mail address, provided this has been specified by the Customer.
§ 12 Final provisions
(1) Subject to mandatory international private law provisions, the contract between the Vendor and the Customer shall be governed by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
(2) Unless specified otherwise, the place of performance for all obligations resulting the contractual relationship is Winsen (Luhe). If the Vendor is also responsible for installation, the place of performance shall be the place where installation is to be carried out.
(3) If the Customer is a merchant, a legal entity under public law or a special fund under public law or has no place of general jurisdiction in the Federal Republic of Germany, the sole place of jurisdiction for any dispute in connection with or arising from business relationship between the Vendor and the Customer is the head office of the Vendor in Winsen (Luhe). The Vendor is also entitled to file suit before a court responsible for the head or a branch office of the Customer.
(4) The invalidity of individual provisions of this agreement shall not affect the validity of the remaining provisions. The contractual partners shall make all reasonable efforts in good faith to replace an invalid condition with another valid condition that is equivalent to its economic success insofar as this does not result in a substantial modification of the contents of the contract: the same is valid in the event that a situation that requires review is not expressly regulated.
§ 13 Consumer dispute resolution
(1) The Vendor is neither obligated nor prepared to take part in a consumer dispute resolution in accordance with Section 36 ff of the German Consumer Dispute Resolution Act (VSBG).
(2) The responsible consumer arbitration agency is however as follows:
des Zentrums für Schlichtung e.V.
Straßburger Straße 8
D-77694 Kehl am Rhein