§ 1 Scope of Application

(1) The deliveries and services of Memodo GmbH (hereinafter referred to as “Memodo”) within the framework of the online shop shall be provided exclusively on the basis of the following General Terms and Conditions of Sale (hereinafter referred to as the “GTC”).

(2) These GTC shall apply only to entrepreneurs within the meaning of Section 14(1) BGB, legal persons under public law, or special funds under public law. An entrepreneur is a natural or legal person or a partnership with legal capacity who, when entering into a legal transaction, acts in the exercise of their trade, business or independent professional activity. 

(3) Any differing, conflicting or supplementary general terms and conditions of the customer shall not apply. They shall not become part of the contract even if not expressly rejected in an individual case, unless Memodo expressly agrees to their validity in writing or in text form. Any such consent shall apply only to the individual case concerned and not to previous or future transactions. Any terms to the contrary that are not set out in an order placed by the customer with Memodo shall not apply. 

(4) To the extent that agreements between the parties contain provisions deviating from these GTC, the individually agreed contractual provisions shall take precedence. 

(5) Unless otherwise agreed, the version of these GTC valid at the time of the customer’s order shall apply.

§ 2 Registration Process

(1) Registration of the customer as a user in the online shop is free of charge. There is no entitlement to admission. 

(2) Only entrepreneurs within the meaning of Section 14(1) BGB are eligible to participate. 

(3) The data required for registration must be provided completely and truthfully. In particular, this includes uploading a trade licence in one of the supported formats. 

(4) A password must be selected during registration. This password must be kept confidential and must not be disclosed to third parties. 

(5) After the registration form has been submitted, Memodo will carry out a review within 72 hours. The result will be sent by email to the email address provided. 

(6) Apart from the declaration of agreement to the validity of these GTC, registration does not involve any obligations whatsoever. Registration alone does not create any obligation to purchase goods offered by Memodo. 

(7) If the customer’s personal details change, the customer is responsible for updating them. All changes can be made online after login under “Account Settings” and/or “Addresses”.

§ 3 Conclusion of Contract

(1) The presentation of goods in the online shop does not constitute a binding offer to conclude a purchase contract. Rather, it is a non-binding invitation to order goods in the online shop. 

(2) The customer may select goods listed in the online shop from Memodo’s product range and place them in a shopping basket by clicking the “Add to Basket” button. By clicking the “Order with obligation to pay” button, the customer submits a binding offer to purchase the goods contained in the shopping basket pursuant to Section 145 BGB. 

(3) Before submitting the order, the customer may view and change the data at any time. However, the offer can only be submitted and transmitted if the customer accepts these contractual terms by clicking the “Accept GTC” button (wording: “I have read the GTC and agree to their validity.”) and thereby incorporates them into the offer. 

(4) Memodo will then send the customer an automatic order confirmation by email in which the customer’s order is listed again. The customer may print this out using the “Print” function. The automatic acknowledgement of receipt merely documents that the customer’s order has been received by Memodo and does not constitute acceptance of the offer. 

(5) The contract shall only come into existence upon Memodo’s declaration of acceptance, which shall be sent in a separate email (order confirmation). Memodo shall declare acceptance within five working days of receipt of the customer’s order. If Memodo does not issue a declaration of acceptance within this period, the customer’s order shall not have been accepted by Memodo. If no acceptance is made, Memodo shall always inform the customer by email that the order has not been accepted.

(6) If Memodo’s order confirmation contains clerical or printing errors, or if technical transmission errors have affected the pricing, Memodo shall be entitled to contest the contract. Any payments already made shall be reimbursed to the customer.

(7) In the email referred to in paragraph 5, or in a separate email, but no later than upon delivery of the goods, Memodo shall send the customer the contract text (consisting of the order, the GTC and the order confirmation) on a durable medium (email or paper printout) (contract confirmation). The contract text shall be stored in compliance with data protection requirements.

§ 4 Orders for Larger Quantities

If the quantity desired by the customer cannot be selected and ordered in the online shop, the customer shall be referred to placing the order individually through the responsible key account manager at Memodo.

§ 5 Subject Matter of the Contract

(1) The subject matter of the contract shall be exclusively the delivery of the goods or the service defined in the offer or the order confirmation.

(2) Amendments, additions and ancillary agreements shall only be binding if confirmed by Memodo in writing or in text form. This shall not affect the precedence of any individual agreement pursuant to Section 305b BGB, whether made in writing, in text form or orally.

§ 6 Quality of the Goods and Duty to Inform

(1) Any information provided by Memodo to the customer regarding goods sold by Memodo or services provided by Memodo is based solely on Memodo’s previous experience. Such information does not constitute any statement of quality or guarantee in relation to the goods or services. Any values stated shall be regarded as average values of the goods and services. 

(2) Unless expressly agreed otherwise, Memodo does not warrant that the goods and/or services are suitable for the purpose intended by the customer. 

(3) Memodo shall assume any duty to advise the customer only if expressly agreed under a separate consultancy agreement in writing or in text form. 

(4) Memodo shall ensure that the goods supplied by it correspond to the contractually agreed quality at the time of handover to the customer. Any subsequent technical changes or adjustments made by the manufacturer after handover of the goods to the customer shall not be subject to any duty on the part of Memodo to inform the customer. This shall not apply where such changes concern safety-relevant features. Statutory information and notification obligations under the German Product Safety Act (ProdSG) shall remain unaffected. 

(5) A guarantee shall only be deemed assumed by Memodo if Memodo expressly designates a quality and/or performance outcome as “legally guaranteed” in writing or in text form.

§ 7 Form of Legally Relevant Declarations

(1) Legally relevant declarations and notifications made by the parties in relation to the contract (e.g. setting deadlines, reminders, withdrawal) must be made in writing or in text form. 

(2) Statutory formal requirements and further evidence, in particular in cases of doubt as to the authority of the declaring party, shall remain unaffected. 

(3) This shall not affect the precedence of any individual agreement pursuant to Section 305b BGB, whether made in writing, in text form or orally.

§ 8 Procurement Risk and Guarantee

(1) Memodo shall be obliged to deliver to the customer, in accordance with the order confirmation, goods that are determined only by type. 

(2) Memodo shall only be obliged to perform from its own stock. 

(3) Customer-specific orders for project goods are excluded from paragraph 2. Project goods are goods sold at an individually agreed price due to specific requirements, such as particular product volumes, and/or goods tailor-made for a specific project and/or not included in Memodo’s product portfolio. 

(4) The assumption of a procurement risk or procurement guarantee shall not arise solely from Memodo’s obligation to deliver goods determined only by type. 

(5) Memodo shall only assume a procurement risk within the meaning of Section 276 BGB by way of a separate agreement in writing or in text form expressly stating: “(…) Memodo assumes the procurement risk (…)”.

§ 9 Delivery and Delivery Time

(1) Delivery shall be made DAP to the destination specified by the customer in accordance with the International Commercial Terms (Incoterms 2020), unless another Incoterms 2020 trade term is specified in the order confirmation.

(2) In addition, the transport conditions of Memodo GmbH shall apply to delivery. 

(3) Binding delivery dates and deadlines must be expressly agreed in writing or in text form. In the case of non-binding or approximate delivery dates and deadlines (e.g. “approx.”, “about”, etc.), Memodo shall endeavour to comply with them to the best of its ability. 

(4) Delivery and/or performance periods shall not commence before all details of the execution of the order have been clarified and all other conditions to be fulfilled by the customer have been met in full, in particular agreed advance payments, securities and necessary acts of cooperation. The same shall apply to delivery and performance dates. If the customer requests changes after the order has been placed, a new reasonable delivery and/or performance period shall commence upon Memodo’s confirmation of the change. 

(5) If the customer does not accept the goods at the agreed place of delivery, the contractual goods shall be stored with the transport company commissioned by Memodo at Memodo’s expense. Memodo shall be entitled to recharge the resulting loss or damage to the customer at equitable discretion. The customer shall reimburse the actual costs incurred by Memodo, in particular storage costs and any additional packaging, transport and insurance costs. Both parties shall retain the right to prove that the actual expense was lower or higher; the customer shall also retain the right to prove that no expense was incurred at all. No reversal of the burden of proof is associated with the foregoing provisions. 

(6) Partial deliveries shall be permitted insofar as they are reasonable for the customer. Any additional shipping costs thereby caused shall be borne by Memodo unless the customer itself requested the partial delivery.

§ 10 Reservation of Self-Supply

(1) Performance of the delivery or service owed under the contract shall be subject to Memodo being supplied properly and in due time by its suppliers. This shall apply only if the non-delivery is not attributable to Memodo and if, before conclusion of the contract with the customer, Memodo properly and sufficiently covered itself with its suppliers in accordance with the quantity and quality required under the delivery and performance agreement with the customer (conclusion of a congruent cover transaction).

(2) Memodo shall inform the customer in good time in writing or in text form of any delay. 

(3) In the event of delayed delivery due to incorrect or late self-supply under paragraph 1, the provisions of § 11 of these GTC shall apply accordingly.

§ 11 Extension of Delivery Period in the Event of Labour Disputes and Unforeseeable Obstacles

(1) The delivery period shall be extended by the duration of the impediment in the event of measures taken in connection with labour disputes, in particular strikes and lockouts, and in the event of unforeseeable obstacles beyond Memodo’s control, such as civil unrest, war, terrorism, natural events, official interventions and sovereign measures in Germany or abroad, as well as epidemics and pandemics such as Covid-19, transport bottlenecks or obstacles for which Memodo is not responsible, including in sea transport, shortages of energy and raw materials, operational disruptions for which Memodo is not responsible — e.g. caused by fire, water or machinery damage — and all other impediments which, upon objective assessment, were not culpably caused by Memodo. 

(2) Unforeseeable obstacles within the meaning of paragraph 1 shall also include delays in the delivery of essential materials caused by the aforementioned circumstances, insofar as such obstacles demonstrably have a substantial effect on delivery of the goods. 

(3) The customer shall be informed of the reason for and the expected duration of the impediment if it is foreseeable that delivery deadlines cannot be met. 

(4) Memodo shall be entitled to withdraw from the contract in whole or in part if the impediment to performance is not merely temporary and Memodo is not responsible for that impediment. 

(5) The extension of the delivery period pursuant to paragraph 1 and the right of withdrawal pursuant to paragraph 4 shall not apply if Memodo has failed to comply with its duty to inform under paragraph 3 above, or if Memodo has assumed the procurement risk within the meaning of Section 276 BGB or a delivery and/or performance guarantee. 

(6) If a delivery date or delivery period has been agreed as binding and is exceeded due to events referred to in paragraph 1 above, the customer shall be entitled, after expiry without result of a reasonable grace period, to withdraw from the contract in respect of the part not yet performed. In this case, any further claims by the customer, in particular claims for damages, shall be excluded. 

(7) Claims for damages by the customer due to delayed delivery arising from the above-mentioned impediments shall be excluded. This shall not apply to Memodo’s liability for assumption fault or precautionary fault where the impediment to performance and its consequences for the possibility of contract performance were foreseeable or already existed, and Memodo nevertheless entered into the obligation without express limitation or failed to take possible precautions to be able to perform the contract despite the impending impediment. Nor shall it apply to the customer’s claim for reimbursement of any counter-performance already rendered in advance. In such cases, the provisions of § 24 of these GTC (Liability) shall apply. 

(8) The provision in paragraph 6 above shall apply accordingly if, for the reasons stated in paragraph 1 above, it is objectively unreasonable for the customer to remain bound by the contract even without a contractually agreed fixed delivery date. 

(9) The provisions on extension of the delivery period shall also apply if the circumstances occur at sub-suppliers. 

(10) The aforementioned circumstances shall also not be attributable to Memodo if they arise during an already existing delay.

§ 12 Delay in Delivery / Compensation for Delay

(1) If Memodo is in delay in delivery for reasons other than those stated in §§ 10 and 11 of these GTC, the customer must first set Memodo a reasonable grace period for performance. If that period expires without result, claims for damages for breach of duty — on whatever legal grounds — shall exist only in accordance with § 24 of these GTC (Liability). 

(2) If delivery of the goods is delayed for a reason for which the customer is responsible (e.g. missing advance payment, default of acceptance), Memodo shall not be in delay in delivery.

§ 13 Late Advance Payment / Default of Acceptance

(1) The customer shall be in default of acceptance if it is unable to accept the goods on the goods dispatch date specified in the order confirmation, subject to paragraph 3 below. In addition, delivery by Memodo shall be delayed if, contrary to the contractual agreement, the customer has not paid the advance invoice.

 (2) The customer shall be obliged to inform Memodo of the reasons why it is unable to accept the goods in due time or to pay the advance invoice on time. Such information must be provided by the customer without undue delay after becoming aware of the relevant circumstances. 

(3) In such a case, the customer shall be entitled, in coordination with Memodo, to postpone the goods dispatch date once by a maximum of 2 weeks calculated from the goods dispatch date specified in the order confirmation. The customer shall not be in default of acceptance until the goods are also not accepted on the postponed goods dispatch date. 

(4) If the customer is in default of acceptance, if shipment of the goods is delayed for a reason for which the customer is responsible (e.g. missing advance payment), or if it is foreseeable that the claim for payment of the purchase price is jeopardised due to the customer’s lack of financial capacity, Memodo shall be entitled, in accordance with the statutory provisions, to refuse performance or, after setting and expiry of a reasonable grace period, at Memodo’s option, to demand immediate payment of the remuneration or to withdraw from the contract or to refuse performance and claim damages instead of performance in full. The grace period shall be set in writing or in text form in accordance with § 7 of these GTC. When setting the grace period, Memodo need not again refer to the rights under this clause. Statutory provisions concerning cases where setting a grace period is unnecessary shall remain unaffected. 

(5) In the event that Memodo claims damages as provided above, Memodo shall be entitled to recharge the damage incurred to the customer at equitable discretion. The customer shall reimburse the actual costs incurred by Memodo, in particular storage costs for the goods and financing costs based on 3-month EURIBOR. Both parties shall retain the right to prove that the actual expense was lower or higher; the customer shall also retain the right to prove that no expense was incurred at all. No reversal of the burden of proof is associated with the foregoing provisions.

§ 14 Memodo Prices

(1) Unless otherwise agreed in an individual case, all prices stated by Memodo in offers, order confirmations or elsewhere are net prices in EURO plus statutory VAT. 

(2) Transport, packaging and shipping costs are not included in the price and shall be charged separately unless free delivery has been agreed. The same applies to the costs of any transport insurance requested by the customer. Any customs duties, fees, taxes and other public charges shall likewise be borne by the customer.

§ 15 Price Adjustment

Memodo shall be entitled to increase the price unilaterally in the event of increases in manufacturing costs for materials and/or material and/or product procurement costs, third-party labour, wages and ancillary wage costs, social security contributions, energy costs, costs arising from environmental regulations and/or currency regulations, changes in customs duties and/or freight rates, and/or public charges, if such increases directly or indirectly affect the costs of Memodo’s contractual performance and if more than 4 weeks elapse between conclusion of the contract and delivery of the goods. An increase shall be excluded to the extent that cost increases in one or more of the aforementioned factors are offset by cost reductions in other of the aforementioned factors in relation to the total cost burden relevant for the price. If the aforementioned cost factors decrease without such decrease being offset by increases in other of the aforementioned cost factors, that cost reduction shall be passed on to the customer.

§ 16 Terms of Payment

(1) Memodo shall be entitled to send invoices to the customer by email as electronic documents (e.g. PDF or e-invoice). The customer shall notify Memodo without undue delay in writing or in text form of any change to the email address to which invoices are to be sent. 

(2) Payment by the customer shall fall due within the payment term specified in the invoice.

(3) Any deduction of cash discounts shall be permitted only if expressly stated in the relevant invoice. 

(4) As a rule, payment shall be made in advance. Payment on account shall be possible only after a successful credit check. 

(5) If, in the case of payment on account, the customer repeatedly fails to comply with the payment date specified in the invoice, Memodo reserves the right to revert the payment method for future orders to advance payment.  

(6) The customer shall be in default if payment is not made within the payment period specified in the invoice, without any separate reminder being required. 

(7) In the event of default by the customer, Memodo shall be entitled to charge default interest at the rate of 9 percentage points above the base interest rate. If Memodo is able to prove greater loss caused by default, it shall be entitled to claim such loss.

§ 17 Right of Retention, Set-Off, Assignment

(1) All rights of retention — regardless of the legal basis — are excluded against Memodo unless they concern claims that are undisputed and/or have been finally adjudicated. 

(2) The customer shall be entitled to set-off only with claims that are undisputed and/or have been finally adjudicated. 

(3) Section 215 BGB shall remain unaffected. 

(4) The customer’s rights may be assigned to third parties only with Memodo’s consent. Memodo shall not refuse consent if the customer can demonstrate legitimate interests in the assignment and such interests outweigh Memodo’s protectable interests.

§ 18 Retention of Title

(1) Memodo retains title to all goods delivered by Memodo until all claims arising from the business relationship with the customer, including future claims arising from contracts concluded later, have been satisfied. This shall also apply to any balance in Memodo’s favour if individual or all claims are included in a current account and the balance is struck. 

(2) The customer shall insure the reserved goods adequately, in particular against fire and theft. Claims against insurers arising from an insured event affecting the reserved goods are hereby assigned to Memodo in the amount of the value of the reserved goods. Memodo accepts this assignment. 

(3) The goods subject to retention of title may neither be pledged to third parties nor assigned by way of security before full payment of the secured claims. The customer shall notify Memodo without undue delay in writing or in text form if an application for the opening of insolvency proceedings is filed or if third parties seize or otherwise gain access to goods belonging to Memodo. 

(4) In the event of breach of contract by the customer, in particular non-payment of the purchase price due, Memodo shall be entitled, in accordance with the statutory provisions, to withdraw from the contract and/or to demand return of the goods on the basis of the retention of title. A demand for return shall not at the same time constitute a declaration of withdrawal; rather, Memodo shall be entitled merely to demand return of the goods while reserving the right to withdraw. If the customer fails to pay the purchase price due, Memodo may assert these rights only if it has first unsuccessfully set the customer a reasonable period for payment, unless such period is unnecessary under statutory provisions. 

(5) Until revoked in accordance with point (c) below, the customer shall be authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In such case, the following supplementary provisions shall apply: a. The retention of title shall extend to the products resulting from processing, mixing or combining Memodo’s goods at their full value, with Memodo being deemed the manufacturer of such products. If, in the event of processing, mixing or combining with goods of third parties, their ownership rights remain in existence, Memodo shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered subject to retention of title. b. The customer hereby assigns to Memodo by way of security, in full or in the amount of Memodo’s possible co-ownership share pursuant to the preceding paragraph, all claims against third parties arising from the resale of the goods or product. Memodo accepts this assignment. The obligations of the customer referred to in paragraph 3 shall also apply in respect of the assigned claims. c. The customer shall remain authorised to collect the claims alongside Memodo. Memodo undertakes not to collect the claims so long as the customer meets its payment obligations to Memodo, there is no deficiency in its financial capacity, and Memodo does not assert the retention of title by exercising a right pursuant to paragraph 4. If this is the case, however, Memodo may require the customer to disclose the assigned claims and the respective debtors, provide all information necessary for collection, hand over the associated documents, and notify the debtors of the assignment. In this case, Memodo shall also be entitled to revoke the customer’s authority to resell and process the goods subject to retention of title. d. If the realisable value of the securities exceeds Memodo’s claims by more than 10%, Memodo shall, at the customer’s request, release securities of Memodo’s choosing. 

(6) In the case of VAT-exempt intra-Community supplies pursuant to Section 4 no. 1 lit. b) in conjunction with Section 6a UStG, title to the goods shall remain reserved by Memodo until receipt of the confirmation of arrival or payment of the subsequently charged VAT.

§ 19 Cancellation of Orders by the Customer

(1) As a rule, cancellation of the contract without giving reasons is excluded. If, by way of goodwill, we accept a cancellation in exceptional cases, a cancellation fee of 10% of the value of the goods shall be payable, subject to a minimum of EUR 100.00. This fee serves to cover costs already incurred. The customer shall remain free to prove that Memodo incurred lower costs. 

(2) Cancellation shall only be possible prior to the goods being ready for dispatch. Goods shall be deemed ready for dispatch when they have been duly packaged by Memodo and made available for handover to the transport company. Once the goods are ready for dispatch, the return conditions under § 20 of these GTC shall apply. 

(3) Cancellation shall be excluded for project goods and B-goods within the meaning of § 22(2) of these GTC. Cancellation shall also be excluded for goods for which product extensions activated by means of an activation code have already been opened or used. 

(4) Cancellation shall likewise be excluded for goods offered in sales campaigns or manufacturer campaigns, or where discounts such as an extended warranty or a free additional item are granted (“promotional goods”). 

(5) § 7 of these GTC shall apply to the form of cancellation. (6) Any statutory rights of withdrawal of the customer shall remain unaffected.

§ 20 Return of Goods by the Customer

(1) Returns may be registered by the customer up to 14 calendar days after receipt of the goods, subject to the conditions described below. § 7 of these GTC shall apply to the form of the return request. 

(2) The costs for restocking the goods shall amount to 10% of the value of the goods, subject to a minimum of EUR 50. This fee serves to cover costs already incurred. The customer shall remain free to prove that the actual restocking costs were lower. 

(3) A condition for Memodo’s approval of the return is that the goods are unused, undamaged and in their original packaging. Before approval of the return, the customer must confirm the intact condition of the goods before approval of the return by providing clear photographs and its signature.

(4) If the return is approved, collection of the goods or provision of the return label shall be carried out by a transport company commissioned by Memodo. The customer shall bear the resulting costs. 

(5) Project goods, promotional goods and B-goods within the meaning of § 22(2) of these GTC are excluded from return. Goods for which product extensions activated by means of an activation code have already been opened or used are likewise excluded from return. 

(6) As soon as the returned goods have been received by Memodo, they shall be inspected by Memodo in the warehouse in accordance with the requirements set out in paragraph 3. 

(7) If the inspection is positive, the customer shall receive a credit note for the value of the goods less the relevant transport and return costs. 

(8) Any statutory rights of withdrawal or warranty claims of the customer shall remain unaffected.

§ 21 Export Control and Compliance with Environmental Regulations

(1) Unless otherwise contractually agreed with the customer, the goods supplied are intended for first placing on the market within the Federal Republic of Germany or, in the case of delivery outside the Federal Republic of Germany, in the agreed country of first delivery. 

(2) The export of certain goods by the customer from that country may be subject to authorisation requirements, for example due to their nature, intended use or final destination. The customer is itself obliged to check this and to comply strictly with the export regulations and embargoes applicable to such goods insofar as it exports the goods supplied by Memodo or has them exported by third parties. In addition, the customer shall ensure that, before transfer to a country other than the agreed country of first delivery, the necessary national product approvals or product registrations are obtained and that the requirements under the national law of the country concerned regarding provision of user information in the local language, as well as all import regulations, are complied with. 

(3) In particular, the customer shall examine and ensure, and upon request provide evidence to Memodo, that:
a. the goods supplied are not intended for military, nuclear or weapons-related use;
b. no companies or persons listed in the US Denied Persons List (DPL) are supplied with goods, software or technology of US origin;
c. no companies or persons listed in the US Warning List, US Entity List or US Specially Designated Nationals List are supplied with products of US origin without the relevant authorisation;
d. no companies or persons listed in the Specially Designated Terrorists List, Foreign Terrorist Organizations List, Specially Designated Global Terrorists List, the EU terrorist list or other relevant export control restricted party lists are supplied;
e. no military recipients are supplied with the goods delivered by us, and no recipients are supplied where a breach of other export control regulations of the EU or ASEAN states exists;
f. all early warning notices issued by the competent German authorities or the national authorities of the relevant country of origin of the delivery are observed.
 

(4) Access to and use of the goods supplied by Memodo shall be permitted only if the above examinations and safeguards have been carried out by the customer; otherwise, the customer must refrain from the intended export and Memodo shall not be obliged to perform. 

(5) If the customer passes on goods supplied by Memodo to third parties, it shall oblige such third parties in the same manner as set out in paragraphs 1 to 4 and inform them of the need to comply with such legal provisions. 

(6) In the event of agreed delivery outside the Federal Republic of Germany, the customer shall ensure at its own expense that all national import regulations of the country of first delivery are complied with in relation to the goods to be supplied by Memodo. 

(7) The customer shall indemnify Memodo against all damage and expenses resulting from the culpable breach of the above obligations under paragraphs 1 to 6. 

(8) The customer shall be obliged to comply with the following EU directives and regulations, as well as the respective national laws: a. EU Waste from Electrical and Electronic Equipment (WEEE) Directive 2012/19/EU
b. EU Packaging and Packaging Waste Regulation (PPWR) Directive 94/62/EC
c. EU Batteries and Waste Batteries Regulation 2023/1542/EU

§ 22 Warranty for Defects

(1) Memodo shall be liable for defects in accordance with the applicable statutory provisions, unless otherwise provided below. In all cases, the statutory provisions on consumer goods sales and the customer’s rights arising from separately issued guarantees, in particular those of the manufacturer, shall remain unaffected. 

(2) Delivery of B-goods shall take place to the exclusion of any warranty for material defects. “B-goods” means either used goods or goods which, in particular, exhibit transport or logistics damage, which may result, for example, in visual impairment of the packaging and the goods themselves. Memodo is under no obligation to test the functionality of B-goods. B-goods may be delivered repackaged or in their original packaging. The exclusion of warranty for material defects shall not apply to claims arising from injury to life, body or health, fraudulent conduct, intent or gross negligence, or breach of essential contractual obligations by Memodo. Essential contractual obligations are those that characterise the contract and on which the customer may rely. 

(3) The basis of Memodo’s liability for defects is, above all, the agreement reached concerning the quality of the goods and their assumed use. All product descriptions and manufacturer’s specifications that are the subject matter of the individual contract or were publicly disclosed by us at the time of conclusion of the contract shall be deemed quality agreements in this sense. To the extent that quality has not been agreed, the existence of a defect shall be assessed in accordance with the statutory provisions. Public statements made by the manufacturer or on its behalf, in particular in advertising or on the product label, shall take precedence over statements by other third parties. 

(4) Minor colour deviations within a delivery are production-related and must be accepted by the customer. In the case of repeat orders of the same goods, dimensional and/or colour deviations from previous series cannot be excluded for technical and material reasons and likewise do not constitute a warranty case. Other visual defects, such as scratches, which do not affect the functionality of the goods, also do not constitute defects in the legal sense. 

(5) In the case of goods with digital elements or other digital content, Memodo shall owe provision of the digital content only insofar as this is expressly set out in a quality agreement. In all other cases, provision of the digital content shall be the responsibility of the manufacturer. In this respect, Memodo assumes no liability for public statements made by the manufacturer or other third parties. 

(6) When notifying a defect, the customer should describe and identify it specifically so that Memodo can investigate the cause of the defect in order to examine any warranty obligations of Memodo. 

(7) If the goods delivered are defective, Memodo may initially choose whether to provide subsequent performance by remedying the defect or by delivering defect-free goods. If the type of subsequent performance chosen by Memodo is unreasonable for the customer in the individual case, the customer may reject it. Memodo’s right to refuse subsequent performance under the statutory conditions shall remain unaffected. 

(8) Memodo shall be entitled to make the subsequent performance owed dependent on the customer having paid the purchase price due. However, the customer shall be entitled to withhold a part of the purchase price that is reasonable in relation to the defect. 

(9) The customer shall grant Memodo the time and opportunity required for the subsequent performance owed, in particular by handing over the complained-about goods for inspection purposes. In the event of a replacement delivery, the customer shall return the defective goods to Memodo at Memodo’s request in accordance with the statutory provisions; however, the customer shall not have a right of return. Subsequent performance shall include neither removal, dismantling or deinstallation of the defective goods nor installation, fitting or mounting of defect-free goods if Memodo was not originally obliged to perform such services; claims of the customer for reimbursement of corresponding costs shall remain unaffected. 

(10) Memodo shall bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, and, where applicable, removal and installation costs, in accordance with the statutory provisions and these GTC if a defect actually exists. Otherwise, Memodo may demand reimbursement from the customer of the costs arising from the unjustified request to remedy the defect if the customer knew or ought to have known that no defect in fact existed. 

(11) Unless expressly agreed otherwise in writing or in text form, Memodo provides a warranty for material defects for a period of 12 months, calculated from the date of delivery of the goods to the customer; in the event of refusal by the customer to accept or take delivery, from the date of first delivery of the goods to the destination specified by the customer in accordance with DAP. 

(12) The limitation period set out in paragraph 11 shall not apply to claims for damages arising from a guarantee, the assumption of a procurement risk within the meaning of Section 276 BGB, claims arising from injury to life, body or health, fraudulent, intentional or grossly negligent conduct by Memodo, or in the cases of Sections 478 and 479 BGB (supplier recourse in the supply chain), Section 438(1) no. 2 BGB (construction of buildings and delivery of goods for buildings) and Section 634a(1) no. 2 BGB (construction defects), or wherever a longer limitation period is otherwise mandatorily prescribed by law.

(13) Memodo assumes no warranty for supplier recourse if the customer has worked on, processed or otherwise altered the products contractually supplied by Memodo, unless this corresponds to the contractually agreed intended use of the goods. 

(14) Memodo’s warranty and the liability resulting therefrom shall be excluded to the extent that defects and related damage are not demonstrably due to defective material, defective design, defective workmanship, defective manufacturing materials or, where owed, defective instructions for use. In particular, warranty and the liability resulting therefrom shall be excluded in respect of the consequences of improper use, unsuitable storage conditions, and the consequences of chemical, electromagnetic, mechanical or electrolytic influences that do not correspond to the average standard influences provided for in our product description, any product specification agreed otherwise, or the relevant product-specific data sheet issued by us or the manufacturer. The foregoing shall not apply in cases of fraudulent conduct, gross negligence or intent on our part, injury to life, body or health, the assumption of a guarantee or procurement risk, or liability under any mandatory statutory liability regime.

§ 23 Inspection and Notification Obligations

(1) The customer shall be obliged to inspect the delivered goods without undue delay after delivery by qualified specialist personnel. 

(2) In the event of transport damage, the provisions of the transport conditions of Memodo GmbH shall apply additionally.

(3) If the delivered goods are modules, the customer must in all cases inspect both the bottom module and the top module of a pallet for glass breakage. 

(4) Material defects identifiable during inspection must be notified to Memodo by the customer without undue delay, but no later than seven days after delivery. Hidden material defects must be notified to Memodo without undue delay after discovery and no later than seven days from discovery. However, once the warranty limitation period pursuant to § 22(11) of these GTC has expired, no warranty claim against Memodo shall exist irrespective of any defect discovered. 

(5) Any improper notice under the foregoing provisions of § 23 of these GTC shall exclude all claims of the customer arising from breach of duty due to material defects. This shall not apply in the case of intentional, grossly negligent or fraudulent conduct by Memodo, in the case of injury to life, body or health, or where Memodo has assumed a guarantee of freedom from defects, a procurement risk, or other mandatory statutory liability. The special provisions applicable in cases of supplier recourse where the goods are ultimately delivered to a consumer (Sections 478, 479 BGB) shall remain unaffected.

(6) In the case of goods intended for installation, fitting or mounting, the loss of warranty rights under paragraph 5 shall also apply if the defect becomes apparent only after such processing as a result of breach of the inspection and notification obligations; in such case, in particular, the customer shall have no claims for reimbursement of corresponding costs.

§ 24 Liability

(1) Claims for damages by the customer against Memodo, regardless of the legal basis, shall be excluded. Excluded from this are claims for damages by the customer arising from injury to life, body or health, from breach of essential contractual obligations, and liability for other damage based on intentional or grossly negligent breach of duty by Memodo, Memodo’s legal representatives or vicarious agents. Essential contractual obligations are those that characterise the contract and on which the customer may rely. 

(2) In the event of breach of essential contractual obligations, Memodo shall be liable only for the foreseeable damage typical of the contract if such damage was caused by simple negligence, unless the customer’s claim is for damages arising from injury to life, body or health. Paragraph 5 below shall remain unaffected. 

(3) Likewise, in the event of grossly negligent breach of duty, Memodo shall be liable only for the foreseeable damage typical of the contract, unless the customer’s claim is for damages arising from injury to life, body or health. Paragraph 5 below shall remain unaffected. 

(4) The limitations set out in paragraphs 1 to 3 shall apply to the same extent in favour of Memodo’s executive bodies, managerial and non-managerial employees, other vicarious agents, and subcontractors if claims are asserted directly against them. 

(5) The limitations of liability resulting from paragraphs 1 to 4 shall not apply if the damage is due to a defect fraudulently concealed by Memodo, where Memodo is otherwise guilty of fraudulent conduct, where Memodo has assumed a guarantee for the quality of the goods or a procurement risk, or in the event of delay where a fixed delivery and/or performance date was agreed. The same shall apply where the contracting parties have entered into an agreement on the quality of the goods. Liability under mandatory statutory liability provisions, in particular the German Product Liability Act, shall remain unaffected. 

(6) Memodo shall not be liable for damage caused by force majeure, war, terrorism, natural events, epidemics, pandemics such as Covid-19 and the associated transport disruptions, in particular in sea transport, or other traffic disruptions, or by other events not attributable to Memodo. The same shall apply to other events not attributable to Memodo, such as strikes, lockouts or sovereign measures in Germany or abroad. 

(7) Memodo shall not be liable for technical advice, planning or product compatibility provided free of charge. This shall not apply in cases of intent or gross negligence. 

(8) Claims by the customer for damages arising from the contractual relationship may be asserted only within an exclusion period of one year from the statutory commencement of limitation. The period shall begin at the time specified in Section 199 BGB. It shall expire at the latest upon expiry of the maximum periods specified in Section 199(3) and (4) BGB. This exclusion period shall not apply where Memodo is guilty of intent or gross negligence, to claims arising from injury to life, body or health, or in the case of a claim based on a tortious act or an expressly assumed guarantee or procurement risk, or where a longer limitation period is mandatorily prescribed by law. The precedence of any individual agreement pursuant to Section 305b BGB shall remain unaffected. No reversal of the burden of proof is associated with the foregoing provision.

§ 25 Impairment of Availability

The availability of the online shop shall be 98.5% on an annual average, including maintenance work; however, availability must not be impaired or interrupted for more than 2 consecutive calendar days.

§ 26 Copyright, Industrial Property Rights, Confidentiality

(1) Memodo reserves all rights of ownership and copyright in respect of samples, illustrations, drawings, data, quotations and other documents relating to Memodo’s goods and services, as well as in respect of product images in the online shop, that are disclosed or made available to the customer. 

(2) The customer undertakes to treat the samples, data and/or documents listed above confidentially and not to make them available to third parties unless Memodo has expressly consented in writing or in text form.

(3) The above-mentioned samples, data and/or documents must be returned to Memodo upon request if no order based on them is placed with Memodo.

§ 27 Choice of Law

(1) These GTC, including the manner in which they are concluded, and all rights and obligations arising from them, shall be governed by German law, excluding the UN Convention on Contracts for the International Sale of Goods. 

(2) This shall also apply to all non-contractual claims connected with these GTC.

§ 28 Place of Jurisdiction

(1) If the customer is a merchant within the meaning of the German Commercial Code, a legal person under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising in connection with these GTC shall be Memodo’s registered office. 

(2) However, Memodo shall also be entitled to sue the customer at its general place of jurisdiction. If the customer has no general place of jurisdiction in Germany or in another EU Member State, the exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Memodo’s registered office.

§ 29 Severability Clause

(1) Should any provision of these GTC be wholly or partly invalid, void or unenforceable for reasons relating to the law governing general terms and conditions under Sections 305 to 310 BGB, the statutory provisions shall apply. 

(2) Should any present or future provision of these GTC be wholly or partly invalid, void or unenforceable for reasons other than the provisions concerning the law governing general terms and conditions under Sections 305 to 310 BGB, this shall not affect the validity of the remaining provisions of these GTC, unless performance of the contract would constitute an unreasonable hardship for one party even taking into account the following provisions. The same shall apply if a gap requiring supplementation becomes apparent after conclusion of the contract. 

(3) Contrary to any principle according to which a severability clause is generally intended merely to reverse the burden of proof, the validity of the remaining contractual provisions shall in all circumstances be maintained, and Section 139 BGB shall be excluded in its entirety. 

(4) The parties shall replace any invalid, void or unenforceable provision, or any gap requiring supplementation, for reasons other than the law governing general terms and conditions under Sections 305 to 310 BGB, with a valid provision that comes as close as legally possible to the legal and economic content of the invalid, void or unenforceable provision and to the overall purpose of these GTC. Section 139 BGB is expressly excluded. If the invalidity of a provision is based on a measure of performance or time specified therein, the provision shall be agreed with a legally permissible measure coming as close as possible to the original measure.

Status: 02-2025

§ 1 Scope of Application

(1) Deliveries by Memodo GmbH (hereinafter “Memodo”) to the customer shall be made on the basis of the General Terms and Conditions of Sale of Memodo GmbH or, in the case of orders via the online shop, on the basis of the General Terms and Conditions – E-Commerce of Memodo GmbH, as well as in accordance with the following Transport Conditions. 

(2) These Transport Conditions shall apply only to entrepreneurs within the meaning of Section 14(1) BGB, legal persons under public law or special funds under public law. An entrepreneur is a natural or legal person or a partnership with legal capacity who, when entering into a legal transaction, acts in the exercise of their trade, business or independent professional activity. 

(3) Any differing, conflicting or supplementary general terms and conditions of the customer shall not apply. They shall not become part of the contract even if not expressly rejected in an individual case, unless Memodo expressly agrees to their validity in writing or in text form. Any such consent shall apply only to the individual case concerned and not to previous or future transactions. Any terms to the contrary that are not set out in an order placed by the customer with Memodo shall not apply. 

(4) To the extent that agreements between the parties contain provisions deviating from these Transport Conditions, the individually agreed contractual provisions shall take precedence. 

(5) Unless otherwise agreed, the version of these Transport Conditions valid at the time of the customer’s order shall apply.

§ 2 Delivery Modalities

(1) Delivery by Memodo shall be made DAP to the delivery location specified by the customer in accordance with the International Commercial Terms (Incoterms 2020), unless another Incoterms 2020 trade term is specified in the order confirmation. 

(2) Memodo shall commission a transport company of its choice in its own name and for its own account to carry out the delivery. The transport costs incurred shall be invoiced to the customer in accordance with § 3 of these Transport Conditions. 

(3) Delivery shall be made either to the customer’s warehouse or to the construction site specified by the customer.

§ 3 Transport Costs and Surcharges

(1) Unless otherwise stipulated in our terms or offers, all orders are subject to transport and shipping costs.

(2) Transport costs shall be calculated based on the weight and volume of the ordered goods. The distance between the delivery address and Memodo’s warehouse shall not be relevant. For module quantities of up to 10 units and carrier profiles of up to 12 units, a bulky goods surcharge of EUR 150.00 shall additionally be charged. 

(3) Transport costs for deliveries to other European countries shall be calculated based on the weight and volume of the ordered goods as well as the postcode of the delivery address.

(4) For online orders delivered to the same delivery address:

• All deliveries within Germany and Austria are free of transport and shipping costs from a net order value of EUR 6,000.00.

• Deliveries to Switzerland are free of transport and shipping costs from an order value of EUR 6,000.00 (including customs clearance but excluding import VAT).

(5) For energy storage systems, a hazardous goods surcharge shall apply to all shipments. This amounts to EUR 30.00 for shipments within Germany and EUR 35.00 for shipments within Europe. For sea freight, an additional EUR 35.00 shall be charged for the IMO declaration. 

(6) In the case of VAT-exempt intra-Community supplies pursuant to Section 4 no. 1 lit. b) in conjunction with Section 6a UStG, the customer shall be obliged to sign a confirmation of arrival and return it stamped with the company seal by post or email. The confirmation must be returned within 30 calendar days after delivery of the goods. If it is not submitted, VAT shall be charged subsequently. Title to the goods shall remain with Memodo until receipt of the confirmation of arrival or payment of the subsequently charged VAT.

§ 4 Notification of Transport Damage

(1) If goods are delivered visibly damaged by a transport company to the customer’s warehouse, the customer shall be obliged, upon acceptance of the goods, to report such damage immediately to the executing carrier at the time of delivery by recording the complaint in the transport documents, the freight forwarder’s handover note or another suitable document in writing or in text form. A note on the delivery note alone shall not be sufficient. 

(2) If delivery is made to a construction site specified by the customer for its contractual partner (“end customer”), the customer shall ensure that the end customer, acting as the customer’s receiving representative, inspects the goods for visible damage upon acceptance and immediately reports any damage found to the executing carrier at the time of delivery. The complaint must be recorded in the transport documents, the freight forwarder’s handover note or another suitable document in writing or in text form. A note on the delivery note alone shall not be sufficient. 

(3) Any damage notification pursuant to paragraphs 1 and 2 should be countersigned by the executing carrier on the documents referred to above. The signature of the executing carrier and the registration number of the truck or other transport vehicle are mandatory. 

(4) The customer shall also be obliged to notify Memodo in writing or in text form without undue delay after delivery of the visibly damaged goods of the damage reported to the executing carrier. 

(5) In the case of transport damage not externally visible, the customer shall notify Memodo in writing or in text form no later than 5 (five) calendar days after delivery of the goods to the customer or to the construction site specified by the customer. Memodo shall forward the damage notification to the transport company within a further 2 (two) calendar days.

§ 5 Delay in Delivery by the Transport Company

(1) If the executing transport company has not delivered the goods within the agreed delivery period to the customer or to the construction site specified by the customer, the customer or, in the case of delivery to a construction site, the end customer, may immediately report this delay to the executing carrier at the time of delivery. 

(2) In order to assert claims arising from delay in delivery, the customer must notify the transport company commissioned by Memodo in writing or in text form no later than 21 calendar days after delivery of the goods. 

(3) Notification of delayed delivery may also be made by the customer notifying Memodo, which shall forward the notification to the transport company, specifying the recipient of the affected delivery. In this case, the customer must notify Memodo in writing or in text form no later than 19 (nineteen) calendar days after delivery. Memodo shall forward the notification to the transport company within a further 2 (two) calendar days.

§ 6 Reference to Memodo’s General Terms and Conditions of Sale

In all other respects, reference is made to the General Terms and Conditions of Sale of Memodo GmbH and, for orders via the online shop, to the General Terms and Conditions – E-Commerce of Memodo GmbH, in particular with regard to further provisions on delivery, liability and warranty rights.

Status: 02-2025

II. Customer Information

1.  Identity of the seller/ supplier 

Memodo GmbH
Linprunstrasse 16
80335 Munich
Germany
Telefon: +49 (0) 89 904 10 15 00
E-Mail: info@remove-this.memodo.de

2.  Privacy Policy

We will process all personal data you provide (title, name, address, date of birth, email address, telephone number, fax number, bank details, credit card number) exclusively in accordance with the provisions of German data protection law.

You can access our data protection policy at  www.memodo-shop.com/data-protection/. If you have any questions or concerns regarding data protection, please contact our Data Protection Officer at: datenschutz@remove-this.memodo.de