Terms of service

Table of contents

1. Scope
2. Conclusion of the contract
3. Right of withdrawal
4. Prices and payment terms
5. Delivery and shipping terms
6. Retention of title
7. Liability for defects (warranty)
8. Liability
9. Applicable law
10. Place of jurisdiction
11. Alternative dispute resolution

1) Scope

1.1 These General Terms and Conditions (hereinafter “Terms”) of Moruga Kakao UG (haftungsbeschränkt) & Co. KG (hereinafter “Seller”) apply to all contracts for the delivery of goods concluded by a consumer or business customer (hereinafter “Customer”) with the Seller in relation to the goods presented in the Seller’s online shop. The inclusion of the Customer’s own terms is hereby rejected unless otherwise agreed.

1.2 A consumer within the meaning of these Terms is any natural person who enters into a legal transaction for purposes that are predominantly outside their trade, business or profession.

1.3 A business customer within the meaning of these Terms 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 profession.

1.4 If the Customer is based in Switzerland or Liechtenstein and uses a billing and delivery address provided by MeinEinkauf AG, Fürstenlandstrasse 35, 9000 St. Gallen, Switzerland (hereinafter “MeinEinkauf”), the following terms apply subject to the proviso that MeinEinkauf becomes the Customer’s contractual partner instead of the Seller. In this case, the Seller acts solely as an intermediary between the Customer and MeinEinkauf and does not itself become a party to the purchase contract. The Customer is expressly informed of this in the Seller’s online shop. In this case, MeinEinkauf is responsible for performing the contract. The Seller handles correspondence with the Customer on behalf of MeinEinkauf. This also applies to correspondence concerning any problems with contractual performance, in particular claims by the Customer relating to defects.

2) Conclusion of the contract

2.1 The product descriptions in the Seller’s online shop do not constitute binding offers by the Seller, but serve as an invitation for the Customer to submit a binding offer.

2.2 The Customer may submit an offer using the online order form integrated into the Seller’s online shop. After placing the selected goods in the virtual shopping cart and completing the electronic ordering process, the Customer submits a legally binding offer to enter into a contract for the goods in the cart by clicking the button that completes the ordering process.

2.3 The Seller may accept the Customer’s offer within five days:

• by sending the Customer a written order confirmation or an order confirmation in text form (fax or email), with receipt of the order confirmation by the Customer being decisive; or
• by delivering the ordered goods to the Customer, with receipt of the goods by the Customer being decisive; or
• by requesting payment from the Customer after the order has been submitted.

If more than one of the above alternatives occurs, the contract is concluded at the time when the first of them occurs. The period for accepting the offer begins on the day after the Customer sends the offer and ends at the end of the fifth day following the sending of the offer. If the Seller does not accept the Customer’s offer within this period, this is deemed a rejection of the offer, with the result that the Customer is no longer bound by their declaration of intent.

2.4 If a payment method offered by PayPal is selected, payment is processed through PayPal (Europe) S.à r.l. et Cie, S.C.A., 22–24 Boulevard Royal, L-2449 Luxembourg (hereinafter “PayPal”), subject to the PayPal User Agreement, available at https://www.paypal.com/de/legalhub/paypal/useragreement-full, or, if the Customer does not have a PayPal account, subject to the terms for payments without a PayPal account, available at https://www.paypal.com/de/legalhub/paypal/privacywax-full. If the Customer pays using a PayPal payment method available during the online ordering process, the Seller hereby declares acceptance of the Customer’s offer at the time when the Customer clicks the button that completes the ordering process.

2.5 When an order is placed using the Seller’s online order form, the Seller stores the contract text after the contract has been concluded and sends it to the Customer in text form (for example, by email, fax or letter) after the Customer submits the order. The Seller does not make the contract text accessible in any other way. If the Customer has set up a user account in the Seller’s online shop before submitting the order, the order data are archived on the Seller’s website and can be accessed free of charge through the Customer’s password-protected user account using the relevant login details.

2.6 Before submitting a binding order using the Seller’s online order form, the Customer can identify possible input errors by carefully reading the information displayed on the screen. The browser’s zoom function, which enlarges the on-screen display, can be an effective technical aid for identifying input errors. During the electronic ordering process, the Customer can correct entries using the usual keyboard and mouse functions until clicking the button that completes the ordering process.

2.7 German is available as the language for concluding the contract.

2.8 Orders are generally processed automatically by email. The Customer must ensure that the email address provided for order processing is correct so that emails sent by the Seller can be received at that address.

3) Right of withdrawal

3.1 Consumers generally have a right of withdrawal.

3.2 Further information on the right of withdrawal is provided in the Seller’s cancellation policy.

4) Prices and payment terms

4.1 Unless otherwise stated in the Seller’s product description, the prices shown are total prices including statutory VAT. Any additional delivery and shipping costs are stated separately in the relevant product description.

4.2 For deliveries to countries outside the European Union, additional costs may arise in individual cases that are beyond the Seller’s control and must be borne by the Customer. These may include costs charged by financial institutions for transferring money (for example, transfer fees or exchange-rate fees), or import duties and taxes (for example, customs duties). Money transfer costs may also arise when delivery is not to a country outside the European Union but the Customer makes payment from a country outside the European Union.

4.3 The available payment method(s) are communicated to the Customer in the Seller’s online shop.

4.4 If a payment method offered through “Shopify Payments” is selected, payment is processed by Shopify International Limited, Victoria Buildings, 2nd Floor, 1–2 Haddington Road, Dublin 4, D04 XN32, Ireland (“Shopify”). The individual payment methods offered through Shopify Payments are communicated to the Customer in the Seller’s online shop. Shopify may use other payment services to process payments; these may be subject to special payment terms, of which the Customer may be separately informed. Further information on Shopify Payments is available at https://www.shopify.com/legal/terms-payments/de.

5) Delivery and shipping terms

5.1 If the Seller offers shipping, delivery is made within the delivery area specified by the Seller to the delivery address provided by the Customer, unless otherwise agreed. The delivery address specified in the Seller’s order processing system is decisive for processing the transaction. By way of exception, if PayPal is selected as the payment method, the delivery address stored by the Customer with PayPal at the time of payment is decisive.

5.2 If delivery fails for reasons for which the Customer is responsible, the Customer must bear the reasonable costs incurred by the Seller as a result. This does not apply to the costs of outbound delivery if the Customer validly exercises their right of withdrawal. Where the Customer validly exercises their right of withdrawal, the provisions of the Seller’s cancellation policy apply to return shipping costs.

5.3 If the Customer acts as a business customer, the risk of accidental loss and accidental deterioration of the goods passes to the Customer as soon as the Seller has handed the goods over to the forwarding agent, carrier or other person or organisation designated to carry out shipment. If the Customer acts as a consumer, this risk generally passes only when the goods are handed over to the Customer or a person authorised to receive them. By way of exception, this risk also passes to a consumer as soon as the Seller has handed the goods over to the forwarding agent, carrier or other person or organisation designated to carry out shipment if the Customer has commissioned that person or organisation and the Seller has not previously named that person or organisation to the Customer.

5.4 If the Customer acts as a consumer based in Germany or as a business customer, the Seller reserves the right to withdraw from the contract if the Seller’s own supplier fails to deliver correctly or properly. This applies only if the Seller is not responsible for the non-delivery and has exercised due care in concluding a specific covering transaction with the supplier. The Seller will make all reasonable efforts to procure the goods. If the goods are unavailable or only partially available, the Customer will be informed without delay and any payment will be refunded without delay.

5.5 Collection by the Customer is not possible for logistical reasons.

6) Retention of title

If the Seller performs in advance, ownership of the delivered goods is retained until the purchase price owed has been paid in full.

7) Liability for defects (warranty)

Unless otherwise provided below, the statutory provisions on liability for defects apply. The following exceptions apply to contracts for the delivery of goods:

7.1 If the Customer acts as a business customer:

• the Seller may choose the form of supplementary performance;
• for new goods, the limitation period for claims relating to defects is one year from delivery;
• claims relating to defects are excluded for used goods;
• the limitation period does not restart when replacement goods are supplied under liability for defects.

7.2 The limitations of liability and shortened limitation periods set out above do not apply:

• to the Customer’s claims for damages or reimbursement of expenses;
• where the Seller has fraudulently concealed a defect;
• to goods used for a building in accordance with their normal use that have caused the building to be defective;
• to any obligation of the Seller to provide updates for digital products under contracts for the delivery of goods with digital elements.

7.3 In addition, for business customers, the statutory limitation periods for any statutory right of recourse remain unaffected.

7.4 If the Customer is a merchant within the meaning of section 1 of the German Commercial Code (HGB), the Customer is subject to the commercial duties of inspection and notification of defects under section 377 HGB. If the Customer fails to comply with the notification duties set out there, the goods are deemed to have been approved.

7.5 If the Customer acts as a consumer, they are asked to report obvious transport damage to the carrier and inform the Seller. Failure to do so has no effect on the Customer’s statutory or contractual claims relating to defects.

8) Liability

The Seller is liable to the Customer for damages and reimbursement of expenses arising from contractual, quasi-contractual and statutory claims, including tort claims, as follows:

8.1 The Seller has unlimited liability on any legal basis:

• in cases of intent or gross negligence;
• for intentional or negligent injury to life, body or health;
• under a guarantee, unless otherwise provided in relation to that guarantee;
• under mandatory liability, such as liability under the German Product Liability Act.

8.2 If the Customer acts as a consumer based in Germany or as a business customer, the following limitations of liability apply:

If the Seller negligently breaches an essential contractual obligation, liability is limited to the foreseeable loss typical of the contract, unless the Seller has unlimited liability under the preceding provision. Essential contractual obligations are obligations that the contract imposes on the Seller, according to its content, to achieve the purpose of the contract, whose fulfilment makes proper performance of the contract possible in the first place and on whose observance the Customer may regularly rely. Otherwise, the Seller’s liability is excluded unless the Seller has unlimited liability under the preceding provision.

8.3 The above liability provisions also apply to the Seller’s liability for persons engaged to perform its obligations and its legal representatives.

9) Applicable law

The law of the Federal Republic of Germany applies to all legal relationships between the parties, excluding the laws on the international sale of movable goods. For consumers, this choice of law applies only to the extent that it does not deprive them of the protection afforded by mandatory provisions of the law of the state in which they have their habitual residence.

10) Place of jurisdiction

If the Customer is a merchant, a legal person under public law or a special fund under public law with its registered office in the territory of the Federal Republic of Germany, the Seller’s registered office is the exclusive place of jurisdiction for all disputes arising from this contract. If the Customer is based outside the territory of the Federal Republic of Germany, the Seller’s registered office is the exclusive place of jurisdiction for all disputes arising from this contract if the contract or claims arising from it can be attributed to the Customer’s professional or commercial activity. In the above cases, however, the Seller is also entitled to bring proceedings before the court at the Customer’s registered office.

11) Alternative dispute resolution

The Seller is not obliged to participate in dispute resolution proceedings before a consumer arbitration board, but is willing to do so.