1. Scope of Application
1.1. ‘www.fleischmann.de’ is an online service provided by Modelleisenbahn GmbH, Plainbachstraße 4, 5101 Bergheim, Austria. The following general terms and conditions (‘GTC’) in the version applicable at the time the website is accessed apply to any use of the services accessed by the customer (hereafter the ‘customer’) on the Modelleisenbahn GmbH (hereafter ‘FLEISCHMANN’) website. Any deviating terms and conditions issued by the customer are not accepted.
1.2. These terms and conditions can be accessed online and printed out. FLEISCHMANN has the right to change these terms and conditions at any time effective going forward.
1.3. As part of this online sale, FLEISCHMANN offers the customer the opportunity to purchase products directly from FLEISCHMANN under the title ‘products’. The customer enters into a purchase contract with Modelleisenbahn GmbH, Plainbachstraße 4, 5101 Bergheim, Austria with an online purchase.
2. FLEISCHMANN’s Online Services
2.1. FLEISCHMANN is free to design the content of its online services and is permitted to change, restrict, expand or cease its services at any time. FLEISCHMANN can also have services provided by third parties. FLEISCHMANN strives to keep the service accessible and to rectify any significant defects or disruptions within a reasonable timeframe. The customer has no claim to constant access to a disruption-free service.
2.2. The service is not aimed at people in countries where visiting the FLEISCHMANN website and accessing its content is not permitted. Each customer is responsible for informing themselves of any limitations and observing these at all times.
2.3. FLEISCHMANN offers no guarantee for the correctness, completeness or currentness of the content accessed by the customer.
2.4. Insofar as the FLEISCHMANN website uses hyperlinks to other websites operated by parties other than FLEISCHMANN, such links are only offered to the customer for reference purposes. FLEISCHMANN does not check the content of these linked websites and is not responsible for this. The inclusion of hyperlinks by FLEISCHMANN implies neither any endorsement of the content of such websites nor a connection to the relevant operators.
3. Conditions of Use
3.1. The customer may only use FLEISCHMANN’s services properly and is obliged to observe statutory, governmental and technical regulations. The customer shall not use their opportunity to access to this service in any way that violates these terms and conditions, and shall respect third-party rights. For data protection, the customer shall observe the recognised regulations of data security. The customer shall check any emails and requests sent to FLEISCHMANN for viruses as carefully as possible.
3.2. FLEISCHMANN reserves the right to investigate any suspicions of misuse (see section 3.1 above), take suitable precautionary measures and freeze the customer’s access to the content of FLEISCHMANN’s internet services in the case of justified suspicion, at least until the customer is no longer under suspicion.
3.3. All rights, particularly copyright, rights of use and rights of exploitation regarding the content provided (including photos, images and technical descriptions) are exclusively granted to FLEISCHMANN within its relationship with the customer. The customer is only permitted to use the content provided for private, non-commercial purposes and to copy this content to their computer’s working memory. They are also permitted to download and temporarily save content to a computer or screen for private, non-commercial purposes. Downloading product images as screen backgrounds is provided to the customer as a service. Any other use of these downloads is not permitted and will be prosecuted by FLEISCHMANN. The customer is permitted to make copies (e.g. downloads, print-outs of content) for private, non-commercial purposes only, i.e. for their own information. The customer may furthermore only use the accessed content for their own use and only insofar as any proprietary notices (copyright notices or similar) as well as any names and brands remain unchanged in the copies. Any further use (especially making copies for commercial purposes, public display etc.) require prior written permission from FLEISCHMANN.
4. FLEISCHMANN’s Liability
4.1. FLEISCHMANN offers a service, the nature and scope of which is based on the current technical, legal and commercial framework conditions of the internet. FLEISCHMANN strives to make its website available daily. Nevertheless, FLEISCHMANN does not guarantee proper operation at all times, i.e. constant availability free from disruption. In particular, there is no liability for disruptions to the technical equipment or quality of access to the website or in regard to the availability of products.
4.2. In accordance with statutory provisions, FLEISCHMANN may be held liable for intent or gross negligence, including intent or gross negligence on the part of FLEISCHMANN’s representatives or vicarious agents, if the customer claims damage compensation. Authorised retailers and cooperation partners are not vicarious agents of FLEISCHMANN.
4.3. In accordance with statutory provisions, FLEISCHMANN may be held liable for damage compensation claims resulting from FLEISCHMANN’s issuance of a guarantee and/or for claims resulting from culpable injury to life, body or health or in the case of mandatory liability under product liability law.
4.4. Otherwise, FLEISCHMANN may be held liable in accordance with statutory provisions if a significant contractual obligation (cardinal obligation) is culpably violated. In these cases, damage compensation claims shall be limited to typical foreseeable damages.
4.5. FLEISCHMANN has no influence over the transfer of data via the internet. FLEISCHMANN therefore accepts no risk of data loss through transfer outside its sphere of influence e.g. provision of data for access on the server. FLEISCHMANN also shall not be held liable for data security outside its sphere of influence.
4.6. The customer may be held liable for all consequences and disadvantages incurred by FLEISCHMANN through the improper or unlawful use of FLEISCHMANN’s services or due to the customer otherwise not upholding their contractual obligations (including but not limited to their obligation to keep their password secret). The customer shall indemnify and hold harmless FLEISCHMANN from any third party claims arising from the customer’s violation of rights or content created by the customer at first request, including covering any reasonable costs for legal proceedings and legal fees. Furthermore, the customer is obliged to support FLEISCHMANN in defence against such claims.
5. Data Protection
Please see the data protection policy accessible under ‘Privacy’.
FLEISCHMANN reserves the right to change its Terms and Conditions for Online Sales with immediate effect at any time.
6. Order Process
6.1. A customer order entails an offer to FLEISCHMANN to enter into a purchase contract. FLEISCHMANN sends the customer an order confirmation and reviews the offer for legal and actual feasibility, in particularly regarding possible violations of third-party rights of protection as well as statutory provisions. The order confirmation does not comprise an acceptance of the order; rather, it is intended to inform the customer that the order has been received. FLEISCHMANN has the right to accept the customer’s offer within 10 calendar days of receipt. In this case, FLEISCHMANN shall send the customer a suitable confirmation via email. There shall be no purchase contract for products from one order that are not contained in the order confirmation.
6.2. FLEISCHMANN is permitted to fully or partially reject a purchase contract at its own discretion.
7. Right of Withdrawal
The customer has the right to withdraw from this order within 14 days without stating a reason.
8.1. Unless otherwise agreed, the products purchased by way of the online order shall be sent from FLEISCHMANN’s warehouse to the address provided by the customer.
8.2. Information regarding the delivery date is non-binding unless otherwise bindingly agreed. Unless otherwise agreed, delivery of the goods directly to the customer generally takes 10-15 working days from the time at which the full purchase price has been received to FLEISCHMANN’s account.
8.3. If FLEISCHMANN is not in a position to deliver the ordered goods due to no fault of its own, FLEISCHMANN is permitted to withdraw from the contract with the customer. In this case, the customer shall be immediately informed that the ordered product is not available. The customer’s statutory rights remain unharmed.
8.4 Insofar as delivery to the customer is not possible as the customer was not present at the delivery address they provided although the customer was informed of the delivery window (day of delivery) in good time, the customer shall bear the costs incurred due to the unsuccessful delivery.
The following provisions under section 8 refer only to consumers in the sense of §13 of the BGB, i.e. natural entities taking part in a legal transaction for purposes that cannot be assigned to their professional or commercial activities.
9.1. Right to Return
The customer can return received goods without providing a reason within 14 days by returning the goods to FLEISCHMANN. This deadline begins once this declaration is received in writing (e.g. letter, fax, email) but not before the goods have been received by the recipient (in the case of repeat deliveries of the same goods, not before the first partial delivery has been received) and not before FLEISCHMANN’s information obligations are fulfilled in accordance with article 246 §2 in conjunction with §1 paragraphs 1 and 2 of the EGBGB and not before the fulfilment of FLEISCHMANN’s obligations under §312g paragraph 1 sentence 1 of the BGB in conjunction with article 246 §3 of the EGBGB. The customer may exercise their right to return by providing a written pick-up request only for goods not suitable for parcel shipping (e.g. bulky goods). To meet the deadline, timely dispatch of the goods or pick-up request is sufficient. In this case, returns are carried out at FLEISCHMANN’s expense and risk. The return parcel or pick-up request must be sent to:
c/oMEM Support Center
9.2. Consequences of Returns
In the case of an effective return, the performance supplied by each side should be returned and any benefits covered. The customer must reimburse FLEISCHMANN for any deterioration of the goods or benefits (e.g. benefit of use) that cannot be returned in full without deterioration. The customer only has to reimburse FLEISCHMANN for deterioration of the goods or benefits withdrawn if the use or deterioration is due to handling of the goods that goes beyond an inspection of quality and function. ‘Inspection of quality and function’ is understood as testing and trying out the goods as would be possible and standard at a shop. Obligations to refund payments must be fulfilled within 30 days. This period begins for the customer once the goods or pick-up request are/is sent and for FLEISCHMANN from receipt.
10. Prices, Delivery Costs, Payment Methods
10.1. All prices are in EURO, including statutory VAT (currently 16%) unless otherwise stated, and are subject to additional shipping fees. The price at the point of ordering applies.
10.2. From an order value of €30.00, the goods are sent within Austria and Germany with free delivery. If the order value is less than €30.00, a delivery fee of €6.90 shall apply. Delivery costs for replacement parts are fixed at €6.90.
The goods are preferably sent via GLS or FEDEX. Orders are sent with recorded delivery.
In justified exceptional cases (parcel shape, weight etc.), FLEISCHMANN must charge a higher fixed sum. This will be made clear as appropriate. If the delivery address is located outside the Federal Republic of Germany, FLEISCHMANN shall charge the customer for delivery to the sum of the delivery expenses actually incurred by FLEISCHMANN, which shall be displayed on the order screen. If a delivery has to take place in multiple instalments for technical or logistical reasons, FLEISCHMANN shall only charge the fixed delivery fee once.
10.3. The customer can only pay the purchase price via bank transfer (in advance), credit card or PayPal. Other payment methods are not offered.
11. Maturity and Default of Payment
11.1. The purchase price and delivery fee are payable without deduction within 10 calendar days from receipt of the contract confirmation (see section 2.1 above). The goods are only sent once the purchase price and delivery fee have been settled.
11.2. If the customer is in default of payment, FLEISCHMANN is permitted to charge default interest of 5 percent, insofar as the customer is a consumer, or 8 percent p.a. above the base interest rate set by the European Central Bank. If FLEISCHMANN has incurred demonstrable damages beyond this, FLEISCHMANN shall be permitted to pursue this claim.
11.3. For the purpose of deciding justification, carrying out or ending a contractual relationship with the customer, FLEISCHMANN is permitted to obtain information about their payment conduct from a credit checking authority (e.g. SCHUFA Holding AG, Arvato Infoscore GmbH, Deltavista GmbH) and to process the customer’s personal data (e.g. address, date of birth) to this end.
12. Offsetting and Right of Retention
The customer only has the right to offset if their counterclaims have been legally established or are undisputed by FLEISCHMANN. Furthermore, they are only able to exercise a right of retention insofar as their counterclaims are from the same contractual relationship.
13. Retention of Ownership
The goods remain the property of FLEISCHMANN until the purchase price has been paid in full. Further sale, assignment as security or similar disposal of the goods under retention of ownership for the benefit of third parties is not permitted.
Any and all defects of the purchased goods arising during the statutory guarantee period of 2 years are subject to statutory claims of your choice. Damage compensation claims are also subject to the provisions of section 5 of the provider’s general terms and conditions.
15. Choice of Law, Place of Jurisdiction
The legal relationships between FLEISCHMANN and the customer are exclusively subject to Austrian law. The application of other laws, in particular the UN Sales Convention and the regulations of Austrian International Private Law (IPR), is hereby expressly excluded. Insofar as legally permissible, the state court of Salzburg is the place of jurisdiction.
16. Closing Provisions
If parts of these General Terms and Conditions - Terms and Conditions of Online Sales are found to be invalid, the rest of the Terms and Conditions of Online Sales shall remain unaffected. Insofar as provisions are invalid, statutory provisions shall apply.
Valid as of: August 2020