Terms of Service

Date: March 2024

Provider Information
KM Engineers GmbH
Albert-Einstein-Straße 2b
77656 Offenburg
Germany

Phone: +49 781 12559870
Email: info@km-tuning.com

1. Scope of Application
The following Terms of Service apply to all orders placed through our online shop by consumers and entrepreneurs.

A consumer is any natural person who enters into a legal transaction for purposes that predominantly cannot be attributed to their commercial or self-employed professional activity. An entrepreneur is a natural or legal person or a legally responsible partnership that, when entering into a legal transaction, acts in the exercise of its commercial or self-employed professional activity.

These Terms of Service also apply to future business relationships with entrepreneurs, without us having to refer to them again. If the entrepreneur uses conflicting or supplementary General Terms and Conditions, their validity is hereby objected to; they only become part of the contract if we have expressly agreed to them.

2. Contractual Partner, Conclusion of Contract
The product descriptions contained in the seller's online shop do not constitute binding offers by the seller, but serve to submit a binding offer by the customer (invitation to treat).

You can initially place our products in the shopping cart without obligation and correct your entries before submitting your binding order at any time. Your binding offer to us is made by clicking the order button to submit the offer for the goods contained in the shopping cart. The seller confirms receipt of the order and the expected delivery date by sending an automatically generated email (order confirmation).

The seller has the option to accept the customer's offer within five days in the following manner:

• The seller can 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), whereby the receipt of the order confirmation by the customer is decisive, or
• by delivering the ordered goods to the customer, whereby the receipt of the goods by the customer is decisive, or
• by requesting payment from the customer after the customer has placed their order.

If several of the aforementioned alternatives exist, the contract is concluded at the time when one of the aforementioned alternatives occurs first. The period for accepting the offer begins on the day after the offer is sent by the customer and ends with the expiry of the fifth day following the sending of the offer. If the seller does not accept the customer's offer within the aforementioned period, this shall be deemed as rejecting the offer, with the consequence that the customer is no longer bound by their declaration of intent.

3. Language of the Contract, Storage of the Contract
The languages available for concluding the contract are German and English.

We store the contract and send you the order details as well as our terms of service via email. For security reasons, the contract is no longer available online.

4. Delivery Conditions
In addition to the indicated product prices, shipping costs will be added. You can find more information about the amount of shipping costs in the offers.

5. Transport Damage
For consumers: If goods are delivered with obvious transport damage, please report such defects to the deliverer as soon as possible and contact us immediately. The failure to report or contact us immediately has no consequences for your legal claims and their enforcement, especially your warranty rights. However, you help us to assert our own claims against the carrier or transport insurance.

For entrepreneurs: The risk of accidental loss and deterioration passes to you as soon as we deliver the item to the carrier, the freight forwarder, or any person or institution otherwise designated to carry out the shipment. For merchants, the inspection and complaint obligations governed by § 377 of the German Commercial Code (HGB) apply. If you fail to make the notification required there, the goods are deemed approved, unless there is a defect that was not recognizable during the inspection. This does not apply if we have fraudulently concealed a defect.

6. Retention of Title
The goods remain our property until full payment has been made. For entrepreneurs, the following applies additionally: We reserve ownership of the goods until all claims arising from an ongoing business relationship have been fully settled. You are permitted to resell the reserved goods in the ordinary course of business; however, you hereby assign all claims arising from such resale – irrespective of any connection or mixing of the reserved goods with a new item - in advance to us in the amount of the invoice value, and we accept this assignment. You remain authorized to collect the receivables, but we may also collect receivables ourselves if you fail to meet your payment obligations.

7. Sharing of Software
The provided software is tied to the customer or vehicle and may not be shared to third parties. Any attempt to share or distribute the software is expressly prohibited. In the event of detected share or an attempt thereof, we reserve the right to delete the customer account, thereby immediately terminating the customer's access to the software.

Additionally for business customers: In the event of unauthorized share or an attempt to share the software to third parties by the business customer, a contractual penalty of €10,000 is due. This contractual penalty serves as a deterrent and as reasonable compensation for potential damages that may arise from the unauthorized sharing of the software.

Furthermore, we reserve the right to assert claims for damages in the event of a violation of the share provisions to compensate for the financial and non-financial damages incurred.

8. Right of Withdrawal
You have the right to withdraw from this contract within fourteen days without giving any reason. The withdrawal period is fourteen days from the day you or a third party designated by you, who is not the carrier, took possession of the last partial shipment or the last item. To exercise your right of withdrawal, you must inform us (KM Engineers GmbH, Albert-Einstein-Str. 2b, 77656 Offenburg, Germany, +49 781 12559870, shop@km-tuning.com) by means of a clear statement (e.g., a letter sent by post or an email) of your decision to withdraw from this contract. You can use the attached sample withdrawal form for this purpose, but this is not mandatory. To comply with the withdrawal period, it is sufficient for you to send the notification of exercising the right of withdrawal before the withdrawal period expires.

9. Consequences of Withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than fourteen days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement. We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earliest. You shall send back the goods or hand them over to us without undue delay and in any event not later than fourteen days from the day on which you communicate your withdrawal from this contract to us. The deadline is met if you send back the goods before the period of fourteen days has expired.

10. Exceptions to the Right of Withdrawal or Reasons for Expiry of the Right of Withdrawal
The right of withdrawal does not apply to contracts for the supply of goods that are not prefabricated and for the production of which an individual selection or determination by the consumer is decisive or which are clearly tailored to the personal needs of the consumer. The right of withdrawal expires prematurely for contracts for the delivery of sealed goods that are not suitable for return for reasons of health protection or hygiene if their sealing has been removed after delivery. Similarly, the exclusion of the right of withdrawal comes into force prematurely if goods have been mixed with other goods after delivery due to their nature and are inseparably mixed with them.

In the case of products that are activated or assigned to a user account, the general right of withdrawal is generally excluded once the product has been activated. This also applies to the provision of products in sealed packaging if the sealing has been removed after delivery.

11. Sample Withdrawal Form
(If you wish to withdraw from the contract, please fill out this form and return it.)

–

To

KM Engineers GmbH
Albert-Einstein-Str. 2b
77656 Offenburg
Germany

+49 781 12559870
shop@km-tuning.com

:

–

I/We (*) hereby withdraw from the contract concluded by me/us (*) for the purchase of the following goods (*)/provision of the following service (*)

–

Ordered on (*)/received on (*)

–

Name of consumer(s)

–

Address of consumer(s)

–

Signature of consumer(s) (only if communicated on paper)

–

Date

(*) Delete as appropriate.

12. Warranty
The statutory warranty rights apply to the goods.

13. Defect Liability
The statutory defect liability rights apply.

As a consumer, you are requested to promptly check the goods for transport damage, completeness, and obvious defects upon delivery, and to notify us and the carrier of any complaints as soon as possible. Failure to do so will not affect your statutory warranty claims. If you purchase goods from us as a business within the meaning of § 14 of the German Civil Code (BGB), your warranty claims expire within 12 months from the transfer of risk. This does not apply to claims for damages due to injury to life, body, or health resulting from an intentional or negligent breach of duty on our part, our legal representatives, or agents.

14. Disclaimer
We guarantee that the software essentially corresponds to the performance characteristics specified in the software description.

The user is solely responsible for improper use, improper installation, or modification of the software, which may result in damages. In such cases, any liability on our part is excluded.

In no event shall we be liable for indirect, incidental, special, or consequential damages or losses, including lost profits, data loss, business interruption, or financial losses resulting from the use of our software, even if we have been advised of the possibility of such damages.

Any liability is limited to the actual price paid for the software or the value of the license fee paid by the user for the respective software.

The disclaimers and limitations of liability do not apply in cases of intent or gross negligence on our part or that of our legal representatives, senior employees, or agents.

15. Disclaimer Tuning Software
The software intended for your vehicle, engine control unit, and/or gearbox is referred to as "tuning software" below.

Using our tuning software will void the manufacturer's warranty for your vehicle and the related components, as well as the liability for defects. We do not accept any liability for resulting consequences.

Depending on the country where the tuning software is used, the vehicle's operating permit may be revoked. We do not assume any liability for the existence of the operating permit and the resulting consequences of its revocation. Claims against KM Engineers GmbH due to non-approval by the TÜV or a country-specific inspection organization are excluded unless KM Engineers GmbH has expressly assured the admissibility in writing, taking into account the respective requirements.

We emphasize that it is solely the responsibility of customers to inform themselves in advance from the appropriate authorities about the requirement for approval of our services and, if necessary, to obtain the required approvals.

The customer is responsible for ensuring that insurance coverage is provided. The increase in performance of motor vehicles requires reclassification for both liability insurance and comprehensive insurance. We do not accept any liability for resulting consequences.

The changes made to the engine, control unit, or control data by the tuning software result in a change in the vehicle's performance data. It is expressly pointed out that the engine and, if applicable, other vehicle components are subjected to increased stress and strain. This can lead to increased wear and tear on the vehicle due to physical reasons. In particular, overloads, continuous performance, and the increase in the vehicle's maximum speed achieved by tuning can affect the lifespan of the engine and its components. Furthermore, there may be increased fuel consumption and increased emissions. Liability for damages resulting from this is excluded.

16. Privacy policy
You can find our privacy policy on our website at https://km-tuning.com/General/Privacy-policy/.

17. Dispute Resolution
The European Commission provides a platform for online dispute resolution, which you can find here: https://ec.europa.eu/consumers/odr. We are not obliged or willing to participate in dispute resolution proceedings before a consumer arbitration board.

18. Final Provisions
If you are a businessperson, German law applies with the exclusion of the UN Convention on Contracts for the International Sale of Goods.

If you are a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from contractual relationships between us and you is our registered office.

If individual clauses or parts of a clause of these Terms of Service are ineffective, the legal consequences shall be governed by § 306 of the German Civil Code (BGB). In such a case, the contract remains effective without the affected clauses or parts.