General Terms and Conditions of Makoya Spa

(1) The following General Terms and Conditions (hereinafter referred to as “GTC”) apply to all business relationships between Makoya Spa (hereinafter referred to as “Makoya Spa”) and customers (customer and Makoya Spa individually also referred to as “party” and together as “parties”). The version valid at the time the contract is concluded shall be decisive in each case.
(2) Customers within the meaning of these terms and conditions are entrepreneurs and consumers.
(3) Deviating, conflicting or supplementary General Terms and Conditions of the customer shall not become part of the contract, even if known, unless we expressly agree to their validity in writing. If the customer also uses an exclusion clause in their General Terms and Conditions corresponding to the previous sentence, the contract shall also come into effect without express agreement on the inclusion of General Terms and Conditions. Insofar as the various General Terms and Conditions agree in content, these shall be deemed agreed. Conflicting individual provisions shall be replaced by the provisions of dispositive law. The same applies in the event that the customer’s terms and conditions contain provisions that are not contained in these terms and conditions. If these terms and conditions contain provisions that are not contained in the customer’s terms and conditions, these terms and conditions shall apply.

(1) The offers of goods and services on our website (https://www.makoyaspa.co.za) and in our catalogue are non-binding and subject to change. Our presentation of goods and services on the Internet and in our catalogue does not constitute an offer, but a non-binding invitation to the customer to place an order.
(2) Inquiries from the customer are non-binding and do not require any specific text or written form. Upon the customer’s request, we will, if necessary in further consultation with the customer, create a binding offer that will be sent to the customer by email or, upon request, by post. We are not obliged to provide an offer. The acceptance of our offer by the customer must be in text or written form. If the customer does not accept the offer within 20 working days, we are no longer bound by our offer. The contract between the parties is concluded upon acceptance of the offer.
(3) The offer, including these GTC, reflects the complete content of the contract at the time of its conclusion.

(1) Our product portfolio includes a range of various goods that the customer can individualise according to their own specifications via a product configuration. The customer can select the product and choose from the available configuration options when designing the product.
Important: Through your product configuration, you may be creating a non-prefabricated product for whose production an individual selection or determination is decisive or which is clearly tailored to the personal needs of the customer. This may mean that you, as a consumer, no longer have a right of withdrawal. The right of withdrawal is not affected if, for example, you select one of the available colours in your configuration. If you wish for a colour not specified by us, it is already to be assumed that this is a custom-made product for which a right of withdrawal does not exist.
An individual selection that is clearly tailored to personal needs and thus leads to the absence of a right of withdrawal is to be assumed for:
Hot Tub
• Request for a product colour not specified by us
• Equipment with special accessories that are permanently connected to the product, e.g. drink holders
• Permanent attachment of decorative plates, logos or other individual design elements
• Selection of a hydro system
• Selection of an air bubble system
• Selection of additional hydro/air jets
• Selection of the attachment of connections for filter systems
• Attachment of stainless steel bands for decoration

Sauna/Tiny House
• Selection of the attachment of exterior/interior lights
• Request for a product colour not specified by us
• Equipment with special accessories that are permanently connected to the product, e.g. tables, wardrobe, bed, etc.
• Changes to doors, windows or the room layout
• Extension of sauna and/or tiny house
• Roofing of a terrace
• Attachment of benches
• Selection of additional glass doors
• Selection of windows and doors changed in size
• Additional shower

(2) Products from the hot tub, sauna and tiny house product categories are commissioned by us from the manufacturers after the contract has been concluded. After production of the product, we will send the customer photos of the product before delivery.

If we are not supplied, not supplied correctly, or not supplied on time for reasons beyond our control (hereinafter referred to as a “Delivery Disturbance”), and if we have concluded a congruent covering transaction with our supplier before the time of the contract conclusion with the customer, then:
• our delivery and performance periods shall be extended and/or our delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period, and
• we are entitled to withdraw from the contract in whole or in part regarding the part not yet fulfilled,
provided that we
• have notified the customer of the delivery disturbance in writing or in text form in a timely manner, and
• we have not assumed a delivery guarantee or the procurement risk.
A congruent covering transaction exists if the supplier owes us deliveries and/or services in terms of both quality and quantity that correspond to the contractual deliveries and/or services we owe the customer, and the supplier is obliged to deliver the owed deliveries and/or services in terms of time so that we can satisfy the customer when the contractual services are due.
If, due to a delivery disturbance, a bindingly agreed delivery period and/or delivery date is exceeded, or if further adherence to the contract is objectively unreasonable for the customer, the customer is entitled to withdraw from the part of the contract not yet fulfilled after a reasonable grace period has expired without result. For further claims by the customer, in particular those for damages, the provisions of Section 18 shall apply.

1) We reserve the right to change the specification of the goods insofar as legal requirements make this necessary, provided that such change does not lead to a deterioration in terms of quality and usability for the usual purpose and, insofar as suitability for a specific purpose has been agreed, for that purpose.
(2) Some of the goods offered are natural products, such as wood. Small deviations in appearance are reserved, provided they do not deviate from a quality agreement between the parties.
(3) With regard to entrepreneurs, we are entitled to deliver products with customary deviations in quality, dimensions, weight, colour, and finish. Such products shall be deemed to be in accordance with the contract.

We are entitled and obliged to unilaterally adjust the remuneration owed under Section 16 (hereinafter referred to as “Price Adjustment”) if, after the time of contract conclusion/contract offer compared to the time of delivery, the following costs have demonstrably changed alternatively or cumulatively by more than 5%:
• Material costs
• Material production costs
• Product procurement costs
• Transport costs
• Labour costs
• Non-wage labour costs
• Social security contributions
• Public levies
• Energy costs
• Customs costs
(hereinafter collectively referred to as “Cost Elements”).

A price adjustment shall not take place if the delivery is to occur within four months after the conclusion of the contract; in this case, the agreed price shall remain. The price adjustment must be made in an amount corresponding to the change in costs. In the event of an increase in the price of a cost element, we are entitled to a corresponding price increase, and in the event that the price of a cost element is reduced, we will pass this reduction on to the customer through a corresponding price reduction. A price adjustment as a price increase is excluded if the cost increase for individual cost elements is offset by a cost reduction for other cost elements. A price adjustment as a price reduction is excluded if the cost reduction of individual cost elements is offset by a price increase for other cost elements.
In the event that, due to such a price adjustment, the price at the time of delivery is 20% above the price requested at the time the contract was concluded, the customer is entitled to withdraw from contracts that have not yet been fully fulfilled.
We will inform the customer of the price adjustment, the reasons for it (stating the affected cost elements and the amount of the changing costs), and their right of withdrawal. The notification must be made in writing or in text form. The customer can only assert their right of withdrawal immediately after receipt of the notification of the increased price.

(1) Binding delivery dates and periods must be expressly agreed in writing. For non-binding or approximate (e.g., approx., around) delivery dates and periods, we will make every effort to adhere to them to the best of our ability.
(2) Delivery and/or performance periods do not begin until all economic, technical, or logistical details of the execution of the order have been fully clarified between the customer and us, and all other requirements to be fulfilled by the customer for the delivery/service are fully met, in particular agreed down payments or securities and necessary cooperation services by the customer have been fully provided. The same applies to delivery and/or performance dates. If the customer has requested changes after the conclusion of the contract, a new reasonable delivery/performance period begins with the confirmation of the change by us. A delivery/performance period is considered reasonable if it takes into account the preparation steps necessary due to the change in establishing delivery/performance readiness – e.g., in the form of procurement – in addition to the remaining delivery/performance period.
(3) If we fall into arrears with delivery, the customer must first set us a reasonable grace period of at least – unless unreasonable – 12 working days for performance.
(4) Delivery of goods not suitable for parcel shipping is carried out via the respective freight forwarder. The delivery time from receipt of payment is approx. 56 days, unless a different delivery time has been agreed. The delivery of hot tubs is “kerbside”, which means to the property boundary in front of the house door.
(5) Partial deliveries are permissible insofar as they are reasonable for the customer.

(1) The customer must create all structural and organisational requirements in good time before delivery to enable proper delivery and, if applicable, assembly. This includes in particular:
• timely completion of the necessary foundation and earthworks (load-bearing capacity of the paths and installation areas, evenness, frost resistance),
• provision of the necessary electricity and water connections,
• ensuring sufficient access options for trucks and, if applicable, crane vehicles,
• obtaining necessary official permits,
• meeting the requirements of the Building Energy Act,
• obtaining any further desired planning requirements such as structural analysis (statics),
• creating free and safe access to the property,
• provision of the required technical equipment (e.g., mobile crane, low-loader) and, if necessary, personnel for unloading the product.
The customer must ensure that the vehicle on which the product is delivered can be delivered immediately (for hot tubs, kerbside according to Section 7 Para. 5) and can be driven directly to the installation site for saunas/tiny houses. (2) Insofar as the transport or installation of the product is endangered by non-compliance with special official regulations, guidelines, or legal requirements, the customer must draw our attention to this, provided that we can reasonably expect such a notice according to common business practice.
(3) The customer is responsible for unloading the product, unless otherwise agreed between the parties.
(4) If we cannot deliver the product because the customer has not created the requirements for this, we will invoice the additional costs caused by further or more difficult transport routes separately, provided that we have undertaken the delivery. In the event that the customer does not fulfil their duties of cooperation and the product cannot be delivered, we are entitled to cancel the delivery and take the goods back, provided that the customer cannot create the requirements for successful delivery within a reasonable time on the day of delivery. The customer shall bear the additional costs, in particular for additional travel costs, waiting times, storage costs, and a new delivery. Any existing claims for damages on our part remain unaffected by this.
(5) We are not responsible for the non-performance or late performance of the service in the event of a breach of cooperation duties by the customer, provided this is attributable to the breach of cooperation duties by the customer and we have fulfilled our performance obligations. When delivering a tiny house/sauna, the customer is responsible for the condition and the actual and legal suitability of the chosen installation site.
(6) Maintenance work is not part of the contract and is not owed by us. The parties can make separate agreements on this.

(1) The risk of accidental loss or accidental deterioration passes to the customer upon handover of the product to be delivered in the case of an agreed debt to be collected. In the case of an agreed debt to be dispatched, risk passes upon handover to the forwarder, the carrier, or the other company designated to carry out the shipment, but at the latest when it leaves our warehouse, our branch, or our manufacturing plant, unless a debt to be delivered is agreed. In the case of a debt to be delivered, the risk passes to the customer upon delivery at the agreed place. The above also applies if an agreed partial delivery is made.
(2) Unless otherwise agreed, the customer bears the shipping costs; these are shown separately. For entrepreneurs, in the case of a sale by dispatch, the risk of accidental loss and accidental deterioration passes to the customer upon handover of the goods to the first carrier/forwarder at the place of dispatch. For consumers, the risk only passes upon handover of the goods to the consumer. For cross-border deliveries, we handle the export clearance and – as far as legally and actually possible – also the import clearance in the destination country. Import duties advanced by us (in particular customs duties, import sales tax, consumption taxes) as well as related costs and fees (e.g., customs agents, clearance, storage, advancement, and handling fees) are to be reimbursed by the customer, unless they are already covered by the agreed shipping costs; such amounts are shown separately. If it is not possible for us to handle the import clearance for legal or factual reasons, the customer shall carry out the import clearance; the customer bears the resulting duties. Unloading the goods at the place of delivery is the responsibility of the customer unless expressly agreed otherwise.
(3) If the shipment is delayed because we exercise our right of retention as a result of full or partial default of payment by the customer or for another reason for which the customer is responsible, the risk passes to the customer at the latest from the date of sending the notification of readiness for dispatch and/or performance to the customer. For consumers, the risk passes only upon handover of the goods to the consumer.

The right of withdrawal is exclusively available to consumers within the meaning of § 1 Para. 3 Sentence 2.
I. Right of withdrawal for the purchase of goods suitable for parcel shipping (standard goods) 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 on which you or a third party named by you, who is not the carrier, took possession of the goods. To exercise your right of withdrawal, you must inform us:
Makoya Spa
30B Athlone Street, Strand Industrial
Strand, 7130
South Africa

Email: info@makoyaspa.co.za
Phone: +27 21 8454667

by means of a clear statement (e.g., a letter sent by post or an email) about your decision to withdraw from this contract. You may use the attached model withdrawal form, but it is not mandatory. To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.

Effects 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. For this reimbursement, we will use 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. You will bear the direct cost of returning the goods. You are only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.

End of the withdrawal policy
II. Right of withdrawal for the purchase of goods not suitable for parcel shipping (freight forwarding goods) 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 on which you or a third party named by you, who is not the carrier, took possession of the goods. To exercise your right of withdrawal, you must inform us:
Makoya Spa
30B Athlone Street, Strand Industrial
Strand, 7130
South Africa

Email: info@makoyaspa.co.za
Phone: +27 21 8454667

by means of a clear statement (e.g., a letter sent by post or an email) about your decision to withdraw from this contract. You may use the attached model withdrawal form, but it is not mandatory. To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.

Effects 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. For this reimbursement, we will use 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. We will collect the goods at our expense. You are only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.

End of the withdrawal policy
Special Note:
Linked/Financed Contracts
If you finance this contract with a loan and later withdraw from it, you are also no longer bound by the loan agreement if both contracts form an economic unit. This is particularly to be assumed if we are simultaneously your lender or if your lender makes use of our cooperation with regard to the financing. If the loan has already flowed to us when the withdrawal becomes effective, your lender shall step into our rights and obligations towards you arising from the financed contract with regard to the legal consequences of the withdrawal or return. The latter does not apply if the present contract concerns the acquisition of financial instruments (e.g., securities, foreign exchange, or derivatives). If you want to avoid a contractual obligation as far as possible, make use of your right of withdrawal and also withdraw from the loan agreement if you also have a right of withdrawal for that.

The right of withdrawal does not exist for distance contracts:
• for the delivery of goods that are not prefabricated and for whose production an individual selection or determination by the consumer is decisive or which are clearly tailored to the personal needs of the consumer,
• for the delivery of goods that can spoil quickly or whose expiry date would be quickly exceeded,
• for the delivery of sealed goods which are not suitable for return for reasons of health protection or hygiene if their seal has been removed after delivery,


• for the delivery of goods if these were inseparably mixed with other goods after delivery due to their nature,


• for the delivery of audio or video recordings or computer software in a sealed package if the seal has been removed after delivery,
• for the delivery of newspapers, periodicals, or magazines with the exception of subscription contracts.

If you wish to withdraw from the contract, please fill out this form and send it back.

(1) The provisions of the statutory defect warranty law apply, unless otherwise stipulated in the following regulations.
(2) Entrepreneurs must inspect the delivered goods immediately for quality and quantity deviations and notify us of recognisable defects in writing or in text form within a period of one week from receipt of the goods; otherwise, the assertion of the warranty claim is excluded. The entrepreneur must notify us of hidden defects in writing or in text form within a period of one week from discovery. Timely dispatch is sufficient to meet the deadline. The entrepreneur bears the full burden of proof for all claim requirements, in particular for the defect itself, for the time of discovery of the defect, and for the timeliness of the notice of defects. For material defects, we provide a warranty to companies for a period of twelve months, calculated from the day of the transfer of risk; in the case of refusal of acceptance by the customer, from the time of receipt of the notification of readiness for product acceptance by the customer. This does not apply to claims for damages arising from a guarantee, the assumption of a procurement risk, claims due to injury to life, limb, or health, malicious, intentional, or grossly negligent action on our part, or if a limitation period is mandatory in legally prescribed cases.
(3) The customer must provide goods not suitable for parcel shipping that were delivered kerbside for collection “kerbside” according to Section 7 Para. 5 at the property boundary in front of the house door if supplementary performance is requested with regard to these goods and the goods are to be transported back to us.
(4) We do not grant any guarantees.
(5) Our warranty and the resulting liability are excluded insofar as defects and related damages are not demonstrably based on faulty material, faulty construction, defective execution, faulty manufacturing materials or, insofar as owed, defective instructions for use. In particular, warranty and the resulting liability due to material defects are excluded for the consequences of incorrect use, unsuitable storage conditions, unsuitable installation conditions, and for the consequences of chemical, electromagnetic, mechanical, or electrolytic influences that do not correspond to the average standard influences provided for in our product description or a deviating agreed product specification or the respective product-specific data sheet by us or the manufacturer. The above does not apply in the case of malicious, grossly negligent, or intentional action on our part, or injury to limb, life, or health, the assumption of a guarantee, or liability according to a legally mandatory liability fact. If the customer or a third party improperly repairs the delivered products, there is no liability on our part for the resulting consequences.

(1) If events of force majeure of non-insignificant duration occur, which means with a duration of longer than 14 calendar days, we will inform our customers of this in writing or in text form in a timely manner. In this case, we are entitled to postpone the delivery or service by the duration of the hindrance or to withdraw from the contract in whole or in part regarding the part not yet fulfilled, provided we have fulfilled our above obligation to inform and have not assumed the procurement risk or a delivery or performance guarantee. Force majeure includes: strike, lockout, official intervention, energy and raw material shortages, transport bottlenecks or obstacles through no fault of our own, operational hindrances through no fault of our own, and all other hindrances that have not been culpably brought about by us from an objective point of view.
(2) If a delivery and/or performance date or a delivery and/or performance period is bindingly agreed and if the agreed delivery date or the agreed delivery period is exceeded due to events according to Para. 1, the customer is entitled to withdraw from the part of the contract not yet fulfilled after a reasonable grace period has expired without result. Further claims by the customer, in particular those for damages, are excluded in this case.

(1) For consumers, we retain ownership of the goods until full payment of the purchase price. For companies, we retain ownership of the goods until full settlement of all claims from an ongoing business relationship. If the value of the reserved goods exceeds the claims to be secured from the ongoing business relationship with the company by 25%, we are obliged to release the reserved goods at the request of the company.
(2) The customer is obliged to treat the goods with care during the existence of the retention of title. The customer must inform us immediately in writing of all access by third parties to the goods, in particular of compulsory execution measures, as well as of any damage to or destruction of the goods.
(3) The entrepreneur is entitled to resell the goods in the ordinary course of business. He hereby assigns to us all claims in the amount of the invoice amount that accrue to him through the resale against a third party.We accept the assignment. After the assignment, the entrepreneur is authorised to collect the claim. We reserve the right to collect the claims ourselves as soon as the entrepreneur does not properly meet his payment obligations and falls into arrears. The processing and treatment of the goods by the entrepreneur are always carried out in our name and on our behalf. If the goods are processed, we acquire co-ownership of the new item in proportion to the value of the goods delivered by us. The same applies if the goods are processed or mixed with other items not belonging to us.

(1) Unless otherwise agreed in individual cases, our current prices at the time the contract is concluded apply, namely ex warehouse, plus statutory value-added tax.
(2) In the case of a sale by dispatch, the customer bears the transport costs from the warehouse and the costs of any transport insurance requested by the customer. If we do not invoice the transport costs actually incurred in the individual case, a flat-rate transport fee (excluding transport insurance) in the amount of R 7,600–18,050 shall be deemed agreed. Any customs duties, fees, taxes, and other public levies shall be borne by the customer.
(3) The purchase price is due and payable from the time of invoicing. However, we are entitled at any time, even within the framework of an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the submission of the offer. When ordering one of our products from the hot tub, sauna, or tiny house product category, an amount of at least 20% of the purchase price must be paid in advance. The exact amount will be stated in the offer. The order will not be processed before payment. After production, we will send the customer photos of the created product. With the transmission of the photos, we request the customer to pay the full invoice amount. The full invoice amount is to be paid by the customer immediately upon request. The delivery of the hot tub, sauna, or tiny house will only take place after we have received the full invoice amount.
(4) The purchase price is to be subject to interest during the default at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. Towards merchants, our claim to the commercial maturity interest remains unaffected.
(5) If it becomes apparent after the conclusion of the contract (e.g., by an application for the opening of insolvency proceedings) that our claim to the purchase price is endangered by the customer’s lack of ability to perform, we are entitled to refuse performance according to the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract. In the case of contracts for the manufacture of unjustifiable items (custom-made products), we can declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.

The customer only has a right to set-off with undisputed or legally established claims. This restriction does not apply if and insofar as the customer’s respective counterclaim results from the same contractual relationship as our claim.

(1) Subject to the following exceptions, we are not liable, in particular not for claims of the customer for damages or reimbursement of expenses – for whatever reason – in the event of a breach of duties arising from the contractual relationship.
(2) The above exclusion of liability according to Para. 1 does not apply:
• for our own intentional or grossly negligent breach of duty and intentional or grossly negligent breach of duty by legal representatives and vicarious agents;
• for the breach of essential contractual obligations; “essential contractual obligations” are those whose fulfilment characterises the contract and on which the customer may rely;
• in the event of injury to limb, life, and health, also by legal representatives and vicarious agents;
• in the case of legally mandatory liability facts.
(3) In the event that we or our vicarious agents are guilty of slight negligence, we are liable even for the breach of essential contractual obligations only for the contract-typical and foreseeable damage.
(4) The exclusions or restrictions of liability according to the preceding paragraphs apply to the same extent in favour of our corporate bodies, our executive and non-executive employees, and other vicarious agents as well as our subcontractors.
(5) A reversal of the burden of proof is not associated with the above regulations.

(1) We treat the customer’s personal data confidentially and only make this data available to third parties insofar as this is permitted by data protection law or the customer consents to this.
(2) We point out that we process our customers’ personal data electronically. The data is used solely for the execution of the contract.
(3) With the data protection declaration, we inform the customer about:
• type, scope, duration, and purpose of the collection, processing, and use of the personal data required for the execution of orders and billing;
• their data subject rights.

Should individual provisions of the contract with the customer, including these General Terms and Conditions, be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby.