General Terms and Conditions of Sale

Last updated: February 2022

I. Scope of application

1. Our General Terms and Conditions of Sale apply to all legal relationships between the contracting parties, including any entered into in the future. Any varying agreements shall only apply if they are confirmed by us in text form.

2. Any varying or conflicting General Terms and Conditions of Business of the contractual partner – hereinafter referred to as Purchaser – are hereby expressly excluded. They shall not become a contractual component unless we have expressly agreed to their validity in text form. They shall similarly not become a component of this contract without consent in text form even if we do not expressly exclude them once more on receipt by us. Our terms and conditions shall be deemed accepted by the Purchaser no later than on receipt of the goods supplied by us to the Purchaser.

3. Any verbal agreements that deviate from these terms and conditions shall only become a component of this contract if we confirm the agreement in text form. This requirement for text form may only be waived by mutual agreement in writing.

4. Variations to the manner in which business is handled shall not entitle the Purchaser to amend these terms and conditions.

5. The requirement for text form agreed in all of the above and following clauses may similarly only be waived in text form.

6. Our terms and conditions of sale only apply vis-à-vis companies within the meaning of section 310 (1) German Civil Code (BGB).

7. Should a provision of our General Terms and Conditions of Sale or a provision contained within other agreements be or become invalid, the validity of all other provisions and arrangements shall remain unaffected. The invalid provision shall be replaced by another valid provision that most closely resembles what the parties would have agreed had they been aware of the invalidity of the void provision in advance.

II. Offer and respective documents

1. Offers are subject to change. No binding effect shall come about as a result. A contract with us shall only come into effect on receipt of our order confirmation in text form and exclusively based on the content thereof.

2. We may accept orders within six weeks. This period begins on receipt of the order.

3. Our order confirmation in text form is key for determining the scope of the delivery or service. Any assurances concerning qualities, addenda, amendments or ancillary agreements must be made in text form if they are to acquire legitimacy.

4. Our employees and sales representatives are not authorised to enter into verbal ancillary agreements or to give verbal assurances that go beyond the content of the contractual text.

5. Illustrations, drawings, calculations, dimensions, weights, other specifications, technical or other documents shall only be binding if this has been expressly assured by us in text form. We shall retain the rights to title and copyright concerning these documents and their content. The Purchaser requires our express consent in text form before transferring them to third parties. They must be returned or destroyed without undue delay if the contract does not come about.

6. In the event of serial production or custom-made products, we reserve the right to effect an excess or to short delivery of 10%. The excess or shorted quantity shall be charged accordingly.

7. We are entitled to perform partial deliveries, provided this is reasonable for the Purchaser.

8. Public statements, claims or advertising do not constitute binding quality descriptions of the goods.

III. Prices/terms of payment/invoicing

1. Unless otherwise provided for in the order confirmation, our prices are valid ‘ex warehouse’ or ‘ex works’, net of loading and/or shipping costs, customs, packaging.

2. All prices are net prices and do not include the applicable VAT in the Federal Republic of Germany at the rate of tax applicable on the date on which the tax liability arose.

3. Ancillary charges such as expenses, costs, disbursements, tolls, fees, freight, packaging, etc. are not included in this amount and will be invoiced separately. In the event of flat-rate billing, the customer is permitted to request proof of the amount.

4. Our prices are based on acceptance of at least 1,000 pcs per version and type. The minimum order value is EUR 250.00 net.

5. Insofar as no agreement of fixed prices has been entered into, the right to make reasonable price alterations due to changes to wage, material and distribution costs for deliveries that take place four months or later following the conclusion of the contract is reserved. This only applies if these price alterations were not foreseeable for us or if we are not responsible for them. We shall provide evidence of the changes in question to the Purchaser on request.

6. An entitlement to a discount shall only apply if it has been expressly granted by us in text form. This must be granted separately in text form for each invoice. Any varying and/or regular grant of discounts in the past shall not give rise to an obligation on our part to continue to grant discounts on future invoices.

7. Partial invoices shall be issued for partial deliveries. The payment periods shall run separately for each partial invoice.

8. We only accept bills of exchange or cheques on account of payment, but not instead of payment, subject to separate agreement. Our claim shall be deemed satisfied on the day on which we are able to dispose of the corresponding value without having to anticipate any repayment claims.
The Purchaser shall be liable for collection costs and discount and exchange charges as well as interest and such shall be immediately due for payment.

9. The Purchaser only has a right to offset if the claim is undisputed or has been legally established. A right of lien may only be exercised if the counterclaim is based on the same contractual relationship.

10. Any one-off costs such as costs of tooling and development shall be billed at a rate of 50% directly on receipt of the order. The remaining 50% shall be payable on delivery of the first serial parts.

11. The invoices shall be sent electronically by email or by post.

12. The Purchaser may neither assign nor pledge any claims against us.

IV. Product information/design modifications

1. The Purchaser is obliged to inform us in every respect the conditions under which the goods are to be used; this needs to be in detail via text form. Additionally, the Purchaser is required to observe the safety certification specified in the product text in respect of the compatibility of the intended installation of our product into the bicycles being manufactured.

2. We reserve the right to make design modifications in the interest of technical progress, provided these do not entail any functional changes.

V. Delivery period

1. Statements on delivery periods are non-binding, unless the delivery date has expressly been confirmed as ‘binding’ in text form by way of exception.

2. The delivery period starts with the day on which the order is confirmed, albeit not before the Purchaser has provided all documents, permits, approvals that need to be obtained, as well as the receipt of any agreed payment, the opening of a letter of credit that needs to be provided or the provision of proof that agreed collateral has been furnished.

3. The delivery period shall be deemed complied with if the goods have left the Ennepetal warehouse within the delivery period.

4. In the event of unforeseen impediments that lie outside our intent and that we have been unable to avert despite exercising the due care under the circumstances of the case – this applies both to us and to our subcontractors in cases of e.g. force majeure (e.g. war, natural disasters or pandemics), delays in the delivery to us of essential raw materials or other circumstances for which we are not at fault – we are entitled to withdraw in full or in part from the supply contract or to extend the delivery period by the duration of the impediment. We shall be entitled to the same rights in the event of strikes or lockouts affecting us or our suppliers. We shall notify our customers of such circumstances without undue delay.

5. In the event of a delay in delivery, the Purchaser may withdraw from the contract if a reasonable grace period expires to no avail. In the event of impossibility of performance on our part, the Purchaser shall also be able to make use of this right without the grace period. A grace period of at least 14 days is reasonable, and of at least one month for custom-made products.
Delay in delivery shall be deemed as impossible if the delivery is not performed after one month, or six weeks for custom-made products.
Claims for compensation (including potential consequential loss) shall be excluded, without prejudice to para. 6; the same applies to reimbursement of expenditure.

6. The disclaimer set out in para. 5 shall not apply where an exclusion or limitation of liability for damages for death, personal injury or damage to health resulting from a wilful or negligent breach of duty by the user or a wilful or negligent breach of duty by a statutory representative or vicarious agent of the user has been agreed; further, it shall not apply where an exclusion or limitation of liability for other loss resulting from a wilful or grossly negligent breach of duty by a legal representative or a vicarious agent of the user has been agreed; and further not in cases of fraudulent concealment or assumption of a quality guarantee.
If a material contractual duty has been breached due to an act of minor negligence, our liability shall be limited to the foreseeable loss typical for the type of contract.
A material contractual obligation shall be deemed to exist in the case of obligations whose fulfilment is essential for the proper execution of the contract and on compliance with which the customer has relied and ought to be able to rely on.
The above applies mutatis mutandis to the case of claims for reimbursement of expenditure.

7. In the case of call orders, the individual calls must be communicated to us in good time, and no later than six weeks prior to the required delivery date, so that orderly manufacture and delivery are possible. Call orders must be called within twelve months of the order, provided no other fixed deadlines have been agreed. If the call is not made at all or not fully within twelve months of the order or on the agreed call dates, the Purchaser shall be in default of acceptance.

8. Section 266 BGB shall not apply. We are entitled to provide partial performance, in particular in the context of call orders.

9. If the Purchaser is in default of acceptance or if there is a breach in cooperative duties, we are entitled to demand compensation for the losses incurred by us, including any additional expenditure. In this case, the risk of chance destruction or chance deterioration of the object of purchase shall pass to the Purchaser at that point at which the Purchaser is in default of acceptance.

VI. Transfer of risk/packaging costs/insurance

1. The risk of chance destruction and chance deterioration shall pass to the Purchaser on handover of the goods to the carrier or freight forwarder, and no later than the point at which they leave our premises. The Incoterms 2020 clause ‘ex works/ab Werk’ (German version) shall apply.

2. If the handover is delayed because of a circumstance that is the fault of or is instigated by the Purchaser, the risk shall pass to the Purchaser as of the date of notification of readiness to dispatch. At the express written request of the Purchaser, we are obliged to insure the goods stored at our premises at the Purchaser’s expense. This also applies to cases in which a delivery date is not expressly agreed with the proviso that the risk passes to the Purchaser seven calendar days after notification of readiness to dispatch.

3. Transport insurance as well as insurance of the goods supplied by us are the responsibility of the Purchaser. If the Purchaser so requires, we will take out transport insurance cover for the delivery; the costs incurred for doing so shall be borne by the Purchaser.

4. Transport packaging and all other packaging will not be taken back in accordance with the German Packaging Ordinance (Verpackungsverordnung). Insofar as we are subject to obligations to take back packaging under the German Packaging Ordinance, the Purchaser shall bear the costs of transporting the used packaging to us. Reusable pallets are excluded from this. The Purchaser is obliged to dispose of the packaging at their own expense.

5. The Purchaser is obliged to take receipt of supplied items, even if they exhibit minor defects, notwithstanding the rights under sections 433 et seq. BGB.

VII. Retention of title

1. We shall retain title to the supplied goods until the purchase price including all ancillary claims has been paid in full and all remaining claims under the business relationship have been paid. Up to that point, the Purchaser is not entitled to pledge the goods to third parties or assign them by way of security. The Purchaser shall store the goods subject to retention of title on our behalf free of charge.

2. In the event the Purchaser processes, combines and mixes goods subject to retention of title with other goods, we shall acquire co-ownership to the new item at the ratio of the invoice value of the goods subject to retention of title to the aggregated asset. The co-ownership rights arising as a result shall be deemed goods subject to retention of title within the meaning of para. 1.

3. The Purchaser is entitled to sell the goods subject to retention of title in the ordinary course of business provided that/if it is not in default of payment in respect of our claim to the purchase price.

4. The Purchaser hereby assigns to us all claims against third parties accruing to it from the selling on of the goods subject to retention of title. If the goods subject to retention of title are sold following processing, combination or mixing, the assignment of the claim arising from the sale shall only be valid up to the amount of the value of the goods subject to retention of title invoiced to the Purchaser by the vendor. This also applies if the goods subject to retention of title are sold along with other goods which similarly do not belong to the vendor.

5. The Purchaser is also authorised to collect the claim following assignment. We may limit the collection authorisation on the grounds of a legitimate interest and revoke it for good cause, in particular in the event of payment default. We can demand that the Purchaser  discloses its assigned claims and the associated debtors to us, provides us with all information required for the collection, hands out associated documents and discloses the assignment to its debtors.

6. We are obliged to release the collateral to which we are entitled under the foregoing provisions at the Purchaser’s request, should the realisable value exceed the claims being secured by more than 20%; the collateral to be released shall be selected at our discretion.

7. The Purchaser hereby declares its agreement that the persons commissioned by us with the assignment of the goods subject to retention of title may to this end enter, on foot or by vehicle, the property on which or building in which the items are located in order to take possession of the goods subject to retention of title.

8. The Purchaser shall notify us without undue delay of any confiscation, compulsory enforcement or other third-party interventions that adversely affect our property rights. The Purchaser shall be liable for the costs of rectifying the third-party interventions, in particular intervention proceedings.

9. The Purchaser’s authorisation to pass on goods subject to retention of title in the ordinary course of business shall end on revocation thereof by us, which we are permitted to do in the event of justified doubts concerning the Purchaser’s solvency. Doubts shall be deemed to be justified in particular if a credit bureau gives the Purchaser a rating worse than ‘satisfactory’ and/or a loan insurance company reduces or cancels a credit limit assumed for the Purchaser, and no later than on cessation of the payments or on the application for or initiation of insolvency proceedings over its assets.

10. If our retention of title ceases to be valid in cases of deliveries overseas or for other reasons, the Purchaser is obliged, without undue delay, to grant to us collateral over the supplied goods or other security for our claims that is valid under the applicable law at the place of the Purchaser’s registered office or the place at which the goods are located and most closely resembles the retention of title under German law.

VIII. Warranty and liability

1. If a defect occurs for which we are at fault, we are entitled to perform rectification of the defect or a replacement delivery at our discretion. The prerequisite for this is that the defect is of a more than minor nature. Reimbursement of costs shall be excluded if expenditure increases because the goods supplied in our delivery are being stored at a different location, unless this is compatible with the intended use of the goods. Should one or both of these methods of supplementary performance be impossible or not reasonable, we are permitted to refuse them. We may refuse subsequent delivery for as long as the Purchaser fails to satisfy their payment obligations towards us in an amount equivalent to the defectfree part of the delivery.

2. If the rectification of the defect or replacement delivery is not performed within a reasonable period – taking our delivery capabilities into account – or if the rectification of the defect or replacement delivery is unsuccessful, the Purchaser may demand reduction of the remuneration (price reduction) or withdraw from the contract.

3. The Purchaser’s rights in the event of defects presuppose that it has properly complied with its duty of inspection and objection under section 377 HGB.

4. Unless otherwise provided for below (para. 6), further claims by the Purchaser, irrespective of the legal grounds (in particular claims resulting from a breach of primary and secondary contractual obligations, reimbursement of expenditure with the exception of that set out under section 439 II BGB, unlawful act and other tortious liability), shall be excluded; this applies in particular to losses not arising directly on the delivered item itself as well as to claims for compensation for lost profits; this also applies to claims not arising from the defectiveness of the purchased items.

5. The foregoing provisions also apply should a different item or a lower quantity be delivered.

6. The limitation of liability regulated in para. 4 shall not apply where an exclusion or limitation of liability for damages for death, personal injury or damage to health has been agreed; further, it shall not apply where an exclusion or limitation of liability for other loss resulting from a wilful or grossly negligent breach of duty by a legal representative or a vicarious agent of the user has been agreed. Liability shall not be excluded where a material contractual duty is breached due to an act of minor negligence, but it shall be limited to the foreseeable loss typical for the type of contract; in all other respects, it is excluded in accordance with para. 4. The limitation of liability shall further not apply in cases where liability for personal injury or material damage to items used for private purposes applies under product liability legislation if the delivered goods are defective. It shall further not apply in cases of the assumption of a warranty and assurance of a quality, if a defect specifically covered thereunder triggers our liability. The above applies mutatis mutandis to cases of claims for reimbursement of expenditure.

7. No guarantee is assumed for losses resulting from inappropriate or improper use, (for example: due to overloading as a result of competitive purposes; for expedition or rental bicycles or if used to drive boats or for similar purposes; defective fitting by the Purchaser or third parties; natural wear and tear; defective or negligent handling; improper modifications or maintenance work undertaken by the Purchaser or third parties) without prior approval by us in text form.

8. All references to standards made in business documentation and communications for products, in particular to ISO 4210 and other standards, do not represent an assurance of qualities, but rather are purely informative in nature and apply exclusively in the sense of type approvals made by us in combination with the components intended by us for that purpose and subject to the deployment of standard-compliant test processes and evaluation methods by an accredited test laboratory on our behalf. Any objections arising due to results from non-accredited test laboratories or in combination with products not approved by us or non-standard-compliant test and evaluation processes shall not be acknowledged.

9. The claims to subsequent performance, damages and replacement use shall become time-barred one year after delivery of the purchased goods. However, this shall not apply to claims resulting from death, personal injury or harm to health or for claims due to a wilful or grossly negligent breach of duty by the user or its vicarious agents, nor to fraudulent concealment of the defect; nor due to product liability or the breach of material contractual duties if the breach of duty does not merely consist of the delivery of the defective goods. Claims to price reduction and the exercise of a right of withdrawal shall be excluded if the claim to subsequent performance is time-barred. In this case, the Purchaser may, however, refuse to pay the purchase price to the extent that it would be entitled to do so on grounds of withdrawal or price reduction; in the event of the exclusion of withdrawal and subsequent refusal to pay, we are entitled to withdraw from the contract.

10. This section is without prejudice to claims arising from the right of recourse against the manufacturer.

11. Complaints
We constantly endeavour to rectify complaints by way of an amicable and swift resolution procedure. An 8D report or other measures shall not constitute an acknowledgement of the complaint.

IX. Liability for ancillary duties

If, due to fault on our part, the supplied goods cannot be used in a contractually compliant manner or loss is sustained by the Purchaser as a result of omitted or defective execution of suggestions and discussions occurring before or after the conclusion of the contract as well as other contractual ancillary duties, the provisions of clauses VIII and X apply accordingly subject to the exclusion of further claims on the part of the Purchaser.

X. Withdrawal by the Purchaser and other liability on our part

1. The following provisions apply to breaches of duty going beyond liability for defects and are intended neither to exclude nor limit the statutory right of withdrawal. Similarly, statutory or contractual claims to which we are entitled shall be neither excluded nor limited.

2. The Purchaser may withdraw from the contract if performance as a whole becomes definitively impossible. The same also applies to incapacity. The Purchaser may also withdraw from the entire contract if, where items of the same type are ordered, the execution of part of the delivery becomes impossible in numerical terms on grounds for which we are at fault and the Purchaser is not interested in a partial delivery; if this is not the case, the Purchaser may reduce the consideration accordingly; the right of withdrawal shall not apply to minor breaches of duty.

3. If in the event of a delay in performance the Purchaser grants us an adequate grace period for rendering performance after we have given reasons for the default, the Purchaser is entitled to withdraw from the contract if this grace period is not complied with. In the event of a partial default of performance, para. 1 sent. 2 applies mutatis mutandis.
If the Purchaser requires varying execution to any aspect of the supplied goods prior to delivery, the term of the delivery period up to the day of the notification shall be interrupted and where necessary extended by the time required for the varying execution.

4. The right of withdrawal shall be excluded if the Purchaser is solely or largely responsible for the circumstance entitling them to withdraw or if the circumstance for which we are at fault occurs at the point at which the Purchaser is in default of acceptance.
In the event of impossibility, we reserve our claim to consideration in accordance with section 326 (2) BGB in the foregoing cases.

5. Further claims by the Purchaser, irrespective of the legal grounds (in particular claims resulting from culpa in contrahendo, a breach of primary and secondary contractual obligations, reimbursement of expenditure, unlawful act and other tortious liability), shall be excluded; this applies in particular to losses not arising directly on the delivered item itself as well as to claims for compensation for lost profits; this also applies to claims not arising from the defectiveness of the purchased items.
This shall not apply where the loss results from willful intent or gross negligence by us, our statutory representatives or vicarious agents. This shall further not apply in the case of losses due to culpable injury of life, body or health.
Similarly, liability in the case of the assumption of a guarantee shall not be excluded to the extent that a breach of duty specifically covered thereunder triggers our liability.
Insofar as we culpably breach a material contractual duty or a ‘cardinal duty’, liability shall not be excluded, but merely limited to the foreseeable loss typical for the type of contract.

XI. Place of performance and place of jurisdiction

1. The place of performance for the obligations of both parties arising from all legal relations is Ennepetal/Germany.

2. The legal relationship between the Purchaser and us shall be governed by the law of the Federal Republic of Germany. UN Sale of Goods law (UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG – ‘Vienna Convention’)) is expressly excluded.

3. If the Purchaser is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction is Ennepetal. We are also entitled to bring claims at the location of the Purchaser’s head office.