General Terms and Conditions of Sale
Last updated: November 2016
I. Scope of application
1. Our General Terms and Conditions of Sale apply to all legal relations between the contracting parties, including all future legal relations. Differing agreements are valid only if confirmed by us in writing.
2. We shall not be bound by contrary or opposing general business terms and conditions of the contractual partner – referred to hereinafter as the Purchaser – even if we do not expressly object to these.
3. Our General Terms and Conditions of Sale apply only in respect of enterprises within the meaning of Section 310 Para. 1 BGB [German Civil Code].
4. If a provision of our General Terms and Conditions of Sale should be or become ineffective, this shall not affect the effectiveness of all the other provisions.
II. Offer/offer documents
1. Unless specified otherwise in it, our offer is non-binding and subject to change.
2. We can accept orders within six weeks. This period commences with the receipt of the order.
3. Our written order confirmation shall be controlling as to the scope of the delivery or performance. Assurances of characteristics, additions or side agreements must be made in written form in order to be effective.
4. Our sales staff are not authorised to give verbal side agreements or assurances that go beyond the content of the written agreement.
5. We reserve the rights of ownership and copyright to illustrations, drawings, calculations and other documents. The Purchaser requires our express written consent before passing these on to third parties.
6. In the case of serial or special production, we reserve the right to under- or over-deliver by 10%. The excess quantity or quantity shortfall shall be charged accordingly.
7. We are entitled to make partial deliveries, provided that the Purchaser can be reasonably expected to accept them.
III. Prices/payment terms/invoicing
1. Unless specified otherwise in the order confirmation, our prices are EXW Ennepetal (Incoterms 2010), excluding shipment costs, customs duty, packaging and net of the respective statutory VAT.
2. Our prices are calculated on the basis of purchase of at least 1,000 items per model and type. The minimum goods order value is EUR 250.00 net.
3. Insofar as no fixed price agreement has been made, we reserve the right to make reasonable price adjustments as a result of changes in wages, materials and sales costs for deliveries that take place four or more months after the conclusion of contract. We shall demonstrate the changes concerned to the Purchaser on request.
4. The deduction of discounts for prompt payment requires special written agreement. Unless specified otherwise in the order confirmation, the purchase price is due for payment net (without deductions) within eight days of the date of invoice. For partial deliveries we will issue partial invoices. The payment periods run separately for each partial invoice. The statutory regulations in respect of default of payment apply.
5. We accept bills of exchange or cheques pursuant to special agreement and only subject to collection, but not in lieu of performance. Our claim is not satisfied until the day on which we are able to dispose over the countervalue without having to expect claims from chargebacks. Collection charges, expenses associated with discounting and bills of exchange, and interest are always for the account of the Purchaser and are due for payment immediately.
6. The Purchaser can offset only such claims that are undisputed or have been reduced to an enforceable judgment. The Purchaser can exercise a right of retention only insofar as its counterclaim is based on the same contractual relationship.
7. For one-off costs, such as tooling and development costs, 50% is charged immediately upon receipt of order. The remaining 50% becomes due for payment on delivery of the first series parts.
8. Invoices are transmitted electronically by email.
IV. Product details/changes to designs
1. The Purchaser is obliged to describe to us the conditions under which the goods to be delivered are to be used, in every respect and comprehensively. In addition, the Purchaser must comply with the safety certification specified in the item text with respect to permissibility in those markets in which the bicycles are to be sold and used with the delivered products.
2. We reserve the right to make changes to designs in the interest of technical progress, unless these cause changes to the function.
V. Delivery times
1. Details concerning delivery periods are non-binding unless the delivery date has expressly been agreed to as “binding”.
2. The delivery period commences with the day of the order confirmation, however not before the documents, permits and/or approvals to be provided by the Purchaser have been supplied, and any agreed payment has been received, any letter of credit to be provided has been opened or proof has been provided that any agreed security is in place.
3. The delivery period shall have been met if the goods have left Ennepetal within the delivery period.
4. If unforeseen hindrances should occur which lie beyond our volition and which we have been unable to avert despite taking the care required given the circumstances of the case, irrespective of whether these occur at our company or that of an input supplier – such as force majeure (e.g. war or natural catastrophes), delays in the delivery of essential raw materials or other circumstances for which we are not responsible – we are entitled to withdraw from the supply agreement in full or in part or to extend the delivery period by the duration of such hindrance. We are entitled to the same rights in the event of strike or lockout at out premises or at those of our input suppliers. We shall inform our customers immediately of such circumstances.
5. In the event of a delay in delivery, after a reasonable grace period has expired fruitlessly, the Purchaser can withdraw from the agreement; in the event of the impossibility of our performance the Purchaser is entitled to this right also without a grace period. “Reasonable” means a period of at least 14 days or, in the case of special production, at least one month. Delay in delivery shall be equivalent to impossibility if delivery does not take place for longer than one month or, in the case of special production, six weeks. Subject to Para. 6, claims to compensation (including any consequential damages) are excluded; the same applies to reimbursement of expenses.
6. The exclusion of liability regulated under Para. 5 shall not apply insofar as an exclusion or limitation of liability has been agreed for damages from injury to life, body or health that are due to an intentional or negligent breach of duty by the user or an intentional or negligent breach of duty by a legal representative or vicarious agent of the user; it shall also not apply insofar as an exclusion or limitation of liability has been agreed for other damages that are due to an intentional or negligent breach of duty by a legal representative or vicarious agent of the user; nor does it apply in cases of fraudulent concealment or the giving of a guarantee of quality. If a material contractual duty is breached as a result of ordinary negligence, our liability shall be limited to the foreseeable damages typical for this form of agreement. A material contractual duty exists in the case of obligations whose fulfilment is essential for the proper execution of the agreement and upon whose compliance the customer has relied and is entitled to rely. The above shall apply analogously in the case of the reimbursement of expenses.
7. Insofar as a commercial fixed-price agreement has been agreed, the limitations on liability in Para. 5 and Para. 6 shall not apply; the same shall be the case if, due to the delay for which we are responsible, the Purchaser can assert that it no longer has an interest in fulfilment of the agreement.
8. In the case of call-off orders, call-offs must be communicated to us in sufficiently in advance so that proper manufacture and delivery is possible, but at least six weeks before the desired delivery date. Call-off orders must be called off within 12 months of ordering, unless other fixed dates have been agreed. If call-off does not take place, or does not take place completely, within 12 months of ordering or on the agreed call-off dates, the Purchaser shall be in default of acceptance.
9. If the Purchaser is in default of acceptance or breaches duties of cooperation, we are entitled to demand reimbursement for the damage we have incurred, including any additional expenses. In this case the risk of chance destruction or chance deterioration of the purchase object shall also pass to the Purchaser at the time at which the latter becomes 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 with the handover to the haulage contractor or carrier, at the latest however when the purchase item leaves our company. Applicable is the Incoterms 2010 clause “EXW Ennepetal” (German version).
2. If handover is delayed due to circumstances for which the Purchaser is responsible or on the Purchaser’s instructions, the risk shall pass to the Purchaser from the day on which readiness for dispatch is notified. At the express written request of the Purchaser, we are obliged to insure the goods stored with us at the Purchaser’s expense. This also applies in cases in which a delivery date has not been expressly agreed, with the proviso that the risk shall pass to the Purchaser seven calendar days after readiness for dispatch has been notified.
3. Insofar as the Purchaser so wishes, we shall cover the delivery by means of transport insurance; the costs incurred in this respect shall be borne by the Purchaser.
4. Transport packaging and all other packaging in accordance with the Verpackungsverordnung [Packaging Ordinance] shall not be taken back. This does not include pallets. The Purchaser is obliged to arrange for disposal of the packaging at its own expense.
5. Items that have been delivered must be accepted by the Purchaser even if they exhibit minor defects, without prejudice to its rights under Sections 433 et seq. BGB.
VII. Retention of title
1. The goods delivered shall remain our property until full payment of the purchase price including all ancillary claims, as well as until the payment of all other claims under the business relationship. Until then the Purchaser is not entitled to pledge the goods to third parties or assign them as security. The Purchaser shall keep the goods that are subject to retention of title for us free of charge.
2. If the goods that are subject to retention of title are processed, combined or mixed with other goods by the Purchaser, we shall acquire joint ownership of the new item in the proportion of the invoice value of the goods that are subject to retention of title to the totality of the item. The joint ownership rights thus arising shall be deemed to be goods that are subject to retention of title as defined by Point 1.
3. The Purchaser is entitled to sell the goods that are subject to retention of title in the ordinary course of business, provided it is not in arrears of payment in respect of our claims to the purchase price.
4. The Purchaser hereby assigns to us all claims accruing to it from the resale to third parties of the goods that are subject to retention of title. If the goods that are subject to retention of title are sold after being processed, combined or mixed, the assignment of the claim from the resale shall apply only up to the amount of the value of the goods that are subject to retention of title that has been invoiced to the Purchaser by the seller. This shall also apply if the goods that are subject to retention of title are resold together with other goods that likewise do not belong to the seller.
5. After assigning the claim, the Purchaser shall remain authorised to collect the claim. We can limit the authorisation to collect the claim for a legitimate interest, and we can revoke this authorisation for cause, in particular in the case of arrears of payment. We can request that the Purchaser disclose to us the claims assigned to it and their debtors, provide us with all the details necessary for collection, hand over the associated documents and disclose the assignment to its debtor.
6. We undertake at our choice to release the securities to which we are entitled in accordance with the above provisions at the Purchaser’s request when their realisable value exceeds the claim being secured by 20% or more.
7. The Purchaser hereby declares its agreement that persons commissioned by us to assign the goods that are subject to retention of title may for this purpose enter the plot or building on or in which the items are located in order to collect the goods that are subject to retention of title.
8. The Purchaser must inform us immediately of any seizure, enforcement action or other interventions by third parties adversely affecting our rights of ownership. The Purchaser must bear the costs of the measures to remove the interventions of third parties, in particular those of any intervention proceedings.
VIII. Warranty and liability
1. If there is a defect for which we are responsible, we shall be entitled to choose between repair and replacement delivery. The requirement for this is that the defect is not minor. In the case of repair, we are obliged to bear the costs of transport, labour and materials, provided that these are not increased by the fact that the delivered goods were taken to a place other than the place of performance. If one or both of these types of cure should be impossible or unreasonable, we are entitled to refuse to cure the defect. We can refuse to cure the defect where the Purchaser has not fulfilled its payment obligations to us to an extent that corresponds to the defect-free portion of the delivery.
2. If the repair or replacement delivery does not take place within a reasonable period of time, taking account of our delivery abilities, or if the repair and/or replacement delivery fails, the Purchaser can demand a reduction in the compensation (price reduction) or withdraw from the agreement.
3. The Purchaser’s warranty rights presuppose that the Purchaser has properly complied with the obligations it must observe in terms of inspection and objection to defects in writing in accordance with Section 377 HGB [Commercial Code].
4. Unless specified otherwise below (Para. 6), further claims by the Purchaser are excluded, irrespective of the legal grounds (in particular claims from a breach of principal or ancillary contractual obligations, reimbursement of expenses, with the exception of those under Section 439 II BGB, tort or similar liability); this applies in particular to damages not suffered by the delivery item itself as well as for claims to the reimbursement of lost profits; and it also covers claims that do not result from the defectiveness of the purchase item.
5. The above provisions also apply in the case of the delivery of another item or a lower quantity.
6. The exclusion of liability regulated under Para. 4 shall not apply insofar as an exclusion or limitation of liability has been agreed for damages from injury to life, body or health; it shall also not apply insofar as an exclusion or limitation of liability has been agreed for other damages that are due to an intentional or negligent breach of duty by a legal representative or vicarious agent of the user. Insofar as we breach a material contractual duty as a result of ordinary negligence, liability is not excluded, but is limited to the foreseeable damages typical for this form of agreement; in all other respects, liability is excluded in accordance with Para. 4. The exclusion of liability furthermore does not apply in cases in which we are liable under the Produkthaftungsgesetz [Product Liability Act] for personal injury or property damage in the event of defects in the delivery item . It also does not apply when a guarantee is given or a characteristic is warranted if our liability is triggered precisely by a defect covered by this. The above applies analogously in the case of reimbursement of expenses.
7. No warranty is given for damages ascribable to inappropriate or improper use, e.g. through overloading as a result of use for sporting competition purposes, for expedition or rental bikes, or when used as propulsion for boats or similar purposes, incorrect assembly by the Purchaser or third parties, natural wear and tear, incorrect or negligent handling, or improper modifications or repair works undertaken by the Purchaser or third parties undertaken without our prior approval.
8. Claims to cure, compensation of damages and reimbursement of outlays are prescribed one year after the delivery of the purchase item. However, the foregoing does not apply to claims based on injury to life, body or health or to claims based on an intentional or grossly negligent breach of duties by the user or its vicarious agents, as well as in the case of fraudulent concealment of the defect; nor does it apply as a result of product liability or a breach of material contractual duties, provided that the breach of duties does not consist merely of the defective delivery of the goods. This does not apply to an item that was used in accordance with its normal method of use for a building and caused the defectiveness in the latter; in this case, claims are not prescribed until five years have elapsed. Claims to a reduction in price and to the exercising of a right of withdrawal are excluded insofar as the claim to a cure is prescribed. However in the case of Sentence 3, the Purchaser can refuse to pay the purchase price insofar as it would be entitled to do so by reason of withdrawal or reduction in price; in the case of the exclusion of withdrawal and a subsequent refusal to pay, we are entitled to withdraw from the agreement.
9. Recourse claims against the manufacturer remain unaffected by this section.
10. Complaints: We strive to resolve your complaint by way of an amicable and fast identification of a solution. We wish to point out that this measure does not represent any acknowledgement of your complaint. Errors excepted.
11. 8D report: We strive to resolve your complaint by way of an amicable and fast identification of a solution. We wish to point out that this 8D report does not represent any acknowledgement of your complaint. Errors excepted.
IX. Liability for secondary obligations
If through our fault the delivered item cannot be used by the Purchaser in conformity with the contract as a result of omitted or flawed execution of suggestions and advice that were provided before or after the conclusion of contract or of other contractual ancillary obligations, or if damage occurs, the provisions of Points VIII and X shall apply analogously under exclusion of further claims by the Purchaser.
X. Withdrawal by the Purchaser and other liability on our part
1. The provisions below apply to breaches of duties outside the liability for defects, and shall neither exclude nor restrict the statutory right of withdrawal. Likewise, the statutory or contractual claims to which we are entitled shall neither be excluded nor restricted.
2. The Purchaser can withdraw from the agreement if the entire performance becomes definitively impossible. The same applies to inability. The Purchaser can also withdraw from the entire agreement if in the case of an order of similar articles, the execution of a part of the delivery becomes impossible in terms of numbers and we are responsible for this, and the Purchaser has no interest in a partial performance; if this is not the case, the Purchaser can reduce the consideration accordingly; the right of withdrawal shall not apply in the event of an immaterial breach of obligations.
3. If there is a delay in performance and, after we have provided the reasons for the delay, the Purchaser grants us a reasonable period for performance, and if we do not adhere to this grace period, the Purchaser shall be entitled to withdraw. In the event of partial default of performance, Para. 1 Sentence 2 applies accordingly. If prior to delivery the Purchaser requests an execution of the delivery item that is different in any point, the delivery period shall be interrupted until the day on which agreement is reached on the execution and, if necessary, by the time required for the different execution.
4. Withdrawal is excluded if the Purchaser is solely or largely responsible for the circumstance that entitles it to withdraw, or if the circumstance for which we are responsible occurs at the time of default of acceptance by the Purchaser. In the event of impossibility, in the aforementioned cases we retain our entitlement to the consideration in accordance with Section 326 Para. 2 BGB.
5. Further claims by the Purchaser for whatever legal reason are excluded (in particular claims relating to culpa in contrahendo, breaches of material and ancillary contractual obligations, reimbursement of expenses, tort or similar liability); this applies in particular to damage not suffered by delivery item itself as well as for claims to the reimbursement of lost profits; and it also covers claims that do not result from the defectiveness of the purchase item. This shall not apply insofar as the cause of the damage was due to wilful misconduct or gross negligence on our part or by our statutory representatives or vicarious agents. This shall also not apply insofar as it involves culpable injury to life, body or health. Liability shall also not be excluded in the event that a guarantee is given, if our liability is triggered precisely by a breach of obligations covered by this. Insofar as we culpably breach a material contractual obligation or a “cardinal duty”, liability is not excluded, but is merely limited to the foreseeable damages typical for this form of agreement.
XI. Place of performance and place of jurisdiction
1. The place of performance for both parties’ obligations from all legal relationships is Ennepetal.
2. The legal relationship between the Purchaser and us is governed by the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
3. If the buyer is a merchant, legal person of public law or public-law special fund, Ennepetal is the place of jurisdiction. We are also entitled to bring suit at the place of the Purchaser’s registered office.