I. Area of Application
- The following terms of sale apply to all contracts concluded between the buyer and ourselves for the supply of goods. They also apply to all future business relations, even if they are not expressly agreed upon again. Irregular conditions on the part of the buyer, which we do not expressly recognize, even if we do not expressly oppose them, are not binding on us. The following sales conditions also apply if, knowing of the opposing or irregular conditions of the buyer, we execute the buyer's order without reservation.
- In the contracts, all agreements reached between the buyer and us regarding execution of the purchase contracts shall be set down in writing.
- An order by the buyer, which must be qualified as an offer to conclude a purchase contract, can be accepted by us within two weeks, by the sending of a contract confirmation or by delivery of the ordered products within the same period.
- Our offers are subject to confirmation and are not binding unless expressly described as such.
- We reserve our proprietary, copyright and other industrial property rights to all illustrations, calculations, drawings and other documents. The buyer may only forward these to third parties with our written consent, irrespective of whether or not we have marked these as confidential.
- Unless otherwise determined in the contract confirmation our prices apply ex works, excluding packaging and miscellaneous costs. Statutory value added tax is not included in our prices but our bills separately itemize the statutory VAT rate valid on the billing date.
- Our bills are payable within 10 days of the billing date less 2% discount, or within 30 days of billing without deduction. Shipment to unknown buyers is made only against advance payment. A payment is only regarded as effective when we have access to the amount. In the case of check payments, payment is only regarded as having been effected when the check is cleared.
- Should the buyer be in default with a payment, the statutory regulations apply.
- Even if notice of defect or counter claims is submitted, the buyer is only entitled to compensation if the buyer is only qualified to exercise a right of retention if his counterclaim is based on the same contractual relationship.
- We have the right to request advance payments and guarantee performances if, after conclusion of the contract, facts become known which raise doubts about the reliability of the buyer, especially his/her liquidity. We are entitled to withdraw from a contract if the buyer gave false details about his/her creditworthiness or if said creditworthiness – according to objective information – is not assured. Damage claims by the buyer arising from this withdrawal are excluded.
- If the performance shall be executed more than six months after contract conclusion, and if our sales prices have changed in the meantime, we may request the list price incorporating the percentage change, without the buyer having a withdrawal right, unless another agreement was reached previously.
IV. Delivery and Performance Time
- Delivery times or deadlines that are not expressly agreed as being binding are exclusively non-binding declarations. The delivery time given by us commences only after clarification of technical issues. Likewise, the buyer must duly and promptly fulfill all duties incumbent on him/her.
- If the purchase contract under discussion is a transaction for a fixed date within the meaning of § 286 Clause 2 No. 4 of the German Civil Code or § 376 of the German Commercial Code, we are liable pursuant to the statutory regulations. The same applies if the buyer, following a delivery delay attributable to us, is eligible to assert the ending of his interest in further performance of the contract. In this instance, if the delivery delay is not based on a deliberate infringement of the contract by us, our liability is for predictable, typicallyoccurring damage, whereby a fault of our representatives or vicarious agents is to be charged to us. After a non-binding delivery date or deadline has passed, the buyer can require us to deliver within a deadline of at least four weeks. After this deadline we will be in default, unless we are not to blame for the non-performance, e.g. in the case of force majeure.
- In the event that a delivery default attributable to us is based on the culpable infringement of an important
contractual duty, with the fault of our representatives or vicarious agents being attributable to us, we are liable, in accordance with the statutory regulations, with the provision that in this case liability for
compensation is limited to predictable, typically-occurring damage.
- Alternatively, in the event of a delivery default that is attributable to us, the buyer may claim a lump-sum compensation of 3% of the delivery value for each completed week of default, up to a maximum of 15% of the delivery value.
- Further liability for a default attributable to us is excluded. Additional legal claims and rights to which the buyer is entitled, apart from the compensation claim, remain unaffected.
- We are entitled to make partial deliveries and performances at any time, provided this is acceptable to the customer.
- Should the buyer be in acceptance default, we shall be entitled to request compensation for ensuing damage and possible additional expenses. The same applies if the buyer culpably breaches cooperation obligations. When an acceptance default or debtor's default occurs, the risk of accidental deterioration and accidental sinking is passed to the buyer.
- Shipment and packaging are not insured, and take place at the buyer's risk. We shall make every attempt to take into consideration the buyer’s wishes and interests with regard to shipment method and route; additional costs that accrue as a result – including where freight prepaid is agreed - will be charged to the buyer. In the case of sale to destination according to the buyer’s instructions, the risk of accidental deterioration or accidental sinking passes with the handing to the carrier or to the person otherwise entrusted with the shipment. This also applies if we have taken on the shipment costs or are carrying it out with our own vehicles.
- In accordance with the Packaging Ordinance we accept transport- and all other packaging. The buyer must take care of the disposal of the packaging at his own expense.
- If the shipment is delayed at the wish or default of the buyer, we shall store the goods at the expense and risk of the buyer. In this instance, notification of readiness for shipment is equivalent to shipment.
- If the buyer wishes, we will secure the delivery by means of a transport insurance at his expense.
- We calculate a lump-sum shipment cost share per bike € 4.95 inside Germany (excluding islands).
- Claims of defect by the buyer exist only when the buyer has properly met his requirements to examine and give notice of defect in accordance with § 377 of the German Commercial Code.
- If a defect in the goods is attributable to us, we are obligated to provide supplementary performance, excluding the buyer's rights to withdraw from the contract or to lower the selling price (reduction), unless statutory regulations enable us to refuse the supplementary performance. The buyer must grant us an appropriate deadline for supplementary performance. The supplementary performance may be affected by choice of the buyer or by rectifying the defect (repair) or delivery of new goods. In the case of repair, we will bear the required expenses, provided these do not increase because the contractual object is at a place other than the place of performance. In case of repair we shall bear the necessary costs, as long as these do not increase.
- The buyer's guarantee claims become statute-barred one year after delivery of the goods at the buyer, unless we fraudulently concealed a defect; in this case, the statutory regulations apply. Our duties under Section VI Sub-Clause 4 and Section VI Sub-Clause 5 are not affected.
- The statutory regulations obligate us to take back the new item or to lower (reduce) the purchase price, even without the otherwise-obligatory setting of a deadline, if the acceptor of the buyer – as user of the sold, new mobile object (consumer goods purchase) - could demand that the buyer take back the item or lower (reduce) the price due to the item's defect, or if a similar resulting claim would be raised against the buyer under a resulting right of recourse. We are furthermore obligated to replace the buyer's expenses, especially transport, travel, work and material costs which he had to bear in relation to the end consumer in the framework of the supplementary performance, due to our passing of the risk to the buyer for the defect at hand. The claim is excluded if the buyer did not properly meet his examination requirement and requirement to give notice of defect in accordance with § 377 of the German Commercial Code (HGB).
- The duty in accordance with Section V1 Sub-Section 4 is excluded, if the defect is related to advertising statements or other contractual agreements that do not stem from us, or if the buyer gave the end user a special guarantee. The duty is likewise excluded if the buyer his/herself was not obligated by the statutory regulations to exercise the guarantee rights against the end user or did not make use of this reprimand against a claim submitted against him. This also applies if the buyer took on guarantees vis-à-vis the end user, which goes beyond what is legally prescribed.
- In accordance with the statutory regulations we are liable without limitation for damages to life, body and health, which stem from a negligent or intentional infringement of duty by us, our legal representatives or our vicarious agents, and for damages encompassed in the liability according to the Product Liability Law. For damages not encompassed in Part 1, and which are based on intentional or grossly negligent contract breaches, as well as dishonesty on the part of ourselves, our legal representatives or our vicarious agents, we are liable in accordance with the statutory regulations. In this case, however, the compensation liability is limited to predictable, typically-occurring damages, provided that we, our legal representatives or our vicarious agents did not act intentionally. To the extent that we provided a quality and/or a durability guarantee regarding the goods or parts of the same, we are also liable in the framework of said guarantee. For damages which are based on the absence of the guaranteed quality or durability, but do not directly affect the goods, we are only liable, if the risk of such damage is obviously included in the guaranteed properties and durability.
- We are also liable for damages caused by simple negligence, if said negligence relates to the breach of such contractual duties whose observance is of particular importance for achieving the contract's aims (cardinal duties). However we are only liable if the damages are typically linked to the contract and are predictable.
- A further liability is excluded without reference to the legal nature of the claim being made. This applies especially to tortuous claims or claims for replacement of wasted expenditure instead of performance; our liability pursuant to Section IV No. 2 to Section IV No. 5 of this contract remains unaffected by this. If our liability is excluded or limited, this also applies to the personal liability of our salaried workers, employees, representatives and vicarious agents.
- Claims for damages by the buyer due to a defect become statute-barred one year after delivery of the goods. This does not occur in the case of injury to life, body or health caused by the fault of ourselves, our legal representatives or our vicarious agents, or if we or our legal representatives acted intentionally or with gross negligence or when our ordinary vicarious agents acted intentionally.
- In the event of defects a buyer may only withhold payments to an extent that bears an appropriate relationship to the defects.
If the supplementary performance is unsuccessful, the buyer can, at his/her choice, request a lowering of the purchase price (reduction) or withdraw from the contract. After a second failed attempt, a repair is deemed unsuccessful if no further contract-based repairs are appropriate or acceptable to the buyer. If the supplementary performance is unsuccessful the buyer's right to assert further claims under the following conditions remains unaffected: Normal wear and tear or regular depreciation does not justify any guarantee claims.
- Until all present or future demands to which we are entitled against the buyer have been met, including all current account balance requirements, the delivered goods [(goods subject to retention of title) (hereinafter: retained goods)] remain our property. If the buyer behaves in a contract-breaching way, e.g. payment default, we have the right to take back the retained goods after previously setting an appropriate deadline. If we take back or impound the retained goods, this represents our withdrawal from the contract. We are entitled to evaluate the said goods after taking them back. After deducting an appropriate amount for the evaluation costs, the evaluation income must be offset from the buyer's debts to us.
- The buyer must handle the retained goods carefully, and insure them adequately at replacement value and at his own expense against fire, water and theft damages. He/she must carry out maintenance and inspection works that are needed promptly at his own expense.
- The buyer is entitled to sell or make use of the retained goods in a regular manner in business dealings, provided that he is not in payment default.
Use of the retained goods as lien or collateral is not permitted. The buyer has ceded to us all demands pertaining to the retained goods, arising from resale or miscellaneous legal grounds (insurance, unauthorized handling) (without including all balance demands from the current account.). We hereby accept the cession and empower the buyer, at our pleasure, to retract the demands ceded to us, for billing in our own name. The retraction authorization can be revoked at any time if the buyer does not duly meet his payment obligations. The buyer may not cede this demand by means of factoring, unless, at the same time, the obligation of the factor is justified, viz. to effect the quid pro quo at the level of the demands for as long as additional demands by us exist against the buyer.
- In any case, we will carry out a processing or conversion of retained goods by the buyer. If said goods are processed with other objects not belonging to us, we shall acquire joint ownership in the new object relative to the value of the retained goods (final billing amount incl.VAT) at the time of processing. For the new object created by processing, the same applies as for the retained goods. In the event of the inseparable mixing of the retained goods with goods not belonging to us, we shall acquire joint ownership of the new object in proportion to the value of the retained goods (final billing amount incl.VAT) at the time of mixing. If the buyer's object of the buyer resulting from the mixing is viewed as the main object, we agree with the buyer that he/she shall transfer joint ownership in this object to us; we hereby accept the transfer. The buyer shall preserve our thusacquired sole or joint ownership in an object.
- Should a third party seize the retained goods, especially levies of execution, the buyer shall point out our property and inform us forthwith, so that we may assert our ownership rights. If the third party is unable to reimburse the court or extra-judicial costs incurred by us, the buyer shall be liable for these. To the extent that the realizable value of our collateral securities exceeds the requirements needing protection by more than 10%, we are obligated to release the collateral securities that we are entitled to. In doing so it is incumbent upon us to select the collateral securities to be released.
- We are bound to free safety deposits due us so far that the realisable value of our safety deposits surpasses the claims to be secured by more than 10%, whereat we are at liberty to decide as to which safety deposits be freed.
- The place of performance and jurisdictional venue for deliveries and payments (including checks and legal actions based on bills of exchange), as well as all disputes between ourselves and the buyer arising from the purchase contracts signed in the meantime by us and by him/her, is our company domicile. However, we are entitled to take legal action against the buyer at his place of residence or business.
- The relationships between the contracting parties are regulated exclusively according to the prevailing law in the Federal German Republic. The application of the Uniform Law Relating to the International Sale of Goods and the Convention Relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods is excluded.
- We are entitled to utilize data concerning goods and payment traffic with the buyer, whilst adhering to dataprotection terms.
- If one or more of these provisions is or shall become ineffective, this shall not impact on the effectiveness of the remaining provisions.