I. Scope of application
- The following GTCS shall apply to the entire current and future legal relationship between Biketec Europe GmbH and the customer regarding the purchase of components and accessories ("Contract Products"). Within the framework of an ongoing business relationship, these GTCS shall also apply to all future deliveries to the customer, without the customer having to be made aware of the application of these GTCS in each individual case.
- With the order by the customer, at the latest with the acceptance of the delivery of the ordered contractual products, the customer acknowledges the binding nature of these GTCS. Should the customer use conflicting, deviating or supplementary terms and conditions, their applicability to Biketec Europe GmbH shall be excluded, even if Biketec Europe GmbH does not expressly object to them. This shall also apply if Biketec Europe GmbH carries out deliveries to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from these GTCS or statutory provisions.
- Regardless of translations of these GTC, only the version in German shall be binding.
II. Conclusion of contract
- Information in catalogs, the online presence or other advertising documents of Biketec Europe GmbH do not constitute binding offers or product descriptions. Only the agreed characteristics (e.g. type, quantity, specifications, quality, functionality, compatibility, interoperability or other features agreed in the ordering process) shall form part of the contract. With the respective order, the customer submits a binding offer. Biketec GmbH will check this offer within two weeks of receipt. A contract is only concluded by the written order confirmation of Biketec Europe GmbH (incl. by e-mail) within two weeks after receipt of the order and is based exclusively on the content of the order confirmation and/or these GTC. Insofar as Biketec Europe GmbH amends the customer's offer or submits an offer to a customer itself, Biketec Europe GmbH shall be bound by this for 30 days from dispatch (the date of the offer letter shall apply).
- With the conclusion of a contract, a binding obligation to accept arises on the part of the customer. If the customer refrains from the order or refuses to accept it, Biketec Europe GmbH shall be entitled to invoice the full agreed purchase price.
- Change requests and deviations after conclusion of the contract at the request of the customer may have an influence on delivery periods and dates as well as on pricing and shall therefore only become effective after a corresponding agreement.
- The acceptance of a development order or a customer-specific adaptation for the customer does not constitute an obligation on the part of Biketec Europe GmbH to check these with regard to their suitability for the economic purpose intended by the customer or for compliance with applicable legal regulations or technical standards. Should Biketec Europe GmbH have justified doubts about the compatibility of the customer's specifications with legal and technical conditions, Biketec Europe GmbH shall inform the customer of this and shall be entitled to withhold the development/adaptation until express written approval has been given by the customer. Biketec Europe GmbH further reserves the right to demand proof of compatibility from the customer. Any changes that become necessary shall be governed by the above Clause 3.
III. Delivery periods and dates
- Delivery periods stated by Biketec Europe GmbH are to be understood as approximate dates and require complete customer information as well as the fulfillment of all acts of cooperation by the customer, including performance of due payments or obtaining import, export or other foreign trade permits or authorizations. Biketec Europe GmbH is entitled to make partial deliveries if these are reasonable for the customer (e.g. do not cause additional work or additional costs).
- Delays in delivery are possible in particular due to production bottlenecks. The correct and timely delivery by suppliers is reserved. Unforeseeable, unavoidable events beyond the control of Biketec Europe GmbH, such as labor disputes, official measures, strikes, epidemics, war, acts of terrorism, natural disasters, labor disputes or transport interruptions ("force majeure") shall release Biketec Europe GmbH from its obligation to deliver on time for the duration of such events. If the Force Majeure leads to a delay in delivery of more than 3 [three] months, either party may demand the adjustment of the contract or - if this is unreasonable for one party - withdraw from the contract.
- If Biketec Europe GmbH's deliveries are delayed, the customer shall only be entitled to coaster braking if Biketec Europe GmbH is responsible for the delays and a reasonable deadline for delivery set by the customer has elapsed without success.
- If the customer is in default of acceptance
or violates other obligations to cooperate, Biketec Europe GmbH shall be entitled, without prejudice to other rights, to store the contractual products appropriately at the risk and expense of the customer or to withdraw from the contract.
- All deliveries shall be made DAP ex warehouse Elsenfeld.
IV. Dispatch, packaging, transfer of risk
- Unless otherwise agreed, the shipment shall be made by an appropriate shipping route in the usual packaging. This shall be disposed of by the customer at his own expense.
- The risk shall pass to the customer when the delivery item is handed over to the transport company or, if the customer collects the contractual products himself, when the contractual products are handed over to the customer. If the handover or shipment is delayed for reasons for which the customer is responsible, the risk shall pass to the customer on the day of notification that the contractual products are ready for shipment.
- Transport insurance shall only be taken out at the request and expense of the customer.
V. Prices, invoicing
- Invoicing by Biketec Europe GmbH shall always be in EUR or in the currency specified in the order confirmation.
- The prices are exclusive of taxes, customs duties and levies, storage, insurance, packaging and transportation flat rates, advance disposal and other taxes, fees and levies; these shall be charged additionally where applicable.
- If more than four months elapse between the conclusion of a contract and the expected delivery date agreed therein, the price valid at the time of delivery shall apply insofar as external circumstances have occurred which have an influence on Biketec Europe GmbH's own procurement costs (price changes for raw materials, energy and transport, supplier components, supply bottlenecks, legal requirements and other comparable external circumstances). This shall not apply if a "fixed price" has been expressly agreed.
- Other changed circumstances after conclusion of the contract that lead to cost increases or reductions entitle each party to negotiate a price adjustment. Clause III.2 remains unaffected.
- In principle, Biketec Europe GmbH's invoice shall be due for payment within 30 days of delivery without deduction by the customer. For the delivery of spare parts, the reduced payment period of 10 days from delivery shall apply. In the event of default of payment, Biketec Europe GmbH shall be entitled to demand immediate payment of all outstanding claims and to charge default interest at the statutory rate. The right to coaster braking and compensation remains unaffected.
- If, after conclusion of the contract, the risk of the customer's inability to pay becomes apparent, Biketec Europe GmbH shall be entitled to make outstanding deliveries only against advance payment or provision of security. If the advance payments or securities have not been provided even after the expiry of a reasonable grace period, Biketec Europe GmbH may withdraw from individual or all contracts with the customer in whole or in part. Biketec GmbH reserves the right to assert further rights.
- The customer shall only be entitled to set-off if his counterclaim is undisputed or has been legally established.
VI. Retention of title
- All contractual products shall remain the property of Biketec Europe GmbH until full payment has been made.
- The customer is entitled to sell and/or use the reserved goods in the ordinary course of business as long as he is not in default of payment. Pledges or transfers by way of security are not permitted. The claims arising from the resale or any other legal reason (insurance, tort) with regard to the reserved goods (including all balance claims from current accounts) are hereby assigned by the customer to Biketec Europe GmbH in full by way of security; Biketec Europe GmbH accepts the assignment. Biketec Europe GmbH revocably authorizes the customer to collect the claims assigned to Biketec Europe GmbH for its account in its own name. The direct debit authorization can be revoked at any time if the customer does not properly meet his payment obligations. The customer shall not be authorized to assign these claims; this shall also apply to the collection of claims by way of factoring, unless the obligation of the factor is simultaneously established to effect the consideration in the amount of the claims directly to Biketec Europe GmbH as long as claims against the customer still exist.
- In the event of access by third parties to the reserved goods, in particular seizures, the customer shall draw attention to the reserved property of Biketec Europe GmbH and immediately put Biketec Europe GmbH in a position to enforce its property rights. Insofar as the third party is not in a position to reimburse Biketec Europe GmbH for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable for this.
- If the reserved goods are processed with other items not belonging to Biketec Europe GmbH, Biketec Europe GmbH shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other processed items at the time of processing. The same shall apply to the new item created by processing as to the reserved goods. In the event of inseparable mixing of the reserved goods with other items not belonging to Biketec Europe GmbH, Biketec Europe GmbH shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other mixed items at the time of mixing. If the customer's item is to be regarded as the main item as a result of the mixing, the customer and Biketec Europe GmbH agree that the customer shall transfer proportionate co-ownership of this item to Biketec Europe GmbH; the transfer is hereby accepted. The customer shall keep the resulting sole or co-ownership of an item for Biketec Europe GmbH.
- Biketec Europe GmbH shall release the securities to which it is entitled insofar as the realizable value of these securities exceeds the claims to be secured by more than 10%; Biketec Europe GmbH shall be responsible for selecting the securities to be released.
VII. Warranty
- Biketec Europe GmbH only warrants that the contractual products have the agreed quality at the time of transfer of risk (see Section II.1). Information in catalogs, online presences, price lists, illustrations and other information material provided to the customer by Biketec Europe GmbH as well as product-describing information shall not constitute information or warranties of a particular quality of the contractual products; such warranties or guarantees must be expressly agreed in writing. The customer has informed himself about the contractual products and their possible uses before placing an order.
- Defects that occur after delivery as a result of wear and tear, misuse, disregard of maintenance and installation instructions, storage or changes made by the customer do not constitute a defect under any circumstances.
- If the products of Biketec Europe GmbH are to be integrated into a system of the customer (e.g. motor system), the warranty of Biketec Europe GmbH for this is excluded, unless the motor system was known and the compatibility and interoperability with this system has been contractually agreed.
- The customer is obliged to check all contractual products immediately and carefully upon receipt with regard to quantity, dimensions and quality. Any complaints must be reported to Biketec Europe GmbH within five working days of receipt in writing (incl. by e-mail) and with a detailed description. Obvious transport damage must be reported to Biketec Europe GmbH immediately in writing and noted on the carrier's delivery bill. Hidden defects must be reported to Biketec GmbH immediately after their discovery in writing and with a detailed description.
- Without formal and timely notification of defects, delivered contractual products shall be deemed approved. The limitation period for the customer's rights due to defects is one year from delivery.
- Biketec Europe GmbH shall, at its own discretion, remedy defects by eliminating the defect free of charge for the customer or by delivering a defect-free item as a replacement. In the event of a notice of defects, Biketec Europe GmbH may demand that the contractual product be presented for inspection. If the inspection reveals that the complaint was unjustified, Biketec Europe GmbH may demand reimbursement of the expenses incurred (e.g. transport costs, material and labor costs). If a goodwill service has been provided, the customer shall be informed of this separately and this shall not lead to a recommencement of the limitation period.
- The place of performance for deliveries and subsequent performance is Elsenfeld.
VIII. Liability
- Biketec GmbH shall be liable for intent and gross negligence in accordance with the statutory provisions.
- In the event of simple negligence, Biketec shall only be liable in the event of a material breach of contract (an obligation which is necessary for the fulfillment of the contract and on the fulfillment of which the customer could therefore rely) in the amount of typical, foreseeable damages.
- The limitations of liability in Section VIII.2 shall not apply in the event of damage to life, limb or health, the absence of a warranted characteristic, the breach of a warranty, in the event of fraudulent misrepresentation or in product liability cases.
- In the event of a r limitation of liability, liability shall expire one year after delivery . All the above provisions shall also apply to the liability of organs, employees, vicarious agents or subcontractors of Biketec Europe GmbH.
- Liability on the part of Biketec Europe GmbH, for whatever reason, arising from a lack of compatibility of the contractual products with the components used by the customer is excluded, unless Biketec Europe GmbH has expressly confirmed the compatibility to the customer in writing.
IX. Intellectual property
- No intellectual property rights, copyrights or know-how are transferred to the customer through the purchase of the contractual products.
- Copyright notices may not be removed.
X. Product liability / product safety
- The customer shall indemnify Biketec Europe GmbH for product liability claims insofar as the customer is responsible for the defect giving rise to liability. In particular, the customer shall check the functionality of the contractual products in interaction with other components before finished products (e-bikes) are placed on the market.
- The customer is obliged to forward any feedback, complaints or claims to Biketec Europe GmbH without delay (but within 5 working days at the latest), insofar as these relate to a production or design defect or the safety of the contractual products.
- The customer is obliged to immediately forward any possible production or design defects or safety risks identified during inspections to Biketec Europe GmbH in writing.
- The customer shall inform Biketec Europe GmbH in any case of regulatory measures and of measures taken, including changes to the regulations in the area of product safety and liability.
- The customer is obliged to cooperate fully with Biketec Europe GmbH in the measures taken by Biketec Europe GmbH in the area of product safety (e.g. recall) and to participate in corresponding measures.
XI. Data protection, confidentiality
- Biketec Europe GmbH undertakes to treat personal data confidentially in accordance with the applicable data protection legislation . Biketec Europe GmbH is entitled to collect and process personal data of the customer in compliance with data protection legislation and to pass it on to internal companies in Germany and abroad. The forwarding of personal data to third parties at home and abroad is permitted in compliance with the data protection regulations for delivery-related data processing.
- "Confidential information" is all economic, business, financial, technical, legal, tax, business activity, employee or management-related or other information (including data, records, documents, samples, knowledge and all business secrets within the meaning of § 2 of the German Business Secrets Act (Geschäftsgeheimnisgesetz)) which relate to Biketec Europe GmbH's area of activity or a company affiliated with Biketec Europe GmbH and its area of activity and which are disclosed to the of § 2 of the Business Secrets Act) which relate to Biketec Europe GmbH, its area of activity or a company affiliated with Biketec Europe GmbH and its area of activity and which are made accessible to the customer, its executive bodies, employees, consultants or other third parties working for it directly or indirectly by Biketec Europe GmbH or the affiliated company or its executive bodies, employees, representatives, agents or consultants or which come to their knowledge in any other way. Confidential information also includes verbal information, copies, reproductions and summaries of any kind. It is also irrelevant whether documents or other carrier media were created by Biketec Europe GmbH, affiliated companies or other third parties or whether they were expressly designated as "confidential". This Confidential Information may under no circumstances be passed on to third parties and within the customer's company only on a "need to know" basis, provided that the recipients have also been obliged to maintain confidentiality.
- The confidentiality obligations under Clause XI.2 shall not apply if (i) Biketec Europe GmbH declares prior written consent to the customer for the specific individual case of disclosure of the Confidential Information; (ii) the Confidential Information was demonstrably already known to the customer prior to its disclosure without breach of obligations under this Section XI; (iii) the customer has obtained the Confidential Information from a third party demonstrably authorized to do so or subsequently obtains it from a third party without breach of this agreement; (iv) the customer is obliged to disclose the Confidential Information by order of a court, the order of an authority or by law. In this case, the customer shall notify Biketec Europe GmbH in writing sufficiently in advance of the disclosure so that action can be taken against the disclosure.
- The customer shall inform Biketec Europe GmbH immediately if he becomes aware that Confidential Information has been disclosed to unauthorized third parties. The customer shall use its best efforts to ensure that these unauthorized third parties completely destroy the Confidential Information.
- The disclosure of Confidential Information is not associated with any granting of rights. All rights remain with Biketec Europe GmbH. Biketec Europe GmbH assumes no liability for the usability of the Confidential Information for the customer's interests or its completeness, accuracy and timeliness.
- At the request of Biketec Europe GmbH, but at the latest upon termination of the contractual relationship, all Confidential Information shall, at our discretion, either be returned to Biketec Europe GmbH or destroyed; Biketec Europe GmbH shall be provided with proof of destruction upon request.
XII. Final provisions
- The assignment of rights of the customer vis-à-vis Biketec Europe GmbH to third parties shall require the prior written consent of Biketec Europe GmbH.
- The customer undertakes to comply with all regulations of the UN Global Compact.
- Amendments and supplements to a contract and/or these GTC as well as ancillary agreements must be made in writing (text form is sufficient). This shall also apply to any amendment to this written form requirement.
- If a provision of these GTCS and/or a corresponding purchase contract is invalid in whole or in part, the validity of the remaining provisions shall remain unaffected. In this case, the parties undertake to replace the invalid provision with a valid provision that comes closest to the economic purpose of the invalid provision.
- German substantive law shall apply, to the exclusion of private international law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).
- The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship shall be Frankfurt. Biketec Europe GmbH shall, however, be entitled to sue the customer at any other legal place of jurisdiction.