GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF DERBY CYCLE GROUP COMPANIES

AS OF 6/2016

 

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valid as well concerning any and all deliveries and services of the following enterprises: Raleigh Univega GmbH, Cervélo Europe GmbH, NW Sportgeräte Vertriebs-GmbH.

These General Terms and Conditions are part of all of our offers to and contracts with entrepreneurs regarding deliveries and services, including also in the course of current as well as future business relationships. Any other agreements, including general terms and conditions of our customers, as well as side agreements require our written consent in order to be effective.

 

1. Offer, conclusion of contract, and documentation

1.1 Our offers and cost estimates are non-binding. We are obligated to provide only those deliveries and/or services that are expressly specified therein.

1.2 Contracts with us take effect only upon our written acceptance of orders/ commissions received by us, upon our written confirmation of declarations of acceptance received by us, or when have delivered or rendered items or services ordered by the customer. The same applies to additions to and amendments of contracts.

1.3 All information provided to the customer (e.g. technical descriptions, drawings, images, information about colours, sizes, and weights) is based on customary business sectorial norms. We are at all times entitled to amend this information as well as the delivery items themselves – e.g. by deviations in design or form, or in colour – provided the customer can reasonably be expected to accept such a deviation. With regard to standardised goods, the tolerances permitted in the standard sheets are applicable. In case of any possible delivery difficulties, we reserve the right to switch to producers of equivalent quality in order to maintain our delivery capacity.

1.4 We retain title, copyright, as well as any and all further intellectual property rights in and to all documentation provided to the customer. Absent our prior consent, such documentation may not be used in any way for purposes not covered by the contract, nor may it be duplicated or made accessible to third parties. It must be promptly returned to us upon request.

 

2. Dates and Deadlines

2.1 Deadlines begin to run on the date of our written declaration of acceptance or confirmation; however, not before the customer has met all required prerequisites (e.g. agreed financing commitments) and not before any possibly due payments have been

received.

2.2 Deadlines are reasonably extended if the contract with our customer is amended or is being supplemented or if our customer fails to comply with his duties of cooperation in a timely fashion.

2.3 Dates and deadlines are binding only as far as they have been expressly agreed upon in writing. In the event of force majeure, including labour disputes, sovereign actions, and traffic disruptions, regardless of whether they are experienced by us or by our suppliers, we are released from the delivery/service obligation for the duration of the effects of the same or, if such an event causes permanent impossibility of the contractual performance, we are released entirely. Under such circumstances, any possibly agreed upon contractual penalty is considered to be not forfeited.

 

3. Prices

3.1 Our prices are to be understood net, without cash discount, in euros, ex our supply plant, excluding costs of customary trade packaging, and excluding transport and other ancillary costs, plus value-added tax in the amount applicable on the date of delivery. We charge our incurred costs for packaging and substitute packaging, e.g. for a repair device delivered unpacked.

3.2 We will give prompt notice of deviations from our original offer, including as a result of an increase in wages, material-costs, respectively the costs of energy. Applicable are the prices in effect on the date of the order.

3.3 If prices or other terms have changed, this will be notified in the written order confirmation. If no objection is raised within eight working days of the date of the order confirmation, it shall be assumed that the customer has consented to the price increase with legally binding effect, and delivery shall be executed at this price. If the period between acceptance of the order and the agreed upon date of delivery amounts to more than four months, we are also after conclusion of the contract entitled to reasonably adjust the prices in case of an increase in wages, material costs, or the costs of energy. If, with regard to contracts that provide for delivery/service to take place more than four months after conclusion of contract, we experience cost increases during the period between conclusion of contract and performance of the contract, we are entitled to a corresponding increase in the price.

3.4 In case of non-compliance with the contractual sales volume, we reserve the right to additional charges.

 

4. Payments

4.1 Any and all payments are to be made to us without any deduction, either, whichever takes place earlier, when the object of the delivery/service is handed over to the customer, or respectively within 30 days upon receipt of our notification of readiness for delivery and/or our invoice.

4.2 If the customer is in default with payment, all of our further claims become due and payable immediately, without the requirement of any special notice of default.

4.3 If payment in instalments has been agreed upon and the customer is in default with two consecutive instalments, whether in whole or in part, the entire remaining balance becomes due and payable immediately. The customer commences to be in default upon issuance of a notice of default, at the latest. If the time for performance is determined by the calendar, the customer is in default immediately, even without notice, if he fails to effect payment in due time.

4.4 We accept bills of exchange and cheques only upon prior written agreement and only on the proviso that they are discountable. Any and all expenses of such discounting as well as any other further ancillary costs are debited to the customer and must be reimbursed to us immediately. Amounts of bills of exchange or cheques are credited only after we can dispose of their counter-value without reservation.

4.5 We are entitled to charge our customer interest from the due date on in the amount of nine percent- age points p.a. above the applicable basic rate of interest pursuant to Section 247 of the German Civil Code (“Bürgerliches Gesetzbuch”, “BGB”), plus any possible fees and costs. We are expressly reserving the right to claim exceeding damages.

4.6 We are entitled to require from the customer for orders placed (prior order) a security in the amount of 50% of the amount of the order, in particular if no credit limit or an insufficient credit limit is granted by the credit-default insurance, or if the credit limit has been cancelled, or if the customer loses his del credere protection (e.g. exclusion from a purchasing cooperative).

4.7 Any cancellation of the preliminary order or of parts thereof only is permitted after notification of the delivery default in writing with granting a reasonable time for subsequent performance. In the event that the customer is blocked regarding delivery on own request, we are entitled to sell and deliver the products of the blocked orders otherwise. Thereby, the customer loses his right to delivery of the reserved respectively already bindingly ordered products. Unaffected thereby, remains the obligation of acceptance, as far as we have not utilized the goods otherwise. In case of an unjustified non-acceptance, we reserve the right to charge a cancellation fee.

4.8 With regard to deliveries and services for customers outside of Germany, it is deemed expressly agreed upon that the entire costs of our legal proceedings in case of payment default of the customer, whether in or out of court, are for the account of the customer. Unless expressly agreed upon otherwise, customers outside of Germany must always execute payment in advance.

4.9 If the customer has granted the payee direct debit authorization, in which he authorizes the payee to debit payments from his account via direct debit, he instructs the bank at the same time to redeem the direct debits, drawn on his bank account by the payee. With the direct debit authorization, the customer authorizes his bank to redeem direct debits, ordered by the payee. This direct debit authorization is regarded as a SEPA direct debit mandate. The sentences 1, 2 and 3 also apply to direct debit authorizations granted by the customer prior to the effectiveness of these provisions.

4.9a The customer may demand reimbursement of the debited direct debit amount from the bank in the event of an authorized payment based on a SEPA direct debit within eight weeks from the debit entry on his account without giving any reason. Any pecuniary claims of the payee against the customer remain unaffected.

 

5. Assignment of rights, rights of retention, and resale

5.1 The customer is not entitled to assign claims directed towards us, unless we consented to it in advance in writing.

5.2 The customer may set off with counterclaims only insofar as the same are uncontested or have been acknowledged by a legally binding court decision.

5.3 The customer may not exercise a right of retention due to claims that are based on a different contractual relationship. In so far as the customer is entitled to exercise a right of retention, he may only do so to the extent in which the retained amount corresponds to the value of the parts of the delivery complained about for being defective; section 320, para. 2 BGB (German Civil Code) remains unaffected.

5.4 If the customer is in default with payment of an invoice for more than two weeks, if an application is made to initiate insolvency proceedings with regard to the customer’s assets, if the customer has initiated an out-of-court procedure designed to settle debts, or if the customer has ceased making payments, or if other circumstances arise that materially diminish the customer’s creditworthiness and which appear to endanger the provision of the counter-performance owed by the customer, we are entitled, after having set a deadline of at least one week, to demand that the customer provides security regarding still outstanding deliveries in the form of advance payment or by bank guaranty, at the customer’s choice, and to refuse our performance until such time as the security has been granted. After fruitless expiry of a reasonable grace period, we furthermore are entitled to rescind the contract and/or to claim damages. In addition, we may in such case revoke the resale authorisation along with the entitlement to debt collection pursuant to the Articles 7.3 and 7.5, as well as the right to process, transform, combine, and mingle already supplied deliveries or services pursuant to Article 7.2, and we may also demand the return of delivered goods/objects of performance.

5.5 A sale to resellers is permissible only if the reseller for his part maintains a stationary retail shop. In addition, the reseller has to be obligated to impose this obligation on his resellers as well.

5.6 On principle, the customer shall use the non-binding recommended retail price as an orientation, also and especially regarding sales via the internet. Any interlinking with other internet suppliers shall be agreed upon with us in advance, in order to be able to determine commonly, if this seems to be reasonable for the distributor, considering the requirements of distribution. Price reductions for sell-off purposes at the end of the season should, considering the value of the trademark, not be undertaken before 1 August of the subsequent year.

5.7 Where a distributor has been allocated a sales region on an exclusive basis, he will desist from active marketing outside this sales region.

5.8 Should a customer fail to take delivery of any products manufactured by us under a label or brand name or any other business designation provided by him (trademark or the customer‘s own mark) notwithstanding repeated demands after the agreed delivery date has passed, we shall be entitled to realise the products following a corresponding threat in a last demand to take delivery. The customer‘s mark need not be removed and may accordingly be exploited and used by us in realising the goods produced under the agreement with him.

 

6. Place of performance/Transfer of risk

6.1 Cloppenburg is the place of performance for all deliveries and performances/services to be provided by us.

6.2 We are entitled to execute partial deliveries and render partial services, provided the customer can reasonably be expected to accept same.

6.3 The risk regarding all deliveries made by us and services rendered by us passes to the customer when the goods/objects of performance leave our plant (EXW Cloppenburg per INCOTERMS 2010), even if we have taken over further services (e.g. transport or transfer).

6.4 If the goods/objects of performance are delayed in leaving our plant for reasons attributable to the customer, or if the customer otherwise is in default with acceptance, the risk passes on to the customer.

6.5 If we process a manufacturing order for a more closely defined number of bicycles or other products and the customer fails to take delivery of the goods in timely fashion, we are entitled to set a deadline of 14 days for the customer to take delivery. The setting of such a deadline may also be associated with the notification that in the event of failure to take delivery, the goods may be sold to third parties or otherwise utilized by us. The customer must reimburse any shortfall in revenues.

6.6 In the event of a proven deterioration of the solvency of the customer, besides others in the event of default with payment by more than 10 days, application for insolvency proceedings or an out-of-court debt settlement procedure, we are entitled to refuse the supply/service incumbent upon us, until the customer has rendered his consideration and has settled our due claims – also resulting from any possible other business transactions in the course of an ongoing business relationship – or has provided security therefore. Such security also can be provided in form of advance payment before delivery. In the event that such an advance payment does not take place within 10 days, we are entitled to claim the rights of alternative utilization and reimbursement of shortfall in revenues stated in Section 6.5 correspondingly.

6.7 In the course of scrutinizing the creditworthiness of the customer, we are entitled to demand a bank reference from the bank of the customer. A separate consent of the customer is not required.

 

7. Retention of title

7.1 We retain title to all delivered goods/objects of performance, until all our claims on whatever legal grounds arising from our business relationship with the customer have been fully and finally satisfied (i.e. until final release also from any and all joint liability for bills of exchange or cheques) (“Reserved Goods”). The same also is applicable to future or conditional claims under contracts simultaneously or subsequently concluded in connection with the business relationship. In case of a current account, the Reserved Goods have the function to secure our claim under the current account relationship (“Kontokorrentverhältnis”). 

7.2 Processing and transformation of the Reserved Goods are executed for us as producer in the sense of Section 950 BGB (German Civil Code). The delivered goods/objects of performance which shall be processed or transformed are considered as Reserved Goods with the function to secure our claims within the meaning of Art. 7.1. In the event, the customer processes/ transforms, combines or mingles the Reserved Goods with other goods not belonging to us, we acquire co-ownership in the new item in the ratio of the invoice value of the Reserved Goods to the invoice value of the other goods utilized. If our title to the Reserved Goods expires due to combination, mingling, or processing/transformation of the Reserved Goods, the customer hereby already now assigns to us the ownership rights in the new item or the new object, to which he is entitled to ,in the amount of the invoice value of the Reserved Goods, and he shall keep them in his custody for us free of charge, using commercial care. The rights of co-ownership arising hereby likewise constitute Reserved Goods in order to secure our claims within the meaning of Art. 7.1.

7.3 As long as the customer is not in default with payment, he may sell the Reserved Goods in his ordinary course of business and only under his usual terms and conditions of business, provided that the claims resulting from resale simultaneously, pursuant to the Articles 7.4, 7.5 and 7.6, vest in us. The customer is not entitled to dispose of the Reserved Goods otherwise, by pawning them or pledging them as security. The aforementioned authorisation may be revoked by us in the cases set forth in Article 5.4, as well as in case of breach of the aforementioned obligations. In the event of revocation, the customer is also prohibited from processing/transforming the Reserved Goods and from combining or mingling them with other goods.

7.4 The customer’s claims as well as any further rights, including any and all ancillary rights, resulting from the resale of the Reserved Goods, are herewith assigned to us already now, i.e. concurrent with agreement on these General Terms and Conditions, which assignment we herewith accept. They serve to secure our claims to the same extent as the Reserved Goods. If the Reserved Goods are sold by the customer together with other goods not supplied by us, the claim from the resale is herewith assigned to us in the ratio of the invoice value of the Reserved Goods to the invoice value of the other goods. If goods are sold in which we have co-ownership shares pursuant to Art. 7.2, a portion corresponding to our co-ownership share is herewith assigned to us.

7.5 Provided that the resale authorisation has not been revoked, and provided that the customer meets his payment obligations towards us, and has not breached any other essential contractual obligations, the customer is entitled to collect claims from the resale. The customer is not entitled to assign or pledge claims to third parties, including selling claims to factoring banks. The customer must immediately notify us of an interference with our rights by third parties, with such notice to include the documentation necessary for intervention. Any intervention costs incurred are for the account of the customer.

7.6 If the resale authorisation and/or the entitlement to debt collection is revoked, the customer, upon our request, is obliged to provide us with information about the stock of the Reserved Goods as well as about the claims, which are assigned to us. As far as we are not undertaking this by ourselves, he must notify his customers about the assignment to us and provide us with the documents which are necessary for the collection of the assigned claims. Furthermore, if the customer is more than two weeks in default with his payment obligations towards us, we may demand return of the Reserved Goods and collect the claims and further receivables assigned to us. In addition, we may utilize the Reserved Goods in order to satisfy our claims, once we have rescinded the contract or once the prerequisites for the assertion of damages for non-performance occurred. The assertion of retention of title, in particular, the taking back of the Reserved Goods, is only regarded as rescission from the contract if we expressly declare so in writing. Under the aforementioned prerequisites, the customer’s right to possess the Reserved Goods expires. In the designated cases, we are entitled to enter the customer’s premises and pick up the Reserved Goods, following prior notification and the setting of a deadline.

7.7 Upon request of the customer, we shall release securities in so far as the realizable value of the existing securities exceeds the value of our secured claims by more than 10 (ten) percent, whereby we may choose which security we shall release.

 

8. Liability for defects in quality (“Sachmängel”)

8.1 Regarding defects in quality of items supplied by us or also performances provided by us, which the customer notifies to us in writing within the deadlines set forth in Art. 8.2 and which are demonstrably attributable to defects of material and/or construction or other faulty performances, for which we are responsible, we shall grant warranty solely in the way that we will, at our discretion, either remedy the defects in our factory or supply flawless items/replacement parts ex our factory. The customer may only demand a reduction of the remuneration (“Minderung”) or the rescission of the contract (“Wandlung”) if remedy of the defects or substitute delivery is impossible in the given case, if the same culpably does not take place despite written demand by the customer with the setting of a reasonable deadline, or if the remedy fails twice.

8.2 The customer is obligated to notify the Derby Cycle customer service about each component failure regarding obvious defects forthwith upon delivery, and regarding hidden defects within five days upon discovery. A breach of this obligation results in the loss of the warranty rights. Transport damages must be reported to the Derby Cycle customer service in writing, and that regarding obvious defects forthwith upon delivery, and regarding hidden defects within five days upon delivery.

8.3 As far as the purchase price has not been paid completely yet, we are obligated to remedy the defect or to supply flawless items only after the customer has executed payment of such part of the due payments as it is reasonable taking into account the defect in quality.

8.4 If the inspection of a notice of defect in quality reveals that a warranty case does not exist, the customer is charged the costs of repair and inspection on the basis of our then current repair cost rates.

8.5 We are not liable for defects in quality if the supplied items/performance objects have been altered, improperly treated, processed or transformed. We are also not liable for defects in quality if a delivery protocol, attached to the goods or provided to the customer, has not been filled in at all or has not been filled in completely. As far as goods, which are intended for consumers, are not resold by the customer directly to a consumer, the customer must obligate his buyers accordingly.

8.6 Any warranty claims of customer are subject to a limitation period of 12 months, commencing upon delivery.

8.7 Regarding customary wear and tear or customary deterioration of wearing parts, the customer neither is entitled to any claims based on defects in quality nor to any other claims towards us.

8.8 Recourse claims pursuant to the sections 478 and 479 BGB (German Civil Code) do only exist as far as the claim, which the consumer asserted towards our customer, was justified and only to the statutory extent, but not for goodwill arrangements, which have not been coordinated with us, and the recourse claims require that the party entitled to recourse has complied with his or her own duties, including compliance with the obligation to notify us of defects.

8.9 The foregoing regulations also apply mutatis mutandis to deficiency in title.

 

9. Liability

9.1 Any and all claims of reimbursement of expenses and damages by the customer are precluded, also if such claims are connected with the customer’s warranty right. This does not apply

 

  • if we have acted with wilful misconduct or gross negligence, or
  • if the claimed damages are the result of a breach of essential contractual obligations (“wesentliche Vertragspflichten”) by us, or
  • if liability for death, injury of body or health is involved, or
  • if we are liable mandatorily due to a guarantee of quality and features or pursuant to the German Product Liability Act (“Produkthaftungsgesetz”).

9.2 Essential contractual duties are such, the breach of which endangers the purpose of the contract, e.g. substantial delay, more than merely insubstantial breach of duties of cooperation, information, and confidentiality, or also more than merely insubstantial breach of duties, which are decisive for the existence of the contract. In the event of a breach of such essential contractual duties, our liability is limited to the foreseeable damage, typical of the contract, unless the breach was conducted with wilful misconduct or gross negligence.

9.3 The preceding limitations of liability also apply in favour of our employees.

9.4 The preceding regulations on the limitation of our liability do not imply any modification of the burden of proof to the disadvantage of the customer.

9.5 If we take items in custody, this takes place at the customer’s risk and expense. As far as not otherwise agreed upon, the customer is obligated to pay us for such storage the customary fee of a commercial warehouse-keeper.

9.6 If the customer exports the items/objects of performance delivered by us abroad, the customer is solely responsible for complying with all relevant legal provisions, including customs and export provisions.

 

10. Data protection

We are entitled to electronically store data pertaining to our customers and to process and deploy the same for our business purposes pursuant to the statutory regulations.

 

11. Secrecy

The customer shall treat as strictly confidential all information concerning our products which he receives within the scope of the co-operation and likewise the agreed conditions, quantities and other business transactions with the customer, except where such information is already public knowledge. The duty of secrecy shall continue to apply even after the end of the agreement. All damage arising through any breach of these duties is to be borne by the customer.

 

12. Place of jurisdiction/Applicable law

12.1 The exclusive place of jurisdiction for both parties for any and all disputes, arising directly or indirectly from the contractual relationship, also concerning documents, bills of exchange, and cheques, is the court competent for our registered office. However, we are also entitled to assert claims against the customer at the court having jurisdiction over the customer at the location of his place of residence, his registered office, or his assets.

12.2 Applicable law is the law of the Federal Republic of Germany, under exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).

 

13. Miscellaneous provisions

13.1 With regard to the cross-border movement of goods, the following regulations apply, in deviation from the retention of title (Art. 7 of these General Terms and Conditions): 

  1. We retain title to the delivered items until complete payment, as far as such a retention of title is effective under the applicable law.
  2. Upon our request, the customer has to provide us with comprehensive support in our efforts to protect our ownership right in and to the delivered items in the relevant country.
  3. The retention of title does not affect the provisions on the transfer of risk.

13.2 We are entitled to assign our claims, resulting from deliveries and performances/services for financing purposes.

13.3 Transport packaging: The customer is solely responsible for the disposing respectively the recycling of the packaging, and he is taking this responsibility also for us as manufacturer. Due to the high quality of the transport packaging, there generally can be generated revenues from recycling. Any expenses incurred are considered covered by the compensation when calculating the costs of the packaging.

13.4 If individual provisions should be or become ineffective, all other provisions remain in full force and effect. The parties agree to replace the ineffective provision by an effective one that most closely approximates to the economic/ legal purpose of the ineffective provision.