General Terms and Conditions of AVNSON GmbH
AVNSON | General Terms and Conditions of Sale
- 1 Scope, form
(1) These General Terms and Conditions of Sale (GTCS) shall apply to all our business relations of AVNSON GmbH, Sternstraße 81a, 20357 Hamburg (“we”) with our customers (“Customer”). The GCS shall only apply if the Customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law, but not vis-à-vis consumers.
(2) The GCS apply in particular to contracts for the sale and/or delivery of cargo bicycles, bicycles, accessories for use with bicycles and cargo bicycles and other movable items (collectively: “Goods”), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GCS in the version valid at the time of the Customer’s order or in any case in the version last notified to the Customer in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case, even if we execute an order of the Customer without separate reference to these GCS.
(3) Our GCS shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Customer shall only become part of the contract if and to the extent that we have expressly consented to their application within the framework of an individual agreement reached with the Customer. This consent requirement shall apply in any case, for example even if we carry out the delivery to the customer without reservation in the knowledge of the customer’s general terms and conditions.
(4) Individual agreements made with the Customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, the content of such agreements shall be governed by a contract or our confirmation, in each case in text form.
(5) Legally relevant declarations and notifications of the Customer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall always be made in text form (e.g. letter, e-mail). Legal formal requirements and further proof, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
(6) References to the applicability of statutory provisions shall only have a clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
- 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the customer with catalogs, technical documentation (e.g. drawings, plans, calculations, references to standards), other product descriptions or documents – e.g. in electronic form – to which we reserve property rights and copyrights.
(2) The order of the goods by the Buyer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within two weeks of its receipt by us.
(3) Acceptance may be declared either in text form (e.g. by order confirmation) or by delivery of the goods to the Buyer.
- 3 Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or stated by us upon acceptance of the order. If this is not the case, the delivery period shall be approx. 3 weeks from the conclusion of the contract.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this without delay and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the customer. A case of non-availability of the performance in this sense shall be deemed to be in particular the non-timely self-delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the Buyer shall be required. If we are in default of delivery, the customer may demand compensation for the damage caused by the delay, but not more than a total of 5% of the delivery value of the goods delivered late, unless we are liable for intent or gross negligence. We reserve the right to prove that the customer has not suffered any damage at all or that the damage is significantly less than the aforementioned lump sum.
(4) The rights of the customer pursuant to § 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
- 4 Delivery, Transfer of Risk, Default of Acceptance, Contractual Relationship
(1) Delivery shall be made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the customer’s request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon handover at the latest. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Buyer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the customer is in default of acceptance.
(3) If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).
(4) The following shall apply to products that have not been fully assembled, as well as accessories and other items intended for assembly or installation: We strongly recommend that the customer, in all cases, ensure that the purchased item is properly assembled and maintained by sufficiently qualified personnel in accordance with the manufacturer’s instructions. After assembly, a functional and safety test must be carried out on all products (as far as possible with regard to the nature of the part) by qualified personnel. The manufacturer’s operating, maintenance and care instructions must be observed in all cases. We shall not be liable for any damage caused by improper installation and/or operation or improper care or maintenance for which we are not responsible, including damage caused by a defect in the purchased item or defective installation instructions. In this case, the customer shall reimburse us for the costs of checking and processing an incorrect defect report.
(5) If the customer is a reseller, dealer or otherwise transfers delivered products to third parties, the customer shall ensure that the duties of care and obligations pursuant to the foregoing Section 4 are also communicated to the respective purchaser and that the delivered products are only transferred to third parties with the respective instructions, documentation and safety instructions.
(6) The granting, approval or disbursement of subsidies (in particular for e-bikes/load bikes) shall not form the basis of contracts concluded with us unless otherwise expressly agreed; a refusal or reclaiming of subsidies shall not give rise to any right to rescission, reduction or other adjustment of the contract on either side.
(7) Before placing an order, the customer shall check whether ordered goods are suitable for its needs. We may consider all communications from the customer within the framework of the contractual relationship to be correct and accurate in terms of content and are not obliged to verify them. We shall notify the customer of any recognized inaccuracies, who shall then be obliged to provide a correction without delay. In the event of incorrect orders by the customer for which we are not responsible, in particular in the event of errors regarding the properties of the goods for which we are not responsible, we shall not be obliged to take back the goods or provide a replacement delivery. If we agree to a replacement delivery, the customer shall bear all additional costs resulting therefrom.
(8) Within the framework of the contractual relationship, we may communicate with the customer by email. The customer must ensure that the email address provided by him for order processing is correct and that no settings or filtering devices of the customer prevent the receipt of contract-related emails.
- 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse Hamburg, plus statutory VAT.
(2) In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1), the customer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the buyer. Any customs duties, fees, taxes and other public charges shall be borne by the customer.
(3) The purchase price is due and payable within 14 days from the date of invoice. We shall be entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation. If the customer is in default with respect to us, we shall be entitled to subsequently provide for advance payment for all current delivery relationships and transactions with the customer and to make delivery dependent on payment by the customer.
(4) The customer shall be in default upon expiry of the aforementioned payment period. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
(5) The customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the customer’s counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GTC.
(6) If, after conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardized by the Customer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract. In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
- 6 Retention of title
(1) We reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may not be pledged to third parties or used as security before full payment of the secured claims.
transferred to third parties. The customer shall notify us immediately in text form if an application for the opening of insolvency proceedings is filed or if third parties (e.g. seizures) have access to the goods belonging to us.
(3) In the event of conduct by the customer in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand surrender of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
§ 7 Claims for defects of the customer
(1) The statutory provisions shall apply to the Customer’s rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse pursuant to §§ 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the purchaser or another entrepreneur, e.g. by incorporation into another product.
(2) The basis of our liability for defects is above all the agreement made on the quality of the goods. All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were publicly announced by us (in particular in catalogs or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods.
(3) Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether or not there is a defect (Section 434 (1) sentences 2 and 3 of the German Civil Code (BGB)). However, we shall not be liable for public statements made by the manufacturer or other third parties (e.g. advertising statements) to which the customer has not drawn our attention as being decisive for the purchase.
(4) As a matter of principle, we shall not be liable for defects of which the customer is aware at the time of conclusion of the contract or is not aware due to gross negligence. Furthermore, the customer’s claims for defects presuppose that he has complied with his statutory obligations to examine the goods and to give notice of defects (§§ 377, 381 HGB). In the case of goods intended for installation or other further processing, an inspection must in any case take place immediately before processing. If a defect becomes apparent during delivery, inspection or at any later time, we must be notified of this immediately in text form. In any case, obvious defects shall be notified to us in text form within 5 working days of delivery and defects which are not apparent upon inspection shall be notified to us in text form within the same period of time after discovery. If the customer fails to make the proper inspection and/or notification of defects, our liability for the defect not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(6) We shall be entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a part of the purchase price that is reasonable in relation to the defect.
(7) The customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall not include either the removal of the defective item or its re-installation if we were not originally obliged to install it.
(8) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect is actually present. Otherwise, we shall be entitled to demand reimbursement from the Buyer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Buyer.
(9) In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the customer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be informed immediately of such a self-execution, if possible in advance. The right of self-execution shall not apply if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(10) If the subsequent performance has failed or if a reasonable period to be set by the Buyer for the subsequent performance has expired unsuccessfully or is dispensable under the statutory provisions, the Customer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there shall be no right of withdrawal.
(11) Claims of the customer for damages or reimbursement of futile expenses shall also exist in the event of defects only in accordance with § 8 and shall otherwise be excluded.
(12) For our products, an approval for road traffic, as far as stated, is only granted for the Federal Republic of Germany. If the customer places our products on the market outside the Federal Republic of Germany, he shall be responsible for compliance with the regulations applicable in the respective country of destination.
- 8 Other liability
(1) Insofar as nothing to the contrary arises from these GTC including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
2) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), in the following cases
- a) for damages resulting from injury to life, body or health,
- b) for damages arising from the breach of an essential contractual obligation (obligation the fulfilment of which is a prerequisite for the proper performance of the contract and the observance of which the contractual partner regularly relies on and may rely on); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply to third parties as well as in the event of breaches of duty by persons (also in their favour) whose fault we are responsible for according to statutory provisions, as well as in corresponding application to any claims for reimbursement of expenses against us. They do not apply insofar as a defect was fraudulently concealed or a guarantee for the quality of the goods was assumed and for claims of the customer under the Product Liability Act.
(4) The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
- 9 Condition and guarantees
(1) Our information on the object of the delivery and service (for example dimensions and other technical data) as well as our representations of the same (for example drawings and illustrations) are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of elements and materials with equivalent components and materials, are permissible insofar as they do not impair the usability for the contractually intended purpose. The customer shall inform us in good time before conclusion of the contract in text form (e.g. by e-mail) of any special requirements for our products. However, such information shall not extend our contractual obligations and liability. In the absence of any express agreement to the contrary, we shall only be obliged to deliver the ordered products as goods that can be marketed and registered in the Federal Republic of Germany. The customer shall not be granted any rights of use to the trademarks, designs and configurations provided by us with our products.
(2) A guarantee shall only be deemed to have been assumed by us if we have designated a property and/or a performance outcome as “legally guaranteed” in writing or in electronic form (e.g. e-mail).
- 10 Limitation
(1) In deviation from the statutory provisions, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) If the goods are a building structure or an item that has been used for a building structure in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provisions. This shall be without prejudice to further mandatory special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB).
(3) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the customer based on a defect of the goods, unless the application of the regular statutory limitation period would lead to a shorter limitation period in the individual case. Claims for damages of the customer according to § 8 para. 2 sentence 1 and sentence 2(a) as well as according to the Product Liability Act shall become time-barred exclusively according to the statutory limitation periods.
- 11 Choice of law and place of jurisdiction
(1) The laws of the Federal Republic of Germany shall apply to these GCS and the contractual relationship between us and the customer, to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the customer is a merchant as defined by the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Munich. The same shall apply if the customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the general place of jurisdiction of the customer. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.