Pinion GmbH - General Terms and Conditions for Sale and Delivery
§ 1 General information
1. The subject matter of these General Terms & Conditions governs all business relationships between Pinion GmbH (hereinafter referred to as “Supplier”) and individuals who upon conclusion of the contract are acting within the scope of their commercial or independent business activity (entrepreneur pursuant to § 14 BGB (German Civil Code), hereinafter referred to as “Customer”). All offers, deliveries, services and other contractual agreements are based solely on these General Terms & Conditions.
2. By placing an order the Customer accepts the following conditions.
3. When placing an order the Customer agrees to its data – to the extent necessary for conducting business and permissible within the framework of the Federal Data Protection Act – being stored and processed electronically.
4. The Supplier does not recognise any deviating or conflicting conditions of the Customer. They are hereby expressly rejected. They shall also not become a subject matter of the contract, even if the Supplier does not expressly reject them, unless the Supplier explicitly agrees to their validity in writing.
5. The current terms of delivery and payment also apply to all future business transactions with the Customer.
§ 2 Conclusion of the contract
1. The offers of the Supplier are subject to change and are non-binding. Contracts shall only come into effect with the issue of a written acceptance or order confirmation by the Supplier. Any collateral agreements and changes to the order must be made in writing and require the express written confirmation of the Supplier.
2. The Supplier reserves the right to make technical changes at any time up until the acceptance of an offer. Details and specifications regarding colours, dimensions, weights and other technical properties therefore serve only as guidelines up until the contract is concluded.
3. Employees or vicarious agents of the Supplier are not authorised to make oral collateral agreements or provide verbal assurances which deviate from the content of the written contract.
4. Samples are generally only provided at an extra cost.
5. The Supplier shall reserve all property rights and copyrights to samples, cost estimates, drawings and similar information of a physical or non-physical nature – also in electronic form. These documents shall not be made accessible to third parties.
6. The Supplier and Customer mutually undertake to only make confidential information accessible to third parties following the prior consent of the other party.
§ 3 Delivery
1. Delivery dates shall only be deemed to be binding if they are expressly confirmed in the written acceptance or order confirmation. Compliance by the Supplier is dependent on the clarification of all commercial and technical issues between the contracting parties and the fulfilment of all duties by the Customer, e.g. provision of official certificates or permits, agreed advance payments, etc. If this is not the case, the delivery period shall be extended accordingly.
2. The delivery period shall be extended accordingly upon the occurrence of unforeseeable extraordinary events, which the Supplier could not avoid despite reasonable care and effort in the individual circumstances – even if the incidents occur at subcontractors – insofar as they have a significant influence on the completion or delivery of the delivered goods. The Supplier shall inform the Customer as soon as possible of the start and end date of such circumstances.
3. Any definitive obstacles to the delivery not attributable to the Supplier shall release the Supplier from his delivery obligation. The Supplier shall immediately inform the Customer of a definitive obstacle to delivery. The Customer shall be exempt from its payment obligation; any payments already made by the Customer shall be reimbursed.
4. A claim for damages by the Customer owing to a delayed delivery or definitive obstacle to delivery not attributable to the Supplier is ruled out. The Customer may terminate the contract without observing a period of notice if it becomes impossible for the Supplier to complete the delivery or provide the service before the transfer of risk. The Customer may also terminate the contract, if part of the delivery becomes impossible, if it has a legitimate interest in the refusal of the part delivery. This shall be the case if the Customer is unable to use the part delivery.
5. If the ordered goods are not available in full, then – in agreement with the Customer – either a date is agreed for the complete delivery or a part delivery shall be effected. The Supplier shall be entitled to make part deliveries insofar as this is reasonably acceptable for the Customer. Where part deliveries are made, then corresponding partial invoices can be issued. Shipping costs for subsequent deliveries shall be invoiced at the amount they would be even in the case of a complete delivery.
6. In the event of a payment default by the Customer, the Supplier shall be authorised to suspend further deliveries until payment of all outstanding amounts has been made in full.
7. In the interim period the Supplier may sell goods already ordered to other customers if the original Customer makes a significant change to the delivery date.
8. If the Customer refused acceptance of the goods, then the Supplier may set an appropriate period for acceptance. If the Customer has not accepted the goods within this period, then the Supplier shall be entitled to terminate the contract and demand compensation for non-performance.
9. The agreed delivery date shall be deemed to have been met when the delivery item has been shipped by the Supplier before the said delivery date. To the extent that an acceptance has to take place, the acceptance date shall be decisive – except in the case of a justified refusal of acceptance, alternatively the notification of the readiness to effect acceptance.
10. If the delivery or acceptance of the delivery items is delayed for reasons which are attributable to the Customer, then the Customer shall be invoiced the costs arising from the delay – starting two weeks following notification of the readiness for dispatch or acceptance.
§ 4 Shipment and transfer of risk
1. The shipment is effected, unless otherwise agreed in the order confirmation or other agreements, ex works at the expense of the Customer. The shipping method is determined by the Supplier – without any obligation for the most cost-effective shipping method, unless otherwise expressly agreed.
2. The risk is transferred to the Customer – also in the case of “freight paid” delivery – as soon as the goods leave the Supplier’s plant. The Supplier shall be entitled, but not obligated, to insure the deliveries on behalf of and at the expense of the Customer. In the event of transport damage, the Customer shall compile a report of the extent of the damage for the relevant departments and immediately notify the Supplier thereof.
3. If the shipment is delayed due to the Customer, then the risk is already transferred upon notification of the readiness for dispatch, even if the goods have not yet left the plant. The Supplier shall be entitled, but not obligated, to insure against all relevant risks at the expense of the Customer.
§ 5 Prices
1. The prices shall apply ex works and do not include – unless otherwise agreed – VAT, packaging, freight, postage and insurance. These items are invoiced separately.
2. Quotations on price lists or offers are non-binding and are subject to change.
§ 6 Terms of payment
1. Unless otherwise agreed, the payment is effected either by advance payment or direct debit (SEPA direct debit mandate). Other payment methods must be agreed on a case-by-case basis.
2. Deliveries to customers who are new customers or whose shipping or billing address lies outside the free trade area of the European Union are generally only effected with advance payment.
3. All fees and expenses shall be at the expense of the Customer. The payment must be credited to the Suppler in full without any deductions.
4. The Customer shall only be entitled to offset amounts if its counterclaims have been legally upheld, are undisputed or have been recognised by the Supplier. In addition, the Customer shall only be authorised to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
5. Should the Customer fail to comply with the agreed obligations, the Supplier shall be entitled after an unsuccessful period of grace to make other deliveries of the Customer dependent on the provision of security, providing that there is a risk that the Customer will not pay on time, and a right of retention will be exercised. The delivery period shall be extended accordingly.
6. The deduction of a discount requires express written agreement.
§ 7 Default of payment
1. Claims for payment from the Supplier shall be due after the invoice is issued and upon delivery. The Customer defaults on payment if it has not made a payment within 10 days of receipt of the service and invoice, without the necessity of a reminder.
2. In the event of a default of payment, the Supplier shall be entitled to invoice default interest at a rate of 9 percentage points over the basic interest rate. The assertion of any other claims for damages caused by the delay remains explicitly reserved.
§ 8 Retention of title
1. The Supplier shall retain ownership of the delivery item until all payments from the supply contract have been received.
2. Where the Customer behaves contrary to the contract, particularly in the case of payment default, the Supplier shall be entitled to take back the delivery item following an appropriate deadline. Recovery of the goods shall be deemed as withdrawal from the contract. The Supplier is authorised to use the delivery item following its return. The proceeds shall be credited to the accounts payable of the Customer – less reasonable disposal costs.
3. The Customer is obligated to exercise due care when handling the delivery item up until payment has been made in full. In particular, the Customer is obligated to insure at its own expense the delivery items against damage caused by fire, water and theft to cover the replacement value.
4. The Customer may not pledge or use as collateral the goods supplied to it until payment has been made in full. In the event of seizures or other action by third parties, the Customer shall immediately inform the Supplier thereof in writing. Otherwise, the Customer shall be liable to the Supplier for the damage caused.
5. The Customer shall be entitled to sell the delivery item in the ordinary course of business. However, the Customer hereby assigns to the Supplier all claims in the amount of the final invoice amount (incl. VAT) of the Supplier’s claim, owed to the Customer or third parties based on the resale, irrespective of whether the delivery items were sold without being processed or after being processed. The Customer shall also be entitled to collect the receivables after the assignment. The Supplier’s right to collect such receivables shall remain unaffected thereby. However, the Supplier undertakes not to collect the receivables as long as the Customer meets its payment obligations from the proceeds received and does not default on payment and no insolvency proceedings have been opened or payments have not been discontinued or suspended. If this is the case, however, the Supplier may request that the Customer notifies it of the assigned claims and debtors, provide information required for collection, hand over documents and inform the debtors.
6. The processing or transformation of the delivery item by the Customer is always carried out for the Supplier. If the delivery item is processed with other objects not belonging to the Supplier, then the Supplier shall acquire joint ownership of the new item in the ratio of the value of the delivery item (final invoice amount incl. VAT) to the other processed items at the time of processing.
7. The Supplier undertakes to release securities to which it is entitled upon the Customer’s request, insofar as the realisable value of the securities exceeds 10% of the debt to be secured. The choice of the securities to be released is at the discretion of the Supplier.
§ 9 Inspection and reporting obligation and warranty for defects
1. Claims for defects by the Customer shall not be accepted unless they satisfy the inspection and reporting obligations set out in § 377 HGB (German Commercial Code). Defects – e.g. in relation to quantity, function or condition – shall be notified to the Supplier without delay, however at the latest within 7 days of receipt of the goods. Otherwise, the goods shall be deemed to have been approved.
2. Hidden defects must be notified immediately after they have been discovered, at the latest within 7 days of their discovery.
3. Any notification of defects must be made in writing and include supporting documents.
4. At the Supplier’s discretion all parts which within 12 months of delivery transpire to be unusable or upon closer examination are not deemed to be significantly impaired due to circumstances which arose before the transfer of risk shall be repaired or replaced free of charge. The discovery of such defects shall be notified to the Supplier without delay. The Customer shall set the Supplier an appropriate grace period of at least 2 weeks. Replaced parts shall become the property of the Supplier. The Supplier shall bear the cost of all expenses required for the purposes of supplementary performance, in particular transport, infrastructure, labour and material costs. Only in urgent cases and to avoid disproportionately high damage or if the Supplier delays with the rectification of the defect, or if the rectification of the defect by the Supplier is unacceptable for the Customer in other ways, has the Customer the right to eliminate the defect itself or have the defect eliminated by a third party it has commissioned and request a reimbursement of the necessary expenses from the Supplier.
5. The limitation period for warranty claims is 12 months from the transfer of risk.
6. Claims do not exist in the case of an insignificant deviation from the agreed quality or slight impairment of the usability.
7. Colour variations or deviations – particularly in the case of anodized components – cannot be completely ruled out. They shall therefore be considered to comply with the contract; a liability for defects is ruled out in this regard.
8. The Supplier is not liable, insofar as the Customer – or subordinate customer – makes unauthorised changes or improvements, with the exception of the cases governed under clause 4. Furthermore, the liability for defects does not apply to natural wear and tear or damage caused by improper, inappropriate or unintended use.
9. Liability exists for the replacement part or the improvement in the same manner as for the delivery item.
10. The Customer shall have the right to reduce the remuneration or terminate the contract, if the second attempt by the Supplier at an improvement or replacement delivery failed after a reasonable deadline. Further claims for damages are excluded, subject to the provision of § 10.
11. Items which are submitted for improvement under warranty or for the repair of damage caused by regular use must be removed from the bicycle and be in a clean condition. Otherwise, the removal and cleaning shall be invoiced by the Supplier.
12. All information provided by the Supplier regarding suitability, processing and use of the products, as well as technical advice, is effected to the best of its knowledge. However, this does not release the Customer from carrying out its own inspection of the products.
13. If within the warranty period of 12 months the use of the delivery item leads to the infringement of industrial property rights or copyrights, the Supplier shall generally obtain the right of further use for the Customer or modify the delivery item in such a way that the infringement of industrial property rights no longer exists. If this is not possible under reasonable economic conditions, the Supplier shall take back the delivery item and reimburse the contract price less any amount to cover wear caused by use, as well as the preserved condition of the delivery item. Furthermore, the Supplier shall exempt the Customer from any claims by the corresponding owner of the industrial property rights which are undisputed or have been legally upheld. These obligations of the Supplier are conclusive for the case of infringements of industrial property rights or copyrights subject to § 10. They only exist if the Customer immediately informs the Supplier of the alleged infringements of industrial property rights or copyrights, the Customer supports the Supplier to a reasonable extent in fending off the alleged claims or makes it possible for the Supplier to enforce modification measures, all defensive measures including out of court settlements are reserved for the Supplier, the delivery item was not manufactured as directed by the Customer and the infringement was not caused by the fact that the Customer modified the delivery item or used it in a manner that is not in accordance with the contract.
§ 10 Liability
For damages not caused to the delivery item itself the Supplier shall be liable
– in the case of intent,
– for gross negligence on the part of the owner or executive employee,
– for the absence of assured characteristics, if the assurance aimed to ensure the Customer against damages,
– in the case of defects with the delivery item, insofar as liability applies according to the Product Liability Act for personal or material damage to privately used objects.
In the event of a culpable breach of cardinal contractual duties, the Supplier shall also be liable in the case of gross negligence of non-executive employees and in the case of ordinary negligence; nevertheless, this is limited to the reasonably foreseeable damage.
In terms of claims for damages, the liability for damages caused by intent or gross negligence and for damages arising from injury to life, body and health, which are based on the negligence of the Supplier, shall remain unaffected thereby. A deliberate or grossly negligent violation of the contractual obligations by the Supplier shall be equivalent to that of its legal representative or vicarious agents.
Further claims – irrespective of the legal grounds – are excluded.
§ 11 Place of fulfilment, place of jurisdiction and applicable law
1. The place of fulfilment for all mutual claims in connection with delivery and payment is Denkendorf.
2. The place of jurisdiction – also for default actions – is Denkendorf or the court responsible for Denkendorf.
3. The law of the Federal Republic of Germany applies to these General Terms of Delivery and Payment and all legal relationships between the Supplier and the Customer. The application of a uniform international sales law (EKG and EAG), as well as the United Nations Convention on Contracts for the International Sale of Goods (CSIG), is excluded.
§ 12 Data Storage
The data of the Ordering Party that is relevant for the performance of the agreement will be saved by us pursuant to Art. 28 German Federal Data Protection Act (Bundesdatenschutzgesetz) for our own business purposes. This notice is issued pursuant to Art. 33 German Federal Data Protection Act.
§ 13 Language
The English translation of the original German text of the General Terms of Delivery and Payment serves only for information. In the event of any inconsistency between the German and the English version only the German version, which will be transmitted on request, shall apply. If the English legal meaning differs from the German legal meaning of any terms, the German meaning shall prevail.