General Terms and Conditions of AVNSON GmbH
AVNSON | General Terms and Conditions of Sale
- 1 Scope of application, form
(1) These General Terms and Conditions of Sale (GTCS) apply to all our business relationships between AVNSON GmbH, Sternstraße 81a, 20357 Hamburg (“we”) and our customers (“Customer”). The GTCS shall only apply if the Customer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law, but not to consumers.
(2) The GTCS apply in particular to contracts for the sale and/or delivery of cargo bikes, bicycles, accessories for use with bicycles and cargo bikes and other movable items (collectively: “Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the GTCS in the version valid at the time of the customer’s order or in any case in the version last communicated to him in text form shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case, even if we execute an order of the customer without separate reference to these GTCS.
(3) Our GTC 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 agreed to their validity within the framework of an individual agreement made with the customer. This requirement of consent 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 GTC.
(4) Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTCS. 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 by the customer in relation to the contract (e.g. setting a deadline, notification of defects, withdrawal or reduction) must always be made in text form (e.g. letter, email). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declaring party, shall remain unaffected.
(6) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTCS.
- 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, calculations, references to standards), other product descriptions or documents – e.g. in electronic form – to which we reserve ownership rights and copyrights.
(2) The order of the goods by the Buyer shall be deemed 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 can 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 specified by us upon acceptance of the order. If this is not the case, the delivery period is approx. 3 weeks from 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 immediately and at the same time inform the Buyer 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 reimburse any consideration already paid by the customer. A case of non-availability of the service in this sense shall be deemed to be in particular the failure of our supplier to deliver to us in good time 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 from the buyer is 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 suffered no damage at all or only significantly less damage than the above lump sum.
(4) The rights of the customer pursuant to § 8 of these GTCS 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 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 will be shipped to another destination (sales shipment). Unless otherwise agreed, we are 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 at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly to any agreed acceptance. If the customer is in default of acceptance, this shall be deemed equivalent to handover or 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 buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).
(4) The following applies to products that are not fully assembled as well as accessories and other items intended for installation or assembly: We strongly recommend that the customer ensures that the purchased item is properly assembled and maintained by adequately 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 damage for which we are not responsible and which is not caused by a defect in the purchased item or faulty assembly instructions due to improper installation and/or operation or improper care or maintenance. In this case, the customer must reimburse us for the costs of checking and processing an incorrect notification of defects.
(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 in accordance with Section 4 above are also communicated to the respective purchaser and that the delivered products are only transferred to third parties with the relevant instructions, documentation and safety instructions.
(6) Unless otherwise expressly agreed, the granting, approval or payment of subsidies (in particular for e-bikes/cargo bikes) shall not form the basis of contracts concluded with us; the refusal or reclaiming of subsidies shall not give either party the right to withdraw from, reduce or otherwise adjust the contract.
(7) Before placing an order, the customer must check whether the ordered goods are suitable for his requirements. We may consider all information provided by the customer within the scope of the contractual relationship to be correct and accurate in terms of content and are not obliged to verify it. We shall inform the customer of any inaccuracies that we detect, and the customer shall then be obliged to provide a correction without delay. In the event of incorrect orders placed by the customer for which we are not responsible, in particular in the event of errors relating to the properties of the goods for which we are not responsible, we shall not be obliged to take back the goods or make a replacement delivery. If we agree to a replacement delivery, the customer shall bear all resulting additional costs.
(8) We may communicate with the customer by email as part of the contractual relationship. The customer must ensure that the e-mail address provided by him for order processing is correct and that no settings or filter devices of the customer prevent the receipt of contract-related e-mails.
- 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 to destination (§ 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 of invoicing. We are entitled at any time, even in the context of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation. If the customer defaults on payment to us, we shall also be entitled to subsequently stipulate advance payment for all ongoing delivery relationships and transactions with the customer and to make delivery dependent on payment by the customer.
(4) Upon expiry of the above payment deadline, the customer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages caused by default. Our claim to commercial maturity interest (§ 353 HGB) against merchants remains unaffected.
(5) The customer shall only be entitled to rights of set-off or retention to the extent that 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 GTCS.
(6) If it becomes apparent after conclusion of the contract (e.g. through an application for the opening of 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 non-fungible goods (custom-made products), we may declare our 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 collateral before full payment of the secured claims.
be transferred. The customer must inform us immediately in text form if an application is made to open insolvency proceedings or if third parties seize the goods belonging to us (e.g. attachments).
(3) If the customer acts 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 and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not at the same time include a declaration of withdrawal; rather, we are entitled to demand only the return of the goods and reserve the right to withdraw from the contract. 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 by the customer
(1) The statutory provisions shall apply to the customer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified 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 further processed them (supplier recourse pursuant to §§ 478 BGB). Claims arising from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur, e.g. by installation in another product.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions and manufacturer’s specifications that are the subject of the individual contract or were made public by us (in particular in catalogs or on our Internet homepage) at the time the contract was concluded shall be deemed to be an agreement on the quality of the goods.
(3) If the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (Section 434 (1) sentences 2 and 3 BGB). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements) which the customer has not pointed out to us as being decisive for his purchase.
(4) In principle, we shall not be liable for defects that the customer is aware of or is grossly negligent in not being aware of when the contract is concluded. Furthermore, the customer’s claims for defects presuppose that he has complied with his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). In the case of goods intended for installation or other further processing, an inspection must always be carried out immediately prior to processing. If a defect is discovered during delivery, inspection or at any later point in time, we must be notified of this immediately in text form. In any case, obvious defects must be reported in text form within 5 working days of delivery and defects not recognizable during the inspection within the same period from discovery. If the customer fails to carry out the proper inspection and/or report defects, our liability for the defect not reported or not reported on time or not reported 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 (subsequent improvement) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions remains unaffected.
(6) We are 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 reasonable part of the purchase price in proportion to the defect.
(7) The customer must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions. Subsequent performance shall not include the removal of the defective item or its reinstallation 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 actually exists. Otherwise, we may 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 recognizable to the Buyer.
(9) In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the customer has the right to remedy the defect himself and to demand compensation from us for the expenses objectively necessary for this. We must be notified immediately, if possible in advance, of any such self-remedy. The right of self-remedy shall not apply if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(10) If the supplementary performance has failed or a reasonable deadline to be set by the buyer for the supplementary performance has expired unsuccessfully or is dispensable according to 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 is no right of withdrawal.
(11) Claims of the customer for damages or reimbursement of futile expenses shall only exist in accordance with § 8, even in the case of defects, and are otherwise excluded.
(12) Where specified, our products are only approved for road traffic in the Federal Republic of Germany. If the customer places our products on the market outside the Federal Republic of Germany, he is responsible for compliance with the regulations applicable in the respective country of destination.
- 8 Other liability
(1) Unless otherwise stated in these GTCS, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in cases 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 our own affairs; insignificant breach of duty), for
- a) for damages resulting from injury to life, body or health,
- b) for damages arising from the breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall also apply to third parties and in the event of breaches of duty by persons (including in their favor) whose fault we are responsible for in accordance with statutory provisions, as well as in corresponding application for any claims for reimbursement of expenses against us. They shall not apply if a defect has been fraudulently concealed or a guarantee has been given for the quality of the goods 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. Otherwise, the statutory requirements and legal consequences shall apply.
- 9 Quality and guarantees
(1) Our information on the object of the delivery and service (e.g. dimensions and other technical data) as well as our representations of the same (e.g. drawings and illustrations) are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are 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 must inform us in writing (e.g. by e-mail) of any special requirements for our products in good time before the contract is concluded. However, such information shall not extend our contractual obligations and liability. In the absence of any other express agreement, we are only obliged to deliver the ordered products as goods that are marketable and approvable in the Federal Republic of Germany. The customer shall not be granted any rights of use to the brands, designs and layouts provided by us with our products.
(2) We shall only be deemed to have assumed a guarantee 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 Statute of limitations
(1) Notwithstanding 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 or an item that has been used for a building 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. Further mandatory statutory special regulations on the limitation period remain unaffected (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 individual cases. The customer’s claims for damages pursuant to § 8 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
- 11 Choice of law and place of jurisdiction
(1) These GTCS and the contractual relationship between us and the customer shall be governed by the law of the Federal Republic of Germany 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 within the meaning of 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 applies if the customer is an entrepreneur within the meaning of § 14 BGB. However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTCS or an overriding individual agreement or at the customer’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.