AGB

General Terms and Conditions of Sale of the Webshop "b2cbestellung.velo-de-ville.com" of AT Zweirad GmbH

Section 1 Scope

(1) The present General Terms and Conditions of Sale (“GTCS”) shall apply to all contracts concluded via our webshop/dealer portal between us, AT Zweirad GmbH, Zur Steinkuhle 2, 48341 Altenberge, Germany, represented by its managing directors (Geschäftsführer) Volker Thiemann and Alain Thiemann, registered with the local court Amtsgericht Steinfurt, companies register number HRB 1982, telephone number: +49 (0)2505 9305 0, email: info@velo-de-ville.com, and you as our buyer.

(2) The GTCS shall apply to both entrepreneurs and consumers. The customer is a consumer if the purpose of the ordered goods and services cannot be primarily attributed to his/her commercial or independent professional activity. On the other hand, entrepreneur means any natural or legal person or partnership with legal personality, who/which, when concluding the contract, is acting in the pursuit of their commercial purpose or exercising their independent profession.

(3) All agreements made between you and us in connection with the purchase contract can be derived in particular from these Terms and Conditions of Sale, our written order confirmation and our declaration of acceptance.

(4) The version of the GTCS in effect on the date of the conclusion of contract shall apply.

(5) We do not accept any deviating terms and conditions of the buyer. This shall also apply if we do not expressly object to their inclusion.

Section 2 Conclusion of contract

(1) The depiction, presentation and advertising of goods in our online store does not constitute a binding offer to enter into a sales/purchase contract.

(2) By sending an order via the dealer portal by clicking on the button " place order and pay" you place a legally binding order creating the obligation to pay the purchase price. You will be bound by the order for a period of two (2) weeks from the date of placing the order.

 (3) We will confirm receipt of the order you placed via our online store, by email without undue delay. Such email shall not qualify as binding acceptance of the order, unless, in addition to the confirmation of receipt, acceptance is declared therein at the same time.

(4) A contract shall be deemed concluded only when we accept your order by means of a declaration of acceptance and/or by delivering the ordered goods.

(5) We deliver within the European Union (EU) and to other selected countries. We will inform you about the detailed list of countries, and the costs incurred, in the course of the order process.

(6) If delivery of the goods you ordered is not possible, for example because the corresponding goods are not in stock, we will refrain from issuing a declaration of acceptance. In this case, no contract shall be deemed concluded. We shall inform you accordingly and refund any consideration already received, without undue delay.

(7) Order processing and the transmission of any information required in connection with the conclusion of the contract will take place by email and partly by automated emails. You must therefore ensure that the email address you provide us with is correct, that the receipt of emails is technically ensured and, in particular, not prevented by any SPAM filters.

(8) The language of the contract is German. We do not store the full contract text. Prior to sending the order, the contract data can be printed or electronically saved using the browser's print function. On our receipt of the order, the order data, the information legally required for distance selling contracts, and the General Terms and Conditions will be sent to you again by email.

Section 3 Right of cancellation

(1) As a consumer, you have the right to cancel in accordance with the provisions of statutory law.

(2) If you, as a consumer, make use of your right to cancel under para. (1), you shall bear the standard costs of the return shipment.

(3) In all other respects, the right of cancellation shall be subject to the provisions set out in detail in the following Cancellation Policy      

(4) The right of cancellation as a consumer does not apply to distance selling contracts for the delivery of goods that have been manufactured according to customer specifications or that are clearly tailored to personal needs or that cannot be adequately returned due to their properties/nature.

Section 4 Delivery period and delay in delivery

(1) The delivery period shall be agreed individually or stated by us upon acceptance of the order.

(2) If we are unable to meeting binding delivery deadlines for reasons for which we are not responsible (non-availability of the Goods/services), we shall inform the buyer and at the same time notify the buyer of the prospective new delivery deadline. If the Goods/services are not available within the new delivery period either, we shall be entitled to rescind the contract in whole or in part; we will refund without undue delay any consideration already paid by the buyer. Non-availability of the Goods/services for the purposes hereof means in particular, but without limitation, failure of our supplier to deliver goods/services on time in cases in the case we entered into a congruent covering transaction and neither we nor our supplier are at fault or we are not obliged to procure in the particular case.

(3) The occurrence of our default in delivery shall be subject to the provisions of statutory law. In any case, however, a written reminder by the buyer shall be required.

(4) The following applies to entrepreneurs: If we default on delivery the buyer may demand a lump-sum compensation for the loss/damage the buyer suffered on account of such default. The lump-sum compensation shall amount to 0.5% of the net price (value of the Goods to be delivered) for each full calendar week of the delay but shall not exceed a maximum total amount of 5 % of the value of the Goods to be delivered. We reserve the right to prove that the buyer did not suffer any loss/damage at all or that it suffered significantly lower loss/damage than the aforementioned lump sum.

(5) The rights of the buyer pursuant to section 10 of these GTCS and our rights under statutory law, in particular in the event of an exemption from the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance (Nacherfüllung under German law), shall not be affected.

Section 5 Delivery, passing of risk, formal acceptance, default on acceptance

(1) The following applies to consumers:

(a) Unless otherwise agreed, delivery shall be made directly to a dealer selected by the consumer who has his registered office within a radius of 50 km from the consumer's place of residence. In this case, the goods are delivered in a bicycle box; our dealer mounts the pedals and, in consultation with the consumer, the saddle and handlebars. Subsequently, the goods are subjected to a functional check by the dealer and then handed over to the consumer in a ready-to-ride condition.

(b) If none of our dealers has its registered office within a radius of 50km from the consumer's place of residence, we shall deliver the goods directly to the consumer, unless otherwise agreed. The goods will be delivered in a bicycle box; the consumer shall then put the goods in a ready-to-ride condition in accordance with the operating instructions.

(2) The following applies to entrepreneurs:

(a) Unless otherwise agreed in the individual case, delivery shall be EXW (Ex Works, Incoterms 2020) Zur Steinkuhle 2, 48341 Altenberge, Germany, which shall also be the place of performance for delivery and subsequent performance. At the request and expense of the Buyer, the Goods shall be shipped to a different destination (Versendungskauf under German law = goods sold to be delivered to another destination according to buyer's instructions). Unless agreed otherwise, we shall be entitled to choose the type of shipment (in particular transport company, shipping route, packaging) at our discretion.

(b) The risk of accidental loss and of accidental deterioration of the Goods shall pass to the buyer upon handover of the Goods at the latest. In the case of that the Goods sold are to be delivered to a different destination according to buyer's instructions, however, the risk of accidental loss and of accidental deterioration of the Goods, and the risk of delay, shall already to pass to buyer upon delivery of the Goods to the forwarding agent, the carrier, or the person or institution otherwise designated to dispatch the shipment. To the extent that we have agreed that formal acceptance of the Goods (Abnahme under German law) is required, the risk shall pass upon formal acceptance of the Goods. In all other respects, the provisions of the laws on contracts for work and services shall apply mutatis mutandis to any required formal acceptance. If buyer defaults on acceptance, handover of the Goods or formal acceptance shall be deemed to have occurred.

(c) If the buyer defaults on acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to claim compensation for the resulting damage including additional expenses (e.g. storage costs). For this we shall charge a lump-sum compensation amounting to 0.5 % per calendar week of the value of the Goods to be delivered, but not exceeding a maximum total amount of 5 % of the value of the Goods to be delivered, commencing with the delivery deadline or – in the absence of a deadline – with the notification that the Goods are ready for dispatch.

This shall be without prejudice to the right to prove higher losses/damage and/or to our statutory claims (in particular reimbursement of additional expenses, reasonable indemnification, termination); however, the lump sum shall be credited against more extensive monetary claims. The buyer shall be entitled to prove that we have suffered no losses/damage at all or significantly lesser losses/damage than the aforementioned lump sum.

(d) In case of failure to perform formal acceptance, we may exercise our rights under statutory law. If we raise a claim for damages, they shall amount to 15 % of the purchase price. Such damages shall be adjusted to a higher or lower amount if we prove higher loss/damage or if the buyer proves that lesser losses/damage or no losses/damage at all occurred.

Section 6 Prices and shipping costs

(1) All prices quoted in our online store are gross prices inclusive of value-added tax and exclusive of any shipping costs.

(2) The shipping costs are shown in the prices listed in our online store. The price, inclusive of VAT, if applicable, and shipping costs, if any, (see in particular section 1 (5)) will be displayed in the order form before you submit the order.

(3) The following applies to consumers: If you effectively cancel your contractual declaration as a consumer under section 3, you may, subject to the requirements of statutory law, demand reimbursement of any costs you already paid for shipment (delivery shipment costs) (for other consequences of cancellation, see section 3 para. (3)).

(4) In the case of contracts with an agreed delivery period of more than 4 months, we reserve the right to increase prices in accordance with any cost changes occurring after such period, in particular due to collective wage agreements or changes in the prices of materials of our suppliers. In the same way and to the same extent, we shall be obliged to reduce the price without undue delay in the event of cost reductions. Cost increases shall be netted with cost reductions.

Section 7 Terms of payment

(1) The purchase price and the shipping costs must be paid within two (2) weeks of receipt of our invoice at the latest. The invoice will be sent to you exclusively to the email address you provided when placing the order; your consent is hereby deemed granted.

(2) The following payment methods are generally available to you in our store:

Advance payment, SEPA direct debit, payment via Klarna, PayPal, credit card via PayPal, direct debit via PayPal. In the case of orders placed by customers whose place of residence or place of business is abroad, or in the case of legitimate evidence that there is a risk that the buyer will fail to pay, we reserve the right to deliver only after receipt of the purchase price plus shipping costs (reservation of advance payment). If we exercise our reservation of advance payment, we shall inform you without undue delay. In this case, the delivery period shall begin with payment of the purchase price and the shipping costs.

(3) Upon expiry of the above payment period, the buyer shall be in default. During the period of default, the then applicable legal default interest rate shall be paid on the purchase price. We reserve the right to claim additional losses/damage caused by default.

The following applies to entrepreneurs: Vis-à-vis merchants, our claim to the commercial interest after the due date (kaufmännischer Fälligkeitszins, section 353 of the German Commercial Code (“HGB”)) shall not be affected.

(4) The buyer shall have the right to set-off or to withhold payment only to the extent that buyer’s claim is res judicata or undisputed. In the event of defects in the delivered Goods, the buyer's counter-rights, in particular pursuant to section 10 para. (7) sentence (2) of these GTCS, shall not be affected.

(5) If it becomes apparent after the conclusion of the contract (e.g. from a petition to open insolvency proceedings) that our claim to the purchase price is jeopardized by the buyer's inability to pay, we shall be entitled to refuse performance and – where applicable after setting a deadline – to rescind the contract in accordance with the statutory provisions (section 321 of the German Civil Code (“BGB”)). In the case of contracts for the manufacture of non-fungible goods (manufacture to specification), we may rescind with contract with immediate effect; the provisions of law relating to the dispensability of setting a deadline shall not be affected.

Section 8 Reservation of title vis-à-vis consumers

The following applies to consumers: The delivered goods shall remain our property until full payment of the purchase price.

Section 9 Reservation of title vis-à-vis entrepreneurs

The following applies to entrepreneurs:

(1) We reserve all title to the sold Goods until all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full and without deduction.

(2) Goods subject to our retention of title (“Reserved Goods”) may neither be pledged to a third party nor be assigned as security until the secured claims have been paid in full and without deduction. The buyer must notify us in writing without undue delay if a petition to open insolvency proceedings is filed or if a third party attaches or seizes the Goods we own.

(3) In the event of breach of contract by the buyer, in particular in the event of non-payment of the purchase price due payable, we shall be entitled to rescind the contract in accordance with the provisions of law and/or to demand that the Goods be returned under our retained title. Requesting that the Goods be returned shall not at the same time imply a notice of rescission; rather, we are entitled to request only the return of the goods and to reserve the right to rescind the contract. If the buyer does not pay the purchase price due, we may only assert said rights if we granted the buyer a reasonable grace period for payment which the buyer failed to meet or if setting such a grace period is dispensable under the provisions of law..

(4) Until further notice according to para. (c) below, the buyer shall be entitled to resell and/or process the Reserved Goods in the ordinary course of business. In this case, the following provisions shall apply in addition

(a) The reservation of title shall extend to the products resulting from the processing, mixing or combining of our Goods at their full value, we being considered to be the manufacturer. If, when processing, mixing or combining our Goods with goods of third parties, ownership of such third parties survives, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined Goods. Moreover, the same shall apply to the resulting product as to the delivered Reserved Goods.

(b) As security, the buyer hereby assigns to us in advance all and any claims against third parties, in full or in the amount of our possible co-ownership share, arising from the resale of the Goods or the resulting product in accordance with the above paragraph. We hereby accept the assignment. The obligations of the buyer laid down in paragraph (2) shall also apply to the assigned claims.

(c) Besides us, the buyer shall remain authorized to collect the claim. We agree to not to collect the claim provided the buyer meets its payment obligations towards us, its ability to pay is not impaired, and we do not assert our reserved title by exercising a right pursuant to paragraph (3). In the event of the foregoing, however, we may require that the buyer inform us of the assigned claims and their debtors, provide us with all the information required for the collection of the sums due, hand over the relevant documents and notify the debtors (third parties) of the assignment. In addition, in this case, we shall be entitled to revoke the buyer's authorisation to resell and further process the Reserved Goods.

(d) In the event the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the buyer's request.

Section 10 Claims of the buyer arising from defects

(1) The provisions of law shall apply to the rights of the buyer in the event of material defects and defects in title (including but not limited to wrong and short delivery, improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the statutory special provisions relating to the final delivery of the unprocessed goods to a consumer shall not be affected, even if such consumer has further processed them (recourse to supplier, section 478 BGB). Recourse-to-supplier claims are excluded if the defective goods were further processed by the buyer or another contractor, for example by installing them into another product.

(2) Our liability for defects is based primarily on the agreed properties/quality of the Goods. We reserve the right to make technical changes for the purpose of improving their function. Variations in quality, colour, design and specification of Goods of the same value, if such variations are common in the industry, cannot be objected to.

(3) Insofar as a certain property or quality has not been agreed, it must be establised under the provisions of statutory law whether there is a defect or not (section 434 para. (1) sentences (2) and (3) BGB). However, we accept no liability whatsoever for any public statements made by any third party (for example, advertising statements) of which the buyer has not averted us that they were crucial for buyer’s decision to make the purchase

(4) We shall generally not be liable for any defects the buyer has knowledge of at the time of the conclusion of the contract or has knowledge of at the time of conclusion of the contract due to buyer’s gross negligence (section 442 BGB).

(5) The following applies to entrepreneurs: Furthermore, claims of the buyer based on defects are subject to the condition that the buyer has complied with its legal obligations to inspect the Goods and give notice of a defect immediately on receipt of the Goods (sections 377, 381 HGB).

(6) If the delivered item is defective, we may choose whether to effect subsequent performance (Nacherfüllung under German law) by remedying the defect (Nachbesserung under German law) or by delivering a replacement (Ersatzlieferung under German law). Our right to refuse subsequent performance if the legal requirements are satisfied shall not be affected.

(7) We are entitled to make the subsequent performance owed conditional on full payment by buyer of the due purchase price due. However, the buyer is entitled to retain a part of the purchase price which is reasonable in relation to the defect.

(8) The buyer shall give us the time and opportunity required for the subsequent performance owed, notably buyer shall hand over the allegedly defective goods for inspection purposes. In the case of a replacement delivery, the buyer shall return the defective item to us in accordance with the provisions of law. Subsequent performance shall include neither removal of the defective item nor reinstallation if we were not originally obliged to install it.

(9) The expenses necessary for inspection and subsequent performance, in particular transport, travel, labour and material costs, shall be borne by us if there is indeed a defect. Otherwise, we shall be entitled to demand reimbursement from the buyer of the costs incurred as a result of the unjustified defect removal request (in particular inspection and transport costs), unless it was not reasonably possible for the buyer to discern the lack of a defect.

(10) In urgent cases, e.g. if operational safety is in danger or to prevent disproportionate damage, the buyer shall have the right to remedy the defect itself or to claim from us reimbursement of the expenses that are objectively necessary for remedy. The buyer must notify us of such own remedy without undue delay, if possible in advance. The buyer shall have no right to perform own remedy if we would be entitled to refuse corresponding subsequent performance under the provisions of statutory law.

(11) If subsequent performance fails or if a reasonable deadline set by the buyer for subsequent performance has expired without subsequent performance having been performed, or if such deadline is dispensable according to the provisions of law, the buyer may terminate the purchase contract or reduce the purchase price. However, the buyer shall have no right to terminate if the defect is insubstantial.

(12) Even in the case of defects, the buyer shall only be entitled to claim damages or reimbursement of futile expenses under the conditions of section 11; otherwise such claims are excluded.

Section 11 Other liability

(1) Unless provided otherwise in these GTCS, including the provisions herein-below, we shall be liable for breach of contractual and non-contractual obligations under the provisions of law.

(2) We shall be liable for damages – whatever of the legal reason – within the limits of fault-based liability only in cases of intent and gross negligence. In case of ordinary negligence, we shall be liable under a milder standard of liability in accordance with the provisions of law (for example, the standard of care applied in our own affairs, minor breach of duty), only

a) for losses/damage resulting from injury to life, body or health,

b) for losses/damage resulting from a breach of an essential contractual obligation (obligation the fulfilment of which is indispensable for the proper performance of the contract and on the observance of which the contract partner regularly relies and may rely); in this case, however, our liability is limited to compensation of the foreseeable, typical loss/damage.

(3) The limitations of liability arising from paragraph (2) shall apply also in the event of breach of an obligation of or for the benefit of a person whose negligence or intent we are responsible for under the provisions of law. They shall not apply if we maliciously concealed a defect or gave a guarantee for properties/quality of the Goods and they shall not apply to claims of the buyer under the German Product Liability Act (Produkthaftungsgesetz).

(4) The buyer may rescind or terminate the contract on the grounds of breach of an obligation that does not consist of a defect only if we are responsible for such breach. The buyer shall have no right to freely terminate the contract (notably under sections 651, 649 BGB). In all other respects, the requirements and consequences of law shall apply.

Section 12 Limitation period

(1) The general limitation period is as follows:

(a) The following applies to consumers: The limitation period for claims for defects under statutory law is two years and begins on the date of delivery of the Goods.

(b) The following applies to entrepreneurs: Contrary to section 438 para. (1) point (3) BGB, the general limitation period for claims based on material defects and defects in title shall be one year from the date of delivery. If formal acceptance has been agreed, the limitation period shall begin on the date of formal acceptance.

(2) If, however, the Goods are a building or an item which is used for a building in accordance with its customary use and causes the defectiveness of such building (construction material), the limitation period shall be 5 years from the date of delivery in accordance with the provisions of law (section 438 para. (1) point (2) BGB). Further special provisions of law relating to the limitation period (notably section 438 para. (1) point (1), para. (3), sections 444, 445b BGB) shall not be affected.

(3) The above limitation periods of the law on contracts for the sale of goods shall apply also to contractual and non-contractual claims for damages of the Buyer which are based on a defect of the Goods, unless the application of the regular limitation period of law (sections 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, damages claims of the Buyer under section 8 para. (2) sentence (1) and sentence (2)(a) and/or under the Product Liability Act shall become time-barred solely in accordance with the limitation periods of law.

Section 13 Copyrights

We hold the copyrights to all images, pictures, films and texts published in our online store. Use of the pictures, film and texts is not permitted without our express prior consent.

Section 14 Choice of law and jurisdiction

(1) The following applies to consumers:

(a) These GTCS are governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). If you have placed the order as a consumer and have your habitual residence in another country at the time of placing your order, the application of any mandatory provisions of the laws of such country shall not be affected by the choice of law made in sentence (1).

(b) Dispute resolution: The EU Commission has created an Internet platform for online dispute resolution. The platform serves as a contact point for the out-of-court settlement of disputes regarding contractual obligations arising from online purchase contracts. Please click on the following link for further information:  http://ec.europa.eu/consumers/odr. We are neither willing nor obliged to participate in a dispute resolution procedure before a consumer arbitration board.

(2) The following applies to entrepreneurs:

(a) These GTCS and the contractual relationship between the buyer and us shall be governed by the laws 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 (CISG).

(b) If the buyer is a merchant within the meaning of the German Commercial Code, a legal person under public law or a special fund under public law, the courts at the place of our registered office in 48341 Altenberg, Germany, shall have exclusive – and international – jurisdiction over all disputes arising directly or indirectly from the contractual relationship. The same shall apply if the buyer is an entrepreneur within the meaning of section 14 BGB. However, in all cases, we shall also be entitled to bring an action at the place of performance of the delivery obligation as defined in these GTCS or in a prevailing individual agreement, or at the buyer's general place of jurisdiction. Prevailing statutory provisions, in particular relating to exclusive jurisdiction, shall not be affected.

As at: April 2021