GENERAL TERMS AND CONDITIONS
1. GENERAL, SCOPE.
1.1. These general terms and conditions of sale and delivery of IKO Sportartikel Handels GmbH (hereinafter "IKO") shall apply exclusively. IKO will not accept terms and conditions of business of a buyer which differ from, or are inconsistent with, these terms and conditions of sale and delivery, unless IKO explicitly agreed to the validity of such other terms and conditions in writing. This approval requirement shall apply also where IKO is aware of the buyer's general terms and conditions of business and makes unconditional delivery to the buyer regardless of such general terms and conditions.
1.2. All agreements between IKO and the buyer must be made in writing. In respect of the contents and interpretation of contracts, or any changes or amendments thereto, or any individual understanding, a written agreement or the relevant written confirmation from IKO shall be authoritative.
1.3. Likewise, all statements and notifications of legal relevance required to be made by the buyer vis-à-vis IKO after conclusion of the contract (e.g., for fixing periods, or notification of defects, withdrawal or reductions) must be made in writing to be effective.
1.4. These terms and conditions for sale and delivery shall be binding only upon entrepreneurs (cp. Sec. 14 of the German Civil Code (BGB)) as well as on legal persons under public law and special funds under public law (cp. Sec. 310 para. 1 BGB). 1.5. These terms and conditions of sale and delivery shall apply also to all future contracts with the buyer.
2. CONTRACT CONCLUSION, SPECIFICATIONS, CHANGES.
2.1. All quotations by IKO are subject to change.
2.2. The buyer's order for goods shall be considered a binding offer of contract. Unless otherwise stated in the order, IKO may accept such offer of contract within 14 days.
2.3. IKO may accept offers either in writing (e.g. by confirmation of order) or by delivering the goods.
2.4. The execution of the order, in particular the quality of the goods to be delivered by IKO, will be determined exclusively by the specifications of IKO. IKO may at any time make changes to the execution of the order or to the goods where such changes
2.4.1. are required to comply with any requirement imposed by law or public authority and
2.4.2. bring about no material impairment of quality or function and are reasonably acceptable to the buyer.
3. PRICES, TERMS OF PAYMENT, DEFAULT IN PAYMENT.
3.1. Unless otherwise agreed, the prices stated by IKO are ex works Raubling, Germany (EXW Raubling, INCOTERMS 2010). 3.2. The buyer will be charged separately for packaging. The same shall apply to any customs duties, fees, taxes, or any other public charges.
3.3. If the goods are shipped by IKO at the buyer's request (cp. Item 5.1.), the buyer shall bear all cost of transport as well as the cost of any transport insurance requested by the buyer. For the transport of bicycles, IKO will charge a lump sum of EUR 21.50 per piece. For all other goods, cost of transport will be charged as lump sum, based on an item's weight and graduated as follows:
3.3.1. up to 5 kg EUR 8.00
3.3.2. more than 5 kg and up to 10 kg EUR 10.00
3.3.3. more than 10 kg and up to 20 kg EUR 15.00
3.3.4. more than 20 kg up to EUR 50.00 If the buyer wishes a transport insurance, the buyer will inform IKO accordingly in due time before shipment.
3.4. IKO prices are exclusive of statutory turnover tax, as applicable from time to time. The turnover tax will be indicated separately in each invoice.
3.5. Invoices shall be due for payment upon receipt. If the buyer fails to settle an invoice within 30 days of receipt, the buyer will be considered in default even without prior reminder. Payment will be considered made in due time if the relevant amount is received by IKO, or credited to the account of IKO, in due time. Default interest of 8% will be charged for the duration of default. IKO explicitly reserves the right to raise further claims for damages caused by default.
3.6. IKO will make delivery to new customers only against advance payment or subject to cash on delivery. An exception to this general rule may be made only if the buyer has provided proper proof of solvency.
3.7. Discounts are subject to special written agreement.
3.8. A discount of 2% will be given if the buyer authorises IKO to debit the amount due directly from the buyer's account.
3.9. If, after conclusion of the contract, it appears that the claim for payment of the purchase price is jeopardised by a lack of ability to perform on the part of the buyer (e.g. petition for the opening of insolvency proceedings), IKO is entitled, after granting a period for performance, if applicable, to withdraw from the contract in accordance with the statutory provisions on refusal of performance (cp. Sec. 323 para. 1 BGB). The foregoing shall not affect the statutory provisions regarding a dispensability of periods for performance.
3.10. If IKO withdraws from the contract, IKO will credit to the buyer the purchase price, based on the original invoice value and graduated as follows:
3.10.1. 1 - 45 days 85%
3.10.2. 46-90 days 75%
3.10.3. 91-150 days 65%
3.10.4. more than 150 days 50%. The buyer may provide proof that no damage was suffered, or that significantly less damage was suffered.
4. INSTALMENTS, TIME FOR DELIVERY, DEFAULT IN DELIVERY.
4.1. IKO may make delivery by instalments provided that such delivery is reasonably acceptable to the buyer. In case of delivery by instalments, IKO may demand payment in accordance with the share of the total value of the order represented by such instalment. IKO may require the buyer to accept delivery of an instalment which is per se complete, as defined in sentence 1 hereof.
4.2. Times for performance or delivery indicated by IKO are subject to change, unless IKO explicitly confirmed to be bound by such times for performance or delivery in writing. A period for performance begins to run only when all technical details necessary for performance have been clarified by the buyer and IKO and/or when the buyer has provided all other assistance. The times for performance or delivery will be postponed accordingly in case of delay in the buyer's performance of a duty under the preceding sentence.
4.3. If IKO is unable to meet binding times for performance or delivery for reasons beyond its control (e.g. impossible delivery), IKO will inform the buyer accordingly without undue delay, indicating the anticipated new time for performance or delivery. If performance is impossible during the new time for performance or delivery, IKO is entitled to withdraw from the contract, in whole or in part; any consideration already given by such time will be refunded to the extent given without undue delay. Performance is impossible, in particular, if the supplier of IKO fails to make delivery to IKO in time.
4.4. The occurrence of default in delivery is subject to the relevant provisions of law, but a reminder from the buyer is required in any case.
5. DELIVERY, PASSING OF RISK, ACCEPTANCE, DEFAULT OF ACCEPTANCE
5.1. Delivery is ex works Raubling, Germany, which is also the place of performance. If requested by the buyer, the goods will be shipped to a different destination at the buyer's expense (sale by delivery, Versendungskauf). Unless otherwise agreed, IKO may choose the means of shipment at its own discretion.
5.2. The risk in the goods in respect of accidental loss or damage shall pass to the buyer ex works Raubling (EXW Raubling, INCOTERMS 2010). The goods shall be considered consigned also when the buyer is in default of acceptance.
5.3. In case of default of acceptance by the buyer or delay in delivery by IKO for other reasons within the buyer's responsibility, IKO will be entitled to claim the damages incurred as a result of such default or delay including additional expenses (e. g. cost of storage). IKO will charge a lump sum of EUR 2.50 per calendar day from the date of delivery or the notice that the goods are ready for shipment, as the case may be. The buyer may provide proof that IKO suffered no damage at all, or that the damage suffered by IKO was significantly smaller in amount than the lump sum indicated above. IKO explicitly reserves the right to claim further damages.
6. WARRANTY, LIMITATION.
6.1. IKO warrants only compliance with the specifications stipulated in accordance with Item 2.5. In particular, IKO will give no warranty as to the goods' fitness for a specific use or purpose or their marketability.
6.2. The buyer will be entitled to any rights under a warranty only upon proper fulfilment of the buyer's duties of inspection and notification of defects (Sec. 377 of the German Commercial Code (HGB)). IKO shall be notified of obvious defects in writing without undue delay, but in any case no later than 7 days from receipt of the goods. Hidden defects shall be notified in writing upon their discovery without undue delay. If the buyer fails to give proper notice of defects, IKO will be under no liability for the relevant defects.
6.3. In case of faulty delivery, IKO will either remedy the defect or supply an item free of defects if the buyer has duly paid a reasonable part of the purchase price when due, taking the defect into account. The buyer shall provide assistance to IKO in respect of identification of defects and cure. In addition the buyer will allow access to the records revealing the particulars of the defect without undue delay.
6.4. In the event that IKO is not willing or unable to cure, in particular in case of unreasonable delay or failure for reasons within the responsibility of IKO, the buyer may withdraw from the contract or claim a reduction of the purchase price pursuant to the relevant statutory provisions. Cure shall be considered failed only after 2 unsuccessful attempts. The liability of IKO shall otherwise be subject to Item 8.
6.5. Goods may be returned by the buyer only in their original packaging.
6.6. The period of limitation for warranty claims of the buyer shall be 1 year from the passing of risk.
7. RETENTION OF TITLE.
7.1. The title in the goods will be retained by IKO until receipt of payment of all amounts due under the respective contract and settlement of all other claims against the buyer resulting from the business relationship.
7.2. The buyer shall handle with due care all goods subject to retention of title. Furthermore, the buyer shall insure such goods against loss, damage from fire or flood, theft, and natural hazards at the buyer's own expense, with coverage at least equal to the amount of the purchase price.
7.3. In case of withdrawal from the contract by IKO, the buyer will be obliged to surrender the goods to IKO.
7.4. In the event that a third party arranges for the pledge of any goods subject to retention of title or otherwise impairs the title held by IKO, the buyer will inform IKO in writing without undue delay to enable IKO to resort to legal remedies for the protection of title, which means, in particular, bringing action under Sec. 771 of the German Code of Civil Procedure (ZPO). Where the third party is unable to refund IKO court cost and other costs relating to those means of defence, the buyer shall be liable towards IKO for any cost not paid by the third party.
7.5. Except while in arrears with payments, the buyer is entitled to resell goods subject to retention of title in the ordinary course of business against immediate payment or subject to retention of title. The buyer is not entitled to pledge or transfer by way of security any goods delivered subject to retention of title.
7.6. The buyer hereby already transfers and assigns to IKO all claims arising from the resale of any goods subject to retention of title to the buyer's own customers. IKO accepts the assignment. IKO undertakes to release all securities to which it is entitled in goods, products, or claims of the buyer at the buyer's request, where the realisation value of the securities exceeds the claims to be secured by more than 10%. The buyer, subject to revocation, is entitled to collect the claims assigned.
7.7. IKO shall not collect the claims assigned under Item 7.6. here of unless the buyer fails to meet the buyer's payment obligations or a petition is filed for the opening of insolvency proceedings against the assets of the buyer.
7.8. If the buyer is in arrears with payments, or if a petition is filed for the opening of insolvency proceedings against the buyer's assets, IKO may demand information from the buyer as to the claims assigned and the relevant debtors and require the buyer to indicate all details necessary for the collection thereof, to provide records, and to inform the buyer's debtors of such assignment. If necessary, IKO may access the buyer's premises during the ordinary hours of business.
8. LIMITATION OF LIABILIY, EXEMPTION.
8.1. Any proposal, advice or information given by IKO is provided on a best knowledge basis. In other respects reference is made to Item8.3. above.
8.2. IKO will maintain all records provided by the buyer and all other property of the buyer exercising the due care IKO usually exercises also in its own matters.
8.3. The liability of IKO shall be governed by the following provisions:
8.3.1. IKO shall be liable without limitation for intent and gross negligence.
8.3.2. For slight negligence IKO shall be liable only in case of violation of a material duty which is essential to the proper execution of the contract (contract) and on the fulfilment of which the buyer may reasonably rely. In such cases the liability of IKO shall be limited to foreseeable damage which is typical of that kind of contract.
8.3.3. A limitation or exclusion of liability under this Item 8.3. shall not apply to claims arising from the German Product Liability Act (ProdHaftG) and to damages due to injury to life, body or health.
8.3.4. Where a liability of IKO is excluded or limited, such exclusion or limitation shall be valid also for the personal liability of its bodies, employees, agents, representatives and vicarious agents.
8.3.5. The buyer shall exempt IKO, and its bodies, employees, agents, representatives, and vicarious agents on first request from any claims of a third party incurred by IKO and/or the persons indicated as a result of an intentional or negligent breach of duty by the buyer. The buyer will refund IKO and the persons indicated all costs reasonably incurred and required for legal defence.
9. PROPERTY RIGHTS.
9.1. IKO shall be liable for an infringement of third party property rights by the goods sold or, if applicable, goods manufactured according to the buyer's specifications only as provided by Item 8 above. This shall apply also in cases where IKO was involved in the development of the goods.
9.2. The buyer shall exempt IKO on first request from all claims raised against IKO by a third party for infringement of property rights. The liability of IKO is otherwise governed by Item 8.
10. ASSIGNMENT, RIGHT OF RETENTION, SET-OFF
10.1. The buyer is not entitled to transfer and assign its claims against IKO. The foregoing shall not be valid where Sec. 354a HGB applies.
10.2. The buyer may set off only where its counterclaims are undisputed and/or have been established by valid and final judgment.
10.3. The same shall apply to any rights of retention or refusal of performance pursuant to Sections 320, 273 BGB. Such rights may only be exercised by the buyer if resulting from the same contractual relationship. In an on-going business relationship every single order shall constitute a separate contract.
11. PLACE OF PERFORMANCE, JURISDICTION, GOVERNING LAW.
11.1. If a provision or section of these general terms and conditions of sale and delivery is deemed to be or becomes invalid, the validity of the remaining provisions shall not be affected thereby. The invalid provision shall be replaced by a valid understanding which comes closest to the purpose of the contract and the intent of the parties.
11.2. The courts of Rosenheim, Germany, shall have exclusive jurisdiction. IKO is nevertheless entitled to bring action against the buyer also at the buyer's general place of jurisdiction.
11.3. The laws of the Federal Republic of Germany shall apply exclusively. The provisions of German international private law and the UN Convention on Contracts for the International Sale of Goods (UN- CISG) shall not apply.