These general terms are applied by Smart Urban Mobility B.V., a private company with limited liability under Dutch law with its head office in Amsterdam, registered with the Chamber of Commerce in Amsterdam under no. 50871684. VAT NL823986391B07
Status 7/2022
Valid at the same time for all deliveries and services of the following companies: Kalkhoff Bikes GmbH, Focus Bikes GmbH.
These terms and conditions are part of all our offers and contracts for deliveries and services with entrepreneurs, also in current or future business relations. Other agreements, in particular terms and conditions of our customers, as well as collateral agreements require our written consent to become effective.
1. Validity
1.1 These terms and conditions shall apply exclusively and only vis-à-vis entrepreneurs, legal entities under public law and special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). We shall recognise terms and conditions of the customer that are contrary to or deviate from our terms and conditions only if we expressly agree to their validity in writing.
1.2 We deliver the ordered goods exclusively on the basis of our following terms of delivery and payment. Deviating agreements, including contradictory terms and conditions of the customer, shall only apply after written confirmation by us.
1.3 Our terms and conditions shall apply to all orders, including all ancillary and replacement services, as well as to all future deliveries, unless the customer expressly objects in writing within 5 calendar days after the first order. These terms and conditions shall also apply to all future transactions with the customer, insofar as these are legal transactions of a related nature.
1.4 Legally relevant declarations and notifications by the customer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further proof, in particular in the case of doubts about the legitimacy of the declarant, remain unaffected.
2. Offer, conclusion of contract and documents
2.1 Our offers and cost estimates are non-binding. If an order has been accepted by us, we are only obliged to provide such deliveries and/or services that are expressly specified in our order acceptance.
2.2 Contracts with us shall only come into existence when we have accepted in writing orders received by us, have confirmed in writing declarations of acceptance received by us, or have delivered the purchased items or performed the purchased services. The same applies to additions or amendments to contracts.
2.3 All information provided to the customer (e.g. technical descriptions, drawings, illustrations, colour, dimension and weight specifications) is based on standards customary in the industry. We are at all times entitled to make changes to this information and to the delivery items themselves - e.g. changes in design or shape, colour deviations - insofar as the deviation is reasonable for the customer. In the case of standardised goods, the tolerances permitted on standard sheets shall apply. We reserve the right, in the event of any delivery difficulties on the part of the component manufacturers, to switch to manufacturers of equivalent quality in favour of the ability to deliver.
2.4 If a product is offered second hand, then this product will usually have minor defects; the customer’s expectations are therefore reduced to a product with small defects or mistakes, which however shall not limited the useability significantly. If a product is offered as third hand, then the product may also have more significant defects, that may potentially require repairs or limit the useability of the product. The customer acknowledges this. Relevant defects and mistakes are already discounted for in the sales price and therefore do not entitle the customer to any warranty claims.
2.5 We reserve the property rights, copyrights and all other industrial property rights with regard to all documents made available to the customer. Without our prior consent, these documents may not be used in any way for non-contractual purposes, in particular they may not be reproduced or made accessible to third parties. They must be returned to us immediately upon request.
3. Dates and deadlines
3.1 Deadlines are extended appropriately if the contract with our customer is amended or supplemented or if our customer fails to meet its obligations to cooperate in a timely manner.
3.2 Delivery periods are non-binding. Kalkhoff will endeavour to meet requested delivery dates. Kalkhoff is entitled to adjust delivery dates if necessary (e.g. in the event of delays in deliveries from suppliers). Force majeure and other exceptional circumstances, such as in particular industrial disputes, pandemics, cyber attacks, sovereign measures and traffic disruptions, irrespective of whether they occur at Kalkhoff’s premises or those of Kalkhoff’s suppliers, release us either for the duration of their effects or, insofar as they result in the permanent impossibility of performance, altogether from the obligation to deliver/perform. Any agreed contractual penalty shall not be deemed forfeited under these circumstances.
4. Prices
4.1 Our prices are net prices in Euro ex our delivery works, excluding costs for customary packaging, transport costs and other ancillary costs, plus value added tax at the respective statutory rate on the date of delivery. Costs for packaging and replacement packaging, e.g. for a repair device delivered unpacked, shall be charged at cost price.
4.2 In the event of deviations from our original offer, in particular as a result of increases in wages, material prices or energy prices, we shall draw attention to these without delay. The prices valid on the day of the order shall apply.
4.3 If prices or other conditions have changed, this will be announced in the written order confirmation. If no objection is made within 8 working days from the date of the order confirmation, the customer's legally binding agreement to the price change shall be assumed and delivery shall be made at this price. If there are more than 4 months between the acceptance of the order and the agreed delivery date, we shall be entitled, even after conclusion of the contract, to adjust the prices appropriately in the event of increases in wages, material prices or energy prices. If, in the case of contracts which provide for delivery/service only for a period which is more than four months after the conclusion of the contract, cost increases occur for us during the period from the conclusion of the contract to the performance of the contract, we shall be entitled to demand a correspondingly increased price.
4.4 We reserve the right to make a subsequent charge in the event of non-fulfilment of the contract turnover on the basis of the turnover actually made.
5. Payments
5.1 All payments shall be made to us without any deduction either upon handover of the delivery item/service to the customer or within thirty days of receipt of our notification of readiness and/or our invoice, whichever is earliest.
5.2 If the customer defaults on a payment, all other claims shall become due for payment immediately, without the need for a separate notice of default.
5.3 If payment by instalments has been agreed and the customer defaults on two consecutive instalments in whole or in part, the entire remaining amount shall become due immediately. The customer is in default at the latest with the reminder. If a calendar date is determined for the performance, the customer shall be in default immediately if he does not pay on time, also without a reminder.
5.4 We accept bills of exchange and cheques only after prior written agreement and only subject to their discountability. All discount charges and other ancillary costs shall be borne by the customer and shall be reimbursed to us immediately. A credit note for bills of exchange or cheque amounts shall only be issued when their countervalue is unconditionally at our disposal.
5.5 We are entitled to charge our customers interest from the due date at a rate of 9 percentage points p.a. above the base interest rate applicable at the time in accordance with § 247 BGB (German Civil Code) plus any commissions and costs. We expressly reserve the right to claim higher damages.
5.6 We are entitled to demand a security of 50 % of the order amount from the customer for placed orders, in particular if no or no sufficient credit limit is granted on the part of the credit default insurance or the credit limit has been cancelled or the customer loses his del credere protection (e.g. exclusion from a purchasing cooperative).
5.7 Cancellations/withdrawals of orders by the customer are generally not permitted and result in a charge of 100% of the order value. In the event of a delay in performance, the customer shall only be entitled to withdraw from the contract if, after expiry of the delivery period, he has sent us a written reminder setting a reasonable grace period and the delivery has then not been made within two weeks of receipt of the reminder letter by us. However, there shall be no right of withdrawal in the event of delays in delivery which are due to delays in deliveries from our suppliers.
5.8 For deliveries and services to customers abroad, it is expressly agreed that all costs of legal action by the supplier in the event of default of payment by the customer, both judicial and extrajudicial, shall be borne by the customer. Unless expressly agreed otherwise, customers abroad must always pay in advance.
5.9 If the customer has given the creditor a direct debit authorisation authorising the creditor to collect payments from his account by means of a direct debit, he shall at the same time instruct the bank to honour the direct debits drawn on his account by the creditor. With the direct debit authorisation, the customer authorises his bank to honour the payee's direct debits. This direct debit authorisation shall be deemed a SEPA direct debit mandate. Sentences 1 to 3 shall also apply to direct debit authorisations issued by the customer prior to the entry into force of these Terms and Conditions.
5.10 In the event of an authorised payment based on a SEPA core direct debit, the customer may, within a period of eight weeks from the date of the debit entry on his account, request the bank to refund the debited direct debit amount without stating reasons. Any payment claims of the payee against the customer shall remain unaffected by this.
6. Transfer of rights, rights of retention and resale
6.1 The customer is not entitled to assign claims against us to third parties without our written consent.
6.2 The customer may only offset counterclaims to the extent that these counterclaims are undisputed or have been legally established.
6.3 The exercise of a right of retention by the customer due to claims based on another contractual relationship is excluded. Insofar as the customer is entitled to exercise a right of retention, this may only be exercised to the extent that the amount retained does not exceed the value of the parts of the delivery complained of as defective; § 320 para. 2 BGB remains unaffected.
6.4 If the customer is more than two weeks in arrears with the payment of an invoice, if an application for the opening of insolvency proceedings against the customer's assets has been filed, if the customer has initiated out-of-court proceedings for the settlement of debts, or if the customer has suspended payments, or if any other circumstances become known which substantially reduce the creditworthiness of the customer and as a result of which the performance of the consideration owed by the customer appears to be at risk, we shall be entitled, after setting a deadline of at least one week, to demand security for outstanding deliveries by way of advance payment or by way of a bank guarantee of the customer's choice and to refuse our performance until the security has been provided. After fruitless expiry of a reasonable grace period, we are further entitled to withdraw from the contract and/or to demand compensation for damages. Furthermore, in this case we may revoke the right of resale together with the collection authorisation pursuant to clauses (8.3) and (8.5) as well as the right to process, combine and mix already delivered goods or services pursuant to clause (8.2) and demand the return of the goods or services.
6.5 Sales are only permitted to authorised Partners and end users.
6.6 It is recommended that the customer generally orientates himself on the non-binding price recommendations, also and especially in the case of a sale via the Internet. In addition, it is also recommended that price reductions for sales at the end of the season are not carried out before August 1 of the following year in view of the value of the brand.
6.7 If a Partner has been assigned an exclusive sales territory, the Partner shall refrain from active distribution outside this contractual territory in countries in which a selective distribution model exists.
6.8 If a customer, despite repeated requests, does not accept products which we have produced for him under a label or brand provided by him or another business mark provided by him (trademark or own brand of the customer) after the expiry of the agreed delivery date, we are entitled, after a corresponding warning in a final request for taking the products, to dispose of the products; the provided trademark or brand of the customer does not have to be removed and may therefore be used by us for the disposal of the goods produced as agreed.
7. Place of performance/transfer of risk
7.1 The place of performance for all deliveries and services to be provided by us shall be Emstek.
7.2 We are entitled to make partial deliveries and provide partial services, insofar as this is reasonable for the customer.
7.3 The risk of all deliveries and services rendered by us shall pass to the customer when the goods or service leave our works (EXW Cloppenburg INCOTERMS 2020), also if we have agreed to provide further services (e.g. transport or transfer). The risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the latest when the goods leave our warehouse. This applies irrespective of whether the goods are dispatched from the place of performance and who bears the freight costs. Unless otherwise agreed, we shall be entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) ourselves. If the dispatch of the goods or service from our works is delayed for reasons for which the customer is responsible, or if the customer is otherwise in default of acceptance, the risk shall pass to the customer.
7.4 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). For this purpose, we shall charge a lump-sum compensation in the amount of EUR 50.00 per calendar day, beginning with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for shipment. The proof of a higher damage and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump-sum compensation shall be credited against further monetary claims. The customer shall be entitled to prove that we have not incurred any damage at all or that the damage is significantly less than the aforementioned lump-sum compensation.
7.5 If we execute a production order for a precisely defined quantity of bicycles or other products and the customer does not accept the goods in due time, we shall be entitled to set the customer a deadline of 14 days for acceptance. This deadline may be combined with the notice that in the event of non-acceptance the goods may be sold to third parties or otherwise disposed of by us. Any shortfall in proceeds shall be reimbursed by the customer.
7.6 We are entitled to request a bank report from the customer's bank in the context of enquiring about the customer's creditworthiness. A separate consent of the customer is not required.
7.7 If the customer does not accept the goods, we are entitled to withdraw from the contract after setting a deadline of 2 weeks. In this case, the customer shall forfeit a contractual penalty of 20% of the order value.
8. Retention of title
8.1 All delivered goods or services shall remain our property (reserved goods) until complete and final fulfilment (i.e. only after final release also from any joint liability for bills of exchange or cheques) of all claims arising from the business relationship, irrespective of the legal grounds. The same shall also apply with regard to claims arising in the future or conditional claims from contracts concluded at the same time or later within the framework of the business relationship. In the case of a current account, the retained title serves as security for our claim arising from a current account relationship.
8.2 Processing of the goods subject to retention of title shall be carried out for us as manufacturer within the meaning of § 950 BGB (German Civil Code) without any obligations for us in any way whatsoever. The good or services to be processed or treated shall be deemed to be goods subject to a retention of title as security for our claims within the meaning of clause 8.1. In the event that the customer processes, combines or mixes the goods subject to retention of title with other goods not belonging to us, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If our ownership of the goods subject to retention of title lapses as a result of combining, mixing or processing the goods subject to retention of title, the customer hereby transfers to us the ownership rights to which he is entitled in the new stock or the new item to the extent of the invoice value of the goods subject to retention of title and shall keep them in safe custody for us free of charge with due commercial care. The co-ownership rights arising herefrom shall also be deemed to be goods subject to retention of title as security for our claims within the meaning of clause 8.1.
8.3 As long as the customer is not in default of payment, he may sell the goods subject to retention of title in the ordinary course of business and only under his normal terms and conditions of business, provided that at the same time the claims from the resale are transferred to us in accordance with clauses 8.4 to 8.6. The customer shall not be entitled to dispose of the goods subject to retention of title in any other way, in particular by pledging them or assigning them as security. The aforementioned authority may be revoked by us in the cases listed under item 6.4 as well as in the event of a breach of the aforementioned obligations. In the event of revocation, the customer is also prohibited from processing the goods subject to retention of title, and from combining or mixing them with other goods.
8.4 The claims and other entitlements including all ancillary rights of the customer arising from the resale of the goods subject to retention of title are assigned to us already now, i.e. upon agreement of these General Terms and Conditions; we hereby accept the assignment. These claims and entitlements serve as security for our claims to the same extent as the goods which are subject to a retention of title. If the goods subject to retention of title are sold by the customer together with other goods not supplied by us, the claim from the resale is hereby assigned in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods. In the event of the sale of goods in which we have co-ownership shares pursuant to clause 8.2, a part corresponding to our co-ownership share is hereby assigned to us.
8.5 As long as the right to resell has not been revoked, the customer meets his payment obligations towards us and he does not violate any other material contractual obligations, the customer shall be entitled to collect receivables from the resale. The customer is not entitled to assign or pledge the receivables to third parties - including the sale of receivables to factoring banks. The customer must inform us immediately of any impairment of our rights by third parties, handing over the documents necessary for an intervention. Any intervention costs incurred shall be borne by the customer.
8.6 After revocation of the right to resell and/or the direct debit authorisation, the customer shall be obliged, at our request, to provide information about the stock of goods subject to retention of title and assigned claims. If we do not do this ourselves, he must inform his customers of the assignment to us and provide us with the documents required for collection. Furthermore, if the customer is more than two weeks in arrears with his payment obligations to us, we may demand the return of the goods subject to retention of title and collect the receivables and other claims assigned to us. Furthermore, we may use the goods subject to retention of title to satisfy our claims as soon as we have withdrawn from the contract or the conditions for claiming damages for non-performance have been met. The assertion of the retained title, in particular the taking back of the goods subject to retention of title, shall only be deemed to be a withdrawal from the contract if we expressly declare this in writing. Under the above conditions, the customer's right to possess the goods subject to retention of title shall expire. In the aforementioned cases, we are entitled to enter the customer's premises and collect the goods subject to retention of title after prior notice and setting a deadline.
8.7 If the realisable value of the existing security exceeds the secured claims by a total of 10 (ten) percent, we shall be obliged to release securities of our choice at the customer's request.
9. Liability for material defects
9.1 For material defects in physical or digital goods delivered by us or services rendered by us which are notified to us in writing by the customer within the periods specified in clause 9.2 and which are demonstrably attributable to material or design defects for which we are responsible or other defective services, we shall provide warranty services exclusively in such a way that we, at our discretion, either rectify the defect in our works, provide software updates or deliver defect-free items / spare parts ex our works. The customer can only demand a reduction of the purchase price (‘Minderung’) or the cancellation of the contract if the replacement delivery or rectification is not possible in the individual case, culpably does not take place despite a written request from the customer setting a reasonable deadline, or if the rectification has repeatedly failed. Potential statutory obligations for providing software updates remain unaffected.
9.2 The customer is obliged to report any component failure and software malfunction to Kalkhoff or FOCUS Customer Service immediately, in the case of obvious defects upon acceptance and in the case of hidden defects within 5 days of discovery. Failure to comply with this obligation will result in the loss of warranty rights. Transport damage must be reported to Kalkhoff or FOCUS Customer Service in writing within 5 days of delivery in the case of obvious defects and hidden defects.
9.3 Insofar as the purchase price has not yet been paid in full, we shall only be obliged to rectify the defect, make a replacement delivery or provide a software update after payment by the customer of a reasonable part of the payments due, taking into account the defect.
9.4 If the examination of a notice of defect shows that there is no case of warranty, the costs of repair and examination shall be charged to the customer on the basis of our current repair cost rates.
9.5 Our liability for material defects shall not apply if the items delivered or services rendered are modified, improperly handled, treated or processed. Our liability for material defects shall also not apply if a handover protocol enclosed with the goods or made available to the customer has not been completed or has not been completed in full. If goods intended for consumers are not resold by the customer directly to a consumer, the customer must oblige his buyers accordingly.
9.6 Any warranty claims of the customer shall prescribe 12 months after the transfer of risk. We do not assume any warranty for used goods; this also applies to refurbished products.
9.7 The customer shall not be entitled to any claims for material defects and/or other claims against us for normal wear and tear, or natural wear and tear of wear parts as well as normal ageing.
9.8 Recourse claims pursuant to §§ 327u, 445a, 445c and 478 BGB (German Civil Code) shall only exist if the product concerned was sold to a consumer, the claim by the consumer was justified and only to the extent provided by law, but not for goodwill arrangements not agreed with us; they presuppose compliance with the own obligations of the party seeking recourse, in particular compliance with the obligations to give notice.
9.9 The above provisions shall apply accordingly to defects of title.
10. Liability
10.1 Claims for expenses and damages claims of the customer of any kind - also insofar as such claims are in connection with warranty rights of the customer - are excluded. This does not apply,
if we have acted with intent or gross negligence, or
if it concerns damages or loss resulting from the breach of substantial contract obligations by us, or
in the event of liability for death, personal injury or damages to health, or
if we have guaranteed a certain quality or if our liability is mandatory pursuant to the Product Liability Act.
10.2 Essential contractual obligations shall be understood to be obligations the breach of which jeopardises the purpose of the contract, e.g. in the event of a significant delay, a not merely insignificant breach of obligations to cooperate, provide information or maintain secrecy or a not merely insignificant breach of obligations with which the contract stands or falls. In the event of a breach of material contractual obligations, our liability shall be limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence.
10.3 The above limitations of liability shall also apply in favour of our employees.
10.4 The above provisions on the limitation of our liability do not involve a reversal of the burden of proof to the detriment of the customer.
10.5 If objects are given into our custody, they shall be stored at the risk and expense of the customer. Unless otherwise agreed, the customer is obliged to pay us the usual remuneration of a commercial warehouse keeper for the storage.
10.6 If the customer exports the goods/services supplied by us abroad, the customer shall be responsible for observing all relevant legal provisions, in particular customs regulations and export regulations.
11. Data protection
11.1 We are entitled to store data relating to our customers in computerised form and to process and use such data for our operational purposes in accordance with the statutory provisions. The regulations of the DSGVO are observed. You can find more detailed information on our data protection measures on our website or on request from our data protection officer.
11.2 In the event of a recall initiated by us or a supplier, we are entitled to pass on the contact data of the end users for direct contacting by the manufacturer or supplier. The customer agrees to this procedure in order to simplify processing - also in light of the regulations of the DSGVO and the Federal Data Protection Act; there is a legitimate interest in such a transfer of data.
11.3 In order to simplify the processing of the recall, the respective manufacturer or supplier may contact the customer directly. In such a case, we will pass on the address data of the customer - exclusively for the purpose of contacting the customer for the initiation of appropriate measures within the scope of the implementation of a recall.
12. Confidentiality
The customer shall treat all information about our products and the agreed conditions, quantities and other business transactions with the customer, received in the course of the cooperation, as strictly confidential, unless this information is already generally known. The duty of confidentiality shall continue to exist after termination of the agreement. All damages incurred by us due to a breach of these obligations shall be borne by the customer.
13. Jurisdiction/Applicable law
13.1 The competent courts of the place of our registered office shall have exclusive jurisdiction for both parties for all disputes arising directly or indirectly from the contractual relationship - also from documents, bills of exchange and cheques. However, we shall also be entitled to assert claims against the customer before the court in whose jurisdiction the customer's place of residence, registered office or assets are located.
13.2 German law shall apply, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
14. Other provisions
14.1 In the event of cross-border movement of goods, the following provisions shall apply in deviation from the retention of title (No. 8 of the General Terms and Conditions):
The delivery item shall remain our property until payment has been made in full, provided that such retention of title is effective under the applicable law.
At our request, the customer shall fully support us in our efforts to protect our title to the delivery item in the country concerned.
The retention of title does not affect the provisions on the transfer of risk.
14.2 We are entitled to assign our trade receivables for financing purposes.
14.3 Transport packaging: In the respective countries, we comply with our take-back obligations for old electrical equipment, batteries and transport packaging within the scope of product responsibility. We reserve the right to charge the customer a flat rate for E-bikes and Pure-Bikes. Participation numbers and further information are available on request. Due to the value of the transport packaging, the customer is responsible for the disposal or recycling of the packaging in countries where there are no regulations to the contrary. As a rule, the high-quality transport packaging guarantees the customer a return. In light of this, the customer is not entitled to any remuneration for the disposal of the packaging.
14.4 If individual provisions are or become invalid, this shall not affect the remaining provisions. The parties shall replace the invalid provision with a valid provision that comes as close as possible to the economic or legal purpose of the invalid provision.
14.5 We point out that the goods may be purchased directly from us by manufacturers from abroad and that the road safety of the delivered bicycles and goods may not comply with the legal requirements in the Federal Republic of Germany. This does not constitute a material defect. Express reference is made to the limited usability in the Federal Republic of Germany in this case. The customer himself must ensure the corresponding road safety vis-à-vis his customers or point out the limited usability in the Federal Republic of Germany to the latter.
15. Trademarks, name protection rights
The use of the Kalkhoff Trademarks and name protection rights without our prior written consent is not permitted. We assert ownership of the Kalkhoff Trademarks and reserve all rights in them.