General Terms and Conditions of Sale and Delivery RUFF CYCLES GmbH
(in the following: “Ruff”)
The following terms govern all sales and deliveries to our business purchasers (hereinafter referred to as “Purchaser”):
I. Applicability and Priority
These General Terms and Conditions of Sale and Delivery of Ruff shall apply exclusively. Other terms and conditions shall not become part of the contract, even if Ruff does not expressly object to them. Other conditions shall only apply if Ruff expressly agrees to them in writing. Ruff’s General Terms and Conditions of Sale and Delivery shall also apply if Ruff accepts the Purchaser’s performance without reservation in the knowledge of terms and conditions that conflict with or deviate from Ruff’s General Terms and Conditions of Sale and Delivery. Neither failure to object nor payment or acceptance of the goods shall constitute an acknowledgement of third party terms and conditions.
II. Price, payment, counterclaims
- Prices are quoted EXW (ex works, Incoterms 2020) from the seat of Ruff or directly from the warehouse or the seat of Ruff’s supplier. Any VAT that might be applicable will be charged in addition to the prices unless otherwise agreed in writing in individual cases. The current price list of Ruff applies.
- Where the cost of raw materials, energy, wages or procurement, customs duties or other public charges levied on the goods increases between the execution of the contract and the delivery of the goods, and where a delivery period of more than four months is agreed when the contract is executed, Ruff is entitled to raise prices accordingly. Conversely, any reduction in costs in these contexts shall be applied for the benefit of Purchaser. Ruff will notify Purchaser of such price increases or reductions without undue delay in writing. Where prices are raised subsequently, Purchaser may terminate the contract in writing within two weeks of receipt of the notification regarding the price increase.
- Where a separate order and acceptance agreement is provided for Ruff Cycles e-bikes, Purchaser may be entitled to a tiered discount based on the order volume in accordance with such separate agreement. There are no special arrangements for dealer communities. For other items (accessories and replacement parts), Ruff grants a 10% discount on the net RRP. Any derogating provisions in the separate order and acceptance agreement shall take precedence over these General Terms of Sale and Delivery.
- For orders that are paid via advanced payment:
The purchase price is due and payable without deductions within 14 days before delivery unless otherwise agreed in writing.
- For orders via SEPA Direct Debit Core:
The 14 days pre-notification period for SEPA Direct Debit Core will not be applicable; the receipt one day before due date is hereby agreed. There will be not separate pre-notification; these will be communicated on the order confirmations and invoices.
- In the event of delays, Ruff is entitled to interest in the amount of 9 percentage points above the base rate and a flat rate amount of EUR 40.00. It may also assert any damage incurred beyond such amounts.
- Set-off and retention rights vest in the Purchaser only if and to the extent that the Purchaser’s counterclaims either are related to the claims asserted by Ruff on a basis of reciprocity (Section 320 of the German Civil Code (BGB)) or have become res judicata, are undisputed, or have been acknowledged by Ruff. In addition, Purchaser may only exercise a right to retention to the extent that its counterclaim is based on the same contractual relationship. This does not apply to counterclaims of Purchaser which directly seek rectification or to reverse a transaction – owing to a defect that was not corrected by Ruff or to be corrected by Ruff in the way of subsequent performance – and which are based on the same contractual relationship as Ruff’s claim for payment.
- Where Ruff has a duty to perform in advance, it may refuse such performance if, after the execution of the contract, Ruff becomes aware that the claim for consideration is jeopardized by Purchaser’s inability to pay. The right to refuse performance no longer applies if the consideration is received or security is provided for it. Ruff may specify an appropriate period of time during which Purchaser, at its discretion, must provide the consideration or security contemporaneously with Ruff’s performance. If such period expires without result, Ruff may rescind the contract. Further details are regulated by Section 321 BGB.
III. Delivery, passing of the risk
- Adherence to the agreed delivery period/date is conditional on Purchaser’s timely fulfilment of its contractual duties. This applies in particular to effecting the agreed payment and, if applicable, the provision of any securities agreed upon.
- Ruff is entitled to make partial deliveries if and to the extent that Purchaser can reasonably be expected to accept them. The same applies – but not only – in the event of disruptions in the supply chain.
- Goods are shipped EXW / seat of Ruff (Incoterms 2020; see Section II. 1). If, in individual cases, goods shall be shipped by Ruff, they will be shipped at Purchaser’s risk – even in cases where Ruff pays the transport costs – and using a means of transport selected at the discretion of Ruff.
IV. Reservation of self-delivery, force majeure
- Deliveries are subject to Ruff’s own receipt of correct and timely deliveries.
- Government actions, pandemics and epidemics, riots, strikes, lockouts, fire, machine failures, shortages in the supply of materials or energy, transport problems and other reasons beyond Ruff’s control which delay normal production or shipment shall be deemed “force majeure” and entitle Ruff to postpone the delivery date accordingly. Ruff shall notify Purchaser of such circumstances without undue delay as soon as Ruff becomes aware of them. If a party cannot reasonably be expected to accept a performance delay which is due to the aforementioned events, that party is entitled to rescind the contract.
V. Warranty/ liability for defects
- Purchaser must satisfy itself, by performing an inspection, that the goods are suitable for the use intended by Purchaser.
- The warranty period is one year from the date of delivery. This shall not affect the statutory periods of limitation in cases of recourse pursuant to Sections 445b, 478 of the German Civil Code (BGB). Claims for compensation based on defects shall not be affected by this. With respect to the latter, including the claims for damages that arise due to the fact that a rectification of defects demanded by Purchaser and owed by Ruff is delayed, the statutory warranty period applies.
- Purchaser must examine the goods promptly upon their receipt and must report any defects discovered without undue delay. “Without undue delay” shall be defined as three working days (in this context, working days shall mean Monday to Friday, with the exception of official holidays at the place of delivery) unless another period seems appropriate based on the circumstances in an individual case. Any damage apparent on the outside of packaging used for shipment must be reported by Purchaser without undue delay when the goods are delivered, both to the driver of the shipping company and to Ruff. Such damage must be noted on the documents accompanying the shipment without undue delay. The shipment must be examined in the presence of the shipper (freight forwarding company, parcel service, etc.) without undue delay with respect to completeness and any apparent transport damage (scratches, tears, crushing, dents, etc.). Where Purchaser is not the recipient of the goods itself, it must ensure that the recipient is placed under the obligation to comply with the foregoing duties to examine the goods. Where there is apparent damage to the goods upon their delivery, Purchaser shall refuse to accept the shipment. A breach of these duties constitutes the approval of the goods according to Section 377 of the German Commercial Code (HGB). If there is a suspicion of a defect that is not merely insignificant with respect to products delivered, Purchaser must inform Ruff promptly about the existing facts giving rise to that suspicion, even if further inspections must be performed to confirm the defect. A breach of this duty will subject Purchaser to liability for damages unless Purchaser is not responsible for such breach of duty.
- Where goods are defective and the defect is reported in the correct form and in a timely manner, Purchaser is entitled to demand that, at Ruff’s option, Ruff rectify the defect or deliver a replacement.
- Ruff bicycles are sold and delivered pre-assembled. Purchaser must ensure that the proper final assembly, prior to a bicycle’s delivery to the end purchaser, is carried out in accordance with the “Requirements for the shipment of bicycles” of Ruff Cycles. Purchaser may demand that Ruff provide a warranty for defects that are not due to improper final assembly. Ruff does not provide a warranty for defects that are due to damage related to accidents, damage caused by improper use or damage due to vandalism. To the extent any wear and tear is a normal consequence of standard use, wear and tear parts are not covered by the warranty either. Where Purchaser asserts a warranty claim against Ruff, Ruff will review such claim within ten working days.
- Where Purchaser rescinds the contract, a benefit of use in the amount of 5% of the gross purchase price per month, calculated as of the date of delivery, will be offset against the refund. Purchaser has the right to demonstrate that no such reduction in value exists or that the reduction is much lower than the flat rate applied.
- The software for the control elements and motors of Ruff Cycles e-bikes may only be updated by trained qualified personnel and under no circumstances by the end consumer. Modifications not permitted by law shall not be performed. Ruff does not accept any liability for damage due to non-compliance.
- Where parts from suppliers, in particular components of the bicycles, are defective, Purchaser is requested (but not obligated) – in the interest of all parties concerned in the speedy and efficient handling of the claim – to first contact the manufacturer directly. Purchaser shall inform Ruff without undue delay about any risks in using the products provided by Ruff of which Purchaser becomes aware and any product defects.
- Claims for damages of any kind against Ruff,within the scope of the warranty and outside the scope of the warranty, especially but not limited to cases of damage that does not occur to the delivery item itself – e.g. due to breach of contractual ancillary obligations, incorrect advice, culpa in contrahendo, tortious acts, are excluded, unless the following rules determine otherwise. The limitations of liability under this sec. VI. shall apply equally in favour of Ruff’s legal representatives and vicarious agents.
- Ruff shall be liable, only, in the event of intent or gross negligence and in the event of breach of essential contractual obligations also in case of simple negligence. Essential contractual obligations are those whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the Purchaser regularly relies and may rely.
- If there is only simple negligence or gross negligence, Ruff’s liability is limited to the reasonably foreseeable damage typical for the kind of contract.
- The above limitations of liability shall not apply (i) in the event of injury to life, body or health, (ii) in the event of defects which were maliciously concealed, or (iii) in the event of defects in the delivery item, insofar as liability exists under the Product Liability Act for damage to privately used items and for personal injury, as well as (iv) in the event of non-compliance with a quality guarantee (Beschaffenheitsgarantie).
- Claims for reimbursements of expenses of the purchaser according to § 284 BGB (German Civil Code) are excluded insofar as a claim for compensation of damage instead of performance according to the above regulations is excluded.
- The legal burden of proof is not changed by the provisions of this clause.
VII. Retention of Title
- Ruff will retain title of the delivered products until all outstanding bills derived from the business relationship with the purchaser have been paid in full.
- If the purchaser is in default of payment, Ruff may prohibit it from disposing of the goods subject to retention of title completely or, at its discretion, in part, e.g. only with regard to selling or further processing, etc.
- If the purchaser meets the objective requirements of the duty to file for insolvency, it shall refrain from disposing of the goods subject to retention of title in any way, without being specifically requested to do so. The purchaser shall report the inventory of goods subject to retention of title to Ruff without undue delay. In this case Ruff is further entitled to rescind the contract and to demand the return of the reserved goods. If the reserved goods have been transformed, processed, intermixed, mingled or combined with other products, then Ruff is entitled to demand their surrender to a trustee; the purchaser is obliged to disclose all co-owners of the reserved goods along with their names or company names, addresses, and co-ownership shares. The same, by analogy, applies to the claims that have been assigned to Ruff in accordance with the previous paragraphs; in addition, the purchaser shall send Ruff the names and addresses of all debtors and a copy of the documents evidencing the claims against them without being specifically requested to do so.
VIII. Ruff’s intangible rights
- None of the provisions contained in these General Terms of Sale and Delivery grants Purchaser a license with respect to patents, brands, know-how or other industrial property rights owned by Ruff. Intellectual property rights in Ruff’s products, as well as other brands, patents, material protected by copyright (including internet content and domain names) and technologies relating to Ruff’s products, are the exclusive property of Ruff. Purchaser shall refrain from engaging in any actions that infringe such proprietary rights owned by Ruff. In particular it must not register intellectual property rights for designations or inventions that are protected by such proprietary rights.
- Purchaser and its employees may use the brands, trade names and other product designations owned by Ruff to the extent such use is necessary for promoting Ruff’s products.
IX. Place of Performance, Place of Jurisdiction and Applicable Law
- The place of performance for delivery and supplementary performance is the respective supplying plant. The place of performance for payment is Regensburg.
- If the purchaser has its registered office in the EU or in the European Economic Area, the exclusive place of jurisdiction shall be at our registered office. However, each party is also free to sue the other party at its general place of jurisdiction.
If the purchaser is domiciled outside the EU and the European Economic Area, the arbitration court of the Hamburg Chamber of Commerce shall have exclusive jurisdiction over all disputes arising from and in connection with the contracts concluded under the terms of these General Terms and Conditions and shall make its final decision to the exclusion of the ordinary proceedings. The place of arbitration shall be Regensburg, the language of the proceedings shall be German. The proceedings and in particular the taking of evidence shall be made in accordance with the Rules of the Court of Arbitration of the Hamburg Chamber of Commerce and the rules of the 10th Book of the Code of Civil Procedure. Procedural principles of common law, such as in particular the submission of documents (so-called document production), shall not apply directly or appropriately. To the extent that one party may have to reimburse the other party for legal fees in connection with the arbitration proceedings, such fees shall be limited to those billable under the German Lawyers’ Fees Act (Rechtsanwaltsvergütungsgesetz – RVG).
- The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
Status: April 2022