General terms and conditions of KTM Fahrrad GmbH
The present general terms and conditions apply to any and all legal transactions between our company and our customers, provided that the customers operate a business and that the legal transaction in question is part of their commercial operations (business customers).
The deliveries, services, and offers of our company are based exclusively on these general terms and conditions; we do not acknowledge any contrary or deviating terms and conditions of the customer, unless we expressly recognise their applicability in writing. Any action we take to execute a contract is not intended to mean agreement to any contractual terms and conditions that deviate from ours. These general terms and conditions are the framework for any further legal transactions between the parties to the contract.
Orders are only accepted with our written order confirmation, but not later than upon delivery. Orders received via the Web Service Portal (B2B) that exceed standard professional trade quantities will only be accepted with reservations.
II. TRANSFERRING RIGHTS AND OBLIGATIONS:
Any transfer of our rights and obligations towards our customers requires our written permission. In particular, the customer is prohibited to assign any warranty claims they may have towards us to third parties.
All our prices are, unless expressly stated otherwise, net prices ex works excluding packaging, discounts, and value added tax. If labour costs rise due to collective wage agreements in the sector or based on internal company agreements or if any cost items relevant for cost calculation or preparation of the service rise, including costs such as material, energy, transport, third-party services, financing, etc., we have the right to increase or lower prices accordingly.
IV. TERMS AND CONDITIONS FOR PAYMENT, INTEREST ON ARREARS:
Unless agreed otherwise, delivery of the goods and payment of our claims in cash shall be a concurrent condition. Separate agreements are required for discounts. If payments in full or of instalments is delayed, any agreements on discounts will be suspended. Payments by the customer are only deemed made when they are received in our business account.
Cheques and bills of exchange are only accepted after separate agreement and only as payment, not in lieu of fulfilment. Collection and discount expenses are payable by the customer. The seller has the right to refuse any payment offered by cheque or bill of exchange without stating reasons.
If the customer delays payment, we have the right to, at our discretion, demand compensation for the damage we actually incurred or interest on arrears as regulated by the law. If the customer delays payment, our company has the right to demand compound interest from the day the goods are delivered.
The contractual partner only has the right to offset against claims of our company if the counterclaim of the contractual partner is not disputed by us or was determined by a court.
If special models are requested, the customer agrees to pay 30% of the total order value in advance. The remaining amount will be paid in accordance with the contract.
V. WITHDRAWAL FROM THE CONTRACT:
If acceptance is delayed or other important reasons apply, such as insolvency of the customer or if insolvency proceedings are rejected due to a lack of assets, as well as in case of the customer delaying payment, we have the right to withdraw from the contract, provided that neither party has completed it yet.If the customer is responsible for such withdrawal, we may choose to demand a flat-rate compensation for damages amounting to 15% of the gross invoice amount or compensation for the actually incurred damage. If the customer delays payment, we are exempt from any performance and delivery obligations and have the right to withhold pending deliveries or services and to demand advance payments or securities or to withdraw from the contract after having set an appropriate grace period. If the customer withdraws from the contract or demands rescission thereof without being entitled to do so, we may at our choice either insist on completion of the contract or to agree to rescission of the contract; in the latter case, the customer is obliged to pay, at our choice, a flat-rate compensation for damages of 15% of the gross invoice amount or compensation for the actually incurred damage.
VI. DUNNING AND COLLECTION COSTS:
In case of delay, the contractual partner (customer) agrees to reimburse any dunning and collection costs that
the creditor incurs, provided that these are directly necessary for appropriate prosecution; in particular, the customer agrees to reimburse no more than the remuneration of the commissioned collection agency as defined by the regulation of the Federal Ministry for Economics and Labour for maximum fees for collection agencies.
VII. DELIVERY, TRANSPORT, DELAY OF ACCEPTANCE:
Our sales prices do not include costs for delivery, assembly or installation. On request, however, we will provide or organise these services in return for separate payment.
If the customer does not accept the goods as agreed (delayed acceptance) and if any grace period set by us is unsuccessful, we have the right to either return the goods to our warehouse, for which we will invoice storage fees of 0.1% of the gross invoice amount per commenced calendar day, or to store the goods at a commercial warehouse commissioned by us at the costs and risk of the customer.
Simultaneously, we have the right to either demand fulfilment of the contract or, after having set an appropriate grace period of at least 2 weeks, to withdraw from the contract and to sell the goods otherwise.
In case of agreed changes to the contract, the supplying site has the right to set a new delivery date.
The supplying site reserves the right to make changes to design and form during the delivery period.
Specifications of services, weight, etc. in the descriptions are to be regarded as approximate specifications.
Any scraps generated during repairs become the property of the supplying site without separate notification of the customer, unless agreed otherwise.
Any damage claims of the customer based on non-compliance or delay are excluded, unless these circumstances were caused deliberately or through gross negligence of the supplying site.
The supplier reserves the right to withdraw from the contract if, after the order was confirmed and before the delivery was made, they become aware of circumstances in the economic situation of the ordering party which give rise to doubts regarding payment of the supplier’s claims.
If the buyer orders custom-made models that deviate from the Inline range, the buyer agrees to receive the goods from KTM Fahrrad GmbH within the business year/model year. If the order is not accepted due to excess quantities, the seller will send the quantity that is to be stored to a warehouse named by the buyer or will invoice a corresponding storage fee. In case of insolvency or other difficulties with acceptance, the seller must be informed immediately. The seller reserves the right to sell the bikes otherwise in any of the above cases.
VIII. DELIVERY PERIOD:
We are only obliged to provide a performance once the customer has complied with all their obligations that were agreed on, especially after the customer has completed all technical and contractual details, preliminary work and preparatory measures.
We have the right to make partial deliveries. Any confirmed delivery dates for orders that were suspended for reasons of credit standing cease to apply. After this suspension is lifted, the new delivery dates agreed at that time will apply for this order.
We have the right to exceed the agreed dates and delivery periods by up to one week. Only after the end of this period and after having set a grace period is the customer allowed to withdraw from the contract.
IX. FULFILMENT AND ACCEPTANCE CONDITIONS:
The delivery is complete:
in case of ex works deliveries: upon notification that the goods are ready for dispatch. The customer has to inspect and accept the purchased items at the agreed place of acceptance, or, if not agreed otherwise, at the supplying site, immediately after they received the notice of readiness for dispatch. If this acceptance does not take place within 8 days, the purchased items are deemed duly accepted.
For deliveries with agreed delivery destination: upon dispatch from the supplying site.
If the customer expressly or tacitly waives an inspection, the purchased items are deemed duly delivered and accepted upon their leaving the supplying site.
Any risks, including the risk of accidental loss, are transferred to the customer with completed fulfilment; the customer has to arrange for the necessary insurance cover themselves and at own costs. This is the time at which the purchase item is transferred into the control of the buyer in terms of section 6 Product Liability Act and put into circulation. The supplying site will only arrange for insurance cover if this was expressly agreed for the order in question. The same applies to any items sent in for repair between the times of acceptance and fulfilment. If the supplying site has set a time limit for collection and if the customer fails to comply with the time limit, storage fees may be charged.
The items are always shipped on account from the supplying site and at the costs and risk of the buyer.
X. COMPENSATION FOR DAMAGES:
No claims for compensation for damages can be asserted in cases of minor negligence. This does not apply to personal injury or damages to items accepted for modification in case of consumer transactions.With the exception of consumer transactions, minor or gross negligence has to be proven by the party that suffered the damage. In transactions that are not consumer transactions, the limitation period for damage claims is three years after transfer of risk. The provisions on compensation for damages as set out in these general terms and conditions
or any other provisions agreed in this respect also apply if compensation for damages is claimed alongside or instead of the assertion of warranty claims.
We do not accept any liability for defects or damages caused by changes having been made to the bike or by additional parts having been attached; furthermore, any warranty claims (also for any damage caused by defective items) are excluded in these cases.
The supplying site only accepts any warranty obligations for the vehicle being free from defects in accordance with current technological standards towards the original purchaser when payment obligations are met. At the choice of the supplying site, warranty services include either the repair or replacement of any parts sent in postage and carriage paid. In any case, only those parts are replaced for which a defect in the material or workmanship was determined. The labour costs and costs for installation and removal are borne by the customer.
The supplying site does not accept liability for parts that were not manufactured at that site; it is, however, willing to assign any claims based on defects it may have towards its supplier to the customer.
Warranty claims are only acknowledged if they are asserted towards the supplying site or competent authorised repair shop within eight days after the defect was determined. The accepting party (customer) has to furnish proof if the item is defective upon handover.
There is no entitlement to replacements or reduction of price.
Natural wear and tear and damages caused by negligence, improper use or accidents are excluded from warranty.
The warranty expires if the purchased item is changed by third parties or by installing third-party parts. No warranty is provided for used vehicles. No warranty is provided for repairs. The warranty period is one year.
If any of our bikes are to be assembled by the customer, there will be no warranty for any cases in which a defect/any damage was caused by incorrect assembly by the customer or if our instructions were not followed, if the appearance of the bike is changed in any form, if used parts are installed or if any parts that do not conform to our original specifications are used.
The warranty only applies if the dealer sells our bikes to end customers and not to third parties.
Where electric bikes are used for hire services, the warranty (for the electric system) is reduced to 12 months.
This warranty only applies if the dealer/customer verifiably complies with the following when the bike is collected: The bike was provided to the end customer in complete and fault-free condition, safe for operation, and including the original user manual. The end customer was instructed verbally as to how to use it correctly, especially in regard to the running-in of the brakes. The end customer was advised that they must comply with the corresponding instructions in the original user manual and the end customer was informed of the warranty guidelines.
XII. PRODUCT LIABILITY:
Recourse claims in terms of section 12 Product Liability Act are excluded, unless the party entitled to regress can prove that the fault was caused in our sphere of influence and was caused by at least gross negligence.
XIII. ADDITIONAL OBLIGATIONS OF OUR CUSTOMERS BEFORE DISPATCH OF PRODUCTS SUPPLIED BY US:
Prior to dispatch to an end customer, the customer agrees to complete any necessary maintenance work in accordance with the technical instructions of the parts manufacturers, for example charging or servicing the battery of bikes with supporting e-motor (e-bikes, S-Pedelecs, etc.).
The customer must complete any steps specified by us before selling the goods; especially, all parts subject to a certain ageing process must be checked, even if stored correctly, and only such that are free from defects may be supplied.
Our customer agrees to comply with any and all national regulations implementing the EU battery directive and the WEE guideline within the EU or with any comparable legal regulations outside the EU, in particular those concerning the collection, handling, recycling and disposal of electric devices, old batteries and old accumulators in the respective contract countries of the products purchased from us, and the customer will prove compliance with these to us on request.
XIV. RETENTION OF TITLE AND ASSERTION THEREOF:
We supply all goods under retention of title; they will remain our property until the full purchase price was paid. Enforcing the retention of title will only be a withdrawal from the contract if this is expressly stated. In case of returns, we have the right to invoice any transport and handling costs we incurred. In case of third parties accessing the goods that are subject to retention of title, especially by way of garnishment, the customer agrees to notify these of our retention of title and to notify us immediately. If the customer is a consumer and not an entrepreneur for whom the
transaction with us is part of their ordinary commercial business, they may not dispose of the goods until the outstanding purchase price was paid in full; in particular, the goods must not be sold, pledged, given as a gift or lent to another party. The customer has sole responsibility for the goods that are subject to retention of title, especially in regard to the risk of loss, accidental destruction or deterioration.
XV. CHOICE OF LAW, PLACE OF JURISDICTION:
Applicable law is Austrian law. Application of the CISG provisions is expressly excluded. The contractual language is German. The place of jurisdiction is the competent court at the location of the supplying site in Mattighofen.
XIV. DATA PROTECTION, CHANGE OF ADDRESS:
The customer agrees to us using automated processes for saving and processing the personal data contained in the purchase contract when fulfilling this contract. The customer agrees to not disclose the data generated over the course of the business relationship and the password to the B2B access to unauthorised third parties and to protect these data against unauthorised access and abuse and to store these securely.
We will process any personal data received in the course of the business relationship with the customer in accordance with legal provisions.
The customer is obliged to notify us of any change of residential or business address for as long as the present legal transaction is not mutually completed. If the customer fails to make such notification, any declarations are also deemed received if sent to the most recently advised address.
XVII. Reservations for using the online shop
1. Any order placed in the KTM FAHRRAD GmbH Online Shop (b2b), both those placed by the buyer themselves or by anyone using the customer account, are legally binding purchase contracts. The customer is liable for any unauthorised use of their user details made possible by the customer’s behaviour and any associated costs. Any refusal to accept or any return of orders may result in the deletion of the user data and exclusion from the KTM FAHRRAD GmbH Online Shop (b2b). Any associated costs for handling and shipping are borne by the customer.
2. Furthermore, the customer agrees with this contract to not do nothing that would violate any data protection, trademark or image copyrights. This applies especially to copying or downloading data and images for which KTM FAHRRAD GmbH only hold rights to use these images for displaying them in their own media. A transfer to third parties is not possible for legal reasons. Please note that where we use third-party texts, we do not give any guarantees regarding accuracy or completeness of the texts or compliance of these with competition law. The customer is advised to ascertain themselves if the technical descriptions are accurate or complete, and they are responsible for ensuring that no designations are highlighted in a manner that would violate competition law.
3. Orders are only accepted with our written order confirmation, but not later than upon delivery. Orders received via the Web Service Portal (B2B) that exceed standard professional trade quantities will only be accepted with reservations.
Subject to changes to prices and errors.
KTM Fahrrad GmbH; Harlochner Straße 13; A-5230 Mattighofen; company register number: ATU 21643407; November 2019