General Terms and Conditions of Sale – OEM – of Biketec GmbH (GTC)

Version 05/2023 of Biketec GmbH, Luzernstrasse 84, CH-4950 Huttwil

I. Scope

1. The following GTC apply to the entire current and future legal relationship between Biketec GmbH and the Customer regarding the purchase of the FIT e-bike system, components or corresponding software and accessories («Contractual Products»). In the context of an ongoing business relationship, these GTC shall also apply to all future deliveries to the Customer, without the Customer having to be made aware of the application of these GTC in each individual case.

2. By placing an order, or at the latest upon receipt of delivery of the Contractual Products ordered, the Customer acknowledges these GTC as binding. Should the Customer use contradictory, deviating or supplementary terms, their applicability to Biketec GmbH is excluded, even if Biketec GmbH does not expressly object to them. This shall also apply if Biketec GmbH makes deliveries to the Customer without reservation in the knowledge of the Customer’s terms and conditions that contradict or deviate from these GTC or statutory regulations.

3. Notwithstanding the translations of these GTC, the version in the German language shall be binding.

II. Conclusion of contracts

1. Information in catalogs, online presences or other advertising materials of Biketec GmbH does not constitute binding offers or product descriptions. Only the agreed quality (e.g. type, quantity, specifications, quality, functionality, compatibility, interoperability or other characteristics agreed in the ordering process) shall form part of the contract. By placing an order, the Customer submits a binding offer. Biketec GmbH will review this offer within two weeks of receipt. A contract shall not come into effect until the order has been confirmed in writing by Biketec GmbH (including by e-mail) and shall be governed exclusively by the order confirmation and/or these GTC. If Biketec GmbH makes an offer to a Customer, Biketec GmbH shall be bound by it for 30 days from the date of dispatch (the date of the offer letter shall apply).

2. The conclusion of a contract entails a binding purchase obligation on the part of the Customer. If the Customer withdraws from the order or refuses to accept it, Biketec GmbH shall be entitled to charge the full agreed purchase price.

3. Requests for changes and deviations after the conclusion of the contract at the request of the Customer may have an impact on delivery times and deadlines as well as on pricing and shall therefore only become effective after a corresponding agreement has been reached.

4. The acceptance of a development order or a customer-specific adaptation for the Customer shall not constitute an obligation on the part of Biketec GmbH to check its suitability for the commercial purpose intended by the Customer or for compliance with applicable legislation or technical standards. If Biketec GmbH has reasonable doubts as to the compatibility of the Customer’s specifications with legal and technical circumstances, Biketec GmbH shall inform the Customer thereof and shall be entitled to withhold the development/adaptation until express written approval by the Customer. Biketec GmbH also reserves the right to demand proof of compatibility from the Customer. Any changes that become necessary are governed by section 3 above.

III. Delivery periods and deadlines

1. Delivery times indicated by Biketec GmbH are indicative dates and require complete Customer information as well as the fulfillment of all cooperative actions by the Customer, including the performance of due payments or the obtaining of import, export or other foreign trade permits or authorizations. Biketec GmbH is entitled to make partial deliveries if they are reasonable for the Customer (e.g. if they do not result in any additional expenditure or additional costs).

2. Deliveries may be delayed in particular as a result of production bottlenecks. Performance is conditional upon correct and timely delivery by suppliers. Unforeseeable, unavoidable events beyond the control of Biketec GmbH, such as industrial disputes, official measures, strikes, epidemics, war, acts of terrorism, natural disasters, industrial disputes or transport interruptions («force majeure») shall release Biketec GmbH from the obligation to deliver on time for their duration. If force majeure results in a delivery delay of more than 3 [three] months, either party may demand that the contract be amended or – if this is unreasonable for a party – withdraw from the contract.

3. If deliveries by Biketec GmbH are delayed, the Customer shall only be entitled to withdraw from the contract if Biketec GmbH is at fault for the delays and a reasonable deadline set by the Customer for delivery has elapsed without success.

4. If the Customer is late in accepting the products or breaches any other duties of cooperation, Biketec GmbH shall be entitled, without prejudice to its other rights, to store the Contractual Products appropriately at the risk and expense of the Customer or to withdraw from the contract.

5. The following applies for deliveries: for small amounts (smaller quantities than listed in the latest article list as minimum order amounts), the customer can order delivery from the warehouse EU/CH; the customer must bear the costs. For larger orders the EXW applies exclusively.

IV. Shipping, packaging, transfer of risk

1. Products shall be dispatched using a reasonable shipping method in standard packaging, unless otherwise agreed. This must be disposed of by the Customer at their own expense.

2. Risk shall pass to the Customer when the delivered products are handed over to the transport company or, if the Customer collects the Contractual Products themselves, when the products are handed over to the Customer. In the event that the handover or shipping is delayed for reasons attributable to the Customer, risk shall transfer to the Customer on the date that the Customer is informed that the Contractual Products are ready for shipping.

3. Transport insurance is only provided at the Customer’s request and expense.

V. Prices, invoicing

1. Invoices by Biketec GmbH are generally issued in EUR or in the currency specified in the order confirmation.

2. Prices are stated excluding taxes, customs duties and charges, storage, insurance, packaging and transport costs, advance disposal charges and other taxes, fees and duties; these shall be invoiced additionally if applicable.

3. If there are more than four months between the conclusion of the contract and the estimated delivery date agreed therein, the price valid at the time of delivery shall apply, unless a «fixed price» has been expressly agreed.

4. Changes in circumstances following the conclusion of the contract that lead to cost increases or reductions (e.g. statutory requirements, collective wage agreements, material prices, transport costs) entitle each party to negotiate a price adjustment. Section III.2 remains unaffected.

5. The invoice from Biketec GmbH is generally due for payment within 30 days of delivery without deduction by the Customer. The reduced payment period of 10 days from delivery applies to the delivery of spare parts. In the event of default in payment, Biketec GmbH is entitled to claim all outstanding receivables immediately and to claim default interest at the statutory rate. The right to withdrawal and compensation for damages remains unaffected.

6. If, after conclusion of the contract, Biketec GmbH becomes aware of the risk that the Customer will be unable to make payment, Biketec GmbH shall be entitled to only carry out outstanding deliveries against advance payment or provision of security. In the event that advance payment is not made or no security is provided after a reasonable grace period, Biketec GmbH may withdraw in full or in part from individual contracts or from all contracts concluded with the Customer. Biketec GmbH reserves the right to assert further rights.

7. The Customer shall only be entitled to offset payments if its counterclaim is undisputed or has been established with legal effect.

VI. Retention of title

1. All Contractual Products shall remain the property of Biketec GmbH until full payment has been made.

2. The Customer is entitled to duly sell and/or use the reserved goods in the course of business as long as they are not in default of payment. Pledges or transfers of ownership by way of security are not allowed. By way of security, the Customer shall already assume all claims arising from the resale or any other legal reason (insurance, tort) in respect of the reserved goods (including all current account balance claims) to Biketec GmbH; Biketec GmbH accepts the assignment. Biketec GmbH revocably authorizes the Customer to collect the claims assigned to Biketec GmbH for their account and in their own name. The authorization to collect these claims can be revoked at any time if the Customer does not fulfill their payment obligations correctly. The Customer is not authorized to assign these claims; this also applies to the collection of claims by way of factoring, unless at the same time the factor is obliged to effect the consideration in the amount of the claims directly to Biketec GmbH for as long as there are still claims against the Customer.

3. In the event of third-party access to the reserved goods, in particular seizures, the Customer shall point out the reserved property of Biketec GmbH and shall immediately enable Biketec GmbH to assert its ownership rights. Insofar as the third party is unable to reimburse Biketec GmbH for the legal or extrajudicial costs incurred in this connection, the Customer shall be liable for these.

4. If the reserved goods are processed with other items not belonging to Biketec GmbH, Biketec GmbH shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other processed items at the time of processing. The same shall apply to the new item created by processing as to the reserved goods. In the event that the reserved goods are inseparably mixed with other items not belonging to Biketec GmbH, Biketec GmbH shall acquire co-ownership of the new item in proportion to the value of the reserved goods (final invoice amount including VAT) to the other mixed items at the time of mixing. If, as a result of mixing, the Customer’s item is to be regarded as the main item, the Customer and Biketec GmbH agree that the Customer shall transfer to Biketec GmbH pro rata co-ownership of the item; the transfer is hereby accepted. The Customer shall keep the resulting sole or co-ownership of an item in safe custody for Biketec GmbH.

5. Biketec GmbH shall release the securities to which it is entitled insofar as the realizable value of such securities exceeds the claims to be secured by more than 10%. Biketec GmbH shall be responsible for selecting the securities to be released.

VII. Warranty

1. Biketec GmbH warrants solely that the Contractual Products are of the agreed quality upon transfer of risk (see Section II.1). Insofar as the Contractual Products contain software, this shall only apply if the Customer carries out the software updates provided. Information in catalogs, online sites, price lists, illustrations and other information material provided to the Customer by Biketec GmbH, as well as information describing the product, does not constitute information or assurances of a particular quality of the Contractual Products; such assurances or warranties must be expressly agreed in writing. Before placing an order, the Customer has obtained information about the Contractual Products and their possible uses.

2. Errors that occur after delivery as a result of wear and tear, misuse, failure to comply with maintenance and installation regulations, storage or changes on the part of the Customer do not under any circumstances constitute a defect.

3. Insofar as Contractual Products contain software, Biketec GmbH warrants that, to the knowledge of Biketec GmbH, such software does not infringe any third-party rights. If the products of Biketec GmbH are to be integrated into a Customer’s system (e.g. motor system), the warranty of Biketec GmbH for this is excluded unless the motor system was known and the compatibility and interoperability with this system has been contractually agreed.

4. Upon receipt, the Customer is obliged to inspect all Contractual Products promptly and carefully in terms of quantity, size and quality. Biketec GmbH must be notified of any defects in writing (including by e-mail) within five working days of receipt and with a detailed description. Damage that was clearly caused during transit must always be reported to Biketec GmbH promptly and in writing, and noted on the forwarder’s delivery note. Hidden defects must be reported to Biketec GmbH in writing and with a detailed description as soon as they are discovered.

5. Contractual Products delivered shall be deemed as approved if no complaint of a defect is received in due form and time. The limitation period for the Customer’s rights due to defects is one year from delivery and two years for software components.

6. Biketec GmbH shall, at its own discretion, remedy defects by rectifying the defect free of charge for the Customer or by delivering a defect-free item instead; with regard to the software component, subsequent performance shall be limited to the provision of a new software version. In the event of a complaint, Biketec GmbH may demand that the Contractual Product be presented for inspection. If the inspection reveals that the notice of defect was wrongly lodged, Biketec GmbH may demand the expenses incurred (e.g. transport costs, material and labor costs). If a goodwill arrangement has been performed, the Customer shall be notified of this separately; this shall not result in a new start of a limitation period. Claims arising from a manufacturer’s recourse are excluded.

7. The place of performance for deliveries and supplementary performance is Elsenfeld.

VIII. Liability

1. Biketec GmbH is liable in the event of intent and gross negligence in accordance with the statutory provisions.

2. In the event of ordinary negligence, Biketec shall only be liable in the event of a material breach of contract (an obligation that is necessary for the fulfillment of the contract and on whose fulfillment the Customer was therefore entitled to rely) in the amount of typical, foreseeable damages.

3. The limitations of liability in Section VIII.2 do not apply in the cases of Section VIII.1, or in the case of damage to life, limb or health, the absence of a warranted characteristic, a warranty, fraudulent deception or product liability cases.

4. In the event of a limitation of liability, liability shall expire one year after delivery and, in the case of the software component, within two years of delivery. All of the above provisions also apply to the liability of bodies, employees, vicarious agents and subcontractors of Biketec GmbH.

IX. Intellectual property

1. The purchase of the Contractual Products shall not transfer any intellectual property rights, copyrights or know-how to the Customer. Insofar as the Contractual Products contain software, the Customer shall be granted a simple right of use limited to the purpose of the Agreement.

2. The Customer undertakes not to reconstruct the software (prohibition of reverse engineering). Any modification, translation, decompilation or any other act of reproduction or distribution, including licensing or resale of the software contained in the products, is not permitted without the prior express written consent of Biketec GmbH and constitutes a material breach of contract.

3. Copyright notices may not be removed.

X. Product liability/product safety

1. The Customer shall indemnify Biketec GmbH for product liability claims insofar as the Customer is responsible for the fault giving rise to liability. In particular, the Customer shall check the functionality of the Contractual Products in conjunction with other components before finished products (e-bikes) are placed on the market. Liability, for whatever reason, of Biketec GmbH for lack of compatibility of the Contractual Products with the components used by the Customer is excluded, unless Biketec GmbH has expressly confirmed the compatibility to the Customer in writing.

2. The Customer undertakes to forward any feedback, complaints or claims submitted by customers concerning a production defect or the safety of the Contractual Products to Biketec GmbH promptly (within five working days at the latest).

3. The Customer is obliged to notify Biketec GmbH of any potential production defects or safety risks ascertained during inspections promptly and in writing.

4. The Customer shall inform Biketec GmbH in advance of any communications regarding the Contractual Products with the relevant authorities and of any measures taken by such authorities and of any changes in product safety and liability regulations.

5. The Customer is obliged to cooperate fully with Biketec GmbH in the measures taken by Biketec GmbH in the area of product safety (e.g. recall) and to collaborate in the corresponding measures.

XI. Data protection, confidentiality

1. Biketec GmbH undertakes to treat personal data confidentially in accordance with the applicable data protection legislation. Biketec GmbH is entitled to collect, process and pass on personal data of the Customer to internal Group companies in Switzerland and abroad in compliance with data protection legislation. The transfer of personal data to third parties in Switzerland and abroad is permitted in compliance with the data protection regulations for delivery-related data processing.

2. «Confidential Information» means all economic, business, financial, technical, legal, tax, business, employee or management information or any other information (including data, records, documents, samples, knowledge and all trade secrets) relating to Biketec GmbH, its area of activity or a company affiliated with Biketec GmbH and its area of activity and which is made available to the Customer, its governing bodies, employees, consultants or other third parties acting on its behalf, directly or indirectly by Biketec GmbH or its affiliated company or its governing bodies, employees, representatives, agents or consultants or which comes to their knowledge in any other way. Confidential Information also includes verbal information, copies, reproductions and summaries of any kind. It is also irrelevant whether documents or other carrier media have been created by Biketec GmbH, affiliated companies or other third parties or whether they have been expressly designated as «confidential». Under no circumstances may this Confidential Information be disclosed to third parties and only on a «need to know» basis within the Customer’s business, provided that the recipients have also been obliged to maintain confidentiality.

3. The confidentiality obligations set out in Section XI.2 shall not apply if (i) Biketec GmbH declares its prior written consent to the Customer for the specific individual case in which the Confidential Information is disclosed; (ii) the Confidential Information was demonstrably known to the Customer prior to its release without breaching any obligations under this Confidentiality Agreement; (iii) the Customer obtained the Confidential Information from a demonstrably authorized third party prior to disclosure or subsequently obtained it from a third party without breach of this Agreement; (iv) the Customer is obliged to disclose the Confidential Information by order of a court, order of an authority or by law. In such a case, the Customer shall notify Biketec GmbH in writing in good time before the disclosure so that measures can be taken against the disclosure.

4. The Customer shall inform Biketec GmbH immediately if it becomes aware that Confidential Information has been passed on to unauthorized third parties. The Customer shall use its best endeavors to ensure that such unauthorized third parties destroy the Confidential Information in its entirety.

5. No granting of rights is associated with the disclosure of Confidential Information. All rights remain with Biketec GmbH. Biketec GmbH accepts no liability for the usability of the Confidential Information for the needs of the Customer or for its completeness, correctness or topicality.

6. At the request of Biketec GmbH, or at the latest upon termination of the contractual relationship, all Confidential Information must either be returned to Biketec GmbH at the request of Biketec GmbH or destroyed; evidence of destruction must be provided to Biketec GmbH upon request.

XII. Concluding terms

1. The assignment of the Customer’s rights vis-à-vis Biketec GmbH to third parties requires the prior written consent of Biketec GmbH.

2. The Customer undertakes to comply with all provisions of the UN Global Compact.

3. Amendments and additions to a contract and/or these GTC and any additional agreements must be made in writing (text form is sufficient). This shall also apply to any revision of this requirement for the written form.

4. If a provision of these GTC and/or a corresponding purchase agreement is wholly or partly invalid, this shall not affect the validity of the remaining provisions. In this case, the parties undertake to replace the ineffective provision with an effective provision that comes as close as possible to the economic purpose of the ineffective provision.

5. Substantive German law shall apply, with the exception of the provisions of private international law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).

6. The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship is Frankfurt am Main. However, Biketec GmbH is entitled to take legal action against the Customer at any other legal place of jurisdiction.