BAYK AG – Terms and Conditions of Service and Sale

§1 General Provisions

  1. The following terms and conditions of sale apply to all contracts concluded between the buyer and us for the delivery of goods. They also apply to all future business relationships, even if they are not expressly agreed upon again. Any differing terms and conditions of the buyer that we do not expressly acknowledge are not binding upon us, even if we do not expressly object to them. The following terms and conditions of sale also apply if we execute the buyer’s order without reservation, even with knowledge of conflicting or differing terms and conditions of the buyer.
  1. All agreements made between the buyer and us for the execution of the purchase contracts are set forth in writing in the contracts.

§ 2 Offer and Conclusion of Contract

  1. An order from the buyer is accepted within two weeks by sending an order confirmation or by dispatching the ordered products.
  1. Our offers are subject to change without notice and are non-binding.
  1. We reserve all proprietary rights, copyrights, and other intellectual property rights to all illustrations, calculations, drawings, and other documents.
  1. The buyer agrees to the use of product designs and images provided to us for use on the website and for informational materials.

§3 Payment Terms

  1. Our prices are ex works, net. Statutory VAT will be shown separately on the invoice.
  1. The purchase price is due immediately.
  1. The buyer is only entitled to set-off, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established, acknowledged by us, or are undisputed. The buyer is only entitled to exercise a right of retention if their counterclaim is based on the same contractual relationship.
  1. We have the right to demand advance payments and security deposits. We are entitled to withdraw from the contract if the buyer has provided false information about their creditworthiness or if, according to objective information, their creditworthiness is not established. The buyer’s claims for damages arising from this withdrawal are excluded.
  1. The buyer is only entitled to set-off if notices of defects or counterclaims are asserted if the counterclaims have been legally established, acknowledged by us, or are undisputed. 5. If performance is to take place more than six months after the conclusion of the contract and our sales prices have changed in the meantime, the purchase price may be adjusted without the buyer having a right of withdrawal.

§ 4 Delivery and Performance Time

  1. Delivery dates or deadlines are non-binding estimates only. The buyer must properly and promptly fulfill all obligations incumbent upon them (including cooperation).
  1. We are liable to the buyer for delays in delivery in accordance with statutory provisions, provided that such delays are due to a willful or grossly negligent breach of contract on our part. Our liability is limited to the foreseeable, typically occurring damage if the delay in delivery is not due to a willful breach of contract on our part.
  1. In the event that a delay in delivery for which we are responsible is due to the culpable breach of a material contractual obligation, we are liable in accordance with statutory provisions, provided that in this case, liability for damages is limited to the foreseeable, typically occurring damage.
  1. Otherwise, in the event of a delay in delivery for which we are responsible, the buyer may claim liquidated damages of 3% of the delivery value for each full week of delay, up to a maximum of 15% of the delivery value.
  1. Any further liability for a delay in delivery for which we are responsible is excluded.
  1. We are entitled to make partial deliveries and provide partial services at any time, provided this is reasonable for the customer.
  1. If the buyer is in default of acceptance, we are entitled to claim compensation for the resulting damage and any additional expenses. The same applies if the buyer culpably breaches its duty to cooperate. Upon the occurrence of default of acceptance or default of payment, the risk of accidental deterioration and accidental loss passes to the buyer.

§5 Transfer of Risk – Shipping/Packaging

  1. Loading and shipping are uninsured and at the buyer’s risk. The risk of deterioration or accidental loss passes to the buyer upon delivery, or, in the case of mail order, upon delivery to the carrier or other person commissioned with the shipment. This also applies if we have assumed the shipping costs or are carrying out the shipment with our own vehicles.
  1. We do not accept returns of transport and all other packaging in accordance with the Packaging Ordinance. The buyer is responsible for disposing of the packaging at their own expense.
  1. If shipment is delayed at the buyer’s request or due to the buyer’s fault, we will store the goods at the buyer’s expense and risk. In this case, the buyer is entitled to the full amount of the shipping costs.

§ 6 Warranty/Liability

  1. The warranty period for all our products is 2 years. This excludes engine components installed in the products, such as the engine, control units, wiring harnesses, and batteries. Engine components and batteries are covered by a one-year warranty and a warranty for the first 17,000 km of mileage, whichever comes first (time/mileage).
  1. The buyer’s warranty claims are only valid if the buyer has properly fulfilled their obligations to inspect and report defects, including transport damage, as required by Section 377 of the German Commercial Code (HGB).
  1. In the event of a defect, we will bear the necessary expenses, provided these are not increased because the object of the contract is located at a place other than the place of performance.
  1. The buyer’s warranty claims expire one year after delivery of the goods to the buyer, unless we have fraudulently concealed the defect.
  1. In the event of complaints regarding defects, the buyer may only withhold payments to the extent that they are proportionate to the defects.

§ 7 Retention of Title

  1. Until all claims, including all outstanding balances from current accounts, that we have against the buyer now or in the future, have been satisfied, the delivered goods (goods subject to retention of title) remain our property. The buyer must handle the goods subject to retention of title with care and insure them adequately against fire, water, and theft damage at their replacement value at their own expense. The buyer must carry out any necessary maintenance and inspection work in a timely manner at their own expense.
  1. Pledging or assigning the goods as security is prohibited. The buyer hereby assigns to us, as security, all claims arising from the resale or any other legal basis (insurance, tort) relating to the goods subject to retention of title (including all outstanding balances from current accounts); we hereby accept this assignment. We revocably authorize the buyer to collect the receivables assigned to us on our behalf and in the buyer’s own name. This authorization to collect may be revoked at any time if the buyer fails to meet its payment obligations. The buyer is also not authorized to assign these receivables for the purpose of debt collection through factoring, unless the factor simultaneously undertakes to pay the consideration in the amount of the receivables directly to us for as long as any receivables remain outstanding from us against the buyer.
  1. Any processing or transformation of the goods subject to retention of title by the buyer shall in any case be deemed to be carried out on our behalf. If the goods subject to retention of title are processed together with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the goods subject to retention of title (final invoice amount including VAT) relative to the other processed items at the time of processing. The same provisions apply to the new item created through processing as to the goods subject to retention of title. In the event of the inseparable mixing of the goods subject to retention of title with other goods not belonging to us, we acquire co-ownership of the new item in proportion to the value of the goods subject to retention of title (final invoice amount including VAT) relative to the other mixed goods at the time of mixing. If, as a result of the mixing, the buyer’s item is to be regarded as the principal item, the buyer and we agree that the buyer transfers proportionate co-ownership of this item to us; we hereby accept this transfer. The buyer shall hold our resulting sole or co-ownership of the item in trust for us.

§ 8 Place of Performance, Jurisdiction, Applicable Law, Miscellaneous

  1. The place of performance and jurisdiction for deliveries, warranty claims, and payments (including actions on checks and bills of exchange) as well as all disputes arising between us and the buyer from the purchase agreements concluded between us and the buyer is the registered office of BAYK GmbH.
  1. The relationship between the contracting parties is governed exclusively by the law applicable in the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the German Act on the Conclusion of International Sales Contracts for Goods is excluded.
  1. We are entitled to use data relating to the goods and payment transactions with the buyer in compliance with data protection regulations.