General Terms and Conditions of Sale and Delivery of Porsche eBike Performance GmbH

 

1. Scope of application

1.1 The following General Terms and Conditions of Sale and Delivery ("T&Cs") apply to all sales made via the Porsche eBike Performance webshop ("Webshop") between Porsche eBike Performance GmbH, Marie-Curie-Straße 6, 85521 Ottobrunn, Germany ("Porsche eBike") and entrepreneurs within the meaning of section 14 German Civil Code (BGB), legal entities under public law or special funds under public law ("Customers"). An "entrepreneur" is a natural or legal person or a partnership with legal capacity acting in the context of their commercial or self-employed capacity when making an order for a replacement part (section 14 (1) German Civil Code (BGB)).

1.2 Porsche eBike's T&Cs apply to the exclusion of all others. Any terms and conditions of the Customer which conflict with, differ from or supplement these T&Cs are hereby rejected and will not be part of the contract, unless Porsche eBike has expressly agreed to their application.

2. Conclusion of contracts

2.1 Contracts can only be concluded in digital form via the Porsche eBike Webshop. In addition to German, Porsche eBike concludes contracts exclusively in English, French, Italian and Spanish.

2.2 Porsche eBike's offers via its Webshop are always non-binding and are not offers in the legal sense of the term. Porsche eBike reserves the right to remove or replace goods from the range of goods offered in the Webshop and to change the properties of the goods.

2.3 The Customer can initially place goods in the shopping cart without this leading to any obligations and can correct information provided at any time before submitting a binding order by using the options to make amendments provided for this purpose and explained in the order process.

2.4 When the Customer places an order by clicking on the button "Pay now", the Customer is making a binding offer to contract. In addition, the Customer expressly confirms in advance that it accepts the T&Cs and have taken note of the cancellation policy and the data privacy notice. Receipt of the Customer's order will be confirmed by email without undue delay. This confirmation will again set out the details of the Customer's order, which also includes these T&Cs including the information on the right of cancellation which the Customer can print out using the "Print" function. The confirmation of receipt of the order does not constitute binding acceptance of the order, but merely serves to inform the Customer that the order has been received. The purchase contract is only concluded upon receipt by the Customer of an order confirmation from Porsche eBike. Porsche eBike reserves the right to combine the confirmation of receipt with a declaration of acceptance.

2.5 In the interest of further technical developments, Porsche eBike reserves the right to make minor changes to the design and properties of the goods even after an order has been accepted, provided this does not unreasonably adversely affect the Customer's interests.

3. Prices and terms of payment

3.1 The respective prices stated in the Webshop at the time of the order apply. All prices are final prices excluding the applicable statutory VAT.

3.2 The payment options are indicated in the Webshop.

3.3 Invoices from Porsche eBike are due and payable in euros upon delivery of the goods and receipt of the invoice.

3.4 The Customer only has a right of set-off and retention if its counterclaims have been finally established by a court of law or are not disputed.

4. Delivery costs

In addition to the prices of the goods stated in the Webshop, a flat-rate fee for delivery will be due which will be stated separately. Further information about the flat-rate fee for delivery is provided with the offers. Should delivery be made in the form of several part-deliveries, which Porsche eBike reserves the right to make, the flat-rate fee for delivery will only be charged once, unless it is the Customer who insists on part-deliveries.

5. Delivery dates, delivery and part-deliveries

5.1 Delivery dates are only binding if Porsche eBike has expressly confirmed these in writing. Delivery dates will be extended by a reasonable length of time if the Customer fails to satisfy any cooperation obligations incumbent upon them in due time or if the Customer requests changes, unless it is Porsche eBike which is responsible for the delay.

5.2 Compliance with delivery dates is subject to Porsche eBike being correctly supplied in due time by its own suppliers, provided that Porsche eBike, for its part, has properly ordered the goods (congruent covering transaction) and Porsche eBike is not responsible for the delay in delivery on the part of its own suppliers. Porsche eBike will notify the Customer as soon as possible if it becomes apparent that delays are expected.

5.3 Porsche eBike has a right to make part-deliveries, provided the Customer can be reasonably expected to accept these.

5.4 If, after the contract has been concluded, the financial circumstances of the Customer significantly deteriorate or change and this puts Porsche eBike's claim to consideration at risk, or if such a situation already existed at the Customer at the time of conclusion of the contract but Porsche eBike only became aware of this subsequently, Porsche eBike may refuse performance until consideration has been provided or until security for the consideration has been furnished.

6. Delay in delivery or performance

6.1 In the event of a delay in delivery or performance Porsche eBike will be liable in accordance with the statutory provisions to the extent that the contract is exceptionally a "time is of the essence" contract or the Customer is no longer interested in further performance of the contract. In this case, if Porsche eBike has not acted with intent, and there has been no injury to life or limb or health, liability will be limited to foreseeable damage typical for the type of contract.

6.2 In other cases, the Customer can – in the event of a delay in delivery or performance – also claim reimbursement of any loss incurred by the delay in addition to performance. However, provided Porsche eBike has not acted with intent or gross negligence and there is no injury to life, limb or health, this claim to compensation in addition to performance is limited to 0.5 % of the net price of the delivery or performance concerned per full week of the delay but to a maximum of 5 % of the net price of the delivery or performance concerned. This has no effect on the Customer's right to rescind the contract and/or to claim compensation for non-performance in accordance with clause 9 once a reasonable subsequent deadline has expired.

7. Retention of title

7.1 Porsche eBike reserves title to the delivered goods ("Reserved Goods") until all claims to which Porsche eBike is entitled against the Customer under the ongoing business relationship now or in the future, including all balance claims from the current account, have been satisfied.

7.2 The Customer will keep safe the Reserved Goods to which Porsche eBike has sole or co-title for Porsche eBike free of charge. The Customer must treat the Reserved Goods with care and insure the Reserved Goods against fire, burglary and water damage at its own expense and with the usual cover amounts for Porsche eBike and provide Porsche eBike with corresponding proof of such insurance upon request.

7.3 In the event of conduct by the Customer in breach of contract, e.g. default with payment, Porsche eBike will have a right to take back the delivery item and the Customer will be under an obligation to surrender it. Due to the retention of title, Porsche eBike may only require the Reserved Goods to be returned if it has rescinded the contract.

7.4 The Customer is not permitted to pledge or transfer the Reserved Goods by way of security for as long as the reservation of title applies. In the event that the Reserved Goods are seized or in the case of other measures by third parties in respect of the Reserved Goods, the Customer will notify Porsche eBike in writing without undue delay so that Porsche eBike can initiate third-party action in opposition pursuant to section 771 German Code of Civil Procedure (ZPO) and other measures to protect its title to the Reserved Goods. If the third party is not in a position to reimburse Porsche eBike for the costs incurred in or out of court in connection with an action pursuant to section 771 German Code of Civil Procedure (ZPO), the Customer will be liable for the loss incurred by Porsche eBike.

7.5 If the Reserved Goods are irreversibly combined or intermixed with other items which do not belong to Porsche eBike, Porsche eBike will acquire co-title to the new item on a pro rata basis on the basis of the value of the Reserved Goods (net purchase price) to the other combined or intermixed items at the time of such combining or intermixing. If the combining or intermixing takes place in such a way that the Customer's item must then be regarded as the main item, it will be deemed agreed that the Customer will transfer co-title to the new item to Porsche eBike on a pro rata basis on the basis of the value of the Reserved Goods (net purchase price) to the other combined or intermixed items at the time of such combining or intermixing. Porsche eBike hereby accepts the assignment.

7.6 The processing or transforming of the Reserved Goods will always be carried out on the behalf of and for the account of Porsche eBike as manufacturer. If the Reserved Goods are processed with other items which do not belong to the Customer, Porsche eBike will acquire joint ownership of the new item on a pro rata basis on the basis of the value of the Reserved Goods (net purchase price) to the other processed items at the time of processing.

7.7 The Customer has a right to resell the Reserved Goods in the ordinary course of business. The Customer hereby assigns to Porsche eBike any claims arising from the sale of the Reserved Goods regardless of whether they have been further processed, combined or intermixed or not, in the full amount or, in cases where Porsche eBike has co-title, in the amount of the joint ownership interest. Porsche eBike hereby accepts the assignment. The Customer has a revocable right to collect the assigned claims. Porsche eBike's right to collect the claim remains unaffected. Porsche eBike will not collect the claims itself and will not revoke the authorisation to collect the claims as long as the Customer meets its payment obligations and is not in default with payment. For legitimate reasons and at Porsche eBike's request the Customer will notify its customers of the assignment and provide Porsche eBike with any information and documents which it needs to assert its own rights.

7.8 If the realisable value of the securities exceeds the value of the claims to be secured by more than a total of 10 % Porsche eBike will, upon the Customer's request, release securities, whereby Porsche eBike will have the right to choose which securities to release.

7.9 If the Reserved Goods are to be used at a place outside the Federal Republic of Germany, the Customer will be under an obligation to inform Porsche eBike without undue delay of all statutory requirements which must be met in order for Porsche eBike's reservation of title to apply and be maintained and, without undue delay, (i) to satisfy the requirements itself, to the extent that this is legally possible, at its own cost or (ii) to assist Porsche eBike to satisfy the requirements at its own cost.

7.10 If the law at the place where the Reserved Goods are to be used does not recognise Porsche eBike's reservation of title but the law at the place where the Reserved Goods are to be used does allow Porsche eBike to retain a comparable security interest in the Reserved Goods, this security interest will be deemed to be agreed accordingly and Porsche eBike may exercise this security interest. The Customer must cooperate with Porsche eBike in connection with measures which Porsche eBike wishes to carry out to protect its right of title or, in place of this, to protect another security interest.

8. Warranty, guarantee

8.1 The Customer must inspect the goods without undue delay after delivery and, if it discovers a defect, notify Porsche eBike of this in writing without undue delay but no later than five (5) working days after delivery. The Customer must notify Porsche eBike in writing and without undue delay of any defects which were not recognisable in the context of its proper incoming goods inspection, but no later than three (3) working days after discovery of the defects. Otherwise the goods will be deemed to have been accepted, unless Porsche eBike maliciously concealed the defect.

8.2 Unless otherwise agreed, Porsche eBike only warrants (gewährleistet) compliance with the respective applicable specifications. In particular, Porsche eBike does not warrant (gewährleistet) that the goods are suitable for a specific purpose. Public statements, recommendations or advertising by Porsche eBike do not constitute contractual qualities of the goods.

8.3 If the goods are defective at the time of passage of risk and this was properly notified in accordance with clause 1, then the Customer must set a reasonable deadline and give Porsche eBike the opportunity, at Porsche eBike's discretion, to subsequently improve the goods or to deliver replacement goods ("Subsequent Performance"). If Subsequent Performance fails, the Customer will be entitled to rescind the contract or to reduce the purchase price in accordance with the statutory provisions. The Customer may only claim compensation in accordance with the provisions of clause 9.

8.4 Subsequent Performance does not include removing the defective goods or installing the new defect-free or repaired item or reimbursing the associated costs if Porsche eBike did not originally have an installation obligation.

8.5 Porsche eBike will not assume a warranty (Gewährleistung) if repairs and other changes are made by the Customer or third parties on its behalf without Porsche eBike's express consent. Porsche eBike will not reimburse the Customer for the costs of such repairs. Porsche eBike will not assume a warranty (Gewährleistung) for damage caused by improper use, abnormal operating conditions, overloading or improper handling, unless Porsche eBike is responsible for such damage.

8.6 The warranty period (Gewährleistungsfrist) is 12 months from delivery of the goods. This period does not apply to compensation claims of the Customer pursuant to clause 9. The Customer's claims in the event that Porsche eBike fraudulently conceals a defect or if Porsche eBike has expressly assumed a guarantee for the condition or quality remain unaffected.

8.7 A guarantee is only provided for products for which a guarantee is expressly intended and after prior registration of the product at https://fazua.com/company/warranty/ or in the FAZUA app, in accordance with the conditions of guarantee available there.

9. Limitation of liability

9.1 Porsche eBike is liable without limitation in cases of culpable injury to life, limb or health. Porsche eBike is also liable for intent and gross negligence. However, if Porsche eBike has not acted with intent and there is no culpable injury to life, limb or health, liability is limited to foreseeable damage typical for the type of contract.

9.2 Porsche eBike is also liable for culpable breaches of those duties which are absolutely essential for the contract to be performed at all and on which the Customer regularly relies and is entitled to rely. However, if Porsche eBike has not acted with intent and there is no culpable injury to life, limb or health, liability is limited to foreseeable damage typical for the type of contract.

9.3 Porsche eBike is also liable if a defect is fraudulently concealed or if a guarantee has been provided. In the latter case, the extent of liability will depend on the scope of the guarantee. Porsche eBike will also be liable in cases of mandatory statutory liability, for example, under the German Product Liability Act (ProdHaftG).

9.4 Unless otherwise stated in these T&Cs, Porsche eBike will not bear any other liability regardless of the legal grounds.

9.5 To the extent that Porsche eBike's liability is excluded or limited in accordance with the above provisions, the same will apply to the personal liability of Porsche eBike's corporate bodies, legal representatives, employees and vicarious agents.

10. Force majeure

Events of force majeure, in particular lawful industrial action, unrest, official measures, war and other armed conflicts, epidemics, pandemics (including the current COVID-19 pandemic) and other external events that were unforeseeable at the time of conclusion of the contract and which are unavoidable and serious will release Porsche eBike from its performance obligations for the duration of the disruption and to the extent of its effects. If such events make delivery or performance significantly more difficult or impossible for Porsche eBike and the disruption is not only temporary, Porsche eBike will have a right to rescind the contract. In the case of temporary impediments, the delivery or performance dates will be extended or postponed by the period of the disruption plus a reasonable start-up period.

11. Data storage and data protection

11.1 Porsche eBike will collect, process and store all personal data communicated by the Customer exclusively in accordance with the provisions of German data protection law.

11.2 Use of the Customer's personal data is necessary to handle the purchase contract with the Customer. Any use which goes beyond this requires the Customer's express consent. The details of the data collected and the respective uses of such data are set out in the data privacy policy available at fazua.com/privacy-policy/.

12. Choice of law

12.1 Place of performance and exclusive place of jurisdiction for all disputes arising from or in connection with contracts between the Customer and Porsche eBike is the place of Porsche eBike's registered office which is Ottobrunn, Germany. However, Porsche eBike also has a right to bring claims against the Customers at the Customer's general place of jurisdiction.

12.2 The contractual relationship between the Customer and Porsche eBike is exclusively subject to German law excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

13. Final provisions

13.1 If a provision of these T&Cs should be or become invalid this will not affect the validity of the other provisions. The same applies if these T&Cs do not contain a provision that is actually necessary. The parties will replace the invalid or unenforceable provision by a valid and enforceable provision which most closely reflects, in economic terms, the essence and purpose of the invalid or unenforceable provision. If these T&Cs or the contracts should be incomplete the parties will conclude an agreement with the content which they would have agreed to within the meaning of these T&Cs had they been aware of the contractual omission when concluding the contract.

13.2 The Customer is not entitled to assign rights or claims arising from the contract to third parties without Porsche eBike's prior written consent. The provision in section 354a German Commercial Code (HGB) remains unaffected by this.

 

 

August 2022