General Terms and Conditions for Businesses

Section 1 Scope

For all deliveries of goods and services to entrepreneurs according to § 14 of the German Civil Code (Bürgerliches Gesetzbuch) regardless of whether they are ordered via the Torqeedo online shop (hereinafter "Online Shop") at the internet address www.torqeedo.com/b2b, by email, telephone, or by any other means, exclusively these general terms and conditions (hereinafter "GTC") of your contractual partner, Torqeedo GmbH, Einsteinstrasse 901, Campus Ost, 82234 Wessling Tel. No. +49- (0) 8153-9215100 E-mail: info@torqeedo.com, represented by its managing directors Fabian Bez, Heiko Vietmeier & Takayuki Sato (hereinafter referred to as ”Vendor“), shall apply.

Section 2 General

Deviating conditions of the purchaser shall only apply to the extent they have been explicitly confirmed in writing by the Vendor on a case-by-case basis.

Section 3 Conclusion of Contract

(1) The presentation of the product range in the Online Shop by the Vendor shall not constitute a legally binding offer but an invitation for the purchaser to submit their own offer to conclude a purchase contract. The Vendor emphasizes that the color representation of the products may deviate from the presentation in the online shop.

(2) Placing an order in the Online Shop constitutes an offer to the Vendor to conclude a purchase contract.

(3) The acceptance of the purchaser's offers and the formation of the contract only occur when the Vendor either sends a separate declaration of acceptance by email ("Order Confirmation"), sends a shipping notification for the ordered goods, explicitly confirms the order in writing, or delivers the ordered products by other means.

(4) No contract is concluded for ordered products that are not listed in the order confirmation or the shipping notification, or if they are not dispatched. This may also apply to products that are offered in the online store but, for example, are not available at the time of the order.

(5) Any offers submitted by the Vendor shall always be subject to changes without notice.

Section 4 Delivery

(1) The INCOTERMS© 2020 in the version valid at the time of contract conclusion shall apply. Unless otherwise agreed, INCOTERMS© 2020 EXW Weßling shall apply.

(2) Partial deliveries are permissible, provided they are reasonable for the purchaser. If the purchaser has concluded multiple separate purchase contracts for multiple items, they are entitled to a joint delivery of these items only if expressly agreed upon by the parties.

(3) Unless otherwise agreed, delivery periods shall commence upon conclusion of the contract. If subsequent contract amendments are agreed, the delivery periods shall be extended by the same period of time that lies between the conclusion of the contract and the contract amendment, unless the parties have agreed otherwise.

(4) The Vendor shall be considered in default of its delivery obligation only after the expiration of a specified deadline and following a reasonable notice period set by the purchaser. This provision does not apply if the delivery period was explicitly determined in writing, at least in text form.

(5) Force majeure or operational disruptions occurring at the Vendor or its suppliers, such as riots, strikes, lockouts, official orders, pandemic-related closures, and similar events that temporarily prevent the Vendor from delivering the purchased item on the agreed-upon date or within the agreed-upon period without its own fault, shall lead to a modification of the agreed-upon dates and deadlines by the duration of the delay caused by these circumstances. If a delay results in a deferral of performance of more than four months, the purchaser may withdraw from the contract. Other withdrawal rights remain unaffected.

(6) Notwithstanding the agreed INCOTERMS© 2020, the place of performance shall always be the registered office of the Vendor. If the place of performance is to be another place, this shall be expressly agreed. If the goods are shipped to a place other than the place of performance at the request of the purchaser, the transport costs and, if applicable, the costs of transport insurance shall always be borne by the purchaser, notwithstanding the agreed INCOTERMS© 2020.

Section 5 Shipment / Acceptance

(1) If the purchaser discovers transport damage upon receipt of the goods, he shall notify the transport company and the Vendor thereof without delay, but no later than within five (5) days. If transport insurance has been concluded, the insurance company must be notified immediately.

(2) If the purchaser does not explicitly specify the transportation route, shipping method, or packaging type, the Vendor is entitled to take necessary measures while considering the presumed interests of the purchaser. However, the Vendor shall not be held liable for delays in transportation time.

(3) If the purchaser fails to fulfill its obligation to accept the goods, the Vendor shall be entitled to exercise its statutory rights. If the Vendor demands compensation, the amount shall be 15% of the agreed purchase price excluding VAT. The amount of damages shall be set higher or lower if the Vendor demonstrates a higher loss or the purchaser proves that a lower or no loss has occurred.

Section 6 Warranty, Guarantees

(1) The purchaser is responsible for verifying the functionality of the goods. If the purchaser is a merchant, claims for defects require that the purchaser has fulfilled the legally required duties of inspection and complaint in the appropriate manner. The purchaser must notify the Vendor of any defects in the purchased goods promptly, but no later than within five (5) days of receiving the delivered items, in writing. Defects that cannot be discovered within this period, even with careful examination, must be reported to the Vendor in writing immediately upon discovery.

(2) The delivered item is free of material defects if it corresponds to the product description or – if no product description is available – to the current state of the art. Changes in design and/or execution that do not compromise the functionality or value of the delivered item are reserved and shall not warrant a complaint for defects. No claims for defects exist for defects that do not or only insignificantly affect the value and/or usability of the delivered item.

(3) If the delivered item is defective or does not comply with a guaranteed condition, the Vendor shall, at its discretion, remedy the defect within a reasonable period of time either by rectifying the defect or by delivering an item free of defects ("supplementary performance"). The purchaser shall give the Vendor or its authorized representative the time and opportunity to do so. If this opportunity is not given or if changes or repairs are made to the item subject of the complaint, the Vendor shall be released from its liability for defects.

(4) The parties agree that the purchaser shall hand over the sold item to the Vendor at the place of performance for the purpose of supplementary performance. If the purchaser is unable to deliver the item at the place of performance, the purchaser is entitled, after consultation with the Vendor, to deliver the item at another location designated by the Vendor. The purchaser shall reimburse the Vendor for travel and accommodation expenses incurred for a location other than the place of performance upon first request; this also applies to other costs incurred by the Vendor if the mutually agreed-upon date for supplementary performance is canceled by the purchaser for reasons attributable to the purchaser.

(5) An additional guarantee for goods delivered by the Vendor shall only exist if this has been expressly stated in the Order Confirmation for the respective purchase item.

(6) If a third party, such as a supplier of the Vendor, has provided a manufacturer warranty, the parties agree that the purchaser shall first assert claims under this manufacturer warranty. However, this agreement in no way limits the statutory claims of the purchaser against the Vendor. The purchaser can contact the Vendor directly for supplementary performance at any time without providing reasons.

(7) The purchaser's claims for defects shall become time-barred one (1) year after the transfer of risk. Insofar as the Vendor has assumed a guarantee for the condition of the purchased item or has fraudulently concealed a defect, in cases of injury to life, body, and health, or in cases of intentional or grossly negligent behavior, the statutory limitation periods shall apply.

Section 7 Vendor’s Liability

(1) The Vendor shall be liable without limitations in cases where the cause of the damage is based on intent or gross negligence.

(2) Furthermore, the Vendor shall be liable for slightly negligent breach of essential obligations, the breach of which endangers the achievement of the purpose of the contract, or for the violation of duties that enable the proper execution of the contract and on whose fulfillment the purchaser regularly relies. In this case, however, the Vendor shall be liable only for foreseeable, contract-typical damages. The Vendor shall not be liable for the negligent violation of obligations other than those mentioned in the preceding sentences.

(3) The above limitations of liability shall not apply in cases of injury to life, body, and health, for defects after assuming a guarantee for the condition of the purchased item, and in the event of fraudulently concealed defects.

(4) Liability under the Product Liability Act remains unaffected.

(5) To the extent that the liability of the Vendor is limited or excluded, this shall also apply to the personal liability of employees, representatives, or agents of the Vendor.

Section 8 Design Changes

The Vendor reserves the right to change the design at any time; however, the Vendor shall not have the obligation to also implement such changes in products that have already been delivered.

Section 9 Retention of Title

(1) The goods remain the property of the Vendor until full payment of the purchase price has been made.

(2) The retention of title according to the above paragraph (1) shall also remain in force for claims of the Vendor against the purchaser arising from current business relationship until all related claims have been settled. Upon request of the purchaser, the Vendor shall be obliged to waive the retention of title if the purchaser has indisputably fulfilled all claims in connection with the item of purchase and adequate security exists elsewhere for the remaining claims from the ongoing business relationship.

(3) The goods shall not be resold by the purchaser, either individually or after being incorporated, in particular in a boat, until the full purchase price has been paid.

(4) Should the purchaser defaults on payment of the purchase price, the Vendor shall have the right to withdraw from the purchase contract and to demand the return of the reserved goods from the purchaser.

(5) If the purchaser does not comply with a request for return pursuant to paragraph (4) within a reasonable period set by the Vendor for this purpose, the Vendor shall be entitled to have the reserved goods repossessed by its own employees or by third parties commissioned by the Vendor and, if necessary, to have them removed from the purchaser's boats. For this purpose, the purchaser is obliged to grant the respective employees or third parties access to the respective properties, boats, etc. to the extent required during regular business hours. The purchaser shall bear the costs of the measures taken by the Vendor to take repossession of or remove the reserved goods.

Section 10 Data Protection

(1) The Vendor collects data relating to the purchaser in connection with the management of contracts. The Vendor shall also use information on the purchaser to keep and maintain the purchaser’s customer accounts as well as to present contents like a wish list and make product recommendations. In doing so, the Vendor shall, in particular, comply with the provisions of the German Data Protection and Privacy Act (Bundesdatenschutzgesetz, BDSG). Unless the purchaser has given its consent, the Vendor shall only collect, process and use inventory and usage data relating to the purchaser if and to the extent this is required for managing the contractual relationship.

(2) The purchaser shall only disclose data relating to the purchaser in the context of contract management by third parties acting on behalf of the Vendor.

(3) The purchaser shall at any time have the opportunity to retrieve, change or delete data stored with respect to the purchaser in the purchaser’s user profile when clicking on the “Login“ button torqeedo.com/b2b/en/account. Otherwise, in connection with the purchaser’s consent and additional information such as the purpose, scope, nature and place of data collection, processing and usage, reference is made to the Vendor’s Data Privacy Statement which may be downloaded and printed out at any time when clicking at “Data Protection“ torqeedo.com/b2b/en/customerservice/privacy-policy.html.

Section 11 Prices

(1) The prices provided by the Vendor are separately indicated as gross prices with value-added tax (VAT) or as net prices without VAT, depending on the legal requirements for the corresponding destination country. The prices stated at the time of the purchaser's offer apply.

(2) If unforeseen changes occur in raw material, labor, energy, or other costs that make it unreasonable for the Vendor to fulfill the contract, the Vendor shall be entitled, under the conditions specified in § 313 of the German Civil Code (Bürgerliches Gesetzbuch), to request negotiations for a price adjustment. In case of failure to reach an agreement, the Vendor shall have the right to withdraw from the contract if fulfilling the contract has become unreasonable for the Vendor.

Section 12 Methods of Payment / Right to Offset

(1) The purchaser will make payment in advance before delivery. Payment by cash on delivery or buying on account shall, as a matter of principle, only be allowed on prior agreement.

(2) The option of payment by invoice shall only be available to customers to whom the Vendor has granted a credit limit, and the order falls within this credit limit.

(3) The payment of the purchase price shall be due immediately upon conclusion of the contract. In case of payment by invoice in accordance with the above paragraph (2), payment shall be due within thirty (30) days of the invoice date, unless otherwise expressly agreed. Invoices are generally sent digitally. If the due date of payment is determined by the calendar, the purchaser shall already be in default of payment by missing the deadline. In this case, the Vendor shall be entitled to default interest in the amount of 8 percentage points above the base interest rate.

(4) The obligation of the purchaser to pay default interest shall apply without prejudice to the Vendor’s right of assertion of additional loss or damage incurred as a result of default.

(5) The purchaser may only set off claims against the Vendor if the purchaser's counterclaim is undisputed or has been established by a legally binding judgment; the purchaser may only exercise a right of retention insofar as it is based on claims arising from the same contract.

Section 13 Patents

(1) The Vendor agrees to indemnify the purchaser and its customers against claims arising from the infringement of copyrights, trademarks, or patents in connection with the delivered object unless the design of the delivered object originates from the purchaser. The Vendor’s obligation to indemnify the purchaser shall be capped at the amount of loss or damage foreseeable. An additional condition for indemnification shall be that the purchaser leaves litigation up to the Vendor and that the alleged breach of law is attributable exclusively to the design of the Vendor’s delivered objects without them being combined or used with other products.

(2) The Vendor shall, at its option, have the right to release itself from the obligation assumed in the above paragraph (1) (a) by procuring the necessary licenses for the allegedly infringed patents or (b) by making available to the purchaser a modified delivered object or parts thereof which in case of substitution by the infringing delivered object and/or the infringing part thereof remedies the accusation of infringement by the delivered object.

Section 14 Other provisions

(1) Should individual provisions of these GTCs be or become ineffective, the validity of the remaining provisions shall remain unaffected. In place of the ineffective provision, the relevant statutory provisions shall apply. This applies correspondingly to the filling of any loopholes and gaps in these terms and conditions.

(2) The laws of the Federal Republic of Germany shall apply while excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and other provisions of law governing sales contracts or contracts for work based on international agreements.

(3) Insofar as the purchaser is a merchant, a legal entity under public law, or a special fund under public law, the place of business of the Vendor shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. However, the Vendor shall also be entitled to sue the purchaser at the location of the purchaser's business.

(4) The same place of jurisdiction shall apply if the purchaser does not have a general place of jurisdiction in Germany, has relocated its domicile or habitual place of abode away from Germany to a foreign country after conclusion of the contract or if the domicile or habitual place of abode of the purchaser is not known at the time of filing the lawsuit.

Most recently updated on: August 2023