Ca Go Bike GmbH Terms & Conditions for Dealers

1 General terms and conditions and scope of application

These general terms and conditions of sale and delivery for dealers (“Dealer Terms”) apply to all business relationships between Ca Go Bike GmbH (“Ca Go Bike”, “we”, “us”) and our dealers (“Dealers”), including our quotations, deliveries and services, information and consultations. The Dealer Terms only apply in relation to Dealers who are traders (Unternehmer), i.e. individuals, legal entities or partnerships with legal capacity that are exercising their commercial or freelance professional activities when entering into a legal transaction.
The Dealer Terms apply to contracts regarding sales and/or deliveries of moveable items (“Goods”), regardless of whether Ca Go Bike manufactures the Goods itself or procures them from suppliers. Unless otherwise agreed, the version of the Dealers’ Terms valid at the time of the Dealer’s order or otherwise last sent to the Dealer in text format (Textform) (i.e. recorded on a durable (electronic) medium such as e-mail or fax in readable form) will also apply to similar future contracts as a framework agreement without us having to refer to them again in each individual case.
These Dealer Terms apply exclusively. Any varying, conflicting or supplementary terms and conditions of business – especially general terms and conditions of purchase of the Dealer – will only become part of the contract if and to the extent that Ca Go Bike has expressly consented to their application. This requirement of consent also applies in particular but not exclusively if Ca Go Bike does not expressly reject the Dealer’s general terms and conditions of purchase when provided with them and also if Ca Go Bike provides deliverables or services to the Dealer with knowledge of its general terms and conditions of purchase without reservation. Any oral agreements are to be documented in writing and countersigned by both parties at the request of Ca Go Bike.
Any individual agreements entered into with the Dealer in specific cases (including ancillary agreements, supplements or amendments) will prevail over these Dealer Terms in all cases. A written contract or, where applicable, our written confirmation will be authoritative for the contents of such agreements, subject to evidence to the contrary.

2 Conclusion of contracts

Our quotations are non-binding and subject to change. This also applies to the details on our website (www.cagobike.com) and in our spare parts lists. Only the Dealer’s order constitutes a binding offer.
We are entitled to accept this offer from the Dealer within seven (7) calendar days from the time of submission. We can declare our acceptance either in writing (e.g. in an order confirmation) or by delivering the Goods to the Dealer.
Once the Dealer has received a notice from us accepting the order, a binding contract will come into effect between the parties.

3 Use of trade marks

Use of the word and word/picture marks Ca Go, including “FS200”, “Volle Ladung Leben”, “For all your precious cargo” and “Für deine wertvollste Fracht”, requires the prior written consent of Ca Go Bike, in particular but not exclusively in advertising materials that have not been provided by us and in connection with mail order and internet trading. This is without prejudice to section 24 of the German Trade Mark Act (Markengesetz).
A culpable breach of the above duty under clause 3 of these Dealer Terms by the Dealer constitutes a breach of a material contractual obligation and entitles Ca Go Bike to require the Dealer to pay a contractual penalty at Ca Go Bike’s discretion which is reasonable considering the culpable breach of duty. The minimum value of the contractual penalty will be €1,000.00. The Dealer is entitled to have the value of the penalty reviewed by the court having jurisdiction under the contract. If the court having jurisdiction reaches the opinion that the penalty is unreasonable, it is entitled to reduce or, where appropriate, even increase the penalty. Invoking a continuation of the same breach is excluded where breaches are committed deliberately. This does not affect our right to bring further claims for damages and for cease-and-desist orders relating to future conduct in breach of contract.
The Dealer may not use the trade marks and trading names “Ca Go” or designations that are similar and/or may be confused with them as part of its company name. The Dealer will not directly or indirectly register or obtain protection for any trade marks and/or trading names of Ca Go Bike for its benefit, either alone or in combination with other words or marks. It will not challenge these itself, nor will it assist any third parties in doing so. Moreover, the Dealer agrees not to register or obtain protection for the designation “Ca Go” or any designations that are similar to it or may be confused with it as part of one of its own trade marks, an e-mail address, internet domain or other trading name, whether personally or through third parties.
Ca Go Bike advertising materials remain the property of Ca Go Bike. Similarly, all copyrights existing in such materials remain the sole and exclusive property of Ca Go Bike.

4 Prices

Unless otherwise agreed in individual cases, our prices valid at the time the contract is entered into will apply. Prices are ex works from Ca Go Bike (EXW INCOTERMS® 2020), excluding any transport, insurance, taxes, customs duties, public charges and similar associated fees. Other incidental expenses such as export, transit, import and other costs associated with the export, transit and import of the Goods will be borne by the Dealer.
All prices are in euros and are subject to statutory value added tax. Statutory value added tax will be shown separately in the invoice.
In addition, our prices do not include the costs of packaging. These costs will be invoiced separately to the Dealer. The packaging used by Ca Go Bike is intended exclusively for transporting the Goods and is therefore transport packaging. If the Dealer wants special packaging and/or transport packaging for the Goods, this must be agreed on separately by the parties. The Dealer will bear the costs incurred for this purpose. In addition, the Dealer will provide Ca Go Bike with packaging instructions.

5 Terms of payment

Unless otherwise expressly agreed, Goods will only be delivered against advance payment.
During a payment default, interest will be charged on the prices at the statutory default interest rate applicable at the time. We reserve the right to claim for any further loss or damage caused by default. Our right to already claim interest from the due date (section 353 German Commercial Code (Handelsgesetzbuch)) remains unaffected in relation to merchants (Kaufleute).
Prices are payable without any deductions for early payment. Any deductions for early payment must be expressly agreed on by the parties.
Payment obligations will be deemed to have been satisfied when the payment is received in the account specified by Ca Go Bike. Cheques will only be accepted on the basis of a relevant agreement and only on account of performance. Payment obligations will only be deemed to have been satisfied when Ca Go Bike is able to dispose freely and in full over the payment amount. All costs associated with the payment (e.g. bank charges) will be borne exclusively by the Dealer.
If a payment is made by Sepa direct debit, in the event of return debits the Dealer will be required to pay us a compensatory sum of €10.00 to cover our expenses. The Dealer will be free to prove that the damage caused was lower.
If return debits occur frequently, we reserve the right to only ship the Goods against advance payment. Paying cash on delivery is not possible.
The Dealer will only have the right to set off or retain to the extent that its counterclaims are undisputed or have been finally adjudged. Any counterclaims of the Dealer due to defects in a delivery remain unaffected. Any retention of payments is excluded if the Dealer has a claim against Ca Go Bike that does not arise from the same contractual relationship on which its payment obligation is based. Ca Go Bike has the right to set off or retain or to raise the defence of non-performance of the contract to the extent provided by law.
If it becomes apparent following conclusion of the contract that our claim to the price is at risk due to the Dealer’s inability to pay (e.g. delay in payment, justified concerns regarding a material deterioration in the Dealer’s financial condition or cash-flow insolvency), we will be entitled to refuse performance in accordance with the statutory provisions and to cancel the contract, where applicable after setting a time limit (section 321 German Civil Code (Bürgerliches Gesetzbuch)).
If we become aware of a material deterioration in the Dealer’s financial situation after entering into a contract (e.g. a petition for opening of insolvency proceedings, unfavourable credit information or a default in payment in the meantime), we will be entitled to carry out outstanding deliveries or services only against payment in advance or provision of appropriate security, leading to any delivery or service periods being extended or dates being postponed as appropriate. If we have already delivered Goods, we may require immediate payment of our invoice. The Dealer is not entitled to refuse payment on the grounds that it has not received the invoice, unless one of the cases referred to in clause 5.7 exists.

6 Delivery, shipment, transfer of risks and transport insurance

Unless otherwise stated by Ca Go Bike in writing (in particular but not exclusively in the order confirmation), the Goods will be delivered “ex works” (EXW Incoterms® 2020).
The Goods will be shipped to a different destination at the Dealer’s request and expense (“Sales Shipment”). Unless otherwise agreed, Ca Go Bike is entitled to determine the method of shipment (including but not limited to the forwarding agent, shipping route and packaging) itself.
The risk of accidental loss or deterioration of the Goods will pass to the Dealer at the time of delivery of the Goods. However, where Goods are sent by Sales Shipment, the risk of their accidental loss or deterioration and the risk of delay will already pass to the Dealer upon delivery of the Goods to the forwarding agent, carrier or any other person or agency designated to carry out the shipment. If inspection and acceptance is agreed, it will be authoritative for the transfer of risk. The delivery or inspection and acceptance will be deemed to have taken place if the Dealer delays accepting the Goods.
Insurance for the transport risk will only be taken out if requested in good time in advance by the Dealer. In this case, the costs of the transport insurance will be charged to the Dealer.
Transport packaging and all other packaging as specified in the German Packaging Act (Verpackungsgesetz) will not be taken back by Ca Go Bike; this does not apply to packaging provided on loan. The Dealer is required to dispose of such packaging properly at its own expense. The Dealer will provide Ca Go Bike with written proof that packaging has been disposed of properly upon request.

7 Delivery periods and delivery dates

Compliance with delivery obligations by Ca Go Bike is contingent on the timely and proper fulfilment of the Dealer’s obligations under the contract entered into. This includes clarifying all questions relevant for the order. Furthermore, the Dealer has to provide Ca Go Bike with all documents and data that may be required for the performance of the contract in due time or on the agreed delivery date and in a suitable form. Delivery periods will only begin once all the questions required for Ca Go Bike to be able to perform under the contract have been clarified (including but not limited to questions relevant to the order). The right to raise the defence of non-performance of the contract is reserved.
Any delivery dates and delivery periods for our deliveries and services are non-binding, unless otherwise expressly agreed in writing.
Where delivery periods or delivery dates are non-binding, Ca Go Bike will however only be in default at the earliest once a reasonable delivery period set by the Dealer in writing, which has to be at least eight (8) weeks from the end of the non-binding delivery period or delivery date, has expired to no effect.
Failure to cooperate and any change requests by the Dealer will lead to the dates being appropriately postponed or the periods being appropriately extended.
If Ca Go Bike is not able to keep to binding delivery periods due to reasons for which Ca Go Bike is not responsible (“Non-Availability of Deliverables”), Ca Go Bike will inform the Dealer of this without delay, at the same time notifying it of the expected new delivery period. If the deliverable is also not available within the new delivery period, the parties will be entitled to cancel the contract in whole or in part; Ca Go Bike will refund any consideration already paid by the Dealer without delay. If a partial delivery has already been sent, the Dealer will only be able to cancel the entire contract if it proves that it does not have any interest in the partial delivery. A case of Non-Availability of Deliverables in this sense includes for example if Ca Go Bike’s suppliers fail to obtain supplies on time, if Ca Go Bike has entered into a congruent hedging transaction, if neither Ca Go Bike nor its suppliers are at fault or if Ca Go Bike is not obliged to procure a product in a specific case.
The occurrence of a delay in delivery will be determined in accordance with the statutory provisions. However, a reminder by the Dealer will be required in all cases.
Ca Go Bike’s rights remain unaffected, in particular but not exclusively if the duty to perform ceases to apply (e.g. if the delivery or service and/or cure becomes impossible or unreasonable).

8 Force Majeure

Any unforeseen and unavoidable events which also cannot be prevented or rendered harmless by economically acceptable means and also by exercising the utmost care reasonably to be expected in the circumstances and which also do not have to be accepted by the affected party because of their frequency (“Force Majeure”) will release us from the obligation to deliver and perform for the duration of their existence, even if they occur during an already existing delay. Any delivery periods and delivery dates will be suspended for this time. Events of Force Majeure include, without limitation, official measures, riots, government measures, natural disasters, war, war-like conditions, sabotage, strikes, epidemics, pandemics, quarantine and all other operational disruptions or official interventions for which Ca Go Bike is not responsible.

9 Delays in acceptance

The Dealer is obliged to accept the Goods. If the Dealer delays on acceptance or fails to cooperate or our delivery is delayed for other reasons for which the Dealer is responsible, then Ca Go Bike will be entitled to claim compensation for the damage or losses arising from this, including additional expenses (e.g. storage costs).

10 Retention of title

We reserve ownership of the Goods delivered and any items emerging from the treatment and processing of the Goods (“Goods Subject to Retention of Title”) until all current and future receivables to which we are entitled from the Dealer – including those only created after the contract was entered into – have been settled. In the case of current account receivables, the retention of title secures our current account balance claims. If the Dealer’s cooperation is required for the retention of title, the Dealer agrees to perform all acts required for the retention of title (i.e. in particular but not exclusively to cooperate and to provide documents and records in a suitable form).
The Dealer will hold the items solely or jointly owned by us as a custodian with reasonable commercial care. The Dealer is required to handle the Goods carefully; it agrees in particular but not exclusively to insure them adequately at their original value against destruction, damage, and lightning and risks of fire, water and theft. The Dealer already assigns its claims under the relevant insurance policy to us, assigning them in the ratio of our co-ownership share to all other joint shares where items are jointly owned.
The Goods Subject to Retention of Title may neither be pledged to third parties nor assigned as security before the secured receivables have been paid in full. If the Goods Subject to Retention of Title are pledged by third parties or subject to other intervention by third parties, the Dealer will be required to point out our ownership to the third party and to notify us in writing without delay, handing over the relevant documents so that we are able to enforce our ownership rights. The Dealer will bear the costs of defending against such interventions.
Should the Dealer act in breach of the contract, in particular but not exclusively by failing to pay the due purchase price, Ca Go Bike will be entitled to cancel the contract in accordance with the statutory provisions and/or to require that the Goods be returned due to the retention of title. Requiring that Goods to be returned does not at the same time imply a notice of termination of the contract; instead, Ca Go Bike is entitled to only require that the Goods to be returned and to reserve the right to cancel the contract. If the Dealer does not pay the price due, Ca Go Bike may only assert these rights if Ca Go Bike has previously set the Dealer a reasonable time limit for payment to no effect or if setting such a time limit is not required under the statutory provisions.
The Dealer is entitled to resell the Goods Subject to Retention of Title in the ordinary course of business until further notice. The Dealer already assigns the receivables accruing to it against its buyers or third parties from the resale of the Goods to Ca Go Bike in full. If the assigned receivables are included in a current invoice, the Dealer hereby assigns part of its claim to the balance, including the closing balance, to us to the value of its claim from the resale. If it sells the Goods Subject to Retention of Title after treating or processing them or after combining, mixing or blending them with other goods, or together with other goods, then the assignment of the receivables will be deemed to have been agreed to the value of the part corresponding to the gross price agreed between the Dealer and us plus a security margin of 20% of this price. Ca Go Bike accepts the assignment. The Dealer will also remain entitled to recover the assigned receivables following the assignment until further notice. This does not affect Ca Go Bike’s authority to collect the assigned receivables itself. Ca Go Bike agrees not to collect the receivables itself as long as the Dealer satisfies its payment obligations under the contract, its ability to pay is not impaired and Ca Go Bike does not assert the retention of title by exercising a right under clause10.4. If one of the last-mentioned circumstances has occurred, at Ca Go Bike’s request the Dealer will be required to provide it with all information necessary to collect the assigned receivables, hand over the relevant documents and notify the debtors (third parties) concerned about the assignment. Moreover, in such cases Ca Go Bike will be entitled to revoke the Dealer’s authority to resell the Goods that are subject to reservation of title. The Dealer’s duties referred to in clause 10.3 also apply in relation to the assigned receivables.
If the realisable value of Ca Go Bike’s security exceeds the receivables to be secured by more than 20%, Ca Go Bike will be required to release the security to which Ca Go Bike is entitled at the Dealer’s request. Ca Go Bike is entitled to select which security should be released.
The Dealer is entitled to treat and process the Goods that are subject to reservation of title in the ordinary course of business until further notice. The retention of title covers treating, processing, mixing or combining products arising from Goods of Ca Go Bike to their full value. Treatment, processing, mixing or combining by the Dealer is always performed on behalf of Ca Go Bike. Ca Go Bike is considered the manufacturer. If Goods are treated, processed, mixed or combined with Goods of third parties, then Ca Go Bike will acquire co-ownership of the new item in proportion to the invoice values of the treated, processed, mixed or combined Goods (gross selling price agreed between the Dealer and us). If the Goods Subject to Retention of Title are mixed in such a way that the Dealer’s goods are to be regarded as the main item, it is deemed agreed that the Dealer will transfer co-ownership to Ca Go Bike on a pro rata basis. The Dealer will act as a custodian for the sole ownership or co-ownership arising in this way on behalf of Ca Go Bike. Otherwise, the same applies to any products arising from this as to the Goods Subject to Retention of Title. In the event that the Dealer does not satisfy its obligations to pay, its ability to pay is impaired and/or Ca Go Bike asserts the reservation of title by exercising a right pursuant to clause 10.4, Ca Go Bike will be entitled to revoke the Dealer’s authority to treat, process, mix and combine the Goods subject to reservation of title.
The Dealer is required to provide us with all information requested about the Goods Subject to Retention of Title and the assigned receivables and to hand over the relevant documents to us. The Dealer has to report the assignment of the receivables from resales to the debtors concerned if requested to do so by us.
If the Dealer has defaulted on payment or breaches its obligations arising under these Dealer Terms, notwithstanding our other rights we will be entitled to disclose the assignment of Goods as security and the Goods Subject to Retention of Title and to realise the assigned receivables in order to satisfy any claims against the Dealer that are outstanding. In this case, the Dealer will grant us or our designated representatives immediate access to the Goods Subject to Retention of Title and surrender them. A request by us that Goods be surrendered or any levy of attachment applied by us will not be deemed to be cancellation of the contract.

11 Warranty

We do not provide any warranty for wear and tear due to normal use or defects caused by improper use, improper handling, improper storage or failure to comply with the manufacturer’s instructions or assembly or operating instructions. The Dealer’s warranty rights due to defects remain unaffected by this.
Unless otherwise specified below, the statutory provisions apply to the Dealer’s rights in the event of material defects and defects in title.
Ca Go Bike will in principle not be liable for defects that the Dealer was aware of or was not aware of due to gross negligence at the time of conclusion of the contract (section 442 German Civil Code).
For the Dealer’s warranty rights to apply, the Dealer must have complied with its statutory obligations to examine and to report defects (sections 377 and 381 German Commercial Code) in the proper manner. If the Goods are subsequently processed, an examination has to take place immediately before processing in all cases. If a defect becomes apparent upon delivery, examination or at another later point in time, this must be reported to Ca Go Bike in writing without delay. Obvious defects are to be reported in writing within two (2) working days from delivery and defects that are not apparent during the examination within the same period from the time of discovery in all cases. If the Dealer fails to examine the delivery and/or to report defects in the proper manner, our liability for a defect that was not reported or not reported in the proper manner will be excluded in accordance with the statutory provisions.
If the Goods supplied by us are defective at the time of passing of risk, we will remedy the defect (“Rectification”) or deliver Goods that are free from defects (“Replacement Delivery”), at our option. Ca Go Bike’s right to refuse to take measures to cure defects under the statutory conditions remains unaffected. Ca Go Bike will be entitled to make the cure for which it is liable dependant on the Dealer’s payment of the outstanding purchase price. However, the Dealer will be entitled to withhold a part of the purchase price that is reasonable in proportion to the defect.
The Dealer is required to give Ca Go Bike the time and opportunity necessary to cure the defects it is liable for, in particular but not exclusively to hand over the Goods subject to the defect notice and/or provide access to them for test purposes. If a replacement item is delivered, the Dealer will be required to return the defective item to Ca Go Bike in accordance with the statutory provisions. Curing defects does not involve either deinstalling the defective item or reinstalling it again if Ca Go Bike was not originally obliged to install it.
Unless otherwise agreed in writing, all information regarding our Goods, in particular but not exclusively diagrams, drawings, technical details and references to standards and specifications in our catalogues and prospectuses do not constitute warranties as to qualities and characteristics and/or warranties as to durability within the meaning of sections 443 and 276 German Civil Code, but only descriptions or designations. The same applies by analogy to any deliveries of samples or specimens.
We will pay or reimburse, as appropriate, the expenses necessary for the purpose of curing defects, including without limitation transport, transit, labour and materials costs and, where applicable, the costs of deinstalling and installing, in accordance with the statutory provisions and these Dealer Terms if a defect actually exists. Otherwise, we may claim reimbursement of the costs incurred as a result of the unjustified request to remedy a defect from the Dealer if the Dealer was aware that there was actually no defect or was not aware of this due to negligence. The costs incurred will be invoiced to the Dealer by Ca Go Bike on a time and materials basis. In addition, we will bear the necessary expenses only to the extent that these expenses are not increased by the fact that the Goods were subsequently taken to a place other than the place of delivery, unless this shipment is in keeping with the intended use. The Dealer agrees to cooperate as required for the purpose of testing and curing defects. This includes, without limitation, informing us about any defect in the Goods and providing us with the Goods for the purpose of cure. In addition, the Dealer will do everything reasonable that is within Dealer’s sphere of influence to contribute to a reduction in the expenses necessary for the purpose of testing and remediation. To this end, the Dealer will consult with Ca Go Bike in good time prior to the cure, including agreeing with Ca Go Bike in advance on how the Goods will be made available and have it approved by Ca Go Bike (e.g. proper packaging, means of transport and transport route).
Any claims for damages due to defects in the Goods only exist under the conditions referred to in clause 12 of these Dealer Terms.

12 Claims for damages

Unless otherwise provided in the contract as well as the provisions set out below, Ca Go Bike will be liable in accordance with the statutory provisions in the case of breach of contractual or non-contractual duties.
Claims for damages by the Dealer, regardless of the legal grounds, in particular but not exclusively claims for damages due to a defect in the Goods supplied by Ca Go Bike, only exist within the scope of strict liability in the event of wilful misconduct and gross negligence. In the event of ordinary negligence, subject to statutory limitations of liability (e.g. care in one’s own affairs; immaterial breaches of duty) we will only be liable for
1. damage arising from injury to life, body or health,
2. damage arising from the breach of a material contractual obligation, i.e. an obligation whose fulfilment is a prerequisite for the proper performance of the contract and on whose observance the contracting partner regularly relies and may rely (such as deliveries of Goods that are free from defects); in such a case, however, our liability will be limited to compensation for foreseeable, typically occurring damage.
The above limitations of liability also apply to breaches of duty by the legal representatives of Ca Go Bike and persons acting on its behalf.
The above limitations of liability will not apply to the extent that a defect was fraudulently concealed or a warranty was given for the quality of the Goods and to claims by the Dealer under the German Product Liability Act (Produkthaftungsgesetz).
Ca Go Bike will not be liable for defects arising as a result of incorrect assembly of the Goods by the Dealer (in particular but not exclusively if the Goods were not assembled professionally, in accordance with the state of the art or in accordance with the assembly instructions, if provided by Ca Go Bike) and for which Ca Go Bike is not responsible. The Dealer has to demonstrate and prove that the Goods were assembled professionally and in accordance with the state of the art and the assembly instructions.

13 Limitation periods

The warranty period is one (1) year from delivery of the Goods.
This warranty period does not apply to claims for damages by the Dealer arising from injury to life, body or health or wilful or grossly negligent breaches of duty by Ca Go Bike or its legal representatives or agents acting on its behalf or in the case of fraudulent intent. These claims and any claims under the German Product Liability Act will become time-barred exclusively in accordance with the statutory provisions.

14 Tools

It is possible that tools, parts, moulds, devices, test set-ups and other equipment (together “Tools”) that are made available to the Dealer by Ca Go Bike may be required to assemble the Goods.
Any Tools provided by Ca Go Bike will be used by the Dealer exclusively for assembling the Goods ordered by the Dealer. The intention is that the Tools should be used to ensure that the Goods are assembled to function properly and with a perfect fit. The Tools remain the property of Ca Go Bike. The Dealer is not entitled to use the Tools for other products.
The Dealer is required to carry out an incoming inspection of the Tools, i.e. on receiving the Tools the Dealer is required to immediately accept and check the quantity provided and to check that the Tools are complete and free from defects. The results of the incoming inspections to be carried out by the Dealer are to be reported to Ca Go Bike without delay in writing (i.e. in writing and signed or in text format) and photos are to be provided to Ca Go Bike on request.
The Dealer agrees to store the Tools properly and separately from any tools of third parties. The Dealer will mark Tools as the property of Ca Go Bike. In addition, the Dealer agrees to protect Tools from access by third parties. If Tools are accessed by third parties, the Dealer must inform Ca Go Bike of this in writing without delay. The Dealer will assist Ca Go Bike in defending its rights against such access without delay and without invoking rights to refuse performance.
Upon receiving the Tools, the Dealer undertakes to handle and keep the Tools received carefully and with reasonable commercial care. The costs of keeping the Tools are included in the remuneration for the Goods. The Dealer is responsible for insuring the Tools while in its safe-keeping and will bear the related insurance costs. The Dealer will be liable for loss, theft, damage or destruction of the tools in its safe-keeping.
Ca Go Bike may call on the Dealer to surrender the Tools at any time without providing advance notice if the Tools are no longer needed by the Dealer in order to perform its contractual obligations. In such a case, the Dealer is required to surrender the Tools to Ca Go Bike without delay and to deliver the Tools to the designated destination DDP Incoterms® 2020. Any right of the Dealer to retain the Tools is excluded unless the Dealer has a counterclaim against us that is undisputed or has been finally adjudged.
The Dealer will guarantee that the Tools are adequately insured against, in particular but not exclusively, risks of mains water, storm, hail, fire and consequential fire damage, burglary, explosions and vandalism by taking out insurance to their value. The costs of the insurance will be borne by the Dealer and, at the request of Ca Go Bike, the Dealer will provide evidence of the insurance cover by providing an insurance certificate and proof of payment of the insurance premium. Ca Go Bike is to be notified without delay about any interruptions in the insurance coverage. Ca Go Bike is to be included in the insurance cover as a co-insured person.

15 Confidentiality

The Dealer will not disclose any confidential documents of Ca Go Bike, samples, drawings, sketches, Tools, business intentions, personal data, data (CAD data, tables, materials data, etc.) or any other know-how, regardless of their contents, as well as the contents of this contract itself and any other documents (together “Confidential Information”) that are provided to it or become known to it in connection with the parties’ cooperation to third parties or disclose them, reproduce them or exploit them without authorisation for its own business purposes or otherwise make them accessible to third parties either during the term of or after the end of the contract. This applies by analogy to the conclusion and contents of the contract. The Dealer will also impose this obligation on its employees to the extent that they require Confidential Information for the performance of their duties.
Similarly, the Dealer will use any technical information, experience, knowledge or designs that become accessible to it or are disclosed to it in a confidential manner in connection with the contractual cooperation solely within the scope of the cooperation for the contractually agreed purposes and will treat them as confidential during the term of and after the end of the contract and will not make them accessible to any third party.
The Dealer is required to implement appropriate confidentiality measures, i.e. in particular but not exclusively to comply with the measures laid down by Ca Go Bike for the protection of Confidential Information and to take appropriate precautions to prevent unauthorised persons from gaining access to the Confidential Information.
This duty of confidentiality does not apply to Confidential Information that
was already known to the Dealer outside the contractual relationship;
was lawfully disclosed by third parties;
is or becomes publicly available; or
is released by Ca Go Bike.
The duty of confidentiality for Confidential Information ends five (5) years following delivery.
A culpable breach of the above confidentiality obligations by the Dealer constitutes the breach of a material contractual obligation and entitles Ca Go Bike to claim a contractual penalty from the Dealer that is reasonable considering the culpable breach of duty at its own discretion. The minimum value of the contractual penalty will be €10,000.00. The Dealer will be entitled to have the value of the contractual penalty reviewed by the court having jurisdiction under the contract. If the court comes to the conclusion that the contractual penalty is unreasonable, it will be entitled to reduce the penalty or, if necessary, to increase it. Invoking a continuation of the same breach is excluded where breaches are committed deliberately. This does not affect our right to bring further claims for damages and for cease-and-desist orders relating to future conduct in breach of contract.
The Dealer is aware that a wilful breach of the above confidentiality obligation may entail legal consequences not only under civil law but also under criminal law. If the above confidentiality obligations are breached intentionally, Ca Go Bike therefore expressly reserves the right to take steps under criminal law.

16 Governing law

The contractual relationship between Ca Go Bike and the Dealer is governed by the laws of the Federal Republic of Germany, without regard to uniform international law, in particular but not exclusively UN sales law.

17 Place of jurisdiction, arbitration actions and place of performance

If the Dealer is a merchant, a legal entity governed by public law or a special public fund, then the exclusive place of jurisdiction for all disputes arising directly or indirectly between the Dealer and Ca Go Bike will be the court at the place where the registered office of Ca Go Bike is situated. The same applies if the Dealer is a trader for the purposes of section 14 German Civil Code. However, Ca Go Bike is in all cases also entitled to bring a legal action at the place of performance of the obligations under the contract or a controlling individual agreement or at the general place of jurisdiction of the Dealer. Any overriding statutory provisions remain unaffected, including not limited to provisions regarding exclusive jurisdiction.
At the option of the party bringing the action, all disputes between the parties arising directly or indirectly from the contractual relationship may alternatively be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one or more arbitrators appointed in accordance with these Rules. In this case, the place of arbitration will be Munich, Germany. The language of arbitration will be English. The law applicable to the arbitration agreement and the arbitration proceedings will be German law.
The place of performance for all obligations arising under the contractual relationship is at the place where the registered office of Ca Go Bike is situated, unless agreed otherwise (e.g. in the order confirmation).

18 Miscellaneous

The assignment of all claims of the Dealer against Ca Go Bike to third parties requires our express written prior consent in order to be effective. This is without prejudice to section 354a German Commercial Code.
If any provision of the Dealer Terms is or becomes ineffective or unenforceable, whether in whole or in part, the remainder of the provisions of the Dealer Terms will remain in full force and effect. If dispositive law is not available, the parties agree to replace the ineffective or unenforceable provision with an effective or enforceable provision by which the intended contractual purpose is achieved in a manner permitted by law. The same applies by analogy to any incomplete provisions in this contract.

Version: November 2022