1.0 Scope of Application
These Terms and Conditions of Sale shall apply to all present and future contracts, deliveries and services by us, subject to deviating written agreements, in particular also to contracts for work and services to which the law on sales applies in accordance with § 651 BGB (German Civil Code). Deviating terms and conditions of the customer shall not bind us even if we do not expressly object to them.
2.0 Offer and conclusion of contract
2.1 Our offers are subject to confirmation. Orders, additions and amendments to an order, agreements, oral collateral agreements, guarantees and other assurances are only binding if we confirm them in writing or by telex. Our own brochure statements and those of manufacturers are only authoritative if they are binding performance descriptions and not non-binding descriptive features. If a performance description is available, this does not constitute a guarantee on our part.
2.2 Our order confirmation or, in the absence thereof, our offer shall be decisive for the content of the contract.
2.3 The manufacturer reserves the right to make changes to the design and shape of the sold item, deviations in colour shade and changes to the scope of delivery during the delivery period, provided that the item is not significantly changed or the change is not unreasonable for the purchaser.
2.4 The assignment and transfer of rights and obligations on the part of the buyer requires our express written consent.
2.6 All property rights and copyrights to the offer and all documents and drawings are reserved. The offer and the documents and drawings may not be passed on, published or reproduced or used for any other purpose than the contractually intended purpose without our consent.
3.0 Prices and payments
3.1 The prices contained in the order confirmation or, if no such confirmation exists, the prices contained in the offer are decisive, excluding the respective statutory value added tax and customs duties, which the purchaser must pay or pay separately.
3.2 Unless otherwise agreed, the purchase price is due immediately and is payable within ten days of the invoice date or the date of the request for payment with regard to the contractually agreed instalments/partial payments.
3.3 Payments must be made free of charges. Cheques are accepted on account of payment. Bills of exchange are only accepted on account of payment by virtue of a special agreement and all collection and discount charges are charged.
3.4 If the buyer exceeds the payment deadlines granted, we are entitled - without the need for a prior reminder - to demand interest on the due date at the usual bank rate. In all other respects, the prerequisites and legal consequences of a delay in payment by the buyer shall be determined in accordance with the statutory provisions.
3.5 If the buyer does not meet his payment obligations - also with regard to any agreed advance payments - after a reminder and the setting of a reasonable deadline, or if an application for the opening of insolvency proceedings has been made or insolvency proceedings have been opened against his assets, or if we receive a credit report from which the buyer's credit unworthiness is apparent, we shall be entitled to withdraw from the contract and demand compensation. Furthermore, in this case we are entitled to make all our claims immediately due and payable, regardless of their term.
3.6 The assertion of a right of retention by the buyer, which is not based on the same contractual relationship, is excluded. Furthermore, offsetting against counterclaims is only permissible to the extent that these are undisputed or have been legally established.
3.8 If the parties have agreed on payment by instalments, the entire remaining debt - irrespective of the due date of any bills of exchange - shall become due for payment immediately if the purchaser is in default with at least two consecutive instalments in whole or in part and the amount which he is in default with is at least one tenth of the purchase price.
4.0 Delivery / Delivery Dates
4.1 The delivery dates stated by us are non-binding, unless their binding nature has been expressly agreed in writing or by telex.
4.2 The indication of certain delivery dates by us is subject to correct and timely delivery to us. The purchaser must be notified immediately of our own non-delivery or incorrect delivery.
4.3 Delivery periods shall be extended - even within a delay - in the event of force majeure and all unforeseeable obstacles occurring after conclusion of the contract for which the Seller is not responsible, by the duration of the obstacle to performance. This also includes disruptions in the supply of materials, operational disruptions, labour disputes, traffic disruptions, etc.
4.4 The Seller shall only be in default with his obligation to deliver if, after expiry of the deadline, he has received a reminder from the Buyer setting a further deadline with the threat of refusal. The period of grace set by the buyer must be at least two weeks. The seller can demand a further extension of the deadline if the delay in delivery is due to circumstances for which he is not responsible.
5.0 Shipping and transfer of risk
5.1 The place of performance is the seller's registered office, but the place of delivery is Italy, in this case the respective location of the producing shipyard.
5.2 If the goods are to be transported to another place at the request of the Buyer, this shall be agreed upon in a transport order independent of the purchase contract. In this case, the transport risk, transport and necessary packaging costs, the costs of transport insurance as well as the costs of any additional services shall be borne by the buyer.
5.3 If the goods are shipped at the request of the buyer, the buyer is obliged to notify the seller immediately in writing of any transport damage detected.
6.0 Acceptance, complaints, warranty and liability
6.1 The buyer has the right to inspect the sold item within five working days after receipt of the notification of readiness for delivery at the agreed place of acceptance. The buyer is obliged to take over the object of sale within the aforementioned period. If the object of sale is driven by the buyer or his representatives during a test drive before acceptance, the buyer shall be liable for any damage to the object of sale caused by such drive if it was caused intentionally or by gross negligence.
6.2 The buyer will be presented with an acceptance protocol before handover, which will be gone through in detail with the buyer on acceptance. Insofar as it is proven by entry in the handover protocol that the goods were free of defects at the time of handover, the presumption of § 476 of the German Civil Code (BGB) shall be deemed to have been refuted if the defects are not hidden defects.
6.3 If the Buyer is intentionally or grossly negligently in arrears with the acceptance of the object of sale for more than fourteen days from receipt of the notification of readiness for delivery, the Seller may grant the Buyer an additional period of fourteen days in writing with the declaration that he will refuse handover after expiry of this period. After the unsuccessful expiry of the period of grace, the Seller shall be entitled to withdraw from the contract by written declaration or to claim damages for non-performance. There is no need to set a grace period if the buyer seriously and finally refuses acceptance or is obviously not able to fulfil his payment obligations from the purchase contract within this period. If the seller claims damages, these shall amount to 15% of the agreed purchase price without value added tax. The amount of damages shall be set higher or lower if the Seller proves higher damages or the Buyer proves lower damages. The Seller may invoke the easing of the burden of proof under § 287 para. 2 ZPO (German Code of Civil Procedure) vis-à-vis the Purchaser.
6.4 If obvious defects which were not already notified at the time of acceptance are not notified to the Seller in writing within 2 weeks and non-obvious defects are not notified to the Seller within one year after receipt of the performance, the performance shall be deemed to have been effected in accordance with the contract with regard to such defects. The timely dispatch of the notification shall be deemed to comply with the deadline.
6.5 In the event of a timely and justified notice of defects, the Buyer shall initially be limited to the right to subsequent performance. If subsequent performance fails or is refused, the purchaser may reduce the purchase price or withdraw from the contract. After the second unsuccessful attempt to remedy the defect, subsequent improvement shall be deemed to have failed, unless something else arises in particular from the nature of the item or the defect or other circumstances, for example from the breach of the buyer's obligation to cooperate.
6.6 The Buyer shall hand over the sold item to the Seller at the place of delivery for the purpose of rectification. If the buyer demands the rectification of defects at a different location, he shall bear the additional costs incurred thereby. If it is not possible to rectify the defect at this location, the seller may request that the item be transported to a suitable location at the buyer's expense.
6.7 If a third party has issued a factory guarantee, the claims against the seller shall only be asserted if an out-of-court assertion under the factory guarantee against the third party has been unsuccessful.
6.8 The Buyer's warranty claims pursuant to § 437 p.1,2 BGB (German Civil Code) shall become statute-barred after two years in the case of new items and after one year from the statutory commencement of the limitation period in the case of used items.
6.9 Further warranty claims, in particular claims for damages, are excluded, unless they are based on intent and gross negligence. This limitation shall not apply in the event of culpable breach of material contractual obligations which jeopardise the achievement of the purpose of the contract, in cases of mandatory liability under the Product Liability Act, in the event of injury to life, body or health and in cases where we have fraudulently concealed defects in the item or guaranteed their absence.
7.0 Reservation of title
7.1 The seller reserves the right of ownership of all items delivered by him until the purchase price has been paid in full.
7.2 The buyer shall bear the costs of taking back and selling the object of purchase. The utilization costs amount to 5% of the utilization proceeds without proof. They are to be set higher or lower if the seller proves higher costs or the buyer proves lower costs.
7.3 The Buyer shall be obliged to notify the Seller immediately of any access by third parties to the object of purchase delivered under reservation of title - e.g. seizures, the exercise of the entrepreneurial lien of a workshop. He must inform the bailiff or other third parties of the seller's right of ownership and notify the seller in writing by sending the pledge protocol. He shall bear all costs which must be incurred to cancel a lien and to recover the object of purchase and shall compensate for all damages which arise from the access to the object of purchase, insofar as costs and damages cannot be collected from third parties.
7.4 As long as the retention of title exists, the sale, pledging, transfer by way of security or leasing of the object of purchase as well as the change of a regular location is only permitted with the prior written consent of the seller.
7.5 The Buyer is obliged to keep the object of purchase in proper condition for the duration of the reservation of title and to have all planned maintenance work and necessary repairs carried out immediately - except in emergencies - by the Seller or a workshop named by the Seller.
8.1 The place of jurisdiction is the place of business of the seller, i.e. the local court of Bielefeld or the regional court of Bielefeld.
8.2 German law shall apply exclusively to the contract. The application of UN purchase law is excluded.
8.3 Contracts and amendments thereto must be in writing; the same applies to the cancellation of the written form itself.
8.4 In accordance with § 33 of the Federal Data Protection Act, we point out that the contract data is stored in a data processing system. It is ensured that these stored data do not come to the knowledge of unauthorized third parties.
8.5 The invalidity of individual provisions shall not affect the validity of the remaining provisions. Should a provision be or become invalid, it shall be replaced by a provision which comes closest to the purpose of the invalid agreement in a legally permissible manner.