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General Sales Conditions
General Conditions of Contract (Terms of Delivery and Payment) of
BARBIERI electronic OHG, Brixen, Italy
1. General
1.1.
Orders will be accepted and carried out on the basis of the
following conditions only. In placing an order the purchaser
acknowledges expressively and without exception these terms. No
amendment to these conditions can be accepted unless agreed by
BARBIERI electronic OHG in writing.
1.2. Any general conditions of the buyer are rejected by
BARBIERI electronic OHG and do not form part of the contract.
1.3. If any dispositions of these conditions are not valid or
become inoperative, the validity of the remaining dispositions will
not be affected thereby. Inoperative dispositions shall be replaced
in the way to realise the same economic effect as envisaged.
2.
Quotations/Orders/Deliveries
2.1.
Our quotations and offers are not binding, unless they are
explicitly declared as binding, until an order that is placed on the
basis of the terms of quotation has been confirmed by us in writing.
BARBIERI electronic OHG reserves the right of change of
constructions and form. All technical data, descriptions and
illustrations of the object of supply that may be given in offers,
leaflets, other information, and advertising materials are not
binding. The buyer will hold himself bound to his order during such
period usual for getting a confirmation, but for at least 60 days.
Binding contracts and all their content will be instituted by
written confirmation of BARBIERI electronic OHG only (confirmation
of order). Should BARBIERI electronic’s confirmation differ from the
buyer’s order then only BARBIERI electronic’s confirmation of order
will be decisive, unless the buyer has given his representation
immediately or at least within 8 days after receipt of BARBIERI
electronic’s confirmation.
2.2. Terms of delivery will not be binding unless confirmed
in writing by BARBIERI electronic OHG. Should the delivery not be
effected within such term, that as the case may be, as it has been
confirmed by BARBIERI electronic OHG in writing, the buyer shall
grant reasonable extension of time. Should such term extended not be
observed as the case may be, then both the buyer and BARBIERI
electronic OHG are free to rescind the contract. However, there will
be no damages or compensation for non-delivery. In case any damage
was caused by gross negligence of BARBIERI electronic OHG, the
liability of BARBIERI electronic OHG is limited to 25% of the value
of the order.
2.3. Any communication per e-mail shall be deemed as in
writing.
2.4. All contracts and terms of delivery shall be subject to
regular working conditions. BARBIERI electronic OHG, as to non
delivery or terms of delivery not observed, shall be liable for
wilful refusal or gross negligence only. BARBIERI electronic OHG
shall be released by the buyer from any liability if, as may be
shown, the non-observance of the terms of delivery respectively the
non-performance of the obligation to delivery is due to unforeseen
events such as p.e. war, riot, strike, lock-out that may influence
the departments of BARBIERI electronic’s business responsible for
the execution of order, to delay, of BARBIERI electronic’s
suppliers, difficulties in procurement of materials, carrying-out of
transportation or deficiencies in electric power-supply, problems of
personnel and any case of force majeure. The buyer as well as
BARBIERI electronic OHG then may terminate the contract. BARBIERI
electronic OHG is liable for all kinds of damages only if the damage
was caused by gross negligence or by wilful act.
2.5. Delivery may be done by instalments invoiced separately.
3. Retention
of Title
3.1
All goods delivered will remain in title of BARBIERI electronic OHG
until complete satisfaction of all claims of BARBIERI electronic OHG
resulting from the business relations between BARBIERI electronic
OHG and the buyer (reserved goods). In cases of seizure or distraint
of such reserved goods by third persons the buyer will have to
inform BARBIERI electronic OHG within 24 hours and immediately to
notify BARBIERI electronic’s retention of title to the third-party
creditor as well as to the bailiff acting. The buyer is authorized
to resale the reserved goods against cash. In this case, he
transfers title in this cash to BARBIERI electronic OHG immediately.
If the buyer sells the reserved goods in another way, he assigns his
claims against his buyer to BARBIERI electronic OHG. The buyer shall
give notice to his buyer and to BARBIERI electronic OHG of such
assignment. In addition, the buyer shall mark the relevant positions
in his books and records. Moreover, if in the country of the place
of business of the buyer any registration is necessary to render the
retention of title effective, buyer shall comply with such
registration needs and duly inform BARBIERI electronic OHG about
such needs.
3.2 Should the buyer combine the goods delivered with
premises or movables, he herewith already assigns to BARBIERI
electronic OHG all claims due to him therefore including all other
rights resulting thereof.
3.3 In case of default, the buyer will be obliged to hand
over the goods reserved to BARBIERI electronic OHG upon the request
of the latter. For the settlement of the price of taking back,
BARBIERI electronic OHG reasonably will consider the depreciation
occurred between the date of delivery and of taking back. The total
of claims BARBIERI electronic OHG will have against the buyer
immediately shall be due upon the following events: default of the
buyer – even for agreed instalments -, distraint or seizure of the
reserved goods by third parties and in case of unauthorised removal
of the reserved goods done by the buyer. BARBIERI electronic OHG
then may recover all claims and the goods reserved wherever
situated. This however for the foregoing events will not affect the
crediting of the price of taking back which the buyer is entitled
to, and BARBIERI electronic OHG will settle and credit it to the
buyer within reasonable time, however by compensation and deduction
of BARBIERI electronic’s claims for damages!
4. Prices
4.1 All orders will generally be governed by the prices of
BARBIERI electronic OHG valid at the date of delivery (Recommended
Selling Price List). All prices are calculated from stock ordinary
packing included. All extra packing will be charged to the buyer.
4.2 BARBIERI electronic OHG reserves the right to specify the
currency for the clearing of deliveries and will notify currency of
invoicing to the buyer at the latest when confirming the order.
4.3 Changes of order will allow compensation for variations,
if necessary further invoicing for compensations of packing.
4.4 All prices are to be considered as net prices ex works
Brixen, duty unpaid and excluding turnover taxes/value added taxes.
At all times, the agreed place for delivery of the goods will be
Brixen. All cost for transportation, insurance, customs clearance
etc. will be borne by the buyer. If by order of the buyer BARBIERI
electronic OHG will do the dispatch of the goods, the buyer will
have to pay an advance covering the cost of freight.
5. Devolution
of Risks
5.1 All risks will pass over to the buyer as soon as the
goods will have left the place of BARBIERI electronic’s dispatch.
The same applies for dispatch BARBIERI electronic’s own carriers.
BARBIERI electronic OHG therefore will not be liable for damages by
and during transportation. BARBIERI electronic OHG undertakes to
assign to the buyer possible claims against the carrier. Insurance’s
against the risk of transport, if effected, will be borne by the
buyer ex place of BARBIERI electronic’s dispatch.
5.2 Every dispatch under the foregoing dispositions will be
effected at cost and risks of the buyer.
5.3 The goods will not be insured unless insurance explicitly
has been agreed in writing with the buyer. BARBIERI electronic OHG
will be ready against advanced payment of the cost to effect an
insurance against the risks of transport at cost and charges of the
buyer however, without assuming any responsibility thereby.
5.4 Should the insurance company for whatever reason refuse
the compensation of damages if any to the buyer, the latter however
will be obliged to completely pay the invoices of BARBIERI
electronic OHG for the goods concerned without delay.
6. Payment
6.1
Payment will either be done by prepayment in cash or by irrevocable
and confirmed letter of credit (net) in favour of BARBIERI
electronic OHG at Banca INTESA BCI, Bolzano, IBAN: IT95 K 03069
11620 026074300167, SWIFT: BCIT ITMM 070, BIC: BCIT IT 22 701, ABI:
03069, CAB: 11620, Account no.: 026074300167 and which will be
payable against original invoice and confirmation of dispatch. All
letters of credit should be valid for at least six months. Expenses
of foreign banks and expenses for consular invoices certificates of
origin, cabled confirmations of dispatch etc. that may be required
as the case may be, will be borne by the buyer. For deviating terms
of payment that must be agreed in writing, the following
dispositions will apply as under 6.2 or 6.5.
6.2 Should the buyer fail to meet the term of payment, then
BARBIERI electronic OHG will be entitled to charge without reminder
interest of 5% p.a. higher than the bank rate of the Italian Central
Bank that may be actual at that time, however to at least charge the
interest of BARBIERI electronic’s current account business during
the term of delay.
6.3 Should BARBIERI electronic OHG accept cheques or bills of
change the acceptance will only be done for reasons of payment and
with all reserves. Cost of discounting and recovering as well as
stamp-duties will be refunded by the buyer.
6.4 The buyer is not entitled to assertion of detention or
compensation against due claims of the supplier for payment.
BARBIERI electronic OHG at the moment of invoicing may compensate
its claims resulting from supplies etc. against any claims the buyer
may be entitled to against BARBIERI electronic OHG.
6.5 Should payments remain unsettled in spite of reminders,
should circumstances come into being which noticeable diminish the
credit standing of the customer (e.g. futile seizure, non collection
of bills of exchange or cheques, suspension of payments, petition of
instituting composition or bankruptcy proceedings), then all claims
which BARBIERI electronic OHG have against the customer are due at
once and BARBIERI electronic OHG has the right to restrain from all
orders placed, even if confirmed, and to terminate all contracts
with the customer by written notice.
7. Guarantee &
Complaints
7.1
Goods shall be inspected immediately on delivery. Obvious defects
are to be reported in writing within 10 days after receipt of goods.
Failure to report defects punctually will invalidate any claims to
warranty. Defects which may not be identified on arrival even not by
attentive verification, must be reported immediately after
identification, at the latest within 8 days after the date of
identification, in writing.
In case buyer does not report any defects punctually he looses and
waives all rights, including but not limited to the right to claim
damages, which are derived from such defect.
7.2 For damages caused by evident defects of material or bad
workmanship the obligation to guarantee will be limited to free of
charge replacement of the defective parts that will be delivered
free ex works. However, there will be no claim for guarantee in
cases of non-authorised changes in the product by the buyer or the
end-user, respectively of improper use, non-observance of
instructions for installation and directions for use as well as
non-observance of the directions concerned for electric connection.
The liability of BARBIERI electronic OHG will be limited to the
value of the product delivered. This applies equally to claims
arising from culpa in contrahendo, positive violation of claims and
other legal grounds.
The guarantee further will not cover any damages caused by the
failure of apparatus (losses of earnings and materials etc.). The
recognition of guarantee claims by BARBIERI electronic OHG will not
extend the original period of guarantee.
Labour cost for repairs of defective apparatus done by BARBIERI
electronic OHG under guarantee will be borne by BARBIERI electronic
OHG only when executed in its works Brixen. Any cost of
transportation of apparatus defective or to be replaced by guarantee
will be borne by the client free works Brixen respectively back ex
works Brixen. Should the buyer call for BARBIERI electronic’s
service staff, he will have to take in charge labour cost and
travelling expenses. Reference is made to all points of No.9.
7.3 BARBIERI electronic OHG grants a guarantee for its own
products of 12 months running from the delivery to the first buyer
however of at most 18 months from the delivery ex works Brixen. All
parts of glass, lamps and those parts subject to wear and tear are
excepted from this guarantee. When BARBIERI electronic OHG is
supplying software, only such defects can be acknowledged as are
reproducible at any time. We commit ourselves to correct software
errors which more than insignificantly impede the stipulated use by
installing an improved version of the software or by indicating how
the error may be eliminated or the effects bypassed. BARBIERI
electronic OHG cannot offer guarantee for the uninterrupted or
flawless functioning of the software.
BARBIERI electronic OHG cannot assume liability for the loss or
transformation of data caused by program errors and are not
responsible either for reprocuring data lost in this way, assuming
reprocurement to be necessary.
Claims of warranty (guarantee) will not release the buyer from his
agreed obligation to payment; it is reserved to BARBIERI electronic
OHG to settle the claims of guarantee.
7.4 For damages caused by direct reaction of chemicals or by
undue humidity as well as by normal tear and wear there will be no
guarantee claim.
8. Rights to
software
8.1
All programs remain our property. The programs, documentation and
later supplements may not be made accessible to third parties
without our previous written consent and may neither be copied or
otherwise duplicated – not even for own use.
A non-exclusive and non-transferable user right will be granted for
programs, related documentation, and later supplements for the
internal use of the goods for which the programs are supplied.
9. Repairs and
Returns
9.1
Defective goods may not be returned to BARBIERI electronic OHG
unless BARBIERI electronic OHG has given its prior consent in
writing. For the return of defective goods BARBIERI electronic’s
directions for dispatch must be observed attentively in order to
avoid considerable duties for reimportation, the sender will be
charged with in case of non-observance (No. 7.2 applies
accordingly). Goods of other manufacturers distributed by BARBIERI
electronic OHG (merchandise), such as lenses, never may be addressed
to BARBIERI electronic OHG for repair but to the respective producer
directly.
9.2 Other possible returns not mentioned in No. 9.1 before (p.e.
wrong supply, delivery of higher quantity) without exception need
prior written consent of BARBIERI electronic OHG. Unauthorised
returns will be at the sender’s disposal respectively reimported by
BARBIERI electronic OHG all cost thereof being in charge to the
sender.
10. Any claims
of the buyer others than expressingly mentioned in these conditions
will be refused.
11. Place of Fulfilment and Court
11.1
Parties submit to the jurisdiction of the competent court at the
place of business of BARBIERI electronic OHG in Brixen. BARBIERI
electronic OHG reserves its right to invoke the jurisdiction of any
other court. Buyer explicitly waives and renounces its right to
invoke the jurisdiction of the court, federal or state, of the
United States of America.
This contract is subject to Italian substantive law with the
exemption of the Convention on the International Sale of Goods. |
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