General Conditions of Contract (Terms of Delivery and Payment) of BARBIERI electronic OHG, Brixen, Italy
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.
2.1. 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!
4.1 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.
6.1 Payment will either be done by prepayment in cash or by irrevocable and confirmed letter of credit (net) in favour of BARBIERI electronic OHG 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.