General Terms and Conditions of Daniele Moto International OHG
- Conclusion of contract, text form, transfer of the rights and duties of the purchaser
- The order is binding on the purchaser for four weeks. The contract is concluded once the seller confirms acceptance of the order within this time limit in written or text form, or once the seller makes the delivery. However, the seller shall immediately notify the purchaser in writing or in text form if it does not accept the order. The purchaser’s statutory rights for distance-selling contracts, consumer loan contracts or financing aid remain unaffected.
- All agreements must be set out in writing or in text form. This also applies to side agreements and assurances, as well as to post-contractual amendments and rescission of the contract.
- The transfer of the purchaser’s rights and duties arising from the contract requires the consent of the seller in the same form.
- Payment, payment default, set-off
- The purchase price and prices for incidental services, as well as disbursed costs, are due for payment in cash upon handover of the purchase object, but no later than eight days after the receipt of the written notice of availability and receipt (handover or dispatch) of the invoice.
- Alternatively, the purchaser may issue Moto International with a SEPA direct debit mandate. The collection of the direct debit occurs no earlier than 1, and no later than 6, bank business days after invoicing. The deadline for pre-notification is shortened to one day. The purchaser shall ensure that cover is available on the account. Costs that are incurred on the basis of non-redemption or chargeback of the direct debit shall be borne by the purchaser, provided that the non-redemption or chargeback has not been caused by Daniele Moto International.
- Daniele Moto International may demand cash in advance for individual purchasers, without giving a reason.
- Default interest will fall due in the amount of 6 percentage points p.a. above the base interest rate. For transactions in which a consumer is not involved, this increases to 9 percentage points above the base interest rate.
- The purchaser may only offset against claims of the seller if the purchaser’s counterclaim is undisputed or if a legally binding title exists for this; they may only exercise a right of retention if it is based on claims arising from the purchase contract.
- Delivery and delivery default
- Delivery dates or delivery periods may – bindingly or non-bindingly – only be agreed in writing or in text form. In case of doubt, delivery periods begin upon conclusion of the contract. If contractual amendments are subsequently agreed, the seller may demand the arrangement of a new delivery date or delivery period.
- Force majeure or operational disruptions that have occurred for the seller or their supplier, e.g. due to revolt, strike, lockout, which temporarily prevent the seller from delivering the purchase object on the agreed date or within the agreed period, through no fault of their own, will result in modification of the delivery dates and periods, which will be extended by the duration of the performance disruptions caused by such circumstances.
- If a relevant disruption leads to an unreasonable delay in performance, the purchaser may withdraw from the contract. As a rule, a minimum delay of four months is deemed as unreasonable.
- The purchaser has the right to inspect the purchase object within eight days after receipt of the notice of availability at the agreed inspection site and has the duty to accept the purchase object within this time period.
- If the purchaser fails to accept the purchase object within 14 days from receipt of the notice of availability, the seller may grant the purchaser a minimum grace period of one week in writing or in text form, with the declaration that they will reject acceptance after this grace period. After the fruitless expiry of the grace period, the seller may withdraw from the purchase contract in writing or in text form or demand compensation for damage instead of performance.
- It is not necessary to grant a grace period if the purchaser has seriously and definitively refused acceptance or is obviously unable to pay the purchase price within this time.
- If the seller demands compensation, this will amount to 15% of the agreed purchase price for a newly produced purchase object, or otherwise 10%. The compensation for damage will be adjusted higher or lower if the seller demonstrates greater damage or the purchaser demonstrates lower damage.
- Retention of title
- The purchase object shall remain the seller’s property until claims to which the seller is entitled on the basis of the contract are compensated. The retention of title also exists for all claims the seller acquires subsequently against the purchaser in relation to the purchase object, e.g. due to repairs or deliveries of spare parts, as well as other services. If the purchaser is legal entity under public law, a special fund under public law, or a merchant for whom the contract is part of the operation of their commercial business, the retention of title also applies to claims of the seller arising from their ongoing business relationship with the purchaser.
- During the term of the retention of title, the seller is entitled to hold part two of the registration certificate (vehicle registration document).
- Upon the purchaser’s request, the seller shall waive the retention of title if the seller has fulfilled all of the claims in relation to the purchase object and if another appropriate security exists for the remaining claims arising from the ongoing business relationship.
- As long as the retention of title exists, a sale, pledge, security transfer, rental or other surrender or modification of the purchase object that impairs the seller’s security is only permitted with the seller’s prior written consent.
- In the case of third-party seizures, and particularly the pledging of the purchase object or exercise of the entrepreneur’s right of lien by a workshop, the purchaser shall notify the seller at once in writing or in text form, and shall also inform the third party at once about the seller’s retention of title.
- If the conclusion of fully comprehensive insurance has been agreed, the purchaser shall conclude this at once for the duration of the retention of title (an appropriate excess is permitted) with the proviso that the seller is entitled to the rights arising from the insurance contract. The purchaser authorises the seller 1) to apply for a coverage certificate for the comprehensive vehicle insurance and 2) to receive information about the aforementioned insurance relationship. If the purchaser fails to fulfil this obligation in spite of a written warning by the seller, the seller may conclude the fully comprehensive insurance themselves at the purchaser’s expense, disburse the insurance premiums, and collect them as part of the claim arising from the purchase contract.
- The seller may demand the return of the purchase object, if the purchaser
- wholly or partially enters into arrears with at least two consecutive instalments, the amount in arrears is at least 10% of the total purchase price and the purchaser fails to pay, in spite of a warning from the seller in writing or in text form, with a minimum two-week grace period,
- has submitted the schedule of assets (sworn affidavit), has been entered in the debtors’ list or insolvency proceedings have been opened in respect of their assets or have not been opened due to a lack of sufficient assets or
- fails to fulfil other obligations from the foregoing Subsections I. to IV. In this case, the purchaser’s rights of retention that are not based on the purchase contract are excluded. If the seller repossesses the purchase object, they shall compensate the purchaser with the normal sales value of the purchase object at the time of repossession. Upon request by the purchaser, which must be expressed immediately after repossession of the purchase object, a state accredited and sworn independent expert shall calculate the normal sales value. The seller may set the purchaser another appropriate time limit for fulfilment of their obligation and offer to return the purchase object to the purchaser upon fulfilment of the purchaser’s obligation within this time limit. Otherwise, the seller is entitled to sell the purchase object and shall compensate the purchaser with the normal sales value. The purchaser shall bear the costs for repossession and sale of the purchase object. The sale costs amount to 5% of the sales proceeds, without evidence. They shall be adjusted higher or lower if the seller demonstrates higher costs or the purchaser demonstrates lower costs.
- Warranties and damages
- The seller warrants that the goods are free of defects in accordance with Section 434 BGB [German Civil Code] for one year from delivery of the purchase object. This warranty is extended to two years from delivery for consumers with newly manufactured items. Unless stipulated otherwise by the aforementioned regulation, the benchmark for freedom of defects is the state-of-the-art for comparable vehicles of the purchase object’s type upon delivery; details about the scope of delivery, appearance, performance, dimensions and weights, fuel consumption, operating costs etc. of the purchase object in descriptions that are valid at the time of conclusion of the contract are considered part of the contract, insofar as they are regarded as being approximate and do not constitute guaranteed characteristics, but serve as a benchmark for determining whether the purchase object is free of defects, unless a guarantee is explicitly agreed in writing or in text form. Engineering design or shape changes, discrepancies in the colour and changes to the scope of delivery by the manufacturer/importer remain reserved during the delivery period, provided that the purchase object has not been modified significantly and the changes are reasonable for the purchaser. Insofar as the seller or the manufacturer/importer uses characters or numbers to refer to the order or the ordered purchase object, rights cannot be derived solely from this.
- The purchaser is entitled to supplementary performance, i.e. elimination of defects and damage caused by such defects to other parts of the purchase object (repair). A purchaser who is a consumer may instead also demand delivery of a purchase object that is free of defects, insofar as this cannot be refused by the seller in accordance with Section 439 Subsection 3 BGB [German Civil Code] or Section 275 Subsection 2 or 3 BGB (replacement delivery). Claims for damages may only be asserted in the case of a sale of newly manufactured items and in the event that they are caused by wilful intent or gross negligence on the part of the seller.
- For the processing of the repair, the following applies:
- The purchaser may only assert claims for supplementary performance against the seller. The purchaser shall notify the seller of defects, or have the seller record the defects themselves, immediately after their discovery.
- Supplementary performance must occur immediately in accordance with the technical requirements, by means of replacement or repair of faulty parts, without charging for such expenses that are necessary for the purpose of supplementary performance, and particularly transportation, travel, labour and material costs. Replaced parts will become the seller’s property
- For the parts that are installed during supplementary performance, a warranty is issued on the basis of the purchase contract until the expiry of the warranty period for the purchase object.
- If the supplementary performance fails, and particularly if the defects cannot be eliminated or additional attempts at supplementary performance are unreasonable for the purchaser, the purchaser may demand a discount (reduced payment) or withdraw from the contract. The seller may avoid the assertion of such claims with a replacement delivery of a non-defective purchase object.
- Guarantee promises may only be issued validly in writing or in text form. In the event of a lack of guaranteed characteristics, a claim for damages due to non-performance will remain unaffected.
- Warranty obligations are not affected by the purchase object’s change of ownership.
- Warranty obligations do not exist if the defect or damage has been caused by the fact that
- the purchaser has not indicated or recorded a defect or, in spite of being requested to do so, the purchaser has not immediately provided the opportunity for supplementary performance or
- the purchase object has been improperly handled or overused, e.g. in motorsports competitions, or
- the purchase object was previously repaired, serviced or maintained improperly by a company that was not recognised by the manufacturer/importer for such servicing, maintenance or repairs, and if this was evident to the purchaser or should have been evident or
- parts have been installed in the purchase object whose use was not approved by the manufacturer/importer or the purchase object has been modified in a manner that is not approved by the manufacturer/importer or
- the purchaser has not followed the regulations on the handling, servicing and maintenance of the purchase object (e.g. operating instructions).
If the delivery item has been installed in a motor vehicle and a specific operating permit or official acceptance inspection is required for this, the seller shall not guarantee that they will be granted.
- Natural wear and tear is excluded from the warranty.
- If the seller defaults on supplementary performance, the purchaser shall have the right to refuse compensation of a still-outstanding purchase price claim in an appropriate amount until completion of supplementary performance.
- The aforementioned warranty claims expire at the end of the warranty period in accordance with clause 1. For defects claimed within the warranty period that have not been rectified by expiry of the warranty period, a warranty will be issued until rectification of the defect; the limitation period for these defects shall be suspended during this time. In the event of circumstances under sentence 2, however, the limitation period will end three months after declaration by the business establishment used that the defect has been eliminated, or that no defects exist.
- According to the present state-of-the-art, it cannot be guaranteed that components are compatible with one another. Consequently, the seller issues no guarantee for the compatibility of the purchased object with other components.
- If the delivery object contains third-party software that has not been developed by the seller or the manufacturer of the delivery item, the seller is not liable for a possible breach of third-party copyrights, unless the purchaser proves that the seller was aware of existing third-party rights or was grossly negligent by not being aware of them.
- The seller is fully liable for injury to life, limb or health, as well as property damage and pecuniary damages caused by wilful intent or gross negligence. For property damage and pecuniary damages that have been caused by negligence, the seller is only liable for the infringement of a material contractual duty, however, liability is limited to the foreseeable and typical contractual damages at the time of conclusion of the contract.
- Modifications: General operating licence, insurance protection, limitation of liability
- The customer is aware that the use of delivery items that are not explicitly designated by the seller as being licensed for the EC or for public roads will result in the termination of the general operating licence. In addition, any kind of modification to the delivery items with goods that are licensed for the EC or for public roads will result in the termination of the general operating licence.
- The consequence of this is that any vehicle that has been modified in such a way may not be used on public roads. The required technical inspection by the TÜV [German technical inspection association] for use in public traffic must be organised by the purchaser under their own initiative and at their own expense.
- The purchaser is also aware that the lack of a general operating licence may also result in the termination of associated insurance policies.
- In view of the variety of products and equipment in the motor vehicle sector, Daniele Moto International OHG is incapable of checking and guaranteeing all characteristics for compatibility. Suitability for inspection by the TÜV is not agreed.
- The purchaser is aware and acknowledges that use of the delivery item leads to technical modification of the motor vehicle. The purchaser is aware that the engine and possibly also other motor vehicle power trains and components are exposed to higher stress and load and that this may lead to higher wear and tear on the motor vehicle. In particular, overuse and long-term running may have a negative impact on the service life of the engine and its power trains.
- Consequently, upon installation of the delivery item, the seller is only liable for such damage to the motor vehicle that is caused by a defective delivery item.
- Daniele Moto International OHG accepts no liability for damage occurring during the running of a modified motor vehicle without a general operating licence or without insurance protection, and particularly accepts no liability for other parts of the motor vehicle that may be excessively stressed by enhanced performance.
- The seller expressly points out that the installation of the delivery item may lead to the loss of the vehicle manufacturer’s guarantee/warranty of the vehicle seller.
- The seller is liable for damages on the basis of the following provisions – irrespective of the legal grounds – if they, their legal representative or their vicarious agent has culpably caused them.
- In the event of wilful intent or gross negligence, the seller is liable to the purchaser without limitation.
- In the event of minor negligence, the seller shall have limited liability: Liability only exists, insofar as the damages exceed insurance pay-outs and third-party damages are not compensated within the scope of the law governing compulsory insurance for motor vehicle owners. The amount of the liability is limited to the respective minimum insured sums subject to statutory provisions on compulsory insurance for motor vehicle owners. However, value impairment of the purchase object, loss of use, and particularly rental car costs, lost profits, towing costs and vehicle contents and cargo will not be compensated. In such cases, damage will also not be compensated if it exceeds the foreseeable and typical contractual damages at the time of conclusion of the contract.
- The same applies to damages for supplementary performance.
- The seller’s liability for injury to life, limb or health is unlimited.
- Without prejudice to the culpability of the seller, the seller’s potential liability under the Product Liability Act remains unaffected.
- Warranty rights in accordance with Section VII remain unaffected.
- The personal liability of the seller’s legal representatives, vicarious agents and company employees is excluded for damage caused by them due to minor negligence, with the exception of liability for injury to life, limb or health.
- Right to cancel
- You have the right to cancel this contract within 14 days without giving any reason.
- The cancellation notice period is 14 days from the day on which you or a third party appointed by you, who is not the carrier, took possession of the goods.
- To exercise your right to cancel, you must inform us,
Daniele Moto International OHG
Astheimer Str. 41
D - 65428 Rüsselsheim
with a clear declaration (e.g. with a letter sent by post, telefax or e-mail) about your decision to cancel this contract. You may use the attached template (cancellation form), but this is not mandatory.
- To meet the cancellation deadline, it is sufficient for you to send your notice of cancellation before the cancellation period has expired.
- Effects of cancellation
- If you cancel this contract, we shall reimburse all payments we have received from you, including delivery costs (with the exception of any additional costs arising from your choice of a delivery method other than our cheapest standard delivery method) without delay and no later than 14 days from the date on which we receive notification of your wish to cancel this contract. Unless you have expressly agreed otherwise, we will issue any such reimbursement using the same method of payment you used for the original transaction; in any event, you will not incur any fees as a result of such reimbursement. We shall be entitled to withhold the refund until we have received the returned goods or until you have provided evidence that the goods have been returned, whichever is the earlier.
- You must send back or hand over the goods to us immediately and, in any case, no later than within fourteen days from the day on which you inform us of your cancellation of this contract. The deadline shall be deemed to be met if you dispatch the goods prior to the expiry of the fourteen-day cancellation period.
- You shall bear the direct costs of returning the goods.
- You are only required to cover any loss in value of the goods if this loss in value is due to your handling of the goods beyond that necessary for inspecting the condition, features and functionality of the goods.
(complete and return this form only if you wish to withdraw from the contract)
- For all present and future claims arising from the business relationship with merchants, including bills of exchange and cheque claims, the exclusive legal jurisdiction is the registered office of the seller.
- The same jurisdiction applies if the seller has no general domestic jurisdiction, moves their domicile or habitual residence outside of Germany after conclusion of the contract, or their domicile or habitual residence is not known at the time of filing the claim. All else being equal, the seller’s domicile is deemed as the jurisdiction for claims by the seller against the purchaser.
- ODR platform
- The European Commission provides a platform for out-of-court online dispute resolution (ODR platform) which you can find at ec.europa.eu/consumers/odr. We are not obligated and not prepared to take part in a dispute resolution process before a consumer arbitration board.
- Liability disclaimer
- Despite careful checking of the contents, we cannot assume any liability for the contents of external links. The relevant operator is exclusively responsible for the contents of linked websites.