GTC

TERMS AND CONDITIONS

CAR DELUXE**
A business division of Kitz AlpinTrade GmbH
Pass-Thurn Straße 22–24
A-6372 Oberndorf in Tirol
Austria

Managing Director: Susanne Drescher
Phone: 0043 (0) 664 4585466
E-mail: info@car-deluxe.at

Date: 02 June 2023

General Terms and Conditions of Kitz AlpinTrade GmbH

(hereinafter referred to as the “Seller”)
for the sale of motor vehicles

The vehicles offered by us are not manufactured in mass production but are largely produced individually in small quantities after an order has been placed. Therefore, longer periods for contract acceptance and processing are required for vehicles that are not in stock. All delivery periods and delivery dates are to be understood as estimated periods and dates and are subject to change and non-binding.

I. Conclusion of Contract / Transfer of Rights and Obligations

Unless expressly agreed otherwise in writing, our offers are subject to change and non-binding. The Buyer is bound to the order for four weeks.

The purchase agreement is concluded when the Seller has expressly confirmed acceptance of the order for the specifically designated purchase item in writing within this period, or when delivery has been carried out.

II. Right of Withdrawal Reserved

Due to the production of vehicles in small quantities, the upstream supplier or manufacturer generally reserves the right, despite having given the Seller a delivery commitment, to decide whether to supply the Seller.

The Seller must therefore reserve the right to withdraw from the contract with its own customer or the Buyer without fault. If the Seller itself is not supplied, or not supplied on time, the Seller shall inform the Buyer without undue delay, declare withdrawal from the contract, and refund any down payments made by the Buyer within 14 days from the date of the withdrawal declaration.

III. Condition and Characteristics of the Purchase Item

The condition and characteristics of the purchase item are determined by its description. Technical and other changes remain reserved insofar as such changes are not material.

Equipment and model variants, accessories, and other characteristics shall only be deemed material if they are expressly stipulated and recorded in the purchase agreement. Any change to characteristics not included or not described in the purchase agreement shall in any case be deemed reasonable for the Buyer.

IV. Prices

Unless otherwise expressly stated, the purchase price is generally understood to be net. Value added tax and, in the case of vehicles brought into Austria, the standard consumption tax in the statutory amount shall be added to the net price. Additional services shall be charged separately.

Price changes are only permissible if delivery is to take place more than four months after conclusion of the contract and the non-binding recommended retail price – or, if no such price exists, the dealer purchase price – for the vehicle has changed. In this case, the agreed purchase price shall change in proportion to the change in the recommended price or dealer purchase price.

If the price increase amounts to 5% or more, the Buyer may withdraw from the concluded contract within 10 days of receipt of the price increase notice. In the event of withdrawal, any down payment made shall be refunded.

If the purchase price has not been agreed as a fixed price, the manufacturer’s recommended list price valid on the day of delivery shall apply.

V. Payment

The purchase price and the remuneration for additional services must be paid in full before handover. Payment is due no later than 8 days after notification that the vehicle is ready for handover and after the invoice has been sent.

Set-off of the purchase price against any alleged or actual claims of the Buyer, regardless of legal basis or title, is expressly excluded.

If the Buyer is in default of payment of the purchase price, the Buyer shall owe the Seller a no-fault contractual penalty in the amount of 15% of the agreed net purchase price.

VI. Delivery and Delay in Delivery

Delivery dates and delivery periods must be agreed in writing and are generally non-binding. Periods and dates shall only be binding if expressly agreed as such in writing.

Delivery periods commence on the day following receipt of the down payment agreed at the time of conclusion of the contract.

Force majeure or other production or delivery difficulties occurring at the Seller or its suppliers, for which the Seller is not grossly at fault, shall not place the Seller in default of delivery and shall suspend the running of deadlines, so that the delivery period shall be extended by the duration of such delay or the delivery date postponed accordingly.

Only if a delay of more than 4 months from the non-binding delivery date occurs may the Buyer set a grace period of 4 weeks in writing and only withdraw from the contract in writing after such grace period has expired without success.

Even in the case of delivery periods and delivery dates expressly agreed as binding, withdrawal from the contract shall only be possible after an unsuccessful grace period of 4 weeks has been granted.

VII. Acceptance, Default of Acceptance and Contractual Penalty

The Buyer is obliged to accept the purchase item within 8 days from receipt of the notice that it is ready for delivery; otherwise, the Buyer shall be deemed to be in default of acceptance.

In the event of non-acceptance or failure to accept on time, the Buyer shall be obliged to pay a no-fault lump-sum contractual penalty in the amount of 15% of the net purchase price.

The Seller shall be entitled to claim compensation for any damage exceeding the lump-sum contractual penalty.

Until full receipt of the purchase price, additional costs for any ancillary services and the contractual penalty, the Seller is not obliged to hand over the vehicle, and the Buyer shall remain in default of acceptance.

In addition to the contractual penalty, the Seller may in particular claim a reasonable storage fee until acceptance or until another sale is made. It is expressly pointed out that the vehicles offered by the Seller must generally be stored in covered, locked and heated premises.

Furthermore, the Seller shall be entitled, after expiry of an additional grace period of 8 days, to realize the vehicle or sell it elsewhere. If the damage or reduced proceeds incurred by the Seller are not covered by the lump-sum contractual penalty, the Seller shall be entitled to claim the difference or the actual damage.

VIII. Retention of Title

The handover of the purchase item shall take place subject to retention of title by the Seller until all obligations of the Buyer arising from the purchase agreement and from any leasing, credit or financing agreements have been fulfilled.

In the event of default of payment by the Buyer, the Seller may withdraw from the purchase agreement without granting an additional grace period.

As long as the retention of title exists, the Buyer may neither dispose of the purchase item nor grant third parties the right of use or any other rights. During the period of retention of title, possession of the vehicle and the vehicle documents shall remain with the Seller.

IX. Warranty

The Seller grants no guarantee beyond the statutory warranty.

Warranty claims of the Buyer for new vehicles against the manufacturer and the Seller shall generally expire within two years from handover of the purchase item.

For used vehicles, the Seller’s warranty period shall be reduced or limited to 1 year from handover.

With respect to entrepreneurs, the Seller’s warranty is excluded in its entirety and the reversal of the burden of proof pursuant to Section 924 Austrian Civil Code (ABGB) is, as a precaution, also excluded, so that the purchasing entrepreneur would have to prove that any defect already existed at the time of handover.

Irrespective of the exclusion of warranty, entrepreneurs shall inspect the vehicles thoroughly for any defects immediately after handover.

If, as an accommodation, warranty is nevertheless granted to an entrepreneur, the Seller shall have the free choice of the warranty remedy.

If the purchase item becomes inoperable due to a defect, the Buyer must contact the nearest authorized service provider designated by the manufacturer/importer for the service of the purchase item.

For defects in installed parts, liability for material defects shall apply until expiry of the limitation period for the purchase item.

Upon conclusion of the purchase agreement, the Seller assigns to the Buyer any warranty claims existing against third parties for out-of-court and court enforcement.

X. Other Liability

The Seller’s liability towards entrepreneurs is limited to intent for any and all damages, meaning that the Seller shall not be liable for slight or gross negligence.

Towards consumers, the Seller’s liability for property damage and financial loss is limited to intent and gross negligence.

Upon collection of the car from the Seller or upon handover to the forwarding agent, carrier, transporter or other person designated to carry out the shipment, the risk shall pass to the Buyer.

Entrepreneurs waive the objection of lesion beyond half value (laesio enormis) against the Seller.

XI. Jurisdiction, Applicable Law, Dispute Resolution

The exclusive application of Austrian law is agreed, excluding the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).

With regard to consumers, this choice of law shall only apply insofar as the protection granted by mandatory provisions of the law of the state in which the consumer has his or her habitual residence is not withdrawn.

With regard to entrepreneurs, for all disputes arising from this contract – regardless of the amount in dispute – the Regional Court of Innsbruck shall have international jurisdiction.

In the event of disputes, entrepreneurs must, before seeking judicial assistance, mandatorily attempt conciliation before the Tyrol Chamber of Commerce in accordance with the conciliation rules of the Austrian Federal Economic Chamber (WKÖ). Access to the ordinary courts is excluded until the conciliator submits a final proposal for settlement, or if no agreement can be reached within 6 months from initiation of the conciliation proceedings, or if the parties mutually declare the conciliation attempt failed in writing.

XII. Export Control / Sanctions / Re-export

Any re-export of the vehicle by the customer may be subject to export control regulations of the EU, Germany and/or the United Kingdom. It is the responsibility of the customer, and not of Kitz AlpinTrade GmbH, to comply with these regulations prior to any such re-export.

Under no circumstances may the customer re-export the vehicle or parts thereof to Cuba, Iran, North Korea, Sudan/South Sudan, Syria, Russia, or certain regions of Ukraine, namely the Crimea region, the so-called Luhansk People’s Republic, the so-called Donetsk People’s Republic, and the territories of the oblasts of Zaporizhzhia and Kherson not controlled by the government.

The vehicle may not be exported to Russia. By signing, the Buyer confirms that the vehicle will not be sold to Russia.

The Buyer warrants that neither the Buyer nor its affiliated companies, officers, directors, shareholders, or other persons holding a material interest in the company (“Affiliated Persons”) are persons or entities subject to sanctions, controlled by such sanctioned persons or entities, or acting on their behalf.

A sanctioned person shall mean any natural or legal person with whom business is restricted or prohibited under sanctions laws, economic or financial sanctions regulations, export control laws, trade embargoes, or restrictive measures enforced and administered by Germany, the European Union, the United States or the United Kingdom, including in particular:

a) any natural or legal person listed on an EU sanctions list, as amended from time to time, such as under Regulation (EC) No. 2580/2001, (EC) No. 881/2002, (EC) No. 753/2011, (EU) No. 269/2014, (EU) No. 247/2022, and (EC) No. 765/2006; and

b) any person employed by or resident in an authority or governmental institution of a sanctioned state, provided that this does not result in a violation of Section 7 AWV or EU Regulation 2271/96.

XIII. Miscellaneous

Transfers of rights and obligations of the Buyer arising from the contractual relationship require the Seller’s express written consent.

Data Protection Consent

The Seller is expressly permitted to collect, store, process, use and disclose the personal and all other data of the customer for its business purposes, in particular for marketing purposes. This consent may be revoked at any time with effect for the future.

Should individual provisions of the purchase agreement with the customer, including these Terms and Conditions, be or become wholly or partially invalid, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic effect comes as close as possible to that of the invalid provision.

For new vehicles, insofar as compatible with these Terms and Conditions and Austrian law, the following shall apply subsidiarily and mutatis mutandis:
the “General Terms and Conditions for the Sale of New Motor Vehicles and Trailers – non-binding recommendation of the Central Association of the German Motor Vehicle Trade (ZDK), the German Association of the Automotive Industry (VDA), and the Association of Motor Vehicle Importers (VDIK)” in their latest applicable version, as well as the general terms of sale and/or non-binding sales recommendations of the respective vehicle manufacturer.