GTC
General Terms and Conditions
Here you will find our GTC, as of 02.06.2023
GTC
CAR DELUXE**
A division of Kitz AlpinTrade GmbH
Pass-Thurn Straße 22–24
A-6372 Oberndorf in Tyrol
Managing Director: Susanne Drescher
Tel.: 0043 (0) 664 4585466
Email: info@car-deluxe.at
As of: June 2, 2023
General Terms and Conditions of Kitz AlpinTrade GmbH
(hereinafter: “Seller”)
for the sale of motor vehicles
The vehicles offered by us are not produced in mass series production, but are manufactured largely individually and in small quantities after an order has been placed. Therefore, longer periods for contract acceptance and processing are required for vehicles 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 promised otherwise in writing, our offers are subject to change and non-binding. The buyer is bound to the order for four weeks.
The purchase contract is concluded when the Seller has expressly confirmed the acceptance of the order for the specified object of purchase in writing within this period or the delivery has been carried out.
II. Reservation of Right of Withdrawal
Due to the production of vehicles in small quantities, the upstream supplier or the manufacturing plant generally reserves the right to supply the Seller despite the delivery commitment given to the Seller.
The Seller must therefore reserve the right to withdraw from the contract with its own customer or the buyer, regardless of fault. If the Seller itself is not supplied or not supplied on time, it will notify the buyer without significant delay, declare the withdrawal, and refund any down payments made by the buyer within 14 days of the declaration of withdrawal.
III. Quality of the Object of Purchase
The quality of the object of purchase results from its description. Technical and other changes are reserved, provided they are not significant.
Equipment and model variants, accessories, and other characteristics can only be considered significant if they are expressly stipulated and recorded in the purchase contract. The modification of characteristics not contained or described in the purchase contract is in any case reasonable for the buyer.
IV. Prices
Unless expressly stated otherwise, the purchase price is generally net. Value-added tax and, for vehicles brought into Austria, the standard consumption tax (NoVA) at the statutory rate must be added to the net price. Ancillary services are to be paid for additionally.
Price changes are only permissible if the delivery is to take place more than four months after the conclusion of the contract and the non-binding price recommendation – if none exists: the dealer purchase price – for the vehicle has changed. In this case, the agreed purchase price changes in proportion to the change in the price recommendation or the dealer purchase price.
If the price increase is 5% or more, the buyer may withdraw from the concluded contract within a period of 10 days from receipt of the price increase notification. In the event of withdrawal, any down payment must be refunded.
If the purchase price is not 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 fee for ancillary services must be paid in full before handover. Payment is due no later than 8 days after notification of the vehicle’s availability for handover and dispatch of the invoice.
Offsetting the purchase price against alleged or actual claims of the buyer – for whatever reason or title – is expressly excluded.
If the buyer defaults on the purchase price payment, they 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 upon in writing and are generally non-binding. Periods and dates are only binding if they have been expressly agreed as such in writing.
Delivery periods begin on the day following receipt of the down payment agreed upon at the conclusion of the contract.
Force majeure or other production or delivery difficulties occurring at the Seller or its suppliers, for which the Seller itself is not grossly at fault, do not place the Seller in default of delivery and have a period-suspending effect, so that the delivery period is extended by this duration or the date is postponed accordingly.
Only when a delay of more than 4 months from the non-binding delivery date occurs can the buyer set a grace period of 4 weeks in writing and only after the fruitless expiry of this grace period withdraw from the contract in writing.
Even in the case of delivery periods and delivery dates expressly agreed as binding, withdrawal from the contract is only possible after the unsuccessful setting of such a grace period of 4 weeks.
VII. Acceptance, Default of Acceptance, and Penalty
The buyer is obliged to accept the object of purchase within 8 days of receipt of the notification of availability, otherwise they will be in default of acceptance.
In the event of non-acceptance or late acceptance, the buyer is obliged to pay a no-fault flat-rate contractual penalty in the amount of 15% of the net purchase price.
The Seller is entitled to assert compensation for a higher loss exceeding the flat-rate contractual penalty.
Until full receipt of the purchase price, the additional costs for any ancillary services, and the contractual penalty, the Seller is not obliged to release the vehicle and the buyer remains in default of acceptance.
In addition to the contractual penalty, the Seller may in particular assert a reasonable storage fee until acceptance or until sale elsewhere. It is pointed out that the vehicles offered by the Seller must generally be accommodated in covered, locked, and heated rooms.
Furthermore, the Seller is entitled to utilize or otherwise sell the vehicle after the expiry of a grace period of 8 days. Should the loss or reduced proceeds incurred by the Seller as a result not be covered by the flat-rate contractual penalty, the Seller is entitled to assert the difference or the actual loss.
VIII. Retention of Title
The handover of the object of purchase takes place under the Seller’s retention of title until all buyer obligations from the purchase contract as well as from any leasing, credit, or financing contracts have been fulfilled.
In the event of payment default by the buyer, the Seller may withdraw from the purchase contract without setting a grace period.
As long as the retention of title exists, the buyer may neither dispose of the object of purchase nor grant third parties use or other claims. During the duration of the retention of title, possession of the vehicle and the vehicle documents belongs to the Seller.
IX. Warranty
The Seller does not grant any guarantee beyond the statutory warranty.
Warranty claims of the buyer for new vehicles against the manufacturer and the Seller generally expire within two years of the handover of the object of purchase.
For used cars, the Seller’s warranty period is shortened or restricted to 1 year from handover.
Towards entrepreneurs, the Seller’s warranty is completely excluded and the reversal of the burden of proof of § 924 ABGB is also excluded as a precaution, so that the purchasing entrepreneur would have to prove that any defect already existed at the time of handover.
Regardless of the warranty exclusion, entrepreneurs must examine the vehicles thoroughly for any defects immediately after handover.
Should a warranty nevertheless be provided to an entrepreneur as a gesture of goodwill, the Seller has the free choice of the warranty remedy.
If the object of purchase becomes inoperable due to a defect, the buyer must contact the nearest recognized workshop authorized by the manufacturer or importer for the service of the object of purchase.
For material defects of installed parts, the liability for material defects applies until the expiry of the limitation period for the object of purchase.
Upon conclusion of the purchase contract, the Seller assigns any warranty claims existing against third parties to the buyer for out-of-court and judicial assertion.
X. Other Liability
The Seller’s liability towards entrepreneurs is limited to intent for any damage, so that the Seller is not liable for slight and gross negligence.
Towards consumers, the Seller’s liability for material and financial damage is limited to intent and gross negligence.
The transfer of risk to the buyer occurs 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.
Entrepreneurs waive the objection of lesion beyond moiety (laesio enormis) towards the Seller.
XI. Place of Jurisdiction, Applicable Law, Dispute Resolution
The exclusive application of Austrian law is agreed, whereby the provisions of the UN Sales Convention do not apply.
Towards consumers, this choice of law applies only insofar as the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer has their habitual residence.
Towards entrepreneurs, the international jurisdiction of the Innsbruck Regional Court is agreed for all disputes arising from this contract – regardless of the amount in dispute.
In the event of disputes, entrepreneurs must mandatory undertake an attempt at mediation before the Tyrol Chamber of Commerce in accordance with the mediation rules of the WKÖ before seeking judicial assistance. Ordinary legal recourse is excluded until the mediator submits a final mediation proposal or if no agreement can be found within 6 months of the initiation of the mediation proceedings or if the parties mutually consider the mediation attempt to have failed in writing.
XII. Export Control / Sanctions / Re-export
Any re-export of the vehicle by the customer may be subject to the export control regulations of the EU, Germany, and/or the United Kingdom. It is the responsibility of the customer and not the responsibility of Kitz AlpinTrade GmbH to comply with these regulations before 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, as well as to certain regions of Ukraine, namely the Crimea region, the so-called Luhansk People’s Republic, the so-called Donetsk People’s Republic, and the non-government-controlled areas of the Zaporizhzhia and Kherson oblasts.
The vehicle cannot be exported to Russia. The buyer confirms with their signature that they will not sell the vehicle to Russia.
The buyer warrants that neither they themselves nor their affiliated companies, executives, directors, shareholders, or other persons with a significant interest in the company (“Affiliated Persons”) are among the natural or legal persons subject to sanctions, are controlled by them, or act on their behalf.
A person subject to sanctions is any natural or legal person with whom business is restricted or prohibited under sanction laws, economic or financial sanction regulations, export control, trade embargoes, or restrictive measures enforced and administered by Germany, the European Union, the United States, or the United Kingdom, in particular:
a) any natural or legal person belonging to an EU sanctions list with the respective amendments, such as under Regulation (EC) No. 2580/2001, (EC) No. 881/2002, (EC) No. 753/2011, (EU) No. 269/2014, (EU) No. 247/2022, (EC) No. 765/2006, and
b) any person employed or resident in an authority or state institution of a state subject to sanctions, provided this does not lead to a violation of § 7 AWV or EU Regulation 2271/96.
XIII. Miscellaneous
Transfers of rights and obligations of the buyer from the contractual relationship require the express written consent of the Seller.
Declaration of Consent for Data Protection
The Seller is expressly permitted to collect, store, process, use, and pass on the personal and all data of the customer for its business purposes, in particular marketing purposes. This consent is revocable at any time with effect for the future.
Should individual provisions of the purchase contract with the customer, including these GTC, be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby. The wholly or partially invalid regulation shall be replaced by a regulation whose economic success comes as close as possible to that of the invalid one.
For new vehicles, provided they are compatible with these GTC and the Austrian legal situation, the following shall apply subsidiarily and mutatis mutandis:
“General Terms and Conditions for the Sale of Brand New Motor Vehicles and Trailers – non-binding recommendation of the Central Association of the German Motor Vehicle Trade (ZDK), the Association of the Automotive Industry (VDA), and the Association of Motor Vehicle Importers (VDIK)”
in the respective latest version as well as the general terms of sale and/or non-binding sales recommendations of the respective vehicle manufacturer.
Important: In this version, the GTC are linguistically and visually cleanly prepared, but not legally checked. Especially for points such as disclaimer of liability, contractual penalty, data protection, warranty towards consumers, and sanctions clauses, a legal review in Austria would be very sensible.