For Orders and Deliveries
§ 1 Scope
1. These General Terms and Conditions (the „General Terms“) shall exclusively govern our business relationships and the resultant current and future sales. The General Terms shall automatically be accepted by our contractual partner upon placing a valid order with us. Purchasing Conditions by the purchaser shall not be validated, even if we do not explicitly object the applicability.
2. Our General Terms are integrated and readable on our web-page and publicly displayed in our of-fices. Upon request, we will also submit them directly free of charge at any time.
§ 2 Brochures and Price Lists
1. The offers included in our brochures, price lists advertising materials and verbal offers shall always be non-binding quotes only. Of legal validity shall be our order confirmation based on the customer order, which contains the prices specified for the commodities and qualities. This shall also apply in case of special offers. The prices and special offers shall only be binding if in accordance with the commercial offer as well as the subject order confirmation and only refer to the volume of the existing stock.
2. In case a product is run out of stock, we shall be entitled to deliver a surrogate of similar type and quality, except if this would turn out to be unacceptable for customer after considering of our inter-ests or in case the customer has objected the delivery of the surrogate instantly.
§ 3 Prices, Shipment, passing of Risks
1. If not agreed different, our prices are to be understood as „ex works“ (Monticello B.za), net, without inclusion of the legal value added tax.
2. Deliveries will be made ex works. The designation of the transporter / consigner / forwarder shall be upon the customer. The risks shall pass to the customer upon handover to the designee, however latest upon leaving our premises.
§ 4 Payment Maturity, Rebates and Payment Terms
1. We shall be entitled to demand an adequate advance payment prior to the delivery.
2. In case of payment delay, the customer shall be obliged to pay interest for the delayed portion corresponding to 8% over the applicable base interest rate. If not agreed different in writing, our subsequent agreement to a deferment of payment shall not touch the interest duty.
3. Payments shall at first be set against earlier obligations, possible cost and interest.
4. We are entitled to retain the goods until settlement of all outstanding dues, also resulting from for-mer deliveries. In case the dues will not even be settled within a final period set by us, we shall be entitled to decide on deposition, auctioning off or to free commercialization of the goods at the cost of the customer.
5. The resultant proceeds shall, after deduction of appropriate liquidation cost and contingent dam-age, be set against the obligation of the purchaser.
6. The contract partner shall only offset undisputed, accepted or legally confirmed claims against our claim. Likewise, any lien shall only be based on undisputed, accepted or legally confirmed counter-claims and only in case these are based on the same contractual relationship.
§ 5 Delivery Period, Delivery Instructions, Cancellation
1. The average delivery period shall be 14 working days. Individually stipulated delivery periods shall only be binding in case they have been agreed or confirmed in writing.
2. The delivery period shall be met in case the goods have left our premises or announcement of readiness for shipment has been sent prior to the expiry of the period.
3. In case a tentative delivery time or period has been exceeded by 3 weeks, the contract partner shall be entitled to send us a written demand for delivery within an appropriate extension period. Only upon expiry of this period we shall be in delay. This shall not apply in case the appropriate extension pe-riod is too short. In such a case, an appropriate extension period shall apply.
4. In case the delay is based on slight negligence, our liability for damages shall be excluded, except for cases of personal injuries. Alternatively, our liability shall be restricted to typically foreseeable damages.
5. Force Majeure, riots, strikes, lockouts as well as severe faultless breakdowns shall extend the agreed times and periods by the period of disorder caused through these circumstances and an addi-tional appropriate remedial work phase.
6. We shall be entitled to cancel the contract totally or partially in case our supplier of ordered quanti-ties or qualities does not continue to supply these totally or partially, if export restrictions for the goods do not allow the delivery for an indefinite timeframe or cases of force Majeure occur. We shall also be entitled to cancel the contract in case of unforeseen cost increases through price increases of our suppliers, increase of public duties (customs duties, taxes, etc.) which are out of our reach and make a delivery at the agreed price unreasonable.
§ 6 Place of Performance, Shipping, Inspection, Notice Obligation
1. The purchaser shall inspect the goods immediately upon receipt in order to detect nonconforming quantities and external transport damage, especially any breakage, and secure the acknowledgement of the assessed missing quantities and damage on the delivery note, for each designated commodity separately, in order to prepare potential claims on indemnity against the forwarder or the insurance. The purchaser shall raise the claims against the forwarder or the insurance on own behalf and benefit.
2. The purchaser shall instantly inspect the goods to detect deficiencies – also in case of any onward sale – and to acknowledge potential deficiencies immediately, within 10 working days maximum, in written form.
§ 7 Warranties, Liabilities
1. Warranty claims shall only be justified if the purchaser has appropriately met his duties on inspec-tion and acknowledgement as specified in § 6. The purchaser shall not be entitled to raise claims re-sulting from minor deficiencies, which do not materially influence the foreseeable suitability or use of the goods. Especially, the development of winestone in the bottles shall not be a reason to raise claims, since this has no negative impact on the product quality.
2. To the extent deficient goods have been delivered, goods of the same type and nature will be delivered subsequently. The purchaser shall grant a reasonable period of at least 3 weeks for the subsequent delivery. The purchaser shall bear the cost and expense of this supplementary perform-ance, especially of transport, tolls, rework and materials. The seller shall be entitled to reject the supplementary performance as far as these cost and expenses exceed 50% of the delivery value. The claim on subsequent delivery shall only be raised upon complete return of the objected goods to the company Alibrianza S.R.L. (according to the invoice). In case the supplementary performance has failed, the purchaser shall be entitled to either claim a price reduction, or to declare cancellation of the contract, or to demand compensation within the regulations as specified in the following paragraphs.
3. Deficiency claims raised by commercial business ventures shall expire by limitation within one year from delivery of the goods.
§ 8 Indemnity Exclusion, Liability Restriction
1. Our indemnification liability shall be restricted to the contract-typical and foreseeable damage in case the indemnity claim is based on a slight negligent breach of essential contract duties only, ex-cept for cases of personal injuries.
2. Our indemnification liability shall be excluded in case the indemnity claim is based on a slight negli-gent breach of minor contract duties only, except for cases of personal injuries.
3. In all cases based on negligent breach of duties, irrespective of their legal foundation, our indemni-fication liability shall be restricted to the damage foreseeable to us, except in cases subject to the Product Liability Law. Alternatively, we exclude our liability for negligent breach of contract, as far as we have committed slightly negligent breach of contract only and this does, in kind and conse-quence, not endanger the purpose of contract, except for cases of personal injuries.
4. In case a claim against us is based on indemnification under the Product Liability Law, our liability exceeding the above specified shall be restricted to the compensation by our liability insurer. The liability ceiling shall be generically determined subject to contact type and liability risks. As far as the insurance does not or not completely enter into the indemnification liability, our liability shall be lim-ited to the amount of indemnity paid by the insurer. In any case, we restrict our liability to the contract-typical and reasonable damage.
§ 9 Ownership Reservation
1. We generally reserve the ownership and title on the goods delivered under the delivery contract until receipt of payment of all subject amounts due.
2. Furthermore, we reserve the ownership and title on all goods delivered until settlement of all out-standing sums under the business relationship, also of those accruing at a later point of time.
3. Additionally, the purchaser shall be entitled to onward sell the goods delivered within normal course of business, always provided that he is not in delay. The purchaser already assigns to us, upon for-mation of contract with us, the claim to emerge against his customers due to the onward sale or other legal reasons, with a maximum limitation that corresponds to the amount on the invoice of the goods delivered under ownership reservation.
4. The sums collected by the contract partner under the assigned claim shall be separated until trans-fer to us, to exclude netting and/or offsetting with debit accounts.
5. In case the value of the securities provided exceeds our claims by more than 20%, we are upon request by the contract partner obliged to reasonably choose and reassign securities as far as this limit is exceeded.
§ 10 Intellectual Property, Trade Marks
All photographs, texts and designs used by us are legally protected. We herewith give advice that any manner of exploitation, utilization, copying and public use, etc. needs our previous approval in writing.
§ 11 Declarations, Written Form
1. As far as these General Terms do not provide different, declarations by the purchaser have to be addressed directly to us. Declarations towards other persons such as trade agents shall only have validity upon receipt by us and our written confirmation.
2. All agreements shall be laid down in writing, different agreements than those laid down do not ex-ist. The commitment to use the written form only shall also apply for any side agreements, guarantees or subsequent changes, to include mutual contract cancellation or waiver of using the written form.
3. In case a regulation above turns out to be or become invalid or impracticable, this shall not affect the validity of the remaining regulations. The invalid or impracticable regulation shall be replaced by a regulation which comes commercially nearest to that what has been intended by the regulation. The same shall apply in case of any omission.
§ 12 Venue, Applicable Law
1. The regulations of the UN – Laws concerning sale and purchase of goods shall not be applied. Italian Laws shall exclusively be applied on the contractual relationship, under exclusion of conflict-of-law.
2. Exclusive venue for the contract (formation, validity, performance, termination, etc.) and all resul-tant contractual and non-contractual disputes shall be Lecco/Italy.