GENERAL TERMS AND CONDITIONS OF SALE
The General Terms and Conditions of Sale govern the sale of goods and/or services sold or supplied by BARRACUDAMOTO.CH, motoactive gmbh, referred to herein as “Seller”, while the purchaser is referred to herein as “Buyer”, who can be a Consumer or a Dealer.
Some of the topics that will follow will have different regulations depending on whether the Buyer is a Consumer or Reseller, always observing European directives or in the absence of national laws.
A consumer pursuant to these General Terms and Conditions is any natural person concluding a legal transaction for a purpose attributed neither to a mainly commercial nor a self-employed occupational activity. A Dealer pursuant to these GTC is any natural or legal person acting in the performance of a commercial or self-employed occupational activity when concluding a legal transaction.
An agreement is only concluded when an order is confirmed in writing by the Seller and containing (a reference to) these General Terms and Conditions of Sale. Buyer’s order is only accepted upon the following terms and conditions. If the terms stated in Buyer’s order are inconsistent with these terms this shall constitute a counteroffer and Buyer shall be deemed to have accepted Seller’s terms unless it notified by Seller to the contrary in writing within 3 days after receiving seller acknowledgment.
These terms and conditions furthermore apply to any other agreement concluded between Seller and Buyer. No addition to or modification of any of the terms and conditions hereof shall be effective unless made in writing and signed by both parties. These General terms and conditions of sale constitute the entire agreement between the Seller and Buyer for the purchase order and sale of the goods and/or services identified on Seller’s acknowledgement of Buyer’s purchase order and supersede all other proposal and quotations.
The parties agree that even if these General Terms and Conditions do not accompany every product sold by Seller, these General Terms and Conditions of Sale shall govern all sales made by seller until such time as new terms and conditions are provided by the Seller to the Buyer.
The Seller reserves the right to change terms and conditions of sale at any time, the current version is published at www.barracudamoto.ch
OFFERS, QUOTATIONS, PRICES
Unless explicitly agreed otherwise, all offers made by the seller are in all respects free of obligation until the order is confirmed by Seller. All the information that occurs in Seller catalogues prospectus price lists and any other source are only given as information.
The overall total indicated in the order confirmation by the Seller represents the total price that must be paid by the Customer.
All prices are "Ex-Works" prices. The prevailing price is the one published on the online shop at the time of orders confirmation, the indicated prices are in Swiss Francs currency (CHF) The prices visible on the website www.barracudamoto.ch include VAT, any recycling costs and taxes on copyright.
When the Dealer logs in as a registered Dealer in the online shop, the displayed prices will be VAT EXCLUDED. The net purchase price for Buyers is automatically calculated following Barracuda’s "Commercial conditions".
The Seller tries to avoid mid-year price changes but reserves the right to adjust prices at any time, for any reason or cause, without prior notice.
Shipping cost depend on products and delivery method chosen by the customer among those offered. The shipping cost, packaging, eventual transport insurance will be billed separately and charged to the Buyer unless otherwise agreed. For extra EU deliveries, the Buyer agrees to pay, if necessary, all the taxes that may be required by the country of delivery, including value added tax, any customs duties and other contributions that can be applied to products.
Unless otherwise agreed in writing between the Seller and the Buyer, the payment methods provided will be as follows:
- Cash on delivery available for shipments within the Italian territory only;
- Credit card Visa/Mastercard, safe payments by credit card will automatically be charged within 24 hours whether the product is shipped or not;
- Paypal: payments are made directly on the PayPal site through encrypted pages thanks to the TLS (Transport Layer Security) protocol. For payments made with Paypal;
- Bank Transfer: payment through the National, European SEPA and International banking circuit, remembering to enter the order number or order reference in the payment reason.
The order will be processed only after the full amount has been credited to Serller’s bank account.
The payment must be made directly to the Seller in accordance with the agreed conditions indicated in the order confirmation and in the invoice. In case of executive acts or changes in the balance sheet, with regard to the Buyer, the Seller is authorized to consider all outstanding payments as immediately due regardless of the deadline, or to claim particular guarantees regarding future payments.
In case of non-payment on or before the stipulated due date, a conventional interest of 1.5 % per month will be due on the invoice amount without notification de jure, from the stipulated due date. Every Current month will be charged as a complete month. The invoice amount will be increased with any collection charges incurred by the Seller. Such compensation is due in addition to the interest on overdue payments the recoverable procedure costs and a possible compensation for material damage and loss of profit. If the customer does not fulfill his payment obligations even on the second request, Barracuda is authorized to terminate the contract unilaterally with immediate effect and without prior notification. In case of non-payment of an invoice by the Buyer the seller is entitled to postpone the execution of his contractual obligations.
The Seller reserves the right to change the payment conditions at any time, for any cause or reason, with prior notice.
RETENTION OF TITLE
All products that have not fully paid remain entirely Seller’s property. The property of the Seller: in this case, any advance payments will be used for expenses and for lost profits. In the event of non-payment, the Seller is always entitled to recover the products from the Buyer. In this eventuality, the Seller will declare in advance and by registered letter that the Buyer is insolvent and will grant a term of seven days.
Orders must be placed by the Buyer exclusively through the website www.barracudamoto.ch, after creating an account, registering on the site, reading the conditions of sale and accessing; except in cases where the Seller has explicitly and in writing agreed special agreements with the Buyer.
The buyer has the right to access the site for consultation and to place orders. No other use, in particular commercial, of the site or its content is permitted. The Site, as well as the software, databases, texts, information, images, photographs, graphics, logos, sounds or other data contained on the Site remain the exclusive property of Barracuda Srl.
Dealers must observe a minimum order requirement of CHF 100 + VAT; orders below this threshold will be recalculated at the full price list without applying any discount.
The Sales Contract will be considered concluded, becoming binding for the parties, when the Seller's Order Confirmation reaches the Buyer (via e-mail, fax, mail). On the website, by clicking on the "confirm order" button, the sales contract will be concluded and become binding for the parties.
The Order Confirmation sent defines and reports all the conditions and the final and binding contents of the Contract, replacing the Order sent by the Buyer in full. The Order Confirmation and these general terms and conditions will in any case prevail over any general or particular purchase conditions prepared by the Buyer.
Any changes to the confirmed order, required by the Buyer, are subject to approval by the Seller and must be received promptly in order to allow the relative changes to be implemented also with regard to the organization and production. In this case the Seller reserves the right to delay delivery times and change the prices.
The availability of the products refers to the actual availability at the time when the Buyer carries out the order. This availability must however be considered purely indicative as:
- the products could be sold to other customers before confirming the order, due to the simultaneous presence on the site of multiple users;
- an IT anomaly could occur which would make a product available for purchase which is not actually available.
Even after sending the order confirmation e-mail sent by the Seller, there may be cases of partial or total unavailability of the goods. In this case, the order will be automatically corrected with the elimination of the product or products not available and the buyer will be informed by e-mail; with this e-mail the Buyer will also be informed of the methods and timing of reimbursement of any sums paid.
The Seller is at any time authorized to cancel or to not perform a confirmed order, for any reason or cause.
The seller assumes no responsibility for seeking and retrieving unavailable products from other sources.
The Seller reserves the right not to accept the Proposal if: a) the Proposer is, or has been in defaulting, in any capacity, against Seller; b) the Proponent is registered in the list of protests or is subject to executive procedures; c) the Proponent is civilly incapable, or is not in possession of or loses the professional requisites required to exercise his activity; d) the Proponent is in liquidation, forced or voluntary or submits or is subject to insolvency procedures; e) the Proposer is in conditions that endanger the regular payment of the goods covered by the Contract, on the basis of analyzes carried out for the purpose of preventing and controlling the risk of insolvency, fraud control and credit protection. In any case, the Seller reserves the right to make acceptance of the Proposal subject to any specific payment method and / or to the issue of a suitable guarantee.
The Buyer declares himself available to also receive partial shipments.
All shipping and delivery dates proposed by the Seller represent only an estimate and are in no case binding. In this event, the Buyer will not be able to oppose any exception or claim any right to any compensation or price reduction depending on the delay or failure to execute the order.
If it is impossible, for any reason or cause, to supply the product in whole or in part on schedule, the Seller will promptly notify the buyer in writing, including by e-mail, also indicating the presumed delivery date.
The return / storage / new dispatch of the shipment due to the incorrect indication of the delivery address by the customer, may be subject to a commission charged to the customer.
Buyer is responsible for all the expenses incurred by Seller because of such cancellation, or a minimum cancellation charge of 25% of the order value, whichever is greater. Orders canceled less than 30 days prior to the scheduled delivery date shall be finished and billed at contract price.
Subject to clause “PRODUCT BUILT TO BUYER’S SPECIFICATION” of these terms and conditions, cancellation of the orders by Buyer can only be made with Seller’s prior written consent.
In case of force majeure the delivery commitments and other obligations of the Seller are suspended. In this case Seller is only obliged to deliver as soon as it becomes possible. Neither party shall have any liability to the other in case of force majeure. For the purpose of this agreement force majeure means: unforeseen circumstances persons and/or materials which render the executions of the agreement impossible for the Seller, or so extremely difficult or expensive that a prompt observance of the present contract cannot be demanded of the Seller. As such circumstances are considered amongst others, but not limited: measures taken by the government, breakdowns, traffic and/or transport problems, disturbances in the
PRODUCT BUILT ON BUYER’S SPECIFICATION
Seller and Buyer may agree that Seller shall build products to Buyer’s specifications. If such is the case Seller and Buyer Shall mutually agree in writing the specific details of such agreement. These General Terms and Conditions remain however applicable to any such agreement. Furthermore buyer shall irrespective of such more specific agreement – always be responsible for all expenses incurred for tooling or related to ordering of raw materials, components or other parts and any other commitments entered into by Seller even during the preparatory phase when no firm order is placed yet by buyer. Buyer is not enabled to cancel any single order such customized products without Seller’s prior written consent and always only under obligation to fully reimburse the Seller for all expenses incurred by seller related to the order and cancellation thereof. Buyer shall furthermore be obliged to purchase and pay for all customized products that are produced by Seller in accordance with separate agreement or produced by Seller at its sole reasonable determination in case of absence of such separate agreement.
ENGINEERING – DESIGN – INTELLECTUAL PROPERTY
Seller reserves the right to make design, specifications and/or engineering changes to its products without prior notification to Buyer. Title to, and full and unrestricted ownership and right to use all designs, specifications and engineering information provided by Seller shall at all times be and remains vested in Seller. BARRACUDA has not verified the possible existence of third party intellectual property rights which might be infringed as a consequence of the sale and delivery of the products and BARRACUDA shall not be held liable for any loss or damages in that aspect. Buyer expressly assumes all risks of any intellectual property infringement by reason of its importation and/or use of the products.
WARRANTY and RETURN – DEFECTIVE PRODUCTS
The Seller undertakes to guarantee the products sold to the direct transactional Customers of BARRACUDA srl for a maximum period of twenty-four (24) months, starting from the date of Buyer’s purchase. All secondary customers of these products and parts must submit warranty claims with their direct suppliers.
The warranty right will be recognized only by showing the relevant proof of purchase: invoice or purchase receipt.
CASES OF EXCLUSION FROM THE WARRANTY AND RETURN:
All damages or defects caused by external effects such as electric shocks, lightning, natural disasters, wear and tear, corrosion , intervention on the product of third parties or of the customer itself, non-observance of operating instructions indicated by the manufacturer are excluded from the warranty , incorrect use or incorrect installation, tampering. Some of the products offered have a purely specific use, the Seller will not be liable for the warranty in the event of non-compliant use or incorrect installation. Software repairs are excluded from any warranty claims.
ATTENTION: the guarantee for electric / electronic devices (such as indicators) will be valid only if their installation has been carried out correctly according to the instructions provided on www.barracudamoto.com and only if installed with all the original BARRACUDA supplementary products (such as resistors, relays, cable adapters).
1) The Buyer can exercise his warranty rights by contacting the Seller directly, preferably to the dedicated email [email protected].
- If the defect of the product is not one of the cases of exclusion from the warranty (read above) , the customer will receive written authorization to return the product to the Barracuda site for a thorough technical check by the technical office. Any costs incurred for the return (shipping and any other) will be borne by the buyer and will be reimbursed only if the Seller's technical verification is successful and therefore only when the warranty claim is accepted.
- If it is already clear that the defect falls within the cases excluded from the guarantee, the request will not be taken into consideration.
No goods may be forwarded back to Barracuda without the prior written authorization by the latter. Products returned without the Seller's prior approval are not accepted and will be sent back at the sender's expense.
This authorization does not imply any liability, whether direct or indirect, apparent or hidden of BARRACUDA and do not suspend in any event the payment owned by the Purchaser at the date they are due.
The burden of proof of any manufacturing faults lies with the buyer.
2) The technical verification will be performed by the Seller after receipt of the goods at the latter's operational headquarters. This technical verification is designed to verify the validity of the Customer's warranty request. The Customer will be informed about the outcome of the technical verification by email:
- In case of acceptance of the warranty request, the customer will be informed by email and will make arrangements with the Technical Department of the Seller to receive the goods replaced under warranty;
- If, from the technical appraisal of the product, it should be deduced that the damage was caused by one of the effects listed in the warranty exclusion or other objective reasons, it will not be possible to recognize the warranty and therefore replace the product. The Customer undertakes to take back the unrepaired product and bear the costs of shipping or disposal costs. In no case can the Customer have the product repaired by another company at Barracuda's expense.
If the product could no longer be replaced, the Seller reserves the right to deliver a similar product to the customer in replacement of the one previously purchased or to credit it in the form of a voucher for the same value as the defected product in compensation of warranty claims. Through the repair or replacement of a product, the duration of the warranty is neither interrupted nor extended.
NON-DEFECTIVE PRODUCT RETURN
Exchange and return of non-defective products in accordance with the contract are not allowed and are possible only in exceptional cases and with the explicit and written consent of the Seller.
In the case of goods incorrectly sent by BARRACUDA, the collection of the goods incorrectly sent and the shipment of the correct product will be the latter's expense and risk.
The Buyer is obliged to check the completeness and accuracy of the product received and in the event of defects or shipping errors must notify the Seller in writing at the latest 2 days after delivery. Otherwise the shipped product is considered accepted.
The products must not be used, washed or damaged; therefore, they must be kept with normal diligence and returned intact, perfectly suitable for the use they are intended for and without any sign of wear or dirt, complete in all their parts, accompanied by all accessories and leaflets, with tags identifiers, labels and disposable seals, where present, still attached to the products and intact and not tampered with. In compliance with the provisions of art. 59.1; e) of the Consumer Code, the right of withdrawal is not exercisable in relation to the Products whose packaging has a seal that has been opened after delivery.
WITHDRAWAL – (FOR CONSUMERS ONLY)
In accordance with the legal provisions in force, Consumers have the right to withdraw from the purchase, without specifying the reason, within the term of 14 days from the date of receipt (by the Purchaser or his authorized representative) of products purchased on the Site.
The withdrawal right will be recognized to consumers only by showing the relevant proof of purchase: invoice or purchase receipt.
The return costs (shipment), methods and responsibilities are charged to the customer. If the customer places the order by selecting the "guaranteed return" shipping method and intends to return the purchased products, he can use the return label received with the order and send it back directly to the seller by going to any post office.
Conditions: the products can be checked but must not be used, washed or damaged; therefore, they must be kept with normal diligence and returned intact, perfectly suitable for the use they are intended for and without any sign of wear or dirt, complete in all their parts, accompanied by all accessories and leaflets, with tags identifiers, labels and disposable seals, where present, still attached to the products and intact and not tampered with. In compliance with the provisions of art. 59.1; e) of the Consumer Code, the right of withdrawal is not exercisable in relation to the Products whose packaging has a seal that has been opened after delivery.
The Seller reserves the right to reimburse any sums already collected for the purchase of the products, only after having received the products and carried out the checks necessary for the validity of the withdrawal, respecting the aforementioned conditions.
The Customer has the right to request the withdraw in the following ways:
- use the withdraw form available on the website www.barracudamoto.com, to be filled in and sent directly online (in this case the Seller will send to the Customer confirmation on the e-mail provided by the same of the receipt of the withdrawal request);
- draw up and send to the Seller another explicit declaration of the decision to withdraw from the contract, complete with the following data: name, surname, date and number of the order, date of receipt; preferably to the dedicated email [email protected].
The Customer is responsible for:
- any decreases in the value of the products resulting from handling them other than that necessary to establish their nature, characteristics and functioning;
- for the loss or damage of products returned during transport.
This Warranty gives you specific legal rights as above described. In addition, consumer’s rights are protected where applicable, following European Directives or, in absence of, National laws.
NO LIABILITY FOR CONSEQUENTIAL DAMAGES
To the extent permitted by applicable law, in no event shall BARRACUDA be liable for any damages whatsoever, including without limitation, loss of time, inconvenience, expenses, such as telephone calls, labor or material charges incurred in connection with the removal or replacement of the products or parts, special, incidental, consequential, or indirect damage for bodily injury, loss of business profits, business interruption, loss of business information, or any other pecuniary loss, arising out of the use of or inability to use the defective products or parts, even where advised of the possibility of such damages. In Any case BARRACUDA’s entire liability under any provision of this limited warranty shall be limited to the amount actually paid for the products or parts.
motoactive gmbh Eystrasse 34– 3454 Sumiswald