General Terms and Conditions

General Terms and Conditions of Paul Serafini GmbH & Co. KG for the BMW Motorrad webshop

General Terms and Conditions of Paul Serafini GmbH & Co. KG for the BMW Motorrad-Webshop

Delivery and Payment Conditions

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1. “Webshop” / Scope of these GTC

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1.1 The following General Terms and Conditions (hereinafter referred to as “GTC”) in the version valid at the time of the respective order shall apply to the business relationship between Paul Serafini GmbH & Co. KG, Giesestr. 30, 58636 Iserlohn, Germany, registered in the commercial register of the local court of Iserlohn, HRA 572, headquarters: Iserlohn, VAT ID No. DE 125572851 (hereinafter referred to as “serafini”) and the customer (hereinafter referred to as “purchaser”) for all performance relationships established using the BMW Motorrad-Webshop of serafini (www.serafini-bmw-motorrad.com) (hereinafter referred to as “Webshop”).

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1.2 All our deliveries, services, and offers within these business relationships are exclusively based on these GTC. These are part of all contracts that we conclude with purchasers for the deliveries and services offered by us. They also apply to all future deliveries, services, or offers to the purchaser, even if they are not separately agreed upon again.

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1.3 The terms and conditions of the purchaser or third parties do not apply, even if we do not separately object to their validity in individual cases. Even if the purchaser refers to a document that contains or references the terms and conditions of the purchaser or a third party, this does not constitute an agreement to the validity of those terms and conditions.

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2. Offers and Contract Conclusion

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2.1 The serafini webshop solely serves to offer purchasers the opportunity to get an impression of serafini's products and services and to send order inquiries to serafini based on this. No binding offers from serafini to conclude contracts with purchasers are depicted in the webshop. The presentations, product details, offers, and prices shown in the webshop are non-binding and subject to change.

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2.2 Purchasers have the opportunity in the webshop to collect serafini's services and products in a so-called shopping cart via the button “Add to inquiry” and to request an offer for the products in the shopping cart by selecting the button “Request offer” (hereinafter referred to as “offer inquiry”).

Serafini confirms receipt of an offer inquiry immediately via email. This email contains the offer inquiry as a PDF document, which the purchaser can retrieve, save, and print. This does not yet constitute a contract conclusion.

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2.3 Serafini will send the purchaser an offer regarding their offer inquiry. The offer will be in text form (§ 126b BGB), which means it can also be transmitted via computer fax or email. The contract is concluded if the purchaser accepts the offer with a declaration made in at least text form (§ 126b BGB) (hereinafter referred to as “order”). Serafini confirms the order with a declaration in text form (hereinafter referred to as “order confirmation”).

With the order confirmation or in a separate email, but at the latest upon delivery of the goods or performance of the services, the contract text (consisting of the order, order confirmation, and GTC) will be sent to the purchaser by us on a durable medium (email or paper printout).

The contract conclusion is in either German or English, depending on the language chosen by the purchaser in the offer inquiry.

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2.4 Solely the specifications in Serafini offers and order confirmations, as well as the provisions of these GTC, are decisive for Serafini legal relationships with purchasers. Oral promises made before the conclusion of a contract are legally non-binding, and oral agreements of the contractual parties are replaced by the written contract, unless they explicitly state that they continue to be binding.

Additions and changes to the agreements made, including these General Terms and Conditions, require text form (§ 126b BGB) to be effective.

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2.5 Serafini retain ownership of all delivered goods until full payment of the total purchase price, including all shipping and ancillary costs.

Serafini retain all rights to all industrial property rights (patents, utility models, trademarks, designs, design patents) as well as all drawings, illustrations, models, tools, brochures, catalogs, calculations, statistics, and all other documents and aids, including existing or future copyright and (competitive) performance protection rights. The purchaser may not make these items accessible or known to third parties, nor may they use or reproduce them themselves or through third parties without our explicit consent.

The purchaser must return these items to us in full and destroy any copies made upon our request if they are no longer needed in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

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3. Prices

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3.1 Our prices apply to the scope of services and deliveries listed in our offers and order confirmations.

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3.2 Unless otherwise specified, the prices stated in our offers and order confirmations are in Euros ex works without any ancillary costs such as packaging, freight, insurance, any assembly services, and without statutory value-added tax. For export deliveries, the prices do not include costs for customs, fees, and other public charges, unless otherwise explicitly agreed.

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4. Payment Conditions

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4.1 We are entitled, even within an ongoing business relationship, to execute a delivery in whole or in part only against prepayment at any time. We declare a corresponding reservation at the latest with our offer.

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4.2 Payment of the price for our deliveries and services is due on the date specified in the invoice or – if such a date is not specified in the invoice – immediately upon receipt of the invoice. If the purchaser does not make the payment when due, the outstanding amounts shall bear interest from the due date at the statutory interest rates according to §§ 353 S. 1, 352 Abs. 1 S. 1 HGB.

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4.3 The purchaser is only entitled to offset against our claims or to withhold payments due to such claims if the counterclaims are undisputed or have been legally established.

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5. Deliveries and Delivery Time

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5.1 Deliveries are made ex works and, in the case of prepayment agreements, after receipt of payment, unless explicitly agreed otherwise. Shipping is at the expense of the purchaser unless explicitly agreed otherwise.

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5.2 Delivery times provided by us are calculated from the date of our order confirmation and require timely payment of the purchase price if prepayment is agreed, unless otherwise specified. The deadlines and dates for deliveries and services indicated by us are always approximate unless a fixed deadline or date has been explicitly promised or agreed upon. Serafini will inform the purchaser immediately if it becomes apparent that the indicated deadlines or dates cannot be met.

If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the carrier, freight forwarder, or other third parties assigned with the transport.

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5.3 We are not liable for the impossibility of delivery or for delivery delays as far as these are caused by force majeure or other events unforeseeable at the time of contract conclusion (e.g., all types of operational disruptions, difficulties in material or energy procurement, transport delays, strikes, lawful lockouts, lack of labor, energy or raw materials, difficulties in obtaining necessary official permits, governmental measures, or non-delivery, incorrect or delayed delivery by suppliers) for which we are not responsible. If such events make the delivery or service substantially more difficult or impossible for us and the hindrance is not only of temporary duration, we are entitled to withdraw from the contract. In the case of temporary hindrances, the delivery or service periods are extended, or the delivery or service dates are postponed by the period of the hindrance plus a reasonable start-up period. If the purchaser cannot reasonably be expected to accept the delivery or service as a result of the delay, they may withdraw from the contract by immediate declaration in text form (§ 126b BGB) to us.

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5.4 If we fall behind with a delivery or service or if it becomes impossible for us to deliver or provide a service for any reason, our liability for damages is limited according to clause 8 of these GTC.

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6. Place of Performance, Shipment, Packaging, Transfer of Risk, Acceptance

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6.1 The place of performance for all obligations arising from the contractual relationship is Iserlohn unless otherwise specified. If we also owe installation based on clause 6.6, the place of performance is the location where the installation is to be carried out.

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6.2 Shipment is at the risk of the purchaser. The purchaser determines the choice of shipping method. If the purchaser does not make a choice, we do not guarantee the most economical shipping method. We insure the shipment at the purchaser's expense against theft, breakage, transport, fire, and water damage, or other insurable risks, unless the purchaser expressly objects.

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6.3 Packaging is generally one-way packaging; the packaging becomes the property of the purchaser.

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6.4 The risk is transferred to the purchaser at the latest when the delivery item is handed over (whereby the beginning of the loading process is decisive) to the carrier, freight forwarder, or other third parties assigned to execute the shipment. This also applies if partial deliveries are made or we have taken over other services (e.g., shipment or installation). If the shipment or handover is delayed due to a circumstance whose cause lies with the purchaser, the risk is transferred to the purchaser from the day the delivery item is ready for shipment and we have notified the purchaser of this.

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6.5 In addition to clauses 6.1 to 6.4, EXW – Ex Works (Giesestr. 30, 58636 Iserlohn, Germany) Incoterms 2010.

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6.6 Ordered goods can be installed on-site by service providers appointed by us at the request of the buyer. We can offer this service if the buyer indicates in their request for an offer that they wish such an installation and completes the corresponding form available for download as a PDF file from our webshop, attaching it to their request for an offer via upload before submission. In this process, the on-site conditions and installations at the buyer’s location for the preparation of delivery and installation should be documented according to the form provided by us ("Installation Form"). In this case, we will calculate the individual installation costs based on the buyer’s information in their request and include them in our offer. The installation will be documented in a final report by the service provider. If the buyer provides incorrect information in connection with the Installation Form or does not complete the form fully, they bear the additional costs incurred.

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6.7 If an acceptance is required, the purchased item is considered accepted when:

• the delivery and, if we owe the installation, the installation is completed,

• we have notified the buyer of this, pointing out the acceptance fiction according to this clause 6.7, and requested acceptance,

• 12 working days have passed since the delivery or installation, or the buyer has begun using the purchased item and, in this case, 6 working days have passed since delivery or installation, and

• the buyer has failed to accept within this period for reasons other than a defect reported to us that makes the use of the purchased item impossible or significantly impaired.

7. Warranty for Defects, Guarantee

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7.1 Serafini is liable for defects according to the applicable legal regulations, especially §§ 434 ff. BGB. Serafini provides an additional guarantee only if explicitly stated in the offer or order confirmation.

The warranty period is one year from delivery or, if acceptance is required, from acceptance. Deviating from this principle, the following warranty periods apply to the following properties/parts:

• 5 years for color fastness and surface condition, except for real wood surfaces, which are subject to natural color changes due to UV exposure

• 5 years for corrosion resistance

• 2 years for all electrical and electronic parts

• 6 months for light sources.

The shortened warranty periods do not apply to claims by the buyer arising from injury to life, body, or health or from intentional or grossly negligent breaches of duty, which expire according to the statutory regulations.

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 7.2 The delivered items must be carefully inspected immediately after delivery to the buyer or the third party designated by them. They are considered approved by the buyer regarding obvious defects or other defects that would have been recognizable during an immediate, careful inspection if we do not receive a written complaint about defects within seven working days after delivery. For other defects, the delivery items are considered approved by the buyer if we do not receive the complaint within seven working days after the defect was discovered; if the defect was already recognizable to the buyer at an earlier time under normal use, this earlier time is decisive for the beginning of the complaint period.

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Upon our request, the complained delivery item must be sent back to us freight-free. In the case of a justified complaint, we will reimburse the costs of the cheapest shipping route; this does not apply if the costs increase because the delivery item is located at a place other than the intended place of use.

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7.3 For defects in the delivered item, we are initially obliged and entitled to rectification or replacement delivery at our discretion. If the purchased item is no longer at the delivery location, the additional costs incurred will be borne by the buyer. In the case of failure, i.e., impossibility, unreasonableness, refusal, or unreasonable delay of rectification or replacement delivery, the buyer can withdraw from the contract or reduce the purchase price appropriately.

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If we are responsible for a defect, the buyer can claim damages under the conditions specified in clause 8.

If a defect in the delivered item cannot be found after a complaint by the buyer, the buyer must reimburse Serafini for the costs incurred in connection with the inspection of the delivery item if the unjustified complaint is attributable to them.

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7.4 If the buyer does not return the complained delivery item to us, does not follow instructions issued by us or resulting from recognized technical rules for handling or processing products, or makes changes to the products, the warranty obligation ceases. Changes to delivery items that occur due to normal wear and tear or improper handling or repair do not justify warranty claims.

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7.5 Written or oral statements about the suitability and application possibilities of our products are made to the best of our knowledge. However, they only represent our experience values, which are not considered guaranteed. Instead, the buyer must independently verify the suitability of the products for the intended purpose through their own testing.

8. Liability

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8.1 Claims by the buyer for damages are excluded. Exempted from this are claims for damages arising from injury to life, body, health, or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of our obligations, those of our legal representatives, or vicarious agents. Essential contractual obligations are those whose fulfillment is necessary to achieve the purpose of the contract, particularly the obligations for timely delivery and installation of the delivery item free of significant defects as well as advisory, protective, and custodial duties intended to enable the buyer to use the delivery item as per the contract or to protect the life or health of the buyer’s personnel or protect the buyer’s property from significant damage.

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8.2 In the event of a breach of essential contractual obligations, we are only liable for the foreseeable damage typical for the contract if this was caused by simple negligence, except in the case of damage claims by the customer arising from injury to life, body, or health. Indirect damages and consequential damages resulting from defects in the delivery item are only compensable to the extent that such damages are typically expected when using the delivery item as intended.

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8.3 The limitations of clauses 8.1 and 8.2 also apply in favor of our legal representatives and vicarious agents if claims are made directly against them.

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8.4 The limitations of clauses 8.1 and 8.2 do not apply if Serafini has fraudulently concealed the defect, assumed a guarantee for the quality of the item, or agreed with the buyer on the quality of the delivery item. The provisions of the Product Liability Act remain unaffected.

9. Retention of Title

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9.1 Delivered goods remain our property (reserved goods) until all existing and future claims from the business relationship with the buyer are fulfilled, regardless of the legal basis.

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9.2 As long as the buyer meets their obligations to us and is not in default, they are entitled to resell the reserved goods in the ordinary course of business and under retention of title, provided that the claims according to clause 9.5 are transferred to us.

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9.3 The processing of the reserved goods is carried out free of charge for us as the manufacturer (§ 950 BGB), without us incurring any obligations. The processed goods are considered reserved goods within the meaning of clause 9.1.

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9.4 If we lose our ownership of the purchased item through its connection with a property (§ 946 BGB), the buyer assigns to us the claims arising against a third party in such a case to secure our claims against them.

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9.5 The buyer’s claims from the resale of the reserved goods are already assigned to us in the amount of the delivery value (invoice final amount including VAT). We accept this assignment. If assigned claims are included in a current account, the agreed assignment also refers to all claims from the current account (current account reservation).

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9.6 The buyer is authorized by us to collect the claims assigned to us from the resale in the ordinary course of business. They must immediately and fully inform us of the amount of these claims and the names of their customers upon our request. They are obliged to hold the collected payments from the resale to third parties in trust for us and transfer them to us. The claim for payment of the proceeds from the resale against the responsible bank is assigned to us in advance for security.

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9.7 Extraordinary dispositions such as pledges, security transfers, and any assignment are not permitted. Third-party access to the reserved goods or assigned claims, particularly seizures, must be reported to us immediately. This also applies to other impairments. If the third party is not able to reimburse us for the judicial and extrajudicial costs of a lawsuit according to § 771 ZPO, the buyer is liable for the resulting loss.

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9.8 If the buyer behaves contrary to the contract, especially in the event of default in payment, or if circumstances become known to us after the respective contract conclusion that, in our opinion, are suitable to reduce the creditworthiness of the buyer, the buyer is no longer allowed to dispose of the reserved goods. In these cases, we are entitled to execute outstanding deliveries only against advance payment or provision of security, to withdraw from the contract, and to demand the return of the reserved goods or the transfer of indirect possession of them at the buyer’s expense. The collection authorization according to clause 9.6 expires. The statutory provisions on the setting of deadlines and their dispensability remain unaffected.

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9.9 The above provisions of this clause 9 do not apply if we carry out deliveries against prepayment. If the realizable value of the reserved goods exceeds our claims by more than 10%, we will release securities at the buyer’s request at our discretion.

10. Right of Withdrawal for Non-Qualification of the Buyer

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10.1 The purchase contract only comes into effect if the buyer is qualified as an authorized BMW Motorrad dealer, BMW Motorrad service operation, BMW AG, a BMW Motorrad branch or a BMW Motorrad importer. If the buyer cannot prove this qualification, Serafini reserves the right to withdraw from the contract without further obligations.

11. Final Provisions

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11.1 If the purchaser is a merchant, a legal entity under public law, or a special fund under public law, or if the purchaser does not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from our business relationship is Iserlohn. Mandatory legal provisions regarding exclusive jurisdictions remain unaffected by this regulation.

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11.2 The legal relationship between us and the purchaser is exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980, does not apply.

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11.3 If the contract or these General Terms and Conditions contain any gaps, those legally effective provisions shall be deemed agreed upon to fill these gaps which the contracting parties would have agreed upon according to the economic objectives of the contract and the purpose of these General Terms and Conditions if they had been aware of the gaps.

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11.4 Should individual provisions of the contract with the purchaser, including these General 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.

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Iserlohn, 25.01.2024