GENERAL TERMS AND CONDITIONS (T&C)
SELLER’S ONLINE PLATFORM
- IMPORTO Drive s.r.o., with its seat at Puškinova 663, Klatovy IV, 339 01 Klatovy, ID No. 28905601, operates, in the capacity of the Seller, an online platform (the "Online Platform") at https://shop.importo.eu for potential and existing customers and business partners; upon registration, this platform lets users browse vehicles offered by the Seller and to place orders for the same, and facilitates the execution of such orders.
- Upon registration, a user account (the "User Account") is being created for users of the Online Platform, and users are granted access to a dedicated area for customers and orderors (the "User Area"). Orderors shall protect the login data associated with their User Account from abuse, and must ensure that third parties do not gain access to their User Account.
- The User Area serves the purpose of submitting orders and communicating information regarding accepted orders (e.g. in the form of a review of the status of individual orders, anticipated delivery dates, etc.)
- Submitting orders within the User Area by Orderors is subject to these T&C, whose current wording may at all times be accessed on the Online Platform; the Orderor must expressly accept the T&C each time at which they submit an individual order (i.e., an individual offer to contract).
- The offer of vehicles (purchase items) on our website (i.e., in particular, in the User Area) is strictly to be understood as an invitation to make an offer to contract (invitatio ad offerendum). The application of Sec. 1732 (2) of the Czech Civil Code is hereby excluded.
- The order placed by the Orderor represents a binding offer to contract (purchase offer), made in accordance with, and subject to the acceptance of, these T&C. The Seller shall confirm receipt of the order via e-mail, including an overview of the order and the current wording of the T&C, sent to the electronic delivery address of the Orderor. The Seller reserves the right to examine the order and/or the Orderor.
- Upon delivery of the order to the Seller, the Orderor is bound by their order for a period of seven days.
- If the Seller wishes to accept the Order, it will do so (and will thus accept the offer to contract) via e-mail, to be sent to the Buyer within seven days; alternatively, the offer to contract may be accepted by sending an advance invoice to the Buyer’s e-mail address. Upon acceptance of the order, a purchase agreement comes into existence between Seller and Orderor. Alternatively, the purchase agreement may be made such that the Seller prepares the wording of the agreement based on the order, followed by acceptance of this draft agreement by the Orderor in the User Area, in which case the purchase agreement is deemed made as of the moment in which the Orderor confirmed within the User Area that they accept the draft agreement.
- Unless expressly agreed otherwise, these T&C govern the legal relationship between Buyer and Seller, including all future business relations between them. The Seller hereby rejects any inclusion of the Orderor’s terms of trade by reference, whether it be made in a form letter or contract or otherwise. The Seller expressly confirms that it does not wish to conclude any purchase agreement which does not include the present T&C as an integral part.
TERMS OF PAYMENT
- The Seller may demand pre-payments or payment by instalments prior to delivery, and may do so repeatedly, subject to an express agreement in writing to such effect or to the issue of an advance invoice. Subject to a different arrangement as to the payment period, any pre-payment is due within five (5) days from the conclusion of the agreement or from delivery of the advance invoice.
- Unless agreed otherwise, the purchase price is due for payment within three days from the delivery of the relevant invoice (sent e.g. to the Buyer’s e-mail address), whereas the invoice shall be issued as soon as the purchase item is ready for handover but in any case no later than concurrently with such handover. The Seller is under no obligation to hand over the purchase item before the purchase price has been paid in full. In the case of regular customers in particular, the Seller may at its sole discretion decide that the purchase price (or, as the case may be, the remainder thereof) may also be paid after the delivery of the purchase item; in such a case, the (remaining) purchase price is due within three (3) days from takeover of the purchase item, and in any case no later than within three (3) days from delivery of the invoice to the e-mail address of the Buyer.
- Unless agreed otherwise, shipping costs and incidental expenses (if any) are due for payment within three days from the date of delivery of the relevant invoice (e.g. to the Buyer’s e-mail address).
- The Buyer may only set off own claims against claims of the Seller if and to the extent that the Buyer's counter-claim has been confirmed in a final ruling or has been expressly recognized by the Seller. The same requirement also applies to any potential right of retention on the part of the Buyer.
- Cashless payments are deemed made only after the amount due has been credited to the account of the Seller.
- The transfer of rights and obligations of the Buyer under the purchase agreement requires in each case the prior written approval of the Seller.
PREFERENTIAL TERMS OF PAYMENT
- The Seller may offer premium customers (Buyers) to make payment of the purchase price within 5 days from handover of the vehicle, at no additional charge (i.e., merchant credit without surcharge). If the purchase price is then not paid within the thus granted 5-day period, the Buyer must pay a fee of EUR 20 for each day of default; this is without prejudice to other provisions in these T&C governing the consequences of default. The aforementioned fee may also be collected by deducting the corresponding amount of credit from the account which the Seller keeps for the customer for the purpose of bonus schemes and other customer loyalty programs.
- Any customer may ask for a deferment of the purchase price, such that the purchase price need not be paid upon handover of the vehicle at the latest, but falls due within 5 days from handover of the vehicle, whereas the purchase price will in this case be increased by 0.1%, or within 10 days from handover of the vehicle, with an increase of the purchase price by 0.3%; this is without prejudice to other provisions in these T&C governing the consequences of default.
TERMS OF DELIVERY
- Delivery dates (which must be explicitly labeled as binding dates if agreed as such, but which may otherwise be agreed as non-binding) must be fixed in writing (whereas "in writing" here means primarily their specification within the User Area in the "Orders" section). The delivery period for the purchase item begins upon dispatch of the availability notice and payment of the purchase price and lasts (no more than) 30 days. The Seller reserves the right to early delivery, i.e., in particular, in the case of regular customers, before the purchase price was paid. In the case of non-existing vehicles (i.e., vehicles which the Seller must first order from the manufacturer), the delivery period shall never lapse before the car has been made. In the case of Delivery dates, which are strictly informal and non-binding, shall be specified and, if need be, updated, in the User Area in the "Orders" section.
- The commencement of the agreed or specified delivery period is conditional upon the Buyer's duly and timely discharge of their obligations. The Seller has recourse to the defense of non-fulfillment of contract.
- If the Buyer has a claim for damages on grounds of Seller’s default, then the amount of damage is capped at 2% of the agreed purchase price, unless the damage was caused by Seller intentionally or due to gross negligence.
- If a random event prevents the Seller from delivery during the time period in which the Seller is in default, the Seller shall be liable with the aforementioned limitations. The Seller is not liable if the damage would have occurred also in the case of timely delivery, or if it is due to force majeure. Force majeure is understood to mean any unforeseeable obstacle which materializes independent of Seller’s will and which hinders the Seller from performing, including (but not limited to) natural catastrophes, the impact of elemental forces, climate conditions, default or breach of obligations on the part of subcontractors or partners of the Seller, epidemics (and the measures taken to contain them), interventions (or omissions to act) on the part of public authorities, armed conflicts and their consequences, disruptions of energy supply or transportation breakdowns, as well as the fact that the car maker makes changes to the available vehicle configurations or ceases to produce vehicles with a specific trim level or specific features, etc., or the event that the car maker or its suppliers are in default or otherwise fail to supply the Seller by previously agreed or anticipated dates or within previously agreed or anticipated time periods. The Seller may withdraw from the agreement in the above-described cases (but also in other cases of force majeure).
- The Seller delivers the vehicle to the Buyer along with all documents listed in the agreement as are available depending on the type of vehicle (existing vehicles, configure-to-order vehicles, etc.), such as the EC Certificate of Conformity. The Seller shall dispatch these documents to the address specified by the Buyer, and shall do so no later than within 20 days from the payment of the entire purchase price.
- Unless otherwise agreed, the purchase item will be handed over at the Seller's delivery address. In the event of delivery-by-takeover on the Seller’s premises, and in the event of delivery by handover to Buyer's forwarding agent, the moment of delivery is the moment in which the Buyer (or their forwarding agent) has been granted access to the vehicle on the Seller's premises; in the event of delivery to the Buyer's delivery address, the moment of delivery is the moment in which the vehicle has been made available at the Buyer's delivery address.
- Unless and until the purchase item has been handed over and the Seller's claims under the purchase agreement have been settled, the purchase item remains the property of the Seller (retention of title). For as long as the title is retained, the right to hold the registration certificate (Part II) and the CoC paper remain with the Seller. If the Buyer is a public-law legal entity, a special fund under the law, or or an entrepreneur who enters into the agreement in the pursuit of their commercial or independent profession (i.e., B2B sales), the retention of title continues with respect to Seller's claims vis-a-vis Buyer under their existing business relationship unless and until the Seller's legitimate claims of this kind have been satisfied. In the case of third-party interventions affecting thus retained goods, the Buyer must advise the third party of the Seller's ownership title and must promptly notify the Seller. During the retention of title, the Buyer must not pledge the purchase item nor perform a security assignment. Unless and until the ownership title to the purchase item has passed to the Buyer, the Buyer must not enter into any agreement whose subject matter is the transfer of the purchase item to a third party (such as a purchase agreement, future purchase agreement, etc.).
- The risk of damage to the vehicle passes to the Buyer upon delivery (or, as the case may be, as of the moment in which the Buyer is in default with the acceptance and takeover of the vehicle). If the Buyer is in default with the payment of the purchase price, then the risk of damage to the vehicle passes to the Buyer as of the moment in which the Buyer entered the state of default.
TAKEOVER OF THE VEHICLE
- The Buyer must take over the purchase item within 20 days from delivery of the notice of availability.
- In the event that the Buyer fails to take over the purchase item, the Seller may exercise its statutory rights. For the event that the Seller chooses to demand compensation for damages, the acknowledged lump-sum amount is 15% of the purchase price, subject to a higher (or lower) claim for damages if the Seller can prove a higher amount of damage or if the Buyer proves that less or no damage was incurred. In addition, if the Buyer is in default with takeover of the vehicle, the Seller may claim reimbursement of storage costs from the Buyer, in a lump-sum amount of 5 euros per day of default.
CONDITION OF THE VEHICLE, ACCEPTANCE PROCEDURE
- The vehicle is a new EU vehicle (i.e., as good as new, with the specified mileage) with a clean vehicle history report (i.e., it was never involved in an accident), imported from abroad to Germany or another country. The vehicle conforms to the EU road traffic rules (i.e., it has been certified for operation by the competent authority), and for the rest fulfills the technical properties and values set out by the manufacturer in the technical description of the vehicle. The vehicle is an EU car with 0 km or, as the case may be, up to 100 km (whereas the odometer of vehicles may account for a low figure of kilometers driven, due to en-route handling); no assurances are given within the meaning of German law as to the vehicle's status as a new car.
- The Buyer shall confirm the physical takeover of the vehicle upon delivery by signing the takeover protocol; the forwarding agent's delivery note or the international consignment note (CMR) are considered equivalent. By signing the takeover protocol, the Buyer also confirms that they duly received the vehicle as anticipated by the agreement, free from outwardly visible defects (i.e., in particular, scratches and/or dents), and represents that the Seller has duly rendered the performances which it owed under the agreement by handing over the vehicle.
LIABILITY FOR DEFECTS
- The Seller is liable for the condition of the vehicle and for material and legal defects at the time of delivery.
- The commencement of the warranty period, and the scope and duration of the warranty, correspond to the terms of the manufacturer. The warranty does not extend to outwardly visible defects at the time of delivery, or to customary wear and tear, or to defects caused by external influences, or to defects which were caused by the Buyer (or by a person to whom the Buyer entrusted the vehicle, or who took possession of the vehicle from the Buyer). The Buyer must bring all warranty claims in writing with the Seller. The Seller assumes no liability for a successful enforcement of claims under the manufacturer's warranty.
REGISTRATION AND TAX DUTIES
- Upon delivery of the vehicle, the Buyer becomes the vehicle operator under the law, with all the legal consequences that this entails. In particular, the Buyer is liable vis-a-vis third parties for any damage caused by the operation of the vehicle.
- Only after the vehicle has been approved as roadworthy and registered by the competent authority may the Buyer operate the vehicle.
- If the vehicle is already registered with the competent vehicle registration authority, then the Buyer must arrange for a change of entry such that the Buyer (or the final purchaser) is entered as owner and operator, and must do so within ten days from the delivery of the documents listed in para. (2); alternatively, the Buyer shall render all requisite assistance to the Seller so that the latter may arrange for this change. The Buyer is aware that the vehicle may remain registered in private or public registers or records of the exporting country for up to 12 months, including re-registrations during this period (especially if the vehicle was financed through a leasing company). Such registrations do not qualify as a defect of the vehicle and have already been reflected in the purchase price for the vehicle; the same applies to a one-day registration (if any) of the vehicle and to the entry of multiple previous owners, i.e., in particular, leasing companies and car dealerships.
- Within three days from delivery of the vehicle and of the documents needed for registration, the Buyer must submit to the Seller proof of the issuance of the roadworthiness registration of the vehicle by the competent authorities of the Buyer's home country (registration certificate Part II) or, alternatively, a letter of confirmation (signed at least by the Buyer) according to which the vehicle was delivered and accepted by the Buyer in their home country / the country of delivery.
- Upon Seller's written request, the Buyer must within 14 days send to the Seller a copy of the relevant registration certificate, issued by the competent authority in the Buyer's home country, or, failing that, send within the same time period a letter of confirmation of the fact that the vehicle has not yet been registered (specifying the reason for non-registration – i.e. because the vehicle is still warehoused on the Buyer's premises and has not been resold).
LIABILITY, DEFAULT, DEFAULT INTEREST, DAMAGES, WITHDRAWAL
- The Buyer is liable for the damage incurred by the Seller due to the non-performance of the Buyer's obligations in connection with the registration of the vehicle or a change of the owner and operator at the competent authority.
- If the Buyer is in default with the takeover of the vehicle, or if the Buyer otherwise violates its duties to cooperate, the Seller may demand compensation for the damage thus caused, including additional expenses (if any). The Seller reserves further claims. If the aforementioned conditions are met, the risk of random destruction or deterioration of the purchase item passes to the Buyer as of the moment in which they have entered a state of default with respect to the takeover of the purchase item (or with respect to their duty of cooperation).
- The Buyer shall pay a contractual penalty to the Seller in the amount of 0.1% (one tenth of one percent) of the purchase price for each day of default with depositing the pre-payment, paying the remainder of the purchase price, or paying the shipping costs. In addition, the Buyer shall pay a one-time contractual penalty to the Seller in the amount of 20% (twenty percent) of the purchase price for the vehicle (excl. VAT), if the Buyer's default with depositing the pre-payment, paying the remainder of the purchase price, or paying the shipping costs exceeds twenty days. If the Buyer declares withdrawal from the purchase agreement (or engages in an equivalent kind of action) without being entitled to do so, the Seller may demand damages in the lump-sum amount of 20% (twenty percent) of the purchase price for the vehicle (excl. VAT) or insist on the performance owed under the agreement. If the Buyer is in default with the takeover of the vehicle on occasion of the handover procedure, the Seller may withdraw from the agreement and/or demand a one-time lump-sum contractual penalty in the amount of 10% (ten percent) of the purchase price for the vehicle (excl. VAT).
- The Buyer shall pay a contractual penalty to the Seller in the statutory amount of value-added tax on the purchase price for the vehicle, if the Buyer has violated their duty to present the Seller, within three days from the delivery of the vehicle and of the papers needed for its registration, with official proof (issued by a public authority) of the vehicle's registration for its operation on public roads (registration certificate) or, failing that, at least a confirmation, signed by the Buyer, to the effect that the vehicle was delivered to, and taken over by, the Buyer in their home country / the country of delivery.
- The contractual penalty is not subject to moderation by a court. It must be paid along with and on top of the damage caused. The Seller may unilaterally set off their claim for payment of the contractual penalty against any pre-payment made towards the purchase price, by giving electronic notice of such set-off to the e-mail address of the Buyer. Contractual penalties are due for payment on the day which follows the day on which the relevant obligation was breached.
- If the Buyer has been in default with depositing the pre-payment or paying the remainder of the purchase price for more than five days, then this qualifies as a major breach of contract, in which case the Seller may withdraw from the agreement. The Seller shall give notice of withdrawal electronically to the Buyer's e-mail address. Upon such withdrawal, the agreement is voided as if it had never existed; however, the withdrawal has no bearing on the claim for contractual penalties, the choice of law, the chosen procedure for dispute resolution, and other provisions in the following Article.
- Unless a fixed-price arrangement has been made, the Seller reserves the right to make reasonable adjustments to the price due to changed costs of wages, material, or distribution with respect to deliveries which only take place four or more months after the conclusion of the agreement. The Seller may also raise the purchase price if, one month or more after the conclusion of the agreement, the EUR/CZK exchange rate drops by more than 1% (European Central Bank reference value, https://www.ecb.europa.eu/stats/policy_and_exchange_rates/euro_reference_exchange_rates/html/index.en.html). The resulting exchange rate loss will trigger a corresponding increase of the purchase price of the same size. The Buyer has a right to withdraw from the agreement if the Seller applies an exchange rate-based adjustment of this kind that amounts to 5% or more of the purchase price.
- If the Parties' principal performances owed under the agreement (i.e., payments towards the purchase price, delivery of the purchase item) are not discharged within 2 years from the conclusion of the purchase agreement, then the purchase agreement automatically ceases to exist. Other grounds for withdrawal are exempt unless they were explicitly agreed among the Parties.
- If the purchase agreement ceases to exist, then the Seller must return to the Buyer any previous pre-payments made toward the purchase price; it shall do so within 10 business days from the day on which the purchase agreement ceased to exist.
- The purchase of several vehicles by one Orderor within the context of a collective order is considered a single indivisible purchase agreement if the Orderor, thanks to this collective order, is granted a rebate or discount or receives notice that the shipping costs (which are otherwise borne by the Buyer) will be waived.
- If a Buyer is in default with the payment of one or several vehicles ordered in a collective order, then the Seller may exercise a right of retention and deny the handover of additional documents (such as registration certificates) or of additional vehicles unless and until all vehicles have been paid in full.
- If, within the context of a collective order, default occurs due to the non-payment of one or several of the ordered vehicles, then the Seller may entirely or partially withdraw from the purchase agreement. If a purchase agreement that was made on the basis of a collective order ceases to exist with respect to even a single vehicle ordered, then the Buyer forfeits any right to a discount for all other vehicles ordered as part of the collective order.
BUYER’S STATUS, CHOICE OF LAW, RULES OF SERVICE, MISCELLANEOUS
- The Parties mutually agree and represent that they are entering into the purchase agreement within the context of their business operations, as entrepreneurs. Neither Party has the status of a consumer or of the weaker party.
- The agreement and the entirety of the legal relations between the Parties are subject to the governing law, with the exemption of the UN Sales Convention (CISG).
- All disputes arising from or in connection with this Agreement shall be finally decided before the Arbitration Court attached to the Czech Chamber of Commerce and the Agricultural Chamber of the Czech Republic, in accordance with its Rules of Arbitration and by a single arbitrator, appointed by the president of the Arbitration Court.
- Where these T&C refer to the written form, this is explicitly understood to include communication via e-mail and within the User Area. The preferred mode of communication between the Seller and the Buyer is via electronic means, such as e-mail and communication within the User Area. It is the Buyer's responsibility to keep abreast of notices posted in the User Area by checking back regularly, and failure to do so is at the expense of the Buyer.
- Documents to be served to the Buyer are deemed delivered as at the date on which they were sent to the e-mail address specified in the User Account; alternatively, they are deemed delivered on the third day following their dispatch via postal or courier services to a domestic address specified in the User Account or, as the case may be, on the tenth day following their dispatch via postal or courier services to a foreign address specified in the User Account. Notices posted in the User Area are deemed delivered as soon as the recipient has logged in, but in any case no later than on the third business day following posting.
- Using the User Area is always preceded by login via user ID and password (which are being assigned during the registration process).
- The Buyer must maintain secrecy with respect to any and all facts of which they learn in connection with the execution or implementation of the purchase agreement, and not disclose any of them to any third party. In particular, the Buyer must not seek to establish contact with Seller’s suppliers or subcontractors in connection with the purchase agreement.
This version of the GTC is valid and effective from 3 May 2023