General terms and conditions of supply (hereinafter the Terms and Conditions) of GIMATIC S.r.l. and subsidiaries (hereinafter the Company)
1) Scope of application of these General Terms and Conditions of supply
1.1) For the purposes of this document, hereinafter referred to for the sake of brevity as the Terms and Conditions; Company shall mean GIMATIC S.r.l., located in Via E. Ferrari, 2/4, (25030) Roncadelle (BS) ITALY, while Customer shall mean the legal entity that enters into a relationship with the Company for the purchase of the products also for third parties. 1.2) These Terms and Conditions shall govern the product supply relationship from time to time established between the Company and the Customer and shall be qualified as a sales contract for movable property from market to market, in accordance with the regulations in force, even in the absence of a written agreement.
1.3) Any additional or different terms, even if specified or referred to in Customer records or communications, cannot be enforced against the Company, unless they have been expressly agreed and are derived from a specific agreement written and signed by both parties.
1.4) Notwithstanding the above, these Conditions shall apply to all the supplies carried out by the Company even if delivery is to different recipients from the party requesting the invoice. In this case, for the purposes of the applicability of Conditions, each subject is to be considered a Customer.
1.5) Any adherence to the Customer’s standard terms and conditions, especially if required as a preliminary and necessary prerequisite to the purchase by the Customer, shall be considered valid limited to the provisions that comply with the Italian legislation concerning the sale of movable goods from market to market.
2.1) Except as provided in § 1.5) above these Terms and Conditions shall not apply if specific agreements, validly entered into and establishing different policies exist between the Customer and the Company, regardless of whether they are more or less favourable to one party or the other. 2.2) The Company recognises the validity of the agreements for acceptance, where formally requested as a condition for contracting suitability, limited only to those provisions compliant with the existing law, as applicable.
3) Formation of the Contract
3.1) The supply contract is concluded, at the headquarters of GIMATIC S.r.l., Via E. Ferrari, 2/4, (25030) Roncadelle (BS) ITALY, with the sending of the Customer’s order acceptance by the Company. Subject to the provisions of § 13, the order shall be promptly executed with the same order receipt method.
3.2) Non acceptance of the written order by the Company implies, including the cases referred to herein under §13 below, failure to complete the contract, without any charge being attributed to the Company for any reason, expectation, claim, or right.
3.3) In the event of amendment or partial or total non-acceptance, the company shall promptly notify any changes with regard to quantity, quality, delivery terms and dates, and it is the Customer’s responsibility to specify other notifications, including the right to waive, not later than the day following the Company’s communication and in any case within any additional period established therein; in the absence of the receipt of comments or other instructions from the Customer within the foregoing terms, the changes to the order will be deemed fully accepted.
4) Date and place of delivery
4.1) The Company waives any and all fulfilment obligations through delivery of the products to the carrier at the offices of its plant located in Via E. Ferrari, 2/4, (25030) Roncadelle (BS) ITALY.
4.2) Therefore, any type of duty or any other additional cost is excluded, even if specifically attributable to transport, export, boarding or any other method of delivery to the Customer.
4.3) Similarly, system design, installation and/or testing of equipment, training courses, installation assistance and any other expenses not expressly and formally agreed upon cannot be considered included in the price.
4.4) The products shall be delivered to the carrier in their original packaging prepared by the Company; any additional Customer requests or requirements, if agreed and accepted, shall be charged directly to the latter in the invoice.
4.5) Notwithstanding the foregoing, the Company is not liable for delays due to force majeure, including exceptional, severe and/or prolonged delays in the delivery chain or the method of delivery, and reserves the right to cancel also orders already accepted in the event of excessive charges.
5) Technical data, drawings, documents and confidentiality obligations.
5.1) The data shown in the Company’s official catalogue are the only ones to be considered as binding for the assessment of conformity of the product.
5.2) The Company reserves the right to make continuous technical and constructive improvements to its products, at any time, without notice; the changes will be apparent in the product specification data sheet published in the Company’s official catalogue.
5.3) Even when the products are not patentable by the Company, their configuration and their special features are an integral part of the Company’s intangible assets and may not be copied, replicated, adapted or otherwise used, even in "dual use" or "reverse engineering"
5.4) Any special features, methods of use or other technical specifications contained in the documentation sent to the Customer, unless expressly published in the Company’s official catalogue, are to be considered subject to the protection provided by the laws in force for the know-how and trade secrets.
5.5) Unless otherwise explicitly stated, the Company’s finished products are assumed to be of Italian origin; it is understood that the original certificate request involves, however, waiting the time required for a careful analysis of the case, with the involvement of all those individuals involved in the product’s specific chain, especially when dealing with spare parts or consumable materials ancillary with regard to the finished product.
6.1) In accordance with current legislation, no claim shall be accepted unless it has been forwarded after eight days from the receipt of goods or from the proven discovery of the hidden defect.
6.2) Any complaint must contain all the information necessary to identify the product as well as the description of the alleged defect; the Company, without prejudice to compliance with the foregoing terms with regard to sending complaints, reserves the right to request the complainant to complete the form specified in §9.2 in detail.
7.1) The product complies with the technical specifications, drawings, and, in general, the documentation previously provided by the Company and to be considered compliant until proven otherwise; no complaints shall be accepted, or however taken into consideration, if the differences with regard to the description of the product shown in the Company’s official catalogue are not specifically indicated, or said description was the subject of communication between the parties.
8.1) Unless otherwise agreed, payments must be made by the Customer within the terms specified in the invoice to the agreed credit institution; any disputes that may arise between the parties shall not release the Customer from the obligation to comply with the terms and conditions of payment.
8.2) In case of delayed payment the Customer shall pay default interest to be calculated automatically without any formal notice, to the maximum extent permitted by law, with compound bank interest as used by the agreed Credit institution; the Company however reserves the right to claim compensation for further damages, and to automatically terminate any relationship pursuant to § 13.
9.1) Returns are not accepted unless previously authorised by the Company, upon written request by the Customer; transport costs shall always be charged to the Customer.
9.2) Similarly, returns for repair or replacement of products must be previously authorised by the Company, upon written analysis of the defects detected and accurate completion by the Customer of the attached form (8D); if the defects found determine the applicability of the warranty, the parties shall act as provided in §10.
10.1) The Company ensures compliance of the products supplied with the standards, specifications, processes, and features specified in the catalogue, or otherwise published by the Company.
10.2) Unless otherwise specifically indicated in the catalogue, the warranty period for the individual product is twenty-four months from the date of delivery of the products.
10.3) Under the terms indicated above, the Company, to which the Customer has reported the defect through a related non-conformity report under the terms referred to in art. 9.2, agrees, within a reasonable time, also in relation to the quantity of alleged defective products, to replace the products free of charge without prejudice to the right to claim payment of the full price indicated in the catalogue, in addition to reimbursement of transport costs if, by examining the alleged defective products, improper use or additional use with respect to the warranty coverage, or a lack of maintenance, or any form of damage thereto, even if due to unforeseeable circumstances, or force majeure, is found.
10.4) Unless otherwise specifically agreed replacements are made ex works Gimatic plant, as indicated in §4.1, with costs and risks of transport for defective products to be entirely charged to the Customer.
10.5) The Company disclaims any warranty on products assembled or used incorrectly and differently from what is specified in the catalogue or in the operating and maintenance instructions; furthermore, the warranty shall expire whenever the products have been stored incorrectly, or subjected to poor maintenance, or modified without the Company’s permission.
11.1) The Company is solely responsible for the correct operation of the delivered products with respect to the specifications, features, and performance given in the catalogue;
11.2) As for the contents of data sheets and instruction manuals, the Company is responsible only within the operational limitations of the product in accordance with known standards and technique, with the exclusion of any liability for any non-standard applications from the market and/or not properly tested by the Customer.
11.2) Outside market uses and, however, in the absence of adequate and proven testing, the Company does not assume any liability for any defects or damage arising from the operation of machines or systems manufactured by the Customer or third parties with their products, even if they have been assembled or connected according to standards, diagrams or drawings directly or indirectly derived from the manuals and technical specifications of the products themselves.
11.3) In any case, apart from the cases strictly determined by the laws in force, on the date of the claim as well as the date of compensation for damages, the Customer shall not be entitled to compensation for direct or indirect damages, and profit or production losses, nor may it claim amounts in excess of the price paid for the products supplied by way of compensation.
12) Retention of title
12.1) The products remain the property of the Company until the Customer has fully paid the agreed price to the Company or subsidiary through which a supply relationship has been established.
12.2. If the customer does not fulfil the payment obligation, the Company reserves the right to request the return of products already delivered to the Customer, who will retroactively loose the right to acquire the property thereof.
13) Termination of the relationship and any refusal to contract
13.1) In the event that the Customer has not duly met expired payments, reduces the guarantees given, or fails to provide the guarantees promised, the Company reserves the right to suspend the supply relationship without notice.
13.2) Unless otherwise provided in a written and agreement validly signed by both parties, any and every supply relationship, even if deriving from verbal agreements not signed or, however, resulting from conclusive facts, shall be deemed automatically terminated without any need for notification, if the Customer is placed in liquidation or subject to any insolvency procedure.
13.3) In any case, the Company reserves the right to refuse to fulfil the Customer orders, even if already accepted, if the Customer i) fails to make payments due to the Company, its subsidiary, or its distributor; ii) is in litigation, or however initiates claims or disputes against the Company, its subsidiary, or a distributor; iii) does not observe the confidentiality obligations under §5;
14) Applicable law and Court
14.1) The supply relationships between the parties, including supplies made abroad, are governed by the Italian law; any dispute regarding the execution, validity, interpretation, termination or withdrawal of supply relationships and/or contracts between the parties shall be referred to the exclusive jurisdiction of the Court of Brescia.