GENERAL CONDITIONS OF SALE
of AEA srl, Italy (hereafter referred to as “AEA”)
1.1. The present General Conditions of Sale shall apply to any business contract between AEA and its Customers, even in those cases in which there is not explicit reference to these General Conditions of Sale.
1.2. In no case any General Conditions of Purchase of the Customer shall become part of the business contract unless AEA does not expressly agree in writing
2. Offer and Conclusion of Contract
2.1. AEA shall be bound by the Offer for a maximum of 3 months from the emission date of the offer itself unless otherwise stated in the Commercial Terms of the Offer itself.
2.2. Any illustrations, drawings, dimensions, weights and other performance data indicated in the Offer are given as reference and are not binding unless expressly indicated or agreed in writing.
2.3. AEA keeps the Intellectual Property and the Copyrights for the full body of the Offer as well as for any concept, draft, the drawing and any other document inherent to the subject of the Offer itself. Offer, concepts, drafts, drawings and documents must not be disclosed to any third party without express written consent of AEA, and are to be returned without any delay to AEA on request or in the case the order is not placed.
2.4. The Sales Contract, or Purchase Order, shall be concluded by written Confirmation of Order by AEA or, in case the Confirmation of Order is not issued, by the formal execution of the order.
2.5. Any amendments, supplements or additional agreements to be valid must be agreed in written form and confirmed by an authorized AEA Customer Accountant. Any other AEA employees are not authorized to make additional agreements or give warranties exceeding
the contents of the Sales Contract, or Purchase Order
3. Prices and Payment
3.1. Prices are intended EXW AEA according to the International Chamber of Commerce Incoterms 2010 unless otherwise stated in the Commercial Terms of the Offer itself.
3.2. Prices are in Euro currency unless otherwise stated in the Commercial Terms of the Offer, and are always net to taxes, duties and any other taxation form.
3.3. Invoices are due to net 30 days on receipt date, unless otherwise agreed and indicated in the Commercial Terms of the Offer itself, and must be paid without any deductions.
3.4. The Customer has the right to offset payments in case of legally ascertained claims, or in case these claims have been admitted by AEA in writing.
3.5. Any claims by AEA for purchase price or work remuneration shall expire in three years
4. Customer’s Right for Compensation
4.1. AEA shall guarantee for a period of 12 months from delivery of the goods that the delivered products and rendered services are free from defects and executed in workmanlike manner, unless either differently indicated in the Offer or otherwise agreed in writing.
4.2. Only the product description given by AEA through the technical description Offer shall be deemed valid and binding. Any additional statements, recommendations and advertising do not represent any contractual condition unless formally agreed in writing by AEA. The Customer does not receive any guarantees in the legal sense.
4.3. Initially, AEA shall guarantee for any defects either by rectification of defects or by parts replacement delivery. If subsequent performance should fail, or if AEA refuses fulfilment because of unreasonably high costs or of any technical reason, the Customer may either claim reduction of price (Abatement) or cancellation of the contract (Withdrawal). Any pecuniary request for damages shall be according to the framework of liability limitations (Section 5). However in case of a marginal breach of contract, especially but not limited to a marginal defect, the Customer has no right of Withdrawal.
4.4. Any defects of the delivered product must be claimed in writing and without any delay within a maximum period of 30 days after receipt of the goods at the latest. If this indication is not submitted timely AEA shall exclude any assertion of guarantee claims. To this end the Customer must provide complete proven evidence regarding all eligibility requirements, in particular with respect to the claimed defect itself and the time and conditions of identification of the defect.
4.5. In the case that the Customer requires to withdraw from the contract because of a proven defect and after failed AEA’s subsequent performance correction, Customer shall not be entitled to any additional claims for damages for this defect. If instead Customer requires compensation or abatement after failed subsequent performance correction, the delivered goods shall anyway remain with the Customer, provided that this is acceptable for the Customer. In this case, the compensation or abatement shall be limited to the only difference between the agreed price and the value of the faulty items. The aforementioned restrictions shall not apply if the breach of the contract is based on proven intent or on gross negligence by AEA, or if any bodily injuries or damages to health, or deaths have occurred, respectively.
4.6. Any liability for normal wear or for damages due to unsuitable or improper use, use of unsuitable equipment, use of an unsuitable installation base or soil, chemical or electric influences, atmospheric or other natural influences, acts of God and any other misuse are excluded from guarantee coverage. As well, if operating or maintenance instructions as provided by AEA are not fully acknowledged and applied, or if any unapproved changes are made to the products, including but not limited to the software, or if any parts, including consumables, are exchanged which do not correspond to the original specifications, or in the case that any written advice provided by AEA has been disregarded, then warranty coverage shall be excluded.
4.7. In case that the Customer receives a faulty Operating Manual, AEA is only obligated to provide an updated and free of faults Operating Manual
5.1. Claims for damages and reimbursement for expenses by the Customer, regardless of the legal ground, shall be excluded.
5.2. This exclusion of liability shall not apply in case of losses as a result of intent or gross negligence, in case of slightly negligent breach of essential contractual obligations, also by legal representatives or assistants of AEA, in case of injury to the life, to body or health, or in case of claims according to the Product Liability Act.
5.3. To this end AEA is only liable for the direct average loss typical for the Sales Contract and predictable according to the type of product; in any case liability shall be limited to a maximum amount of 500,000 Euro for personal injury and material damage, or 25,000 Euro for financial losses and other losses, which could not be expected to occur at the time of conclusion of the contract, respectively.
5.4. Any claims to AEA for compensation for any indirect losses (e.g. loss of production or lost earnings, or product correction costs) are excluded, with the exception of liability for intent or gross negligence.
5.5. AEA shall not be liable for works of its technicians on machines and devices which are not connected to the installation or repair, or which have been carried out without any knowledge on the part of AEA and without its approval, unless the loss has been caused by intent or gross negligence.
5.6. Any claims of the Customer shall expire one year after delivery of the goods, or acceptance of work performance, respectively. This shall not apply in cases mentioned under Section 5.2
6. Retention of Title
6.1. All delivered goods, special facilities and spare parts shall remain reserved property of AEA until complete settlement of all accounts receivable by AEA from the business relations with the Customer, including all outstanding balance claims and payments from current accounts. As far as the value of all security interests, which AEA is entitled to according to this clause, exceeds the amount of all secured claims by more than 20%, AEA will release at Customer’s request a corresponding part of the security interests.
6.2. The Customer is entitled to process and sell the items subject to Retention of Title, in the framework of regular business operation, provided that is not in default. Any claim resulting from a resale or any other legal ground (insurance, tort) in terms of the reserved property, shall be assigned in its entirety already now by the Customer to AEA by way of security. AEA shall accept this assignment. AEA shall authorize the Customer to collect the assigned claim for their account on their own behalf. The collection authorization may only be revoked if the customer does not meet his obligations to pay.
6.3. Any pledging or chattel mortgage of the Reserved Property is not allowed. In case of access of any third party to this Reserved Property, the Customer shall point out the property of AEA and shall notify AEA without any delay. In addition, in case of access of any third party to the Reserved Property, the Customer shall pay all costs required for annulment of the access, especially by third party proceedings, and for recovery of the item.
6.4. In case of the Customer acting contrary to Contract, especially in case of default, AEA shall be authorized to withdraw the Reserved Property. The Customer shall be obliged to deliver the Reserved Property. For the collection of the goods, AEA shall be entitled to access any operating site or other premises of the Customer where the Reserved Property is stored.
6.5. During the term of the Retention of Title, the Customer may use the goods, but must not cede them to any third party, sell or encumber them. Any relocation requires approval of AEA. All required repair or maintenance works must be carried out in wisely manner by the Customer at his own expense (with the exception of works for rectification of faults). The goods are to be insured against destruction, damage and deterioration in favor of AEA. On demand, the Customer must prove insurance, as well as regular payment of the insurance premiums. AEA shall be entitled to inspect the Reserved Property at any time after announcement, and to access the Customer’s premises for this purpose.
6.6. The treatment or processing of the Reserved Property shall always be carried out on behalf and by order of AEA. If it is processed or mixed with any items not belonging to AEA, AEA will acquire joint ownership for the new item, proportional to the value of the items supplied by AEA to the other processed items
7.1. The Customer shall be obliged to accept the goods object of the Sales Contract whenever AEA produces it essentially complete and free of defects. Any marginal defects or marginal remaining works do not constitute an obstacle for acceptance. In these cases, if the Customer lacks to provide formal acceptance to the goods, AEA shall be entitled to refuse either guarantee or assistance on the aforementioned goods. In addition, AEA keeps the right to undertake any action, even legal, to safeguard its rights and interests.
7.2. Acceptance shall be communicated within maximum 14 days after receipt of the written notification of completion by AEA. If the formal acceptance cannot be communicated within the aforementioned period due to reasons not depending on AEA’s will, the object of the contract shall be deemed as accepted if the prerequisites of no. 7.1 are met.
7.3. If AEA meets the prerequisites of no. 7.1 and has instructed the Customer or his staff, according to Contract, the object of the Contract shall be deemed accepted even when AEA has not formally invited the Customer for acceptance. Acceptance according to this paragraph shall be accomplished, if after presentation of the prerequisites the object of the contract has functioned without any defects for a period of 14 days.
7.4. Under any circumstances shall AEA be liable for any damage for machines used prior to have the formal acceptance by the Customer
8.1. AEA srl guarantees the equipment free from defects of workmanship under conditions of normal use and maintenance for the period of 12 months after approval at Customer’s floor or 14 months after shipment, whichever comes first.
8.2. Guarantee covers products with design, processing or construction defaults attributable to AEA srl and which may compromise the operational efficiency of the system, and the related repair labor. AEA srl reserves itself the right to invoice the Customer with all the travel, board and lodge costs.
8.3. Guarantee shall not apply also in the cases in which the causes of the defects are due to tampering, alteration (including software), incorrect use, negligence, use of not homologated spare parts, lack of ordinary maintenance, repairs done by not authorized trained staff, natural events (such as earthquakes, floods and any other act of God), vandalism and fire.
8.4. All components subject to wear or consumption, due to their nature or method of use, are not covered by the standard guarantee.
8.5. All disassembly and re-assembly activities, likewise for any modifications made by the Customer on the equipment supplied by our Company, must be authorized in writing in advance by AEA srl, otherwise all liabilities and guarantee terms on our behalf are void.
8.6. In case of malfunctioning or failure of the equipment the Customer has to inform formally AEA (either in writing via fax or mail at email@example.com or calling dedicated help desk +39 0731 816816). This latter will make available the necessary resources to remote-analysis from AEA premises, in cooperation with Customer’s staff on-site, the nature of the problem and the possible solutions.
8.7. Standard guarantee assistance is provided on Normal Working Hours, Monday to Friday from 08.30 am to 12.30 pm and from 02.00 pm to 06.00 pm CET, excluding Italian bank holidays. Supplementary 24/7 assistance may be agreed with a Service Contract.
8.8. During the guarantee period, whereas guarantee is applicable according to art. 2, Customer may be asked to disassemble and ship to AEA srl the malfunctioning component at its own charge, while the costs of repair and return of the product to Customer premises are at charge of AEA srl.
8.9. AEA srl reserves itself the right to examine the claimed defective component. Should it be found that the guarantee is not applicable as per art. 2, the Customer will be invoiced for all incurred costs (i.e. hours of labor and price of the replacement part). Substitutions or repairs are anyway provided with market standard lead-time.
8.10. Guarantee activities for which on-site intervention is deemed as necessary (after adequate remote analysis) shall be carried out with a fixed and agreed reaction time (depending on geographical area), upon formal request by Customer and subject to spare parts availability. Improved reaction time or 24/7 Emergency Hotline may be agreed with a Service Contract.
8.11. In case the Customer requires intervention of AEA’s technicians to solve the problem directly on-site, such a request must be made to AEA srl formally in writing or through the dedicated help desk. AEA srl reserves itself the right to evaluate if such a direct intervention is indispensable (also in relationship to the availability of spare parts). Whereas is found that according to art. 2 the guarantee is not applicable, the Customer will be invoiced with all costs of travel, board, lodge, labor according to our standard fares and replacement parts.
8.12. The Customer may not avail of this guarantee in the case of delayed payments. In such a case the guarantee period includes also the period of time in which the guarantee is suspended
9. Governing law and Jurisdiction
9.1. All of the Parties agree that the contract, and any claim of whatever nature arising out of or in any way relating to it or its formation including any non-contractual claims, shall be governed by and construed and interpreted in accordance with the Italian Law.
9.2. All disputes arising out of or in connection with the contract shall be submitted, in the first instance, to the Ancona Chamber of Arbitration and shall be finally settled under the Rules of Arbitration of the Ancona Chamber of Arbitration by one (1) arbitrator appointed in accordance with the said Rules.
9.3. If the dispute has not been resolved through Arbitration, any suit, action, claim and dispute, which may arise out of or in connection with the contract including its formation or validity, shall be, after the Ancona Chamber of Arbitration’s notification of the termination of the arbitral proceedings, irrevocably submitted to the jurisdiction and finally settled by the decision of the Court of Italy
10. Miscellaneous Provisions
10.1. The place of performance of any contractual obligations shall be Ancona, Italy.
10.2. AEA shall be authorized to store and process any personal or economic data of the Customer, regardless of its provenance,in compliance with theItalian Protection Code (Legislative Decree no. 196/2003)
II. Additional Provisions for the Sale and Delivery of Movable Objects
11. Packaging and Dispatch
11.1. All costs for packaging, dispatch, payment transactions and Customs duties are not included unless otherwise agreed and stated in the offer terms.
11.2. When included, the type of packaging and dispatch is selected by AEA according to AEA’ best judgment.
11.3. Unless otherwise agreed, the goods shall be insured only against damage in transit on the Customer’s particular demand. The costs for this insurance shall be borne by the Customer.
11.4. If dispatch or acceptance, respectively, is refused due to reasons to be answered for by the Customer, the Customer shall bear any expenses arising from this delay. After fruitless expiry of a reasonable period of time, AEA is also authorized to otherwise dispose of the item of delivery.
11.5. Any obvious damages in transit are to be properly recorded on receipt of delivery in a timely and formal manner; in particular damages to the packaging are to be recorded and photographs are to be taken. Any obvious damages in transit are already to be notified to the Forwarding Agent on delivery. This notification is to be confirmed by the Forwarding Agent in writing. In addition, any obvious damages in transit are to be notified in writing to AEA within 24 hours after receipt at latest. Whereas Customer does not meet his obligation within this period of time, AEA shall be entitled to request the Customer to pay for the damages to the amount resulting to AEA
12. Passing of Risk, Acceptance
12.1. The risk will pass to the Customer as soon as the goods are handed over to the Forwarding Agent, or have left AEA site for dispatch.
12.2. If the goods are ready for dispatch and dispatch is delayed on the Customer’s request or for any other reasons not depending on AEA’s will, the risk will pass to the Customer with notification of Readiness for Dispatch.
12.3. If Customer does not accept the goods after notification of Readiness for Dispatch, or if the Customer is in default with the fulfilment of other essential contractual obligations, AEA may withdraw from the contract after reasonable fixing of a time limit, and may claim damages instead of performance. Insofar, AEA may claim the actual loss or a lump sum to the amount of 15% of the net invoice amount, unless the Customer proves a lower actual loss
13. Delivery Times
13.1. Delivery time shall be indicated in the Confirmation of Order. Meeting the delivery times requires that the customer meets his obligations and duties according to undertaken agreement; not being this condition met, delivery time shall be reasonably extended unless AEA is fully responsible for the delay.
13.2. Delivery time may change upon conclusion of congruent hedging transaction with their, unavailability on the market of commercial parts or components or materials, lack of information or parts from Customer or other objective reasons. In this case AEA shall inform Customer in writing and in timely manner.
13.3. Delivery times and periods will be deferred or extended to a reasonable extent whereas AEA or one of its suppliers is not able to perform in time due to force majeure, strikes, acts of God or any other circumstances beyond AEA’s control. Under any circumstances and legal grounds AEA shall be liable for any losses resulting thereof. If any obstruction lasts for more than 3 months, the Customer shall be entitled after reasonable granting of a grace period to withdraw from the Contract in terms of the part not yet performed, but the Customer shall not be entitled to any claim for damages.
13.4. In terms of delay by AEA, the legal provisions shall apply. If AEA is requested to pay for compensation or penalties, Section. 5.1 shall apply.
13.5. Any supplied items are to be accepted by the customer, even if they have marginal defects. Acceptance shall be concluded with the customer’s signature on the acceptance certificate
14. Installation, Assembly, Maintenance
14.1. According to the Contract, the delivered products shall be installed or commissioned by AEA staff unless not commissioning is required or different agreements are undertaken and confirmed in writing. The Customer must properly set the site for commissioning activities at his own expenses and pursuant to the contractual agreement, and make sure that all required connections and technical facilities are present and working. Customer is responsible for statics and building equipment and the load capacity of the installation site of the system. Before starting any commissioning activity, the Customer shall provide to AEA evidence of all required information on the location and the existence of required supply connections (such as electric current, water, compressed air, etc.) for the system to be installed. AEA does not assume any responsibility for damages resulting from Customer’s non-compliance to the aforementioned obligations.
14.2. The installation site must be freely accessible for the system, in particular both the installation site and the building floor must be accessible by the required transport machines and capable of bearing their load. Any entrance doors and the building height must be sufficiently dimensioned both for the system and for the required transport machines.
14.3. The customer has to properly arrange a safe working environment for the staff of AEA (including, where appropriate, the preparation of emergency procedures and special protective clothing); furthermore, adequate medical facilities and first aid sufficiently have to be located close to the installation site.
14.4. All the all the necessary means and manpower for handling and placing the system at Customer premises are not included and shall be beard by the Customer.
14.5. Management and disposal of packaging items is not included and shall be beard by the Customer
15.1. In case of delivery of software, the object of agreement shall be the Program, including any description and data carriers. Presentation in offers and brochures are given only as reference for description of services. The Customer shall not receive any guarantee in the legal sense.
15.2. With the delivery of the software the Customer acquires the right to use it solely and exclusively on the hardware system provided by AEA. The supplied software components remain property of AEA, who reserves itself the right to retain source codes and other development details
15.3. If the right to use for the software according to the Contract is only temporary, then it shall end on expiration date of the agreed usage time and any use beyond this dead line is forbidden.
15.4. For software used on delivered machines but not produced by AEA the original developer/producer of this software is holder of any associated trademark rights and technologies. In this case the Customer is granted the license by the original software developer only for the use of this software for the agreed purposes and in its own Company, exclusively on the specific system supplied by AEA. The license may only be transferred after written consent of the original developer of the supplied software.
15.5. The trademark rights information on the software, even those of any third party, is to be observed. This shall also apply to any amendments, updates or revisions of the supplied software. The right of use does not include the right to use any trademark of the program.
15.6. The grant of the license is subject to the complete payment of the agreed remuneration.
15.7. The Customer is not allowed under any circumstances neither to grant sublicenses nor to make copies of the licensed program, provided that these copies are required for use on a workstation according to the Contract, or for backup purposes. All copies must bear the copyright identification similarly to the original copies supplied by AEA. In case of a rescission of the contract, the object of contract and all copies are to be returned to AEA or to be deleted, respectively. The customer is obligated to confirm in writing that he has met this obligation.
15.8. Maintenance of the software requires a separate agreement and are not due. Any new versions of the software, unless due to correct defects or bugs, are to be remunerated separately by the Customer.
15.9. Customer shall be obligated to use the supplied programs and supplements only in accordance to the contractual purpose and not to disclose them to any third party, neither directly nor indirectly. The same shall apply for any technologies made accessible to the Customer. This confidentiality obligation shall continue to exist after termination of the contract for a period of 10 years. This does not apply to any information which is publicly known at the date of the Contract or which is made available to the Customer from other sources in a proven form.
15.10. The customer is obliged to timely check the software made available after its installation, in particular by test runs.
15.11. Customer is aware that software can usually not be supplied completely free of defects with regard to its varied applications and its complexity, thus possible bugs and defects are always possible. For any defects of the supplied software the provisions for liability for defects indicated in Section 4 shall apply; it is anyway intended that liability for defects in AEA software shall be excluded whereas the Customer or any third party not authorized by AEA makes amendments or corrections.
15.12. In case of a software defect or bug, the Customer shall be obliged to cooperate with AEA and in particular to provide all documents and information necessary and details for the rectification of the incurred fault.
15.13. AEA does not grant compatibility to other software packages already running at Customer premises.
15.14. Any unauthorized modification to the software shall determine the termination of the guarantee contract.
15.15. Any liability for losses shall be excluded whereas the Customer could have prevented the occurrence by reasonable programming and data back-ups
III. Additional Provisions for Assembly Works
16. Commissioning Rates
16.1. For commissioning services AEA shall charge, unless otherwise agreed, the respectively daily hourly rates plus any applicable surcharges and direct costs, on the basis of the commissioning forecast.
16.2. The stipulated prices are calculated without legal VAT to the respectively applicable amount
17. Scope of Services
17.1. Services shall be delivered in accordance to the placed Order and related offer. Any additional cost, whereas not depending on AEA’s will, shall be separately invoiced.
17.2. All parts that are additionally required for assembly and commissioning, which are not expressively listed or which are required for commissioning by exceptional, non-predictable local circumstances, or because of a special request of the Customer or because of requirements of the local supervisory authority, shall be charged separately upon verification.
17.3. Any interruption of assembly because of lacking connections, construction works, power blackouts and any other circumstance not depending on AEA’s will shall be separately invoiced.
17.4. Any additional work not included in the agreed scope of delivery as per Order or Contract shall be separately invoiced upon time and material final balance.
17.5. Any holding times during the presence of AEA for commissioning of the machines, unrelated to AEA’s willingness, shall be separately invoiced.
17.6. Any agreed assembly lump-sums do not include any work on Sundays and Bank Holidays. Assembly lump-sums shall only apply if all on-site preparation measures have been terminated.
17.7. Should the support of Customer’s staff be required during commissioning activities, the related costs shall be borne by Customer without any other claim on AEA by Customer.