1 AREA OF APPLICATION
1.1. These general sale conditions apply to all contracts concluded between
A.T.I.B. S.r.l. (P.IVA n. 00552060980), with registered office in Via Quinzanese SNC, ZIP Code 25020, Dello (BS), Italy, or another different associated company, affiliated, controlled or owned by A.T.I.B. S.r.l., on the one hand, and any third party on the other, having as object the sale to the Customer of products marketed by A.T.I.B. S.r.l., hereinafter renamed ATIB.
1.2. The General Conditions may be waived or supplemented, in whole or in part, only by agreement signed by the respective legal representatives of the Parties. Any condition or term of the contract that differs from those contained in the General Conditions or even only supplementing them, as clauses that define further rights or obligations for a Party, communicated from one Party to the other Party but not defined in an Agreement, are to be understood as radically invalid and ineffective.
1.3. The General Terms and Conditions may be subject to updates and amendments and shall bear at the end of the period on which they take effect. They are therefore applicable to all Sales Contracts (as defined below), concluded on or after that date.
2 PURCHASE ORDERS ACCEPTANCE AND AMENDMENTS
2.1. Customers’ purchase proposals must be addressed to ATIB by means of a written communication, which must mention only a) the types and quantities of Products ordered, as well as b) any technical specifications of customization of the Product requested by the Customer. ATIB will examine the Purchase Order in order to determine whether it can be accepted in whole or in part, also taking into account the availability of the Products and the possibility of realizing them according to the Essential Conditions.
2.2. The confirmation of ATIB, in whole or in part, of a Purchase Order, will take place only by means of a written notification of acceptance sent by ATIB to the Customer. Upon receipt by the Customer of an Order Confirmation, which complies with the content of a Purchase Order in relation to the Essential Conditions, will be considered completed a single and binding sales contract between the Parties, to be understood as integrated and regulated by the General Conditions.
2.3. The Order Confirmation may not in any way be interpreted as acceptance of contractual clauses that may be mentioned in a Purchase Order, such as provisions of obligations or rights payable by a Party, other than those contained in the General Conditions or in other Agreements. These additional terms and conditions shall be deemed to be radically void, without prejudice to the valid completion of the Sales Contract as a whole, as supplemented and governed by the General Conditions.
2.4. The specifications contained in a Purchase Order regarding the type and quantities of the Products or other technical characteristics of the Products, even if previously discussed through the representatives of the Parties, may in no case be understood as binding. ATIB will anticipate to the Customer, through its agents, the eventual impossibility to fully satisfy a Purchase Order and will include in the Order Confirmation all the exhaustive and definitive information regarding the volumes, the features of the Products and the relative prices, indicating the destination and, if applicable, the estimated time of delivery.
2.5. If the content of an Order Confirmation differs from what is provided in a Purchase Order with regard to the Essential Conditions, and for such reason the Customer no longer intends to complete the purchase of the Products, the same will have the responsibility to ask ATIB for the cancellation or correction of the Purchase Order within 5 (five) working days from receipt of the Order Confirmation. In the absence of such notice of cancellation or correction, the Sales agreement shall be deemed validly concluded between the Parties as provided in the Order Confirmation.
2.6. The content of the price lists and other information provided in relation to an offer will be as accurate as possible, but binding only if expressly confirmed in writing by ATIB. Any model, sample or mock-up supplied by ATIB is to be considered only indicative, as it may differ slightly from the products actually delivered.
3 PURCHASE ORDER CANCELLATION
3.1. Any Purchase Order sent to ATIB may be validly accepted until it is expressly revoked in writing by the Customer.
3.2. However, if the Purchase Order concerns Products requiring modifications and variants, the specifications of which are not included in the price lists and technical documents of ATIB, said Purchase Order, if not yet accepted by ATIB, may be revoked only within 5 (five) working days of its receipt.
4 DELIVERY TERMS AND CONDITIONS
4.1. The products delivery terms will be indicated in the order confirmation
and any subsequent additions.
4.2. The Customer shall have the right to terminate the Sales Agreement, due to a delayed delivery, only if all the Products ordered have not been delivered after 90 (ninety) days from the established Delivery Term, and provided that the Customer informs ATIB in writing of its willingness to terminate the Sales Agreement before such Products, or even part thereof, have been delivered.
4.3. If part of the Products have been delivered within the period of 90 (ninety) days or in any case before the Customer communicated to ATIB its intentions to terminate the Sales Agreement, the sale of the quantity of Products already delivered will be considered as perfected and cannot be subject to resolution or cancellation by the Customer. In this case, the Customer will have the right to request in writing to ATIB the cancellation of the sale related to the remaining quantities of Products not yet delivered at the time of sending such a request.
4.4. Unless otherwise agreed in writing by the Parties, delivery of the Products shall be deemed EXW (Incoterms, 2020 ICC) at the location specified by ATIB at the time of sale, and the risk of the Products being lost will be transferred to the Customer when ATIB informs the Customer of the availability of the Products for collection, with the Customer’s obligation to do so within the next 10 (ten) days.
4.5. In the event of an agreement other than the EXW delivery of ATIB Italy, the latter, in the absence of instructions from the Customer and without having to assume any responsibility, at its sole discretion, may determine the most suitable shipping and shipping method. The Customer shall be liable for any loss and damage sustained during the transport of the Products, providing adequate insurance coverage for such risks. The Customer will bear, in any case, the costs and risks of shipping and transport of the Products, even if the carrier/freight forwarder should claim that the customs documentation, the shipping and related addresses contain a clause whereby the costs and risks for any loss and damage are borne by the shipper, unless otherwise agreed in writing.
4.6. If the Product is to be exported outside the national territory in which the registered office of ATIB is located, the Customer must provide ATIB, within 30 (thirty) days from the notification of availability for the collection of the Products given to the Customer, an official export declaration and any other documentation reasonably required by the final destination of the product to support its transfer.
4.7. In any case, and without prejudice to any other legal remedy, if the Customer or the carrier designated by them does not take delivery of the Products within the period of 10 (ten) days from the communication by ATIB of the availability of the Products, ATIB will have the right to charge the Customer for all costs and custody fees and vain handling of the Products, also reserving the right to sell the Products to another buyer without any notice. In the latter case, the Customer will always be required to purchase an amount of Products equal to that of the Products covered by the Sales Agreement, with effect, in relation to the delivery period that ATIB will communicate.
4.8. ATIB will ensure to package Products according to custom and only in order to allow loading on t truck with collection at its headquarters. The exclusion of packaging, in the case of Products for which it is normally used, or the use of special packaging, including for any cargo on ship or aircraft, must be expressly requested by the Customer, who will be charged the related costs.
5 PRICES AND PAYMENT CONDITIONS
5.1. The prices covered by each Sales Agreement are shown in the relevant Order Confirmation and, unless otherwise provided, are always to be understood EXW (Incoterms 2020 ICC), net of VAT, excise duties, taxes or other consumption taxes, on sales or on durable goods, transport and insurance costs, custom duties, taxes and other charges for export or import, where applicable, which will remain at the exclusive charge of the Customer.
5.2. Upon signing a Contract and subsequent to it, the Customer will be obliged, if requested by ATIB, to provide adequate insurance to guarantee payments and cover other obligations under this Agreement in the form of a bank guarantee or letter of credit. In such circumstances, ATIB shall have the right to suspend the fulfilment of its obligation, including delivery, until the required insurance has been provided.
5.3. Payment of the quantities of Products delivered must be made within the terms and conditions indicated in the relevant invoice. ATIB will issue an invoice to the Customer upon collection of the Products at the ATIB headquarters or delivery of the same to the first carrier, depending on the applicable shipping condition.
5.4. Total or partial non-payment (by the Customer) of any invoice issued by ATIB within the agreed terms, will entitle ATIB to postpone, withhold or cancel, without any notice and with exemption of any liability towards the Customer, the delivery of all or part of the Products covered by the Sales Agreement in place with the Customer, including the Sales Agreement that do not relate to the Product whose invoice is unpaid, and until the full balance of all outstanding invoices. In case of total or partial non-payment of an invoice by the Customer, ATIB also reserves the right to terminate 1 (one) or more of the existing Sales Agreements with the Customer, by giving him written notice, and with the effective resolution after 6 (six) days of receipt of such notice.
5.5. In the event of failure to comply with the maximum payment terms, ATIB will be entitled to charge default interest at the monthly rate of 1% without prejudice to the right to claim compensation for any major damages.
5.6. In no case the presence of any defects of the Product, may exempt the
Customer from compliance with the payment terms provided.
6 WARRANTY
6.1. Except for any other mandatory legal provisions governing the liability of ATIB for defective products, ATIB guarantees, from the date on which the transfer of ownership of the Product to the Customer is completed, and for the term specified below:
a) 12 (twelve) months, or 2000 working hours (whichever comes first), with reference to Third Party Products or Products not completely manufactured by ATIB; or
b) 12 (twelve) months, or 2000 working hours (whichever comes first), with
reference to used Products, forks, spare parts that were sold separately; or
c) 36 (thirty-six) months, or 6000 working hours (whichever comes first) with reference to Products completely manufactured by ATIB, and excluding the products mentioned in the paragraph b) above; that the Product, including its parts and materials, are of good quality, and free from defects or construction defects or deviations from the specifications indicated in the relevant Order Confirmation.
6.2. This guarantee does not operate, and ATIB will not be held responsible, in all cases where, in addition to the exemptions and discriminating provided by law: a) the Defects are of a minor importance and do not affect the safety or usefulness of the Product, including any paint defects, scratches or marginal nicks; b) if the Product has been used inappropriately by the Customer without considering the category to which the Product belongs or the industry in which the Customer operates; c) the Defects depend, in whole or in part, from a wrong installation of the Product, from its negligent use or, in any case, from a use that does not conform to the indications and instructions that may be given by ATIB or that can be obtained in the technical and/or informative materials; d) the Customer has attempted to repair the Product on its own, without any prior authorization by ATIB, or when the Customer has entrusted such repair to third parties, or has not used for repairing original ATIB spare parts; e) the Defects depend, in whole or in part, on the presence of changes or technical adaptations required by the Customer when ordering the Products; f) the Defects are due to normal wear and tear or due to the deterioration of the Product.
6.3. If a Product affected by any Defect is repaired and returned to the Customer or replaced with another used product according to the terms provided for in paragraph 7 below (Defects Reporting), the warranty period covering the Product delivered to the Customer will be subject to the same deadline as the warranty Period initially provided for the Product affected by the Defects
6.4. With reference to any Defects reported during the Warranty Term, where applicable and where the Products are still covered by the warranty under the terms provided here, ATIB will provide free of charge the necessary spare parts or new Products, while labour costs related to inspections, delivery and any other expensive that ATIB third parties or the Customer itself have had to bear to carry out the necessary repairs and replacements of the Product or the defective parts, will be borne by the Customer.
7 DEFECTS REPORTING
7.1. Any complaint, claim or request for repairing of defects or damages compensation related to the presence of Defects that, by their nature, are found in the face of a thorough and careful inspection, must be notified by the Customer to ATIB in writing within 5 (five) working days from the date of delivery of the Product to the Customer under penalty of forfeiture of any remedy and action of the customer and exemption from any liability of ATIB.
7.2. Whereas the Defects cannot be found by an accurate and careful inspection, any complaint, claim or claim for compensation related to their presence shall be sent in writing to ATIB no later than 5 (five) days after their discovery, under penalty of forfeiture of any remedy and action of the Customer and the discharge of all liability of ATIB.
7.3. Customer’s complaint of Defects within the time limits laid down in the previous paragraphs 7.1 and 7.2 must be accompanied by proof of purchase of the Product, a summary description of Defects and suspicious causes, if known to the Customer, as well as photographic evidence. Upon receipt of the complaint, ATIB will take care of the request and ask the Customer for any further information necessary for a preliminary analysis of the Products. If requested by ATIB, the Customer must also allow ATIB the prior inspection of the Product affected by Defects at the Customer’s premises. ATIB may also request the Customer to deliver the Product affected by Defects to its service centres no later than 14 (fourteen) days in order to be able to carry out further checks and guarantee to the Customer, if applicable, the remedies provided for in paragraph 7.4 below.
7.4. In the event that, upon the outcome of the necessary investigations, ATIB considers that the Defects are covered by the guarantee provided for in paragraph 6 above, ATIB will at its discretion: a) repair the defective Product at ATIB premises at its own expense, with return to the Customer of the reconditioned product within the shortest possible time; b) repair the defective Product at its own cost and care, sending to the Customer’s headquarters specialized technicians for repair; c) prior Customer’s consent, ATIB may authorize the same to proceed independently to the repair of the defective Product, duly following the instructions provided by ATIB, which will also deliver any necessary spare parts; d) replace, at its own care and expense, the defective Product with a new Product or with a used product working and facing in general wear conditions not worse than those of the Product affected by the Defects; e) refund to the Customer the unit price paid by the same for the Product affected by the Vice, instead of its repair or replacement.
7.5. Whenever the Defects reported by the Customer should, following all the necessary investigations, prove to be insufficient or not covered by the guarantee provided by ATIB, ATIB may charge the Customer for the costs of the on-site inspections, transport costs and any other expenses incurred by the same to carry out the necessary checks.
8 TECHNICAL DOCUMENTATION
8.1. The Customer has the responsibility to be fully aware of all the safety rules provided by the applicable legislation in relation to the use of the Products, as well as all the material prepared by ATIB containing technical information, including illustrations and drawings, illustrating the Products, their functional characteristics or their correct use.
8.2. If the Customer has asked ATIB for the technical or functional changes to the Products, which alter their structure, proportions or capacity, compared to what is indicated in the Information Folder, ATIB cannot be held responsible for the conformity of the Products thus modified with the applicable legislation, nor can any liability be attributed to the Customer for damages or any other damage caused to the Customer as a result of the use of these Products.
9 TEST AND INSTALLATION
Product installation and assembly must be carried out at the Customer’s expense. At Customer’s request, ATIB may send its technicians to the Customer, in order to take care of the above activities and charging the Customer the costs of the intervention. The Customer must guarantee to ATIB that it’s going to take every necessary measure so that the above interventions take place in compliance with all the applicable occupational safety legislation. In particular, before the execution of the intervention, the Customer must communicate to ATIB the risks of the working areas where ATIB stuff will have to operate and take all the preventive and protective measures, making available all the personal security devices required by law, so that the activities can be carried out safely.
10 LIABILITY
10.1. Without prejudice to the most discriminating and the exemptions provided for by law, the indemnification liability of ATIB, whatever the title or cause attributed to it, does not extend to the loss of profit of the Customer, such as loss of profits or turnover, and non-pecuniary damage or unforeseeable damage.
10.2. In any case, ATIB shall not be obliged to compensate or indemnify, in any way and for any reason, the amount of any damage suffered by the Customer in excess of the amount of the price of the Product from which such damage originated.
10.3. Without prejudice to any provisions of law to the contrary, the following limitations of liability provided for in paragraphs 10.1 and 10.2 shall not apply in the event of gross negligence or wilful misconduct by ATIB.
11 RESERVATION OF OWNERSHIP
Without prejudice to the transfer of the risk of the Products being perished by the Customer as provided for in paragraphs 4.4, 4.5 and 4.6 above (Terms and Conditions of Delivery) or the different terms indicated in the relevant Order Confirmation, ATIB reserves the right and title to the Products until they are fully paid by the Customer. Therefore, until the payment of the Products is actually received by ATIB, the Customer must a) identify the Products as property of ATIB by separating them from its property; b) refrain from selling the Products to third parties c) allow ATIB to access at any time the premises where the Products are stored in order to control or retrieve them at any time, from the expiry of the payment period provided for and until it has actually been received by ATIB.
12 INTELLECTUAL OWNERSHIP
12.1. Unless otherwise agreed, in the event that, in execution of a Sales Agreement, ATIB produces modified Products or projects or other know-how that give, or may give rise to, new copyright and related industrial patent rights, utility model, design, trademark or other industrial and intellectual property right, these rights and all related exclusive exploitation rights are and will remain the exclusive property of ATIB or otherwise, where such rights are to be recognised by means of registration procedures, in the legitimate expectation that they may be acquired exclusively by ATIB. Therefore the Customer undertakes to refrain from any activity that may prejudice such rights or hinder its protection by ATIB. For example, the Customer shall refrain from filling any application for a right to protect such rights as, but not limited to, applications for trademark registration, patents for industrial invention or model, and shall also, to the extent reasonable and without prejudice to the possibility of marketing the Products, take measures to keep the subject matter of those rights secret in such a way that its protection by ATIB is not affected.
12.2. In any case, it is understood that all concepts, information, ideas, know-how, methods, inventions, data or other industrial or intellectual property rights independently developed by a Party outside the performance of a Sales Agreement shall remain the exclusive property of that Party.
12.3. “ATIB” trademarks, including figurative variants and any other signs used by ATIB to distinguish its Products, are the exclusive property of ATIB and its affiliates or subsidiaries. The transfer of the Products to the customer does not grant the Customer any license to use ATIB trademarks.
12.4. The Customer must also refrain, within any jurisdiction in which it will operate or otherwise carry out commercial activities, from filing distinctive signs that contain ATIB trademarks or are similar to them and confusing and, in any case, from exploiting ATIB trademarks and from making any use of them that is not strictly necessary for purely descriptive and informative purposes of the origin of the Products, nor can the Customer use any other distinctive sign, such as logos, names, domain names or distinctive graphics, attributable to the corporate identity of ATIB or companies belonging to its group.
13 FORCE MAJEURE
13.1. Without prejudice to anything else provided for in the General Terms and Conditions, the Parties shall not under any circumstances for any loss or damage resulting from failure to perform or late performance of any of their contractual obligations, in the event that such non-performance or late execution is attributable to a Force Majeure Event (as defined below). “Force Majeure” means any event that occurs beyond a reasonable possibility of control of a Party and includes, but is not limited to: a) terrorist actions, wars, riots, insurrections or civil unrest or other military or civil protest operations;
b) interruption of refuelling of fuel, electricity, containers or transport; c) embargoes or restrictive measures on exports or imports or other regulatory or administrative measures preventing or delaying the implementation of commitments already undertaken by the Parties; d) epidemics, earthquakes, fires, explosions, storms or flooding, e) breakdowns or breakages of the machinery, blocking or malfunctioning of software, cyber attacks.
13.2. Without prejudice to anything else provided for in the General Conditions, if a Force Majeure Event prevents, hinders or delays in the fulfilment of any contractual obligation assumed by a Party, the latter shall give timely notice to the other Party and that Party shall not be liable for any failure or delay in fulfilling this obligation until the Force Majeure Event continues. Without prejudice to paragraphs 4.1, 4.2 and 4.3 above, if a Force Majeure Event, preventing, hindering or delaying the fulfilment of any contractual obligation assumed by a party, extends for an aggregate period exceeding 120 (one hundred and twenty) days, each Party shall be entitled to terminate the Sales Agreement concerned, by written notice to be sent 10 (ten) days in advance to the other Party.
13.3. In no event shall the Customer’s failure or delay to comply with the obligation to pay the purchase price of the Products within the agreed terms be justified by the existence of a Force Majeure Event.
14 TERMINATION CLAUSE
14.1. Without prejudice to any other hypothesis of termination expressly provided for by other provisions of the General Conditions, the individual Sales Agreements in force between ATIB and the Customer will be resolved by right, if ATIB declares that it wants to make use of this provision and with indication of the Sales Agreement concerned by the termination, in cases where: a) the Customer has not paid, in whole or in part, and within the deadlines for payment, any of the invoices issued by ATIB for the purchase of the Products; b) the Customer or its subsidiaries are subject to liquidation, bankruptcy, insolvency or other insolvency proceedings, including the procedures provided under Annex A to EU Regulation No. 848/2015, in any of the jurisdictions in which the Customer or those subsidiaries have their registered office;
c) the Customer offers for sale, or transfer in whole or in part, its company or a branch thereof provided that ATIB can provide reasonable evidence that such sale or transfer would affect the Customer’s ability to promptly and diligently fulfil any of its obligations under the Sales Agreement.
14.2. Termination shall take effect upon receipt of the notice referred to in
paragraph 14.1 above.
15 TRANSFER AND ASSIGNMENT
15.1. Without prejudice to paragraph 15.2 below, no Party may assign any Sales Agreement, transfer, assign or otherwise dispose of any of its rights (including any credit claims) or obligations arising therefrom, without the prior written consent of the other Party.
15.2. Without prejudice to mandatory legal provisions, ATIB may transfer, assign or otherwise dispose of any right of credit deriving from any Sales Agreement in favour of third parties, without the prior consent of the Customer.
15.3. For this purpose, the Customer undertakes to cooperate in good faith with ATIB and to conclude any act, instrument, agreement or contract that ATIB deems necessary or even only appropriate to give effect, confirm and/ or complete such transfer, assignment or disposition.
16 APPLICABLE LAW AND JURISDICTION
16.1. The General Conditions and all legal relations between ATIB and the Customer are subject to the laws in which ATIB has its registered office, excluding the application of the United Nations Convention on Contracts for the International Sale of Goods.
16.2. All disputes and claims arising out of, or in connection with, the agreement between ATIB and the Customer, including any matter relating to its existence, validity, formation or resolution, shall be determined by the courts at ATIB institution. However, ATIB reserves the right to bring any judicial remedy against the Customer at the competent court of the registered office of the latter.
