GENERAL SALES CONDITIONS OF RESCH & 3 GMBH/S.r.l.
1. Purpose – Type of Agreement
1.1 These sales conditions for the sale of machines, installations and spare parts (hereinafter, “Products”) from the company. Resch & 3 S.r.l. (hereinafter “Resch”) are valid in their entirety, unless otherwise agreed to in writing between the Parties.
1.2 Upon communication of the acceptance of the sales offer or a purchase order to Resch, the Buyer accepts and is bound by the contract conditions herein.
1.3 The legal relationship between the parties lies in a sales contract and any assembly that may be expressly requested by the Buyer and carried out by Resch personnel and/or companies appointed by Resch. Said assembly entirely represents an additional service, without precluding the presence of a sales contract.
2. Conclusion of Sales Business – Product characteristics
2.1 The Buyer’s written acceptance and confirmation of the written offer received from Resch represents a binding sales offer, starting from receipt of said acceptance by Resch.
2.2 Direct orders from the Buyer must be notified to Resch in writing and are irrevocable five (5) days after having been received by Resch; such orders shall only be considered valid, if accepted by Resch in writing. Resch shall send the acceptance by mail, fax and/or e-mail.
2.3 Quantities, quality and description as well as any specifications and technical data about the products comply with the offer from Resch (if accepted by the Buyer in writing) or the Buyer’s order (if accepted by Resch in writing), as well as the consequent, detailed assembly plan, drawn up by Resch (if accepted by the Buyer in writing). Any defects that can be ascribed to the erroneous communication of technical product data by the Buyer to Resch, such as measurements, floor consistency, etc, are borne entirely by the Buyer.
2.4 All sales data, specifications and price lists are to be treated with the utmost confidentiality and may not be divulged to third parties. The intellectual property of the sales data and brochures, on paper and in digital form, samples, layouts and designs, as well as the relative intangible rights thereto, including those pertaining to documents accompanying the offer and acceptance of the order, such as pictures, technical drawings, specifications and measurements, are the exclusive property of Resch.
2.5 Resch reserves the right to alter the products, as regards the specification and/or functionality, during the production processes, as long as such alterations do not lead to the reduction of the quality and serviceability of the order.
2.6 At its sole discretion, Resch reserves the right to accept alterations requested in writing and communicated by the Buyer, after the latter has received the acceptance from Resch, as per Art. 2.1, or after the five-day time limit in accordance with Art. 2.2; Resch may accept such alterations depending on the progress of the production of the products ordered. Resch shall notify the Buyer, in due time, of the acceptance of the desired alterations, without prejudice to the fact that, in case of non-acknowledgement within two days after the request, the same is understood as refused. Any charges and additional costs, resulting from the requested alterations and/or additions, are borne exclusively by the Buyer.
2.7 The Customer expressly acknowledges, that almost all Resch products are machines and installations, which fall within the application range of European CE directives 98/37/EG and 2006/42/EG, are, thus, labelled CE and comply with the standardised European product safety regulations. Unless otherwise agreed to in writing between the Parties, Resch is not liable for national standards and regulations of non-EU countries that are valid for the manufacture, implementation, resale, etc, of machines and products at the place of delivery or destination.
3. Prices – Delivery – Obligations of the Buyer
3.1 All prices conform to the information contained in the respective acceptance of the offer confirmation, i.e. acceptance of the order, or to the prices valid at Resch at the time of such acceptance, excluding VAT. Unless otherwise agreed to, delivery shall be “ex works Resch & 3 GmbH/S.r.l.- Blumau/Prato all’Isarco (or Italy)”, according to Incoterms 2000 for international sales transactions, or “free warehouse, Resch & 3 GmbH/S.r.l.- Blumau/Prato all’Isarco (or Italy)” for national sales transactions and, hence, do not include transport, insurance, packaging and other costs or charges.
3.2 The prices in the offers and confirmations refer exclusively to the products listed therein; the prices charged for any additional and assembly contracts notified to Resch, after conclusion of the sales contract, shall be those prices valid at the time the respective production or work is carried out.
3.3 Resch reserves the right, after having given timely notice to the Buyer and before handing over the products, to raise the sales price in a manner that is appropriate and due to price increase beyond its control (for example, currency rate fluctuations, currency regulations, demonstrable increase of material, raw material and production costs) or due to the change in the delivery date.
3.4 Subject to different agreements between the Parties, the delivery dates noted in the offers and confirmations are solely indicative and are not binding. Therefore, Resch cannot be held liable for delayed delivery. Neither shall Resch be held liable for delayed deliveries in cases of binding delivery dates, if such delays can be traced to accidents, force majeure and reasons for which Resch cannot be blamed, among which are cases chargeable to third parties; the Buyer is aware that some raw materials used by Resch for production and distribution purposes are obtained from third-party suppliers. In any case, the liability for delayed delivery is precluded, if the delay is due to the Buyer’s requests for alterations accepted by Resch. Resch further reserves the right to partial deliveries, and cannot be made liable for the delayed delivery of products not yet handed over.
3.5 The delivery is effected without prejudice to other agreements, “ex works Resch & 3 GmbH/S.r.l.- Blumau/Prato all’Isarco (or Italy)”, according to Incoterms 2000 for international sales transactions, or “free warehouse, Resch & 3 GmbH/S.r.l.- Blumau/Prato all’Isarco (or Italy)” for national sales transactions. The delivery date is considered fulfilled and observed at the moment in which the Buyer is notified of the advice of readiness of shipment. On the agreed to handover date (delivery date), products reported ready for collection/delivery must be called up by the Buyer within a maximum time of one week. Otherwise, Resch is authorised to store the products, at its own discretion, at the cost and risk of the Buyer and invoice the Buyer for these costs, in addition to a weekly storage charge of 0.5 of the sales price as per a deliver “ex works Resch & 3 GmbH/S.r.l.- Blumau/Prato all’Isarco (or Italy)”, according to Incoterms 2000 for international sales transactions, or “free warehouse, Resch & 3 GmbH/S.r.l.- Blumau/Prato all’Isarco (or Italy)” for national sales transactions.
3.6 If a delivery includes assembly / installation, the Buyer shall be responsible for safety on the assembly site and shall adhere to all of the legal provisions in force. As regards the workers from and/or company appointed by Resch, who shall handle assembly procedures, the Buyer shall assure the availability of the necessary equipment/facilities on the assembly site, in due time and to a sufficient degree, such as electricity, air pressure, water, extra operating materials and fuel, as well as materials to be worked (e.g. wood). Accessibility to the assembly site shall also be provided. In case the assembly of the apparatus purchased is not successful and cannot be concluded, for any reason whatsoever, and cannot be attributed to Resch, Resch has the right to invoice the Buyer for the entire service, in accordance with the sales contract. Resch reserves the right to outsource all or part of the assembly work to one or more other companies. Except for liability for intentional acts and gross negligence, the Buyer expressly releases Resch from any liability for direct damages to persons and/or things, while carrying out assembly works, as per the purposes in this contract, including liability for damages caused by staff and/or employees. Furthermore, and, again, save for liability for intentional acts and gross negligence, the Buyer expressly releases Resch from any liability for indirect damages, such as, for example, loss of profits or interest, and loss of output.
4. Payment conditions
4.1 Without prejudice to other agreements, payment shall be made within and no later than the terms agreed to between the Parties and without any deductions, to be considered fixed and binding to the benefit of Resch. Payment shall be made at Resch offices. The Parties may agree that the Buyer open a bank surety and/or insurance guarantee and/or letter of credit through his bank or a bank acceptable to Resch. Upon agreement of a letter of credit, it shall be opened in accordance with the general customs and practices for letters of credit, Revision 1993, ICC-Publication Nr. 500.
4.2 If the payment date is exceeded, interest shall be due, as per Art. 4 and Art. 5 of Italian Law No. 231/2002, in implementation of the European Directive 2000/35/EG, at the current European interest rate, EURIBOR, 6 Months + 7%, in addition to all fees and expenses connected to collection of the payment.
4.3 Resch may, at any time whatsoever, suspend or cancel execution of the sales business or even change the payment conditions, if, in its own judgement, the circumstances of the Buyer’s ability to pay should worsen; provided, at the time of delivery of the products, the Buyer should not have fulfilled his payment obligations (e.g. prior payment of the agreed to price, payment of previous deliveries, safeguarding of the contract), Resch shall be entitled to defer delivery of the goods until payment of all open invoices has been made – without this resulting in the Buyer paying any amounts or indemnity.
4.4 In case the Buyer should not make punctual payment of the price agree to, the contract shall be considered automatically cancelled through fault of the Buyer; if payment instalments have been agreed to, the Buyer automatically forfeits the benefit of the terms, without prior notification. Therefore, Resch has the right to request the payments for all completed deliveries, save the right to claim for further damages.
4.5 Claims or contestations do not give the Buyer the right to suspend or delay the agreed to payments. In no case can the Buyer bring claims or legal actions against Resch, as long as he is behind in payments, including payment of the goods, to which the claim refers.
4.6 If an agreement has been made that Resch shall bear the customs and import duties of the country of destination, any increases in such fees, which become effective between the acceptance and confirmation of the offer or order and delivery of the products in the country of destination, shall be born by the Buyer. All other expenses, taxes and costs shall be born by the Buyer.
5. Implied Warranty
5.1 The Buyer shall undertake to inspect the products upon their being unloaded from the transport vehicle and send Resch a written report, by fax or recorded letter with advice of receipt, about any defects within and no later than 8 days from receipt of the products, hereto attaching the transport document and clear descriptions of the defects detected. Upon acceptance of the assembly/installation of the products supplied by Resch, the Parties shall draw up a formal inspection report upon total or partial completion of the works. Any defects detected during the inspection shall be eliminated by Resch as quickly as possible, in order to guarantee the operability of the installations. In case of hidden defects, the claim in this regard must be made within 8 days of its detection, subject to the prescription limitation. Resch shall not assume liability for any defects not notified within the given time limit.
5.2 The warranty as per this article is excluded in the following cases:
defects ascribable to incorrect transport and storage of the products;
defects ascribable to non-observance of the assembly, operations and maintenance instructions, particularly by incorrect use or a use not compliant with the intended use;
defects or differences, ascribable to the buyers, due to erroneous information in the technical production data;
inevitable wear and tear, also by correct use and in compliance with the intended use (natural wear and tear), particularly as regards expendable parts, such as guide pulleys, band-saw blades, toothed belts, couplings, motor and hydraulic filters, bearings, guide components, wipers (felt, nylon, brass), cogs and chains, energy chains, tubes, gaskets, tires, brakes, etc.;
defects or differences in products from Resch, and which the latter did not approve the carrying out of alterations/repairs/additions/replacements, which were, nevertheless, carried out by third parties.
5.3 Based on a notification, Resch may replace and/or repair the products, at its own discretion and free choice and subject to its accepting the defects indicated, or reduce the price. In addition, Resch may inspect the defective products on-site or have the Buyer return them at his own expense. The contested products may only be returned, if Resch agrees to this.
5.4 Resch limits the warranty to replacement or repair of the product, or reduction or reimbursement of the sales price; hence, any further obligation to direct or indirect damages is excluded, including loss of profit..
6. Reservation of property rights
6.1 The products supplied and assembled by Resch remain its property until the Buyer has paid the entire sales price, including any additional expenses as well as that due in virtue of any existing commercial relations. This reservation of property rights shall remain applicable until all payment documents and checks have been collected.
7. Applicable Law – Court of Jurisdiction – Language of contract
7.1 These General Sales Conditions and all legal relations between Resch and the Buyer fall exclusively under Italian law.
7.2 The Parties agree that the Court of Bolzano, Italy, shall be the exclusive court for any dispute whatsoever concerning this Contract.
7.3 This contract was provided in German and was translated into the English language. In case of a discrepancy the German version will prevail.
The Buyer herewith declares having full knowledge of the Seller’s General Sales Conditions and that each item herein has been negotiated and consequently accepted by the Buyer.