GENERAL TERMS AND CONDITIONS (GTC)
1. Purpose – Type of Agreement
1.1 These General Terms and Conditions ("GTC") of Resch & 3 S.r.l. ("Resch") govern all quotations and contracts for the supply and/or installation of machines, equipment, and spare parts ("Products") by Resch to its potential or actual customers ("Customers").
1.2 These GTC shall also apply to future contracts between the parties, without the need to refer to them again in each individual case, unless expressly agreed otherwise in writing (e.g. by email). Terms and conditions of Customer or third parties shall not apply, even if Resch does not expressly object to their applicability in individual cases. They are hereby expressly rejected.
1.3 In the event of inconsistencies between these GTC and individual agreements between the parties, the individual agreements shall prevail to the extent that they are inconsistent with these GTC.
2. Conclusion of Contract
2.1 All quotations and documents of Resch (e.g. drawings, plans, calculations) are subject to change and non-binding. This also applies if Resch has provided Customer with product descriptions, technical documentation, or other documents, also in electronic form. Customer shall treat all sales documents, specifications, and price lists as strictly confidential and shall not make them available to third parties. Resch retains title and copyright to all its quotations and documents.
2.2 Resch’s quotations are merely an invitation to Customer to submit a binding contractual offer ("Order"). Unless otherwise stated in the Order, Resch is entitled to accept the Order within 15 days of its receipt. As a rule, a binding agreement ("Contract") shall only be deemed to have been concluded when Resch has expressly confirmed the Order ("Order Confirmation") or, in exceptional cases, impliedly by an unambiguous action in this sense (e.g. by delivering the Products).
2.3 The Contract, including these GTC, constitutes the entire agreement between the parties and supersedes all prior understandings, agreements, negotiations, representations and warranties, communications, both written and oral. Amendments or additions must be expressly agreed in writing (e.g. by email).
3. Goods and Services
3.1 Only goods and services expressly agreed in writing shall become part of the Contract. The information contained in Resch’s brochures, illustrations and price lists regarding goods and services and their characteristics (e.g. weights, dimensions, utility values, load capacity, tolerances and other data) shall not become part of the Contract unless they are expressly referred to in the Order Confirmation.
3.2 All information relating to the Products is approximate unless the fitness for purpose (see Clause 8) requires exact conformity. Discrepancies which are usual in the trade or which are made for legal reasons or which represent technical improvements, as well as replacements of parts by equivalent parts, are permitted, provided that the fitness for the purpose is not impaired. Customer is obliged to carefully check all details, including as to any factual and legal requirements, before placing an Order. Before the start of production, Resch may send a final drawing, which Customer must immediately check and confirm.
3.3 Resch may, at its sole discretion, accept or reject requests for changes or additions after the conclusion of the Contract. Requests for changes and additions shall be deemed accepted if Resch confirms them expressly in writing (e.g. by email) or impliedly by an unambiguous action in this sense (e.g. by delivering the Products). They shall be considered as additional or special deliveries to be paid for separately and shall result in a reasonable extension of any agreed delivery and performance periods.
3.4 If changes to the subject matter of the Contract become necessary during the term of the Contract, the parties and shall agree in writing (e.g. by email) on the changes and the corresponding price adjustments.
4.1 Prices are quoted in Euros and apply only to the goods and services expressly agreed in writing. Additional or special deliveries may be invoiced separately.
4.2 If no price has been agreed, the applicable list price of Resch shall apply for the agreed goods and services as well as for additional or special deliveries. If there is no such list price, the price generally charged in Italy under comparable circumstances for such goods and services as well as for additional or special deliveries provided in the relevant industry shall apply.
4.3 Irrespective of the commercial term agreed for the delivery of the Products and unless otherwise agreed in writing (e.g. by email), all prices shall be EXW (Resch’s premises in Italy, 39053 Blumau (BZ), Blumauer Strasse 17) Incoterms® 2020, but the costs of loading onto the means of transport shall be borne by Resch.
4.4 Prices are to be understood plus VAT, where applicable. If the reverse charge mechanism (or a similar regulation) applies, Customer shall provide Resch with all information and documentation necessary or expedient to comply with this regulation. Otherwise, Customer shall indemnify and hold Resch harmless from and against any and all claims and demands by the tax authorat ities and damages (including reasonable attorney’s fees).
4.5 If production costs (such as for material, wages or energy) increase between the conclusion of the Contract and delivery, Resch is entitled to adjust the agreed price accordingly. Resch shall notify Customer of such price adjustment without delay as soon as Resch becomes aware of the necessity of the price adjustment. If the adjusted price exceeds the original price by 15%, Customer shall be entitled to withdraw from the Contract within 7 days of receipt of the notification; if Customer withdraws, Customer shall pay Resch reasonable compensation.
5. Terms of Payment, Retention of Title
5.1 Payments shall be made in Euros within the agreed terms, without any deductions, by bank transfer – free of charges for Resch – to the bank account indicated by Resch in good time. The place of performance for payments shall always be the registered office of Resch.
5.2 In the event of late payment, Resch shall be entitled to: (a) charge interest and exercise its other rights under Italian Legislative Decree 231/2002; and/or (b) demand immediate payment of the entire outstanding amount, which shall be immediately due and payable; and/or (c) suspend performance of the Contract (which shall not entitle Customer to suspend any other payment obligations); and/or (d) demand payment from Customer within 8 days with a declaration that the Contract shall be deemed terminated after the fruitless expiry of such period. If the Contract is deemed to be terminated, Resch shall be entitled to retain all sums paid by Customer up to that point as liquidated damages. Resch reserves all further rights, including the right to claim additional damages.
5.3 Resch shall be entitled to suspend the execution of the Contract if Customer’s financial situation has become such that the receipt of payment appears to be at risk, unless adequate security is provided. Resch shall also be entitled to withdraw from the Contract with immediate effect by notifying Customer if Customer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganisation, or assignment for the benefit of creditors.
5.4 Customer may not raise any objection for the purpose of not performing or delaying the performance owed. Customer may not raise any objection or bring an action against Resch as long as Customer has not fulfilled all outstanding payments, including payment for the Products to which the objection relates.
5.5 Until full payment of all claims arising from the Contract and from the current business relationship, Resch retains ownership of the Products, regardless of whether the Products have already been delivered or assembled or whether the risk has already passed.
6. Delivery, Delivery Times
6.1 Unless expressly agreed otherwise in writing (e.g. by email), delivery shall be FCA (at Resch’s premises in Italy, 39053 Blumau (BZ), Blumauer Straße 17) Incoterms® 2020 (for price calculation, however, see clause 4.3).
6.2 Resch shall make all reasonable efforts, at Customer’s expense, to carry out all export clearance formalities and to obtain all export licences, clearances and other official authorisations required for export. However, Resch does not guarantee the successful completion of these formalities, in particular the granting of the export licence, although Resch is not aware of any circumstances that would prevent this. Resch is entitled to withdraw from the Contract in whole or in part if the necessary export clearance formalities cannot be successfully completed.
6.3 Resch is not obliged to perform any obligations that are not included in the Contract. In particular, Resch is not obliged to insure the Products, to procure certificates or documents not expressly agreed (with the exception of those referred to in clause 6.2), to obtain any necessary licences, permits, authorisations, consents or other formalities, to arrange for customs clearance and to bear any levies, fees, taxes, duties and other charges arising outside Italy or to comply with any weight and measuring systems, packaging, labelling or marking requirements applicable outside Italy.
6.4 Unless otherwise expressly agreed in writing (e.g. by email), the delivery times stated in the Contract are only approximate and non-binding, which excludes Resch’s liability for delayed delivery. Even in the case of delivery times expressly agreed in writing as binding, Resch shall not be liable for for delays caused by accident, force majeure and events beyond Resch's control (e.g. events for which Customer or third parties are responsible); in this context, Customer is aware that some of the raw materials used for the manufacture and distribution of the Products are purchased from third-parties. In any case, Resch shall not be held liable for any delay in delivery resulting from changes requested by Customer. Resch also reserves the right to make partial deliveries, in which case Resch shall not be liable for any delay in the delivery of the Products not yet delivered.
6.5 Resch shall inform Customer of the exact delivery date. Customer shall then be obliged to take delivery without delay and in any event within 7 days. Otherwise, Resch shall be entitled to store the Products at its own discretion at the expense and risk of Customer and to charge Customer a weekly storage fee of 0.5% of the price of the Products in question.
7. Installation, Commissioning, Acceptance
7.1 If, in addition to the delivery of the Products, their installation has been expressly agreed, Resch shall notify Customer in good time of its readiness to install the Products. The exact time of the start of the installation shall be determined by mutual agreement between the parties. Resch and Customer are obliged to cooperate constructively in this determination to the best of their ability. The installation may be carried out in whole or in part by third parties commissioned by Resch.
7.2 Prior to the start of the installation, Customer shall, at its own initiative and expense, make and maintain all arrangements and preparations in good time so that the installation can be started and carried out without interruption. For example, Customer must ensure that the access roads and the installation site are levelled and cleared, that there is unobstructed and free access to the installation site, that there are parking facilities, suitable unloading and storage areas, electricity and water, and that suitable lifting equipment (e.g. forklift, crane, etc.) is available for the assembly of the individual machine parts.
7.3 Commissioning shall take place immediately after completion of the installation. Customer shall ensure that commissioning can take place in the presence of Customer's production personnel or their representatives. After successful commissioning, Customer shall immediately carry out the acceptance together with Resch. The acceptance shall be formalised by means of a protocol.
7.4 If the installation, commissioning or acceptance is delayed for reasons for which Resch is not responsible (e.g. because the arrangements and preparations according to Clause 7.2 are not made or maintained in time), Resch is entitled to demand compensation for the resulting additional costs and expenses as well as an adjustment of the schedule. If Customer is responsible for the delay, Resch may request Customer in writing (e.g. by email) to fulfil the Contract within a reasonable period of time, stating that the Contract will be deemed terminated without further notice after the fruitless expiry of the aforementioned period, it being understood that Resch reserves all further rights (e.g. to damages).
7.5 If the installation, commissioning or acceptance cannot be carried out or completed for a reason for which Customer is responsible, Resch shall be entitled to invoice the entire service in accordance with the Contract, with Resch reserving all further rights (e.g. to damages).
7.6 Customer expressly exempts Resch from liability for direct personal injury and/or damage to property occurring during installation, including liability for damage caused by its employees and/or personnel. Furthermore, Customer expressly exempts Resch from any liability for indirect damages, such as loss of profit, loss of interest, loss of production.
8. Defects, Examination, Notice of Defects, Remedies
8.1 The parties agree that the Products shall only be considered non-conforming and thus defective if they deviate substantially from the specifications agreed in the Contract or, in the absence of agreed specifications, are not fit for the purposes for which Products of the same description would ordinarily be used in Italy (see also Clause 9). Resch does not guarantee that the Products will meet any particular expectations of Customer.
8.2 Any further warranty is excluded. For the avoidance of doubt, warranty is excluded, inter alia, in the following cases: (a) defects or deviations caused by improper transport or storage; (b) defects or deviations caused by failure to follow the operating instructions (e.g. improper use); (c) defects or deviations caused by incorrect technical data (e.g. dimensions or other production data) confirmed or supplied by Customer; (d) wear and tear which cannot be avoided even in the case of proper use, in particular in the case of wearing parts such as band saw blade wheels, drive rollers, guide rollers, band saw blades, V-belts, couplings, motor and hydraulic filters, bearings, guide elements, scrapers (felt, nylon, brass), gear wheels and chains, cable carriers, hoses, seals, tyres and brakes and the like; (e) defects or deviations in Products to which unauthorised modifications, additions, repairs or replacements have been made by unauthorised third parties.
8.3 Customer shall examine the Products, or cause them to be examined, within 5 days after they have arrived at their destination or any other agreed place of examination. Customer shall notify Resch in writing (e.g. by email) of any lack of conformity of the Products, specifying the nature of the lack of conformity, without delay and in any event within 5 days from the date when Customers discovers or ought to have discovered the lack of conformity. Customer is obliged to provide Resch with the relevant transport documents and all evidence and documentation (e.g. photos and videos) that Resch requires to remotely examine the alleged defect and, if necessary, take appropriate action.
8.4 In any case, Resch has the right to examine the Products in question at the place where they are located. Customer undertakes to bear the necessary travel and accommodation expenses for this purpose. Resch shall reimburse any travel and accommodation expenses borne by Customer for Resch if it is established that: (a) the Products are in fact defective; and (b) Resch is responsible for the defect; and (c) the defect was caused by gross negligence or wilful misconduct of Resch.
8.5 Resch may also request that the Products be returned to the registered office of Resch at the expense of Customer, it being understood that Customer may not return the Products without Resch's prior written consent. If the Products in question are returned with Resch’s prior written consent, Resch shall reimburse the Customer for the reasonable costs of returning the Products in question if it is established that: (a) the Products are in fact defective; and (b) Resch is responsible for the defect; and (c) the defect was caused by gross negligence or wilful misconduct of Resch. If installation has been agreed and the defect only becomes apparent during installation, commissioning or acceptance, the defect shall be described in the acceptance protocol.
8.6 In the event of a defect for which Resch is responsible, and to the exclusion of any other remedy, Resch shall be obliged and entitled, at its choice (to be made within a reasonable period), to remedy the defect by repair or replacement. If Resch refuses the to remedy the defect by repair or replacement, or if Customer cannot be expected to tolerate further attempts at repair or replacement after two failed attempts at repair or replacement, Customer may demand an appropriate price reduction or, if the defect constitutes a fundamental breach of contract, terminate the Contract to the exclusion of any other remedy.
8.7 The remedies under this Clause 8 exclude any other remedy for non-conformity. In particular, Customer shall not be entitled to claim damages for defects unless the defect is caused by gross negligence or wilful misconduct on the part of Resch.
8.8 Resch is not aware that the Products are not free from any right or claim of a third party based on industrial property or other intellectual property. However, Resch shall not be liable for any defects of title and encumbrance of the Products with rights or claims of third parties.
9. Compliance with Local Requirements
9.1 Resch does not warrant that the Products comply with any legal or regulatory requirements, including but not limited to certifications or markings (e.g. for the protection of consumers, workers or the environment), outside Italy ("Local Requirements"), even if the Contract includes the installation of the Products in a country of destination outside Italy.
9.2 Customer shall, at its own risk and expense, ensure that the Products comply with all Local Requirements. This also applies, in particular, to all Local Requirements which may be imposed on the Products by the applicable law in the field of occupational health and safety, product safety and product liability (e.g. also with regard to special warnings). If installation is included in the Contract, Customer shall ensure safety at the installation site and comply with all Local Requirements in this respect and, if necessary, inform and notify Resch thereof in good time, it being understood that all additional or special costs associated therewith shall be borne by Customer.
9.3 If, at Customer's request, Resch adjusts the Products in accordance with the Customer's instructions in order to adapt the Products to Local Requirements, such adjustments shall always be made at Customer's risk and expense. Also in such cases, Resch shall not be responsible or liable for the compliance of the Products with Local Requirements, which shall remain the sole responsibility of Customer.
9.4 Customer shall indemnify and hold Resch harmless from and against any and all claims by third parties (e.g. consumers or authorities) against Resch for breach of Local Regulations and shall compensate Resch for all damages (including, without limitation, reasonable attorneys' fees).
10. Force Majeure
10.1 "Force Majeure" means the occurrence of an event or circumstance that prevents or impedes Resch from performing one or more of its contractual obligations under the Contract, if and to the extent that Resch proves: (a) that such impediment is beyond its reasonable control; and (b) that it could not reasonably have been foreseen at the time of the conclusion of the Contract; and (c) that the effects of the impediment could not reasonably have been avoided or overcome by Resch.
10.2 In the absence of proof to the contrary, the following events shall be presumed to fulfil conditions (a) and (b) under Clause 10.1, and Resch only needs to prove that condition (c) under Clause 10.1 is satisfied: (a) war (whether declared or undeclared), hostilities, invasion, acts of foreign enemies, military mobilisation; (b) civil war, riot, rebellion and revolution, military or other usurped power, insurrection, acts of terrorism, cyber-attack, sabotage or piracy; (c) currency and trade restriction, embargo, sanction; (d) act of authority whether lawful or unlawful, compliance with any law or government order, expropriation, seizure of works, requisition, nationalisation; (e) plague, epidemic, natural disaster or extreme natural event; (f) explosion, fire, destruction of equipment, prolonged break-down of transportation, telecommunications, information system or energy; (g) general labour disturbances such as boycott, strike and lock-out, go-slow, occupation of factories and premises; (h) non-delivery, improper or late delivery by suppliers.
10.3 If Resch successfully invokes this Clause 10, Resch is relieved from its duty to perform its obligations under the Contract and from any liability in damages or from any other contractual remedy for breach of contract from the time at which the impediment causes inability to perform. Where the effect of the impediment or event invoked is temporary, the afore-mentioned consequences shall apply only as long as the impediment invoked prevents Resch from performing the Contract. Unless otherwise expressly agreed in writing (e.g. by email), the Contract may be terminated by either party if the duration of the impediment exceeds 6 months.
11.1 A party is bound to perform its contractual duties even if events have rendered performance more onerous than could reasonably have been anticipated at the time of the conclusion of the Contract.
11.2 Notwithstanding Clause 11.1, where Resch proves that: (a) the continued performance of its contractual duties has become excessively onerous due to an event beyond its reasonable control which it could not reasonably have been expected to have taken into account at the time of the conclusion of the Contract; and that (b) it could not reasonably have avoided or overcome the event or its consequences, the parties are bound, within a reasonable time of the invocation of this Clause 11, to negotiate alternative contractual terms which reasonably allow to overcome the consequences of the event.
11.3 Where Clause 11.2 applies, but where the parties are unable to agree alternative contractual terms as provided in Clause 11.2, either party shall be entitled, subject to Clause 13, to request the judge or arbitrator to adapt the Contract with a view of restoring its equilibrium, or to terminate the Contract, as appropriate.
12.1 If any term or provision of these GTC is or becomes invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect the remaining terms and provisions of the Contract. For the avoidance of doubt, nothing in these GTC shall be construed so as to exclude liability for gross negligence or wilful misconduct or for any other reason not permitted by mandatory law.
12.2 In the above case, the parties are obliged to replace the invalid, illegal, or unenforceable term or provision with a valid, legal, and effective term or provision that comes as close as possible to the intended economic result of the original term or provision.
13. Governing Law, Dispute Resolution
13.1 These GTC and the legal relationship between the parties shall be governed by and construed in accordance with the laws of the Italian Republic, including the UN Convention on Contracts for the International Sale of Goods.
13.2 If Customer is domiciled in a Member State of the European Union, in Iceland, in Switzerland or in Norway, all disputes arising out of or relating to these GTC and the legal relationship between the parties ("Disputes") shall be submitted to the exclusive jurisdiction of the Courts of Bolzano (BZ, Italy).
13.3 If, on the other hand, Customer is not domiciled in a Member State of the European Union, in Iceland, in Switzerland or in Norway, all Disputes shall be finally settled by arbitration under the Rules of Arbitration of the Milan Chamber of Arbitration (“Rules”), by a sole arbitrator, appointed in accordance with the Rules, which are deemed to be incorporated by reference into this Clause 13.3. The seat of the arbitration shall be Milan. The language of the arbitration shall be English.
Version: 2 March 2023