General Conditions of Sale and Service

1. General

1.1 The “Company” shall mean CONTROLS S.p.A. (or, where applicable, any of its subsidiaries or affiliates).
1.2 The “goods” shall mean the equipment or services which are the subject of any contract entered into by the Company for the supply of such equipment or services.
1.3 The “Customer” shall mean the legal or natural person that contracts to purchase in full or in part the goods from the Company.
1.4 These "General conditions of Sale" (hereinafter the "Conditions") regulate and apply to the sale of goods by the Company to the Customer. They are an integral part of all orders for goods placed by the Customer with the Company, unless expressly provided for in derogation that should intervene for a specific sale. In this case, in derogation to these Conditions, the specific rules agreed between the parties in writing will apply.
1.5 Any contract entered into by the Company for the supply of goods is subject to these Conditions. These Conditions are the only general conditions governing the relationship with the Customer and shall prevail over any general or particular conditions of sale of the latter. The Customer waives the application of its own general conditions and particular purchase conditions, which shall in any case be considered ineffective between the parties. The issuance of an order by the Customer constitutes express acceptance of these Conditions by the latter.
1.6 Any other different and further condition is ineffective as well as any modification or addition to these Conditions by the Customer, unless expressly accepted in writing by the Company. In the event that during the course of the relationship the Company accepts in writing any changes and/or additions to these Conditions (whether attached to any purchase order, document or correspondence), such changes and/or additions are to be understood as limited to the specific order for which they are agreed.
1.7 These Conditions shall also apply in the future even if they are not expressly referred to and signed in any order placed by the Customer and accepted by the Company.
1.8 These Conditions are effective until they have been expressly revoked by the Company or replaced by new general conditions issued by the Company.
1.9 No order for supply arising from a quotation or otherwise shall be deemed to be accepted or constitute a legally enforceable contract with the Company until accepted in writing by the Company or until delivery of the goods, whichever shall be the earlier.
1.10 No responsibility is accepted by the Company for any inaccuracy or error in orders given by telephone.

2. Descriptions and Specifications

The descriptions, specifications and illustrations contained in catalogues, price lists and other leaflets or descriptive matter produced by the Company shall not form part of the contract and shall not be binding on the Company. Names, addresses and trademarks on illustrations indicate ownership of the artwork and must not be taken at necessarily indicating the manufacturers. Any description given of the goods is by way of identification only and does not constitute a sale by description or sample.

3. Delivery

Any date quoted by the Company for dispatch is given in good faith by way of estimate only. While the Company will endeavor to deliver within the period stated, such date is not to be of the essence of the contract and the Customer shall be bound to accept the goods when they become available. The Company shall not be liable for any loss or damage or delays in transit or consequential losses or losses including loss of profit resulting in any way in respect of late delivery howsoever caused even in such cases as the Company has expressly agreed in writing a delivery date, nor shall such failure to deliver on the date or within the period named by the Company be deemed to be a breach of contract.

4. Price, Price Adjustment and Cancellation Fee(s)

4.1 All prices and terms quoted by the Company or shown in any of the Company’s price lists, catalogues, etc. are subject to alteration without notice.
4.2 All quoted and printed prices for goods are ex-warehouse and exclusive of VAT, packing, freight charges, postage, insurance, port rates, installation, commissioning and other costs unless expressly specified to the contrary.
4.3 The Company reserves the right at any time prior to delivery of the goods to adjust the price to reflect any increase in the cost of raw materials, labor or services or any currency fluctuations, increases of taxes or duties or any other matters affecting the cost to the Company in complying with the contract. o 4.4 Amendments to any order will only be accepted by prior written agreement. Orders cancelled before delivery will be subject to a cancellation fee. For orders cancelled after delivery, the Company reserves the right to impose a handling charge of not less than 15% on returned goods save in circumstances where the goods are returned by reason of defects or shortages which it is the Company’s duty under the terms of the Agreement to rectify.
4.5 Installation and commissioning will be quoted only against the specific request of the Customer.
4.6 The Company reserves the right to amend any accidental errors and omissions in quotations and invoices.

5. Payment, Payment Securities, Termination

5.1 The Customer shall have no right of set off, statutory or otherwise, in respect of any payment due to the Company under the contract.
5.2 The Company reserves the right at any time at its discretion to demand security for payment before continuing with, or delivering any goods under, any order.
5.3 All accounts are payable in full cash with order or cash on delivery unless expressly agreed in writing by the Company.
5.4 For all credit accounts approved by the Company in writing for:
- 5.4.1 Domestic Customers: orders should include two trade references and a bankers reference. Delivery of goods on an initial order of this type will be effected after the references have been cleared and a credit limit established. All invoices are to be paid in full by the last day of the month following date of invoice, unless otherwise agreed to in writing by the Company.
- 5.4.2 Overseas Customers: payment must be made by an irrevocable letter of credit, payable at sight and confirmed by a first class Bank, unless other terms have been agreed in writing by the Company.
5.5 Where the goods are delivered in instalments or in the course of two or more separate deliveries any failure to make such payments due on or before the due date will entitle the Company at its option to treat the contract as voided by the Customer and in such event the Company reserves all rights thereon which may be accrued to the Company prior to such termination.
5.6 In the event of non-payment, late payment or other default by the Customer the Company shall be entitled to recover all legal costs thereby incurred together also with interest on outstanding money calculated on the sums due by the Customer equal to the higher of (i) an interest calculated at a rate of 1/2% per calendar month or part month compounded monthly or (ii) an interest calculated in accordance with the provisions of Legislative Decree 231/2002 (EU Directive 2000/35/CE), as amended from time to time. In this case, the Company is entitled to make use of the provision of the Article 1460 of the Italian civil code (where practical). In the event of any non-payment or late payment on the part of the Customer, the Company will be entitled to terminate the contract relating to such non-payment or late payment pursuant to Article 1356 of the Italian civil code, without prejudice to any other remedy available to the Company at law or under these Conditions (including under Article 17 below).

6. Passing of Property and Risk

6.1 Risk in goods shall pass on to the Customer when the goods are delivered to or collected by the Customer or its carrier.
6.2 Title in the goods remains vested in the Company and shall only pass to the Customer upon full payment being made by the Customer of all sums due to the Company. The Customer shall not resell, assign or constitute as surety the purchased goods without having first paid their full price to the Company. Any executory process taken by third parties which may affect such goods shall immediately be notified to the Company. Nothing herein shall constitute that the Customer is the agent of the Company for the purposes of any resale.
6.3 The Customer agrees that whilst any such sums are due as aforesaid the Company may at any time enter upon the Customer’s premises and remove the goods therefrom and that prior to such payment the Customer shall keep such goods separate and identifiable for this purpose.

7. Inspection

7.1 The Customer is under a duty to inspect the goods on delivery or on collection as the case may be
7.2 Claims for damage in transit or shortage in delivery of the goods will only be considered if the carriers and the Company receive written notification of such damage or shortage within 3 working days of delivery or in the event of loss of goods in transit within 8 working days of the date of consignment.
7.3 In all cases where defects or shortages are complained of, the Company shall be under no liability in respect thereof unless an opportunity to inspect the goods is afforded to the Company before any use is made thereof or any alteration or modification is made thereto by the Customer.

8. Property Rights

8.1 The Company warrants that it has title to sell the goods. Such warranty specifically includes the Company’s ownership of the necessary patent rights and copyright sufficient to enable the Customer to use the Goods for the purpose stated. However nothing in this Contract shall be deemed to grant to the Customer the right to manufacture or in any way reproduce the goods or reproduce or use any intellectual property rights of the Company or its agents.

9. Warranty and Responsibility

9.1 No representation or warranty is given as to the suitability of the goods for any particular purpose and the Customer shall satisfy himself in this respect and shall be totally responsible therefor.
9.2 Claims of wrong deliveries or evident defects must be effected in written to the Company no later than eight days from receipt of the goods by the Customer by penalty of forfeiture.
9.3 Unless otherwise notified in writing by the Company, all goods supplied shall have a 12-month warranty from date of delivery with the exeption of compression machines that will have a 24-month warranty. Subject to the compliance by the Customer to all installation, use, storage, maintenance and operating instructions, the Company will at its sole discretion repair or replace any goods manufactured by itself in respect of defects arising solely from faulty materials or workmanship, providing these goods are returned by the Customer carriage, taxes and duties-paid to the Company factory, following Company Return Material Authorization procedure. Consumables, parts subject to wear and batteries are not covered by warranty. Other details of such warranty may be obtained from the Company at any time and will be adequately stated in the Company’s brochures, manuals, quotations or invoices. Wherever alternative conditions are provided to the Customer with specific agreements, such alternative conditions shall prevail over any other warranty details.
9.4 The repair or replacement of the default product as per Article 9.3 shall be the Customer’s sole and exclusive warranty remedy The Company shall not be liable for any costs incurred by the Customer in the resolution of a warranty.
9.5 In the case of any goods not manufactured by the Company but supplied by them or incorporated within the Company’s goods, the Company is unable to provide any warranty but will assign to or pass on to the Customer the benefit of any such warranty that the Company shall itself have received from its own supplier.

10. Insurance

10.1 Where goods are insured by the Company at its discretion or at the request of the Customer, charges will be made on the invoice. The Company’s liability under the insurance shall be limited to the amount received for such goods or the value of such goods, whichever is the less, and the Company shall be under no liability to take proceedings for the recovery of loss or damage but where goods are insured under the Company’s Open Cover Cargo Policy the rights in such policy shall be assigned, where possible, to the consignee/Customer and any claims shall be administered by them in accordance with ICC (A) 1.1.82.

11. Packing

11.1 Unless otherwise expressly stated in writing under the relevant contract, packing is not included in the contract price and will be the subject to an additional charge by the Company. The Company does not give warranty as to the fitness of any packing for storage purposes or any other purpose other than the transport of the goods to this named contract destination.
11.2 In all cases containers, bottles, packages and packing materials are not returnable.

12. Liability of the Company and Limitations

12.1 Subject to mandatory provisions of law, the Company is only liable for damages from its goods if evidence is provided of its willful misconduct or gross negligence.
12.2 Nothing herein shall be deemed to exclude or restrict the Company’s liability for death or personal injury resulting wholly from the negligence of the Company.
12.3 The Company shall not be liable for any consequential or indirect loss suffered by the Customer whether this loss arises from a breach of duty in contract or in any other way including loss arising from the Company’s negligence. Non-exhaustive illustrations of consequential or indirect loss would be (to the extent such damages are deemed to be an immediate and direct consequence of the Company’s breach under Article 1223 of the Italian civil code):
- 12.3.1 loss of profits
- 12.3.2 loss of contracts
- 12.3.3 damage to property of the Customer or anybody else
- 12.3.4 personal injury to the Customer or anybody else (except so far as such injury is wholly attributable to the Company’s negligence).
12.4 The Customer hereby agrees to indemnify the Company against all claims made against the Company by any of the Customer’s employees, customers or any other person for which liability would have been excluded by this clause if the claim had been made against the Company by the Customer. o 12.5 The Company shall not be liable in any way for any damages direct or consequential as a result of use of the equipment for any purpose other than that agreed nor for any use not stated and agreed in the Company’s specifications nor for any fault or defect arising from the Customer’s failure to disclose relevant and pertinent information to the Company. Where the purpose of the goods is misrepresented or omitted, the Company shall be under no obligation in any manner and responsibility and liability shall pass to the Customer.
12.6 The Company shall not be liable in any way for any damage whatsoever arising as a result of the failure by the Customer to comply with the terms of the operating manual supplied with the goods or by reason of a failure by the Customer to comply with the specified requirements for maintenance and calibration of the goods.
12.7 The Customer acknowledges that the proper use of the goods can only be made by appropriately trained operatives. Training in the use of the equipment provided by the Company is available on a chargeable basis. Accordingly, the Company shall not be liable in any way for any damage whatsoever arising as a result of the use of the goods by inadequately experienced or inadequately trained operatives.

13. Repairs

The Company is not responsible for any damage to goods sent for repair or examination nor for any incidental damage to glass, apparatus and delicate instruments in the course of repair. Time involved in the preliminary examination of an article may be charged in the event of no repair being ordered. Goods returned for repair should be sent, carriage paid and be clearly labelled with the senders’ name and address. Before the goods are shipped, advice shall be sent by fax to the Company clearly indicating method of dispatch, description of goods and value for customs. At the same time a letter should be sent detailing the work required.

14. Drawings and Sketches

The Company reserves the right to charge for the preparation of all drawings or sketches prepared either for the submission of quotations or any execution of orders. All such drawings remain the property of the Company.

15. Force Majeure

15.1 The company shall not be liable for any failure to deliver the goods arising from circumstances outside the Company’s control.
15.2 Non-exhaustive illustrations of such circumstances would be Acts of God, war, riot, explosion, abnormal weather conditions, fire, flood. strikes, lockouts, Government action or (whether permanent or interim) regulations or orders (including those resulting in a business interruption or reduction), delay by suppliers, accidents, shortage of materials, labor or manufacturing facilities.
15.3 Should the Company be prevented from delivering in the above circumstances it shall give the Customer written notice of this fact as soon as reasonably practicable after discovering it.
15.4 If the circumstances preventing delivery are still continuing six months after the Customer receives the Company’s notice then either party may give written notice to the other cancelling the contract.
15.5 If the contract is cancelled pursuant to Article 15.4 above, the Company will refund any payment which the Customer has already made on account of the price (subject to deduction of any amount the Company is entitled to claim from the Customer) but the Company will not be liable to compensate the Customer for any further loss or damage caused by the failure to deliver.

16. Export

16.1 The Customer shall be solely responsible for ensuring that any import or other regulations of any country or district to which the goods are to be exported are complied with and the Company shall be under no liability whatsoever should the goods subsequently fail to fulfil the requirements of such regulations or barred from being exported to the place of destination.
16.2 The Customer shall inform the Company of any intended further transshipment of the goods to third parties and their proposed use so that the Company may ensure that the contract is in compliance with any export restrictions or embargoes laid down from time to time by European governments. In the event that such restrictions prevent the Company from complying with its contractual obligations the contract will be treated as being subject to Force Majeure and dealt with in accordance with Article 15 above. If a Customer knowingly or not, provides misleading information to the Company the Customer shall indemnify the Company against any penalties, fines or other expenses

17. Cancellation

17.1 If the Customer shall fail to pay the contract price to the Company on the due date or if any distress or execution is levied upon the Customers property or assets or if the Customer shall offer to make any scheme or arrangement with creditors or commit any act of bankruptcy or has a receiver appointed for any part of its undertaking or assets or if a resolution for winding up shall be passed, then the Company may, to the extent permitted by applicable law, treat all sums due or to become due on any delivery as immediately payable or suspend or cancel further deliveries or require payment in advance therefor or recover any goods which are unsold wheresoever they are stored or treat the contract as repudiated by the Customer but without prejudice to any other rights of the Company.
17.2 Cancellation of the order by the Customer for whatever reason shall entitle the Company to payment of all costs expenses and losses of the Company arising therefrom. Such notification of cancellation by the Customer shall not be deemed to have been accepted by the Company in the absence of specific agreement by the Company in writing to that affect. In all cases the Company reserves to itself any rights that it may have in law.

18. Notices

Any notice to be given hereunder shall be in writing and shall be deemed to have been duly given if sent or delivered to the party concerned at its address specified overleaf or such other address as that party may from time to time notify in writing and shall be deemed to have been served, if sent by post, forty-eight hours after posting.

19. Assignment

Neither the Company nor the Customer shall assign or transfer or purport to assign or transfer the contract or the benefits thereof to any other person without the prior consent of each other, except for any payment right of the Company, which may be assigned by the same without prior consent of the Customer.

20. Applicable Law and Jurisdiction

20.1 The contract, including these Conditions, shall be governed and interpreted according to the Italian law. The application of the UNCITRAL Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
20.2 The Courts of Milan (Italy) shall have exclusive jurisdiction in respect of any dispute arising in relation to the contract, including these Conditions, without prejudice to the Company’s right, at its sole discretion, to take legal action before the court of the place where the Customer has its registered office or domicile or in any other competent court. The Customer irrevocably agree to be subject to the jurisdiction of the Italian courts, should the Company refer any dispute thereto.

Pursuant to, and to the extent required under the applicable provisions of law, including for the purposes set out in Articles 1341 and 1342 of the Italian civil code, the Customer, by playing an order and accepting goods from the Company, hereby approves the clauses specified in the following list of articles of these “General Conditions of Sale”: Article 3 (Delivery time), Article 4 (Price, price adjustment and cancellation fee), Article 5 (Payment, payment securities, termination), Article 6 (Passing of property and risk), Article 8 (Property rights), Article 9 (Warranty and responsibility), Article 12 (Liability of the Company and limitations), Article 13 (Repairs), Article 15 (Force majeure), Article 17 (Cancellation), and Article 20 (Applicable law and jurisdiction).