1.This General Conditions of Sales (hereinafter “GCS”) shall govern all offers of Frutop GmbH (hereinafter „Frutop“), all deliveries, any execution of orders, and in generally all aspects of the contractual relationship between the customer. This GCS shall also govern all future business with the customer, without the need to be exchanged and signed again between the parties. With signature of this GCS the customer acknowledges its binding nature. General conditions of the customer are not accepted by Frutop and shall not bind Frutop in any way.
2.Representations, catalogues and more generally information not included in offers and contractual documentation of Frutop are not binding.
3.The written confirmation by the customer of the written orders of Frutop constitutes a binding and irrevocable agreement between the parties.
4.All prices can be found in the price list valid at the time of the offer / order confirmation. Such prices are exclusive of VAT and expressed in ex-works terms (INCOTERMS 2010), Frutop GmbH, 39018 Terlan – Italy, and do not include, thus, costs relating to transportation, insurance and other fees. If not stated anything to the contrary, delivery is to be made ex works (INCOTERMS 2010), Frutop GmbH, 39018 Terlan.
5.The delivery dates agreed upon by the parties are only binding, if the offer expressly terms such delivery date as „binding“. The delivery date is deemed to be respected by Frutop if Frutop makes the products available for shipment at the agreed date/place.
6.Notwithstanding anything to the contrary, payments of the customer shall be effected within and on the dates agreed upon in the offer / order confirmation, without any discounts not agreed upon in such offer / order confirmation.
7.In case of late payment in the meaning of art. 4 and art. 5 of Decree nr. 231/2002, the customer shall have to pay interests at the rate of 7% over and above the current EURIBOR 6 month, plus all expenses connected to payment recovery.
8.A) Sales without installation:
With signature of the GCS the customer expresses his understanding that the products of Frutop are of a technical, high quality nature, they are tailor made, and they require a professional installation
In as such, the customer shall look forward to let install the products in a professional manner. The customer is informed and acknowledges that in case the products are not installed in a professional manner, Frutop does not offer any warranty, and bear no liability for damages, whatsoever. Being the products of a technical nature, the customer understands that he has to follow strictly the maintenance and preservation rules that have been hand over to him. Accordingly, products warranty is excluded in the following circumstances:
a)defects that are a consequence of installation, not conforming to the installation handbook or not conforming to professional and generally accepted technical rules;
b)defects that are a consequence of poor maintenance and preservation of the products, defects caused by transportation and storage; in this respect, the customer declares to have received and to understand respective rules of maintenance, preservation, transportation and storage;
c)defects that are due to the normal wear and tear of products of this kind;
d)defects that are a result of the client having made available wrong technical data and/or measurements;
e)defects that are due to modifications, repair, additions and replacements that have not been authorized by Frutop.
For defective products Frutop is liable under the following terms and conditions: the customer shall send Frutop within not more than 8 days from delivery, in the form of email, fax or registered mail, a written notice of non-conformity in respect of the goods delivered. Such notice of non-conformity must contain the transportation documents and a detailed description of the non-conformity. Also in case of hidden non-conformity, the Buyer shall notify Planit of such non-conformity not later than 8 days after the Buyer discovered or ought to have discovered it. A notice of non-conformity delivered beyond such term shall nullify any right of the Buyer to hold liable Planit for such non-conformity.
Defective products shall be sent back to Frutop only after written authorization of Frutop. Frutop liability is limited in its own discretion to repair or replacement of a non-defective products. In any case Frutop shall not bear any liability for damages, consequential damages, lost profits, loss of production, etc..
8.B) Sales including installation:
In case Frutop’s obligation extends from sales to installation the customer shall be liable for safety on the installation site and he shall respect all legal provisions regarding safety. The customer shall make available on the installation site all working materials and all necessary equipment, and everything else that has been agreed upon by the parties. The customer must make sure that the installation site is accessible for performing the installation activities.
In case installation cannot be carried out for reasons not connected to Frutop, but to the customer, Frutop shall nevertheless have the right to issue the invoices relating to the agreed contractual scope. Frutop reserves its right to sub-contract certain or all installation works to one or more sub-contractors. At the time of completion, the parties shall work out an acceptance protocol, where to record analytically full or partial completion. Defects that are discovered during such verification, shall be corrected by Frutop as soon as possible. In case of hidden defects, the customer shall notify such defects within not more than 8 days after discovery. In case of late submission of a non-conformity notice, the customer loses its right to claim the warranty. Defective products shall be sent back to Frutop only after written authorization of Frutop. Frutop´s warranty shall be limited to repair or replacement. With the exception of deliberate intention or gross negligence, the customer expressly exempts Frutop from liability for direct and indirect damages suffered by persons and/or things when carrying out the installation works, including damages caused by employees. In any case Frutop shall not bear any liability for damages, consequential damages, lost profits, loss of production, etc..
Accordingly, products warranty is excluded in the following circumstances:
a)defects that are due to the normal wear and tear of products of this kind;
b)defects that are a result of the client having made available wrong technical data and/or measurements;
c)defects that are due to modifications, repair, additions and replacements that have not been authorized by Frutop.
9.Complaints and submission of a notice of non-conformity does not entitle the customer to suspend or decline contractually agreed payments. Art. 1462 of the Italian Civil Codex applies in favor of Frutop („solve et repete“).
11.The customer is informed that the products are designed for the protection from hail. The products are not designed for the protection from snow. The customer is informed that the products can under no circumstances be spanned open during snow fall (in this respect the customer declares that he has received, read and fully understood the customer handbook of Frutop). Frutop cannot take any liability, whatsoever, in such circumstances.
12.The customer also declares with signature of this GCS that he is well aware and has been informed in detail that the product is a structure based on pillars and ropes. In as such, in case of extraordinary weather conditions (when the pressure / stress on the structure exceeds 150 newton per square meter), Frutop cannot take on any liability for whatever sort of damages.
13.The contractual relationship between the parties is governed by Italian law (any other body of law being excluded). The courts of Bolzano in Italy shall have exclusive jurisdiction over any type of controversy relating to the contractual relationship between the parties..