Table of content
4.Payment of the purchase price2
5 Shipping, delivery2
8.Exclusion of liability4
10.Jurisdiction and applicable law5
1.1These General Terms and Conditions of Sale (hereinafter: "GTC") are an integral part of the contracts concluded with our customers (hereinafter: "Buyer").
1.2Our GTC apply exclusively. Any deviating or conflicting general terms and conditions of the Buyer shall not be recognised by us unless we have expressly agreed to them in writing. This requirement of consent shall also apply if we accept an order in the knowledge of deviating general terms and conditions of the Buyer.
1.3The latest version of our General Terms and Conditions shall also apply as a framework agreement for all future transactions with the Buyer without us having to refer to their validity again in each individual case.
2.1Our offers are - in particular with regard to quantity, price and delivery time - subject to change and non-binding. This also applies to the representations and product descriptions in our brochures or advertisements.
2.2Orders placed by the Buyer shall only be deemed to have been accepted when we have confirmed them in writing. If we do not confirm an order in writing within two weeks of receipt, the order shall be deemed not to have been accepted.
3.1Unless otherwise agreed in writing, our prices valid at the time of conclusion of the contract shall apply. In the absence of a special agreement, they shall apply "free Frutop GmbH, 39018 Terlan - Italy" and therefore do not include costs for transport, insurance and other transaction fees. Furthermore, unless otherwise agreed, the prices do not include packaging costs and statutory value added tax.
3.2If additional or increased charges - in particular customs duties, levies, currency compensation - are incurred between the conclusion of the contract and delivery due to changes in legal standards, we shall be entitled to adjust the purchase price.
4.Payment of the purchase price
4.1In the absence of any written agreement to the contrary, the purchase price shall be due for payment without any deductions within two weeks of the invoice date.
4.2After the due date, as just described, or as otherwise agreed in the offer process, interest on arrears will be charged at 8% above the interest rate set by the ECB. We reserve the right to assert further damage caused by default.
4.3If the Buyer's business is no longer conducted in an orderly manner, in particular if (i) seizure is levied against him, (ii) a protest of a cheque or bill of exchange is made, (iii) payments are delayed or suspended or (iv) insolvency proceedings affecting him are applied for, we shall be entitled to declare all our claims arising from the business relationship immediately due and payable, even if we have accepted bills of exchange or cheques. This shall also apply if the Buyer defaults on his payments to us or if other circumstances become known which make his creditworthiness appear doubtful.
4.4In the cases of clause 4.3, we are further entitled to (i) demand advance payments or the provision of security or (ii) withdraw from the contract.
4.5The Buyer shall only be entitled to set-off insofar as its counterclaims are undisputed or have been finally determined by a court of law. The Buyer shall only be entitled to assert rights of retention on the basis of counterclaims arising from the same contractual relationship.
5.1Unless otherwise agreed in writing, any delivery shall be EXW (39018 Terlan, Italy) according to Incoterms 2020.
5.2The goods always travel uninsured and at the risk of the Buyer. This shall also apply in the case of carriage paid delivery and irrespective of the means of transport used. Transport insurance shall only be taken out at the express request of the Buyer. Any costs arising therefrom shall be borne by the Buyer.
5.3If the Buyer provides the means of transport, he shall be responsible for timely making available that means of transport. We must be informed immediately of any delays. Any costs arising from this shall be borne by the Buyer.
5.4We are entitled to make reasonable partial deliveries.
5.5In the absence of any written agreement to the contrary, delivery and unloading times stated are non-binding on us.
5.6Our obligation to deliver is subject to timely and proper delivery by our own suppliers.
5.7Delivery hindrances due to force majeure or due to unforeseen events for which we are not responsible - such as operational disruptions, strikes, lockouts, official orders - as well as our own delivery reservation according to clause 5.6 shall release us from the obligation to comply with any agreed delivery or unloading times for the duration and to the extent of their effects.
5.8If an agreed delivery or unloading time is exceeded without there being an impediment to delivery in accordance with clause 5.7, the Buyer shall grant us a reasonable period of grace of at least four weeks. If we culpably fail to meet this grace period as well, the Buyer shall be entitled to withdraw from the contract.
5.9Every delivery is subject to the timely and proper fulfilment of the Buyer's contractual obligations. We reserve the right to plead non-performance of the contract.
6.1Upon conclusion of the contract, Purchaser declares that it is aware that all Frutop products are technical products of high quality, which are designed to measure and require professional assembly.
Purchaser is hereby also informed that the assembly of Frutop's products requires specific expertise. If, in exceptional cases, it is not Frutop who assembles the products, the Buyer must therefore entrust qualified personnel.
6.2In the case of a sale which includes assembly/installation by Frutop personnel, the Buyer undertakes under its own responsibility
a)to ensure safety at the installation site;
b)to ensure compliance with all statutory provisions (in particular safety regulations);
c)to provide operating materials and necessary equipment at the installation site in good time and in sufficient quantities;
d)to provide all contractually agreed advance services;
e)to ensure accessibility to the installation site.
6.3If the installation of the products does not take place or cannot be completed for any reason not attributable to Frutop but to Buyer, Frutop is entitled to invoice the entire contract price according to the purchase contract.
6.4Frutop reserves the right to subcontract the entire as well as the partial execution of the installation services to one or more other qualified contractors.
7.1Buyer is informed that the goods sold are designed to protect against hail. Under no circumstances may the net cover be stretched during snowfall, as it is not designed for this purpose.
7.2Buyer is also informed that the goods sold are a guyed rope construction on pillars. The goods sold are not a wooden or steel construction with a foundation. This means that no warranty or liability of any kind can be provided by the seller in the event of exceptional weather conditions, or more precisely if the load exceeds 150 Newtons per square metre.
7.3Buyer is obliged to inspect the goods immediately upon delivery in terms of quantity and packaging and to note any complaints in this respect on the delivery note or consignment note and subsequently to give notice of defects in accordance with the rules.
7.4In the event that Buyer has not carried out or has not let carry out installation properly, Buyer shall forfeit any warranty rights and Frutop shall not be liable for any resulting damage. Buyer is hereby informed that the legal relationship entered into between them is a contract of sale which concerns products of a technical nature which are subject to rules of "maintenance and preservation" known to Buyer.
7.5Therefore, the warranty provided for in this article is excluded in the following cases:
a)defects resulting from unprofessional assembly and installation of the Products by the Buyer;
b)defects resulting from the lack of maintenance, as well as improper execution of transport and storage; for this purpose, the Buyer declares that, as a professional Buyer, he is well acquainted with the usual standards of careful storage and maintenance of the product;
c)wear and tear which cannot be avoided even in the event of correct use (normal wear and tear);
d)defects or deviations which are due to incorrect specification of the technical data and dimensions provided by the Buyer;
e)defects or deviations of the product of Frutop on which changes/repairs/additions/replacements not authorised by Frutop have been carried out and these have in any case been carried out by the Buyer or by external third parties entrusted by Buyer.
7.6Notice of non-compliance: Frutop shall be liable for quantitative and qualitative defects of Frutop products to the exclusion of further claims provided that a notice of non-compliance is made in due time:
a)The Buyer must notify Frutop of the defect in writing without delay, at the latest within eight days after receipt of the goods, enclosing the delivery note;
b)In the case of hidden defects, the notice of non-compliance must also be made in writing within 8 days of discovery of the same.
7.7Buyer shall forfeit his right to warranty for defects not notified in time. Products which are the subject of a notice of non-compliance may only be returned with the express permission of Frutop. The rejected goods must be kept available for inspection by Frutop or another third party commissioned by Frutop.
7.8Complaints and notice of non-compliance do not entitle the Buyer to interrupt or not to execute the agreed payments. Pursuant to Art. 1462 of the Italian Civil Code, the clause "solve et repete" shall apply in favour of Frutop.
8.Exclusion of liability
8.1With the exception of intent and gross negligence and within the scope of mandatory legal provisions, Purchaser expressly releases Frutop from liability for direct damage to persons and/or property in the performance of the contractual installation activities, including liability for damage caused by its employees and/or co-workers (without prejudice to mandatory legal claims of Purchaser, in particular for injury to life, limb and health). Furthermore, always with the exception of intent and gross negligence and within the scope of mandatory legal provisions, Purchaser expressly releases Frutop from liability for indirect damage, such as consequential damage, loss of profit, loss of interest, loss of production, interruption of business.
8.2In the event of simple negligence, liability is limited to direct, foreseeable and typically occurring damage.
9.1.The Purchaser is informed that he can find the Frutop data protection declaration on the Frutop website at www.frutop.it.
10.Jurisdiction and applicable law
10.1This contract and all legal relations between the parties shall be governed exclusively by Italian law, with an express waiver of the application of any other law. The parties agree that the exclusive place of jurisdiction for any dispute concerning the present contract shall be the court of Bolzano/Italy.
Version_2022-03_GENERAL TERMS AND CONDITIONS OF SALES OF FRUTOP GMBH