1. Agreement and subject matter of the supply.
1.1 These general terms and conditions of sale (“GTCS”) apply to all sales of Airplast S.r.l. (Airplast) products (“Products”) to any customer (”Customer”).
1.2 These GTCS are an integral and essential part of any Product sales agreement (“Agreement”). In the event of conflict and/or divergence, the special terms and conditions of the individual Agreement shall prevail over these GTCS.
1.3 Airplast will only take into consideration orders forwarded by the customer via e-mail.
Each Agreement will become effective between the parties upon the Customer's receipt of Airplast's order confirmation, or other express written acceptance by Airplast of the Customer's proposal. This is without prejudice to the possibility for Airplast to require the customer to sign the order confirmation by way of acceptance: in this case, acceptance must take place within 30 (thirty) days from the request for signature and the agreement shall be deemed finalised upon receipt of the signed document by Airplast. Only after the finalisation of the agreement, will the material be produced and shipped.
1.4 The general terms and conditions of any nature affixed and/or included in order forms and/or other documents forwarded by the Customer to Airplast, and/or made known to the latter in any other way (e.g. on its website) shall not apply, it being understood that any special terms and/or conditions other than these GTCS shall be binding only subject to Airplast's prior written acceptance.
2. Place and terms of delivery of the Products.
2.1 The place and terms of delivery of the Products shall be stated in the order form/Agreement based on the 2020 Incoterms date stated therein.
In the event the Customer sends several orders, they will be dispatched in a single shipment where possible.
2.2 The Products shall be delivered on the dates specified in the related Agreement, it being understood, however, that Airplast shall not be considered in breach if the Products are delivered within 8 days of the agreed delivery date.
3. Price and payments.
3.1 The payment terms shall be as stated in the individual order confirmations as and when appropriate. Unless otherwise laid down in the related Agreement, the prices of the Products set forth in any offer, order confirmation and/or communication from Airplast shall be construed as:
(i) expressed in Euro (€);
(ii) exclusive of taxes, customs duties, transportation costs, bank fees and/or any other incidental expenses that will be charged separately.
3.2 Without prejudice to any other right or instrument envisaged by these GTCS or by law, Airplast shall be entitled to suspend delivery of the Products if: (a) the Customer's financial and/or equity conditions are such as to jeopardise the related payment; (b) the Customer does not make the prompt payment of Products previously supplied by Airplast, also within the sphere of another Agreement, until the full payment of the outstanding amounts and/or the provision by the Customer of suitable guarantees in this connection.
3.3 All the payments due to Airplast shall have to be made in the manner indicated on the invoice relating to the individual Agreement.
3.4 Without prejudice to any other right or remedy, including termination by operation of law pursuant to Article 1456 of the Italian Civil Code, default interest shall accrue on any amount due by virtue of an Agreement that is paid late, pursuant to Italian Legislative Decree No. 231/2002.
3.5 All photographs, descriptions and/or wording of the products listed in the catalogues and price lists are to be understood as merely indicative. Therefore, they may undergo changes in relation to form, colour and size.
The goods are sold with retention of title pursuant to Article 1523 et seq. of the Italian Civil Code. The purchaser therefore acquires the full ownership of the goods only when full payment for the same has taken place.
4. Deliveries / transport / transfer of the risk.
The date of shipment as stated in the order confirmation is merely indicative.
No penalty may be imposed on Airplast for late delivery of the materials.
All materials, unless otherwise agreed in writing, are delivered ex warehouse from the Airplast production unit. Any transport and/or shipping costs are therefore the responsibility of the customer.
The delivery of materials to the customer or transporter results in the transfer of the risk to the customer, even if the transportation is taken care of by the company itself. The goods travel at the risk and peril of the purchaser and any damage and dents occurring during transport are therefore the purchaser’s responsibility.
In the event that the shipped material ends up in storage care of the carrier, after 7 days have elapsed without receiving instructions from the customer to release the shipment, handling fees will be charged according to current rates.
5. Warranty.
5.1 Airplast guarantees that the Products supplied under any Agreement will be new and free from defects in design, materials and workmanship for a period of 12 months as from the date of the related delivery, or such other longer period as may be agreed between the Parties or indicated on the product itself or in the technical data sheets ("Warranty Period").
5.2 If the grievances raised by the Customer during the Warranty Period are objective and accepted by Airplast, which may not refuse such acceptance without reason, Airplast shall refund or replace the faulty Product(s), with delivery of the replacement Product(s) to the Customer within the shortest period of time reasonably possible from the date of acceptance of the grievance.
The warranty obligations will be effective and binding only if Airplast has the possibility to verify the existence of the defects contested by the Customer.
These warranty obligations of Airplast shall be deemed to have been fully met with the refund or replacement of the faulty Product, without any other liability or obligation for Airplast.
5.3 The Customer shall examine all the Products at the time of the related delivery.
Under penalty of forfeiture of the warranty, any lack, damage, defect or other non-conformity of the Products must be communicated in writing, no later than 8 (eight) days from the date of the related delivery or, in the case of hidden defects, from the date of their discovery.
Such communication will have to contain a detailed description of the alleged defects and supporting documents, photographs or materials should be attached to the same.
Even if the goods are packaged at the time of delivery, the onus remains on the customer to inspect the materials received and to notify the company in writing, by the deadlines set forth above, of any grievances
In any case, the courier's consignment note must always be signed, indicating, if any, the type of damage (damaged box, wet carton, uncrated pallet, etc.).
If this type of procedure is not followed, Airplast reserves itself the right not to make the return and/or compensation for any damages and all costs for returning the material will be charged to the customer.
No complaint concerning the quality of the goods may be asserted, even by way of exception, in court if the regular payment to which the claim relates has not taken place.
Returns of material shall not be accepted unless authorised by Airplast. Therefore, if not authorised they will be rejected upon unloading and returned to the sender.
If a return is authorised, Airplast reserves itself the right to charge a fee for packaging replacement and return handling.
5.4 Airplast is not responsible for and the warranty does not apply to Product defects caused by or deriving from:
(i) ordinary wear and tear, consumption and/or corrosion;
(ii) measures, repairs, alterations and/or modifications of the Products implemented by third parties without prior written authorisation from Airplast;
(iii) storage and/or custody in an unsuitable place;
(iv) improper use or use under conditions more strenuous than those for which the related Product was designed or built;
(v) incorrect handling or improper maintenance by the Customer or third parties.
Airplast shall in any case be relieved of its warranty obligations envisaged herein if the Customer fails to make the regular payment of the price due by virtue of the Sales Agreement/order.
5.5 The Customer shall make direct arrangements to obtain all permits in accordance with applicable law for the installation and use of purchased materials.
Airplast shall in no way be held liable: for incomplete installation; poor maintenance of the appliance or the system connected to it; damage from transportation or handling not disputed at the time of delivery; neglect or improper use; instantaneous or continuous power supply outside the appliance's specification plate values; collision or falling of foreign objects; handling or damage carried out by unauthorised personnel; damage from atmospheric agents and vandalism in general.
The warranty does not include: masonry work; electrical and electronic components; any scaffolding or structures necessary to ensure the accessibility of the equipment as well as any request for inspection for applicative checks.
All services rendered and materials supplied for the After-Sales Service as a result of service requests that are not covered by warranty will be billed to the party requesting the service and must be paid for based on current rates.
6. Limited liability.
6.1 Without prejudice to the obligations set forth in Article 5 above and Airplast's obligation to refund or replace any faulty Product under the terms set forth therein, unless otherwise envisaged by mandatory rules that cannot be departed from by agreement, Airplast shall never be liable in any manner whatsoever for:
(a) indirect, consequential, incidental or punitive damages, as well as for damages resulting from alleged financial or economic losses suffered by the Customer or any third party;
(b) loss of production, loss of earnings or loss of data and information;
(c) interruption of business activities or suspension of industrial production;
(d) costs or expenses incurred by the Customer for any activity not previously authorised in writing by Airplast, arising from or otherwise attributable to the sale, late delivery or non-delivery, use or lack of use of the Products.
6.2 Without prejudice to any other provision of these GTCS, Airplast's maximum overall liability on the basis of any Agreement shall be limited and shall never exceed a threshold equal to 100% of the price due for the Products to be delivered in accordance with that Agreement.
6.3 The limitations of liability set forth in Articles 6.1 and 6.2 shall not apply in the case of Airplast's gross negligence or willful misconduct.
7. Intellectual and industrial property rights.
7.1 Airplast is and shall remain the sole and exclusive owner of (a) any and all industrial and/or intellectual property rights, even if not patentable, (b) know-how relating to and/or deriving from the Products or any improvements to the Products that Airplast may develop in cooperation with Customer.
7.2 These GTCS and/or any Agreement do not give rise to the transfer of industrial or intellectual property rights relating to Products from the party who owns them at the time of the commencement of the related Agreement ("Owner") to the other party, and the latter party shall not in any event be entitled to manufacture, or have manufactured by third parties, the same Products without the prior written authorisation of the Owner.
Any use of such rights shall have to be governed by a separate licence agreement, under the terms to be agreed upon by the parties.
8. Termination.
8.1 Airplast shall have the right to immediately terminate any Agreement governed by these GTCS and to suspend any delivery in progress, by means of written communication, in the event that the Customer (a) fails to pay the price of the Products by the agreed deadlines (even if the related payment is due by virtue of a different Agreement outstanding with the same Customer) or (b) violates any of the following clauses: 7.1 (Airplast’s intellectual or industrial property rights), 9 (transfer).
8.2 Any Agreement governed by these GTCS shall be deemed automatically terminated in the event that the Customer (a) files for bankruptcy on its own behalf or at the request of third parties, or (b) is subject to any pre-bankruptcy proceedings (such as an arrangement with creditors or assignment of assets for the benefit of creditors), forced liquidation, voluntary liquidation, or cessation of business.
9. Transfer.
The Customer cannot transfer the rights and obligations assigned to them by any Agreement governed by these GTCS, without Airplast’s prior written consent.
10. Force Majeure.
Airplast shall not be liable for any delay or failure to perform any obligation envisaged by any Agreement governed by these GTCS by reason of events beyond its reasonable control ("Force Majeure Event").
Force Majeure Events include, but are not limited to, strikes, trade union unrest, lockouts, fortuitous events, fire, shortage or absence of raw materials, delay in deliveries by suppliers and/or carriers, force majeure, governmental or similar acts, whether valid or otherwise, computer bugs, earthquakes or other natural events, embargoes, wars or insurrectionary events.
11. Waivers.
The fact that Airplast does not enforce any of the provisions of these GTCS or of an Agreement, shall not be construed as an implied waiver of the rights envisaged by said provision, nor shall it prevent Airplast from expecting prompt and strict compliance with them at any subsequent time.
12. Safeguard clause.
The invalidity of any provision of these GTCS by operation of law or principle of law shall not result in the invalidity of the other provisions envisaged herein, which shall remain valid and in full force and effect.
13. Applicable law and Disclaimer.
13.1 These GTCS, any Agreement and any sale and/or supply of Products made by Airplast in said sphere shall be governed by and shall be interpreted in accordance with Italian law.
13.2 Airplast is limited to the activity of selling the products requested by the purchaser (installer or dealer), not performing any activity related to the installation of the equipment, which remains the sole responsibility and competence of the installer or the customer/end user.
If Airplast forwards to the Customer, together with the quote, a drawing or other technical documentation relating to the goods subject to purchase, said documents are to be understood as merely indicative since AIRPLAST acts as a mere Seller of the material indicated in the Quote itself.
Therefore, AIRPLAST undertakes no responsibility or guarantee with regard to the functionality of the system that may be installed based on the size/design that might be attached to the quote.
Therefore, it is the Customer’s responsibility to proceed, via a professional in the field, to carry out appropriate verification regarding the technical feasibility of the project on the basis of any documentation submitted by AIRPLAST. It follows that AIRPLAST undertakes no responsibility for any loss or damage, direct or indirect, incidental or consequential, that should arise for the Customer as a consequence of the design of the installation and subsequent execution of the project, based on the drawings and dimensioning that may have been transmitted by Airplast S.r.l.
14. Exclusive jurisdiction.
All disputes, controversy or claims arising out of or in connection with an Agreement governed by these GTCS and/or any sale or supply of Products shall be submitted to the exclusive jurisdiction of the Court of Vicenza (Italy).
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In signing/accepting these GTCS, Customer declares and confirms that they have
carefully read and expressly approve the following clauses:
3.2 Airplast's right to suspend delivery of the Products;
5.3 Deadline for reporting defects and loss of the warranty;
5.4 Warranty exclusions;
5.5 Warranty limitations;
6.1 Airplast’s limited liability
6.2 Airplast's maximum liability;
7.2 Limits on the use of the other party's intellectual and industrial property rights;
8.1 Airplast's right of termination;
8.2 Termination condition;
9. Transfer;
10. Force Majeure;
11. Waivers;
13. Applicable law and Disclaimer;
14. Exclusive jurisdiction.
