GENERAL TERMS AND CONDITIONS OF PURCHASE
§ 1 Scope of Application and Contractual Basis
These General Terms and Conditions of Purchase (“GTCP”) shall apply to all orders, supply contracts, supply and installation contracts, service contracts, as well as any other form of procurement by ESTO GmbH (“Client” or “AG”) from entrepreneurs within the meaning of Section 2082 of the Italian Civil Code (“Contractor” or “AN”).
1.2 These GTCP shall apply exclusively. Any conflicting or deviating general terms and conditions of the Contractor shall not apply, even if not expressly rejected or if the Client accepts the deliveries without reservation.
1.3 These GTCP shall also apply to all future business relationships between the parties without the need for any further express agreement.
§ 2 Conclusion of Contract, Hierarchy and Binding Nature of Specifications
2.1 Orders placed by the Client shall only be binding if made in writing or in text form. No verbal side agreements shall exist.
2.2 The contract shall be concluded either by written order confirmation from the Contractor or by execution of the order without reservation.
2.3 The following hierarchy shall apply to the contractual relationship:
2.3.1 Written order of the Client
2.3.2 Technical specifications, drawings, specifications, project documentation
2.3.3 Annexes and special conditions
2.3.4 These GTCP
In case of contradictions, the higher-ranking document shall prevail.
2.4 The written order shall constitute the decisive basis of the contractual relationship.
2.5 All technical, qualitative, and functional requirements contained in the contractual documents shall be binding and form an integral part of the contract.
2.6 The Contractor shall perform the services in strict compliance with such requirements and in accordance with the state of the art, exercising the diligence required under Section 1176, paragraph 2 of the Italian Civil Code.
2.7 The Contractor shall review all documentation in advance and notify the Client in writing of any inconsistencies.
2.8 Failing this, the Contractor shall be liable for costs, delays, and damages pursuant to Section 1218 of the Italian Civil Code.
2.9 Deviations or technical modifications shall only be valid if approved in writing by the Client.
2.10 The Contractor guarantees that the supply and services provided comply with the applicable laws in the place of production and destination.
2.11 The Contractor shall be fully responsible for its personnel and subcontractors, including compliance with legal requirements (anti-corruption, competition law, labor law, human rights).
§ 3 Scope of Performance
3.1 The Supplier shall provide a complete, functional, ready-for-use and standards-compliant performance.
3.2 The scope of performance includes all ancillary services, the necessary documentation, test reports, certificates, declarations of conformity and any other documents required by the Client for the proper use of the supplied goods.
3.3 The Supplier guarantees the absence of defects in accordance with Articles 1490 et seq. and 1667 et seq. of the Italian Civil Code.
3.4 Delivery shall not constitute acceptance in the legal sense. The performance shall be deemed contractually compliant only once proper, fully functional and defect-free commissioning has taken place at the intended final place of use. Hidden defects are not affected by this, meaning they may also manifest themselves long after installation and commissioning. The Client shall be entitled to notify defects even after delivery and before or after commissioning, provided that such defects were not identifiable upon ordinary inspection or only arise during integration or use. The Supplier shall be obliged to remedy the notified defects without delay and, in any event, within a reasonable period taking into account the nature of the defect and the operational requirements, unless in individual cases a shorter period is objectively justified.
§ 4 Prices and Terms of Payment
4.1 The agreed prices are fixed prices and include all ancillary services, in particular packaging, transport, insurance, charges, as well as all documentation necessary for the execution of the performance in compliance with the contract and applicable industry standards, unless otherwise expressly agreed in writing.
4.2 Price changes, additional work, or extra costs shall only be payable if expressly ordered in writing by the Client prior to their execution.
4.3 Payments shall be made exclusively on the basis of a verifiable invoice and after proper delivery or performance of the contractual service. Payment shall not constitute acknowledgment of the absence of defects.
4.4 Invoices must be sent to: info@esto-innovation.com and must include the order number and project reference. Otherwise, they shall be deemed non-verifiable.
4.5 The following documents must be mandatorily attached to the invoice, where contractually required or necessary for the intended use: signed delivery note, test certificates, certifications, and declarations of conformity.
4.6 An invoice shall be deemed verifiable within the meaning of this contract only when it is complete and contains all information and documents required under this contract. Payment terms and/or agreed discounts shall commence only from that moment.
4.7 Delivery shall be made, unless otherwise agreed in writing, in accordance with the DAP (Incoterms® 2020) clause at the place of destination specified in the Client’s order.
§ 5 Delivery Deadlines and Delay
5.1 The agreed delivery deadlines shall constitute essential terms of the contract within the meaning of Section 1457 of the Italian Civil Code.
5.2 In the event of non-compliance, the Contractor shall be deemed in default automatically, without the need for a formal notice of default, pursuant to Section 1219 of the Italian Civil Code.
5.3 Force majeure shall be limited to unforeseeable events.
5.4 Interim deadlines shall also be binding.
5.5 If difficulties are foreseen that may jeopardize the timely performance and/or the availability of the goods, or if it is not possible to guarantee the quality of the product, the Contractor must immediately inform Esto.
5.6 In the event of delay or risk of delay, the Client shall be entitled to grant the Contractor an appropriate additional period for performance. Such period shall be deemed appropriate if determined taking into account the nature of the performance, the stage of progress of the project, and the operational requirements of the Client. The Contractor shall be obliged to confirm in writing without undue delay, and in any case within 24 hours of receipt of the notice setting such period, whether it is able to ensure performance within that period. If such period expires without performance, or if the Contractor declares that it is unable to perform within the specified time, the Client shall be entitled to commission third parties, in whole or in part and at the Contractor’s expense, to carry out substitute performance. Any additional costs necessary and appropriate arising from such substitute performance shall be borne by the Contractor. Further rights of the Client, in particular claims for damages, shall remain unaffected.
§ 6 Contractual Penalty
6.1 In the event of delay in delivery, the Contractor shall be obliged to pay a contractual penalty pursuant to Section 1382 of the Italian Civil Code in the amount of 0.2% of the net order value for each working day of delay, up to a maximum of 10% of the net order value.
§ 7 Ownership and Transfer of Risk
7.1 Ownership of the supplied goods shall transfer to the Client upon delivery.
7.2 Any retention of title clauses of the Contractor shall not be recognized.
7.3 Materials provided by the Client shall remain its property.
§ 8 Warranty
8.1 Duration: The warranty period shall be 36 months from taking over/acceptance.
8.2 The Client shall be entitled, at its discretion, to request repair, replacement, price reduction, or termination of the contract pursuant to Section 1453 of the Italian Civil Code. The Contractor shall commence the remedy of defects without undue delay following notification and shall complete such remedy fully and properly within a reasonable period set by the Client. If such period expires without result, or if setting such a period is not required—particularly in cases of urgency, operational requirements, or definitive refusal of performance by the Contractor, the Client shall be entitled to remedy the defects directly or through third parties at the Contractor’s expense. Necessary and appropriate costs shall be borne by the Contractor. Any further statutory or contractual rights of the Client shall remain unaffected.
8.3 All costs related to the remedy of defects shall be borne by the Contractor.
§ 9 Liability
9.1 The Contractor shall be liable without limitation for willful misconduct and gross negligence pursuant to Section 1229 of the Italian Civil Code, for personal injury, and for infringements of intellectual property rights.
9.2 Any limitation of the Contractor’s liability is excluded.
§ 10 Product Liability and Indemnification
10.1 The Contractor shall indemnify and hold the Client harmless from any third-party claims arising from defects in the supplied products.
10.2 The indemnification shall include, in particular, recall costs, legal expenses, and administrative fines.
10.3 The Contractor undertakes to maintain adequate product liability insurance.
§ 11 Subcontractors
11.1 The use of subcontractors shall require the prior written approval of the Client.
11.2 The Contractor shall be liable pursuant to Section 1228 of the Italian Civil Code for the acts and omissions of its auxiliaries as for its own acts.
11.3 The Contractor shall immediately inform Esto regarding the execution of the services and shall promptly notify in writing when the goods are ready for delivery.
11.4 Esto reserves the right to send its own personnel, up to five working days prior to the scheduled delivery, to the Contractor’s premises in order to carry out the necessary quality inspections of the goods in accordance with the order.
§ 12 Confidentiality
12.1 All information received in the context of the performance of the contract shall be treated as confidential.
12.2 This obligation shall survive the termination of the contract.
§ 13 Intellectual Property
13.1 All documents provided by the Client shall remain its exclusive property.
13.2 The Contractor is granted solely a non-transferable right of use for the purpose of performing the contract.
13.3 The Contractor shall indemnify and hold the Client harmless from any third-party claims arising from infringements of intellectual property rights.
13.4 If Esto provides the Contractor with tools, materials, or goods, ownership thereof shall remain with Esto. In the event of processing or commingling of the supplied materials, joint ownership shall automatically arise in proportion to their value, unless otherwise agreed between the parties. Any remaining quantities shall be returned after completion of the order, unless otherwise agreed.
§ 14 non-circumvention
14.1 The Contractor undertakes, for the duration of the contract and for a period of 24 months following its termination, not to establish or maintain direct or indirect business relationships with the Client’s customers with whom it has come into contact in connection with this contract or of whom it has become aware in the course of its performance. This obligation shall apply exclusively to services in direct competition with the subject matter of the contract
14.2 This obligation shall not apply if: the business relationship demonstrably arose independently of the Client, or the customer initiated the relationship autonomously and without the Contractor’s involvement.
14.3 Penalty: In the event of a breach, the Contractor shall be obliged to pay a contractual penalty pursuant to Section 1382 of the Italian Civil Code in the amount of 15% of the net value of the relevant order. The right to claim further damages shall remain unaffected.
§ 15 Termination (Withdrawal)
15.1 The Client shall have the right to withdraw from the contract at any time pursuant to Section 1671 of the Italian Civil Code.
15.2 In the event of withdrawal, the Contractor shall be entitled to payment for the services performed up to that point in accordance with the contract and free of defects, as well as reimbursement of proven and unavoidable costs. Any further claim for compensation for loss of profit shall be limited to the portion corresponding to the part of the performance not yet executed and shall be adjusted considering the expenses saved. The Contractor shall be obliged to take all reasonable measures to mitigate damages; in particular, it must take into account saved expenses as well as any other income obtained.
§ 16 Governing Law and Jurisdiction
16.1 Italian law shall apply exclusively.
16.2 The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
16.3 The exclusive place of jurisdiction shall be Bolzano (Italy).
§ 17 Severability Clause
If individual provisions are wholly or partially invalid, the validity of the remaining provisions shall remain unaffected