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 (“Company”) from entrepreneurs within the meaning of Section 2082 of the Italian Civil Code (“Counterparty”)
1.2 These GTCP shall apply exclusively. Any conflicting or deviating general terms and conditions of the Counterparty shall not apply, even if not expressly rejected or if the Company 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 Company 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 Counterparty 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 Company
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 Counterparty 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 Counterparty shall review all documentation in advance and notify the Company in writing of any inconsistencies.
2.8 Failing this, the Counterparty 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 Company.
2.10 The Counterparty guarantees that the supply and services provided comply with the applicable laws in the place of production and destination.
2.11 The Counterparty shall be fully responsible for its personnel and its Subcontractors, including compliance with legal requirements (anti-corruption, competition law, labor law, human rights).
§ 3 Scope of Performance
3.1 The Counterparty 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 Company for the proper use of the supplied goods.
3.3 The Counterparty shall warrant that the works/services are free from defects in accordance with the applicable provisions of the Italian Civil Code.
3.4 Delivery shall not constitute acceptance as a matter of law. The performance shall be deemed compliant with the Contract only once it has been properly installed, commissioned, fully operational, and free from defects at the intended final place of use.
Latent defects shall not be affected by or fall within the scope of such procedure or acceptance effect, meaning that they may become apparent even long after installation and commissioning.
The Company shall be entitled to notify and contest defects both after delivery and before or after commissioning, provided that such defects could not reasonably have been identified during an ordinary inspection or become apparent only during integration or use.
The Counterparty shall remedy any notified defects without undue delay and, in any event, within a reasonable period taking into account the nature of the defect and 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 adjustments, additional work, or supplementary costs shall be payable only if they have been expressly authorized in writing by the Company 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 Company’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 Counterparty 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 Counterparty must immediately inform Esto.
5.6 In the event of delay or risk of delay, the Company shall be entitled to grant the Counterparty 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 Company. The Counterparty 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 Counterparty declares that it is unable to perform within the specified time, the Company shall be entitled to commission third parties, in whole or in part and at the Counterparty’s expense, to carry out substitute performance. Any additional costs necessary and appropriate arising from such substitute performance shall be borne by the Counterparty. Further rights of the Company, in particular claims for damages, shall remain unaffected.
The Company shall have the right to refuse the performance and/or delivery if the delay in execution is such that receipt of the performance becomes irrelevant to the Company. Such refusal shall not give rise to any consequences for the Company, which shall in no way be deemed to be in breach of the contract.
§ 6 Contractual Penalty
6.1 In the event of delay in delivery, the Counterparty 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 Company upon delivery.
7.2 Any retention of title clauses of the Counterparty shall not be recognized.
7.3 Any materials supplied by the Company shall remain the property of the Company.
§ 8 Warranty
8.1 Warranty Period: The warranty period shall be 36 months from acceptance. The supply/performance shall be deemed accepted only after its use or commissioning at the site. In any event, such acceptance shall occur no later than the final acceptance testing of the works by the Company's principal Company and, in any case, no later than 12 months after delivery of the supply/performance.
8.2 The Company shall have the right, at its sole discretion, to require repair, replacement, a price reduction, or termination of the Contract in accordance with the applicable law.
The Counterparty shall commence the rectification of any notified defects without undue delay and shall complete such rectification fully and properly within a reasonable period specified by the Company.
If such period expires without the defects having been remedied, or in cases of urgency, operational necessity, or definitive refusal by the Counterparty to perform, the Company shall be entitled to remedy the defects itself or through third parties at the Work and service provider's expense.
All necessary and reasonable costs incurred in connection therewith shall be borne by the Work and service provider.
Any further statutory or contractual rights of the Company shall remain unaffected.
8.3 All costs related to the remedy of defects shall be borne by the Counterparty.
§ 9 Liability
9.1 The Counterparty shall be liable without limitation for wilful misconduct and gross negligence pursuant to Article 1229 of the Italian Civil Code, for personal injury, and for any infringement of intellectual property rights.
9.2 Any limitation of the Counterparty’s liability is excluded.
§ 10 Product Liability and Indemnification
10.1 The Counterparty shall indemnify and hold the Company harmless against any claims, demands, or actions brought by third parties arising out of defects in the products supplied and shall be liable to the Company to the same extent and on the same terms as any claim asserted against the Company by such third parties.
10.2 Such indemnification shall include, in particular, recall costs, legal fees and expenses, administrative fines or penalties, as well as any claims for damages.
10.3 The Counterparty undertakes to maintain adequate product liability insurance.
10.4 The Counterparty undertakes to indemnify and hold the Company harmless on a full pass-through (1:1) basis against any complaint, claim, or demand made by the end customer in connection with the goods supplied by the Counterparty.
§ 11 Subcontractors
11.1 The use of Subcontractors shall require the prior written approval of the Company.
11.2 The Counterparty 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 Counterparty shall promptly inform the Company regarding the progress and performance of the services and shall notify the Company in a timely manner and in writing when the supplies/services are ready for delivery.
11.4 Esto reserves the right to send its own personnel to the Work and service provider's premises up to five (5) business days prior to the scheduled delivery date in order to carry out the quality inspections required under 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 Company shall remain the sole and exclusive property of the Company.
13.2 The Counterparty is granted solely a non-transferable right to use the Company's intellectual property rights to the extent necessary for the performance of the Contract.
13.3 The Counterparty shall indemnify and hold the Company harmless from any third-party claims arising from infringements of intellectual property rights.
13.4 If Esto provides the Counterparty with tools, materials, or goods, title thereto shall remain the sole and exclusive property of the Company. In the event that the supplied materials are processed, transformed, or commingled with other materials, co-ownership shall automatically arise in proportion to the respective value of the contributions, unless otherwise agreed by the Parties. Any remaining quantities shall be returned to the Company upon completion of the Order without the need for further request, unless otherwise agreed.
§ 14 non-circumvention
14.1 The Counterparty 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 Company’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 where: (i) the business relationship can be demonstrably shown to have originated independently of the Company; or (ii) the customer initiated the business relationship independently and without any involvement of the Work and service provider.
14.3 Penalty: In the event of a breach, the Counterparty 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 and Rescission
15.1 The Company shall have the right to withdraw from the contract at any time pursuant to Section 1373 of the Italian Civil Code.
15.2 In the event of termination, the Counter partyshall be entitled to payment for the services performed up to that time in accordance with the Contract and free from defects, as well as reimbursement of documented and unavoidable costs that are directly related to the contractual services.
15.3 The Company shall have the right to terminate the Contract at any time pursuant to Article 1564 of the Italian Civil Code, without any compensation, indemnity, or damages being due to the Work and service provider.
§ 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.