Terms of sale

General Conditions of Contract of Aerotecnica Coltri S.p.A. For contracts of sale and service contracts

I. General Information/Scope:

These General Terms and Conditions of Contract (CGC) shall apply objectively to all contracts of sale and for works contracts entered into for all products and equipment marketed by Aerotecnica Coltri S.p.a. (hereinafter by “Aerotecnica Coltri”), including accessories and spare parts, as well as exclusively to services such as installation and maintenance work in addition to operational training sessions. Accordingly, they will apply to work contracts to the extent that it is not the nature of the work contract itself that excludes their application. Any divergent regulations, in particular opposing General Terms and Conditions established by the Customer, shall be considered accepted only if Aerotecnica Coltri expressly confirms them in writing in lieu of these Terms and Conditions. These General Terms and Conditions shall also be considered valid if Aerotecnica Coltri, although aware of the existence of the Customer’s opposing or divergent conditions, carries out the delivery without making reservations.
In the case of an existing business relationship, these GTC will apply in their version in force at that time, without the need for any special signaling or reference to all future business transactions, particularly also in the case of scaled or subsequent verbal or telephone orders.
Aerotecnica Coltri’s business correspondence printed by electronic data processing or sent by e-mail, in detail order confirmations, invoices, credit notes, account statements and payment reminders, is valid and binding for legal purposes even if unsigned.

II. Bidding and entering into the contract:

Aerotecnica Coltri’s quotations are not binding and are subject to correct and timely delivery by its suppliers, unless otherwise expressly agreed upon in writing between the parties. Orders shall be binding only upon receipt of their written confirmation, unless Aerotecnica Coltri’s service subject to the order has already been performed or invoiced. Confirmation of the entry of electronic orders (e-mail) does not yet represent a binding acceptance of the order. However, the confirmation of entry may be combined with the declaration of acceptance.
If, in order to fulfill its obligations, Aerotecnica Coltri should require an export license, the conclusion of the contract will be subject to the occurrence of the condition precedent of the failure to grant an export license. However, Aerotecnica Coltri undertakes to apply for the appropriate license at the appropriate office. If the application is rejected, Aerotecnica Coltri will be under no further obligation.
Proprietary and intellectual property rights, in particular the rights of reproduction and dissemination, over images, drawings, calculations and other documents of which the Customer comes into possession with an offer from Aerotecnica Coltri, are reserved. Such documents shall not be made accessible to third parties, except in the event of further sale in accordance with the terms of the contract, and, in the event of non-conclusion or breach of contract, shall be returned to Aerotecnica Coltri, upon its request.
The Customer is responsible for the accuracy of the documentation that is his responsibility to provide, e.g., samples and drawings. Should the production of the goods on the basis of drawings, samples or other data provided by the Customer result in the infringement of the industrial property rights of third parties, the Customer hereby indemnifies Aerotecnica Coltri against any industrial property rights of the owner.

III. Prices and payment methods:

Unless otherwise stated, prices quoted by Aerotecnica Coltri are with packaging, ex works Desenzano del Garda, Italy. Shipping costs will be borne by the Customer. Furthermore, the net prices provided for commercial transactions with contractors are to be understood net of VAT. Confirmed prices will be valid only if the confirmed quantity is collected.
If at the time of delivery, the list price in effect is higher than the price agreed with the Customer, unless otherwise expressly agreed upon in writing between the parties, the higher list price shall apply, if, for reasons attributable to the Customer, delivery is made after the four months following the conclusion of the contract, provided that the invoice has not already been issued and paid by the Customer.
Unless otherwise agreed between the parties, the due date for payment of the net purchase price shall be in advance. Any different payment terms will be indicated on the invoice.
Acceptance of checks presupposes the consent of Aerotecnica Coltri and is possible only as a means of payment. Charges for the collection of bills and other incidental costs will be borne by the Customer.
If the Customer with overdue payments falls into a state of arrears, Aerotecnica Coltri will be authorized to suspend the supply of other orders of the same. If the payment of arrears occurs, Aerotecnica Coltri will be entitled to make a new supply taking into account, according to equity, the other supply commitments.
If The Customer fails to meet his payment obligations (e.g., a check that cannot be cashed) or insolvency proceedings are demanded or opened on his assets, Aerotecnica Coltri shall be authorized to demand immediate payment of his entire claim, without regard to any outstanding due dates. In addition, Aerotecnica Coltri will be authorized to make outstanding deliveries only upon advance payment or surety bond. If, while setting an appropriate due date, there is a failure to meet the advance payment or surety bond, the company Aerotecnica Coltri will be authorized to withdraw from the contract with regard to the services not yet carried out, with the consequent extinction of any right claimed by the Customer with reference to the supplies still to be carried out. These are eventualities that justify Aerotecnica Coltri’s right to avail itself, in addition to withdrawal, of the right to compensation for damages and retention of title, as better specified in paragraph V below.

IV. Tolerances of performance data:

For the quality and species of the goods or services, the product description of Aerotecnica Coltri and, if applicable, the manufacturer, shall be considered agreed upon between the parties. Assurances and warranties granted by Aerotecnica Coltri shall be effective only if presented in express and written form. With regard to public statements, in particular advertising, Aerotecnica Coltri will answer only if it has taken the initiative and if the Customer’s purchase decision has actually been influenced by it. The data, drawings, pictures, performance descriptions, size and weight indications or other performance data given in catalogs, price lists, prospectuses, circular letters, other forms of advertising, further publications or in the documentation accompanying the offer are approximately in line with industry standards and therefore authoritative, albeit with some limitations. They can be guaranteed only if Aerotecnica Coltri expressly defines them in writing as authoritative.
Acceptable deviations from performance data (tolerances) do not constitute a defect, particularly with regard to the following tolerances: – Flow rate on breathing air compressors: measured in cylinder refill from 0 to 200 bar, ± 5% – Flow rate on industrial air and gas compressors: measured according to VDMA 4362 with flowmeter at 80% of final pressure ± 5% – Power input: KW + 5% – Compressor speed: 1/min + 5% – Operating pressure (final pressure): bar + 5% – Safety valve test pressure: bar + 5% – Operating voltage: volts + 10%, frequency Hz + 1% – Noise in decibels at a distance of 1 m: + 2 db – Net weight: kg + 10% – Size: m + 10%
Aerotecnica Coltri reserves the right to make structural changes to appliances without prior notice, insofar as these are compatible with commercial standards and acceptable to the other party to the contract. In the case of structural changes made to a series in commerce, the Customer may not demand that appliances already delivered also be readjusted.

V. Reservation of property:

Aerotecnica Coltri retains title to the movable property until the full payment of the purchase price.
If a business relationship is already in place with the Customer, Aerotecnica Coltri reserves the right of ownership over the movable property until all claims accrued on its basis are fully satisfied.
In the normal course of business, the Customer will be authorized to resell and transfer ownership of the goods supplied by Aerotecnica Coltri. The Customer hereby assigns to Aerotecnica Coltri the credits resulting from the resale of the goods supplied by Aerotecnica Coltri. If the Customer pays the credits resulting from the resale of the goods into a current account, it will then assign to Aerotecnica Coltri the credit arising from the final balance, the amount of which will be limited to Aerotecnica Coltri’s credit generated by the purchase price for the goods resold by the Customer. Aerotecnica Coltri will accept such assignments.

VI. Warranty:

The Customer is obliged to examine the goods regularly upon receipt. It shall be his responsibility to note immediately, as soon as he receives the goods, on the delivery note or waybill all detectable defects, erroneous quantities or wrong supplies, certainly no later than five working days after receipt, and in any case he shall notify Aerotecnica Coltri in writing before subjecting the goods to processing or installation. Otherwise, the supplies will be considered approved.
The guarantee extends for one year following the passing of risks. The regulations inherent in the statute of limitations on the contractor’s rights of recourse against the supplier will not be affected.
Excluded from the warranty are damages caused by improper and incorrect use, erroneous or incorrect assembly and/or commissioning carried out by the Customer or third parties, normal and natural wear and tear, incorrect or negligent handling, use of unsuitable materials, inappropriate storage, as well as the action of climatic, chemical, electrochemical and electrical agents, provided that they are not attributable to Aerotecnica Coltri’s fault. The same applies to damage resulting from failure to observe the instructions for assembly, for use and maintenance, as well as from inappropriate modifications or maintenance work carried out by the Customer or third parties and from interaction with non-original parts, as well as from continued use despite the occurrence of an obvious defect.
The occurrence of the warranty obligation is based on the assumption of the state-of-the-art execution of the installation of the equipment and other supplied items by Aerotecnica Coltri. The warranty obligation shall be extinguished if the supplied goods undergo a transformation conducted by outsiders or through the installation of non-original parts, provided that the defect is not causally related to the transformation.
The warranty obligation will lapse if, once informed of the anomaly, Aerotecnica Coltri is not given the necessary time or opportunity to make the necessary improvements or make replacement deliveries at Aerotecnica Coltri’s discretion. Only in urgent cases of threat to operational safety, in order to avoid disproportionate damage, or if Aerotecnica Coltri delays the intervention to eliminate the anomaly, the Customer shall have the right to repair it himself or have it done by a third party, requesting Aerotecnica Coltri to reimburse the necessary expenses. Of course, the premise is that even in this case Aerotecnica Coltri is immediately informed of the damage.
At Aerotecnica Coltri’s discretion, the warranty will be limited to a free replacement delivery and freight paid within the European Union and the European Economic Area or to rectification. On the basis of prior payment of a reasonable portion of the fee and taking into account the anomaly, Aerotecnica Coltri is authorized to provide subsequent performance and to have the manufacturer perform the rectification. In the case of replacement supply, the goods subject to claim will become the property of Aerotecnica Coltri at the time Aerotecnica Coltri recognizes the legitimacy of the claim. In any case, extra expenses originating from difficult access to the plant or insufficient working space or supply to an area outside the European Union or the European Economic Area will be borne by the Customer. If the Customer receives deficient assembly instructions, Aerotecnica Coltri shall have the sole obligation to provide complete assembly instructions. An obligation that will lapse if the gaps in the assembly instructions do not constitute an obstacle to proper assembly.
If the Customer chooses to withdraw from the contract on the basis of an anomaly occurring after unsuccessful subsequent performance, the Customer shall not be entitled to damages. If, after unsuccessful subsequent performance, he chooses damages, the goods will remain with the Customer, if he deems it reasonable. Damages will then be limited to the difference between the purchase price and the value of the defective goods. Which will not apply, however, if the breach of contract was caused by Aerotecnica Coltri’s willful misconduct. The Customer may only claim rights to damages under the conditions defined in paragraph IX..
With respect to anomalies of an asset identified only on the basis of its belonging to a kind, Aerotecnica Coltri will be liable only to the extent reserved for anomalies of assets of a certain nature, in particular, Aerotecnica Coltri’s obligation to procure assets suitable for fulfillment does not justify Aerotecnica Coltri’s strict liability for a damage caused by the anomaly.
Where the parties have not excluded the Customer’s right to reimbursement of operating expenses through the granting of equivalent compensation, the Customer shall be obligated to refuse subsequent performance against a consumer in the event of resale of the good to the same if performance would be possible only at disproportionate cost. In the case of resale of the good by the Customer to a contractor, the contractor shall similarly undertake to refuse subsequent performance if it resells the good to a consumer if this would only be possible at disproportionate cost. Aerotecnica Coltri will reimburse the Customer, the expenses necessary to carry out subsequent fulfillment, then only if they are not disproportionate.
The preceding rules governing the granting of the guarantee do not constitute any limitation on the merchant’s obligation to inspect and notify the claim.

VII. Delivery and acceptance:

The terms and conditions stated by Aerotecnica Coltri for deliveries or services will be only approximately determinative unless accepted in writing with calendar dates indicated. The delivery terms indicated shall be deemed to commence substantially upon the sending of the written order confirmation, however, not before the provision of documentation and authorizations by the Customer and not before the receipt of any certifications or authorizations necessarily issued by the proper authorities. If the Customer is obligated to make advance payments, the delivery period shall begin from the time of receipt of the advance payment at the company Aerotecnica Coltri.The terms of delivery and for the performance of the services shall be considered to have been met, if at their expiration the object of the supply has left the factory or warehouse of the company Aerotecnica Coltri, or the Customer has been notified of the readiness for shipment or of the successful performance of the services. Aerotecnica Coltri shall be authorized to make partial deliveries within the limit of acceptability recognized by the Customer. To the extent that an acceptance procedure is required, the acceptance deadline – except for a justifiable refusal of acceptance – and, subsidiarily, the notice of readiness for acceptance by final inspection will be decisive. If it should prove impossible for Aerotecnica Coltri to meet the agreed delivery deadlines for reasons beyond its control, such as force majeure; intervention by public authority; catastrophes; wars; riots; strikes in its own factories, distribution facilities, its suppliers’ companies, or within the scope of means of transportation, then it will be authorized to make the delivery once the impediment has ceased to exist. In the event of a delivery delay of more than four months, the Customer shall be entitled to reject it and withdraw from the contract. The Customer shall have no further rights based on non-delivery or delay in delivery for such reasons, even if these take over only when the delivery deadline has already been exceeded or Aerotecnica Coltri is in arrears.
If, on the other hand, the Customer falls into arrears of acceptance, he will be charged the costs arising from the deposit and with effect from the month following the notification of readiness for shipment, by virtue of which Aerotecnica Coltri shall be authorized to charge at least 0.5% of the billable amount of the goods for each month begun. It remains the Customer’s right to prove lower storage costs, just as it will be incumbent on Aerotecnica Coltri to claim damages due to delay of greater proportions.
Compliance with delivery and performance deadlines presupposes the fulfillment of the contractual obligations incumbent on the Customer. Upon request, the latter will be required to confirm in writing prior to delivery his readiness for acceptance and the performance of all necessary preliminary operations. His possible refusal to confirm or accept the goods will result in the establishment of the acceptance default.
The delivery by Aerotecnica Coltri will be made ex works (EXW). If, on a case-by-case basis, different agreements are concluded, the following regulations shall apply: the type of transport, of the means of shipment, the transport route and the type and quantity of means of protection, together with the choice of the forwarding agent or carrier, as well as the packaging, shall be within Aerotecnica Coltri’s sphere of discretion and shall be selected on the basis of reasonable criteria and with the accuracy that accompanies common business practices, with the exclusion of all liability. At the Customer’s request, if any, and at the Customer’s expense, Aerotecnica Coltri will insure the shipment against theft, break-in, shipping damage, fire and water damage, as well as against other risks covered by insurance.
If the business transaction is based on a contract for work, the Customer shall be deemed to have fallen into default of acceptance of the work if it fails to provide acceptance no later than one week after commissioning, notification of completion, or issuance of invoice. Acceptance shall be deemed to have taken place if the Customer, following commissioning, notification of completion, or issuance of invoice, uses the work for a period of two weeks without making any claims and Aerotecnica Coltri has in any event informed the Customer of this consequence at the time of commissioning, notification of completion, or issuance of invoice.

VIII. Passage of risks:

Risks pass to the Customer upon delivery ex works (EXW). If a different type of delivery is agreed upon, the risks-even in the case of freight paid delivery or delivery ex works-will pass to the Customer at the time of delivery to the shipper, carrier, or pick-up person. If Aerotecnica Coltri will make delivery, Aerotecnica Coltri will assume the risks up to the time of delivery to the receiving area. The above will also apply to partial deliveries.
The delivered goods shall be accepted by the Customer, even if they have insubstantial anomalies, without prejudice to the rights enshrined in Paragraph VI. The Customer shall file claims for disputes attributable to transport damage within the stipulated time limits, including against shippers, carriers and their insurances or similar organizations.

IX. Liability for damages:

Aerotecnica Coltri’s liability is limited to €10,000,000.00 (10 million) for property damage. This limitation of liability will not apply to
to damages arising from the cases of death, bodily injury, or health damage attributable to culpable default on the part of a legal representative or assistant of Aerotecnica Coltri;
to other damages attributable to willful misconduct or gross negligence on the part of a legal representative or assistant of Aerotecnica Coltri.
to damages resulting from the occurrence of a typical contractual risk, if the former are foreseeable by reason and magnitude;
to damage caused by an abnormality of the purchased item, if Aerotecnica Coltri has assumed the guarantee for the quality and species of the item.
Aerotecnica Coltri shall not be liable for any lost profit, absent cost reductions, damages arising from third party rights, and other indirect and consequential damages, as well as loss of recorded data, except to the extent that Aerotecnica Coltri has created a particular legitimate expectation. Aerotecnica Coltri will be liable for the reconstitution of data only if the Customer ensures that such data can be reconstructed from other similar material with justifiable expenditure of time and money.
The preceding exclusions and limitations of liability will apply equally to non-contractual and pre-contractual liability. However, they will not apply to damages arising from cases of death, bodily injury, or damage to health attributable to negligent breach. Nor will they apply to strict liability claims, particularly in accordance with the Product Liability Act.
To the extent that Aerotecnica Coltri’s liability is limited or excluded, this will also apply to the personal liability of employees, representatives, and other assistants of Aerotecnica Coltri.
The Customer’s rights for claims for damages shall be time-barred at the end of the warranty period specified in Section VI.2, however, no later than six months after the claim arises, if no claims attributable to willful misconduct are made, manufacturer’s liability.
This Paragraph IX will likewise apply to claims on reimbursement of costs and expenses.
None of the previously described regulations will justify a change to the distribution of the legal or jurisprudential burden of proof.

X. Compensation and Retention Rights/Rights to withhold benefits:

The right to exercise a set-off by asserting counterclaims shall accrue to the Customer only if his counterclaims are of a definitive nature, are not disputed or are recognized by Aerotecnica Coltri. Retention rights or other rights of withholding of performance may be asserted against Aerotecnica Coltri only if and to the extent that they are based on the same contractual relationship. Even in the case of an existing business relationship, each individual order shall be considered as a separate contractual relationship.
The Customer shall not be entitled to assert a right of refusal to perform, or a right of retention, unless such rights are based on an anomaly in the purchased item, for which Aerotecnica Coltri has already received the part of the compensation corresponding to the value of its performance, or on counterclaims of the Customer that are not disputed, that have a definitive character or are recognized by Aerotecnica Coltri.

XI. Intellectual property rights and violations of industrial protection law:

The Customer agrees not to make or cause to be made copies or imitations of Aerotecnica Coltri’s products, recognizing that Aerotecnica Coltri’s products are protected by patents and other industrial protection rights with respect to copies and imitations. Infringement of these rights may result in significant criminal consequences and justifies Aerotecnica Coltri’s rights to damages and denial action against the Customer.
If operating software with a license obligation also belongs to the scope of supply, upon full payment of its invoice for the supply Aerotecnica Coltri shall grant the Customer a simple, non-exclusive right, transferable only together with the relevant hardware, to use this software in the version valid at the time of the supply (release) on the system being supplied. For application software, special license provisions apply, which will be delivered to the Customer together with the software from time to time. The Customer is obliged to install and use software exclusively within the scope of the licenses granted.
The Customer acknowledges that the software may contain and represent trademark, know how and other intellectual property rights and that these rights belong to Aerotecnica Coltri or its suppliers. Similarly, working documents from operational training sessions are protected by intellectual property rights and may be reproduced-even in the form of extracts-only with the express written consent of Aerotecnica Coltri.
Should third parties make claims against the Customer due to the infringement of an industrial property right due to the use of a product assigned by Aerotecnica Coltri, The Customer shall immediately inform Aerotecnica Coltri in writing. At its discretion, Aerotecnica Coltri may satisfy such claims at its own expense, dismiss them, or settle them through a settlement. Aerotecnica Coltri shall assist the Customer in any reasonable manner in its defense . Aerotecnica Coltri shall bear all financial charges generated by a judgment against the Customer, including damages awarded to a third party and court costs. The costs of the settlement will be borne by Aerotecnica Coltri, if Aerotecnica Coltri decides to accept it. The Client will grant Aerotecnica Coltri exclusive authority to decide on the legal defense and settlement negotiations. It will therefore grant Aerotecnica Coltri the necessary powers of attorney on a case-by-case basis.
Should Aerotecnica Coltri believe that a product could possibly be the subject of a dispute over industrial property rights, it shall be authorized, at its own discretion – to obtain at its own expense the right, in favor of the Customer, to further use the product; – to replace the product or modify it, at its own expense and at a reasonable level, so as not to infringe beyond the rights of third parties; – to take back software, equipment or parts thereof and refund to the Customer the purchase price, less appropriate exploitation rights.
Aerotecnica Coltri, on the other hand, will not be under any obligation if its software, machines, or parts undergo modifications by the Customer or are linked to programs or data that Aerotecnica Coltri has not made available and that will result in the establishment of third-party rights.

XII. Place of performance and place of jurisdiction:

Place of performance for all claims, if any, arising from the business relationship with the Customer shall be Desenzano del Garda; however, the place of performance for Aerotecnica Coltri’s supply obligations shall be the location of the plant or depot designated by Aerotecnica Coltri for the supply.
The exclusively applicable law between the parties will be Italian law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
If the other party to the contract is a merchant, a legal entity under public law, or a fund under public law, venue for any claim that may arise and in connection with the contractual relationship shall be, at the option of the plaintiff, Brescia or the general place of jurisdiction of the defendant.