General terms and conditions

1. Scope of application

1. These general conditions ("General Conditions"), unless expressly waived in writing, govern all business relations between Schmalz S.r.l. ("Schmalz") and the customer ("Customer"). The General Conditions shall prevail over any general conditions of the Customer even if stated or referred to in orders, contracts or other documents, unless the relevant waiver is explicit, clear and is accepted in writing by the legal representative of Schmalz.

Any modification, addition, or waiver, express or implied, to the General Conditions shall be valid and effective against Schmalz only if specifically approved in writing by Schmalz's legal representative. It is understood that the provisions of the contracts signed by Schmalz shall prevail over these General Conditions in case of conflict.

2. The General Conditions also apply to other assignments, without special reference to them again.

2. Offer, prices

1. Offers ("Offers") are, if not explicitly defined as binding, subject to modification by Schmalz in every part. Customer's acceptance of the Offer or order confirmation implies the application of these General Terms and Conditions.

2. In the case of Offers defined as binding, the contract is concluded when the Offer is accepted in writing by the Customer within two weeks from the date the Offer is sent. After this period has expired, Schmalz shall no longer be bound by it. Any changes proposed by the Customer will result in an amendment of the contract only when they have been accepted in writing by Schmalz.

3. Prices are exclusive of VAT; they are based on ex works (EXW Incoterms 2020) and therefore do not include packaging, transportation, customs and insurance costs, as well as any other transportation costs. Orders with a net value of less than Euro 50 are not processed; for orders with a net value between Euro 50 and Euro 75 Schmalz is allowed to calculate a surcharge of Euro 10. Orders with an amount less than Euro 50 are only accepted through e-commerce with the surcharge of Euro 10.

4. Schmalz is authorized to change the prices of the Offers due to increases in wage and material costs, even in the case of price increases by subcontractors, if the goods are delivered more than four months after the conclusion of the contract and the cost increase has arisen after the conclusion of the contract.

5. Costs for samples and preparatory works provided at the Customer's request shall be borne by the Customer in case of failure to conclude the contract.

6. Schmalz reserves ownership and copyrights for quotations, drawings, and other Offer documents. Access to these documents by third parties may only take place with the permission of Schmalz. Such documents may not be exploited, copied or reproduced or transmitted without the prior written consent of Schmalz.

3. Supplies, risk transfer

1. Partial deliveries are permitted and oblige the Customer to pay the relevant price, except in the case where the partial delivery cannot be expected to be taken over. Each partial supply is to be considered as the fulfillment of a particular order within the meaning of the General Conditions. The Customer is obliged to take delivery of the goods even in the case of partial deliveries or if the goods are delivered in advance of the agreed time limit.

2. For the place of fulfillment of the delivery obligation, the clause Ex Works applies and with costs to be borne by the Customer; this also applies when it is agreed that the shipment is to be made by the Customer and when the goods are to be installed at the Customer's premises. The risks pass to the Customer at the time the goods are taken from the loading ramp at the production plant or at the time notice is given that the goods are ready for shipment. This also applies in the case of partial deliveries and furthermore if shipping or transportation and installation costs are borne by Schmalz. The Customer is not released from the obligation to pay the price when the loss or damage occurs after the passing of risk.

3. Equipment will be supplied disassembled if this is necessitated by the type of shipment and the risk involved in transportation.

4. The execution of a transportation risk insurance policy or other insurance policies shall take place only at the express request of the Customer and at the Customer's expense.

5. In case of delay in the collection of the goods, due to causes not attributable to Schmalz, the Customer shall bear all resulting expenses including storage costs, which will be at the Customer's risk. For each week of delay a half percentage point will be calculated, with a maximum of 5% of the net value of the uncollected goods. The Customer is allowed to prove a lesser damage, while the right of Schmalz to prove a greater damage is unaffected. Upon expiration of the period for collection appropriately fixed by Schmalz, Schmalz shall be entitled to otherwise dispose of the delivered goods and deliver them to the Customer within appropriately extended periods. All sums due to Schmalz for any reason whatsoever shall become immediately due and payable.

4. Deadline and delivery terms

1. Delivery deadlines fixed by Schmalz are approximated and non-binding, unless contracts with a fixed delivery date have been expressly stipulated in writing. These are valid only after timely receipt of all documents, permits, approvals as well as agreed payments necessary to fulfill the order.

2. In case of delay by the Customer in payment of advance payments or in communication of necessary data and documents, the deadline will be extended for a period corresponding to the period of delay. In case of modifications agreed upon by the parties after the conclusion of the contract, the delivery terms will be extended for the period necessary for the execution of the modifications.

3. The delivery term runs from the receipt by Schmalz of the signed acceptance of the Offer by the Customer or the receipt of the order confirmation accepted by the Customer. The delivery term is met if by that time the goods subject to delivery have left the loading ramp, or if notice has been given of their readiness for collection. Only working days and not holidays are considered for delivery deadlines.

4. In the event of force majeure or other circumstances beyond Schmalz's control (e.g., administrative measures, strikes, barrages, interruptions in the work process internal to the company, problems in finding material, impediment to traffic, etc., circumstances that can also happen at the subcontractor's premises) the delivery terms, including those already confirmed, are correspondingly extended. This also applies if the above circumstances are occurr when the delay already exists. If due to such circumstances the delivery should become impossible or undeliverable for Schmalz, Schmalz shall be released from its obligation to deliver. If delays in delivery continue for more than one month, Schmalz will be entitled to withdraw from the contract. The parties undertake to inform each other in a timely manner if there is a force majeure, indicating the foreseeable duration of the impediment.

5. In no case of non-delivery or delayed delivery shall the Customer be allowed to claim compensation or other compensation or damages.

6. In case of delay attributable to Schmalz, the Customer may terminate the contract only after having fixed, by registered letter with acknowledgement of receipt or pec, an additional period of 30 days for compliance by Schmalz, which begins upon receipt of the registered letter and/or pec.

7. In the case of split deliveries the delay or failure to make one or more deliveries, the Customer may not under any circumstances terminate the contract for deliveries already made or for future deliveries.

5. Payment terms

1. Payments shall be made, unless otherwise agreed upon in writing, within ten days after receipt of the invoice for the net amount. Failure to comply with the terms and conditions of payment shall release Schmalz from its obligation to deliver and shall allow the latter to collect the entire payable in advance, unless it is preferable to terminate the contract by withholding as a penalty, subject to greater damages, the sums fixed to date by the Customer. The Customer may not suspend payment of the price of supplies for alleged non-conformity of the supplies with the contract. In case of delay in payment, interest on arrears pursuant to Legislative Decree no. 231/2002will automatically start from the individual due dates, without the need for notice of default and without prejudice to any other right, interest on arrears, without prejudice to the right to claim compensation for greater damages.

2. Should the right to payment be threatened by a deterioration of the Customer's financial status, which has taken place after the conclusion of the contract, Schmalz shall have the right to supply the goods on consignment, to demand advance payment, to withhold goods not supplied, to stop processing orders in progress, and to withdraw from contracts already concluded with the Customer, unless the Customer pays an advance payment or provides other security.

6. Reservation of ownership

1. In case of deferred payments, or installment payments, the delivered goods remain the property of Schmalz until the price has been paid in full, while the risks for the perishing of the same are transferred with the delivery. The Customer undertakes to do whatever is necessary to make the retention of title effective in its most extensive form in favor of Schmalz; Schmalz is authorized to perform at the expense of the Customer all formalities necessary to make the retention of title nonetheless enforceable. For this purpose, the parties undertake to reproduce the sales contract containing the retention of title in a special document signed by the parties.

2. The Customer is not authorized to assign to third parties or lease, give for use or custody of the goods to third parties in the ordinary course of business and also in the case of assignment or lease of the business, unless expressly authorized in writing by Schmalz and unless it assigns to Schmalz first of all credits arising from the resale to the buyer or third parties. The Customer shall not be entitled to take any other action on the goods under reservation of title and especially to pledge the latter as a pledge or security, lien of any kind or privilege. The Customer undertakes to deliver to Schmalz all documents evidencing the claims in question. The Customer authorizes Schmalz to notify third parties directly of the assignment and guarantees its solvency. Costs and expenses that may be necessary to claim the assets from third parties or to obtain satisfaction of the assigned receivables claimed by the Customer from third-party purchasers shall be reimbursed by the Customer with interest to be calculated at the legal rate plus five percentage points.

The Customer agrees to notify Schmalz immediately by registered letter with return receipt or pec in connection with any fact or act that may affect Schmalz's rights to the goods. The goods may not be transferred elsewhere without the prior written consent of Schmalz. The Customer in accordance with Article 1264, first paragraph of the Italian Civil Code, declares that he accepts the assignment that may be arranged by Schmalz of the receivables arising from the installment or deferred sale and undertakes to make payment to the assignee of the receivable indicated by Schmalz. In the event of non-fulfillment of the obligations assumed by the Customer with respect to the retention of title, Schmalz shall have the right to terminate the sale with immediate effect and to retain as a penalty any sums collected and without prejudice to further damages and the right to fair compensation for the use of the property.

3. Goods subject to retention of title may not be processed, worked, and joined to other goods unless expressly authorized in writing by Schmalz. In the event of non-payment of the deferred price or installments, the covenant of retention of title shall extend, as far as possible, to the goods resulting after processing, transformation, or joining, and Schmalz shall be entitled to claim that part of the processed product which corresponds proportionately in kind and value to our remaining claim plus accessories and expenses. This is without prejudice to the possibility of obtaining the return of the goods sold to the extent that their separation from the goods belonging to the Customer or the third party is permitted. This is without prejudice to Schmalz's right to prove the greater damage suffered. The Customer undertakes to declare the existence and survival on the property and the machinery therein of passive transcriptions, inscriptions, and liens as well as any change in the ownership of the property. If the property is owned by the Customer, the Customer shall give prior notice to Schmalz of its intention to sell it or to place liens on it. Schmalz reserves the right to object to acts that may prejudice its rights to the property sold to the Customer.

4. Where the price is by installments, failure to pay two installments of the price, even if not consecutive, will cause the Customer to forfeit the benefit of the term for the remaining installments and Schmalz may demand payment of the remaining price in full or demand termination of the contract by demanding immediate return of the goods.

5. The Customer is obligated to insure the goods subject to retention of title against all insurable risks. He is obligated to assign his claims under the insurance policies and to produce upon request of Schmalz evidence of the conclusion of the policies.

7. Warranty and Liability

1. The warranty referred to in this article is in lieu of the warranty and liability provided for by Italian law; outside the provisions of these General Conditions, the Customer may not make any other claims for damages, price reduction or termination of the contract.

2. Any defects in the goods and complaints of any kind must be asserted within 10 days after delivery or, upon discovery, in the case of hidden defects. The disputed parts must be returned to Schmalz at no cost to Schmalz and by prior agreement. The complaint must state in writing and in detail the defect found by accurate testing of the goods. A warranty claim made after the expiration of the warranty period specified in item 3 below will not be accepted. The Customer shall also forfeit the warranty when he does not allow Schmalz to carry out the checks to be required, if any.

3. The warranty period is twelve months.

4. In case of the presence of defects Schmalz has the right to choose between repair and replacement of the defective parts. In case of replacement Schmalz shall bear the costs for the replacement part including shipping to the contractually agreed place of delivery, but not the costs of installation or uninstallation or other expenses. If at the Customer's request the shipment has another destination, or services have to be performed on site by Schmalz, the Customer shall bear the additional costs arising therefrom. The replaced goods shall become the property of Schmalz. The warranty for the replacement part or repair is for three months, but it is extended until the expiration of the warranty period provided for the delivered goods, when the latter is after the expiration of the third month. If repair or replacement supply is not possible or fails at least twice, or is not carried out after fixing an appropriate period, the Customer may demand termination of the contract for defects in the thing or reduction of the sale price. Compensation for any damages is excluded.

5. Schmalz shall not be liable for defects or damages not attributable to it and which have arisen as a result of unsuitable or improper use, failure to observe the instruction manual, incorrect assembly or commissioning by the Customer, overuse, natural deterioration, faulty or neglected treatment, unsuitable equipment, chemical, electrochemical or electrical influences (not provided for in the contract), or for defects resulting from the Customer having directly carried out modifications or repairs without the written consent of Schmalz. Schmalz shall not be liable for conformity defects and faults in materials, software, semi-finished products, components, and any other products incorporated or not incorporated in the machine, whether or not supplied, specified, or requested by the principal or by third parties acting in any capacity on his behalf. In the case of machines shipped disassembled, Schmalz shall not be liable for defects if the assembly at the Clienten was not done by or under the control of Schmalz.

6. Compensation for damages that do not originate from the delivered good (indirect damages) is excluded.

7. In any case and except in the case of willful misconduct or gross negligence, any compensation for damages shall be restricted to the net value of the delivered goods, to which the defective item belongs.

8. Installation

1. If Schmalz is also commissioned with the installation together with the delivery, the installation will be carried out on the basis of what is specifically stipulated in the offer and/or the relevant order and/or an additional order.

9. Miscellaneous

1. For any dispute arising from or related to the contract, the court of the registered office of Schmalz shall have exclusive jurisdiction.

2. Italian law shall apply exclusively to these General Conditions.

3. If any of these clauses should be even partially invalid, the validity of the entire clause shall remain unaffected, and the invalidity of individual clauses shall not result in the invalidity of the entire contract. The invalid clause shall be replaced by one that allows as close as possible to the economic objective originally fixed.