General Condition of Sale

This document outlines the general conditions of sale (hereinafter, “GCS”) of the products traded by AQUA S.P.A., with head office located in Via Tonino Crotti, 1 – 42018 San Martino in Rio (RE) – Italy – Tax ID and VAT Reg. No. 02026440350 (hereinafter, “Seller” or “AQUA”).

 

1. Subject-Matter

1.1 These GCS – where not derogated by specific written agreement between the Seller and the Client, the latter as defined hereafter – regulate all the sales contracts regarding the products traded by the Seller (hereinafter, “Products” or individually, “Product”), in any way drawn-up, through an order, signing of written contracts online, etc.

1.2 Only sales contracts to client shall be concluded for Products for business or professional use in compliance with section 1.1 (hereinafter, “Clients” or individually “Client” for purposes of these GCS, the Seller and the Client are hereinafter, jointly referred to as the “Parties”), as the sale to end private consumers is excluded.

1.3 Any exceptions to these GCS shall be submitted by the Seller to the Client in writing and must be signed for approval by the Client. Any unilateral amendment introduced by the Client that is not signed by the Seller for approval shall be considered void.

 

2. Products

2.1 Information on Products that are contained in the catalogues of the Seller, available in the corporate website or present in any other similar document that is disseminated, shall be considered approximate only and the photographic images that accompany the description of the Products may not give an accurate representation of the technical features, colours or sizes and for this reason, they shall not be binding on the Seller.

2.2 The Seller reserves the right at any time to remove Products from the catalogues or add new products, new categories or range of Products, at its sole discretion with no obligation to give prior notice.

2.3 The Seller reserves the right to amend the technical and functional characteristics of the Products at any time, at its sole discretion with no obligation to give prior notice.

 

3. Sales Contract

3.1 The Client’s order must include a clear description of the Products to be purchased and in particular, include the identification codes of the Products and the respective requested quantities. Without said data, the order of the Products shall be considered as not received by the Seller.

3.2 The Client’s order constitutes a contractual proposal and is not binding on the Seller until the latter forwards an order confirmation. In case of inconsistency between the Client’s order and the Seller’s order confirmation, the latter shall prevail, but may be disputed by the Client within 5 (five) calendar days thereafter.

3.3 When preparing the order, the Client acknowledges the minimum sales quantities
required by the Seller for each Product, as well as the minimum billing set out by AQUA for the specific sector, as specified by the Seller in the catalogues or upon making the order.

3.4 The Client represents and warrants that by issuing an order the latter confirms the acceptance of these GCS and consequently waives the application of any of its general conditions of purchase considered individually or in their entirety.
For all legal purposes and where not expressly attached or included in a contract formally signed between the Client and the Seller, these GCS are in any case signed at the foot herein by the Client for acceptance at least once a year and as such forwarded to the Seller, at the latest when and along with the subsequent issued order.

3.5 The activities conducted by agents, brokers of AQUA or by the Seller’s organisation do not bind the latter in any way, as long as each order received by
them is followed by a written order confirmation from the Seller. Therefore, the Seller shall be bound to process the accepted order only when said order confirmation is forwarded.

 

4. Sales prices

4.1 The sales prices of the products are calculated EX WORKS – Seller’s premises and the value added tax is excluded and shall be applied pursuant to the law. Moreover, any other costs or expenses are excluded (such as transportation costs, custom duties, excise duty, etc.), which may be due for the delivery of the Products, as agreed between the Seller and the Client and which shall be added to said prices.

4.2 The Seller reserves the right to amend the price of the Products, at its own discretion and at any time, in view of a change in costs of raw materials, labour or other cost components related to the production cycle, implemented by AQUA with prior special written notice to the Client.

 

5. Payment conditions

5.1 In the event that a contract is concluded with deferred payment conditions, said conditions shall be included each time in the order confirmation that the Seller forwards to the Client. Likewise, if payment is requested in advance, it shall be the Seller’s responsibility to specify it in its order confirmation that is forwarded to the Client.

5.2 Payments made to the Seller by bank transfer or credit card must be received by the Seller at its bank details communicated to the Client beforehand and exclusively from the current accounts in the name of person to whom the invoice is made out to.
Payments by third parties who are not the person to whom the invoice is made out to are not allowed, unless agreed beforehand between the Seller and the Client and the recipient of the invoice who is not the Client

5.3 It is understood between the Parties that any complaints or disputes shall not entitle the Client and – if different than the Client – shall not entitle the person to whom the invoice is made out to, to suspend or otherwise delay payment of the Products being disputed and neither suspend other supplies by AQUA.

5.4 If the Client (or if different than the Client, the person to whom the invoice is made out to) fails to pay the sales price at the agreed due dates, in part or in whole, default interest will be due automatically without requiring a letter of formal notice pursuant to the Italian Legislative Decree 231 of 9 October 2002, as amended and supplemented, until the date of actual payment, notwithstanding any other right of the Seller to collect its credit, as provided by these GCS pursuant to the law.

5.5 Non-payment or partial payment by the Client, even of just one invoice, shall entitle the Seller to refuse the acceptance of new orders from the Client or the execution or completion of current orders.
Whenever non-payment or partial payment persists for a period of more than the 30th (thirtieth) day as of the due date of the invoice as agreed, the Seller shall be entitled to terminate the sales contract immediately, notwithstanding AQUA’s right to claim compensation for any damages suffered, including the reimbursement of legal expenses related to any possible credit collection measures, including out-of-court procedures.

5.6 The Seller is entitled to refuse to process or accept orders that are forwarded based on these GCS or terminate a contract already in force, as well as cases expressly envisaged in these GCS and those envisaged in applicable laws, in the event of the following circumstances:
a. if there is a change in the Client’s economic conditions that compromises or that may compromise its ability to meet its own obligations
towards the Seller; or
b. if the Client is subject to bankruptcy, insolvency, liquidation or other procedures that may indicate an insolvency condition.

5.7 In the cases envisaged in section 5.6 above, the Seller shall have the right to demand full payment in a single instalment of what is still due by the Client pursuant to the law.

 

6. Retention of Ownership Title
In any case in which a deferred payment is agreed with respect to the delivery of the Products, the Seller and the Client agree that the sale shall take place with retention of ownership title of the Products in favour of the Seller. Therefore, the Client shall acquire the ownership only upon full payment of the overall agreed price, plus ancillary charges, but shall assume all risks as of the time of delivery, pursuant to article 1523 and subsequent articles of the Italian Civil Code.

 

7. Products Delivery

7.1 Unless agreed otherwise between the Parties, documented in the Seller’s order confirmation or in the contract concluded between the Parties, the delivery of the Products to the Client shall take place
Ex Works Incoterms®2010 at the Seller’s premises.

7.2 The delivery terms specified by the Seller or agreed between the Parties are established in favour of the Seller and are approximate. Therefore, any delays in the delivery of the Products may not entitle Client to assert claim for compensation or cancel the order. The Seller reserves the right to make partial deliveries at the time and to the extent in which individual parts of the Product are ready for delivery.

7.3 The above delivery times are in any case subject to any Force Majeure events, as regulated and defined in section 11 or by acts or omissions of the Client.

7.4 The place of delivery specified by the Client is only a reference which the Seller must observe when delivering the Products. For this reason, into the order, the Client must indicate the exact place where to make the delivery. In turn, the Seller must confirm the delivery place and shipment costs in the order confirmation. The Client accepts that the transportation costs, as envisaged in section 5.1, are completely at its own expense. The Client holds the Seller harmless from any liability in case of omitted or late delivery due to an erroneous indication of the place of delivery provided by the Client.

 

8. Complaints upon delivery

8.1 The Client must inspect the delivered Products with care immediately once received, whenever the delivery is Ex Works or at the time of the actual delivery in case the Products are shipped to the address indicated by the Client in the order, hence considering the unloading of the goods as the Products inspection time for the Client.

8.2 Any remarks regarding the exterior condition of the Products or the packaging, where visible upon the delivery, must be specified in writing and in detail on the transportation document or accompanying invoice. Likewise, parts of a Product that are damaged or defective must be returned to the Seller immediately (or not collected by the Client) with transportation and insurance costs for returning products to the Seller to be paid by the Client. The provisions of the following section 9 shall apply for the replacement of parts of a Product that are damaged.

8.3 Any inconsistencies in the quantity of the goods delivered with respect to those specified in the order, shall not entitle the Client to terminate the contract or suspend payments, but shall only entitle the latter to receive the missing goods.

8.4 The failure to notify a defect in time, pursuant to this section 8 and the following section 9, and the subsequent return of the damaged or defective part by the Client shall forfeit the Client’s right to take any and all actions against the Seller for said defects.

 

9. Warranty-application

9.1 The Seller warrants that the sold Products have the essential quality for their intended use according to the technical specifications of each Product and possible specifications outlined in the respective order confirmation and are in compliance with the Italian law, as well as to EU laws, applicable from time to time.

9.2 The Seller shall be responsible for all defects appearing in the Product as a result of its normal use, provided that they are due exclusively to defects in the materials and only if arisen or if reported during the warranty period, as defined in the following section 10.

9.3 The warranty is granted in favour of the Client and may be extended to any subsequent buyers only if they have the respective purchase title and a written agreement is made between the Parties.

9.4 In order for the warranty provided by the Seller to be valid and for the purpose of observing EU and applicable national laws on the Products and for the entire usage period of the Products, the Client must strictly abide by the instructions outlined in the user and maintenance instructions provided by the Seller, as well as guarantee a proper training of its staff or third parties assigned by the Client to carry out the installation, assembly, disassembly and repairs of the Products in such a manner as not to cause damages to things or injuries to persons while guaranteeing the operation pursuant to national, EU laws, as well as standards envisaged in the place in which the Products are put into service.

9.5 The warranty recognised by the Seller does not apply in cases where the Client:
a. fails to install the Products in full observance of the instructions set out in the Product’s user and maintenance manual;
b. implements changes, tampers with or damages the Products;
c. uses the Products for purposes other than their intended purpose, as in all the cases of damages or lack of operation due to fault or negligence of the Client, its employees, auxiliaries or third parties in general, including improper installation, maintenance or repair. In any case, the Client undertakes to indemnify and hold the Seller harmless from any claim for damages or administrative fines, whenever derived from a violation by the Client of its obligations, as specified in this section 9.

9.6 The Seller’s warranty does not cover any parts of the Product that are subject to wear and tear or consumable parts or components, or for any damages due to parts subject to wear that are serviced or replaced improperly by the Client when worn. Moreover, the Seller’s warranty does not cover damages caused to Products that result from improper storage by the Client, in cases in which the Products whose ownership or risks are already transferred to the Client, in part or in whole and that are stored in the Client’s warehouses prior to being installed, used or possibly re-sold to end buyers.

9.7 Notwithstanding the provisions of section 8 above, the Client must report to the Seller in writing any defects detected in the Product within 8 (eight) days from the time of their discovery, in the manner indicated in section

9.8 The Client must report defects pursuant to this section 9 by registered letter with proof of delivery or by certified email, if available. The forward date of the report by the Client will be valid for purposes of its timeliness pursuant to section 9.7 above. Any other form of reporting is excluded whatsoever, in particular if made by standard email, telephone, fax or through an agent or representative and hence the Seller will consider the reporting as not made. Any report of defects must clearly specify the defect encountered and the involved Product(s).

9.9 If the report is not made in a timely manner as specified above, the Client will be forfeited and will no longer have the right to enforce the Seller’s warranty based on these GCS and pursuant to law.

9.10 After reporting a defect, the Client is responsible for returning the defective material, after being authorised by the Seller, to the premises of the Seller so that proper inspections and checks can be performed.
The goods will not be accepted if the Client fails to indicate in its transportation documents and delivery notes the identification details of the transportation document and the charged invoice to which the returned parts referred to, as issued by the Seller upon the sale of the Product, as well as the details of the defect report. In any case, the Client undertakes not to use any defective Products and report any disputes by third parties that it becomes aware without delay.
All Products sent for repair or replacement under warranty must be received by the Seller with pre-paid transportation costs by the Client and must be forwarded to the following address: AQUA S.P.A. via Tonino Crotti, 1 – 42018 San Martino in Rio (RE) – Italy. Any materials sent by the Client without following the formalities set out in this section 9.10, will not be accepted by the Seller. Defective parts will regain the ownership of the Seller after they are replaced.

9.11 The Seller shall check the returned materials that are defected within the following 30 (thirty) calendar days. If the results of the inspections conducted at the Seller’s premises prove the existence of the alleged defect, the Seller, at its own discretion, may replace the defective Product or, alternatively, remove the defects. After the inspection, the Seller shall inform the Client when the repaired or replaced product may be collected from its premises.
The possible replacing of the defective Product with a new Product with the same characteristics, as well as delivering the repaired Product to the Client shall take place Ex Works – the Seller’s factory.

9.12 The warranty granted in accordance with this section 9 shall be considered exclusive and replaces any other form of warranty envisaged by law or business practices.

9.13 Consequently, the Seller shall not be held liable for direct or indirect damages caused to people or things deriving from the use of the supplied Products, contractually or non-contractually, with the sole exception of cases of wilful misconduct or gross negligence. Liability shall not extend to unforeseen indirect damages and in any case damages beyond the cases where the warranty can cover the Product.

9.14 Likewise, the Client shall not be entitled to suspend or delay payments for the supply of the Products, even in case of complaints, or independently implement price reductions or offsets between the amounts due by the Client for the price of the Products and sums that the latter considers due to the Client by AQUA for whatever reason.

 

10. Warranty-terms

10.1 The warranty terms may vary on the type of Product and take into account the complexity and structure of the Product. Different warranty terms may be applied to individual parts of some Products depending on the respective category. To the extent of the warranty period, the Seller warrants exclusively that the Products delivered are compliant to the ordered ones, it being understood that the Seller does not guarantee that the Products will be suitable to meet the specific needs of the Client or those of third parties, unless these needs are subject-matter of the accepted order with the complete description of the respective needs.

10.2 The warranty terms shall be effective as of the sale date of the Product of the Seller, to be considered and identified as the billing date of the goods.

10.3 Notwithstanding the provisions of section 10.1 above or other agreements between the Parties, the warranty terms generally recognised by the Seller are as follows:
− Electromechanical products: 30 months (2.5 years). These are Products that have electrical, electronic, mechanical or moving electromechanical parts. By way of example, the following Products of the Seller may be part of this category: Peristaltic pumps, electromagnetic pumps, motor driven pumps and relevant composite systems, tools and control panels, automatic mixers, meters, automatic valves, chlorinator, electric circulator pumps, etc..
− Metal structures for pools: 120 months (10 years). These are metal panel used for pool structures. The warranty refers exclusively to passing corrosion phenomena.
− Static products without electronics: 60 months (5 years). These are mainly plastic products for moulding or processing, like filters, cartridges, tanks, pool accessories, etc..

10.4 Some Products that are made-up of different components, could have parts with different warranties. By way of example, a softener will have a warranty of 30 months on the automatic valve and 60 months on the remaining parts, excluding consumables, like resins.

10.5 Some specific Products due to their particular design or use, may have different warranties than those specified in section 9 and section 10 of these GCS. In these cases, the different warranties are outlined on the respective technical and informative documents of the Products.

 

11. Force majeure

11.1 In any case, the Seller shall not be held liable towards the Client for a breach of any of the clauses of these GCS or of the sales contract in any way concluded, if the fulfilment of the obligations by the Seller is made impossible or excessively burdensome due to unforeseen causes (hereinafter, “Force Majeure Events”). Force Majeure Events shall include by way of example, but not limited to: fires, flooding, earthquakes, explosions, accidents, wars, riots, rising, sabotage, epidemics, quarantine restrictions, strikes, lack of labour, transport blockage, lack of electricity, lack of raw materials or production materials for the Products, natural events or other acts by public authorities, as well as foreign authorities.

11.2 If a Force Majeure Event hinders or delays the delivery of the Products to the Client on the part of the Seller or the fulfilment of any other obligation of the latter for a period of more than 6 (six) consecutive months, the Seller shall have the right to terminate the sales contract without any liability whatsoever towards the Client, notwithstanding the provisions of article 1463 and subsequent articles and article 1467 and subsequent articles of the Italian Civil Code.

 

12. Industrial property rights and intellectual property rights on the Products
The Seller is and shall remain the exclusive owner of all the industrial and intellectual property rights related to the planning, realisation and production of the supplied Products, including their single parts and respective documentation.

 

13. Safeguard clause
Whenever any clause of these GCS is considered invalid or ineffective, said invalidity shall not compromise the validity of the remaining clauses which shall continue to remain in full effect.

 

14. Applicable legislation
These GCS, as well as any sales contract in any way concluded between the Parties, shall be regulated and interpreted pursuant to the Italian law.

 

15. Jurisdiction and Competent Court
Any dispute regarding these GCS or the enforced sales contracts based on said conditions, unless agreed otherwise by the Parties, shall be exclusively subject to Italian jurisdiction, exclusively attributed to the court of Reggio Emilia.

 

16. Validity of the GCS
These GCS shall be effective as of 01/01/2019 and shall remain valid until approval of their expressed variations. As for orders already confirmed by AQUA, in progress or pending, the GCS in force as of the acceptance date of the order by the Seller shall apply.
***
In compliance with articles 1341 and 1342 of the Italian Civil Code, the Client signs these GCS and expressly approves its contents, in particular the following clauses: § 2.2; § 2.3; § 3.4; § 4.2, § 5.3; § 5.5; § 5.6; § 5.7; § 7.2; § 8; § 9; § 10; § 14; § 15; § 16.x

 

San Martino in Rio – 07/01/2019