General Terms and Conditions of Sale
Unless otherwise stated the words used in these general terms and conditions of sale shall be interpreted in accordance with the following definitions:
- Seller/Comes: COMES S.r.l., with registered office in Bareggio (20008 – MI) Via Don S. Fracassi n. 25/27 (Italy);
- Product: goods produced and sold by Comes in Italy and abroad;
- Customer: the buyer of the Product or who issued the Order;
- Contractors/Parts: the Seller and the Customer;
- Order: the document by which the Customer declares to the Seller that he wants to buy the Product;
- Contract: any agreement between the Parties, signed by the Seller and the Customer, concerning the sale of the Product, or any Seller’s offer accepted by the Customer and any Order accepted by the Seller;
- General Conditions: these terms and conditions of sale.
General Conditions applicability
These General Conditions constitute an integral and substantial part of any commercial offer issued by Comes and of all Contracts concluded between the Seller and the Customer concerning the sale of the Product.
Unless otherwise agreed in writing between the Parties, any Order issued by the Customer shall entail the exclusive, full and unconditional acceptance of these General Conditions.
Accordingly, all Contracts between Seller and Customer are governed by these General Conditions, which prevail over the Customer’s general terms and conditions of purchase and over all the special terms and conditions contained in any Customer’s document.
Any special conditions agreed in derogation from the General Conditions shall be valid and effective only if approved in writing by both Parties.
Orders and offers
No commercial offer may bind the Seller beyond the terms of validity specified therein or, failing that, beyond the period of thirty (30) days from the date of the offer.
No purchase Order will be binding on the Seller unless expressly accepted in writing by Comes within 15 days of its receipt. The Order confirmation shall be deemed to be accepted by the Customer unless the Seller receives a different Customer’s proposals within the deadline of five (5) days.
The terms of delivery established by the Contract cannot be considered essential and may be subject to changes for reasons not attributable to the Seller.
The Seller reserves the right to make partial and/or advanced deliveries, giving prior information to the Customer; in such events the Customer shall be bound to accept the delivery and to pay the price on the agreed dates, unless the Seller authorizes partial payments in proportion to the value of the delivered Products.
The Seller shall not be liable for any direct and indirect damage arising from the inability to perform the delivery, partial deliveries or delays in deliveries due to causes attributable to third parties; in such cases, any Customer’s right to claim compensation or to withdraw, in whole or in part, from the Contract is excluded.
The Seller reserves the right to suspend the delivery of the Products in case of default of the Customer and in particular in case of late payments.
Unless otherwise agreed in writing between the Parties, the Products shall be sold with delivery ex works (EXW Incoterms 2010). In the event that a different delivery term is agreed, the Customer shall bear the costs of shipping and insurance of the travelling goods, as well as all the risks related to or in any case connected with the carriage.
If the Customer does not collect the Products within seven (7) days from the agreed delivery date, the Seller reserves the right to charge an amount equal to three percent (3%) of the value of the Products not collected for each day of delay, as liquidated damages and without prejudice to compensation for any major damage. In any case, the Customer will be bound to pay the price of the Products not collected, according to the contractual terms.
At the time of delivery the Customer has the duty to check the quantity and integrity of the packages.
The Product shall be tested by the Customer at the time of receipt and any defects shall be reported to the Seller within fifteen (15) days from the delivery date.
Returns of Products can only be accepted if previously authorized by the Seller, who will inform the Customer of the relevant RMA number (Return of Material Authorization).
Products returned shall be delivered to Comes premises in Bareggio (Italy) at the Customer’s care and expense, within eight (8) days from the date of communication of the RMA number, accompanied by the return document, which must include the RMA number, the DDT delivery number, the quantity and description of the returned Products.
In the absence of prior issue of the RMA number and/or if the return document is incomplete, the Seller reserves the right to reject the returned Products, which will be returned to the Customer at his risks and expenses.
In any case, returns of Products used, tampered with or damaged will not be accepted.
The Seller reserves the right to change at any time and without notice the prices of the Products shown in the price lists. Unless otherwise agreed in writing between the Parties, the Products are sold at the prices indicated in the official price list applicable at the beginning of the Contract. These prices refer to Products delivered ex-works, excluding packing, insurance and transport costs, as well as taxes, duties, customs charges and any other costs or expenses related to the sale.
The Products price must be paid in accordance with the terms and conditions defined in the Contract. Unless otherwise agreed in writing between the Parties, all payments shall be made within thirty (30) days from the issue of the relevant invoice or within the different deadline specified therein.
Any claims shall be made in writing and shall be delivered to the Seller within fifteen (15) days from the issue of the invoice.
No compensation or extensions shall be allowed for any reason or under any title.
In any case, payments shall not be delayed, suspended or partially executed, even in the event of claims or disputes.
In case of late payment, the Customer shall pay to the Seller the default interest in the amount provided by Italian Legislative Decree no. 231/02 concerning late payments in commercial transactions, from the date of expiry of each invoice up to the actual balance of the price.
Failure to pay invoices will result in the suspension of deliveries and the Seller’s right to demand immediate payment of all sums already invoiced, without prejudice to the Seller’s right to take action for credits recovery and compensation for damages.
Failure to pay invoices within the agreed Contract terms shall also constitute a serious breach of contract; in such a case the Seller will be entitled to terminate the Contract pursuant to article 1456 of Italian Civil Code.
Retention of title
Comes will remain the sole owner of the Products sold to the Customer until the date of full payment of its price, thus reserving the right to demand the return of the Products, even in case of bankruptcy.
The Customer shall therefore be bound to keep and maintain the Products in such a way as to preserve the Seller’s rights, in good faith, pending full payment of the relevant price, refraining from any act or conduct which may in any way prejudice the Seller’s rights.
The Customer will also be obliged to make immediately recognizable the Products subject to retention of ownership and to inform immediately Comes in case of any enforcement proceedings initiated by third parties against the Customer that may involve the Products.
Changes in the Customer’s financial conditions
Pursuant to article 1461 of Italian Civil Code the seller shall have the right to suspend the performance of its obligations under the Contract if the Customer’s financial conditions become such as to place in obvious danger the payment of invoices, unless the Customer provides an appropriate guarantee in the forms and terms to be determined by the Seller.
The Seller guarantees that the Products are free from defects or lack of conformity for the warranty period of one year from the delivery date to the Customer.
The warranty is excluded in case of failures due to force majeure, accidental event, improper or inappropriate use and/or storage of the Products, negligence, malpractice or other causes attributable to the Customer or to third parties.
The effectiveness of the warranty is conditional on proper use and regular maintenance of the Products to be performed by qualified technical personnel previously authorized by Comes.
The Seller does not guarantee the compatibility or interoperability of the Products with Client’s or third parties equipment, unless otherwise agreed in writing between the Contractors.
The Customer must ensure that in all circumstances the Products are always used according to the technical conditions and the purpose for which they are designed, avoiding electrical or mechanical strain not compatible with the Product technical specifications.
The warranty shall only include the replacement or repair of the Products recognized as defective by the Seller, because they are faulty or do not comply with the technical specifications.
The Seller shall not be liable for indirect or consequential damages arising from or in any way related to defects or lack of conformity of the Products.
The Product replaced or repaired will be covered by warranty until the expiration of the original warranty period, to be calculated from the date of the first delivery to the Customer.
Any defects of the Products or lack of conformity shall be reported by the Customer to the Seller within eight (8) days of delivery. In case of hidden defects, the complaint must be made within eight (8) days from the discovery of the defect, within the terms of guarantee.
The complaint of defects must be formalized by written communication to the Seller, which must contain the detailed description of the defect. The Seller undertakes to promptly carry out the necessary checks in order to assess the complaint soundness.
In the event that the complaint is well founded, the Seller undertakes to carry out what is deemed necessary to remove the defect, informing the Customer of the time required for the repair. Should the complaint prove to be groundless, the Seller will be entitled to reimbursement of the expenses incurred for the management of the complaint, for the related technical verifications and for the repair operation not covered by warranty.
In any case, the Customer shall not be able to claim any warranty rights if the price of the Products has not been paid in full according to the terms and conditions contractually agreed.
The Seller shall not be liable for any damage for delay resulting from the time necessary to carry out repairs or replacement of the Products.
Comes remains the exclusive owner of all intellectual property rights relating to the Products and the technical documentation provided, both during the negotiation and during the contract performance.
Unless expressly authorized in writing by Comes, the Customer is allowed to use the technical documents relating to the Products exclusively for the purposes of the Contract.
The Customer shall not copy, reproduce, disclose or communicate to third parties the technical documentation of the Products unless previously authorized in writing by Comes.
The technical information published on the website, shown in the price lists and commercial documents are not binding unless expressly confirmed in writing by the Seller, since they are subject to change and update without notice.
Comes reserves the right to introduce changes to the Products, both in design and in manufacturing phases, to the extent such modifications are made necessary by technical progress.
Products developed according to Customer’s specification
All the Products that have been developed or modified by Comes in accordance with technical specifications supplied by or agreed with the Customer, will be subject to factory testing in accordance with the test specifications approved by the Customer.
The Parties agree that the aforementioned test specifications will be the only suitable reference for assessing the operation and the conformity of the Product in case of complaints or disputes for any defects or lack of conformity.
The Seller shall not be liable in the event that the Product does not meet the purpose for which it was designed or is not compatible with the Client’s or third-party equipment or systems.
Law and jurisdiction
The Contract is governed by Italian law. Any dispute arising from or otherwise connected with the interpretation, performance and/or termination of the Contract shall be exclusively and finally settled by the Court of Milan (Italy).