Art. 1 Subject and Scope of Application – Formation of the Contract
1.1 The following General Terms and Conditions of Sale apply to all contracts or agreements (in any form and at any time concluded) for products, ancillary and/or complementary items and/or services (“Products”) sold and/or supplied by Pneumax and by all Italian companies belonging to the Group, thereby cancelling and replacing any previous conditions contained in appendices, price lists, catalogues or communications.
These General Terms and Conditions of Sale shall prevail, including by way of derogation, over any General Terms and Conditions of Purchase of the Buyer.
The reference to “Pneumax” applies to all companies belonging to the Pneumax Group.
1.2 The confirmation of the order by Pneumax, in any form carried out, entails the application of these General Terms and Conditions of Sale and thus the conclusion of the contract.
1.3 Pneumax reserves the right to accept the Customer’s order.
Art. 2 Exclusions – Prices – Offers
2.1 Unless otherwise agreed in writing, the supply does not include system design, installation of the supplied equipment, specific tests, manuals and training courses, commissioning assistance, and any other services or charges not expressly agreed.
2.2 Unless otherwise agreed in writing between the parties, where the order refers to agreed prices, or does not expressly recall any specific agreements reached between the parties, by way of derogation from these General Terms and Conditions, the prices applied by Pneumax on the day of supply shall always apply. Prices shown in the price list are exclusive of VAT. Similarly, non-standard packaging costs, taxes, duties, and all present or future fiscal charges relating to or arising from the sale shall be borne exclusively by the Customer.
2.3 Offers issued by Pneumax are to be understood as referring to a specific sale; they shall not be extended to other sales of the same products unless otherwise specified in the offer itself. Sales offers made by Pneumax shall be valid for 30 (calendar) days from their communication to the Customer and cannot be partially accepted. All offers issued by Pneumax shall automatically lapse upon expiry of the thirtieth day from their issue date.
2.4 All products not included in the price list shall be quoted separately and in writing, without prejudice in any case to the provisions of Art. 2.3 above.
2.5 Pneumax reserves the right to amend the current price list at any time, upon written notice to the Buyer, in the event of increases in raw material, labour, or any other factor determining an increase in production costs, and in any case at its sole discretion subject to adequate prior notice.
Art. 3 Technical Data, Drawings and Supply-Related Documents
3.1 Weights, dimensions, prices, performance, colours, data and illustrations resulting from catalogues, brochures, circulars or other illustrative documents, as well as sample characteristics, are indicative only and not binding for Pneumax, unless expressly specified as such in the order confirmation or in the offer.
3.2 Pneumax nevertheless reserves the right to modify at any time the construction details of its products in order to improve performance, subject to notification to the Buyer in the event of substantial changes (e.g. modifications affecting installation methods, product interchangeability characteristics, etc.).
3.3 Should the Customer propose modifications, in order for these to become binding, there must be full agreement between the parties on the impact of such changes on prices and delivery terms previously established.
3.4 The Customer expressly undertakes not to use, for purposes other than those envisaged in the supply contract, drawings, technical information and inventions relating to the supply, which remain the property of Pneumax, holder of the relevant rights, and which may not be delivered or transmitted, in whole or in part, in writing or orally, to third parties (whether natural or legal persons), nor reproduced, without Pneumax’s written consent.
Art. 4 Specific Regulations
The Customer is obliged to inform Pneumax, during the pre-contractual stage, of the existence of any requirements and/or specific regulations applicable in the country of final destination of the supplied goods. Consequently, the Customer assumes sole responsibility for verifying any discrepancies between Italian regulations and those of the destination country, with no possibility of recourse against Pneumax on any grounds or for any reason.
Art. 5 Payment Terms
5.1 Payments must be made by the Customer in accordance with the relevant instructions contained in the order or order confirmation, either at the latter’s registered office or at the bank indicated therein.
5.2 In the event of non-payment, partial payment or late payment, without prejudice to Pneumax’s further rights, including the right to suspend performance of the contract until payment is made, all outstanding amounts shall accrue default interest at the statutory rate, particularly pursuant to Art. 5 of Legislative Decree 231/2002. This shall occur automatically without the need for formal notice.
5.3 Any disputes arising between the parties shall not release the Customer from the obligation to comply with the agreed payment terms and conditions.
5.4 In any event, Pneumax reserves the right to claim compensation for further damages suffered.
5.5 Payments made to Pneumax’s agents, representatives or commercial auxiliaries shall not discharge the Customer’s payment obligations until the relevant amounts have been actually received by the rightful payee.
5.6 Unless otherwise agreed, payments shall be made in euros.
5.7 The Customer may not unilaterally offset credits against one of the companies of the Pneumax Group with debts owed to the same or another Group company, except by prior written agreement with the latter.
Art. 6 Delivery Terms and Conditions
6.1 Unless otherwise agreed, the supply of Products shall be Ex Works in accordance with the applicable Incoterms, and therefore the risks relating to the supply shall pass to the Buyer at the time of delivery, upon making the goods available to the Buyer.
Delivery terms are indicative only, are calculated in working days, and Pneumax shall not be held liable for damages resulting from early or delayed, total or partial delivery.
Partial deliveries are permitted.
6.2 Delivery terms commence from the order confirmation, unless the Customer is required to pay part or all of the agreed price by way of deposit or advance payment; in such case, the commencement of the delivery period shall be suspended until such payment is made.
6.3 In the event of force majeure, as well as strikes, lockouts, traffic disruptions, shortage of materials or other similar unforeseeable or uncontrollable events affecting Pneumax, the commencement of Pneumax’s supply obligations shall be deemed suspended, with the right for Pneumax to withdraw, in whole or in part, from the contract without any indemnity and/or compensation whatsoever in favour of the Customer. Where the impediment is temporary, Pneumax shall be entitled to postpone or advance the delivery to the extent the event affects its ability to perform.
6.4 In the event that the Customer fails to take delivery of the products due to reasons attributable to it, or in any case beyond Pneumax’s control, the Customer shall bear all risks and storage costs.
Art. 7 Shipment and Transfer of Risk
7.1 All shipments, including returns and dispatches of products following complaints of defects and warranty claims, shall travel at the expense and risk of the Customer.
Supply of products to the Customer, in standard commercial packaging, shall be “Ex Works loaded” according to the Incoterms in force at the time of order confirmation. Should special packaging be requested, the related costs shall be charged to the Customer. Choice, organisation, and management of shipment are the responsibility of the Customer.
Pneumax shall not be liable, either in whole or in part, for damages or losses to the products occurring during transport.
7.2 If shipment is delayed at the Customer’s request, the risk in the goods shall transfer to the Customer from the day on which the products were ready for dispatch. Risks of breakage, transport, theft, or fire shall be borne by the Customer from the day on which the goods were ready for delivery.
7.3 Without prejudice to the foregoing Art. 7.2, if the Customer or its designated carrier fails to take delivery of the products for reasons attributable to them, and in any case independent of Pneumax’s will, Pneumax may, after notifying the Customer, store them at the Customer’s expense.
Art. 8 Order Cancellation
Orders received by Pneumax may not be cancelled by the Customer without Pneumax’s prior written authorisation, following appropriate verification to safeguard against potential damages.
Art. 9 Retention of Title
All products sold are subject to a retention of title clause pursuant to the applicable provisions of the Italian Civil Code.
Art. 10 Warranty, Liability and Defects
10.1 Pneumax warrants its products for a period of 12 (twelve) months from the date of delivery (as defined in Art. 6) against defects arising within such term. The warranty is subject to presentation of a copy of the sales invoice showing supply date, type and all identifying elements of the product. Warranty is recognised only for proven defects in manufacturing or material. The warranty is valid provided that the product is used correctly, in accordance with best industrial and technical practice, and with the instructions contained in Pneumax’s technical documentation.
Defects due to normal wear and tear, tampering, misuse or improper use are excluded from the warranty where attributable to the Customer or third parties.
10.2 Pneumax warrants that the products supplied correspond in quality and type to those specified in the contract and in accordance with catalogue specifications.
Pneumax accepts no liability, whether partial or total, for malfunctioning of – without limitation – machinery, plants, equipment and/or systems manufactured by the Customer or third parties using Pneumax products, even if the individual products were assembled or connected according to diagrams or drawings suggested by Pneumax, unless such diagrams or drawings were separately compensated. In such case, Pneumax’s liability shall in any event be limited to the scope of said drawings or diagrams as per Art. 10.4.
10.3 Pneumax shall not be liable in any way, and the warranty shall be excluded, for damages, losses or increased costs arising from or due to the use or inability to use the product by the Customer for any reason, in cases of negligent or insufficient maintenance, inappropriate handling or storage, unauthorised and/or improvised repairs, unauthorised modifications and/or alterations, or damages caused by unforeseen or undeclared chemical, electrical, or climatic agents.
10.4 After due verification, Pneumax shall, within a reasonable period in light of the nature of the claim, at its sole discretion: either provide a replacement, remedy the defects after return of the product to its factory or other indicated location, or issue a credit note limited to the value of the individual supplied product. In the case of replacement of defective products, Pneumax may require the Customer to return the same, which shall revert to its ownership (unless already under retention of title pursuant to Art. 9), subject to Art. 7.
Products returned under warranty shall not be accepted unless previously authorised by Pneumax. Obsolete, used, or non-originally packaged products will not be accepted.
10.5 If the defects claimed by the Customer are found not attributable to Pneumax, all related technical assistance costs shall be charged to the Customer, unless otherwise expressly agreed.
10.6 The warranty herein is valid provided that claims for defects are notified in writing to Pneumax within 8 (eight) days of delivery (as per Art. 6), or within 8 (eight) days of discovery for latent defects detectable only through use; in any case, not beyond the warranty period of 12 (twelve) months indicated in Art. 10.1. Claims shall be considered only if accompanied by proof of purchase, details of the defects found, and the date of discovery, together with evidence that the goods have become unusable or substantially impaired prior to risk transfer under Art. 7.
The Customer forfeits the right to warranty if Pneumax is not allowed to carry out reasonable inspections. The Customer may not invoke termination of the contract nor demand a price reduction.
10.7 This constitutes the sole and exclusive warranty granted by Pneumax and replaces any other written or oral warranty, excluding any further claims of any nature by the Customer.
Art. 11 Express Termination Clause and Condition – Conventional Withdrawal
The supply contract shall be terminated automatically pursuant to Art. 1456 of the Italian Civil Code by simple written declaration of Pneumax, should the Customer:
a) fail or delay payment;
b) fail or delay taking delivery of purchased products within the agreed terms;
c) in case of insolvency, liquidation, or is subjected to insolvency proceedings under the Italian Corporate Crisis Code (Legislative Decree no. 14/2019 and subsequent amendments).
Art. 12 Anticipated Breach – Indirect Losses
12.1 Without prejudice to other provisions herein regarding suspension, Pneumax shall be entitled to suspend performance of its obligations where the Customer is in breach of one or more of its obligations, or where circumstances show it will be unable to fulfil them, upon written notice. All terms shall be suspended by law in favour of Pneumax, and obligations shall not be due until the Customer has remedied the breach or provided suitable security.
12.2 Unless otherwise expressly provided herein, Pneumax shall not be liable, even partially, for loss of production, loss of profit, loss of use, loss of contracts, or any other indirect loss.
Art. 13 Patents – Industrial Property
13.1 Pneumax shall retain exclusive ownership of all rights relating to trademarks, industrial inventions, know-how and any other intellectual property rights concerning the products sold.
13.2 Pneumax shall not be liable for any infringements of third-party industrial property rights resulting from the manufacture and sale of products made to the Customer’s designs, drawings, instructions and/or technical specifications, for which the Customer shall bear sole responsibility.
Art. 14 Final Provisions
14.1 Any derogation from these General Terms and Conditions of Sale must be agreed in writing between the parties; therefore, any verbal statement and/or conduct, even if repeated, not in line with these conditions, shall not affect Pneumax’s right to demand compliance and enforcement thereof at any time.
14.2 The invalidity of individual clauses shall not affect the validity of the remaining ones. In such case, the invalid clause shall be replaced by a valid one that most closely approximates the content and economic intent of the former.
14.3 Any tolerance shown towards breaches of these General Terms and Conditions shall not be construed as a waiver of the rights and/or powers connected thereto.
14.4 The contract formed under these General Terms and Conditions may not be assigned, in whole or in part, without prior written agreement between the parties.
Art. 15 Governing Law and Jurisdiction
15.1 All contracts concluded with Pneumax shall be deemed concluded in Italy and governed by Italian law.
15.2 Any dispute relating to the interpretation and/or performance of these General Terms and Conditions of Sale and/or related contracts shall fall under the exclusive jurisdiction of the Ordinary Judicial Authority of the court territorially competent for the registered office of the relevant Pneumax Group company, to the exclusion of any other forum and/or alternative or concurrent jurisdiction.
15.3 Pneumax nevertheless reserves the right to bring proceedings, on a case-by-case basis, before any other competent court.
Art. 16 Code of Ethics and Legislative Decree 231/01
Pneumax, mindful of the need to ensure ethical conduct in the performance of its activities, based on clear principles of fairness, transparency, and impartiality, has adopted, in line with its corporate policies, an Organisation, Management and Control Model in compliance with current legislation, as well as its own Code of Ethics, adopted across all companies of the Pneumax Group and available at their registered offices to any requesting party; the latter forms an integral part of these General Terms and Conditions, with Pneumax’s undertaking to full compliance.
Art. 17 Personal Data Protection
Pneumax, as the Data Controller of the data received from the Buyer under these General Terms and Conditions of Sale, informs that such data – in compliance with the obligations and requirements provided by EU Regulation 679/2016 and subsequent amendments (“GDPR”), and by Legislative Decree no. 101/2018 implementing it (“Applicable Privacy Law”) – shall be accessible only to those, within Pneumax and externally, who need them exclusively for the management of the contractual relationship in progress, and may be communicated and transferred in Italy and/or abroad, including outside the European Union, solely for the purposes specified above to:
– Group companies, subsidiaries, parent or affiliated companies;
– Individuals/legal entities supplying goods and/or services to Pneumax in the performance of its activities.
Data will be fully retained for the entire duration of the contract; thereafter, they will be stored for ten years in order to comply with legal obligations, including those set out in Art. 2214 of the Italian Civil Code. Any further retention of data or part thereof may be ordered in order to assert or defend rights in any forum, in particular judicial proceedings. Finally, pursuant to Articles 15–22 of EU Regulation 679/2016, we remind that for further information or specific requests (erasure, blocking, updating, rectification, integration of data, or objection to processing), the Data Controller may be contacted at: privacy@pneumaxspa.com
Lurano (BG), 12 April 2023
Pursuant to and for the purposes of Articles 1341 et seq. of the Italian Civil Code, the following clauses are expressly approved: Art. 5 (payment terms) – Art. 6 (delivery terms and conditions) – Art. 7 (shipment and transfer of risk) – Art. 9 (retention of title) – Art. 10 (warranty, liability and defects) – Art. 11 (express termination clause and condition – conventional withdrawal) – Art. 12 (anticipated breach – indirect losses) – Art. 13 (patents – industrial property) – Art. 15 (governing law and jurisdiction).
Lurano (BG), 12 April 2023
