General terms and conditions of sale
General conditions of sale of the Tomasetto.com website
1. Purposes and objectives
These terms and conditions of sale (“Terms and Conditions“) apply to all contracts of sale or supply (“Contract“) of products, accessories, and related parts (“Products“) manufactured and/or marketed by Tomasetto Achille S.p.A. (“Tomasetto“); for the purposes of this document, the term “Goods” refers, both individually and collectively, to the Products, Accessories, and Parts. In the relationship between Tomasetto and the Customer (“Parties“), the application of any other terms and conditions of the Customer is excluded, even if referred to by the Customer itself by referencing its own terms and conditions of purchase. In the event of any conflict, the special conditions approved in writing by the Parties will prevail.
2. Features of the goods, modifications.
Any information regarding the characteristics and/or technical specifications of the Goods, contained in brochures, catalogs, or other similar documents, is to be considered indicative and non-binding. Tomasetto may make any modifications to the Goods or to the related packaging – without altering their essential characteristics – that it considers necessary or appropriate, without obligation to notice the Customer
The Customer is responsible for any further modifications, supplements, services or costs requested by the Customer, which are not expressly provided for in the order confirmation sent by Tomasetto (“Confirmation”).
3. Offers, Orders, formation of the Contract.
Tomasetto’s offers (“Offers“) are not binding and do not constitute a commitment for Tomasetto. The purchase order (“Order”) will only be considered valid by Tomasetto if made in writing and received by Tomasetto, also by email or any other procedure authorised by Tomasetto. By sending the Order, the Customer makes an irrevocable proposal, as governed below. Tomasetto may expressly accept the proposal by sending the Confirmation, within 10 days from receipt of the Order; If Tomasetto will not confirm within 10 days the Order, it has to be considered rejected. Amendments to the Confirmation requested by the Customer could be accepted or deny at Tomasetto’s discretion. In any case, if the Parties have agreed on an advance payment, all obligations of Tomasetto are postponed until the date on which such advance payment is received. Tomasetto may also suspend the delivery of Goods in case of missed or non-regular payment of previous supplies.
4. Prices
The prices of the Products will be those indicated in the Tomasetto Price List in effect, or, in the case where the Product is not listed or the price list is unavailable, those indicated in the Contract. When not differently agreed, prices will be calculated ex-works, without VAT and discounts.
5. Payment dates and terms.
The payment terms are those indicated in the proforma invoice and the invoice. Without prejudice to any other contractual or legal remedy, Tomasetto may suspend the fulfilment of its obligations immediately, without any obligation to give notice, in the event of late payment or non-payment of only a single instalment of the agreed price for any reason or on any grounds whatsoever. In the event of termination of the Contract due to breach by the Customer, Tomasetto will retain any sums already paid by the Customer by way of indemnity, without prejudice to compensation for further losses Tomasetto will have the right to suspend the fulfilment of the obligations according to article 1461 Italian civil code, in case the patrimonial and financial conditions of the Customer change in such a way to put in serious danger the possibility of the Payment, without proper warranty.
6. Forfeiture of the right to deferred payments.
Failure to pay or late payment, even if partial, of a single installment or advance on the agreed due date will result, without the need for prior notice and even outside the cases provided for by Article 1186 of the Italian Civil Code, in the forfeiture of the Customer’s right to deferred payments and any discounts applied.
7. Express termination clause
In Tomasetto’s interest, if the delay or non-payment, even partial, of the amount due exceeds 15 days, the Contract will be considered automatically terminated by law; in such case, the termination will be automatically recognized if Tomasetto declares in writing to the Customer its intention to exercise this termination clause.
8. Delivery terms.
Unless otherwise agreed in the special conditions approved in writing by the Parties, the delivery terms indicated in the Contract are purely indicative for Tomasetto and are not essential under Article 1457 of the Italian Civil Code, nor do they include any transport, installation, or assembly services. Delivery shall take place by the date indicated on the Order as accepted in the Confirmation. If the Contract provides for the payment of an advance, Tomasetto can delay the delivery until payment has been made and may schedule a new date. The Goods are deemed to be delivered with the goods-ready notification. Otherwise, delivery takes place at the time agreed for collection by the Customer, or on the basis of the carrier’s waybill.
When not differently agreed, the Goods always travel at the Customer’s risk and peril (EXW – Incoterms 2020). The transport of the Goods takes place at the Customer’s care and expense. If expressly requested by the Customer and accepted by Tomasetto, Tomasetto shall be responsible for the transport of the Goods, with the costs and expenses paid by the Customer.
The packaging and pallets used for the delivery of the goods shall be deemed definitively transferred together with the goods. Their related value is included in the price of the goods.
No obligation of return is provided for, unless otherwise agreed in writing between the Parties. 182.
9. Liability for delays.
Tomasetto is exempt from any liability for delays caused by force majeure, unforeseen events, strikes, difficulties in sourcing materials, suspension of work imposed by a public authority, changes to the project agreed upon or requested by the Customer, or delays by the carrier. The occurrence of the above events shall not entitle the Customer to demand compensation for any damages or indemnities of any kind, except in the case of fraud or gross negligence by Tomasetto.
10. Warranty for defects
Unless otherwise agreed in writing between Tomasetto and the Customer, with the exclusion and waiver by the Customer of any other warranty, including legal warranties, Tomasetto’s warranty on the Goods is governed as follows. Goods are guaranteed for 24 months from the date of production marked on the Products (“Production Date”); in any case, the warranty shall not be less than 12 months from the date on which Tomasetto invoices the Customer for the Goods. The warranty for defects is only operative for the individual Products which are defective, and not for the entire batch of purchased Products. In the event that the warranty on the sold Goods is effective, Tomasetto may at its discretion decide whether to repair or alternatively replace the defective Goods, with the exclusion of all compensation for damages. In any case, the warranty for defects is only operative on condition that the terms of payment have been respected.
11. Limitations of use and disclaimer of liability.
The warranty does not cover any defects or damage caused during transport, nor defects or damage caused by the Customer, including as a result of negligent use or tampering with the Goods due to repairs, replacement of individual components, lack of technical expertise, or any other circumstance not attributable to Tomasetto. The Goods are intended only for the uses expressly indicated by Tomasetto, in accordance with Tomasetto’s instructions related to functioning, maintaining and storing of the Products. Customer must follow all the prescriptions indicated in the manuals of the Products. Any use or destination that is non-conforming or differs from the use for which the product was designed and produced may be dangerous, may cause personal injury and is thus prohibited. In any event, Tomasetto declines all liability for any unauthorized uses of the Goods or any uses which appear to be dangerous, even based solely on common sense. If the Customer uses or resells the Goods for other purposes, it does so at its own exclusive risk and peril and bears all the resulting responsibilities.
Without affecting the mandatory provisions of law, Tomasetto’s contractual and/or tortious liability is hereby excluded for any direct or indirect damages suffered by any person including third parties as a consequence of the above provisions of this article, or in the case of poor maintenance, improper use or failure to observe safety regulations and in other cases. In the latter cases the Customer shall indemnify Tomasetto in respect of any costs and/or liability that may derive as a result of the events mentioned in this section. The warranty will not cover defects caused by the concept of the system or product in which the Products are incorporated. Tomasetto guarantees the conformity of the Products to European laws and regulations: any other conformity is given if not specifically requested by the customer and agreed in writing.
12. Limitation of liability.
Notwithstanding the above, Tomasetto’s liability for all claims and warranties (including, for the avoidance of doubt: indemnities or liabilities, breach of clauses, damages, losses, etc.) will in any case be limited to the purchase price of the specific supply of Goods to which the claims or warranties relate.
13. Terms, conditions, and procedure for complaints.
Any complaint regarding incomplete or damaged Goods must, under penalty of forfeiture, be sent to Tomasetto at the time of unloading the Goods (evident defects). Any shortfalls in quantity relating to the Accessories shall not constitute a breach of contract by Tomasetto pursuant to article 1460 Italian civil code. Any claims relating to defects that cannot be identified through diligent checking at the time of unloading (hidden defects) must be reported in writing to Tomasetto, on penalty of forfeiture, within 8 days after discovery. The defective Products shall be sent to Tomasetto free of charge, not tampered or uncompleted, accompanied by a document indicating the defect and date of installation. Tomasetto can take the transport expenses only if the claimed defects are present and Tomasetto is responsible for them. In any case, it is excluded regress right against Tomasetto as foreseen by article 131, first paragraph Italian law D.Lgs 206/05. 206/05. Customer shall take care at his expenses and responsibility of all custom, fiscal and administrative obligations necessary for the introduction of the Products in final destination place.
14. Retention of title – prohibition of disposal.
The sale is made with retention of title in favor of Tomasetto until the full and timely fulfillment of all contractual obligations by the Customer, who shall not transfer the sold Goods to third parties nor allow third parties to use them until that time, assuming the risk related to the Goods from the moment of delivery. The Parties ‘expressly agree that the Goods and materials may not be considered to be incorporated into an immovable asset or annexes to an immovable asset before full payment, and therefore they may be claimed and/or removed by Tomasetto at any time, wherever they may be located, also in derogation of articles 935 and 937 Italian civil code. In the event of termination of the Contract due to breach by the Customer, Tomasetto will retain any sums already paid by the Customer by way of indemnity, without prejudice to compensation for further losses
15. Intellectual property.
The Customer acknowledges that the products, patents, technical drawings, models, know-how, customizations, and certifications related to the Products, as well as the trademarks, trade names, or other distinguishing marks applied to the Goods, are the exclusive property of Tomasetto and cannot be altered, modified, removed, or erased in any way. With the purchase of the Products, customer do not acquire any right on trademarks and/or patents used by Tomasetto for manufacturing and trading of the Products. The Customer may use Tomasetto’s trademark only for descriptive purposes of the Products and in accordance with the modalities indicated by Tomasetto. It is understood that this license of use is temporary and can therefore be revoked at any time at Tomasetto’s discretion.
16. Processing of personal data.
The Customer confirms having received the complete information on data protection, as required by Article 13 of the GDPR, and gives their consent to the processing of data and its communication within the limits, for the purposes, and for the duration specified in the privacy notice, and in any case for the proper execution of the contractual obligations between the Parties.
17. Applicable law, jurisdiction, and exclusive forum.
any dispute between the Parties relating to the Contract will be governed by Italian law. The court of Vicenza (Italy) shall have sole jurisdiction and the Parties hereby waive their recourse to any other court. Tomasetto may take action in the courts within the jurisdiction of the Customer’s domicile.
18. International law
These terms and conditions are subject to the laws of the Italian Republic, excluding provisions related to conflict of laws. The application of the Vienna Convention on the International Sale of goods is excluded.
The Customer accepts these Terms and Conditions and specifically approves the following clauses: (1) Aims and purpose; (3) Offers, orders, formation of Contract and suspensory condition; (5) dates and terms of payment; (6) forfeiture of deferred payment terms; (7) express termination clause; (8) delivery terms; (9) responsibility for delays; (10) warranty for defects; (11) limitations on use and exclusion of liability; (12) limitations on liability; (13) terms, conditions and procedure for complaints; (14) Reservation of title – prohibition on disposal; (17) Governing law, jurisdiction and exclusive; (18) international law.