1. Scope of application
These general terms and conditions (“T&C”) of ewo s.r.l. (GmbH), Etschweg 15, 39040 Kurtatsch (BZ) Italy (“ewo”), govern all master supply contracts and/or individual sales contracts concluded with the client within Italy and abroad, unless otherwise agreed in a particular case in express and written form. The application of general terms and conditions of the client or of other terms and conditions, which differ from these T&C, is expressly excluded, unless otherwise agreed in express and written form between the parties. The fulfilment of the contract by ewo cannot be deemed as acceptance of terms and conditions, which differ from these T&C.
2. Conclusion of a contract
A legally binding contract is deemed to be concluded once the offer accepted in writing by the client is received by ewo, even if sent by simple e-mail. Without prejudice to the following paragraph, any other possibility to conclude a contract is expressly excluded as well as the conclusion of a contract by appointed dealers without appropriate written power of attorney.
Should the client purchase products from ewo, which have been specifically produced for the client and/or which, compared to standard products, have been modified according to the requests received by the client (so-called “individual products” or “modified standard”), the conclusion of the contract is subject to the suspensive condition that the technical project drawings made by ewo are approved in writing by the client. In such a case, the conclusion of the contract only occurs once the confirmed project drawing along with the offer pertaining to the drawing confirmed by the client is received by ewo.
Unless otherwise specified in writing, delivery is carried out FCA Kurtatsch/Cortaccia (Incoterms 2020). In any case, delivery takes place at risk of the client, even if paid or organized by ewo. Any claim towards the carrier is assigned to the client. Place of performance of the delivery is Kurtatsch/Cortaccia.
Unless specifically and in writing accepted as binding, all dates of delivery are considered to be indicative and non-binding. The dates of delivery indicated by ewo imply that ewo itself has been timely supplied and that the client fulfils all its obligation in a timely and complete manner. Delays on ewo’s side do not entitle the client to terminate the contract for breach or to advance claims for damages or any other claims against ewo.
Ewo shall not be liable, even in case of binding delivery terms or binding terms for performance, for any delays in the delivery or the performance of the contract, except in cases of gross negligence or wilful intent of ewo. In any case, ewo shall not be liable for delays in the delivery or the performance of the contract caused by force majeure or other events, which are not attributable to ewo and which do render the delivery/performance not only temporarily significantly more onerous or impossible, in particular strikes, lock-outs or official orders. This liability exemption shall also apply if such events as mentioned in the previous sentence concern suppliers of ewo or their subsuppliers.
In case of delays of more than 60 days, the client has only the right to withdraw from the contract, without having the possibility to advance claims for damages or any other claims against ewo.
The client shall take delivery of the products on the date communicated by ewo and the client shall have no right to oppose to or refuse partial deliveries by ewo. If the delivery is not taken, ewo is entitled, after a period of eight days has lapsed, to charge the client with all related costs for the storage of the products (€ 35,00 per day and palette). Should ewo terminate the contract pursuant to art. 10 for failure by the client to take delivery, the contractual penalty pursuant to art. 10 is due and payable in addition to the aforementioned storage costs until the termination of the contract.
Alternatively, ewo shall also have the right to request the immediate payment of the agreed price, even if not yet due, should the client not take delivery of the products.
The possibility for the client to terminate the contract for excessive onerousness according to art. 1467 of the Italian Civil Code is expressly excluded.
Upon commencement of the production of the products ordered by the client and in any case the latest upon delivery of the products to the carrier or upon failure to take delivery by the client for whichever reason, the payment obligation of the client does not even lapse in cases of force majeure concerning the client.
4. Price and payments
Prices detailed are FCA Kurtatsch/Cortaccia (Incoterms 2020) unless otherwise agreed, net of VAT and net of other taxes and charges. Unless otherwise agreed in writing between the parties, the client shall make an advance payment of 50% upon conclusion of the contract pursuant to art. 2. The payment of the remaining amount shall be due once the products are ready for delivery. Payment is to be made within 30 days date of invoice, unless otherwise agreed. Ewo shall have the right, even after conclusion of the contract, to unilaterally change the payment conditions for clients which are subject to credit limits, in order to take the credit limits and their possible exceeding into account. The invoices shall be issued in accordance with the applicable provisions on electronic invoices. In the case of delayed payment, interest on arrears is charged in accordance with Article 5 of legislative decree 231/2002. Suspension of payments or offsetting of amounts, for whichever reason, shall be prohibited (solve et repete). Without any specific agreement, no discounts shall be applicable. In case of delayed payment, also with regard to partial payments or advance payments, any agreements regarding discounts shall be automatically voided and revoked. Client’s payments shall be deemed effected once the corresponding amount has been credited on ewo’s bank account.
Should the financial situation of the client worsen after the conclusion of the contract (e.g. credit rating downgrade or warnings/notifications at the so-called “Centrale Rischi”), ewo shall have the right to request immediate payment of all outstanding amounts, regardless of their due date. In such a case, extension of payments already granted or any agreed payment terms shall be deemed revoked.
5. Retention of title
The goods remain the property of ewo until they have been paid for in full.
6. Complaints and Warranty
6.1. Warranty period
ewo warrants that products with a maximum average operation of 4,200 hours per year will not have any significant faults in their materials, construction and fabrication within a period of two years from the invoice date. After the period of two years from the invoice date has lapsed, any liability/guarantee/warranty of ewo for material, construction or fabrication faults is excluded.
The warranty issued is valid only on condition that the products are used in accordance with the prescribed product and use specifications (datasheet), and that they were installed and put into operation professionally, according to the provisions outlined in the manual for overvoltage protection of LED fixtures (ewo 10 February 2017). Thresholds for temperatures, voltages, and currents must not be exceeded. The product must not be subjected to any mechanical loads not in line with its destination. The warranty encompasses only product failures caused by proven defects in materials, construction, or fabrication and failure rates that exceed the nominal failure rate. The failure of individual or several LEDs in LED modules is not covered under this warranty if the function of the entire assembly is not significantly affected and if a specific, unavoidable nominal failure rate is not exceeded. For lighting units, the nominal failure rate is 0.2%/1,000 hours of operation with reference to the specification values (datasheet). A decrease in luminous flux in LED modules is considered normal up to a level of 30% within 50,000 hours of operation and consequently is not covered under this warranty. Any loss of luminous flux as a result of pollution or incorrect maintenance of the lamps is not covered under the warranty.
6.2. Rights and obligations under the Warranty
ewo does not warrant, that the products are suitable for a specific use by the client.
The guarantee shall generally only comprise the delivery of replacement products of the same or similar quality. Claims for higher or additional damages or for loss of profit are expressly excluded and not admissible. Furthermore, claims regarding the reimbursement of any costs for the on-site replacement and de-installation of defective products and for the installation of replacement products shall be excluded and not admissible (including but not limited to the costs for fitting, removal or transportation of defective, repaired or new products, disposal, travel and mileage as well as for lifting devices, scaffolding etc.).
Instead of delivering a replacement and without prejudice to the preceding provisions, only ewo – i.e. not the client – shall be entitled to inspect and repair any defective products either at one of ewo's sites or at the client's site. This can be done either by ewo itself or through a third party commissioned by ewo. In this case, too, all costs that exceed the actual repair costs (including but not limited to the fitting, removal, disposal, lifting devices, scaffolding etc.) shall be borne by the client. If and where the client is entitled to claims under this agreement that extend beyond the mere delivery of a replacement product and are arising from any mandatorily applicable and binding legal provisions, the client shall provide advance written documentation of this to ewo, submitting written cost estimates for the replacement and the installation of replacement products on site or for any on-site repair works and providing ewo with the opportunity, in writing, to either carry out the replacement, installation or repair itself or to commission a third party to do so. In case of non-compliance with the above provisions, the client shall lose all claims regarding the reimbursement of any costs. Replacement products or repair components may contain new or recycled materials that are equivalent or superior to new products or parts in terms of performance and reliability. The functionality of all replacement products and repair components is equivalent or superior to that of the product to be replaced. Ewo warrants that all replacement products or repaired products will be free from any material and manufacturing defects for the remainder of the warranty period applicable to the product being replaced or repaired. All other matters shall be governed by the same warranty terms, conditions, scope and exclusions applicable to the original, defective product.
The guarantee shall immediately become void if modifications or repairs are carried out on the goods without prior written consent, or if the goods were improperly installed or installed by an unqualified person. As a result of technical progress as well as of use-related changes in the luminous flux and the colour point of the lighting modules, replacing products may lead to variations of the lighting characteristics (colour temperature or luminous flux) in comparison with the original products. Should any installation be planned in a critical environment - in terms of temperature, moisture or salty air – said installation must first be agreed with ewo. ewo will verify whether special processing or materials are necessary in order to guarantee the product’s longevity in such particular cases. Claims for performance under the warranty shall only be valid if the following cumulative conditions are all fulfilled and if proper evidence for such fulfilment is given, where appropriate in writing only, by the client:
1) The product was used in accordance with the prescribed product and use specifications (datasheet), and was professionally installed and operated.
2) No changes or overhauls (hardware or software) were undertaken without ewo’s written consent.
3) All works have been carried out in accordance with the assembly and operating manual, and their execution has been duly documented.
4) The ratings for temperatures, voltages and currents were not exceeded.
5) Defects were not caused by unforeseen and unforeseeable occurrences, such as fortuitous circumstances and/or force majeure, electrical discharges, lightning or excess voltage, not linked to any defect in the manufacturing process of the product;
6) The product has not been subjected to any mechanical loads not in line with its destination.
7) Installation of the product in a special environment that might impair the product’s longevity was agreed with ewo;
8) The product was fully paid for in accordance with the purchase contract.
9) The warranty claim was communicated in writing to ewo via e-mail to email@example.com within fifteen days after the alleged defect has appeared.
10) Where the lighting planning and calculation of the installation was not carried out directly by ewo, the client provides written evidence that such lighting planning and calculations done by himself or by appointed third parties were carried out in full compliance with the prescribed product and use specifications (datasheet).
6.3. Assertion of claims under the warranty
A precondition for the assertion of the warranty is the presentation of the purchase contract or of the relevant invoice. The warranty claim must be registered with ewo at firstname.lastname@example.org immediately after the alleged defect appears and in any case within the term indicated under art. 6.2. Defective products must be sent to ewo for examination. In the event that no defect is established in the course of such examinations or should be established that the warranty is not applicable, ewo has the right to claim reimbursement of the costs borne in the course of the examinations in order to determine the cause of the defect. Components or products replaced by ewo under the warranty become the property of ewo.
6.4. Extended warranty to the benefit of final clients:
For all products sold under the „ewo“ trade mark, ewo offers a five year long extended product warranty provided by ewo. The extended warranty can be activated by the final client under www.ewo.com/company/guarantee.
6.5. Limitation of liability
Without prejudice to the application of mandatory legal provisions, ewo does not assume any liability, except for the abovementioned warranty, for any direct or indirect damages suffered by the client. This exemption of liability is not applicable in cases of gross negligence or wilful intent of ewo.
7. No- assignment clause
The client shall not assign to any third party the contract and/or claims, including claims for damages, arising out of the contract without the consent of ewo.
8. Right to suspend performance
Should the client not timely and completely fulfil its payment obligations towards ewo, also with regard to partial payments or advance payments, and/or should the client not fulfil any obligations, which are necessary for the performance of the contract, in particular contractual and technical details as well as preparatory works and measures, ewo shall be entitled to suspend the performance of its own contractual obligations until any advance payments have been paid in full and/or until the client has fulfilled all of its obligations. Should ewo suspend performance in application of this clause, the client shall not be entitled to advance claims against ewo for damages or any other indemnity in relation to possible damages caused by the suspension and suffered by the client.
9. Intellectual property and copyright
The conclusion of a contract between the parties shall have no influence, unless otherwise agreed in writing, on ownership and licensing rights regarding trademarks, patents or any other intellectual property rights on the products. All intellectual property rights shall remain with ewo.
Drawings and other documents handed out to the client in the course of contract negotiations, are copyright protected in favour of ewo, remain ewo’s property and can be handed out to third parties only upon previous express and written consent by ewo. If no contract is concluded, all documents have to be immediately returned upon ewo’s request and the client shall not be entitled to retain copies of drawings and documents in any form.
10. Termination of contract for breach
Ewo shall have the right, upon the lapse of a last deadline of 10 days to be given in writing by ewo to the client in order for the client to fulfil its contractual obligations, to terminate the contract, as well as single contracts concluded on the basis of a framework agreement, pursuant to art. 1456 of the Italian Civil Code in the following cases:
a) Failure by the client, for whichever reason, to take delivery of the goods after more than 14 days have lapsed from the scheduled delivery date communicated by ewo;
b) Delay of more than 30 days concerning the payment of any amounts due by the client to ewo;
c) Commencement of bankruptcy or other insolvency proceedings against the client.
In case of termination for breach of contract committed by the client, also in application of this clause, the client shall be obliged to pay a contractual penalty to ewo amounting to 15% of the gross invoice total, without prejudice to the possibility of ewo to claim further damages.
11. Applicable law - jurisdiction
All contracts are governed by Italian law and the application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. Bolzano, Italy, is the exclusive jurisdiction for legal disputes of any kind.
12. Data protection clause
The parties shall treat personal data in compliance with EU regulation n. 679/2016 and the applicable national provisions.
Any amendment and/or integration of the contract shall only be deemed valid if made by way of a written agreement duly executed by both parties and shall otherwise be considered null and void. The parties expressly exclude that this clause may be amended tacitly or through conclusive conduct.
Should single clauses of these T&C be wholly or partially void, ineffective or inexecutable, the validity of the other clauses shall not be affected.
ewo srl - via dell'Adige 15 - IT-39040 Cortaccia (BZ) - T +39 0471 623087 - email@example.com - P.IVA IT 01603000215