General trading Terms and Conditions of company FAKT S.r.l.
1. General / Scope of application
The company FAKT S.r.l. provides technical services in the transport and motor vehicle fields, particularly in form of tests, measurements and expert opinions, supplies technical services for testing and approval of vehicle systems and components, certifies or verifies quality management systems, carries out product-testing activities of all kinds, supplies consultancy in the field of technic and license related prescriptions, generates appraisals, develops test procedures, test benches and test software, supplies services of all kinds as engineering, testing and design and carries out vehicle checks.
For the acceptance and execution of all purchase orders shall be considered valid - unless otherwise expressly agreed upon in writing - the present General trading Terms and Conditions (GT&Cs) of company FAKT S.r.l., with the exclusion of any other business conditions of the customer, even if those have not expressly been rejected.
For specific services separate agreements can be stipulated.
Any collateral agreements, commitments or other statements of members of our staff are binding only, if they are expressly confirmed by FAKT S.r.l., either in writing or by E-Mail. This applies also to any amendments of this provision.
2. Implementation of orders
Kind and scope of FAKT S.r.l. services are determined by orders and order confirmations, same in which form the order has been issued resp. confirmed. Terms, due dates and quotations are based on available information of the customer and estimations of FAKT S.r.l..
The estimated costs are to be considered as approximate values only, unless otherwise confirmed in writing as fix and binding. Also quotations confirmed as fix and binding are overrode by subsequent modification of their bases, independently if caused by unpredictable circumstances or events or by modification of the order scope requested by the customer.
If any modification or extension arises with respect to the specified scope of the order during its proper implementation, such shall be agreed upon additionally, either in writing or by E-Mail, and shall be separately remunerated.
The purchase orders accepted by FAKT S.r.l. are carried out or appraisals are prepared in accordance with the general recognised state-of-the-art technology and, unless otherwise agreed upon in writing, handled based following our usual processes.
FAKT S.r.l. provides its services, as far as reasonable and adequate to the scope, according to the standards indicated by the customer and/or regulations so as the relevant compulsory or other applicable provisions.
In case of services, which should be carried out outside of the facilities of FAKT S.r.l., the customer shall supply the required auxiliary materials. Relevant regulatory provisions (for example regarding environmental protection, occupational health and safety) shall be observed.
If the services are carried out at FAKT S.r.l., test objects including required material and equipment, shall be supplied at the sole expense and risk of the customer.
Right and liabilities from this contract shall be transferred to a third party only by mutual agreement of the other contracting party. Nevertheless FAKT S.r.l. reserves the right to use for the agreed service further qualified companies or persons. The customer is informed, that in case of request, data, informations and reports are supplied to the designation or accreditation body and those have the right to attend to tests and inspections. Placing the purchase order, the customer agrees to these conditions without any restrictions.
3. Warranty and liability
The defects liability and warranty of FAKT S.r.l. cover only those services that have been expressly ordered to FAKT S.r.l.. A defects liability for the properness and correct operation of the relevant tested device or the overall system, to which the inspected or tested device belongs, is not guaranteed. Particularly FAKT S.r.l. is not liable for the design, operation, material selection and construction of such tested or inspected devices.
Possible warranty claims, of whatever kind, are limited to free of charge re-examination, rectification or completion. Liability claims against FAKT S.r.l. are limited in any case to the liability for gross negligence of FAKT S.r.l..
If such reworking measures fail twice, the customer is entitled, at its discretion, to request a reduction of the remuneration or a rescission of the contract.
The defects liability period is one year after passing of risk, i.e. from delivery of the test results or products to the customer.
FAKT S.r.l. shall only be held liable for the suitability of the services for the purposes of the customer if FAKT S.r.l.'s service is, for the responsibility of FAKT S.r.l., imperfect or if FAKT S.r.l. has provided an according warranty.
A liability for consequential harm caused by neglect of duty or regarding a warranty of construction or quality is excluded, unless FAKT S.r.l. has acted intentionally or with gross negligence.
If FAKT S.r.l. is held liable according to its General trading Terms and Conditions - particularly when taking into account the subsequent provisions of section 4. - FAKT S.r.l.'s liability shall be limited for each order to a maximum amount of EUR 50.000 for property damages and up to an amount of EUR 50.000 for financial damages.
The liability limitations shall also apply to possible liability for the members of our staff or other vicarious agents involved by FAKT S.r.l..
4. Additional liability; force majeure; missed deadlines
Except in case of intention, gross negligence and bodily injury or liability, any additional claims of the customer for direct and indirect damages - indifferent of their legal foundation - shall be excluded, if they exceed the warranty and liability assumed by FAKT S.r.l. in respect of these General trading Terms and Conditions.
This shall also apply with respect to FAKT S.r.l.'s liability for the members of our staff or other vicarious agents involved by FAKT S.r.l..
This provision shall particularly apply to the materials supplied by the customer for the implementation of the order.
For any damages arising from force majeure FAKT S.r.l. shall not be liable.
Force majeure shall include any unforeseeable event that cannot be averted by exercising due care, such as power failures, fire, explosions, earthquake or the like that affect the proper operation at FAKT S.r.l..
If the dates specified in FAKT S.r.l. quotations respectively in specific order confirmations for the completion of the services to be provided by the company are not met within an acceptable tolerance, FAKT S.r.l. shall only be liable under the provisions of these General Terms and Conditions if the responsibility for such failure to meet the dates can be attributed to FAKT S.r.l. only.
FAKT S.r.l. shall particularly not be held liable if the dates are not met when the scope of service requested originally by the customer in accordance with these General Terms and Conditions has been amended or supplemented.
Notwithstanding the above provisions, the customer shall be obliged to obtain standard insurance cover for direct or indirect damage.
5. Remuneration and terms of payment
The remuneration of services of FAKT S.r.l. shall be calculated based on the information provided in the quotation respectively on those of our specific order confirmation. Until the order has finally been placed, the prices specified in the quotation shall not be binding. In case that no specific written quotation respectively order confirmation of FAKT S.r.l. is available, the prices indicated in the price list, valid at time of application, shall apply.
FAKT S.r.l. shall be entitled to request reasonable advance payments for the services to be provided by FAKT S.r.l and/or to issue partial invoices for the services already provided. Partial invoices shall not need to be expressly designated as such. If an invoice is received, this shall not mean that the order has finally been invoiced.
The amounts invoiced by FAKT S.r.l. shall become payable without deductions within 14 days from the date of issue, if not otherwise specified in the quotation respectively in our specific order confirmation. The customer shall be deemed in default of payment upon receipt of a written reminder or at latest 14 days following the due date indicated on the invoice. During such default, FAKT S.r.l. shall be entitled towards the customer to interests to the amount of 8% above the applicable annually base rate for the outstanding invoiced amount.
Remunerations shall be subject to the value added tax (VAT) at the applicable statutory rate. The amount of value added tax shall be shown separately on the invoice.
6. Abnormal termination of the order
If the order is terminated before the services entrusted to FAKT S.r.l. have fully been provided – e.g. due to the customer giving notice or based on a mutual agreement to rescind – FAKT S.r.l. shall be entitled to charge a remuneration for the services provided up to such point of time; the amount of remuneration for the provided services shall be calculated based on the ratio between the services actually provided and those not provided. For example, if FAKT S.r.l. has provided 60% of the entrusted services by the date of termination of the order, FAKT S.r.l. shall be entitled to 60% of the total agreed remuneration.
FAKT S.r.l. shall also be entitled to charge a remuneration for the services not yet provided by the date of termination. Such remuneration shall correspond to the ratio between the value of the services not provided and the total agreed remuneration less any incurred expenditure; the saved expenditures shall be deemed to amount to a lump sum of 30%.
7. Confidentiality, copyright, data protection
FAKT S.r.l. shall be entitled to file copies of any written documents that have been submitted for perusal which are important for the performance of the order.
If any expert opinions, test results, calculations or the like are prepared in relation with the implementation of the order, FAKT S.r.l. shall grant the customer a simple non-exclusive and non-transferable licence to use such, provided that this is necessary in accordance with the purpose specified in the contract. No other rights shall be included in such licence.
The customer shall also be entitled to use the expert opinions, test results, calculations or the like prepared by FAKT S.r.l. outside its company in business. The customer may only use the "FAKT" name or brand, if full use of the expert opinions, test results, calculations, etc. prepared by FAKT S.r.l. is made.
Texts intended to be published (media communications, advertising texts, packaging texts, manuals of instructions, etc…) referring to a FAKT S.r.l. document shall be submitted in full to FAKT S.r.l. including all related illustrations and enclosures before publication.
Each reference to a FAKT S.r.l. test report or relevant document shall include kind, scope, number and date of test.
If the customer modifies, edits or only uses excerpts of the expert opinions, test results, calculations, etc. prepared by FAKT S.r.l., the use of FAKT name or brand is not allowed.
Violations of the provisions set out at 7.1 to 7.2 are punished through legal and/or other measures.
FAKT S.r.l. shall not unauthorized disclose and/or exploit any business and trade information of the customer for purposes, other than the implementation of the order, that becomes known to FAKT S.r.l. when executing the requested activities. The customer is aware, that FAKT S.r.l. shall supply, on request, data, information and reports to designation or accreditation bodies of FAKT S.r.l. and that those have the right to participate during testing and inspection activities. Placing the order the customer fully agrees to that, without any restrictions.
FAKT S.r.l. shall exclusively process and use personal data for company own purposes. In doing so, FAKT S.r.l. uses data processing systems. FAKT S.r.l. has taken technical and organizational precautions that ensure adequate safety of the data stocks and data processing procedures. The employees engaged in data processing are bound and disclosed, according to the provision of the Data Protection Law, to strictly comply with any and all provisions on data protection.
8. Conformity statements in test reports or test protocols
When the customer requests a statement of conformity to a specification or standard or a test method (that means: pass/fail, in-tolerance/out-of-tolerance, in compliance/not in compliance), FAKT S.r.l. shall apply as the standard decision rule the “Simple Acceptance Criteria” together with indirect accounting measurement uncertainty. Simple acceptance is also called “shared risk” because the probability to be outside the tolerance limit may be as high as 50% in the case when a measurement result is exactly on the tolerance limit (assuming a symmetric normal distribution of the measurements). Under such rule, the test laboratory and customer of the measurement result agree, implicitly or explicitly, to accept as conforming (and reject otherwise) a test result whose property has a measured value in the tolerance interval.
Statements of conformity are therefore reported as:
Pass - the measured value is below the acceptance limit, with acceptance limit = tolerance limit
Fail - the measured value is above the acceptance limit, with acceptance limit = tolerance limit
In order to keep the chances of incorrect decisions to levels acceptable, an upper limit for measurement uncertainty Umax is deemed to be agreed upon the customer. These values are published by FAKT on his Internet website and will be stated, in case of accredited test methods, as well in the test reports concerned.
There are test scenarios with no uncertainty in the outcome. Instead the outcome is influenced by the conditions under which the test is performed, and these are subject to measurement uncertainty. In these cases, well-characterised test methods are used and sources of uncertainty are minimised by (a) use of measuring instruments with maximum permissible errors within specified limits, (b) environmental influences, such as temperature and relative humidity, maintained within specified limits, (c) well-documented control of laboratory procedures, and (d) well-documented competency of measurement personnel.
By placing the purchase order, the customer agrees to this condition without any restrictions.
This does not apply, if other decision rules are requested specifically by the customer, by the specification or standard or test method.
9. Final provisions
These General Terms and Conditions shall be exclusively governed by the laws of Italy, expressly excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
The place of jurisdiction for the assertion of claims by both parties shall be Brescia.
The place of performance for any obligations under these General Terms and Conditions shall be Rezzato, the domicile of FAKT S.r.l..
Rezzato, December 2021
Ed.0 - Rev. 4