Terms of sale
ART. 1 - SCOPE
1.1 - These General Conditions govern all current and future sales agreements with the Seller in relation to its Products, except for any waivers specifically agreed in writing, and apply to agreements with Parties based in Italy as well as to agreements with Parties based in other countries. All references to terms of delivery are understood as referring to INCOTERMS ed. 2020 of the International Chamber of Commerce.
1.2 - These General Conditions nullify and replace any other clauses and/or General Conditions of Sale attached to or otherwise indicated in the orders and/or in other documentation received from the Buyer, unless expressly accepted in writing by the Seller. Even when accepted in writing by the Seller, however, unless expressly waived in writing by the Parties, said clauses/conditions must be coordinated with these General Conditions which, due to their compatibility, will still remain effective between the Parties.
ART: 2 - FORMATION OF THE SALES CONTRACT
2.1 - The Buyer's acceptance of the Seller's offer or of the order confirmation, however it occurs, entails the application of these General Conditions to the sales contract, even when the acceptance takes place through the simple execution of the agreement. The Seller's offer is considered fixed and irrevocable only if it is qualified as such by the Seller in writing and includes the specification of a term of validity. Despite the Seller's silence, a Buyer response is considered a counter-proposal when it contains additions or modifications, even if they do not substantially alter the terms of the offer. None of the offers made by the Seller's agents, representatives and/or sales assistants will be binding for the Seller until confirmed by the Seller.
ART. 3 - SAMPLES, DRAWINGS AND TECHNICAL DOCUMENTS - SUBCONTRACTING - CONFIDENTIALITY
3.1 - The weights, dimensions, thicknesses, capacities, prices, renderings, colours and other data appearing in the catalogues, prospectuses, advertisements, illustrations, price lists or other Seller documents, as well as the characteristics of samples and models the Seller sends to the Buyer, are approximate indications and, therefore, have no binding value unless expressly mentioned as such in the offer or in the Seller's order confirmation.
3.2 - Any drawing, document, technical information or software required for the manufacture or assembly of the Seller’s Products or product parts that are given to the Buyer, whether before or after entering the agreement, remain the exclusive property of the Seller. The aforesaid drawings, documents, technical information or software may not be used by the Buyer for non-contractual purposes or copied, reproduced, transmitted or disclosed to third parties without the prior written consent of the Seller. In particular, the Buyer may neither assign to third parties nor directly engage in the creation of Products which are partial or total reproductions of the Products or which otherwise utilise the Seller’s intellectual property rights, know-how or technology.
3.3 - The Buyer’s drawings, documents, technical information or software that are sent to the Seller, before or after the signing of the agreement, remain the exclusive property of the Buyer and shall not be used by the Seller or copied, reproduced, transmitted or disclosed to third parties without the written consent of the Buyer, insofar that they: a) are covered by a patent or other industrial or intellectual property right of the Buyer; or b) are of a secret nature, i.e. do not refer to information made public by the Buyer or otherwise known to the community of operators in the sector, and are not trivial; provided, however, that the Buyer has expressly communicated to the Seller, in writing, its intention to reserve its exclusive right to use them.
3.4 - The Seller reserves the right, under its own responsibility, to subcontract some of the Products commissioned by the Buyer.
3.5 - The Buyer undertakes not to disclose to third parties - or to use for non-contractual purposes, even after the termination of any relationship with the Seller - any commercial or company secrets, or any confidential Seller information which the Buyer becomes aware of during its contractual relationships with the Seller.
ART. 4 - DELIVERY OF THE PRODUCTS
4.1 - Unless otherwise agreed, the delivery of the Products takes place ex works (Incoterms 2020), even when the Parties have agreed that the shipment and/or assembly will be carried out by the Seller: in such cases, the Seller shall act as an agent of the Buyer, it being understood that the delivery is at Buyer’s expense and risk.
4.2 - The risks are transferred to the Buyer in accordance with the applicable INCOTERMS. The Seller is not liable for any loss or damage to the Products that takes place after the transfer of risks, and the Buyer will still be required to pay the agreed price.
4.3 - The Seller will do its best to comply with the delivery terms indicated in the offer or in the order confirmation. Said delivery terms, however, unless otherwise agreed by the Parties in writing, cannot be considered essential.
4.4 - Where the Parties have agreed on the Seller’s payment of a penalty due to late delivery of the Products, the Buyer may not demand, by way of compensation for damages caused by the delay, the payment of any sums other than those agreed as a penalty.
4.5 - The delivery terms are understood to be extended by a period equal to the duration of the impediment, should the Buyer fail to provide the information or materials necessary for timely delivery, request changes while delivery is in progress or fail to respond in a timely manner to requests for approval of drawings or execution diagrams.
4.6 - The Buyer is still required to take delivery of the Products even in the event of partial deliveries or deliveries that are earlier or later than the date agreed by the Parties. Under no circumstances shall the Seller be held responsible for direct and/or indirect damages resulting from early or late delivery of the Products. In the event the Buyer does not take delivery of the Products for reasons not attributable to the Seller or due to force majeure, the Buyer shall bear all expenses and any amounts due to the Seller, for whatever reason, shall become immediately payable.
In such cases, the Seller may:
a) store the Products at the Buyer's risk, peril and expense;
b) ship the Products to the Buyer’s headquarters in the name, behalf and at the expense of the Buyer;
c) sell the Products on behalf of the Buyer by any means, withholding from the proceeds the entire amount due as well as the expenses incurred. This is without prejudice to further damages.
ART. 5 - WARRANTY
5.1 - The Seller guarantees that the supplied Products comply in terms of quantity, quality and type, in addition to the technical specifications detailed expressly in the agreement, with the exclusion of any guarantee regarding the specific use that the Buyer, or its sub-purchaser, uses the purchased product for, and that the products are free from any defects which could make them unsuitable for their intended use.
5.2 - The warranty for defects is limited to Product faults resulting from material or manufacturing flaws attributable to the Seller and does not apply if:
a) the Buyer does not prove that it used, maintained, stocked and stored the Products properly;
b) the Buyer has made modifications to or repaired the Products without the prior written consent of the Seller;
c) the Products were assembled or used incorrectly;
d) ) the defects in the Products are due to the normal wear of parts which, by their nature, are subject to rapid and continuous wear;
e) the lack of conformity is caused by an event subsequent to the transfer of risks to the Buyer.
5.3 - The warranty has a duration of 12 (twelve) months, starting from the date of delivery of the Products to the Buyer, and is subject to the correct, timely reporting of defects and non-conformities by the Buyer, in accordance with the provisions of the following paragraph, accompanied by an express written request for the Seller to carry out a warranty intervention. The warranty for replaced or repaired Products starts from the day of said replacement or repair. The warranty for replaced or repaired Product components begins on the day of said replacement or repair and, in any event, applies only to the repaired or replaced component.
5.4 - The Buyer must report Product defects or lack of conformity in writing, including a detailed explanation of the alleged defects and non-conformities, the date of delivery and the quantity of defective Products. The report must be submitted, under penalty of forfeiture, no more than 15 days after the date of delivery (for obvious defects) or after the date of discovery (for hidden defects, faults or non-conformities), provided that the warranty has not expired.
5.5 - The Buyer forfeits the right to the warranty if it refuses reasonable inspections requested by the Seller or if - should the Seller request that the defective Product be returned, at its own expense - the Buyer fails to return the defective Product within 15 days of the request.
5.6 - In the event that the report submitted by the Buyer turns out to be unfounded, the Buyer must compensate the Seller for all expenses incurred for the assessment. If the Buyer's report is made in accordance with the provisions of this article and proves to be founded, the Seller will - at its exclusive and discretionary choice and within a reasonable amount of time (commensurate with the magnitude of the dispute) - repair or replace the defective or non-compliant Products, free of charge and EXW- Seller's headquarters, by carrying out the aforementioned operations at its own facilities. The return of the Products is to be paid for by the Buyer. Where the Parties agree on the option of carrying out the repair or replacement operations directly on the Buyer's premises or elsewhere, the related expenses - including travel, room and board for the Seller's personnel - shall be borne by the Buyer, who shall also provide all necessary means and auxiliary personnel for carrying out the intervention in the fastest and safest manner.
5.7 - Once the warranty has expired, no claims may be made against the Seller.
ART. 6 - LIMITATION OF LIABILITY OF THE SELLER
6.1 - Except in the event of wilful misconduct or gross negligence by the Seller, compensation for damages to the Buyer shall not exceed the invoice value of the defective Product. The warranty described in the previous Article includes and replaces the legal guarantees for defects and conformity and excludes any other Seller liability, however originating from the supplied Products. The Buyer, therefore, will not be able to make other demands for damage compensation, price reduction or termination of the contract.
6.2 - The Seller's liability is limited to the limits set out in the previous Article and relates only to the Products supplied by the Seller. The Seller, therefore, assumes no responsibility for any malfunctioning of systems or machines created by the Buyer or by third parties using the Products supplied by the Seller, even if assembled or connected according to diagrams or drawings recommended by the Seller, unless such diagrams and drawings were subject to separate remuneration, in which case the Seller's liability will still be limited to what is included in the diagrams or drawings in question.
6.3 - Under no circumstances shall the Seller be held liable for indirect or consequential damages, production losses or lost profits
ART. 7 - TECHNICAL STANDARDS AND CIVIL LIABILITY
7.1 - The Seller guarantees the performance of the Products it manufactures only and exclusively in relation to the uses, designations, applications, tolerances and capacities expressly indicated by the Seller, and the Buyer, therefore, is not authorised to utilise them in any other way. If the Buyer intends to resell the Products, it shall bear the duty and responsibility to inform its buyers of the indications referred to in the previous paragraph.
7.2 - Compensation for any personal injury or property damage caused by defects in the supplied Products and directly attributable to the Seller is limited to the maximum amount indicated in Seller’s civil liability policy and is subject to the terms and conditions of application for said policy.
ART. 8 - PRICES - PAYMENTS
8.1 - Prices, in Euros, are always understood to be Ex Works and, unless otherwise specified in the offer or order confirmation, do not include: packing costs, taxes, duties or any other additional charges. Likewise, unless the Parties have agreed otherwise, the price does not include: any design and/or installation of the supplied Products, testing, manuals and training courses, start-up assistance and any services and charges not mentioned in the offer or order confirmation.
8.2 - Payments, and any other amounts due to the Seller for any reason, are understood to be net at the Seller's headquarters and must be made in accordance with the agreed methods. In the event of late payment, the Buyer will be required to pay default interest, with no need for notice of default.
8.3 - Any payment delays will also give the Seller the right to exclude, for the entire period of the delay, the guarantee referred to in Art. 5 above. The Buyer is required to pay the full price even in the event of a claim or dispute. The offsetting of amounts owed to the Seller against credits, whatever their origin, is not permitted.
ART. 9 - RETENTION OF OWNERSHIP;
9.1 - If some or all of the payment is to be made after delivery, then the delivered Products remain the property of the Seller until full payment of the price, to the extent permitted by the laws of the country where the products are located. The Buyer undertakes to do what is necessary to establish a valid retention of title in the broadest form permitted in the aforementioned country, or to set up a similar form of guarantee in favour of the Seller.
ART. 10 - WITHDRAWAL FROM THE SALES CONTRACT – SUSPENSION
10.1 - In the event of a significant change in the Buyer's financial standing and solvency and/or any delay or irregularity in payment by the Buyer, even if related to a different supply, the Seller reserves the right to withdraw from the sales agreement and cancel some or all of the Buyer's order.
10.2 - At any time and without incurring any liability, the Seller may suspend performance of the contract for up to 3 (three) months by giving written notice to the Buyer at least 30 (thirty) working days in advance. Within 3 (three) months of the related notice of suspension, the Seller must notify the Buyer of the resumption of contract performance by giving at least 30 (thirty) working days’ written notice. If the Seller does not request the continuation of the contract within the established term of 3 (three) months, the Buyer will have the right to terminate the contract immediately by giving timely written notice to the Seller.
ART. 11 - FORCE MAJEURE
11.1 - Ove la produzione e/o la consegna dei Prodotti da parte del Venditore sia resa impossibile, eccessivamente onerosa o ritardata a causa di un Evento di Forza Maggiore come definito dal successivo Art. 11.2, il Venditore potrà, a propria scelta: (i) sospendere le consegne dei Prodotti fintantoché non sia cessato l’Evento di Forza Maggiore; (ii) consegnare una quantità minore di Prodotti, qualora i Prodotti presenti nel proprio magazzino siano insufficienti e vengano destinati in proporzione a soddisfare altri clienti del Venditore; (iii) recedere dal contratto, dandone tempestiva notifica per iscritto al Compratore. A seguito del recesso, il Venditore completerà l’esecuzione della consegna dei Prodotti acquistati dal Compratore per la parte non inficiata dall’Evento di Forza Maggiore, restando inteso che il Compratore non avanzerà qualsivoglia ulteriore pretesa nei confronti del Venditore, derivante direttamente o indirettamente dall’anticipato scioglimento del rapporto contrattuale.
Ove l’impedimento dovuto all’Evento di Forza Maggiore persista per un periodo superiore a 90 (novanta) giorni, ciascuna parte avrà diritto di recedere dal relativo contratto, senza che sorga in capo ad essa alcun diritto nei confronti dell’altra parte al risarcimento di danni.
Ove ricorrano Eventi di Forza Maggiore, il Venditore non risponderà in alcun caso di eventuali danni derivanti per il Compratore dal ritardo nella consegna dei Prodotti.
11.2 - "Force Majeure Event" means any event beyond the Seller's control that affects production or Product delivery capacity, including, for example: strikes, failed or delayed delivery (even partial) of raw materials by the Seller's suppliers, partial or total breakdowns of the machinery and/or systems used for the production of the Products, fires, floods, riots, decisions by the authorities, regulatory changes, epidemics, pandemics or other health emergencies.
ART. 12 - APPLICABLE LAW - DISPUTES
12.1 - Any matters not addressed in these General Conditions are governed by Italian law. The Court of the Seller has sole jurisdiction for any disputes relating to or otherwise connected to the contracts to which these General Conditions apply. However, the Seller will still have the right to be heard before the court of the Buyer's registered office.
Pursuant to and for the purposes of Articles 1341 and 1342 of the Italian Civil Code, the following articles are expressly approved: Art. 4.6 – Buyer's obligation to take delivery of the Products – Seller's limitation of liability in the event of delayed or early delivery of the Products; Art. 5.5 – Forfeiture of the warranty right; Art. 6 – Limitation of liability of the Seller; Art. 7.2 - Civil Liability; Art. 8.3 - Exclusion of guarantee for late payment - Obligation to pay disputed sums - Prohibition of Offsetting; Art. 10 – Withdrawal from the sales contract – Suspension; Art. 12 – Applicable law – Disputes.