Orders shall be transmitted in writing, also by telefax and e-mail and shall be firm until receipt of the relevant Order Confirmation and in no event for more than 120 (one hundred twenty) from receipt by the Seller.
(2.1) Orders are understood to be accepted by Seller only upon receipt of the Order Confirmation by Buyer. The Order Confirmation individuates the Products by identifying the model, quantity, performance, price, terms of delivery, terms and method of payment, conditions of packing, transport and marking. In case the Order Confirmation consists of a simple written acknowledgement of the Order by Seller, the parties shall refer to the Order for the above descriptions. All drawings, technical specifications or illustrations remain the property of Seller and may not be reproduced, sold or under any other title transferred to third parties without Seller’s prior written consent.
(2.2) Should the Order Confirmation contain any modifications in respect of the Order, such modifications shall be deemed tacitly accepted by Buyer after 8 (eight) days from receipt of the Order Confirmation, without Buyer having notified its disagreement in writing.
Prices shall be those stated in Seller’s prevailing pricelist as of the date of receipt of the Order or in the offer eventually transmitted by Seller before the Order. Prices may, however, be adjusted by Seller until dispatch of the relevant Order Confirmation in case of substantial variations in the cost of material and/or workmanship. Seller may further adjust the Price of the Products even after dispatch of the relevant Order Confirmation, should more than 180 (one hundred eighty) days occur between the date of the Order and the envisaged delivery date. Prices shall not include costs for packing and assembly of the Products.
(4.1) Terms of Payment will run from the Delivery date as stated in the relevant shipping Documents. Methods of Payment are those stated in the Order Confirmation. Regardless of methods of Payment agreed upon by the Parties, Payment will be deemed effected at Seller’s head office.
(4.2) In case of delay in Payment, whether total or partial, and without prejudice to Seller’s right to cancel the contract, Buyer shall be bound to pay on all outstanding amounts an interest equal to the legal rate plus 6 (six) points. Delays in Payment will automatically entitle the suspension of any Orders in progress by the Seller.
(4.3) Without prejudice to what set forth in art. 4.2 above, failure to pay at least one instalment exceeding one-eighth of the Price, will automatically determine forfeiture of Buyer’s right to pay by instalments, unless Seller prefers to cancel the contract. In both events the instalments already paid by the Buyer will be retained by the Seller as compensation, without prejudice to its right to claim for any further damages and costs (including attorney’s fees) which it may have suffered as a consequence thereof.
(4.4) In no event shall Buyer be entitled to suspend or delay Payments in case of non-collection or non-acceptance of the Products, complaints, disputes or controversies (Solve et repete).
Retention of Title
(5.1) The Products will remain property of Seller until full Payment of the Price has been received. Any costs for registration and/or transcription will be borne by Buyer. Subject to Seller’s written authorization, Buyer will have the right to transfer the property of the Products to third parties even before full Payment of the Price has taken place. In such an event Seller will automatically be subrogated in Buyer’s rights towards the third party purchaser and the proceeds of sale will be held by Buyer for and on behalf of Seller and be promptly transmitted to the latter. If requested, Buyer will also provide to formalise the transfer of the credit to Seller. It is however agreed and understood that Buyer will remain jointly and severally liable with the third party towards Seller until full and final payment (including any interest and costs) has been received by the latter. Until Products remain the property of Seller, Buyer will bear all risks for loss or damage to the Products.
(5.2) Buyer shall comply in due course with all duties and formalities required with respect to the retention of title matter by the laws of the place where the Products are located. As a partial derogation to the provision contained in art. 15.1, the above laws will govern the specific matter hereof.
(5.3) Buyer shall notify Seller within 24 hours of any action, attachment or interim measure instituted or requested by third parties on the Products. Buyer will be responsible for any cost (including attorney’s fees) or damage suffered by Seller as a consequence of such actions.
Terms Of Delivery
(6.1) Terms of Delivery are computed in working days and shall not be of the essence. Said terms run from the date of receipt of the Order Conformation by Buyer or, should the manufacture of the Products need the transmission of documentation and technical specifications by the Buyer, from the receipt of same by the Seller. It is however agreed that, in case such documentation should be received after 30 (thirty) days form the Order Confirmation, Seller shall have the right at its sole discretion, to modify the price of the Products or withdraw from the contract without any compensation or indemnity could be claim by nor due to Buyer.
(6.2) Any delay in delivery shall not entitle to the termination of the contract unless 60 (sixty) days from receipt by Buyer of the relevant notice of complaint have elapsed without delivery having taken place.
Should Seller be prevented from meeting any terms of Delivery due to delay or lack of deliveries on the part of its suppliers, interruption or suspension of transport or energy, lack or shortage of raw materials, strikes or union agitations, or any other enforceable event beyond its reasonable control, the relevant terms shall automatically be suspended from the date of communication of such impediment by Seller to Buyer. Each Party shall, however, be entitled to cancel the contract by giving written notice thereof to the other, should such impediment last for more than 6 (six) months.
(6.3) Without prejudice to what agreed on the transport costs, Delivery and the simultaneous transfer of risks will be deemed to be effected at Seller’s premises (exw Incoterms 2000).
Transport and Shipping
(7.1) Unless otherwise agreed upon by the Parties the transport costs and charges will be borne by Buyer. The date of issue of the shipping documents will be considered as the date of Delivery.
(7.2) Should transport be agreed at Seller’s expense, the latter shall designate the carrier entrusted therewith and notify Buyer accordingly. Should transport be agreed at Buyer’s expense, Seller will give prompt notice of goods ready for shipment to Buyer and the latter, in turn, shall designate the carrier entrusted therewith within the subsequent 8 (eight) days. If no such designation is made, Seller shall be entitled to designate a carrier in the name and on behalf of Buyer by giving communication of the transport terms and conditions.
(8.1) Buyer shall, within 10 (ten) days from notice of Products ready for shipment, collect the Products at Seller’s premises or, in case of sale with transport charged to the latter, accept the Delivery. Should Buyer not collect or accept the Products within the term stated above, Seller shall be entitled to charge, as compensation, the relative costs for storage and movement at the rate of 1% (one per cent) for each week or part of a week of delay.
(8.2) Seller shall be entitled to sell the un-collected or refused Products at the best possible price and shall have the right to keep the payments on account already effected by Buyer. The difference between the contractual Price – increased by any and all further costs (including but not limited to attorney’s fees), compensation set forth in art. 8.1 above and interests accrued thereon – and the price actually recovered will constitute a debt of Buyer and bear interest at the same rate set forth in case of delay of Payment. Seller shall, however, be entitled to claim for any further damages suffered as a consequence of Buyer’s unfulfilment.
Installation and Assembly
(9.1) Should the installation and assembly be agreed at Buyer’s expense, Seller will supply, if requested in writing, the technical assistance necessary to ensure adequate supervision. To this extent Buyer shall communicate in writing to Seller the envisaged date for the installation and assembly with at least 30 (thirty) days of notice period. Travel costs, board and lodging as well as daily allowance for the technicians designated by Seller to supervise the assembly, will be borne by Buyer. In no event Seller could be liable for damage caused by inexperience or negligence of the technicians and/or the team charged by Buyer with the installation and assembly. The latter shall properly insure Seller’s personnel against accidents which they may meet during the installation and assembly procedures.
(9.2) Should the installation and assembly be agreed at Seller’s expense, same shall be effective within 30 (thirty) days from the arrival at destination of the Products and in any case within 120 (one hundred twenty) days from the Delivery, whichever is the first to occur. In no event Seller shall be liable for damages deriving from defects in the assembly in case this has not been carry out by Seller.
(9.3) The following costs are in any case borne by the Buyer: (1) manual labour designated by Buyer and/or of support to Seller’s technicians; (2) loading and unloading of materials; (3) arrangement of the place and area – including but not limited to energy, safety measures, raw materials, jigs and tools – for installing and assembling the Products; (4) start-up of the Products; (5) instructions and training.
(9.4) Should the commencement and/or continuation of the operations of assembly suffered a delay for cause not attributable to Seller, Buyer will bear the relative increase in costs. The services rendered by Seller’s technicians will be calculated according to the a.n.i.m.a. tariffs valid during the installation and assembly period.
(9.5) In case of sale with trade-in, Buyer shall substain the disassembly and assembly costs including the costs of the installers to be calculated according the a.n.i.m.a. tariffs, travel, board and lodging costs as well as the costs of manual labour and the collection of the Products which is object of the trade-in.
Products have to be immediately examined by Buyer after their arrival to destination. Complaints for uncompleted or wrongful Delivery as well as for goods non corresponding to the contractual Products or defective shall, sub-poena or forfeiture, be notified within 8 (eight) days together with any receipt of the contested goods. Any hidden defects which cannot be discovered immediately after the arrival shall, sub-poena of forfeiture, be notified in writing within 8 (eight) days of discovery. Restitutions of Products shall not be accepted without any previous written authorization of Seller.
(11.1) Products are guaranteed against defects in material and workmanship, within the technical specifications and usual tolerances. Seller warrants the good performance of the Products according to the quality and productivity standard stated out in the Order Confirmation and in the technical specifications referred therein. Buyer acknowledges that obtaining such standards depend to a prominent degree on the technical capacity and ability of the operator and on the environmental conditions.
(11.2) The warranty shall be valid only towards the first purchaser and cover the repair or replacement at no cost of the defective parts, to be effected Ex-Works (Incoterms 2000) within the usual technical terms. To this extent Buyer shall send at its own cost the defective parts to Seller together with a report which contains all necessary data for the identification of the relevant batch and the delivery date, date and place of installation and assembly as well as the description of the discovered defects.
The parts eventually replaced by Seller will be covered by the Guarantee for a period equal to the residual part of the Guarantee of the Product to which they relate.
(11.3) Buyer will consider to automatically forfeit the warranty if at the time when the defect is discovered he has not fulfilled the payment obligations. Likewise, the warranty shall not apply in case of (1) normal wear and tear on the Products, (2) defects or malfunctioning caused by negligence, installation or misuse from Seller’s instructions, (3) non compliance with Seller’s Maintenance Manual, (4) improper maintenance, tampering or modification to the Products without Seller’s prior written authorization, (5) use of non-original spare-parts, (6) repair carry out by unauthorized personnel and/or workshops, (7) components and mechanical, electric and electronic parts as well as engine and any other accessory that Seller should buy from third parties.
(11.4) This warranty shall be valid for a period of 12 (twelve) months from Delivery or, in case of sale with test, from signature of the acceptance document of the final test or the issuance of the corresponding declaration rendered by the expert referred to art. 14 below and however not exceeding ……. operating hours of the Product, which is the first to occur.
(11.5) this constitutes the sole and exclusive remedy of seller and his liability could not exceed for any reason whatsoever the price of the product. no further warranty or compensation, whether by operation of law or conventional other than that set forth in this article, could be claimed by Buyer.
Sale with Test
(12.1) Should the Parties agree in writing on sale with test, the Preliminary Test of the Products will be carried out at Seller’s premises. To this extent Seller shall notify in writing Buyer with at least 30 (thirty) days notice the date of the Preliminary Test. Upon positive outcome of the Preliminary Test, the Parties will sign the relative acceptance document. Should Buyer not attend the Preliminary Test for reasons which are not the fault of Seller, the latter will autonomously carry out the Preliminary Test and, upon positive outcome, issue the acceptance document that shall be final and binding upon Buyer.
In case of dispute between the Parties concerning the outcome of the Preliminary Test, the relevant decision will be submitted to an expert appointed in accordance to art. 14 below, upon request of the more diligence Party.
(12.2) The Parties will carry out the Final Test, if so agreed in writing, within 5 (five) days of the completion of the installation and assembly. Should the installation and assembly be effected by Buyer without the supervision of Seller, the latter shall be informed in writing of the date provided for the Final Test within at least 30 (thirty) days of notice period. In case of delay in performing the Final Test not caused by Seller, the latter shall have the right to claim and obtain a penalty equal to 1% (one per cent) of the Price for each week or part of the week of delay, without prejudice to the right to claim for any further damage. Should the Final Test be negative, Seller shall provide at no cost all necessary reparations and/or replacements. Should the Final Test be positive, the Parties will promptly sign the relevant acceptance document. Should the Final Test not be carried out within the term specified above, the Preliminary Test shall be considered final and binding upon by the Parties.
Sale by means of Leasing
In case of a sale by means of leasing, terms of Delivery will run from the date of the receipt of the leasing company’s order or of the financial institution which payment is delegated. The provisions set forth in art. 12 above concerning the test procedures shall apply. Should the leasing company or the financial institution referred to above not accept and/or sign for any reason whatsoever the purchase and sale contract of the Product, the sale contract shall be automatically binding upon Buyer.
Any disputes concerning the execution and/or the outcome of the Preliminary of Final Test of the Products shall be finally settled by an expert appointed by mutual agreement within 20 (twenty) days of the request of the more diligent Party. Should the Parties not reach an agreement on the appointment of the expert within the term referred to above, the latter shall be designated by the President of the Court of Pordenone – Italy, at request of the more diligence Party. The costs for the technical arbitration (including counsel’s and attorney’s fees) shall be borne by the unprevailing Party and the decision or declaration to this extent rendered shall be binding upon the Parties, that undertake to fully and immediately execute and comply with it.
Applicable Law And Competent Jurisdiction
(15.1) Save for what set forth in art. 5.2 above, all sales subject to these Conditions will be governed by Italian law, with the express exclusion of the Wien Convention on contracts for the international sales of good.
(15.2) Without prejudice to what set forth hereinafter, any controversies which may arise between the Parties because of or in connection with the sales governed by these Conditions will be submitted to the exclusive jurisdiction and sole venue of the competent Court of Pordenone, Italy. The above notwithstanding, Seller shall have the right to apply, at its sole discretion, the competent Court of the place where the Buyer is located.
Seller will have the right to adopt at any time, even after dispatch of the Order Confirmation, the variations or/and modifications necessary or expedient to guarantee the good-working or the adaptation of the Products to newly introduced regulation, without Buyer being entitled to claim or raise any complaint therefor. In such an event the Price and the Delivery terms will be adjusted in accordance with Seller’s provisions.
Unless derogated by the Special Conditions contained in the Purchase Order or in the Order Confirmation, these General Conditions shall govern the sale of the Products and supersede any and every different provisions printed on the forms utilized by the Parties.
Catalogues and Brochures
Any dispatch of catalogues and brochures shall not constitute nor be deemed an offer and/or an express or implied guarantee whatever and therefore they may be modified or replaced at any time without any notice being due. Measure, weights, drawings and any other data contained in the catalogues will be for information purposes only.
Failure by Seller to enforce at any time any of the provisions hereof shall not be construed as a general waiver to such provision or of the right of Seller to enforce each and every provision herein.
20. Seller’s Manuals
The Instruction and Maintenance Manual of the Products constitutes an integral and essential part of these Conditions.
All notices to be given hereunder, sub poena of forfeiture, shall be made by registered mail, return receipt requested, e-mail, telex or telefax message to the address and/or number to this extent notified by each party to the other.