Art.1) CONTRACT
1.1. (Formation of the contract)
The buyer’s acceptance of the vendor’s offer or order confirmation, even when it takes
place with the simple execution of the contract by concluding behavior, entails the
application of these general conditions to the contract. These general terms and
conditions may only be deviated from in writing by the parties, and even then, these
general terms and conditions shall continue to apply to the parts not deviated from. Any
general terms and conditions of the buyer shall not apply, even partially, unless they are
expressly accepted in writing by the seller. If the sales agreement is assigned to a third
party, including any leasing companies, the Buyer shall inform the Seller that these general
terms and conditions shall continue to apply in their entirety. However, should the Buyer
assign the sales agreement for any reason whatsoever, it shall continue to be liable to the
Seller for the commitments made under these General Terms and Conditions of Sale. Any
changes to the contract, proposed by the buyer, shall only entail an amendment to the
contract if accepted in writing by the seller.
Article 2) PRICES AND CONDITIONS OF PAYMENT
2.1. (Terms and conditions of payment)
The price of the supplies, and any other sum due to the seller for any reason whatsoever,
shall be deemed net at the seller’s domicile. The buyer is obliged to make payments
exactly on the agreed due dates. Failure to comply with the terms and conditions of
payment releases the seller from any obligation to deliver, even with regard to supplies
other than and in addition to those to which said failure relates, and gives the seller the
right to collect the entire sum due in advance, unless he prefers to terminate the contract,
retaining as a penalty, and without prejudice to any greater damages, the sums paid by the
buyer up to that time.
2.2. (Payments in case of non-performance by the seller)
The buyer may not rely on any non-performance by the seller if it is not in payment; any
non-performance by the seller does not entitle the buyer to suspend or delay payments.
The buyer may, however, rely on the seller’s default if it has previously deposited with a
primary credit institution a sum that for the entire period of the dispute remains at least
equal to the sum of a) the price instalments already due and b) the default interest on the
same calculated according to the rate provided for under D. D. 231/2002 and provided that
the same bank has also irrevocably undertaken towards the seller to pay directly to the
latter the sums deposited with it, to the extent that they are declared due to the seller by an
enforceable judicial or arbitral decision. In the event of non-performance of the obligations
provided for in this article, the Purchaser, without prejudice to default interest, shall pay the
Seller a penalty, which, without prejudice to greater damages, is hereby agreed to be an
additional sum equal to the interest specified in these general conditions, applied to any
sum still due to the Seller, for the entire period of the dispute.
2.3. (Late payment)
Delays in payments with respect to the established dates shall entail the automatic
charging of interest, without the need for any request, at the rate of the default rate
pursuant to Legislative Decree no. 231/2002 until the overdue payments are regularized.
Article 3) PROPERTY
3.1. (Transfer of Ownership)
The goods shall pass into the ownership upon delivery to the purchaser.
3.2. (Retention of title)
In the event of deferred payment, the delivered goods remain the property of the seller until
full payment of the price. The buyer undertakes to do whatever is necessary to make the
retention of title effective, to the fullest extent possible, in favor of the seller; the buyer also
undertakes to cooperate with the seller in any measures necessary to protect the seller’s
title. The seller is authorized to carry out, at the buyer’s expense, any formalities necessary
to make the reservation of title enforceable against any third party.
3.3. (Prohibition of acts of disposition)
The purchaser may not resell, assign or pledge the purchased goods without having first
paid the price in full to the seller, who must be notified immediately, by registered letter, of
any enforcement proceedings that, at the request of third parties, have affected the said
goods.
3.4. (Effects of breach of obligations under this article)
In the event of any breach of the Purchaser’s obligations under this article, the Seller will
be entitled to terminate the contract with immediate effect, retaining as a penalty the sums
already paid by the Purchaser and without prejudice to the right to sue for damages.
Article 4) DELIVERY
4.1. (Incoterms)
All references to commercial terms (Ex Works, FOB, CIF, and others) contained in order
confirmations or in these general terms and conditions are understood to refer to the
INCOTERMS of the International Chamber of Commerce, in the text in force at the time the
contract is concluded, with the additions or derogations provided for in these general
terms and conditions as well as those that may be indicated in writing between the parties
in the order confirmation.
4.2 (Return of goods)
Unless otherwise expressly stipulated in the order confirmation, the delivery of the goods
shall be deemed to be Ex Works: this also applies when it is agreed that the dispatch or
part of the dispatch is carried out by the seller. If the contract is unclear as to the deadline
for the return of the goods, or if the deadline is omitted, reference shall be made to the
INCOTERMS that is closest to the agreed delivery terms, and if there is uncertainty
between two or more INCOTERMS that are equally compatible with the contract, the one
that entails a lower extension of risks and costs for the seller shall apply, with any
exceptions provided for in writing by the parties.
4.3. (Passing of risks)
Risks pass to the buyer in accordance with the INCOTERMS. Under no circumstances shall
the seller be liable for loss of or damage to the goods after the passing of risk. The buyer
shall in no case be released from its obligation to pay the price if the loss of or damage to
the goods occurs after the passing of risk.
4.4. (Extensions of the delivery period)
The delivery date, even if indicated in the order confirmation, is automatically extended by
a period equal to the buyer’s delay in fulfilling one of the following obligations a) payment
of any portion of the price that may be due from the buyer by way of down payment; b)
opening by the buyer of any agreed documentary credit; c) when the buyer, or another
person designated by the buyer, has to communicate processing instructions, technical
data or other instructions for the preparation of the delivery, the delivery period shall be
automatically extended by a period equal to the delay in making the communication; d) In
the event of changes to the delivery agreed between the parties after the date of sending
of the order confirmation by the seller, the delivery period shall be automatically extended
by the period reasonably required to make such changes.
4.5. (Buyer’s obligation to take delivery of the goods)
The buyer is always obliged to take delivery of the goods, even in the case of partial
deliveries and even if the goods are delivered before or after the agreed delivery date. If the
buyer fails to take delivery of the goods in good time, for reasons not attributable to the
seller, the buyer shall bear all costs arising therefrom and any sum due to the seller for any
reason whatsoever shall become immediately due and payable. The seller may also: a)
store the goods at the buyer’s risk and expense; or b) dispatch the goods, in the name and
on behalf of and at the expense of the buyer, to the buyer’s premises. In addition, the Buyer
shall pay the Seller a penalty of 0.5% of the value of the goods for each week of delay from
the day scheduled for delivery, without prejudice to further damages.
4.6. (Impediments beyond the control of the parties)
The delivery term shall be automatically extended by a period equal to that of the duration
of the impediment, upon the occurrence of causes beyond the control of the Seller and the
Purchaser, such as strikes of any kind, fires, floods, lack of motive power, lack or scarcity
of raw materials, breakdowns and accidents at the Seller’s production plants, delays in the
granting of authorizations by the Authorities, and other impediments beyond the control of
the parties that temporarily make delivery impossible or excessively onerous. Having
become aware of the impediment, the seller will, within a reasonable time, inform the
buyer of the existence of the impediment and, where this is not already implied in the type
of impediment, its probable effects on the obligation to deliver. Similarly, the seller will
notify the buyer of the termination of the impediment. In no event shall either the Buyer or
the Seller be entitled to claim compensation or indemnity of any kind on account of the
occurrence of the circumstances provided for in this article.
article 5) TESTING TESTS
5.1. (Object and modalities of acceptance tests at the seller’s premises)
Any testing at the vendor’s premises will concern the verification of the conformity of the
machine, according to art. 6 of the present general conditions, and will take place
according to the modalities eventually established by the parties; failing this, the testing
will take place according to the modalities usually adopted by the vendor. Acceptance
shall take place at the Seller’s works, unless the Seller prefers to designate another place.
The date of the inspection will be communicated to the Purchaser with sufficient notice to
enable the Purchaser’s personnel to be present. The Purchaser may attend the acceptance
at its own expense. Acceptance shall be deemed to have been successfully carried out: a)
if the Purchaser attends the acceptance test, in the absence of a written objection in the
acceptance report of any lack of conformity of the machine, during or immediately after
the conclusion of the acceptance test, or b) if the Purchaser declares that it does not wish
to attend the acceptance test, or in any event does not attend it, if any lack of conformity
of the machine is not apparent from the acceptance report drawn up by the Seller. If the
acceptance test fails, the seller will remedy the lack of conformity resulting from the test
report. If the modifications introduced to bring the machine into conformity are
considerable, the acceptance test may be repeated, if the seller agrees, and shall be held in
the same manner and with the same consequences as the first one. The delivery period
shall be extended by a period equal to the period required to make the changes, or, in the
event of a second acceptance, by a period equal to the period between the first and the
second acceptance. The purpose of the second inspection, if any, shall only be to verify
the specific conformity defect of the machine as indicated in the report of the first
inspection; the Purchaser shall not, in any case, have the right to contest the existence of
defects exceeding the scope of the inspection, which has just been indicated. Any tests or
inspections after the second test shall be subject to the same rules as those set forth
above, but with the more restricted object resulting from the report of the previous test.
5.2. (Commissioning and acceptance at the buyer’s premises)
If expressly agreed in writing between the parties, the machine shall be put into operation
at the buyer’s premises. The commissioning at the Buyer’s premises shall involve a)
checking that any lack of conformity of the machine resulting from the report of the last
acceptance at the Seller’s premises has been remedied; b) checking that the machine has
been assembled or installed as agreed, if this has been carried out by the Seller. The
commissioning/testing of the machine shall be considered to have been successfully
carried out in the event of no specific written objection, in the commissioning/testing
report, of any conformity defects of the machine or defects in the execution of the
assembly or installation, during or immediately after the conclusion of the commissioning;
the Buyer shall in any case not have the right to object to the existence of defects other
than those that are the subject of the checks indicated in letters a) and b) above. Unless
otherwise agreed between the parties, the Buyer shall organize the commissioning/testing
in such a way that it takes place no later than 30 days from the date of arrival of the
machine at the place of destination: otherwise, on that date, the commissioning shall be
deemed to have been successfully completed. Where assembly or installation of the
machine is to be carried out by the seller, commissioning/testing of the machine shall be
carried out upon completion of such assembly or installation. If the Buyer does not permit
the commissioning/testing of the machine, or if such commissioning is not carried out
within 30 days after the assembly or installation has been completed (either because of
delay on the part of the Buyer in arranging the commissioning/testing in good time, or
because the Seller considers that the necessary connections and other preparations for
the commissioning have not been made, or for any other reason not attributable to gross
default on the part of the Seller), the acceptance tests shall be deemed to have been
carried out successfully. In any event, the Purchaser shall in good time prepare everything
else that is necessary or useful for the proper performance of the commissioning/testing
on the agreed date. All expenses necessary for the commissioning/testing at the
Purchaser’s premises shall be borne by the Purchaser, except for those necessary for the
participation of the Seller’s technicians in the same.
5.3. (Effects of acceptance tests and commissioning)
The purchaser shall forfeit all rights, warranties, actions and exceptions relating to
conformity defects and defects of the machine that could diligently have been detected by
the acceptance tests or by the commissioning of the machine, unless the conformity
defects of the machine or the defects have been specifically contested in writing in the
commissioning/testing report.
Art. 6) WARRANTY
6.1. (Conformity of machinery)
Within the terms of this article, the seller undertakes to deliver machines that conform to
the agreement and are free from defects that make them unsuitable for the use for which
machines of the same type are normally used.
6.2. (Limitation of warranty)
The Vendor shall not be liable for conformity defects of the machine and for defects
arising, even indirectly, from drawings, designs, information, software, documentation,
instructions, materials, semi-finished products, components, other material goods and
anything else supplied, indicated or requested by the Purchaser or by third parties acting,
in whatever capacity, on the latter’s behalf; the Vendor shall also not be liable for
conformity defects and faults in materials, software, semi-finished products, components
and any other product incorporated or not incorporated in the machine, supplied, indicated
or requested by the Purchaser or by third parties acting, in whatever capacity, on the
latter’s behalf. The Vendor shall also not be liable for conformity defects of the machine
and for defects due to normal wear and tear of those parts that, by their nature, are subject
to rapid and continuous wear and tear. For accessories and in general for products not
manufactured by the seller, the guarantee shall be that applied by his suppliers. The
guarantee also does not cover cosmetic defects that do not affect the proper functioning
of the machine. The vendor shall likewise not be liable for conformity defects of the
machines and for defects caused by failure to comply with the rules set out in the
instruction manual and in any case by improper use or handling of the machine. Nor shall
he be liable for conformity defects and faults that depend on the buyer’s incorrect use of
the machine or on the buyer having carried out modifications or repairs without the seller’s
prior written consent. In the case of machines shipped disassembled, which must be
assembled by the seller, any warranty shall be deemed forfeited if assembly at the buyer’s
premises is not carried out directly by the seller or at least under the supervision of his
specialized personnel. Under no circumstances shall the seller be liable for conformity
defects and faults that have their cause in a fact subsequent to the transfer of risk to the
buyer.
6.3. (Duration of the Guarantee)
This guarantee shall last from the date of delivery for 12 months for mechanical parts, 6
months for electrical/electronic parts. For parts not manufactured by the vendor, in each
case the guarantee shall be the same as that given to the vendor by the supplier of the
parts. The guarantee for replaced or repaired parts expires on the same day as the expiry
of the machine guarantee.
6.4. (Notification of conformity defects)
Without prejudice to the provisions of art. 5 above, the purchaser shall, under penalty of
forfeiture, report the lack of conformity or the defect in the machine to the seller,
specifying its nature in detail in writing, within 15 days after he has discovered it or could
have discovered it by careful examination and testing of the machine. In no case may the
complaint of the lack of conformity or the defect be validly made after the expiry date of
the guaranteed terms stated in art. 6.3. above or of those otherwise agreed between the
parties. The purchaser shall also forfeit the guarantee if he does not allow any reasonable
inspection that the seller requires or if, having made a request for the return of the
defective part at his own expense, the purchaser fails to return such part within a short
period of time from the request.
6.5. (Repairs or replacements)
Following a regular complaint by the Purchaser, made pursuant to and within the terms of
art. 6.4. above, the Vendor shall perform the warranty obligation by repairing and replacing
defective or flawed parts by drawing up a special intervention report to be signed by the
Purchaser. In order to perform the warranty obligation, the Vendor may, at its choice: a)
carry out the repairs and/or replacements, or have them carried out by third parties, with
travel, board and lodging expenses to be borne by the Vendee; b) have the repairs and/or
replacements carried out by the Vendee, providing him with the relevant instructions and, if
necessary, supplying the spare parts free of charge, ex Vendor’s works, or reimbursing
him.
6.6. (Limitation of the seller’s liability)
Except in the event of gross negligence or willful misconduct on the part of the seller, any
compensation for any damage to the buyer shall in any case not exceed the portion of the
value of the machine relating to the defective part. The warranty referred to in this article
shall absorb and replace the warranties or liabilities provided for by law and shall exclude
any other liability of the Vendor in any case arising from the goods supplied; in particular,
the Purchaser shall not be entitled to make any other claims for damages, price reductions
or termination of the contract. Once the warranty period has expired, no claims may be
asserted against the seller.
Art. 7) FINAL RULES
7.1. (Termination of contract and penalties)
In view of the nature of the contract, the characteristics of the machines and systems sold,
which are customized according to the characteristics requested by the purchaser, a
penalty is agreed in favor of the seller in the amount of 40% of the price agreed in the sales
contract to be charged as partial compensation for damages suffered, should the
purchaser unilaterally terminate the contract. Any delay in the payment of such penalty
shall give rise to default interest in accordance with the provisions of Legislative Decree
231/2002, without prejudice to the seller’s right to act for compensation for any further
damages it may suffer as a result of such termination and/or default. Furthermore, the
vendor reserves the right to terminate this contract at any time if any of the following
conditions occur: a) in the event of non-payment or delayed payment of the sale price for
more than 30 days; b) in the event of tampering with the machines; d) in the event of
unauthorized transfer of the contract; e) in the event of bankruptcy of the purchaser or
submission to other insolvency proceedings; f) in the event of a significant change in the
purchaser’s economic conditions and solvency; g) in the event of substantial changes in
the purchaser’s corporate structure (e.g. transfer of the company or its transfer of
business or its transfer of control); h) in the event of a change in the purchaser’s corporate
structure (e.g. transfer of the company or its transfer of control). (g) in the event of
substantial changes in the buyer’s corporate structure (e.g., transfer of the company or a
branch thereof, demerger, spin-off from the reference group, change of shareholders, etc.).
In such cases, termination shall take place following written notice to be sent by registered
letter with return receipt or by pec, and the seller, in addition to returning the machine
supplied and without prejudice to the right to claim further damages, may retain the sums
received by way of down payment.
7.2. (Invalid clauses)
If a clause is partially invalid, this shall not invalidate the entire clause, and the invalidity of
individual clauses shall not invalidate the entire contract.
7.3. (Assignment of contract)
The contract may not be assigned by one party without the written consent of the other
party.
Article 8) SETTLEMENT OF DISPUTES
8.1. (Place of jurisdiction and applicable law)
All disputes that may arise in relation to the conclusion, interpretation, execution and/or
termination of the contract shall be subject to a preliminary attempt at mediation before
the Mediation Service of the Chamber of Commerce of Modena.
In the event of a negative outcome of the mediation procedure, the Court of Modena shall
have exclusive jurisdiction to settle disputes.
Anything not provided for in these general conditions of sale shall be governed by Italian
law, which shall be the only applicable law.
The purchaser expressly declares that he knows and accepts the clauses of the General
Terms and Conditions of Sale and specifically approves those set out in the articles 2.1.
(Terms and conditions of payment), 2.2. (Payments in the event of non-performance by
the seller), 2.3. (Late payment), 4.3. (Passing of risk), 4.4. (Extensions of the delivery
period), 4.6. (Obligation of the buyer to take delivery of the goods), 5.1. (Commissioning
at the Buyer’s premises), 5.3. (Effects of acceptance tests and commissioning), 6.2.
(Limitations of warranty), 6.4. (Complaint of lack of conformity), 6.6. (Place of
jurisdiction and applicable law).
