These General Terms and Conditions of Sale govern all contracts for the sale of machinery and/or spare parts stipulated between Colli FGB S.R.L. (the “Supplier”) and the Buyer and, where not waived by special conditions contained in the Confirmation (hereinafter referred to as the “Order Confirmation”), shall prevail over any non-conforming clause affixed by the Buyer in its general terms and conditions of purchase, invoices or correspondence.
OFFERS – ORDERS
1. Offers are intended as binding – for a period of 30 days (60 days for deliveries abroad) from the date of dispatch. The data shown in the catalogues and in other illustrative material are merely indicative.
2. Any changes to the contract must be in writing.
3. The Buyer may not assign the contract to third parties without the Supplier’s prior written consent.
4. The prices and special conditions of sale additionally provided for in the Order Confirmation, or as an exception to the General Terms and Conditions, do not bind the Supplier for other supplies. Corrections made by the Buyer to the text of the General Terms and Conditions and/or any special sales conditions contained in the Order Confirmation shall bear no effect
5. In any case, the Supplier has the right to make changes to the machines at any time that do not compromise the fundamental technical and functional characteristics, without the Buyer being able to raise disputes or claims in this regard.
6. In the event that the Buyer is found to be in precarious economic and/or financial conditions after concluding the contract, the Supplier will have the right to demand adequate guarantees for the payment of the price or to withdraw from the contract withholding the advance payment by way of expenses already incurred; and this without compensation to the Buyer. If the opening of a letter of credit or the issuance of a guarantee is envisaged and the Buyer has not done so within the agreed term, the Supplier will have the right to terminate the contract and withhold the advances already received, except in case of compensation for further damages.
7. Drawings, project designs, technical specifications and illustrations, attached or in any case related to the supply, remain the property of the Supplier and cannot be used by the Buyer for purposes other than the use and maintenance of the goods purchased. The Buyer also acknowledges that the Supplier owns the trademarks affixed to the goods, and that it does not acquire any intellectual property rights with respect to such trademarks, which it cannot copy or imitate.
DELIVERY – TRANSPORT – ASSEMBLY
8. The delivery terms are those indicated in the Order Confirmation and are purely indicative; failure to comply with such terms will therefore not provide the Buyer with any the right to obtain fulfilment with the agreed terms, termination of the contract and/or compensation for damages.
9. The effective date of delivery remains suspended until the Buyer notifies all necessary technical and administrative information for the contract’s correct execution. Where an advance is required for the order, or the opening of a letter of credit or issuance of a guarantee, the delivery terms will start from the receipt of the advance or documents proving the transaction of the letter of credit or guarantee..
10. If the Supplier is prevented from complying with the delivery terms due to delays or failed deliveries of its own suppliers, power interruptions or transport suspensions, unavailability or shortage of raw materials, labour strikes or labour unrest, as well as due to any other event beyond its reasonable control, the effective date will remain suspended from the day of communication of the impediment to the Buyer. If the delay in delivery continues beyond 12 months from the scheduled date, for any reason not attributable to the Buyer, the contract will be terminated by law (for the part still to be performed) if one of the two parties communicates to the other the intent to make use of this clause by registered letter with return receipt or certified electronic email [PEC]. If this intent is communicated by the Buyer, the contract will be terminated by right only 90 days after receipt by the Supplier of the aforementioned communication, if in the meantime the Supplier has not performed the delivery. In all resolution cases provided for in this clause, the Supplier will be entitled to withhold the sums already received by way of compensation or consideration for damages for any other reason.
11. Regardless of what has been agreed regarding transport costs, as well as any reference to the Incoterms and/or clauses such as free destination, or equivalent or similar clauses, which solely concern the subdivision of transport costs, delivery will be considered carried out at the Supplier’s factory with the loading of the goods onto the means of transport, and will involve the identification of the goods and simultaneous transfer of risks to the Buyer. The goods will therefore always travel at the Buyer’s risk and peril, even if the carrier has not been chosen by the latter. Deliveries can be made in one or more lots.
12. The Buyer must collect the goods within 10 (ten) days from the notice of goods ready for delivery, to be notified by registered letter with return receipt or certified electronic email [PEC]. Once this deadline has expired without the Buyer having collected the goods, or in any other case of delay in delivery due to causes attributable to the Buyer, the latter shall be responsible for all risks and costs relating to non-collected goods, without prejudice to compensation for greater damages possibly incurred by the Supplier. After 30 (thirty) days have elapsed from the notice of ready goods for delivery, without the Buyer having collected the goods or, in case of the Buyer’s refusal to receive them as per the agreed delivery terms, the Supplier will have the right, at its discretion, to: i) invoice the goods from the day of the expected delivery, with effect from that moment of any payment terms, and storing the goods in its own warehouse facilities or in a place of public storage on behalf of the Buyer and at the latter’s expense. The Buyer will then be obliged to pay, as a contribution for storage costs, an amount equal to 1.5% of the sale price of the goods for each month of storage, and will bear any risk relating to the goods in storage, without prejudice to the right to compensation for greater damages; or ii) – terminate the contract with immediate effect (in total or for the part still to be performed, at the Supplier’s discretion) if the Supplier declares its intent to apply this clause by registered letter with return receipt or certified electronic email [PEC]. In this case the Buyer will have to pay the penalty pursuant to clause……………. even withholding the advance payment received, except for compensation for greater damages.
13. Unless otherwise specified in the Order Confirmation, the agreed prices do not include installation services, which are the Buyer’s sole responsibility, as well as costs incurred by the Buyer for works by electricians and labourers as assistance, etc.
14. The Buyer undertakes to provide information regarding the type of packaging required according to transport needs; the Supplier will be exempt from all responsibility with the successful delivery of the material, packed to perfection, to the carrier or shipper. The packaging will be considered as made in a workmanlike manner when the carrier or shipping agent has accepted the delivery. In any case, the prices do not include the packaging costs, which will be charged to the Buyer.
15. The Supplier guarantees that the machinery and spare parts are of good quality, immune from defects and faults, and also guarantees the proper operation of the machinery, within the limits deriving from their construction design. The Supplier does not undertake any guarantees for materials not of its own production. The warranty will be of 12 months starting from the date of departure of the machinery. For spare parts the warranty starts from the date of shipment of the goods. The warranty period will not be extended due to any repairs or replacements during the warranty period. Upon receipt of the goods, the Buyer undertakes to immediately check the condition of the goods, and any obvious defects and faults must be, under penalty of forfeiture, reported to the Supplier by the Buyer by registered letter with return receipt or certified electronic email [PEC] within 8 (eight) days of receipt of the goods. Hidden defects must be similarly reported to the Supplier within 8 (eight) days of discovery.
16. The warranty will be limited to the repair or replacement of parts recognized as defective, excluding electrical parts, casting defects, parts subject to normal wear, as well as failures caused by overloads, user inexperience, negligence, failure to comply with the operating and maintenance instructions provided by the Supplier or the latter’s assemblers and technicians and/or contained in the operation and maintenance manual. The aforementioned warranty excludes any other conventional and/or legal guarantees, including the termination, even partial, of the contract and price reduction, as well as the Buyer’s right to compensation for damages, whether direct or indirect, deriving from defects in the goods including damages resulting from the failed and/or partial use of the goods, except in the case of fraud or gross negligence.
17. The Buyer will forfeit the guarantee: a) if it fails to suitably carry out the tasks it is responsible for; e.g. failure to comply with the instructions in the operating manual; b) if it carries out and/or has third parties perform, without the Supplier’s prior written authorization, any repairs, replacements, modifications or other interventions during the warranty period; c) if it does not comply with the provisions provided by the Supplier and/or contained in the operation and maintenance manual regarding the correct usage and regular maintenance of the machinery and/or periodic checks; d) if it fails to make payments within the agreed terms.
PROPERTY RESERVE – PRICES – PAYMENTS
18. Sales made in Italy with deferred payments, or in any case subsequent to the delivery of the goods, are understood to be concluded with a retention of title agreement in favour of the Supplier, pursuant to Article 1523 of the Italian Civil Code, up to full payment of the agreed price, VAT and any substitute taxes and duties, interest and expenses incurred on behalf of the Buyer. The Buyer therefore undertakes to assume the risks from the time of delivery of the goods at the Supplier’s production facilities and will remain the depositary of the Supplier’s goods and materials until the price of the supply has been paid in full. The Buyer undertakes to diligently keep the materials and goods until the total payment of the price, avoiding every act of disposition relative to them, whether of a real or personal nature. At the time of purchase, the Buyer also undertakes to notify the Supplier of the place where the goods will be stored and will not remove them without the Supplier’s prior written consent, until the price has been paid in full. The Buyer agrees to immediately notify the Supplier of any act performed by third parties to the detriment of the reserved ownership of the goods, and is also required to inform third parties that the goods are the property of the Supplier.
19. All charges resulting from the conclusion of the contract, including notary fees and ancillary costs related to the stipulation, registration, transcription of the retention of title agreement and other contractual expenses will be charged to the Buyer, who undertakes to pay such charges in advance and lend itself immediately to all required formalities for the agreement to be enforceable against third parties. The cancellation of the reservation of property shall also be incurred at the Buyer’s expense.
20. Prices are for goods delivered ex factory of the Supplier and, unless otherwise specified in the Order Confirmation, will not include any transport, insurance, assembly, taxes and customs fees, miscellaneous costs, etc. In the event that the Supplier has provided of its own initiative to take out insurance, or has incurred shipping charges, the Buyer must immediately reimburse the relevant expenses to the Supplier, at the latter’s request.
21. The terms and methods of payment are those indicated in the Order Confirmation. Payments must be made directly to the Supplier. The acceptance of payments made by bank check (subject to collection), bank draft, promissory notes or other means, will not lead to an exception to the principle of the place of payment, which remains the domicile of the Supplier. Pursuant to and for the purposes of the Legislative Decree of 23 January 2002, in the event of late payment, whether total or partial, of the sums due by the Buyer, the Supplier may charge the Buyer the default interest to the extent provided therein.
22. The failure by the Buyer to fulfil the agreed payment terms in a timely manner will forfeit the Buyer from the benefit of the term and the Supplier shall be entitled, even without prior notice, i) to demand the immediate payment of all instalments due and still owed, or at the Supplier’s option, ii) avail itself of the express termination clause which is agreed in its favour in this contract, and therefore declare the contract terminated pursuant to Art. 1456 of the Italian Civil Code by registered letter with return receipt or certified electronic email [PEC]. In this last case the Supplier will have the right to obtain the immediate return of the materials and goods delivered, and the payment of the penalty pursuant to clause 24, to this end withholding any price instalments already paid by the Buyer, except for greater damages. The above shall also apply in the event of the Buyer’s default on any contracts for the supply of other machinery or spare parts. In any case of delay or non-payment, the Supplier will also be entitled to suspend the preparation and delivery of the goods object of any other Orders in progress.
23. No exception may be opposed by the Buyer in order to avoid or delay the execution of payments, as the “solve et repete” clause is agreed in the Supplier’s favour. The Buyer expressly renounces from now on to assert the faculties of the last paragraph of Article 1462 of the Italian Civil Code.
24. In the event of i) cancellation of a firm and/or confirmed order by the Buyer; ii) termination of the contract due to failure to collect the goods; iii) termination of the contract due to the fault of the Buyer, the latter will be required to pay a penalty equal to 5% (five percent) of the value of the goods cancelled and/or not withdrawn, without prejudice to the Supplier’s right to compensation for greater damages.
25. The Supplier will be entitled to charge the Buyer for any bank charges that may be incurred by the Supplier as a result of the payment of the price.
JURISDICTION AND GOVERNING LAW
26. The contract is governed by Italian law. The Court of Pavia will have exclusive jurisdiction to decide any dispute between the parties. The Supplier also reserves the right to refer the matter to the Buyer’s domicile both in Italy and abroad.