General Conditions of Sale
Art. 1 – Scope of application of the General Conditions of Sale
1.1 – These general conditions of sale (hereinafter the “Conditions”) shall apply to every contract of sale (hereinafter the “Contract”) entered into by Tecomec (hereinafter the “Seller”) which concerns the products manufactured and/or marketed by the Seller (hereinafter the “Products”).
1.2 – Notwithstanding any provision to the contrary and even if any such provision may be contained in any possible general conditions of the buyer of the Products (hereinafter, the “Buyer”), the Conditions shall apply to any offer, any order confirmation and any delivery effected by the Seller, except as expressly provided from time to time in a written document signed by the Seller.
Art. 2 – Conclusion and effective date of each Contract
2.1 – The Contract of sale of the Products shall be deemed to enter into force (i) at such time as the Seller issues the relevant order confirmation, or in absence of such an order confirmation, (ii) at such time as the Buyer collects the Products.
2.2 – The Buyer’s orders will be accepted by the Seller only if said orders contain the specifications which are necessary for the purpose of identifying the Products ordered, it being understood that the Seller shall be entitled, at its sole discretion, to accept or refuse the Buyer’s orders.
2.3 – Any possible cancellation of or amendment to any order by the Buyer shall not be effective unless previously authorised or subsequently accepted in writing by the Seller (it being in any event understood that the Seller’s commercial agents, intermediaries and/or external consultants shall not have the power to accept the Buyer’s orders on behalf of the Seller and/or to formulate or accept any proposal, in such a way as to bind the Seller, relating to discounts, sales allowances and/or variations to the Conditions.
Art. 3 – Terms of payment and Prices
3.1 – Unless otherwise agreed in writing, the Seller’s price list which is in force as of the date of the order confirmation shall apply to any order made by the Buyer. The prices of any Products not appearing on the price list shall be determined by the Seller on a case by case basis.
3.2 – The prices of the Products shall be deemed exclusive of VAT and of any other incidental expense and/or cost (including, but not limited to, bank commissions or expenses, special packaging, insurance, transport), which shall be borne by the Buyer.
Without prejudice to the above, any and all taxes, duties, levies, licences, authorisations, permits and any and all tax and administrative or customs formalities or costs relating to the importation and/or re-sale of the Products shall be borne and carried out exclusively by the Buyer or, alternatively, they may be carried out by the Seller at the Buyer’s sole risk, expense and responsibility.
3.3 – Unless otherwise indicated in the order confirmation, payment of the price of the Products will be effected within 30 (thirty) days following the date of issue of the relevant invoice.
Under no circumstances shall the Buyer be entitled to suspend or delay payment of the Products. In the event that the Buyer fails to fulfil its obligations to pay the price (including the obligation to make any possible advance payments), the Seller shall be entitled to postpone the delivery of the Products for a period corresponding to the length of the delay on the part of the Buyer and/or to terminate the Contract, retaining the sums received from the Buyer by way of liquidated damages, without prejudice to the Seller’s rights to claim compensation for any further damages suffered.
Art. 4 – Terms of delivery and packaging
4.1 – All delivery dates as well as delivery terms given in the order confirmation shall be deemed to be indicative only. In the event of possible late delivery, the Buyer shall not be entitled to terminate the Contract or claim compensation for damages of whatever nature (it being in any event understood that by collecting any Products which may have been delivered late, the Buyer waives any and all rights relating to said delay).
4.2 – Unless otherwise agreed in writing between the parties, the delivery of the Products (and the relating transfer of risk) will be effected “EX WORKS” (Incoterms 2000); in the light of the above, the Seller shall not enter into any shipment or transportation agreement and shall not insure the Products to be supplied, unless the Buyer should so expressly instruct the Seller in writing; it being in any event understood that any and all risks and expenses in relation thereto shall be borne exclusively by the Buyer.
4.3 – The Buyer agrees to collect the Products as soon as it receives notice that the Products are ready and at its disposal and, in any event, within 8 (eight) days of the date of said notice. In any event, the transfer of risk and the payment terms shall start running as of the date of the notice that the Products are ready or, in the absence thereof, as of the date of delivery.
4.4 – At the time of delivery of the Products the Buyer shall check the quantity and the specifications of the Products delivered. Any claim by the Buyer in respect of the quantity or the quality of the delivered Products shall be communicated in writing to the Seller within no more than 8 (eight) days following the date of delivery of the Products.
4.5 – The Products shall be delivered by the Seller to the Buyer with appropriate packaging; it being understood that the packaging provided by the Seller is suitable for a period of storage/transit not exceeding 180 (one hundred and eighty) days. Provided that the Buyer advises the Seller sufficiently in advance that the goods may be in storage/transit for a period exceeding 180 (one hundred and eighty) days, then the Seller may supply the Buyer, at the latter’s expense, with different packaging.
4.6 – From such time as the Products are delivered, the Buyer undertakes to look after the Products with the requisite care (keeping them in a safe and appropriate place and in such a way that they are not subjected to inappropriate climatic conditions and temperatures), given that the ownership of the Products shall pass to the Buyer only upon payment in full of the sale price of the Products.
In the event that the Buyer fails to pay the price, the Seller shall be entitled, without any formalities, including sending a notice of default, to repossess all of the Products with respect to which title has not yet passed to the Buyer, wherever said Products may be; in addition, the Seller shall be entitled to charge interest on arrears at the rate provided by the applicable law (without prejudice to the Seller’s right to seek any other judicial remedies available to it in respect of the damages suffered).
Art. 5 – Characteristics of the Products; Modifications to the Products
5.1 – Any possible information or data relating to the characteristics and/or to the technical specifications of the Products that may be included in brochures, price lists, catalogues, or similar documents are indicative only and not binding, unless otherwise agreed in writing by the parties.
5.2 – The Buyer shall be prohibited from making, directly or indirectly, any changes, modifications or other alterations whatsoever to the Products and should the Buyer breach such obligations, it shall bear any and all liability in respect of the Products, be it foreseeable or unforeseeable, arising out of the Contract, any unlawful act, in equity or otherwise.
5.3 Without prejudice to the above terms, the Seller reserves the right to update, modify or terminate the production of all or any of the Products as determined by the Seller at its sole discretion.
In this regard, the Buyer acknowledges and agrees that changes in technology or in market conditions or in the Seller’s sales and marketing policy may prompt the Seller to modify the Product specifications or to cease to manufacture or sell one or more types of the Products and that the Seller shall not be in any way liable to the Buyer for any possible damages, be they direct or indirect, which may be suffered by the Buyer as a result of such decision by the Seller.
Art. 6 – Liability
6.1 – Without prejudice to the limitations of the warranty as per Art. 7 below, the Seller’s total liability may not in any event exceed an amount equal to 7% (seven percent) of the price agreed for the Products in respect of which the claim occurs.
6.2 – The Buyer undertakes to read and make itself acquainted with the specifications of the Products and the instructions and warnings supplied in relation to the use that may be made of said Products and the use for which the Products may be reasonably intended. In addition, the Buyer shall ensure that the Products will only be marketed as of such time as they comply with all laws, regulations and other rules (relating to packaging, instructions, information, and in general, to the safety of persons and goods) provided by the country in which the Products will be marketed. The Buyer shall be solely responsible for ensuring that the use and marketing of the Products are correct and in compliance with the above-mentioned regulations and laws, in addition to the requirements of the Buyer’s customers and good technique and the Buyer shall indemnify and hold the Seller harmless with regard to the terms of this Art. 6.2.
Art. 7 – Warranty
7.1 – The Seller warrants the quality of the Products for a period of 12 (twelve) months following the date of delivery, subject to the customary tolerances and excluding those defects which may arise due to transportation, improper use or inappropriate storage or maintenance of the Products. Any other damages, including any possible damages resulting from the lack of or a reduction in production, in addition to any indirect, consequential, special or incidental or damages of a punitive nature, are expressly excluded from the warranty.
7.2 – The warranty shall be subject to the Buyer duly informing the Seller in writing, within 8 (eight) days following the discovery thereof, of the particular defect or lack of quality, failing which the Buyer shall lose its rights under the warranty in respect thereof, and shall also be subject to the Buyer making an express written request to the Seller to provide assistance under the warranty.
7.3 – The warranty consists in either the repair or replacement, at the Seller’s sole discretion and at its expense, of the Products which may prove to be broken or defective due to manufacturing defects. The Seller shall replace or repair the defective parts in the shortest time possible (which shall be calculated on a case by case basis) and the Seller shall have the right to request the Buyer to return the defective parts and/or the Products which have been replaced.
7.4 – Any other warranty relating to the Products, including without limitation, any warranties provided by law, shall be deemed excluded and superseded by these Conditions.
Art. 8 – Returned Products
8.1 – The Products may be returned by the Buyer to the Seller only if the Seller has given its prior written authorisation in relation thereto. It is in any event understood that if the Buyer does not collect the Products within a period of 6 (six) months after they have been returned to the Seller (regardless of whether the return is unauthorised or in relation to Products which are no longer under warranty), the Seller shall be entitled to scrap said Products and to charge the Buyer the relevant costs, without prejudice to the Seller’s right to be reimbursed by the Buyer for the costs relating to the storage of the returned Products.
Art. 9 – Force Majeure
9.1 – The Seller shall not be liable vis-à-vis the Buyer for any failure to perform, including late delivery or failure to deliver, which is caused by occurrences beyond the Seller’s reasonable control or in any case caused by an event of force majeure, including, but not limited to, late delivery or non-delivery of manufacturing materials by suppliers, strikes and other trade union actions, suspension of electrical energy or difficulties in transportation.
9.2 – Upon the occurrence of any event of force majeure which is such as to prevent either party hereto from fulfilling its obligations hereunder, then the time for the party so affected to fulfil its obligations shall be automatically extended for a period corresponding to the duration of the event of force majeure, save for the Buyer’s obligation to pay the amounts due by way of the price, in respect of which the contractually agreed due dates shall remain in full force and effect.
Art. 10 – Applicable Law and jurisdiction
10.1 – These Conditions and all contracts of sale to which the Seller and the Buyer are a party shall be exclusively governed by Italian law (including the provisions of the Vienna Convention 1980, relating to contracts for the international sale of goods, which are not derogated by these Conditions).
10.2 – Any and all disputes arising out of or relating to the signing, interpretation, execution and termination for any reason whatever of these Conditions and of the contracts of sale to which the Seller and the Buyer are a party, shall be settled exclusively by the courts of competent jurisdiction for the place in which the Seller’s registered office is located. Notwithstanding the foregoing, the Seller may bring an action against the Buyer before any court having jurisdiction over the Buyer.