SPIVAL S.P.A. GENERAL CONDITIONS OF SALE
1 - APPLICABILITY
1.1. All contracts entered between Spival S.p.A. (hereinafter “the Seller”) in connection with the sale of its products (hereinafter “the Products”) to a customer (Buyer) will be entirely and exclusively governed by these general conditions of sale which replace and cancel all previous general conditions of sale, written or oral agreements, if any, or previous practices and customs which may be followed between the parties and exclude the application of all other terms which may be applied by the Buyer and by third parties.
2 - CHANGES
2.1 The Seller reserves the right to modify and / or change the present general conditions of sale by attaching said changes to written correspondence.
3 - DELIVERY TERMS
3.1 Unless otherwise agreed in writing by the Seller, delivery of the Products is deemed as to be performed EXW (Ex Works) (Incoterms 2000 International Chamber of Commerce Italy)
4 - TRANSFER OF RISK
4.1. The moment when the risk of the goods sold is transferred is established by the international rules for the interpretation of trade terms (INCOTERMS) of the International Chamber of Commerce in force on the date of stipulation of the contract.
5 - ORDERS
5.1 Each purchase order for the Product shall indicate the quantity of Product ordered and the expected delivery date.
5.2 Orders must be written in a clear and complete form and must be issued on Buyer’s headed paper
6 - ACCEPTANCE OF ORDERS
6.1 The Buyer’s orders shall be binding for the Seller only after written confirmation of them by the Seller.
6.2 The Buyer shall in any case carefully consider correspondence and ascertain that the order complies with the confirmation of the order and notify the existence of errors, if any, within forty-eight hours after receipt of order confirmation.
6.3. After the above period, any errors or non-compliance of the order confirmation shall be deemed as accepted and the Buyer can no longer assert them.
7 - MODIFICATION AND CANCELLATION OF ORDERS
7.1 Any modification or cancellation of orders by the Buyer reaching the Seller after the goods have already been put into production shall be inefficacious.
7.2 If the change or cancellation of the order is timely notified pursuant to the above paragraph, any costs and damages which the Seller may have already respectively borne and suffered in view of the production of the Products ordered are at exclusive expense of the Buyer that undertakes to reimburse or indemnify them upon simple request by the Seller.
7.3 Any requests for cancellations or changes of orders shall be valid and effective only if received by Seller in writing and shall be accepted by the Seller in writing.
8 - TERMINATION OF THE CONTRACT OR SUSPENSION OF DELIVERY.
8.1 The Seller may cancel every order already confirmed and / or terminate any sale contract and / or suspend the delivery of the goods with immediate effect if one or more of the following circumstances does occur:
- the Buyer is in state of insolvency or default in payments or is passing through a – even temporary- crisis of liquidity or is declared bankrupt or is admitted to any insolvency proceedings or similar proceedings;
- the Buyer’s assets are wholly or partially placed under court seizure or a liquidator or a trustee of the assets of the Buyer is appointed;
- the Buyer’s financial standing get worse such as to cause a reduction or a zero setting of the credit by the credit Insurance or the revocation of a renewable letter of credit and does not provide adequate additional guarantees to the Seller;
- the Buyer fails to fulfill a fundamental obligation of the present general conditions or of a contract for the sale of Products vis-à-vis the Seller.
9 – SELLER’S RESPONSIBILITY FOR INFORMATION PROVIDED BY HIM
9.1. All information provided by the Seller on the Products, failing a specific technical form of the Seller, including the information reported in catalogues, promotional material, price lists and correspondence, are given in good faith and with every care thus to ensure the accuracy of said information.
9.2. However, the Seller does not take any responsibility for any errors which may have been inadvertently made, therefore the aforementioned information are to be considered as a mere indication and not binding.
10 - PRICES AND PAYMENT TERMS
10.1 Sale prices are reported in the price lists which are periodically updated and sent to the Buyer.
10.2 Unless otherwise agreed, the goods price shall be paid within 60 days from the invoice date end of month.
11 - REPLACEMENT OR MODIFICATION OF COMPONENTS OR PRODUCTS
11.1 The Seller reserves the right to modify, replace or add, at any time , any Product, component of same.
12 – IRREGULARITY OR DELAY IN PAYMENTS
12.1 Any delay in payments by the Buyer shall entitle the Seller to immediately suspend the delivery of the Products to the Buyer even if the delivery refers to orders or lots different from the delivery the irregularity or delay in payment refers to.
12.2 After five days from the expiry of the agreed payment, moratory interests to the extent provided for by the Legislative Decree no. 231/2002 shall, automatically and without notice of default, accrue on the agreed price.
12.3 The Seller shall also be entitled to the reimbursement of the costs incurred, even out of court, for the recovery of his credit and for the reminder, subject to greater damage proven.
13 - DELIVERY OF GOODS
13.1 Deliveries shall be made during the Buyer’s normal working days.
13.2 The Product shall be delivered to the Buyer in the usual package provided for by Spival SpA for said Product.
13.3 The date of delivery of the Products, as reported in the order confirmation, shall always be deemed as indicative and not peremptory.
13.4 The specified delivery time shall start from the complete technical, commercial and administrative accomplishment of the order. In case of order with advanced partial payment, the delivery time shall start from the date of receipt of the advance. In case of orders with incomplete technical specifications, the delivery term shall start from the date when the order technical specifications are complete.
13.5 A 30 working days tolerance after the agreed delivery time is however always granted.
13.6 The Seller shall do everything in its power to punctually execute the contract and deliver the Products within the time limits as may be agreed upon but in no event it will be liable for any damage or expense directly or indirectly caused by the delayed performance of a contract and the delayed delivery of the Products.
14 - PRODUCTS WARRANTY
14.1 The Seller warrants that the Products comply with the technical specifications which the Buyer declares having examined in-depth before making its purchase order.
14.2 The Seller declares that the Products are suitable only for the specific use indicated in the technical card of each Product as published on the Seller’s website, which the Buyer declares having accurately and exhaustively examined.
14.3 The Seller will not assume any responsibility if the goods are unsuitable for any other use but the use indicated in the technical card or other use which the Buyer may assign them for, unless express written warranty granted by the Seller on a case-by-case basis.
14.4 The Seller also warrants that the Products are free from manufacturing defects as provided for by the regulations in force in Italy.
14.5 This warranty is deemed as a substitute for any further warranty in connection with marketability, quality and suitability for a specific purpose other than the purpose specified in the technical card, unless express written warranty issued by the Seller.
15 - DURATION OF THE WARRANTY
15.1 The duration of the guarantee referred to in the foregoing clause is six months starting from the date of delivery of the Products.
16 – WARRANTY EXCLUSIONS
16.1 The Seller shall not be liable in the event that the Buyer or the final customer fails to store and take care of the Products in a suitable manner or in compliance with any recommendations which the Seller may have provided regarding the use and maintenance of the Products – which the Buyer declares being aware of.
16.2 The Buyer forfeits the right to warranty if the defects claimed are caused by: force majeure; actions made by the Buyer itself, its employees or third people; bad or failed installation; unskillfulness in using the equipment in which the Products are incorporated; wrong or anomalous use, poor maintenance or non-maintenance; repairs, replacements and modifications made or caused to be made by the Buyer without written authorization by the Seller.
16.3 The Buyer also forfeits the warranty if it does not authorize any reasonable control which the Seller may requires or if, at the request of the Seller, the Buyer fails to return said part within ten days starting from the request.
16.4 The warranty does not cover all the parts that due to their nature or use are subject to inevitable deterioration or wear and tear.
16.5 Unless expressed written agreement to the contrary, no warranty is released by the Seller in connection with the compliance of the Products with the rules and regulations of any kind whatsoever, explicitly including the rules in the matter of safety and accident prevention, which may be in force in the Nation of the Buyer if different from those in force in Italy.
16.6 After the sale the Seller shall not assumes any obligation to adapt the Products to the rules which may have come into force afterwards.
16.7 However, subject to the foregoing, the Buyer shall inform the Seller of the existence of the exact contents of and of correct prescriptive references of legally binding and mandatory laws in force in its Country which may concern the Products of their packaging.
16.8 In no event shall the Buyer offset the price of the goods with any credits which it may have vis-à-vis the Seller.
16.9 The Buyer declares that it is aware of the fact that the Products may be dangerous to people or to the property if they are not installed or used correctly.
16.10 The Seller shall not be liable for any damage caused by the incorrect installation or use of the Products or by having assembled the Products with other products or devices –even safety devices- not manufactured or supplied by the Seller.
16.11 If the Products are manufactured based on a design supplied by the Buyer, the responsibility for any damage which may be caused by the Product itself and arising from its design shall entirely rest on the Buyer, that, in this respect, holds the Seller harmless for all negative consequences, expenses and damages which the Seller may suffer.
17 – NOTIFICATION OF DEFECTS AND DISCREPANCIES
17.1 The Buyer shall examine the products or cause to have them examined within thirty days from delivery even if the contract or the single order provides that the products be carried to another destination by the Buyer.
17.2 Any defects, discrepancies and damages affecting the Products shall be notified in writing by the Buyer in a clear, detailed and not generic manner within thirty days starting from the delivery of the Products and the Buyer shall specify the number of defective products, the lot affected by the defects and the invoice covering said goods, as well as the number and date of the order confirmation – this under penalty of forfeiture.
17.3 A full stock of the goods in connection with which defects are notified shall reach the Seller within eight days from the notice of defects; the entire goods shall instead be immediately placed at the disposal of the Seller and of its agents for necessary inspection and verification.
17.4 Should the above notice be not given within the terms and in the manners set out above, the goods shall be deemed as accepted without remarks and any claims which may arise shall have no effect against the Seller.
18 - LIMITATION OF DAMAGES
18.1 If either party is obliged to refund damages to the other party, the total amount of said compensation is limited to the damage which the party in default might have reasonably foreseen upon signing the contract.
18.2 In any case only and exclusively the damages which are immediate and direct consequence of the non-fulfillment or of the unlawful act can be refunded.
18.3 The party pleading the non-performance of the contract is obliged to take all necessary measures to mitigate the loss occurred, provided that it can do so without unreasonable inconveniences or expenses. If it fails to do so, the party liable for the non-performance shall be entitled to a proportionate reduction of damages.
19 - CONTENTS OF THE PRODUCTS WARRANTY
19.1 Should the Seller agree on the actual existence of the defect notified and a violation of any guarantee have occurred, the only remedies which the Buyer is granted will be , alternatively, at the Seller’s unquestionable choice:
- withdraw the defective Product and repair it, and then return it to the Buyer;
- replace the Product or the defective part of the Product;
- reimburse the price paid.
19.2 Unless agreements with the Buyer to the contrary, repairs and / or replacement of the material under warranty do not include the intervention of Spival SpA’s staff at the Buyer’s premises; which intervention, if required, is to be considered as not covered by the warranty – hence to be considered as a fee-paying intervention.
19.3 The parts to be replaced shall be sent by the Seller to the Buyer “carriage free” and replaced at care and expense of the Buyer.
19.4 The Seller shall in no event be liable, except for willful misconduct or gross negligence, and the Buyer waives his right to claim for compensation for any damages (whether direct, indirect or consequential) whatsoever , or loss of profit (loss of anticipated profits), or to prejudice to commercial image which may be suffered by the Buyer as a consequence of characteristics, discrepancies or defects of the Products the total amount of which exceeds the gross sum paid by the Buyer as price for the Product or bfor the lot of Product which have caused damages to them.
20 - PAYMENTS IN THE EVENT OF NON-FULFILLMENT BY THE SELLER
20.1 The Buyer will not be entitled to claim for the Seller’s non-fulfillment if it fails to be up-to-date with its payments; any non –fulfillment by the Seller shall allow the Buyer to suspend or delay payments.
21 - RETURN OF GOODS
21.1 No return of goods shall be accepted unless previously authorized in writing by the Seller.
21.2 Any costs incurred for said return to be borne by the Buyer.
22 - ASSEMBLY
22.1 The assembly on site of the Products is excluded from the sale.
22.2 Assembly costs and methods shall be agreed upon in writing on a case-by- case basis.
23 - PAYMENT BY INSTALMENTS
23.1 Should a payment by installments is agreed upon, any taxes and costs of any kind whatsoever shall be computed in a single payment on the first installment.
24 - TESTS
24.1 The Products shall be tested only if agreed in writing and at the Buyer’s expense and risk.
25 - SPECIAL CONDITIONS OF SALE
25.1 If the Buyer intends to exclude from a particular contract with the Seller any limitation of liability provided by the present conditions, said exclusion shall be submitted in writing to the Seller before the conclusion of said contract so that if the Seller, in its sole discretion, decides to accept –in writing- said exclusion, appropriate increase in prices of the Products –which increase to reflect the increase of risks and obligations which the Seller agreed to bear- may be agreed upon.
26 – DRAWINGS,DOCUMENTS, TECHNICAL INFORMATION BY THE SELLER
26.1 Any design, document, technical information or software relating to manufacturing or assembling the Products or to Products’ components as delivered to the Buyer shall remain the exclusive property of the Seller. Said documents and information cannot be used by the Buyer for extra-contractual purposes or copied, reproduced, transmitted or communicated to third parties without written consent by the Seller.
27 - APPLICABLE LAW
27.1 All contracts concluded by the Seller shall be exclusively governed by Italian domestic law, the application of the United Nations Convention for the International Sale of Goods issued in Vienna on 11 .04.1980 to be hereby expressly excluded
28 - JURISDICTION AND EXCLUSIVE JURISDICTION
28.1 The Parties agree that any dispute arising from the interpretation, application, execution, termination, voidness, voidability, inefficaciousness and the performance of this contract shall be exclusively subject to Italian jurisdiction and in particular Florence court shall be the competent court.
29 – ORIGINAL TEXT - MODIFICATIONS
29.1 These conditions of sale text written in Italian language shall be the sole original text.
29.2 Any texts which may be written in foreign languages shall not be deemed as binding but merely as versions of courtesy and just as an indication thus to facilitate the comprehension of same.
29.3 No addition or amendment shall be valid unless made in writing.
30 - FORCE MAJEURE
30.1 Neither Party shall be responsible for its own non-performance to any of the obligations provided for by the present conditions of sale if it is in a position to prove: a) that the non-fulfillment was caused by an event beyond its control, b) that upon signing the present Agreement the event could not have been reasonably foreseen, and c) that the event –or its effects- could have not been reasonably avoided or remedied.
30.2 Pursuant to this clause and without the list offered herein having to be considered as exhaustive, a “force majeure event” will include fire, flood, war, riot, forces of nature, acts by civil or military authorities, fire, strikes, riots.
30.3 If a force majeure event occurs, the date(s) for the execution of the relevant obligation(s) shall be postponed for the time required by the force majeure event, this provided that, if the force majeure event lasts for a period not exceeding two (2) months, the Party not involved shall be entitled to immediately terminate this Agreement by written notice to the Party concerned. Each Party shall endeavor to minimize the effects of any event of force majeure.
31 - LEGAL FEES AND TECHNICAL COSTS
31.1 Should suits or out -of -court disputes arise between the parties, the losing party shall pay to the winning party all expenses, including fair legal fees, technical costs and trial costs.
32 – INVALIDITY OR LIMITED INEFFECTIVENESS
32.1 Any invalidity or ineffectiveness of one or more clauses or part of them does not entail the invalidity or the ineffectiveness of the remaining clauses or of the remaining part of clause.