General terms and conditions
- In these general terms and conditions (hereinafter, “GTC”) the following words shall have the following meaning:
“Party”: means, as the case may be, the Seller or the Buyer;
“Parties”: means jointly the Seller and the Buyer;
“Goods”: means the machines, their accessories and the spare parts, which the Seller is to supply to the Buyer in accordance with these GTC;
“Seller”: means Achilli S.r.l., a company registered in Italy under REA no. 02343350407, whose registered office is at 148 Via Montescudo, 47900 Rimini, Italy;
“Notice of Stored Goods”: means the written notice by which the Seller informs the Buyer that the Goods are ready to be collected;
“Buyer”: means any person, firm, company or authority who accepts a Quotation or an Offer of the Seller for the sale of Goods or whose Order for the Goods is accepted by the Seller;
“Offer” or “Quotation”: means the standard Seller’s document which is subject to these GTC which includes a description of the Goods to be supplied by the Seller;
“Order”: means any terms and conditions indicated in each purchase Order that will be issued by the Buyer;
“Order Confirmation”: means the acceptance, by the Seller, of the Order received by the Buyer;
“Price”: means the price of the Goods indicated in the price list in force when the Order is received;
“Distinctive Marks”: means any trademarks, trade names, brand, company names and logos belonging to the Seller.
2. These GTC shall apply to all agreements for the sale of the Goods by the Seller to the Buyer pursuant to one or more Orders.
3. Each Purchase Order shall specify the precise quantity of the ordered Goods, the relevant unit price and the delivery and payment terms.
3.1 Each Purchase Order, to be sent in writing to the Seller, shall be deemed firm and binding for the Buyer until the receipt of the relevant Order Confirmation. It is also agreed that in case of any differences between the Offer and the Order Confirmation, the latter shall be deemed as accepted and the purchase agreement shall be considered valid and effective, unless the Buyer contests the Order Confirmation in writing within 3 (three) days from the receipt of said Order Confirmation. .
3.2 The Purchase Order shall be considered accepted and binding for the Seller only upon receipt by the Buyer of the relevant Order Confirmation.
3.3 Any transmission of an Order from the Buyer to the Seller shall be deemed as the Buyer’s acceptance of these GTC, which shall prevail on any different terms and conditions, unless otherwise agreed in writing by the Parties.
4. The Price shall be intended VAT free and shall be paid by the Buyer to the Seller by wire transfer to the bank account that will be indicated by the Seller in the Order Confirmation upon terms and conditions indicated therein.
4.1In case the payment of the Price is delayed:
(a) the Buyer shall pay to the Seller a late payment interest according to Italian Legislative Decree no 231/2001 (and subsequent amendments thereto) of the due and invoiced sum; and
(b) the Seller shall be entitled to suspend any pending delivery.
4.2The Seller will always be entitled to modify the Prices indicated in the price list.
5. It is expressly agreed that all the Goods are and shall remain the property of the Seller until the payment of such Goods is made in full. The Buyer shall have the right neither to sell, nor to pledge nor to dispossess himself in any way of the Goods, entirely or in part, until the Price is fully paid.
6. Unless differently agreed upon in writing by the Parties, the delivery of any of the Goods or of any parts thereof shall be made Ex Works (2010 INCOTERMS).
6.1Delivery terms are not binding though the Seller will do its best to respect the delivery times quoted. The Buyer shall not in any event be entitled to claim from the Seller any penalties or damages, direct, indirect or consequential for any reasons whatsoever, in respect of delays in delivery which might occur.
6.2Within 20 (twenty) calendar days from the date of the Notice of Stored Goods the Buyer shall collect such Goods. Should the said term not be fulfilled, the Seller shall have the right to the full and the immediate payment of the Price – if not paid yet – irrespectively of the delivery of the Goods. To its discretion, the Seller shall have the right to suspend the Order and/or to sell to other customers the ordered Goods: in this last case, the new delivery terms will start from said suspension and, as the case may be, also the Price might be updated. The Seller shall also have the right to debit to the Buyer any costs and/or expenses connected to the deposit and/or the relocation of the Goods borne by the Seller from the date indicated in the Notice of Stored Goods.
7. In the event of strikes, fire, worker strike, lockouts, non-obtainment of customs licenses, wars, riots, government orders, military and civil authority’s orders, and, in general, in any event out of control of the Seller, the Seller shall be entitled either to reduce the quantity of the Goods sold or to postpone the delivery, it being expressly agreed that this will not give the Buyer the right to any compensation or damages whatsoever.
8. The Buyer shall in no case have any right to delay or suspend the agreed payments for any reasons whatsoever.
9. TESTS AND WARRANTIES
9.1The Seller warrants and represents that the Goods:
(a) are free from any defects; and
(b) conform to the Order Confirmation.
9.2 Upon receipt of the Goods, the Buyer shall check their conditions and the number of the packages and, if the case may be, it shall immediately point out in writing, both on the transportation document and to the Seller, the found irregularities, if any.
9.3Any hidden defect shall be communicated in writing by the Buyer to the Seller within 8 (eight) calendar days from the relevant discovery and, in any case, not later than 12 (twelve) months after the delivery of the Goods.
9.4The Seller guarantees the Goods for a period of 12 (twelve) months starting from the date of delivery to the Buyer or, if the case may be, to the final user. In any case, the warranty terms shall not be longer than 24 (twenty four) months starting from the shipment of the Goods. Should the Buyer claim any defects in the received Goods, the Seller shall have the right to examine such Goods. To this regard, it is agreed that the Buyer shall keep the contested Goods for at least 15 (fifteen) calendar days from notification as to allow a cross check between the Parties.
9.5 After having verified the existence of the claimed defect of the Goods, the Seller may, to its sole discretion:
(a) repair the defective Goods,
(b) replace the defective Goods; or
(c) reimburse the Buyer the Price which has been paid for the defective Goods.
It is however agreed that, any return of the Goods, shall be previously authorized in writing by the Seller. Once authorized, the returned Goods shall be sent to the Seller’s warehouse DAP Rimini (Incoterms 2010), together with a regular Goods transportation note indicating the number and the date of the purchase invoice.
9.6 Should the Seller decide, to its discretion, to reimburse the Price according to paragraph 9.5 (c) above, to said Price shall be applied a discount equal to 10% (ten percent) for administrative, check, test and re-stocking costs and fees.
9.7 Any transport and packaging costs and expenses necessary for the shipping of the defective Goods (or part of them) to the Seller’s premises and/or to the Buyer’s premises shall be entirely at the expense of the Buyer.
9.8 The warranty provided for herein represents the sole and exclusive warranty given by the Seller to the Buyer with respect to the Goods and is in lieu of and excludes all other warranties, express or implied arising by operation of law or otherwise, including, but not limited to, any implied warranties.
9.9 The Seller shall have no liability to the Buyer or any end user of the Goods with respect to the sale of Goods for lost profits or for special, consequential, exemplary or incidental damages of any kind. The Seller’s direct damages are limited to the Price.
9.10 The warranty ceases in the event of the Goods or part thereof are not correctly stored or kept, improperly used, repaired, modified, altered even partially, outside Seller’s premises or without the Seller’s prior written consent.
9.11The installation of the Goods, unless differently agreed in writing by the Parties, shall always be the responsibility of the Buyer; the Seller will not be liable for any damages occurred to the Goods and/or to the Buyer and/or to third parties as a consequence of the installation of the Goods.
9.12 If the installation of the Goods is made by the Seller, the Price will not include either the price of such installation or the travel and the board and lodging expenses of the Seller’s technicians, which will be calculated and debited to the Buyer separately. In such a case, the Buyer shall facilitate the Seller’s technician’s work of installation of the Goods, by granting adequate environmental conditions, means of transportation and personnel, according to applicable law. The Buyer will be liable, according to civil and criminal law, for any damages occurred to said technicians due to the violation of applicable law.
9.13 The acceptance test of the Goods will be done at the Seller’s facilities before the delivery of the Goods to the Buyer. The Seller will communicate in writing to the Buyer the date of such acceptance test with 15 (fifteen) days prior written notice. In any case, if the Buyer wants to participate and be present at the Sellers facility in order to verify the acceptance test he shall expressly specify such circumstance when the Purchase Order is submitted. It is also agreed that if the Buyer comes to the Sellers facility to be present for the acceptance test the Goods shall be deemed as accepted.
9.14With reference to the warranty regarding electric, electronical, hydraulic devices and/or any other equipment, which has its own individual warranty, the Seller shall only be asked to transfer to the Buyer the original manufacturer’s warranty (provided that such manufacturer can be identified) that the Seller has received, at the same conditions that the Seller could have exercised at the moment of the discovery of the defect.
10. Drawings, illustrations and the indication of the measurements of the Goods, although as accurate as possible, are not binding for the Seller. Similarly, all statements as to production, capacity and efficiency are not to be considered as binding but only as approximate.
11. Drawings, illustrations, pictures, descriptions and characteristics of the Goods and any other documentation supplied, shall remain the sole property of the Seller and shall not be copied or communicated to third parties, without the prior written consent of the Seller.
12. The Seller is the sole owner of the Distinctive Marks, Achilli Name, Logos, Achilli Trade Terms, Achilli Saw Name, etc. and the Buyer acknowledges such Seller’s ownership. The Buyer shall not modify, use, copy, trade mark or cause any action that would jeopardize, infringe, impair or in any way undermine or interfere with the Seller’s right in the Distinctive Marks. Title to and any right in the Distinctive Marks is and shall remain with the Seller and may not be used by any other company. Any use of the Distinctive Marks by the Buyer in accordance herewith shall be used solely to the benefit of the Seller and the Buyer shall in no event derive, modify, change any right in any Distinctive Marks.
13. Nothing in the relationship between the Parties arising out of these GTC shall be construed as establishing or implying any partnership, agency, distribution or joint venture between the Parties for any purpose. Accordingly, it is expressly understood that that the Buyer shall not have the authority to act, whether expressly or impliedly, as agent for the Seller or to contract on the Seller’s behalf.
14. The Buyer shall comply with all applicable statute, rules and regulations in importing the Goods.
15. These GTC supersedes any prior understanding and agreement, either written or verbal, between the Parties.
16. These GTC may be amended or modified only in writing by both Parties.
17. These GTC (and any Offer, Order and Order Confirmation) shall be governed by, and construed in accordance with, Italian substantive Law, it being expressly excluded the application of the United Nation Convention on contracts for the international sale of goods.
18. Any dispute which may arise between the Parties in connection with these GTC and/or any Offer, Order and/or Order Confirmation (including, not by way of limitation, those concerning validity interpretation, breach, termination, prejudicial or competence matters) which the Parties are unable to settle amicably in good faith, shall be finally settled by the Court of Rimini, Italy which will have exclusive jurisdiction.
For the purpose of articles 1341 and 1342 of the Italian Civil Code, the Buyer hereby agrees and expressly confirms its acceptance and agreement on the following provisions : 4.1 (Suspension of deliveries); 5 (Retention of Title) ; 6.1 (Non-binding delivery terms), 9 (Warranty Terms), 17 (Governing Law); 18 (Competent jurisdiction).