In these general terms and conditions of sale ("GTCS"), the terms with the capital letter will have the meaning indicated below:
“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 related spare parts that the Seller will deliver to the Buyer in accordance with these GTCS;
"Seller" means Achilli S.r.l., a company listed with the Register of Companies of Rimini with no. 02343350407, with registered office in Rimini, in Via Montescudo, 148;
"Goods Ready Notice" means the written notice by which the Seller will notify the Buyer that the Goods are ready for collection;
“Buyer” means any person, entity, company or authority that accepts a quotation or Offer by the Seller for the sale of the Goods or whose order for the Goods has been accepted by the Seller;
"Offer" or "Quote" means the Seller's standard document, subject to these GTCS, which includes a description of the Goods to be delivered by the Seller;
"Order" means all the terms and conditions indicated in each purchase order issued by the Buyer;
"Order Confirmation" or "Pro-forma Invoice" means acceptance by the Seller of the Order received from the Buyer;
"Price" means the price of the Goods indicated in the price list in force at the time of receipt of the Order or, if different, on the Order Confirmation, it being understood that, in case of discrepancy, the one indicated on the latter will prevail. The Price shall exclude customs duties and any other taxes and/or insurance, which shall be payable entirely by the Buyer;
"Distinctive Signs" means all trademarks, trade names, company names and logos of the Seller.
These GTCS apply to all agreements concerning the sale of the Goods by the Seller to the Buyer following one or more Orders.
3. ORDERS AND ORDER CONFIRMATIONS
3.1 Each Order must specify the quantity of the Goods ordered and their characteristics, including the type of voltage and must report the unit prices, delivery and payment terms contained in the Offer and/or Quote.
3.2 Each Order, to be sent to the Seller in writing, is deemed firm and binding on the Buyer until the relevant Order Confirmation, it being understood that, in the event of a discrepancy between the content of the Offer and that of the Order Confirmation and/or between the content of the Order and that of the Order Confirmation, the latter will be deemed accepted and the sales contract will be finalised, if the Buyer does not send a dispute of the Order Confirmation within 3 (three) days of receipt of the Order Confirmation itself.
3.3 Orders are deemed accepted and binding on the Seller only and exclusively upon receipt by the Buyer of the Order Confirmation.
3.4 Sending of an Order by the Buyer to the Seller shall constitute acceptance of these GTCS; they shall prevail over any other agreement, unless otherwise agreed in writing between the Parties.
4.1 The Price must be paid by the Buyer to the Seller by bank transfer to the current account that will be indicated by the Seller in the relevant Order Confirmation, according to the terms and conditions indicated therein and must be understood as excluding VAT. The Buyer also agrees to pay any customs duties and/or taxes arising from or otherwise connected with the purchase of the Goods, unless otherwise agreed in writing between the Parties.
4.2 If the Price is paid late:
a) the Buyer shall pay the Seller the interest payable on arrears provided for by Italian Legislative Decree no. 231/2001 (as amended) and
b) the Seller shall be entitled to suspend any outstanding delivery and/or assistance until full payment of the amount due by the Buyer.
4.3 The Seller reserves the right at any time to change the prices indicated in the price list, it being specified, as indicated in the Definitions, that the price indicated in the price list in force at the time of receipt of the Order shall prevail.
5. RESERVATION OF OWNERSHIP
5.1 It is expressly agreed that ownership of the Goods is and will remain the responsibility of the Seller until full payment of the Goods; the Buyer undertakes to do what is necessary so that the afore-mentioned circumstance is also evident to third parties. It is expressly forbidden for the Buyer to perform any act of disposal in relation to the Goods before having paid the Price in full.
5.2 From the date of delivery of the Goods, if the Price has not already been paid in full, the Buyer will assume custody of the Goods and any liability for damage to the Goods, and/or for damage caused by the Goods to third parties, will be the sole responsibility of the Buyer.
5.3 In the event of a breach by the Buyer of the obligations provided for in this article 5, the Seller shall have the right to terminate the contractual relationship with the Buyer deriving from the Order Confirmation, with immediate effect, by registered letter with return receipt, withholding, as a penalty, any sum already paid by the Buyer without prejudice to the right of reimbursement of further damages.
6. DELIVERY TERMS
6.1 The delivery of the Goods and/or any part of them must take place Ex Works (Incoterms 2020) at Achilli s.r.l. Via Montescudo, 148 - 47924 Rimini (Italy), unless otherwise agreed in writing between the Parties.
6.2 The delivery terms are not binding although the Seller will in any case do everything in its power to comply with the terms indicated. The Buyer will therefore not be entitled to request or in any case claim the payment of any delay penalty and/or compensation for direct and/or indirect damages with reference to any delays that may occur in the delivery of the Goods.
6.3 Within 20 (twenty) calendar days from the date indicated on the Goods Ready Notice, the Buyer must arrange for relevant collection. If this deadline is not met, the Seller may request and obtain immediate payment of the entire Price – if it has not yet occurred – regardless of the delivery or, at its discretion, may consider the Order suspended and allocate the ordered Good to others, starting from that moment new delivery terms for the Buyer, with possible updating of the Price. In addition, the Seller reserves the right to charge the Buyer a daily penalty of Euro 10.00 (ten) for the deposit of the Goods from the date indicated in the Goods Ready Notice, in addition to any expenses incurred for the movement of the Goods and any further damage.
6.4 The transportation and insurance of the Goods is entirely at the Buyer's expense, both from an economic point of view and in terms of liability. The Buyer will therefore be responsible for any loss and/or damage suffered by the Goods from the time of delivery of the same, which will take place pursuant to and for the purposes of the provisions of the current article 6.
7. FORCE MAJEURE
In the event of strikes, lockouts, fire, failure to obtain customs licences, wars, riots, pandemics, government requests, orders from civil or military authorities and, in general, in any case that is beyond the control of the Seller, the latter will have the right to reduce the quantity of the Goods sold or to postpone their delivery, it being understood that, in this case, the Buyer will not be entitled to any compensation or reimbursement for damages of any kind.
The Buyer shall not be entitled, for any reason, to delay or suspend payment of the Goods.
8. WARRANTY AND ASSISTANCE
8.1 The Seller represents and warrants that the Goods:
a) are free from defects;
b) comply with the Order Confirmation.
8.2 Upon receipt of the Goods, the Buyer must check their condition and the number of packages and, where appropriate, must immediately report any anomaly in writing, both on the transport document upon delivery of the goods and to the Seller. It should be noted that if the delivery, based on written agreements that derogate from the provisions of article 6 above, is performed by the Seller, it is absolutely essential that the anomalies visually detectable by the Buyer such as, by way of example, dents and/or compromised packaging, are promptly reported in writing on the transport document. Failure to report them will prevent the Seller from taking advantage of the carrier’s/forwarder's insurance coverage and, therefore, the Seller will charge the related repair/replacement costs to the Buyer.
8.3 Any hidden defect must be communicated in writing by the Buyer within 8 (eight) calendar days of its discovery and, in any case, no later than 12 (twelve) months from the delivery of the Goods.
8.4 The Seller guarantees the Goods for a period of 12 (twelve) months from the date of delivery to the Buyer or, if applicable, to the end user and, in any case, no later than 24 (twenty-four) months from shipment. In the event of a complaint of defect of the Goods received by the Buyer, the Seller shall have the right to examine such Goods. In this regard, it is agreed that the Buyer must keep the disputed Goods and/or the allegedly defective part thereof for at least 60 (sixty) calendar days from the date of the dispute, in order to allow an adversarial verification of the Parties.
8.5 After verifying the existence of defects in the Goods, the Seller may, at its sole discretion:
a) repair the defective Goods;
b) replace the defective Goods or
c) reimburse the Buyer for the Price paid for the defective Goods.
It is also understood that any return of the Goods must be previously authorised in writing by the Seller. If authorised, returns must be shipped to the headquarters of the Seller DAP Rimini (Incoterms 2020) accompanied by a regular transport document showing the number and date of the purchase invoice.
8.6 In hypotheses 8.5 (a) and (b) it is specified that:
a) the cost of a technician, if their intervention is necessary, is not to be considered included in this warranty and must be quoted separately;
b) in the event of replacement of parts that must be disposed of, it is agreed that the same will be performed at the Buyer's expense;
c) no cleaning costs, electricity, compressed air or water may be charged to the Seller;
d) the Buyer's personnel are required to collaborate with the Seller's technicians, providing, where requested, information and videos and performing tests aimed at identifying the problem found, which will be requested by the Seller if necessary.
8.7 In case 8.5 (c), or if the Seller deems, at its discretion, to reimburse the Price, a reduction of 10% (ten per cent) will be applied to it for administrative, control, testing and re-storage charges and the provisions of the last paragraph of article 8.5 above and article 8.8 below will apply.
8.8 Defective Goods must be sent to the Seller within 15 (fifteen) working days of the Seller's written request. Any costs and/or expenses of packaging and/or transport necessary for shipment of the defective Goods (or part of them) to the Seller's premises shall be payable entirely by the Buyer. It is understood that, if the defective Goods are not sent to the Seller within the terms indicated in this article, the latter, in the impossibility of verifying the actual defect of the Good, will have the right to charge the Buyer the cost of the Goods and/or the price previously sent to the Buyer in replacement of the allegedly defective one.
8.9 The Seller shall not be liable for defects of conformity and defects of the Goods or parts thereof resulting:
a) also indirectly, from any goods or products incorporated or not in the Goods, supplied, indicated or requested by the Buyer and/or by third parties for any reason on behalf of the Buyer;
b) from normal deterioration due to wear and tear such as, by way of example, the work surface of the machine;
c) non- or incorrect observance by the Buyer of the rules set out in the use and maintenance manual provided by the Seller together with the Goods;
d) incorrect use of the Goods and/or accidents caused by negligence, inexperience or imprudence on the part of the Buyer and
e) non- or incorrect storage of the Goods by the Buyer or by modifications, repairs and/or replacements performed by the same or by Third Parties without the written consent of the Seller.
8.10 The warranty is also excluded in the event that:
a) the Seller is not put in a position to promptly perform the necessary repairs or replacements of the defective Goods and
b) the Goods or parts of them are used despite defects being found in them.
8.11 The warranty provided herein constitutes the sole and exclusive warranty provided by the Seller to the Buyer with reference to the Goods and is provided in lieu of any other warranty, express or implied, arising from law or from other sources.
8.12 The Seller cannot be held liable by the Buyer, nor by any third party user of the Goods, for direct, indirect, consequential and/or incidental damages. The Seller's liability is in any case limited to the Price of the Goods.
8.13 Use times of the Goods exceeding 40 hours per week will result in proportional reductions in the warranty period.
8.14 With regard to electrical, electronic, hydraulic and/or other equipment having their own individuality, of which the manufacturer is identifiable, the Seller need only transfer to the Buyer, if any, the same warranty that it received in turn from the manufacturers of said parts, and under the conditions in which it itself could have directly asserted at the time of discovery of the defect.
9. PROGRAMS AND MANUALS
9.1 With reference to the programs licensed on the Goods and the user manuals, the Buyer acknowledges that the Seller does not make any representations or issue warranties, expressed or implied, including, among others, the warranty of merchantability and suitability for a particular purpose, that the programs are adapted to meet the needs and that they operate in the combinations chosen by the end user, that they are immune to errors or have functionalities not provided for in the specifications and user manuals, in relation to the program, the written accompanying material and to each annexed program.
9.2 The programs installed on the Goods always remain the exclusive property of the Seller, covered by its own or third party copyrights, which will be limited to giving the Buyer the licence to use them, to be used exclusively and jointly with the same Goods, which cannot therefore be separated, delivered or sold to third parties independently.
9.3 Under no circumstances may the Seller be held liable for any direct or indirect, special or consequential damages that may arise to the end user or to anyone as a result of the use or non-use of the licensed programs, such as for loss of income, interruption of activity, loss of information or other economic losses deriving from use of the programs. The Seller's exceptional liability will be limited to an amount corresponding to that actually paid for the program.
10. INSTALLATION, TESTING AND TRAINING
10.1. Installation of the Goods, unless otherwise agreed in writing between the Parties, is always to be considered the responsibility of the Buyer. The Seller declines all responsibility for any damage resulting from the Goods and/or to the Buyer and/or to third parties as a result of installation of the Goods not being performed by the Seller.
10.2. If the installation of the Goods is performed by the Seller, the consideration for the installation work, together with the travel, food and lodging expenses of the technical personnel appointed for this purpose, will be calculated separately from the Price of the Goods, as specified in the Offer and/or Order Confirmation. Also in this case, the personnel appointed by the Seller must be put by the Buyer in the conditions to be able to perform installation of the Goods in adequate environmental conditions, with the help of suitable means and personnel and in compliance with the current regulations. The Buyer will be held liable, both from a civil and criminal point of view, for any damage that may occur to the afore-mentioned personnel in case of breach of the current legislation by the Buyer.
10.3. In the case of installation of the Goods by a technician of the Seller, the Buyer must ensure that on the day established for the installation:
a. the Goods are already positioned;
b. the necessary electrical, hydraulic and compressed air connections have been prepared, it being understood that the relative connections necessary for installation of the Goods are performed by specialist personnel appointed by the Buyer and at the expense of the latter;
c. all the tools and material (e.g. slabs to be cut) necessary to perform installation and testing of the Goods are made available to the technician.
If the above are not ready and available on the agreed day for installation, the consequent costs caused by the need to extend the technician's presence at the Buyer's premises will be payable by the Buyer.
10.4. During the presence of the Seller's appointed technician at the Buyer's premises, they must be constantly assisted and supported by the Buyer's personnel.
10.5. The post-production testing of the Goods is performed at the Seller's plant 15 (fifteen) days before delivery of the Goods to the Buyer. If the Buyer intends to attend the test, they must in any case make a written request at the same time as the Order, it being specified that, after the test has taken place in the presence of the Buyer, the Goods will be considered accepted.
11. The drawings, illustrations, indication of the measurements of the Goods, their operation, capacity and efficiency contained in brochures, catalogues and/or on the Seller's website, as accurate as possible, are not binding on the Seller. It should be noted, ad abundantiam, that in the event of disagreement between what is indicated in the documents listed above and the Offer/Quote, what is indicated in the Offer/Quote will always prevail.
12. The drawings, illustrations, descriptions and characteristics of the Goods and any other documentation delivered shall remain the property of the Seller and must not be copied or communicated to third parties without the prior written consent of the Seller.
13. The Seller is the sole owner of the Distinctive Signs and the Buyer expressly acknowledges this circumstance. The Buyer may not take any action that may put at risk, violate, damage or in any way compromise or interfere with the Seller's right to the Distinctive Signs. The property and any right of/to the Distinctive Signs is and shall remain the responsibility of the Seller. Any use of the Distinctive Signs by the Buyer in accordance with the provisions herein shall be solely for the benefit of the Seller and the Buyer shall not acquire any rights with respect to any of the Distinctive Signs.
14. The contractual relationship established between the Seller and the Buyer does not imply any form of partnership, agency, distribution or joint venture between the Parties. It is therefore expressly agreed that the Buyer shall have no right to act, either directly or indirectly, as an agent of the Seller or to negotiate on behalf of the Seller.
15. The Buyer shall comply with all the rules applicable to importation of the Goods and shall be solely responsible for compliance therewith.
16. These GTCS supersede and replace any previous understanding and agreement, verbal or written, between the Parties on the subject matter thereof.
17. To be valid and effective, any modification or integration of these GTCS must result from a written deed duly signed by both Parties.
18. These GTCS (and any Offer, Order and Order Confirmation) will be governed by Italian law, the applicability of the Vienna Convention being expressly excluded.
19. Any dispute between the Parties in connection with these GTCS and/or any Offer, Order or Order Confirmation (including, without limitation, matters relating to interpretation, resolution, relevance and prejudice) for which the Parties are unable to agree amicably in good faith, shall be referred exclusively to the jurisdiction of the Court of Rimini.
Pursuant to the provisions of articles 1341 and 1342 of the Italian Civil Code, the Buyer expressly approves the following provisions: art. 3 (Orders and Order Confirmations); art. 4 (Price, payment terms, taxes and customs duties, default interest, suspension of delivery and assistance, modification of the Price); art. 5 (reservation of ownership); art. 5.3 (termination for non-compliance and application of penalty); art. 6.2 (delivery terms); art. 6.3 (Goods Ready Notice, non-/delayed collection of the Goods); art. 6.4 (transportation and insurance of the Goods); art. 8 (warranty and assistance); art. 10 (installation, testing and training); art. 18 (applicable law); art. 19 (competent court).