1. SCOPE OF APPLICATION
1.1. The parties agree that the sale of goods manufactured or marketed by the seller shall be governed exclusively by the following general terms and conditions.
1.2. The general terms and conditions shall be valid and applicable for all present and future relations between the parties, a reference to this in each individual order confirmation being sufficient
2. SUBJECT
2.1. The contractual goods are those set out in the seller’s catalogue or described in the order confirmation.
3. PRICES
3.1. The price is that indicated by the seller in the order confirmation.
3.2. However, any additional costs relating to incidental expenses, duties and/or other taxes of any kind and nature shall be borne by the purchaser.
4. DELIVERY, DISPATCH, TESTING, COMMISSIONING, TRANSFER OF RISK AND RETENTION OF TITLE
4.1. The delivery term is that indicated in the order confirmation and is to be regarded as indicative without, therefore, the purchaser having any claim for compensation against the seller in the event of delay.
4.2. Once the purchased goods have been completed, the seller will send the buyer a notice of readiness with an invitation to collect them.
4.3. Collection shall be made at the buyer’s expense, since the goods are deemed to be delivered at the seller’s works or warehouses and always travel at the buyer’s risk and expense (EXW sale). It shall therefore be the purchaser’s responsibility to take out a suitable insurance policy and to take any action it deems appropriate against the carrier or transporter.
4.4. The parties, in any case, reserve the right to provide that the seller shall be responsible for and bear all risks and costs of transport up to delivery at the place agreed with the buyer, and shall also bear all risks and costs of customs clearance (DDP sale).
4.5. In the case of shipment by sea, if agreed upon and confirmed in the sales confirmation, delivery shall be deemed to take place at the loading dock of the port chosen by the purchaser (FAS sale). All stages of transport, starting with the loading, as well as the chartering, equipping and fitting out of the vessel, shall be the responsibility of the Buyer.
4.6. In the event of failure to collect the goods within 15 days of their being made available, the contract shall be deemed to be rescinded pursuant to Article 1456 of the Italian Civil Code, with the seller having the right to forfeit any payments received as a down-payment on the greater amount owed by the purchaser as compensation for damages.
4.7. From the time the goods are made available until any termination of the contract by operation of law, all risks relating to the goods sold shall be borne by the purchaser.
4.8. The goods are sold with a retention of title clause pursuant to and for the purposes of articles 1523 et seq. of the Italian Civil Code, so that ownership of the goods supplied shall pass to the purchaser only when the latter has paid the price in full, and in the case of payment by instalments, ownership shall pass to the purchaser only when the last instalment has been paid. In the event of non-payment of even a single instalment, the seller shall have the right to consider the contract terminated by withdrawing the goods supplied and without being obliged to return the instalments already paid, which it shall retain by way of damages for the use and detention of the goods supplied, without prejudice to the right to liquidation of greater damages for the state of the goods upon return. The delivery shall also be deemed to have been made with the clause referred to in Art. 2762 of the Civil Code. In the event of attachment, seizure and any executive or conservative action, the purchaser shall immediately notify the seller and inform the judicial officer of the existence of this deed of retention of title. The Buyer may not, until the price has been entirely paid, exercise any act of dominion over the goods supplied to him by the Seller, nor alienate or remove them, unless authorised in writing by the Seller, from the premises where they are installed. The buyer also undertakes to notify the owner of the property in which the goods are to be installed of the retention of title to which said goods are subject, the seller being understood to be relieved of liability towards said owner in the absence of such notification. The responsibility for the custody, preservation and use of the goods is assumed by the Buyer who shall respond, in any case, even in fortuitous cases such as fire, theft, etc., for which the same undertakes to provide insurance for all risks of the goods. It remains the Seller’s right to send its personnel to check that the goods are held in the agreed conditions or to carry out any other survey deemed necessary.
4.9. From delivery until the transfer of ownership of the goods to the buyer, the buyer shall be obliged to store the goods in a safe and secure place, indicating that ownership is still in the hands of the seller.
4.10. Following non-payment resulting in non-transfer of ownership of the goods, the seller shall be entitled at any time to require the buyer to redeliver the goods at the seller’s expense. If the Purchaser fails to comply with this request within 10 days, the Seller shall be entitled to compulsorily demand their return.
4.11. Testing is carried out in the BREAK MACHINERY SRL factory, before shipment. The Buyer, if he expressly requests it, has the right to be present, in person or by proxy, for the testing before the take-over of the machinery.
4.12. BREAK MACHINERY SRL assures, for the assembly of the machinery object of the Sale and Purchase Agreement, the sending of its own specialised personnel, for a period and at costs established in the agreement. In addition, BREAK MACHINERY SRL guarantees to send its own specialised personnel for the commissioning of the machinery in accordance with the terms agreed upon in the sales contract. In any case, the Buyer is responsible for the works, connections, labour and anything else necessary for the installation and assembly of the machinery object of the sales contract..
5. PAYMENT, PROHIBITION OF SET-OFF, FORFEITURE OF THE BENEFIT OF THE TERM, EXCEPTION OF NON-PERFORMANCE AND EXPRESS TERMINATION CLAUSE.
5.1. The purchaser undertakes to make payment of the amount due within the terms and in the manner set out in the order confirmation.
5.2. The purchaser may not, under any circumstances, suspend or delay the payment of the amount due or set it off against any counter-credits.
5.3. In the event of non-payment or delayed payment of even a single instalment, the purchaser shall forfeit the benefit of the term pursuant to Art. 1186 of the Italian Civil Code, with the seller’s right to demand full payment of the price still due, while the seller shall be entitled to suspend any further deliveries pursuant to Art. 1460 of the Italian Civil Code.
5.4. In the event of non-fulfilment even of the payment deadline referred to in Art. 5.3, the vendor shall have the right, until it obtains payment of the aforementioned amount, not to perform its obligations under all contracts that may be in force between the parties, pursuant to Art. 1460 of the Italian Civil Code, with the right to forfeit any payments received as advance payments.
5.5. In the event of delay in payment, the Seller shall be entitled to commercial default interest as provided by law.
6. COMPLAINT, QUALITY AND GUARANTEE
6.1. The purchaser is obliged to report any claims and/or defects of the purchased goods within 8 days from delivery, under penalty of forfeiture; to this end, only complaints received within the aforementioned term by registered letter with return receipt or P.E.C. shall be considered valid.
6.2. The complaint shall in any case not be considered valid in the absence of a detailed description enabling the seller to carry out a possible check.
6.3. Any damage to or apparent defect in the goods sold, as well as any irregularities in the order specifications, shall give the purchaser the sole right to request a replacement with the exclusion of any liability for direct or indirect damage.
6.4. However, the purchaser shall not be entitled to demand the replacement of the disputed good, nor a price reduction or compensation for damages, if the defect relates to a quantity of less than 3% of the entire delivery.
6.5. BREAK MACHINERY SRL warrants to the Buyer, but not to its assignees, the machinery that is the subject of the present Sale and Purchase Agreement for the duration of 12 months from 15 days from the date of the shipping document, on the parts only, excluding labour. Excluding parts subject to wear and tear. Wearing parts are understood to be filters (punched or laser microperforated), scrapers, wire cloth filters, gaskets, oil filters, lubricants. Spare parts shipping cost at your expense. The warranty consists of the repair or replacement of parts acknowledged to be defective in manufacture at the sole discretion of BREAK MACHINERY. Any replacement of parts involves the purchaser returning the defective part to the Break Machinery factory (Grantorto Padova – Italy). The repair or replacement of parts under warranty in no way modifies the terms of the initial warranty. The warranty does not apply to parts that have been tampered with or damaged by the Buyer. Any modification to the machine, not authorised by the manufacturer in writing, shall invalidate the Guarantee. The Purchaser waives any prior claim for damages or expenses, including those arising from the temporary non-use of the purchased machine for as long as it takes to restore it to working order. The warranty does not extend in any case to parts that have worn out with normal use and is understood to be excluded if the fault was caused or contributed to by misuse of the machine, modifications or repairs made by the Buyer, the use of unsuitable lubricants.
7. ASSIGNMENT OF THE CONTRACT AND TRANSFER OF RIGHTS
7.1. The seller may assign the sales contract or transfer part or all of the rights and obligations arising from this contract and the sales contract to a third party. Any transfer by the Purchaser, however, may only take place with the prior written consent of the Seller.
8. FORCE MAJEURE
8.1. The parties agree that fires, mechanical breakdowns, power failures, epidemics, pandemics, the blocking of transport, decisions by public authorities, labour and trade union disputes, strikes, unrest or in any case events beyond the seller’s control that hinder or limit the normal course of production or sale, shall be considered force majeure causes pursuant to art. 1256 of the Civil Code.
8.2. However, in the hypothesis referred to in art. 8.1, should the seller succeed in producing a smaller quantity of the goods sold, the purchaser shall not be entitled to refuse delivery or to claim any compensation for damages.
9. JURISDICTION, APPLICABLE LAW, EXCLUSIVE JURISDICTION AND WAIVER IN FAVOUR OF THE SELLER ONLY
9.1. The present contract and those of sale arising from it are subject to the exclusive jurisdiction of the Italian Courts, governed exclusively by Italian law, as set forth in the Italian Civil Code.
9.2. The Court of Padova shall have exclusive jurisdiction for the resolution of any dispute concerning this contract and those of sale and purchase deriving from it.
9.3. The seller shall have the right, at its sole discretion, to refer the matter to the judge of the place of domicile of the purchaser, with application of the local law, for the payment of the consideration due for the sale of the goods governed by this agreement. The Italian version of this agreement shall be considered as the original and shall prevail over all others.
The following articles are specifically approved pursuant to Articles 1341 and 1342 of the Italian Civil Code:
4.8. (reservation of title)
5.3. – 5.4. (express termination clause and exception of non-performance of other contracts);
7.1. (assignment of contract)
8.1. – 8.2. (force majeure and prohibition of refusal to under-deliver);
9.1. – 9.2. (exclusive jurisdiction, applicable law and exclusive place of jurisdiction).