General Terms of Sale
OREFICE POWERGEN S.R.L
Registered Office: Ex SS 131 km 7.00 - 09028, Sestu (CA)
Operational Headquarters: Z.I Su Fraigu 09026. San Sperate (SU)
+39 070 2298142 - +39 070 229035
VAT NUMBER IT003987800921
FISCAL CODE IT03987800921 - REA CA - 354359
REGISTRATION NUMBER 03987800921 AT THE CAGLIARI COMPANIES REGISTER
SHARE CAPITAL 10,000.00 EURO FULLY PAID UP
Definitions of the main items mentioned in the contract:
"Buyer": means the Buyer or the beneficiary of the good/service.
"Year - day - month": are intended to be calculated according to the calendar in force in Italy.
"Vendor-Company": means Orefice Powergen s.r.l. with its registered office in Italy, at Ex S.S.131 km 7.00 Sestu (CA) Italy.
"Plant/s": means the plants indicated in the Special Conditions.
"Contract": refers to the Special Conditions and the General Conditions collectively.
Art. 1. Introduction
1.1. These General Conditions, along with the Special Conditions, apply to all orders (hereinafter referred to as "Orders" or, singularly, "Order") and all sales, even if split, divided, or continued, made by the Company to the Buyer, for the Seller's Plants. In case of conflict, the Special Conditions prevail. This contract constitutes the sole and exclusive supply contract, therefore it cancels and replaces any purchase contract proposed by the Buyer.
1.2. Any Order from the Buyer, even in the case of simple execution of the Contract by concluding behaviours, implies acceptance of these General Conditions. Any general conditions set out by the Buyer will not be applied, not even partially, unless they have been expressly accepted in writing by the Seller.
1.3. Contrary to Article 1418 of the Italian Civil Code, the invalidity that should affect one of the individual clauses of these General Conditions, will not automatically affect the validity of the entire Contract.
1.4. These General and Special Conditions represent the agreement reached between the Parties and cancel and replace any other agreement, previously made between them, both in writing and orally.
1.5. Any possible modification or integration of these Conditions, both Special and General, must be agreed in writing between the Parties.
1.6. The fact that one of the Parties refrains, even repeatedly, from demanding the precise fulfilment of this Contract by the other party, does not constitute any waiver, by the first, of the full exercise of the rights arising from the Contract itself.
Art. 2. Order
2.1. The Order is to be considered valid and accepted by the Seller only if confirmed in writing by the latter by sending to the Buyer the Order Confirmation together with these General and Special Conditions, which, in turn, must be countersigned for acceptance by the Buyer and sent to the Seller.
2.2. Every Order is considered firm and irrevocable and cannot be cancelled from the moment it has been confirmed by the Seller.
2.3. Any deposits paid by the Buyer in advance of the delivery of the Plant will be credited against the total price of the Plant. In the event that the Buyer fails to fulfil the obligation to collect the Plant, within the terms and conditions provided for in the General and Special Conditions, the deposits paid will be retained by the Seller as a penalty, notwithstanding, in any case, the Seller's right to compensation for any additional damage.
Art. 3. Characteristics of the Plants - User and Maintenance Manual - Technical Modifications - Intellectual and Industrial Property Rights
3.1. Any information, concerning weight, dimensions, prices, yields or any other data concerning the characteristics and/or technical specifications of the Plants contained in the technical sheet, brochures, price lists, catalogs, prospectuses are purely indicative and are to be considered binding only if expressly referred to in this Contract or in the order confirmation. The performances and power and consumption data provided by the Seller and/or by the manufacturers of the engines and alternators, are nominal and provide tolerances in reference to ISO-CEI-UNI regulations.
3.2. Along with the Plant, the Seller delivers to the Buyer the relative User and Maintenance Manual. The Buyer acknowledges that all drawings, documents, technical information, as well as the User and Maintenance Manual are the exclusive property of the Seller (also in terms of intellectual and industrial property rights) and are provided to the Buyer on a confidential basis.
3.3. The Seller reserves the right to make any technical changes to the Plants, even during the execution of the Order or to an Order already executed, which, without altering the essential characteristics of the same and at his unquestionable judgement, should result necessary or useful for a better use of these.
3.4. All drawings, documents, technical schemes, manuals, as well as all logos, brands, whether registered or not, symbols, names and any other distinctive sign related to and used by the Seller with regard to the Plant - including those that it might adopt in the future - must be considered as the exclusive property of the latter, also in terms of intellectual and industrial property rights.
3.5. The Buyer is absolutely forbidden to reproduce or communicate to third parties, by any means, news or information that allow the reproduction or duplication of the Plants.
Art. 4. Delivery
4.1. Unless otherwise agreed, deliveries of the Plants are understood as Ex Works; it is understood that the risks of transport are entirely borne by the Buyer, even if the Plants are transported by the Seller and even if by means chosen by the latter.
4.2. Notwithstanding that the price of the packaging is borne by the Buyer, as it is not included in the price of the Plant as established in the following art. 8), the Seller reserves the full freedom to determine the type of packaging according to the needs of the transport and will be in any case exempted from any liability with the delivery of the Plant packed to the carrier or freight forwarder. The packaging must be considered as per art when the carrier and/or forwarder have accepted the delivery.
4.3. Given that the delivery term is indicative and not binding for the Seller, if the latter foresees not being able to deliver the Plants at the agreed delivery date, he must promptly notify the Buyer in writing, indicating, where possible, the expected delivery
Only in the event that the delay attributable to the Seller exceeds 18 weeks, the Buyer may:
terminate the Contract relating to the Systems whose delivery is delayed, with a notice period of 10 days, to be communicated in writing to the Buyer;
request, upon written notice to the Seller, compensation for the actual damage demonstrated by him, up to a maximum of 4% of the price of the Systems.
4.4. Delays due to causes not attributable to the Seller or due to Force Majeure, as well as strikes at the Seller's headquarters and/or at its suppliers, and/or at its carriers, or resulting from the need to modify the Systems as per Art. 3.3) or due to acts or omissions of the Buyer (e.g., failure to communicate necessary instructions for the supply of the Systems) are not considered attributable to the Seller. Such cases justify an extension of the established delivery date or, if necessary, partial execution of the Order or, if this is not possible, withdrawal by the Seller.
4.5. Except in cases of willful misconduct or gross negligence by the Seller, the payment of the sums referred to in Art. 4.3) excludes any further compensation for non-delivery or delayed delivery of the Systems.
4.6. In case of delay in delivery attributable to the Buyer, the Seller reserves the right to charge the Buyer the costs it may incur due to this delay such as, purely by way of example, storage costs.
Art. 5. Warranty
5.1. The warranty offered by the Seller covers new factory Systems as accepted and purchased by the Buyer, and involves, at the Seller's discretion, the repair or replacement of the Systems that should prove defective, at the service centers indicated by the Seller, as soon as possible, and in any case within the agreed times.
It is understood that for the purposes of this warranty, defective Systems are only those affected by design, material, or construction defects attributable to the Seller. The Seller, in any case, reserves the right, at its absolute discretion, to provide for repair or replacement at its own facility in San Sperate (South Sardinia Cagliari) - Italy.
5.2. This warranty is granted for a period of one year from the delivery of the System and will be considered operational only if the defect is reported in writing by the Buyer within 30 days of discovery.
5.3. It is understood that the aforementioned warranty (consisting in the obligation to repair or replace the Systems) is comprehensive and replaces the guarantees or liabilities provided for by law and excludes any other liability of the Seller except in the case of willful misconduct or gross negligence of the latter, both contractual and non-contractual, however originating from the Systems supplied (e.g., compensation for damage, lost profits, product recall campaigns, etc.). The Buyer, therefore, except in the case of willful misconduct or gross negligence, cannot make claims for compensation for damages, reduction of price or termination of the contract. After the warranty period has expired, no claim can be made against the Seller.
5.4. This warranty is excluded and therefore not applicable in the following cases:
if the Buyer has made changes or had repairs carried out on the Systems without prior written authorization from the Seller;
if the Systems are improperly used by the Buyer and/or put into different conditions of use than those specified in the User and Maintenance Manual;
if defects or malfunctioning are caused by lack of skill or neglect in the use of the Systems by the Buyer, by overload, by wear due to prolonged use over time or by improper use of the Systems;
if the System has not been subjected to maintenance and/or lubrication services to be carried out at the deadlines set and included in the User and Maintenance Manual provided with the System, exclusively by specialized personnel of the Seller or other personnel authorized by the latter and/or has not used the fuel and lubricants indicated in the User and Maintenance Manual;
if the Buyer has not carried out the maintenance interventions prescribed for the System in the User and Maintenance Manual, or has used non-original spare parts, or carried out any repairs or modifications at centers not authorized by the Seller;
if the place of use of the System is different from the agreed one or must undergo variations, is located in areas not accessible by normal vehicles or the use of the Systems must take place in dusty places, saline climates, presence of corrosive substances, high humidity, difficult environmental conditions - low temperatures (below 0°) or high temperatures (above +35°).
5.5. It is understood that, under this warranty, only the costs of replacement and/or repair of the Systems will be charged to the Seller.
Therefore, if the Buyer requests the repair and/or replacement service under warranty at the place where the System has been installed, the travel, transport, and per diem expenses (including the authorized personnel's expenses) will be borne by the Buyer.
Furthermore, if it becomes necessary to admit the System or major parts of it to the Seller's premises, the costs and expenses of this operation (particularly lifting equipment, transport, etc...) will be borne by the Buyer.
5.6. Any defects or malfunctioning of the Systems do not give the Buyer the right to suspend or otherwise delay the payments of the Systems under dispute, nor, even less, of other supplies.
5.7. Any warranty interventions and replacement of Parts or components by the Seller do not result in the renewal of this warranty which will be considered valid only within the year from the original delivery of the System.
Art. 6. Seller's Liability
The Seller cannot be held responsible for direct or indirect damages to persons, animals or things if:
a.) the damages are caused by:
I) negligence, carelessness, improper and/or incorrect use by the Buyer and/or his auxiliaries or use of fuels or lubricants different from those indicated in the User and Maintenance Manual;
II) lack of, or insufficient, or incorrect maintenance;
III) modifications or tampering with the Systems provided;
IV) failure to comply with the instructions contained in the User and Maintenance Manual delivered together with the System;
V) use of non-original spare Parts or failure to carry out repairs or modifications at the centres authorised by the Seller
VI) violations of accident prevention and safety regulations.
b.) the state of scientific and technical knowledge at the time of delivery of the System or the original spare part to the Buyer did not yet allow considering the System as defective;
c.) the systems have not been used by adequately informed and trained personnel;
d.) the damaged party, despite knowing of the defect, voluntarily ignored it thus exposing himself to a danger;
In the above cases, the Buyer also undertakes to explicitly indemnify the Seller from any claim for any reason made by third parties against the Seller.
Art. 7. Used Systems
7.1. Unless otherwise agreed between the Parties, the warranty provided for in the previous art. 5) does not apply to the used Systems provided by the Seller which are understood to be purchased by the Buyer in the state in which they were at the time of delivery, as seen and liked.
7.2. In any case, the following components are not subject to any form of warranty: starter battery, electronic components, instrumentation and, more generally, all those Parts whose review or replacement fall within normal routine or extraordinary maintenance (e.g. oil leak, fluid leak, replacement of hoses, gaskets, calibrations, adjustments, etc.).
Art. 8. Prices - payment conditions – delayed payments - Buyer's solvency
8.1. The prices of the Systems are understood not inclusive of packaging, shipping, transport, assembly, installation (if provided) and VAT and other related tax charges.
The prices of the Systems are understood to be fixed and invariable if the delivery takes place within 120 days from the Order; for later deliveries, not due to delays attributable to the Seller as per art. 4.3.), the price list in force at the time of actual delivery will apply.
8.2. The Customer may not assert any breaches by the Seller if he is not up to date with payments. In any case, any breaches by the Seller do not allow the Buyer to suspend or delay, even in part, the payments.
8.3. In case of late or non-payment of the price at the agreed deadlines, as well as if the guarantees of the Buyer's solvency were missing or decreased, the Seller, at his unquestionable discretion, will have the right, at any time, to suspend and/or cancel the current Order, as well as any further delivery and/or remaining Orders, by giving written notice to the Buyer.
Fifteen (15) days after the due dates set for payment, the Seller is explicitly authorized to issue a sight draft, which the Customer declares to accept and authorize now, increased by the collection costs and the draft itself.
8.4. Notwithstanding the previous clause, in case of delayed or non-payment of the price at the agreed deadlines, interest will automatically accrue on the due amounts, and without the need for prior notice, at a rate equal to the official discount rate applied by the European Central Bank plus 2 points, in force at that time, calculated on the expired and unpaid amounts.
Art. 9. Retention of title
It is agreed that the Systems delivered remain the property of the Seller until the full and integral payment of the price has been received by the latter. Acknowledging the right of the Seller to exercise the right of retention of title, in case of damage and/or loss of possession of one or more machines or systems, the Customer transfers to the Seller the rights to compensation deriving from any insurance coverage taken out, without precluding any other recourse action.
Art. 10. Assembly - Installation - Permits
10.1. All aspects related to the possible assembly and installation of the Systems by the Seller, as indicated in the Special Conditions, as well as the possible request for additional supplies of Systems or services, are governed in the annex marked with the letter "A", which is also an integral part of this Contract.
10.2. Unless expressly agreed otherwise, the assembly and installation of the System are carried out by the Buyer, at his own expense and responsibility.
10.3. It is understood that the System is intended for fixed use and is not to be considered either self-propelled or mobile within the meaning of Directive 2000/14/EC and subsequent amendments, the latter of which will therefore not apply.
10.4. The Buyer undertakes to bear any taxes and charges related to the System, as well as to comply with the requests for authorization for the installation and use of the System with the competent authorities based on the intended use of the machine, expressly releasing the Seller.
Art.11. Privacy Personal data
Pursuant to and for the purposes of Law 31.12.1996 n 675 and subsequent amendments, the Parties declare that they have mutually informed each other and agree that the collected personal data are subject to processing in the Clients/ Suppliers archive for legal, tax, management, statistical, commercial, and marketing purposes.
The Parties, as data controllers, expressly declare that they are aware of their respective rights arising from the application of Legislative Decree no. 196/2003 and subsequent amendments.
Art. 12. Compliance with current regulations
The Seller guarantees the conformity of the Systems to the regulations, rules, and laws in force in Italy at the time of the Order.
Art. 13. Dual-use
13.1. The Buyer declares that he is aware of the existence of European Union legislation concerning the transfer of dual-use technologies and that a possible decision by the competent Italian and/or European authority and/or a Member State of the European Union may limit or prohibit the export of the Systems from Italy or another European State, and that in such an event the Seller cannot be held responsible in any way or for any reason.
13.2 The Buyer assures and declares that the Systems will be used exclusively for civil use and that any different use is excluded.
Furthermore, the Buyer assures, guarantees, and assumes responsibility - also towards third parties - that the Systems will not be re-exported outside Italy.
Art. 14. Possible resale of the Systems
In order not to generate or create confusion in the market, the Seller – if the Buyer is a commercial intermediary – suggests, by means of price lists, the minimum resale prices, while the Buyer is free to determine his own selling prices but will try to adhere, as much as possible, to the price lists suggested by the Seller.
Art. 15. Competent court
For any dispute relating to or in any way connected with this Contract, the Court of Cagliari, Italy, is exclusively competent.
However, notwithstanding the above, the Seller may also initiate a dispute at the Buyer's Court.
Unauthorized duplication or dissemination, even in part, is prohibited.