GENERAL TERMS AND CONDITIONS
FOR THE SALE OF GOODS
DEFINITIONS
Capitalized terms used in the GC or in the Contract shall have the following meanings:
“Advance Payment” means any payment made by the Buyer before Delivery.
“Affiliate” means any legal entity person controlling, being controlled by or under common control with either Buyer or Seller respectively. As used in this definition, “controlling” means (i) with respect to a company or corporation, the ownership, directly or indirectly through one or more intermediaries, of more than 50% of the voting rights attributable to the shares of capital stock of that company or corporation and more than 50% of all capital stock of that company or corporation; and (ii) with respect to other than a company or corporation, the ownership, directly or indirectly, of more than 50% of the equity capital and the power to direct or cause the direction of the management and policies of such entity.
“Blanked Order” means a Contract for the continuous purchase of Goods.
“Buyer” means any individual, company or other legal entity purchasing the Goods.
“Contract” means any agreement for the purchase/sale of Goods executed by way of issuance of a PO and PO Confirmation or issuance of a Quote or Quote Confirmation under GC and/or a Blanket Order.
“Confidential Information” means all information – whether identified as being confidential or not – disclosed at any time and relating to the Goods, including the Maddalena Proprietary Rights, and any other confidential information or trade secrets which have been or will be disclosed between the Parties relating to their respective businesses, customers, products, research, development, marketing and sales plans, financial status, strategies and any other information related to the Parties that comes to knowledge of the other Party through the commercial relationship before, during or after validity of a Contract. Information that: (i) can be demonstrated to have been, or have become, in the public domain, or comes into the public domain thereafter through no fault of the receiving Party, or (ii) can be demonstrated by clear and convincing evidence to have been independently developed by that Party or (iii) is rightfully received by that Party from a Third-Party who is not under an obligation of confidence to the other party, shall not be Confidential Information.
“Day” means calendar day.
“Delivery” means the delivery of the Goods ex-works (EXW Incoterms®) Seller’s premises or Seller’s sub-supplier’s premises, unless specified in a PO Confirmation or in a Quote. Deliveries may be in separate lots.
“Delivery Dates” means the date of Delivery of the Goods specified in a Contract. Delivery Dates are binding to the Buyer.
“Disclaimer” means any disclaimer of Seller’s responsibilities contained in Documents, in the GC or in the Contract.
“Documents” means catalogues, manuals, tables, letters, advertising, photos, price lists and any other document containing Goods Information.
“Force Majeure” means any event beyond Seller’s control (such as, by mere way of example, labour conflicts, adverse weather conditions, fire, export and import prohibitions, currency restrictions, war, riot, strike, epidemies, pandemics, earthquakes, floods, order of public authorities or other obstructions) preventing in full or in part the performance of a Contract.
“Forecast” means a minimum quantity of Goods a Buyer commits to purchase under a Blanket Order.
“GC” means the general terms and conditions as well any reference to external documents contained herein ruling any purchase of the Goods from the Seller under a Contract. Unless specified, GC prevails over any other document and are automatically deemed accepted upon issuance of a PO or Quote Confirmation.
“Good” or “Goods” means any – hardware or software – item, product, spare-part, or component purchased by the Buyer from the Seller.
“Goods Information” means information about weight, dimension, capacity, price, technical features of the Goods and other data, mentioned in Documents. Unless necessary for the proper functioning of the Goods, are to be considered purely as indicative.
“EL” means Seller’s Disclaimer of liabilities SUCH AS INCIDENTAL (INCLUDING ANY DAMAGES DUE TO DELAY), SPECIAL, CONSEQUENTIAL (INCLUDING LOSS OR CORRUPTION OF DATA OR LOSS OF REVENUE, SAVINGS OR PROFITSOR OTHER FINANCIAL LOSS) OR EXEMPLARY DAMAGES. EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER UNIT PRICES REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.
“Incoterms®” means Incoterms® 2020 or any updated version.
“Interests” means interests for late payment of the Invoices at the monthly rate of Euribor +8%.
“IPR” or “Intellectual Property Rights” means all intellectual property rights, including but not limited to, rights to inventions, patents, copyrights, rights of use or distribution, design rights, rights to technical documentation, descriptions, drawings and rights to Confidential Information and know-how on the Goods. IPR remains with the Seller even if developed for the purpose of a Contract.
“Lead Time” means the minimum timeframe within which a Good is available for Delivery, as specified in Documents. If not specified, standard Lead Time is 90 Days.
“LL” means THE AGGREGATE LIABILITY OF THE SELLER AND ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, EMPLOYEES OR OTHER REPRESENTATIVES, ARISING IN ANY WAY IN CONNECTION WITH THESE GC OR ANY CONTRACT — WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE — SHALL NOT EXCEED THE UNIT PRICE PAID BY THE BUYER FOR THE DEFECTIVE GOOD OR, IF MULTIPLE GOODS ARE FOUND DEFECTIVE, TOTAL AMOUNT PAID AND PAYABLE TO THE SELLER FOR SUCH GOODS UNDER A CONTRACT. THE BUYER SHALL NOT BE LIABLE FOR ANY CLAIM MADE THE SUBJECT OF A LEGAL PROCEEDING MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION ASSERTED IN SUCH CLAIM AROSE.
“Payment Terms” means the timeframe within which the Buyer shall fulfill the payment obligations under a Contract. Unless specified, 100% Advance Payment 10 Days before Delivery Dates.
“Parties” means Seller and Buyer, jointly.
“Party” means the Seller or the Buyer, as the case may be.
“PO” means any written request for purchase of Goods issued by the Buyer under the GC.
“PO Confirmation” means the written acceptance by the Seller of a PO issued in compliance with the GC.
“Price” means the price for the quantities specified in the Contract multiplied per the Unit Prices in force at the time the Contract is executed.
“Price List” means Seller’s price list for the Goods, as specified in the Contract or, if no mentioned in the Contract, the Seller’s price list in force.
“Quote” means any (non-binding) commercial offer or trade quote submitted in writing by the Seller to the Buyer for any commercial transaction of Goods. Quotes are a mere point of reference and automatically expires on the tenth Day following their issuance.
“Quote Confirmation” means the written acceptance by the Seller of a Quote issued in compliance with the GC.
“Security” means any guarantee (letter of credit, bank guarantee, bank bond, insurance) given by the Buyer to secure the Payment Terms.
“Seller” means MADDALENA S.P.A., a company duly incorporated under the laws of Italy, having registered offices at via G.B. Maddalena 2/4, 33040 Povoletto (UD), Italy, VAT no. IT00617140306, Company reg. no. UD 80008170302 and any Affiliate selling the Goods.
“Signature” means the signature of the legal representative of each Party or by other individual vested by a Party will all the necessary powers.
“Software” means any software necessary to operate, monitor or control hardware Goods.
“Third-Party” means any party other than the Parties.
“Unit Price” means the price of a single Good, as mentioned in the Price List. Unit Prices are EXW, VAT excl., regular packaging. Unit Prices may be periodically updated to reflect foreign exchange fluctuations, currency regulations, alterations of duties, increases in the cost of labor and raw materials, petrol cost, electricity cost, etc. giving written notice fifteen days prior Delivery. Unit Prices reflects the allocation of risks, EL and LL contained in these GC.
“Warranty” means the guarantee that: (i) the Goods meets the quantity, quality and technical requirements mentioned in Documents, in the PO Confirmation or in the Contract and (ii) the Goods shall function properly and without material manufacturing defects. EXCEPT AS EXPRESSLY SET FORTH IN THESE GC, SELLER DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS INCLUDING, WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD.
“Warranty Claims” means any complaint for deficiencies, defects, malfunctioning or non-conformity.
“Warranty Period” means the period of twelve months following Delivery during which the Warranty applies.
INTERPRETATION
A reference to one gender includes a reference to the other gender. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). Words in the singular shall include the plural and vice versa. Where the words “include(s)”, “including”, or “in particular” are used in these GC, they are deemed to have the words “without limitation” following them and where the context permits, the words “other” and “otherwise” are illustrative and shall not limit the sense of the words preceding them. Any obligation on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done. The headings in these GC are for convenience only and shall not affect their interpretation.
PURCHASE OF THE GOODS
Goods can be purchased by executing a Contract. Quote Confirmations shall be issued within five Days. PO shall be issued using Seller’s templates. Additions/alterations to Quotes or PO templates shall be null and void. Contracts are subject to the GC, regardless a Contract contains explicit reference to the GC or not. Contracts shall contain: (i) Contract date and number; (ii) reference to the Blanket Order, to the PO Confirmation or to the Quote; (iii) description of the Goods; (iv) quantities of the Goods; (v) Unit Prices; (vi) Price; (vii) Payment Terms; (viii) Delivery Dates; (ix) Signature. Missing any of such references the Contract shall be null and void. The Seller reserves the right to make changes to design, shape and material of the Goods, provided that the Goods are thus not basically modified, and that the result of this modification shall be reasonably acceptable to the Buyer. The Buyer is aware that Contracts will contain Clauses patently favourable to the Seller and is required to pay additional attention to any such clauses – especially Disclaimers –. By engaging business with Seller Buyer waives any right to claim for the invalidity of such clauses.
DELIVERY
Unless specified, Delivery Dates are indicative for the Seller. Condition precedent for Delivery Dates to be binding on the Seller is that the Buyer has fulfilled all its obligations under the Contract. Risk of loss shall pass upon Delivery.
INVOICING AND PAYMENTS
Invoices shall be issued five days before payment and in any case before Delivery Dates or Delivery, whichever occurs first. Invoices to fill the gap between the Forecast and the Goods purchased shall be issued by the end of every year. Invoices shall be for the quantities of the Goods and the Unit Prices of the relevant Price List. Ownership of the Goods shall pass upon payment of the Price. Payments shall be credited to the Seller’s bank account indicated in the relevant invoice. Any set-off to payments due against any claim whatsoever which the Buyer considers having against the Seller is forbidden. Late Payment gives the right to claim for Interests and suspend Deliveries or stop Goods in transit. Multiple delays in effecting payments gives right to terminate the Contract. Payments to accounts different than that indicated in the invoice shall not release the Buyer from payment obligations under the Contract. Missing payments gives the Buyer the right to draw the relevant Security, no warning notice needed.
WARRANTY
Warranty obligation are in force for the Warranty Period only and consists in (i) replacing the defective Good at the same Contract Delivery terms or (ii) refund the Unit Price of the defective Good. The rights and remedies described herein are the sole warranty rights and legal remedies pertaining to the Buyer.
THE WARRANTY SHALL NOT APPLY TO DEFECTS AND/OR UNCONFORMITIES CONSISTING IN OR CAUSED BY:
(A) CONSUMABLE PARTS THAT MAY WEAR OVER TIME;
(B) COSMETIC DAMAGE (FOR EXAMPLE DISCOLORATION OF BRASS, SCRATCHES, DENTS AND BROKEN PLASTIC PARTS AT THE EDGES);
(C) NORMAL WEAR AND TEAR OR NORMAL AGING,
(D) ANY CAUSE OR EVENT UNKNOWN OR NOT ATTRIBUTABLE TO THE SELLER OR CAUSED IN FULL OR IN PART BY A THIRD-PARTY OR BY ANY EVENT OR CONDITION OUTSIDE OF SELLER REASONABLE CONTROL (SUCH AS – BY MERE WAY OF EXAMPLE – CONTAMINATING AGENTS PRESENT IN THE WATER; ENVIRONMENTAL CONDITIONS; DAMAGE CAUSED BY THIRD PARTIES OR BY USE OF UNAUTHORIZED PRODUCTS AND TOOLS; FAILURE TO OBSERVE SELLER RECOMMENDATIONS; DAMAGES CAUSED BY AN ACCIDENT, ABUSE, VANDALISM, WILFUL ALTERATION, THEFT, IMPROPER HANDLING, IMPROPER USE; IMPROPER INSTALLATION, OPERATION BEYOND THE SPECIFICATIONS; ANY HARMFUL EFFECT; DAMAGE CAUSED BY SERVICES – IMPROVEMENTS, MAINTENANCE OPERATIONS, REPAIRS AND DEVELOPMENTS – OR BY SERVICES NOT PERFORMED BY AUTHORIZED PARTIES; NEGLIGENCE OR OMISSIONS OR MISCHIEF OF ANY PARTY OTHER THAN THE SELLER; EXCESSIVE STRESS, INCLUDING BUT NOT LIMITED TO, OPERATION UNDER UNUSUAL CIRCUMSTANCES WHICH WERE NOT MADE KNOWN TO SELLER, IN WRITING, AND AT THE TIME THE PO WAS PLACED; IF THE SERIAL NUMBER OR THE SECURITY SEALS HAVE BEEN REMOVED OR DEFORMED; INTERACTION WITH UNAPPROVED COMPONENTS; IMMERSION IN WATER WITH A TEMPERATURE OR AT A DEPTH DIFFERENT FROM THAT ALLOWED IN THE DOCUMENTS; ANY USE IN GENERAL EXCEEDING THE LIMITS PROVIDED IN DOCUMENTS).
Buyer must inspect the quality, quantity and functioning of the Goods within thirty Days from Delivery. Warranty Claims must be forwarded in writing within five Days from the time when the Buyer discovers, or should have discovered, the defect. The Warranty Claim must contain: (i) a detailed and exhaustive description of the alleged deficiencies, defects, malfunctioning or non-conformity and (ii) at least one sample of the Goods affected by the alleged deficiencies, defects, malfunctioning or non-conformity.
Defective Goods shall be returned to Seller before carrying out any test.
INSURANCES
The Seller has adequate business and products liability insurances. Since Seller’s insurances are the only Buyer’s protection against the Seller’s breach to the Contract obligations, the Buyer is invited to request copy of the Seller’s insurances and examine them carefully prior entering any Contract with the Seller.
RESPONSIBILITY
The sole legal remedies for the Buyer with respect to defective, malfunctioning, or non-conform Goods and/or any other breach of Contract shall be those mentioned in the GC. Namely, save for demonstrated fraud of the Seller, the latter shall not be liable for any loss of profits, production loss, indirect loss, third parties claim, consequential damages, reputation or image damages or any other damages or loss suffered by the Buyer related to, or deriving from, the sale of the Goods. Being any contractual relationship between the Parties only, the Seller shall be protected and hold harmless by the Buyer against any Third-Party claim.
WAIVER OF CLAIMS
Buyer’s failure to enforce any of the provisions of this GC or a Contract or any rights with respect thereto or failure to exercise any election provided for herein shall be considered a waiver of such provisions, rights or elections.
ASSIGNMENT
The Buyer shall not be entitled to assign, sell, transfer or pledge any of its rights or obligations except with the prior explicit written consent of an authorized representative of the Seller.
REPLACEMENT TERMS
In case these GC or a Contract or any part thereof is declared invalid or unenforceable by any legitimated authority or court, the remainder shall continue on unchanged terms and conditions, and the Parties shall agree on replacement terms, which to the extent possible shall express the initial intention of the Parties.
LAW AND DISPUTES
Any dispute, controversy, or claim between the Parties arising out of, or in relation to a Contract or these GC, including the validity, invalidity, breach, or termination thereof, shall be subject to the exclusive jurisdiction of Italy and shall be submitted to the Court of Udine (Italy) that shall be the only competent court. The laws of Italy shall govern in all respects and apply to the GC and to any Contract with exclusion of (i) any rules of conflict and (ii) the Vienna Convention on contracts for the international sale of goods of April 11, 1980 which shall not apply.