General Sales Conditions of SVECOM-P.E. S.r.l. – Montecchio Maggiore (Vicenza – Italy)
- These General Conditions shall apply to all products supplied by SVECOM, as directly as through Agents or Distributors. When the General Conditions apply to a specific agreement, modifications of or deviations from them must be agreed in writing. The objects to be supplied under these conditions are hereinafter referred to as the “Products”.
DRAWINGS AND DESCRIPTIONS
- All drawings and technical documents relating to the Products or their manufacture submitted by SVECOM, prior or subsequent to the formation of the agreement, shall remain the property of SVECOM. SVECOM shall not be obliged to provide manufacturing drawings for the Products or spare parts. Drawings, technical documents or other technical information sent by SVECOM shall not, without the consent of SVECOM, be used for any other purposes than those for which they were handed over, such as assembly, installation and maintenance of the Products. Without the consent of SVECOM, they shall not otherwise be used or copied, reproduced, transmitted or communicated to a third party.
- If either party wants a modification of the technical specifications of the Products he shall submit his proposals in writing to the other party who shall respond in writing within 30 calendar days.
- Prices for the Products are those retained in the order confirmation by SVECOM. Unless otherwise stated they are exclusive of sales, excise duties, VAT or similar taxes.
- The Purchaser may during normal working hours inspect SVECOM’s final test facilities to be used in the performance of the agreement, and inspect and test the Products in respect of materials and workmanship. The Purchaser shall give SVECOM one week’s notice of the inspection. Inspections and tests shall not unduly interfere with the performance of work..
- Unless otherwise agreed, acceptance tests provided for in the agreement shall be carried out at the place of manufacture during normal working hours. If not otherwise specified in the agreement, the tests shall be carried out in accordance with general practice in the relevant branch of industry in Italy.
- SVECOM shall notify the Purchaser of any agreed acceptance tests in sufficient time to permit the Purchaser to be represented at the tests. If the Purchaser is not represented, the test report shall be sent to the Purchaser and shall be accepted as accurate.
- If the acceptance tests show that the Products deviate from the requirements of the agreement, SVECOM shall, unless the Purchaser accepts the deviation, without delay ensure that the Products comply with the agreement. New tests shall then be carried out at the Purchaser’s request, unless the deviations were insignificant.
- SVECOM shall bear all costs for any agreed acceptance tests carried out at the place of manufacture. All travelling and living expenses for the Purchaser’s representatives in connection with such tests shall be borne by the Purchaser.
DELIVERY – PASSING OF RISK
- Any agreed trade term shall be construed in accordance with the INCOTERMS in force at the formation of the agreement. If no trade term is specifically agreed the delivery shall be Ex Works (EXW).If, in the case of delivery Ex Works, SVECOM, at the request of the Purchaser, undertakes to send the Products to their destination, the risk shall pass no later than at the time when the Products are handed over to the first carrier. Unless otherwise agreed, partial shipments shall be permitted.
PACKAGING AND TRANSPORT
- Within 30 days after delivery the Purchaser shall at his own expense return containers, crates, pallets and other reusable packaging materials belonging to SVECOM. If the Purchaser fails to do so, SVECOM is entitled to be reimbursed for the value of such packaging materials. If, under the agreement, the Purchaser shall provide packaging materials, he shall provide them in good condition to SVECOM at the time and the site specified by SVECOM.
- The Purchaser shall on arrival of the Products examine whether the Products’ time of arrival, condition and quantity conform to the dispatch note. The Purchaser shall immediately inform SVECOM of any discrepancies or possible claims against the transporter.
TIME FOR DELIVERY – DELAY
- If, instead of specifying the date for delivery, the parties have specified a period of time on the expiry of which delivery shall take place, such period shall start to run on the date when SVECOM receives the Purchaser’s order or the date of formation of the agreement, whichever is the later.
- If SVECOM anticipates that he will not be able to deliver the Products at the time for delivery, he shall forthwith notify the Purchaser thereof in writing, stating the reason and, if possible, the time when delivery can be expected.
- If delay in delivery is caused by any of the circumstances mentioned in Clause 38 or by an act or omission on the part of the Purchaser, including suspension under Clauses 21 or 41, the time for delivery shall be extended by a period which is reasonable having regard to all the circumstances in the case. This provision applies regardless of whether the reason for the delay occurs before or after the agreed time for delivery.
- All claims against SVECOM based on such delay shall be excluded, except where SVECOM has been guilty of gross negligence. In these conditions, gross negligence shall mean an act or omission implying either a failure to pay due regard to serious consequences which a conscientious contracting party would normally foresee as likely to ensue, or a deliberate disregard of the consequences of such act or omission.
- If the Purchaser anticipates that he will be unable to accept delivery of the Products at the delivery time, he shall forthwith notify SVECOM thereof stating the reason and, if possible, the time when he will be able to accept delivery. If the Purchaser fails to accept delivery at the delivery time he shall nevertheless pay any part of the purchase price which becomes due on delivery as if delivery had taken place. SVECOM shall arrange for storage of the Products at the risk and expense of the Purchaser. SVECOM shall also, if the Purchaser so requires, insure the Products at the Purchaser’s expense.
- Unless the Purchaser’s failure to accept delivery is due to any such circumstance as mentioned in Clause 38, SVECOM may by notice in writing require the Purchaser to accept delivery within a final reasonable period. If, for any reason for which SVECOM is not responsible, the Purchaser fails to accept delivery within such period, SVECOM may by notice in writing terminate the agreement in whole or in part. SVECOM shall then be entitled to compensation for the loss he has suffered by reason of the Purchaser’s default. The compensation shall not exceed that part of the purchase price which is attributable to that part of the Products in respect of which the agreement is terminated.
- Unless otherwise agreed, the purchase price shall be paid through bank transfer after 60 days since the goods have been invoiced.
- Whatever the means of payment used, payment shall not be deemed to have been effected before SVECOM’s account has been fully and irrevocably credited.
- If the Purchaser fails to pay by the stipulated date, SVECOM shall be entitled to interest from the day on which payment was due. The rate of interest shall be as agreed between the parties. If the parties fail to agree on the rate of interest, it shall be 12 per cent per annum. In case of late payment SVECOM may, after having notified the Purchaser in writing, suspend his performance of the agreement until he receives payment. If the Purchaser has not paid the amount due within three months SVECOM shall be entitled to terminate the agreement by notice in writing to the Purchaser and to claim compensation for the loss incurred. The compensation shall not exceed the agreed purchase price.
RESERVATION OF TITLE
- The Products shall remain the property of SVECOM until paid for in full .The Purchaser shall at the request of SVECOM assist him in taking any measures necessary to protect SVECOM’s title to the Products in the country concerned. The reservation of title shall not affect the passing of risk under Clause 10.
LIABILITY FOR DEFECTS
- Pursuant to the provisions of Clauses 24-36 inclusive, SVECOM shall remedy any defect resulting from faulty materials or workmanship. To the extent SVECOM is responsible for design, the same obligation applies to any defect resulting from faulty design.
- SVECOM’s liability is limited to defects which appear within a period of one year from delivery.
- When a defect in the Products or a part thereof has been remedied, SVECOM shall be liable for defects in what has been remedied under the same terms and conditions as those applicable to the original Products during a period of one year.
- The Purchaser shall without undue delay notify SVECOM of any defect which appears. Such notice shall under no circumstances be given later than two weeks after the expiry of the period given in Clause 24 as extended by Clause 25. Where the defect is such that it may cause damage, the notice shall be given immediately. The notice shall contain a description of the defect, the serial numbers of the parts and products and/or the invoice SVECOM number. If the Purchaser does not notify SVECOM of a defect within the time-limits set forth in this Clause, he shall lose his right to have the defect remedied.
- On receipt of the notice in writing under Clause 26 SVECOM shall remedy the defect without undue delay and at his own cost as stipulated in Clauses 23-36 inclusive. Repair shall be carried out at SVECOM’s premises unless he finds it appropriate to have the repair carried out where the Products are located. The Purchaser shall at the request of SVECOM arrange for transport of the Products to SVECOM. The Purchaser shall follow SVECOM’s instructions regarding such transport. SVECOM has fulfilled his obligations in respect of the defect when he delivers to the Purchaser duly repaired or replaced Products.
- If the Purchaser has given such notice as mentioned in Clause 26, and no defect is found for which SVECOM is liable, SVECOM shall be entitled to compensation for the costs he has incurred as a result of the notice.
- The Purchaser shall at his own expense arrange for any dismantling and reassembly of equipment other than the Products, to the extent that this is necessary to remedy the defect.
- Unless otherwise agreed, necessary transport of the Products to and from SVECOM in connection with the remedying of defects for which SVECOM is liable shall be at the risk and expense of the Purchaser.
- Unless otherwise agreed, the Purchaser shall bear any additional costs which SVECOM incurs for repair and transport as a result of the Products being located in a place other than the destination stated in the agreement or – if no destination is stated – the place of delivery.
- Defective Products which have been replaced shall be made available to SVECOM and shall be his property.
- If, within a reasonable time, SVECOM does not fulfil his obligations under Clause 27, the Purchaser may, by written notice, fix a final time for completion of SVECOM’s obligations. If SVECOM fails to fulfil his obligations within such final time, the Purchaser may himself undertake or employ a third party to undertake necessary remedial works at the risk and expense of SVECOM. Where successful remedial works have been undertaken by the Purchaser or a third party, reimbursement by SVECOM of reasonable costs incurred by the Purchaser shall be in full settlement of SVECOM’s liabilities for the said defect.
Where the defect has not been successfully remedied,
- the Purchaser is entitled to a reduction of the purchase price in proportion to the reduced value of the Products, provided that under no circumstances shall such reduction exceed 15 per cent of the purchase price, or
- where the defect is so substantial as to significantly deprive the Purchaser of the benefit of the agreement, the Purchaser may terminate the agreement by written notice to SVECOM. SVECOM is not liable for defects arising out of materials provided or specified by the Purchaser.
- SVECOM is liable only for defects which appear under the conditions of operation provided for in the agreement and under proper use of the Products. SVECOM’s liability does not cover defects which are caused by faulty maintenance, incorrect assembly or installation or faulty repair by the Purchaser, or by alterations carried out without SVECOM’s consent in writing. Finally SVECOM’s liability does not cover normal wear and tear or deterioration.
- SVECOM shall not be liable for defects in any part of the Products for more than one year from the beginning of the period given in Clause 24.
- Save as stipulated in Clauses 23-35, SVECOM shall not be liable for defects. This applies to any loss the defect may cause including loss of production, loss of profit and other indirect loss.
DIVISION OF LIABILITY FOR DAMAGE CAUSED BY THE PRODUCT
- SVECOM shall not be liable for any damage to property caused by the Products after their delivery and whilst they are in the possession of the Purchaser. Nor shall SVECOM be liable for any damage to products manufactured by the Purchaser, or to products of which the Purchaser’s products form a part. If SVECOM incurs liability towards any third party for such damage to property as described in the preceding paragraph, the Purchaser shall indemnify, defend and hold SVECOM harmless. If a claim for damages as described in this Clause is lodged by a third party against one of the parties, the latter party shall forthwith inform the other party thereof in writing. SVECOM and the Purchaser shall be mutually obliged to let themselves be summoned to the court or arbitral tribunal examining claims for damages lodged against one of them on the basis of damage allegedly caused by the Products.
- Either party shall be entitled to suspend performance of his obligations under the agreement to the extent that such performance is impeded or made unreasonably onerous by any of the following circumstances: industrial disputes and any other circumstance beyond the control of the parties such as fire, war (whether declared or not), extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power, unavailability of raw materials (steel, aluminium,…) and defects or delays in deliveries by sub-suppliers caused by any such circumstances referred to in this Clause.
- The party claiming to be affected by force majeure shall notify the other party in writing without delay on the intervention and on the cessation of such circumstance. If force majeure prevents the Purchaser from fulfilling his obligations, he shall compensate SVECOM for expenses incurred in securing and protecting the Products.
- Regardless of what might otherwise follow from these general conditions, either party shall be entitled to terminate the agreement by notice in writing to the other party if performance of the agreement is suspended under Clause 38 for more than six months.
- Notwithstanding other provisions in these conditions regarding suspension, each party shall be entitled to suspend the performance of his obligations under the agreement, where it is clear from the circumstances that the other party will not be able to perform his obligations. A party suspending his performance of the agreement shall forthwith notify the other party thereof in writing.
- Save as elsewhere stated in these conditions there shall be no liability for either party towards the other party for loss of production, loss of profit, loss of use, loss of agreements or for any consequential, economic or indirect loss whatsoever.
DISPUTES AND APPLICABLE LAW
- All disputes arising in connection with the agreement shall be finally settled under the Rules of Conciliation and Arbitration of the Vicenza (Italy) Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules, supplemented as necessary by the procedural rules of the Italian law.
- The agreement shall be governed by the Italian law.