GENERAL CONDITIONS OF SALE
1. GENERAL PROVISIONS
1.1 All sales entered by Italimpianti Orafi S.p.A. as “Seller” and the Customer as “Buyer” (singularly also defined “Party” and together “Parties”) are to be governed by these “General Conditions of Sale”, unless otherwise agreed in writing between the Parties.
1.2 The Seller is in the business of providing Equipment, installation, testing, commissioning and pre- and after-sales Services. The Buyer is interested in purchasing Equipment and/or part thereof and/or Services from the Seller, such as but not limited to consultancy, laboratory trials, installation, testing, commissioning.
2. OFFER, FORMATION OF THE CONTRACT AND ORDER
2.1 The Offer issued by the Seller includes Technical features, descriptions and prices: the Offer shall not in any case be considered as a binding sales agreement, but rather a quote.
2.2 Upon confirmation of the Buyer's interest to proceed, the Seller will transform the Offer into a Sales Contract, binding for the Parties until expiry or termination. General Conditions of Sale are always indicated and are an integral part of the Contract.
2.3 The Sales Contract shall enter into force and become a firm and irrevocable binding Order starting from the date it is duly signed by authorized representatives of both Parties and shall remain in effect until the Parties completely fulfil their respective obligations. Should the Down Payment arrive first the last proposed Contract or Offer shall be considered as firm and irrevocable binding Order, providing that the Contract shall be duly signed asap.
2.4 The Sales Contract, its annexures and these General Conditions of Sale contain the whole agreement and understanding between the Parties relating to the subject matter of the Contract, to the exclusion of any terms implied by Italian law.
2.5 The Sales Contract supersedes any previous written or oral agreement, understanding, correspondence, discussion or negotiation between the parties in relation to the matters dealt with in this Agreement.
2.6 Any amendments and/or supplements to the Sales Contract need to be confirmed in writing by the Parties to be considered an integral part of the latter.
3.1 The Equipment is designed according to the best “state-of- the-art” available in Italimpianti Orafi S.p.A. to date. It is tuned for the requirements set out in the Sales Contract and is delivered in proper working and operating condition.
3.2 Unless otherwise stated in writing, the Equipment complies with the Production and Safety regulations in force in the European Union at the time of construction, thus marked “CE”: the Buyer has the responsibility to verify that any CE specifications comply with the requirements in the place of installation, and if not, shall request a quotation for eventual modifications to the Seller.
3.3 The Buyer, prior to the Sales Contract coming into force, can submit a written request for customizations to the equipment and the Seller, provided such modifications are technically possible, can update the Sales Contract before signature or issue an additional Offer to cover the costs of said modifications. For every customization request received after the start of production, the Parties shall agree in written form about any modifications, and every and any additional related cost and delay to the original price and delivery schedule will be borne by the Buyer.
3.4 The Seller reserves the right to modify at any time and without notice the technical characteristics of the Equipment, in the interest of technical progress.
3.5 The packaging is made carefully, in compliance with current international freight regulations. Nevertheless, an adequate freight insurance is strongly recommended.
4. DELIVERY TIME & TERMS
4.1 The average lead time is specified in the Offer. The “expected delivery date” shall be confirmed by the Seller upon receipt of the Down Payment, according to actual workloads at that time. Unless otherwise stated, the expected delivery date corresponds to the date the equipment will be ready for shipment to Seller’s factory.
4.2 Any delay caused by the Buyer in providing necessary documents and/or information for the fulfilment of the Contract will automatically generate a commensurate delay in the delivery schedule. Examples of typical delays can be, but not limited to:
4.2.1 late delivery of a duly signed copy of the Contract and of these General Condition of Sale;
4.2.2 late delivery of the room layout drawings of the place of installation, if required;
4.2.3 late request for design specifications different from the Seller’s standard ones;
4.2.4 absence of timely communication on the availability date of the installation site.
4.3 The Equipment is delivered according to the Incoterms 2021 specified in the Sales Contract: if not specified, it is EXW.
4.4 In case of EXW, the Buyer shall pick up the Equipment within 4 weeks from readiness notification, provided the relative payments have been settled.
4.5 A delivery delay or failure of performance, under this Agreement by the Seller shall not constitute a default hereunder or give rise to a claim for damage, according to point 12.
5. INSTALLATION, TESTING & COMMISSIONING (if included)
5.1 The time required for installation, testing and commissioning of the Equipment is specified in the Sales Contract. It starts from the date of completion of all the preparatory works by the Buyer (such as but not limited to electric distribution net, chemicals, water, gas, compressed air, ventilation, suction piping, civil infrastructures, service supply contracts), provided that the following are available in a timely fashion on site (see point 6.5):
5.1.1 the Equipment;
5.1.2 the Seller’s Personnel;
5.1.3 the Buyer’s supply services Personnel and equipment;
5.1.4 the Buyer’s Personnel.
The Buyer shall give to the Seller a written notification that all necessary preparatory works have been completed, in order to allow the Seller to promptly reserve its personnel for the installation.
5.2 In case the Installation, Testing and Commissioning should require more time than specified in the Sales Contract, the Buyer shall request an additional offer from the Seller for the necessary time and shall cover any additional costs.
5.3 The Equipment will be commissioned by Seller’s personnel, with a standard working time of 8 hours/day, 5 days/week, unless agreed differently by the Parties in writing.
5.4 Travel’s (flight tickets and local transfers), Board’s and Lodging costs for all the Seller’s personnel shall be borne by the Buyer (see 6.5.1) unless otherwise stated.
5.5 All services and materials (such as but not limited to: metals, energy, gas, water, acids) necessary for the entirety of the testing, commissioning and training periods will be provided by the Buyer at Buyer’s own costs.
6. PRICE AND METHOD OF PAYMENT
6.1 The Purchase Price is comprehensive of the “Sales Terms and Conditions” specified in the Contract and General Conditions of Sale. The Purchase price is to be borne by the Buyer in full.
6.2 The Payment terms are specified in the Sales Contract. The Down Payment is necessary to launch the material supply orders and, in the event that the contract is not concluded is valid as a non-refundable confirmatory deposit. The Balance of Payment occurs when the Equipment is ready to be shipped, this regardless of any Buyer’s request to carry out inspections, any costs for which remain at Buyer’s expense. The balance payment must be received before the equipment leaves the Seller’s premises, and in any case no later than 3 weeks from the it being declared ready for shipment.
6.3 When issuing a payment, the Buyer shall always clearly indicate the relative Sales Contract or Offer number, and shall always notify the Seller to have issued it. Payments received without any information regarding the relative contract or offer number may cause a delay to the delivery date.
6.4 Bank charges arising in both countries of the Parties are to be borne by the Buyer.
6.5 The following Direct costs for installation, testing, commissioning and training (Services)are NOT included in the Purchase Price and are always to be borne by the Buyer:
6.5.1 Travel (flight tickets and local transfers), Board and Lodging for all of the Seller’s personnel working on site (in European style 3 stars Hotels and Restaurants);
6.5.2 Lifting equipment and personnel such as but not limited to Forklift trucks;
6.5.3 Materials, factory services and utilities and their supply contracts, such as but not limited to electrical energy, LPG, methane, Oxygen, Acids, water, offices and toilets.
6.5.4 Costs related to compliance with safety standards and to issue the necessary authorizations and permits in order to allow the Seller’s personnel to perform the installation, testing and commissioning of equipment in the Buyer’s factory.
6.6 The Seller shall be responsible for the salaries, end of service benefits and all other entitlements of its personnel.
7.1 The Equipment will remain the property of the Seller and shall be “labelled” as property of the Seller until the full payment of the Purchase Price and Services has been received. Until that time, the Buyer shall not: I) deliver part of or the full Equipment to third parties; II) use it or part of it as collateral; III) in any way dispose of it or part of it, subject to the retention of title by Seller.
7.2 Buyer shall promptly inform the Seller of any rights which third parties may have acquired over the Equipment.
7.3 In the event of default or bankruptcy by the Buyer before the full payment has been received, the Seller shall be entitled to repossess all of Equipment with respect to which ownership has not yet passed to the Buyer, wherever said Equipment or part thereof may be, without any formalities including notifying the Buyer of said default.
7.4 Regardless of ownership, the Buyer will assume full responsibility in running the Equipment upon conclusion of the commissioning process if included; if not included, already at the time of delivery.
7.5 Upon commissioning and the receipt by the Seller of the full payment, the Buyer will become the sole owner of the Equipment.
7.6 In any case, upon receipt of full payment, the Seller will waive any and all liens and right of retention in respect to the Equipment to which the Purchase Price relates.
8.1 The Seller warrants to be a lawful owner of and to have full rights (thus free from any liens, loans, hypothecation and leasing) over all components, Equipment and spare parts supplied, which are genuine, legal and originated from a legitimate source.
8.2 The Seller warrants that the Equipment shall be free from defects in material and workmanship and shall conform in all material respects to the Equipment Specifications and CE regulations.
8.3 The Warranty Period shall commence after commissioning date and terminate 12 months later, but in any case, not later than 18 months from goods readiness notification.
8.4 As a mandatory condition for this warranty, the Buyer must inform the Seller and claim in written form within 10 working days from the discovery of any Defect in the Equipment, such as but not limited to material and workmanship. Additional defects may include:
8.4.1 if Equipment Specifications are not met;
8.4.2 if the Equipment is not in working condition;
8.4.3 the Equipment has been damaged during shipping, installation or commissioning phase.
In particular, the Buyer shall provide to the Seller in written format clear pictures and/or movies of the Identification label of the Equipment and of the defect.
8.5 During the Warranty Period and upon notification of any defect, the Seller may conduct its own investigation, eventually with on-site tests, with materials and services provided by the Buyer at Buyer’s own cost (see 5.5).
8.6 The Buyer shall make the defective part/component available for inspection by the Seller: on request of the Seller, the defective part shall be delivered to the Seller or alternatively stored at Buyer’s premises for later inspection.
8.7 The Seller shall decide whether the Equipment is defective or not. In positive case, the Seller shall decide whether to repair or replace the defective Equipment (or part thereof), at the Seller’s option and sole cost, not later than 30 business days from the date of receipt of the Buyer’s written claim by the Seller.
8.8 The Equipment or its repaired or replaced part by the Seller under Warranty shall remain under warranty for the remainder of the original warranty period of the Equipment.
8.9 The ownership title of defective parts shall be transferred to the Seller, upon delivery of the replacement part.
8.10 The Warranty covers defective parts and Seller’s personnel labour costs. In case of Inspection, repair or replacement of defective parts in the Buyer’s premises, all direct costs such as but not limited to travel expenses and board/lodging are to be borne by the Buyer (see 6.5).
9. WARRANTY LIMITATION
9.1 The Seller shall not be liable for a breach of warranty if:
9.1.1 the defect is caused by negligence or intentional acts of the Buyer, to include but not limited to failure to follow the Seller’s written instructions and manuals regarding Equipment handling, storage, operation and maintenance;
9.1.2 the defective Equipment has been altered or repaired by anyone other than the Seller’s authorized representatives or without the consent of the Seller;
9.1.3 the defect results from an event of Force Majeure (excluding however any Defect that arises prior to or during shipping of the Equipment);
9.1.4 the Equipment has been removed and/or dismantled and/or reinstalled from its original place of installation, except for purposes of making a warranty claim, without the prior written approval of the Seller;
9.1.5 the part is subject to normal wear and tear, and in every case of consumable parts: in those cases, the replacement is always at Buyer’s cost. Keeping such parts in stock on site is warmly suggested;
9.1.6 the defect is attributable to environmental conditions or a change in conditions that is detrimental or hazardous to the product operation;
9.1.7 the defect is attributable to specifically identified third party products;
9.1.8 the Equipment does not meet applicable laws or regulations of the place of delivery (see 3.2);
9.1.9 the equipment is resold to a third party.
10. FORCE MAJEURE EVENT
10.1 "Force Majeure" is an exceptional event or circumstance (i) which is beyond a Party’s control; (ii) which such Party could not reasonably have provided against, before entering into the contract; (iii) which, having arisen, such Party could not reasonably have avoided or overcome; and (iv) which is not substantially attributable to the other Party.
10.2 Force Majeure may include but is not limited to the exceptional circumstances and events of the kind listed below, so long as conditions in clause 10.1 above are satisfied:
10.2.1 war, hostilities (whether war be declared or not), invasion, act of foreign enemies;
10.2.2 rebellion, terrorism, revolution, insurrection, military or usurped power, strikes of a political nature, act or campaign of terrorism, or sabotage of a political nature or civil war;
10.2.3 riot, commotion, disorder, strike, lockout, go-slows, labour disturbances, occupation of or work stoppages, acts of piracy or acts of sabotage by persons other than parties’ personnel and other employees;
10.2.4 munitions of war, explosive materials, ionizing radiation or contamination by radio-activity, except as may be attributable to parties’ use of such munitions, explosives, radiation or radio-activity;
10.2.5 natural catastrophes such as earthquakes, hurricanes, typhoons, volcanic activity or floods, lightening and specific incidents of exceptional adverse weather conditions, in excess of those required to be designed for the contract, and which are materially worse than those encountered in the relevant places at the relevant time of year, during the 10 (ten) years prior to the date of signature of the contract;
10.2.6 an act of God;
10.2.7 prohibition of exportation or importation, suspension of issuance of export or import license or government restriction.
10.3 Neither Party is liable for any failure to perform its obligations under this contract to the extent that it is prevented from, or delayed in, performing those obligations by an event of Force Majeure.
10.4 Whenever the production activity of the Seller is prevented or considerable reduced due to any Force Majeure event, the Seller shall have the right to automatically extend the delivery date, with commensurate and reasonable term, provided that the Seller will give timely notice of such event to the Buyer.
11. FAILURE TO PAY AND PICK-UP
11.1 When the Equipment is ready for dispatch, the Buyer shall respect payment terms and pick-up time as settled at points 6.2 and 4.4.
11.2 In case the Buyer respects the payment terms but not the pick-up time, the Buyer shall pay (through bank transfer by the end of each month) the Storage Expenses equal to 0,3% of the Equipment Purchase Price for each Month of delay, for a maximum of 12 months. After this period, the storage expenses will be renegotiated.
11.3 In case the Buyer does not respect the payment terms, the Buyer shall pay (through bank transfer by the end of each month) the Storage Expenses increased to 0,5% of the Equipment Purchase Price for each Month of delay, for a maximum of 12 months. In case the balance payment is not paid within 4 months from readiness for the goods, the Buyer loses all rights on the produced Equipment and the Seller may proceed to sell part of, or the full Equipment, to a Third party. Should the Buyer notify the desire to complete the transaction within 6 months from readiness of the goods, the parties shall duly sign a “new Contract” (based on an updated offer, but with identical Equipment) and the Buyer shall pay a second Down payment – not less than 30% of the Equipment Purchase Price. In case the new Contract is not duly signed and the second down payment is not paid within 6 months from the readiness of the goods, the entire amount of the first Down Payment, being a non-refundable confirmatory deposit (see 6.2), will be retained by the Seller as Sum of the damage suffered by failure to conclude the contract.
11.4 For terms of deliveries different from EXW with Equipment rendered at the intended delivery terminal (carrier or cargo terminals, customs, alongside ship, on board), the Buyer shall immediately proceed with the collection and shipment of the Equipment to the final destination, as soon as the Equipment is available. Every cost and delay, which will rise from the missing timely pick-up of the Equipment, it will be borne completely by the Buyer.
11.5 In every case, the warranty period of the produced equipment remains the one indicated at point 8.3.
12. LIMITATION OF LIABILITY
12.1 The Seller shall not be liable for any claim of any kind, including negligence and failure of the essential purpose of the contract, or coming from non-conformity, delayed or missed delivery of the Equipment or part thereof. In no event shall the Seller be liable to Buyer for any special, direct/indirect, consequential/incidental injuries, damages, costs, charges, expenses, loss of production/profit/revenue, even if informed of the possibility of those.
12.2 Any claim regarding any damage or contamination during transport is solely covered by the transportation Insurance, signed by either Party in accordance with the defined Incoterms 2020 in the Contract.
12.3 The maximum liability of the Seller for any special, direct/indirect, consequential/incidental injury, damage, cost, charge, expense, loss of production/profit/revenue caused by any defect in the Equipment or part thereof shall be limited to the reparation or substitution of the defective part or the Equipment under Warranty clauses at point 8, or alternatively to the price of the Equipment or defective part thereof paid by the Buyer (excluding VAT) to which the claim relates.
13. SETTLEMENT OF DISPUTE
13.1 Any of the Contracts and any matter related to the Products supplied by the Seller to the Buyer are governed by and shall be construed in accordance with the laws of the Republic of Italy, irrespective of conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention 1980 as amended) shall not apply to the Contract.
13.2 Any and all disputes that arises under or in connection with the contract must be dealt with under this clause, applying the following procedure:
13.2.1 The parties must use their best efforts in good faith to co-operatively and amicably resolve the dispute, before the commencement of arbitration.
13.2.2 At first, the dispute raising party (either the Buyer or the Seller) shall notify in written the other party, specifying that it is a notice under this clause 13 and providing full particulars of the nature and the extent of the dispute.
13.2.3 If the dispute is not resolved amicably by the Parties within 30 (thirty) business days of the written notification, the dispute will be deemed to be not resolved and any party may submit in written the dispute to Arbitration, in accordance with the Italian law, regardless to its conflict of laws rules.
13.2.4 Any arbitration shall be conducted in Italy, under the jurisdiction of the Court of Florence and in English language.
13.2.5 The decision of the arbitrator shall be final and binding on the Parties.
13.3 The Parties agree not to bring any action or proceeding arising out of or relating to the Contract in any other jurisdiction.
14.1 If any provision in this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, the provision shall apply with whatever deletion or modification is necessary so that the provision becomes legal, valid and enforceable and gives effect to the commercial intention of the Parties.
14.2 The Seller may, without the prior written consent of the Buyer, assign, grant any security interest over, hold on trust or otherwise transfer the benefit of the whole or any part of the contract. The Buyer shall not require any prior written consent of the Seller in case of any assignment of rights or interest under this Agreement to Buyer’s affiliates or subsidiaries.
14.3 Each Party shall bear on own all costs incurred by or in connection with the preparation, negotiation and execution of the contract.
14.4 Intellectual Property: all drawings and technical documents concerning the design and construction of the Equipment, as well as any and all commercial information and offers that have been handed over to the Buyer before or after the conclusion of the agreement shall remain exclusive property right of the Seller and may not be used, copied, reproduced or communicated to third parties without the Seller's written consent.
14.5 Confidentiality: the Buyer undertakes to keep any written or oral information (such as but not limited to discussions, correspondence, understandings, offers, negotiations, agreements, contract) received from the Seller or which the Buyer becomes aware of, under or in connection with the Contract, as high confidential and the Buyer will not use it for any purpose other than the performance of its obligations under the Contract.