1.1 These General Conditions of Sale shall govern the sale of products (“Products”) by INOXIHP S.r.l., an Italian company with offices at Via Garibaldi, 89, I-20834 Nova Milanese (MB, Italy) (hereinafter: “Seller”).
1.2 These General Conditions take precedence over any additional or different terms and conditions of the customer (hereinafter: “Customer”) to which notice of objection is hereby given. Acceptance by Customer is limited to these terms and conditions. Neither Seller’s commencement of performance nor delivery shall be deemed or constituted as acceptance of Customer’s additional or different terms and conditions.
1.3 No changes to these General Conditions are valid unless agreed upon by Seller in writing, and any such approved changes shall only apply to the individual sale contract they expressly refer to.
2.1 Unless otherwise indicated on it, this quotation shall automatically expire if not followed by a purchase order from the Customer within thirty (30) days from the quotation date. The Seller may disregard any purchase orders received after that date.
2.2 All orders placed with Seller must be in a signed writing and must include a precise description of the Products, quantities ordered and any other details required for the sale contract, including an express reference to the quotation.
2.3 An order is binding upon Seller only when the Seller’s written acceptance of such order is communicated to the Customer. Such acceptance may be communicated by facsimile, e-mail or letter. A sale contract is therefore only made upon Seller’s acceptance of a Customer’s order.
2.4 Any orders collected by Seller’s agents or middlemen are not binding and are subject to the Seller’s written confirmation.
2.5 Accepted purchase orders may not be cancelled by Customer. In the event of cancellation of an accepted order, Customer shall indemnify Seller from and against any and all damages and losses suffered.
2.6 The terms of this quotation are confidential. Any technical information included herein are disclosed in confidence and are proprietary to Seller (or Seller’s affiliates, as the case may be). They may not be copied, reproduced, revealed or appropriated by others in whole or in part, without the Seller’s express prior written consent.
3.1 All Products’ information contained in the Seller’s catalogues, lists, leaflets, web sites, or any other similar documents are not binding upon the Seller, unless an express reference to them is included in the quotation or in the Seller’s order confirmation.
3.2 Products shall be designed and manufactured in accordance with the European Union and Italian laws and regulations.
3.3 The Seller may at any time may modify the Products as the Seller deems necessary or appropriate.
3.4 A Customer’s request for changes in the Products ordered, needs to be made in writing and is subject to the Seller’s approval. If the request is approved, a new quotation will be issued by the Seller.
3.5 The Customer shall provide the Seller with any information and materials as reasonably requested by the Seller in order to develop and supply the Products.
The Seller retains full title upon the Products until payment of the entire price thereof is made and credited to the Seller. Therefore, the Purchaser shall acquire ownership on the Product purchased only when payment of the entire price, together with any additional charges, is received by the Seller. However, the Purchaser assumes any risks connected with the Product from the time of delivery, according to article 1523 of the Italian Civil Code.
If requested, the Purchaser shall cooperate with the Seller in carrying out the formalities needed to enforce this retention of title clause in the Purchaser’s country.
5.1 Sale prices shall be calculated in Euro (€), “Ex Works”, and do not include V.A.T.. They may include other duties or taxes upon the sale contract (e.g. transportation costs), if included in the invoice.
Unless it is expressly agreed otherwise, prices quoted do not include supervision to the Product installation, nor training to the Purchaser’s employees.
5.2 Prices quoted are based on production costs (e.g. costs of labor, raw materials, supplies, etc.) at the rates applicable on the date of quotation. If the period between the quotation date and the agreed date of Product delivery exceeds twelve months, in the event of change in production costs occurring before the actual delivery date, the prices quoted shall be modified to provide for such variations. Such price changes shall be based on the Italian official indexes.
6.1 Payment terms are specified in the order confirmation as sent by the Seller from time to time in connection with individual sale contracts.
6.2 Unless agreed otherwise, all payments must be made by bank transfer to the Seller’s bank account as specified by the Seller.
6.3 If payment through letter of credit is agreed upon, such letter of credit shall be issued by first class banks which have adopted the Uniform Customs and Practice for Documentary Credits issued by the International Chamber of Commerce (ICC), version in force at the time the sale contract is concluded.
6.4 In case of late payments, default interest shall be automatically charged to the Customer. Interest shall be calculated at the rate applied by the European Central Bank to its main refinancing operations plus seven percentage points, in accordance with article 4 of the Italian Legislative Decree no.231 of 9 October 2002, which implements the European Community Directive 35/2000 until the amounts due are actually paid, without prejudice to any further right or remedy the Seller may have according to these General Conditions and/or the applicable laws.
6.5 In addition, payment delays exceeding 14 (fourteen) days of the due date, shall entitle Seller to suspend any further deliveries and terminate the sale contract without prejudice to the Seller’s right to claim damages, which damages shall include, but shall not be limited to, reimbursement of the attorney’s and/or court fees borne by the Seller in connection with a credit collection action, including out of court collection attempts.
7.1 Unless otherwise agreed and shown in the Seller’s order confirmation, Products are delivered “Ex Works” at the Seller’s place of business. “Ex Works” is to be interpreted according to the ICC Incoterms® in force on the quotation date.
7.2 One copy of the documentation relating to the Products, as specified in the Seller’s quotation, shall be delivered together with the Products, free of charge. Further copies of the said documentation may be provided subject to a new formal quotation and order. The Seller shall provide ordinary packaging as per Seller’s standard practices. Any special packing may be provided on the Customer’s express request and is subject to an additional charge.
7.3 Agreed upon delivery dates shall be considered as estimates only. Therefore, any delay in delivery shall not entitle the Customer to cancel an order nor claim damages, liquidated damages or penalties from the Seller. Delivery terms shall start from the order confirmation date, except when payment has to be done through letter of credit, in which case the delivery terms shall start from the date of the bank’s advice that the letter of credit has been opened in conformity with the Seller’s requirements. The Seller reserves the right to effect partial deliveries, as and when the parts are ready for dispatch.
In any case, the Seller shall have no liability whatsoever if delivery terms are exceeded due to a force majeure event, according to Article 13 hereto.
7.4 The Customer may, in writing, ask the Seller to appoint a carrier or a forwarder to collect the Products on the Customer’s behalf. If the Seller accepts, any such carrier or forwarder shall be considered as appointed directly by the Customer. As a consequence, the Customer shall be entirely responsible for any risks and expenses in connection therewith.
7.5 Whatever the delivery term agreed upon, all risks related to the Products shall pass to the Customer on delivery of the Products to the first carrier. All such risks shall also pass to the Customer in case the Customer delays in collecting the Products put at its disposal by the Seller, and the Customer shall also bear any and all charges of storage, care, insurance, installation, assembly, if applicable.
8.1 Products are subject to ordinary inspections and, where practicable, to the Seller’s standard tests at the Seller’s facilities before delivery.
8.2 If Customer wishes that special tests be conducted in the presence of its representative, these must be specifically requested by the Customer in the purchase order, and such tests shall, unless otherwise agreed, be made at the Seller’s facilities. Any and all costs connected with such tests shall be charged to the Customer separately.
8.3 In the cases described in Article 8.2 above, the Seller shall inform the Customer in writing as soon as the Products are ready for being tested at the Seller’s facilities. If the Customer does not appear to attend the tests within seven (7) days as of receipt of the above notice, the tests will proceed in the Customer’s absence and shall be deemed to have been made in its presence.
8.4 Unless special testing procedures are agreed upon, tests will be carried out in accordance with the Seller’s standards and principles applied in tests of a similar kind. At the end of the test, a test report will be prepared. The Customer by signing the test report without reservations shall be deemed to have fully accepted delivery of the Product. If test results are negative, the parties will agree upon the corrective actions to be brought by the Seller and a new test will be carried out thereafter. By signing the new test report without reservations, the Customer shall be deemed to have fully accepted delivery of the Product.
8.5 If the acceptance test is to be conducted at the Purchaser’s premises, Purchaser and Seller shall agree upon an appropriate date in which the test is to be carried out and the allocation of the costs connected therewith. The provisions set forth in Section 8.4 shall apply.
9.1 The Customer shall carefully inspect any Products delivered as soon as practicable after receipt thereof. Any complaints relating to packaging, quantity, or faulty parts, must be notified to the Seller in writing, and the defective parts must be returned in their original packing, insurance and carriage prepaid, within eight (8) days as from receipt of the Products. The Customer shall specify the claim in a separate note and shall mention the Seller’s invoice (by invoice date and number) to which the returned parts pertain. Failure to timely notify the defect and to return the faulty parts, will result in forfeiture of the Customer’s rights to claim the above defects.
Installation of Products and provision of the materials needed for the installation (except for materials purchased from the Seller) shall be at the Customer’s care and charge. Products shall be installed by the Customer’s personnel or by third parties appointed by the Customer. If expressly requested by the Customer and included in the quotation, the Seller may make his experts available for supervising the installation works, for the period and at the conditions as stated in the Seller’s quotation.
11.1 On the Customer’s express request, the Seller may provide special training courses to the Customer’s employees regarding the use of the Products. Such courses shall be charged separately. Details of any such courses are to be provided by the Seller on a case by case basis.
11.2 After-sale maintenance and support for the Products are not included in the sale contract and are not covered by these General Conditions. Such services may be provided by Seller according to separate maintenance and support agreements.
12.1 The Seller warrants that (i) the Products have the essential features for use according to their technical specifications and the order confirmation, and that (ii) the Products comply with the Italian law and the applicable European Union rules.
12.2 The Seller warrants against any defects of the Products, for a period of twelve (12) months from the date they are installed, but in no event for more than eighteen (18) months as from the Ex Works delivery date unless otherwise agreed.
The above warranty covers all defects or failures which appear in the Products, under proper use, arising solely from faulty materials or workmanship.
The warranty excludes parts subject to normal wear and tear.
This warranty is only in favor of the Customer and cannot be extended to subsequent purchasers of the Products, if any, or to any other third parties.
12.3 The Customer may enforce the Seller’s warranty only if the Customer has carefully followed the directions for use and maintenance of the Products as provided by the Seller. No warranty is provided if the Customer: (i) is not up-to-date with its payments, or (ii) has not used the Products in strict compliance with the Product instructions, or (ii) has modified or tampered with the Products, or (iii) has used the Products for purposes different from those they are normally intended to. Further, no warranty is provided in cases of damages or improper functioning of Products due to fault or negligence of the Purchaser, its employees and/or any third parties, including but not limited to incorrect installation and/or maintenance and/or manipulation. The Seller’s warranty shall also not cover any damages due to wear and tear or arising from improper storage in the event of Products wholly or partly being stored by the Customer prior to installation, use or resale to the final user.
12.4 Without prejudice to Section 9 above (Complaints on faulty delivery), the Customer shall notify any Product’s defects within 8 (eight) days from the date of discovery and, in any case, not later than the warranty period set forth in article 12.2 above. Notification must be made by e-mail followed by registered letter with return receipt. Every defect report must specify the noticed defect and the Product(s) it refers to. Any other form of notification, e.g. by telephone or through an agent, shall not be valid.
Failing such timely notification, any Customer’s rights to enforce the Seller’s warranties, whether by law or by these General Conditions, shall be forfeited.
The Customer shall, after obtaining Seller’s return authorization, ship the defective material to the Seller for inspection. Shipping costs for said authorized returns shall be borne by the Customer. The defective parts shall become the Seller’s property after their replacement.
12.5 If testing at the Seller’s warehouse proves the existence of the claimed defects, the Seller shall, in its sole judgment, either replace the defective Product(s) or parts thereof, or repair the defects. Any replaced Product(s) or parts shall be delivered “Ex Works” at Seller’s warehouses in Italy.
12.6 Any and all adaptations of the Products to any local laws, regulations or requirements in force in the country in which the Products are to be installed, except for those expressly mentioned in the Seller’s order confirmation, shall be made only on Purchaser’s special request, and shall be subject to Seller’s express acceptance.
12.7 The Seller’s warranty under this article 12 is the sole warranty to the Customer and replaces any other kind of warranties, express or implied, provided for by laws and by commercial customs, including, without limitations, any warranty of merchantability or fitness for any particular purpose, which are hereby expressly excluded. The remedies granted to the Customer pursuant to these General Conditions shall be the sole and exclusive remedies.
Furthermore, any liability of the Seller for damages whatsoever arising from the Products, regardless of the type of damages (direct, indirect, consequential or else) and the type of liability (for contract, negligence, tort, strict liability or else) is hereby expressly excluded except in the cases of Seller’s fraud or gross negligence.
12.8 The Purchaser may not suspend or delay payments for any reason, nor claim damages or reduction of the Products’ price. The Purchaser may not offset any payment due to the Seller with any sums that the Purchaser reckons it should receive for any reason.
13.1 Performance of any obligations may be suspended by Seller without liability to Customer to the extent that a war, fire, earthquake, hurricane prohibition or acts of public government or public agency, riot, hostility, public disturbance, epidemic, flood, storm, other acts of God, strikes, labor disputes, shortages, inability to obtain materials, raw materials, components, electrical power, equipment or transportation, computer viruses or other matter beyond the reasonable control of such party delays or prevents the performance of the sale contract. Seller shall invoke this provision by promptly notifying Customer in writing of the nature and estimated duration of this suspension.
13.2 Should a Force Majeure event prevent or delay delivery of the Products to the Customer or the performance of any other material obligation of the Seller for a period exceeding six (6) consecutive months, then either Seller or Customer will be entitled to cancel the sale contract to the extent not yet executed without Seller being held to any indemnity or liability whatsoever towards the Customer.
14.1 The Customer undertakes not to cancel or remove any of the trademarks, logos or names of the Seller placed upon the Products and/or appearing in Seller’s documents.
14.2 Nothing contained in these General Conditions or in the sale contract shall be construed as granting Customer any rights, whether by license or otherwise, upon the Seller’s trademarks. Any use of the Seller’s trademarks by Customer is therefore excluded, unless with the Seller’s prior written consent.
Seller shall be entitled to terminate immediately the sale contract (i) if a change in the Customer’s financial conditions occurs, in such a way that, in the Seller’s judgment, payments due to Seller are at risk, or (ii) if the Customer files a petition in bankruptcy, or is adjudicated bankrupt, or takes advantage of the insolvency laws of any jurisdiction, or makes an assignment for the benefit of creditors, or is voluntarily or involuntarily dissolved, or has a receiver, trustee or other court officer appointed for its property.
In the above cases the Seller shall be entitled to request the entire payment of the sums still due by the Customer in one amount.
16.1 Any and all intellectual property rights connected with the Products, including any parts thereof and any documentation pertaining thereto, are and shall remain the Seller’s sole property.
16.2 The Seller agrees to defend the Customer in case of action brought against the Customer for infringement of intellectual property rights, if the Seller is informed immediately in writing by the Customer. The Seller will be granted the sole control of the defence and will be free to take all the necessary measures for a judicial or extra-judicial solution. If the Product infringes a third party’s right, the Seller will at its option replace, modify or take back the Product.
Should any of these General Conditions be declared void or unenforceable by a court of competent jurisdiction, the remainder of these General Conditions and the sale contract shall not be affected thereby and shall continue to be fully valid and enforceable.
These General Conditions and any sale contract between Seller and Customer shall be governed by the laws of Italy.
The courts of Milan (Italy) shall have the exclusive jurisdiction and venue on any and all disputes arising from or connected with these General Conditions and/or arising from or connected with any contract of sale of Products.
These General Sale Conditions are made in Italian and English languages. The Italian text shall prevail in case of discrepancies.