Terms and conditions
STANDARD CONDITIONS OF CONTRACT
1. SUBJECT OF THE CONTRACT
1.1 These standard conditions of contract (Conditions) are applicable to any purchase order sent by the Buyer to Braviisol Divisione Meccanica S.r.l. (Seller) for [spare parts] (Products) and confirmed by the Seller (Contract), to the exclusion of any other conditions (including any terms or conditions which the Buyer purports to apply under any purchase order) not agreed in writing by both the Seller and the Buyer.
1.2 No order placed by the Buyer shall be deemed to be accepted by the Seller until a [written] acceptance of that order is issued by the Seller or (if earlier) the Seller delivers the Products to the Buyer.
1.3 The Buyer acknowledges that it has no relied on any statement, promises or presentation made or given by or on behalf of the Seller which is not set out in the Contract.
2. CHARACTERISTICS OF THE PRODUCTS – MODIFICATIONS – IMPORT PERMITS
2.1 Any information or data relating to characteristics and/or specifications of the Products contained in websites, leaflets, price lists, catalogues and similar documents shall be binding only to the extent they are expressly agreed in writing by both the Seller and the Buyer.
2.2 If the Products are sold against a sample then the specification of the sample is an indication only and the Products supplied under the Contract may vary slightly in specification from the sample.
2.3 The Seller may make any change to the Products, which, without altering their essential features, appears to be necessary or suitable to assure better quality of the Products.
2.4 The Buyer warrants that the Buyer has all licenses and permits as necessary for the importation of the Products in the country of destination and that the Products can be freely imported in the country of destination.
3.1 Any dates quoted for delivery by the Seller are approximate only. Time for delivery shall not be made of the essence of the Contract by notice.
3.2 Any liability of the Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or issuing a credit note at pro rata Contract rate against any invoice raised for such Products.
3.3 The delivery date will be automatically extended for a period equal to the delay in the fulfillment of the obligations of the Buyer provided below:
a) execution of payments according to the agreed terms;
b) similarly, when the Seller requires to the Buyer information, specifications, data, or other instructions as necessary for the sale of the Products, the delivery of the same will be automatically extended for a period equal to the delay in communication by the Buyer. In the event of changes to the Products, agreed between the Seller and the Buyer, the delivery time will be automatically extended for the period reasonably necessary to make such changes.
3.4 Delivery of the Products shall be made by the Seller at such premises as are stated in the Contract or by the Buyer collecting the Products or shall be deemed to take effect if the Seller is unable to deliver the Products due to any fault on the part of the Buyer or 15 days after the Seller has notified the Buyer that the Products are ready for collection. Where delivery takes place at Buyer’s premises or any other premises, the Buyer shall provide at the delivery point (and at its own expense) appropriate equipment and manual labour for unloading the Products.
3.5 The Buyer shall be liable for warehousing cost incurred by the Seller due to the Buyer’s delay in taking delivery of the Products, after the agreed delivery date, as well as for any other cost and damage resulting on the Seller in consequence thereof.
4. TRANSFER OF OWNERSHIP AND RISK – COMPLAINTS
4.1 Ownership of the Products shall pass to the Buyer against payment in full of the price.
4.2 Notwithstanding the delivery term and the applicable Incoterms agreed upon, risks of the Products shall pass to the Buyer upon notice of Products ready for collection. The Seller is not liable in any case of loss or damage to the Products occurred after the transfer of risks. The Buyer shall in no case be released from the obligation to pay the price when the loss or damage to the Products takes place after the transfer of risks.
4.3 Any complaints or objections shall not entitle the Buyer to suspend or to delay payment of the Products as well as payment of any other services related to the Contract in favour of the Seller.
5. PRICE – TERMS OF PAYMENTS
5.1 The price shall be the Seller ‘s quoted price or, where different, the price stated in the Seller’s acceptance of the Buyer’s order.
5.2 The price for the Products shall be exclusive of any value added tax and unless otherwise agreed all costs or charges in relation to loading, unloading, carriage, insurance and custom duties, all of which amounts the Buyer shall pay in addition when it is due to pay for the Products.
5.3 Payments shall be timely made according to the agreed terms of payment. Any delay of the Buyer in performing payments shall entitle the Seller to suspend the performance of the Contract and shall result in equivalent extension of the delivery time.
5.4 No payment shall be deemed to have been received until the Seller has received cleared funds.
The quantity of any consignment of Products as recorded on despatch from the Seller’s place of business shall be conclusive evidence of the quantity and/or weight received by the Buyer on delivery unless the Buyer can provide conclusive evidence to the contrary.
7.1 The Seller warrants that (subject to other provisions of these clauses) on delivery the Products shall:
a) be free from defects in materials and workmanship; and
b) where the Contract included a specification, be in accordance with that specification.
7.2 The Seller shall not be in breach of any of the warranties in condition 7.1 unless:
a) the Buyer gives written notice of the defect to the Seller within 12 months of delivery of the Products; and
b) the Seller is given a reasonable opportunity after receiving the notice of examining the Products.
7.3 The Seller shall not be liable for a breach of any of the warranties in clause 7.1, if
a) the Buyer makes any further use of such Products after giving such notice; or
b) the defect arises because of transport, loading and unloading; or
c) the defect arises because the Buyer failed to follow the Seller’s written instructions as to the storage, installation, use and/or maintenance of the Products.
7.4 Subject to clause 7.2 and clause 7.3 , if any of the Products do not conform with any of the warranties in clause 7.1, the Seller shall at its own option replace such Products (or the defective part) or refund to the Buyer the price paid for such Products (or that part of the price applicable to the defective part) provided that, if the Seller so requests, the Buyer shall at its own expense, return the Products or part of such Products which is defective to such premises as the Seller has notified.
7.5 If the Seller complies with clause 7.4 it shall have no further liability for a breach of any of the warranties in clause 7.1 in respect of such Products.
7.6 The Buyer shall be solely responsible for providing its own security for its own customers.
7.7 The obligations of the Seller set forth in clause 7.4 are suspended if the Buyer does not comply with the agreed terms of payment.
8. LIMITATION OF LIABILITY
8.1 Subject as expressly provided in these Conditions the following provisions set out the entire liability of the Seller (including any liability for acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
a) any breach of the Contract;
b) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract;
c) any use made or resale by the Buyer of any Products, or of any good incorporating any of the Products;
d) any product recall of any of the Products by any supplier of the Seller.
8.2 All warranties, conditions and other terms are, to the fullest extent permitted by law, excluded from the Contract.
8.3 Nothing in these Conditions excludes or limits the liability of the Seller:
a) for death or personal injury caused by the Seller’s negligence; or
b) for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
c) for fraud or fraudulent misrepresentation.
8.4 Where there has been a product recall involving any of the Products supplied by the Seller to the Buyer, the Seller’s total liability in contract, tort, (including negligence or breach of statutory duty), misrepresentation, or otherwise, arising in connection with such product recall shall be limited to the amount set out in clause 8.5 less any sum received by the Buyer from an insurer or any other person for compensation for that loss.
8.5 Subject to the above:
a) the Seller’s total liability in contract, tort (including negligence or breach in statutory duty) misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the invoice price plus damages limited to 50% of the same amount for any additional costs directly, reasonably and necessarily incurred by the Buyer in obtaining alternative products and/or services;
b) the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
9. FORCE MAJEURE
If the manufacturing, transport or delivery of the Products is prevented, interrupted or delayed by war, civil war, shipwreck, or other breakdown or accident at sea, in the air or an land, fire, flood, pandemic events, Government order or control of any form, strikes, lock-outs, shortages outside the Seller’s control or circumstances beyond the reasonable control of the Seller or usually described as “force majeure” or if all or part of the Products assigned by the Seller for fulfillment of the Contract are destroyed or rendered non-merchantable, then the Seller shall have the option of cancelling any or all of the deliveries under the Contact. Deliveries not cancelled will be delayed until circumstances causing the delay cease.
10. INTELLECTUAL PROPERTY
10.1 The Buyer acknowledges and agrees that any rights in patents, copyrights, moral rights, trade secrets, know how, marks, packaging, design, specifications, and other similar rights pertaining to the Products (Intellectual Property Rights) are the property of the Seller.
10.2 No grant or transfer of any Seller’s Intellectual Property Rights, whether patented or not, to the Buyer is given or intended under the Contract, including any license implied or otherwise. Nothing in the Contract shall be construed to transfer ownership of Seller’s Intellectual Property Rights to the Buyer.
11.1 The Contract is personal to the Buyer and the Buyer shall not assign or transfer or purport to assign or transfer to any other person any of its rights or subcontract any of its obligations under the Contract.
11.2 If any provision of the Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the provisions of the Conditions and the remainder of the provision in question shall not be affected thereby.
11.3 The Contract shall be governed by the laws of Italy, with exclusion of United Nations Convention on the International Sales of Goods (Vienna 1980).
11.4 Any dispute arising between the parties in connection with the interpretation and/or execution of the Contract, shall be settled by the competent court at the place of business of the Seller.
However, notwithstanding the above provisions, the Seller is entitled to, among other remedies, seek the granting of specific implement or other interdict or injunction for any actual or threatened breach of the Contract before any jurisdiction and forum.
The Supplier declares, pursuant to and for the purposes of articles 1341 and 1342 of the Italian Civil Code, to expressly approve the provisions set forth in the clauses: 3.1, 3.2, 4.2, 4.3, 7.5, 8, 11.3, 11.4.