GENERAL SALE AND INSTALLATION CONDITIONS
These general conditions of sale and installation (hereinafter the “General Conditions”) govern all sales and installation activities of the Products (as defined hereinafter) between Valente S.p.A. (hereinafter the “Seller”) and any purchaser (hereinafter the “Client”). Unless otherwise agreed in writing, the General Conditions shall prevail over any other possible conflicting provision contained in forms or other documents used by the Seller and/or the Client (hereinafter, together, the “Parties”). SECTION I – SALE 1. PRODUCTS 1.1 The subject of the sales governed by these General Conditions are the goods present in the Seller’s lists in force at the time of submission of the purchase order by the Client (here in after the “Products”). 1.2 The sending of lists or catalogues shall not be deemed to be a formal offer by the Seller, who may modify the same at any time without giving prior notice. Any information or data regarding the characteristics and/or technical specifications of the Products contained in the Seller’s lists, catalogues or other illustrative materials shall only be binding on the Seller insofar as such data is reiterated in the Order Form (as defined hereinafter) and confirmed in the Order Confirmation (as defined here in after). 1.3 The Seller reserves the right to modify the Products in anyway that may result necessary or appropriate, yet without changing their fundamental characteristics. 2. ORDERS AND CONFIRMATIONS 2.1 The Client shall make orders by filling in the forms provided by the Seller (here in after the “Order Forms”) and delivering or sending them by post, fax or e-mail. 2.2 Each order shall be considered effective and binding on the Client in accordance with Article 1329 of the Italian Civil Code until confirmed by the Seller and, in any case, not later than 30 (thirty) days from its receipt. 2.3 Order Forms shall be considered accepted by the Seller upon receipt by the Client of the order confirmation issued by the Seller (here in after the “Order Confirmation”). 2.4 Should the Order Confirmation contain amendments with respect to the Order Form, the amendments shall be considered as tacitly accepted 5 (five) working days from receipt of the Order Confirmation unless the Client has raised its objection in writing. 2.5 Should an order be cancelled or if the Products remain uncollected, even in part, the Client shall pay a penalty equal to 30% of the value of the cancelled orders and/or uncollected Products, without prejudice to the Seller’s right to claim further compensation. 2.6 The delivery of a quantity of Products which is greater or lower than 5% of the quantity ordered and accepted shall be deemed to conform with the Order Form. 2.7 Without prejudice to the fulfilment of orders that have already been confirmed, the Seller may at any time and without prior notice suspend and/or cease the production of the Products without the Client being entitled to raise any complaint or claim in this regard. 3. SALES PRICES 3.1 Unless otherwise agreed in writing, the prices of the Products (here in after the “Prices”) shall be those stated on the Seller’s price list in force on the date of sending the Order Confirmation. 3.2 The Prices are in Euros (Eur). 4. PAYMENT CONDITIONS 4.1 Upon transmission of the Order Form, the Client shall pay to the Seller an advance payment equal to 20% (twenty per cent) of the total amount due for the ordered Products and, where relevant, for the Works (as defined hereinafter). The outstanding balance must be paid upon delivery in accordance with the terms and deadlines indicated on the Order Form. 4.2 Not with standing the provisions of paragraph 4.1, should the Parties have agreed that payment shall be effected, in whole or in part, after the delivery of the Products, the Client must provide the Seller, upon transmission of the Order Form, with a suitable autonomous first demand guarantee issued by a first class bank of a country which is not at risk, for the entire outstanding amount or, alternatively, a stand-by credit letter in accordance with the terms and conditions specified in the Order Confirmation sent from the Seller to the Client. 4.3 Should such payment be made by documented credit, the same must be issued in accordance with the terms and the indications that, from time to time, the Seller shall indicate in the Order Confirmation. 4.4 Any payment is intended as effected or due at the Seller’s place of business. Bills of exchange or cheques are not accepted forms of payment. In any case the Client shall bear all relevant paperwork costs and associated bank charges. 5. NON-PAYMENT OR DELAYED PAYMENT 5.1 Should a payment be delayed in whole or in part, the Client will be liable to pay interest to the Seller on the due amount in accordance with Art.5 of Legislative Decree no. 231/2002. 5.2 In the event that the Client delays a payment in whole or in part, even if related to previous supplies, the Seller may suspend any supply in progress, terminate the relevant contract and retain as pre-liquidated damages all sums already cashed in advance, without prejudice to its right to claim further damages. 5.3 In the case of payment of the Price in instalments, failure by the Client to honour even one instalment or diminish the security granted (even if related to a previous supply) will automatically cause the loss of the benefit of instalments. 6. RETENTION OF TITLE 6.1 Ownership of the Products remains vested with the Seller and shall not pass to the Client until payment of the Price is made by the latter in full and, should the payment be extraordinarily made by way of cheques or bills of exchange, until the Seller has received from the Bank the communication that the cheques and bills of exchange have been paid in full. Nevertheless, the Parties agree that all the risks deriving from loss or damage to the Products for whatsoever reason will pass to the Client from the time of delivery of the Products in accordance with the rule adopted from time to time with reference to the Incoterms® contained in the International Chamber of Commerce publication number 715 (hereinafter the “Incoterms® 2010”). 6.2 The Client shall bear all costs necessary for the registration of the retention of title. 6.3 The Client may resell the Products to third parties even before the total payment of the Prices have been effected. In such a case, the Client shall carry out at its own cost all acts and formalities required by local laws in order to render such retention of title enforceable against third parties. The Seller shall automatically replace the Client with regard to rights vis-à-vis third parties and the proceeds of the sale – until payment of the price in full – shall be received by the Client on behalf of the Seller, or directly by the latter. 6.4 The Client must inform the Seller within 24 hours of each and any enforcement proceeding or interim injunction filed by third parties on the Products under reservation of title. The Client shall remain, in any case, liable to the Seller for any expense or damage suffered in relation to such acts. 7. DELIVERY 7.1 Unless otherwise indicated in the Order Confirmation, the delivery of the Products shall be to FCA Via Luigi Galvani 2/4 Campodarsego (Padua), Italy, in accordance with the Incoterms® 2010. Within 5 working days of the Seller giving the Client notice that the Products are ready for delivery, the Client shall appoint a carrier or a forwarding agent. The Seller warrants that the Products shall be packaged in accordance with the custom of the business sector and suitable for the agreed means of transport. 7.2 If the Client fails to appoint a carrier or a forwarding agent within the aforementioned term or if the carrier or if the forwarding agent appointed by the Client fails to collect the Products in time, the Client shall pay the Seller, as compensation for storage – an amount equal to 5% of the price of the purchased Products indicated on the invoice, calculated per month or part of month. 7.3 In the event that the Client fails to collect the Products within 5 working days of the notice of availability of the Products, the Seller, as an alternative to paragraph 7.2, may, at its sole discretion, send the Products as it, from time to time, deems most opportune, or may ship the Products at the Client’s expense and inform the latter of the terms and conditions of shipment. Should the Client refuse to take delivery of the Products, the contract shall automatically terminate and the Seller shall be entitled to claim the penalty set out in paragraph 2.5 as well as further damages. 7.4 The delivery terms specified in the Order Confirmation are merely indicative and shall not be deemed to be an essential characteristic. Such terms shall be deemed automatically extended in case of late payment by the Client of even one instalment or in case of amendments to the supply requested by the Client after the execution of the contract or in the case of late receipt of the autonomous first demand guarantee issued by the bank and/or delay of notice on the part of the bank giving documented credit or of the stand-by credit letter, in accordance with the terms and instructions contained in the Order Confirmation. 8. WARRANTY OF PRODUCTS 8.1 The Seller guarantees that the Products are free from material and workmanship defects under normal use and are compliant with the specifications contained in the Seller’s catalogues. 8.2 Unless specifically agreed in writing between the Parties, the Seller undertakes to remedy the defects or faults with the Products, provided that such defects or faults (i) are not due to normal deterioration and/or inappropriate use and/or incorrect maintenance by the Client and (ii) have been notified in writing to the Seller within 8 (eight) days from the delivery date or, in the case of latent defects, from the date of their discovery. 8.3 In the event of Products defects or faults, the Seller shall, at its discretion, repair or replace to FCA (Incoterms® 2010) Via Luigi Galvani 2/4 Campodarsego (Padova), Italy the Product or its defective parts. The Client is expressly excluded from terminating the contract and/or claiming damages. 8.4 Such warranty will be valid for a period of 12 (twelve) months from the date of delivery of the Products on the basis of the adopted Incoterms® 2010 (hereinafter the “Warranty Period”) and may not, in any case, be suspended or extended as a consequence of the non-use of the Product by the Client, even if due to repair under warranty. 8.5 It remains understood that this warranty (ie the obligation to repair or replace the Products) absorbs and replaces any other form of guarantee or liability (both contractual and extra-contractual) provided for by law with regard to the supplied Products, and in particular the Seller shall not be liable for direct, indirect, incidental or consequential damages which may derive from the defective nature and/or the non-conformity of the Product. 8.6 Any claim or dispute raised by the Client with regard to the Products shall not entitle the Client to suspend or delay the payments for the Products, including those forming the object of claim and other supplies. SECTION II – SET UP AND INSTALLATION 9. SET UP AND INSTALLATION The provisions contained in this Section shall apply, in addition to what is set forth in Sections I and III, whenever the Parties decide to include in the sales contract the set up and/or installation of the Products (hereinafter the “Works”). 10. PRICE OF WORKS 10.1 The cost of the Works shall be related on the Order Form and/or the Order Confirmation. 10.2 Where the Parties agree on a flat-rate price, this shall include all the items listed on the Order Form and/or the Order Confirmation. Where the duration of the Works are whatsoever reason which is not attributable to the Seller, the latter shall invoice separately, and in addition to the agreed flat-rate price, its own personnel’s waiting time, additional activities performed, travelling allowances and its personnel’s other travel expenses. 11. PERFORMANCE OF WORKS 11.1 Before starting the Works, each Party must inform the other in writing of the person in charge of the Works. Whilst the Works are being carried out, the persons de signated by the Parties to be in charge of the works must be present at the workplace, or nearby. 11.2 The Client must make freely available the (qualified and unqualified) complementary workforce that the Seller, at its own discretion, may deem necessary. 11.3 Technical drawings and plans sent from the Seller to the Client for the realisation of the Works shall remain the exclusive property of the Seller. The same may not be used, copied, reproduced, transmitted or communicated to third parties by the Client without the consent of the Seller. 11.4 The date of completion for the works indicated on the Order Form and/or the Order Confirmation shall be of a merely indicative nature and shall not be binding on the Seller. 11.5 It shall be the responsibility of the Client to obtain any permit, authorisation, clearance, declaration of starting activities or similar, where necessary, in order to effect installation, in accordance with laws in force and requirements provided for in the country in which the installation Works will be carried out. 11.6 Should the Works be interrupted due to any permit, authorisation, clearance, start of works declaration or the like not being issued or the loss of validity and/or effect of the same, for any reason whatsoever, the Seller shall be entitled to compensation for all the materials which have already been delivered and any works which have already been carried out but which have not been paid for at the moment of interruption. In the same way, the Vendor shall be entitled to receive payment for all the materials which have already been delivered and works that have already been performed in accordance with agreed deadlines, independently of any delays to the Works caused by the lack of or delay to the delivery of materials by third parties. 11.7 In the case that the Parties have specifically agreed the that the delivery terms indicated in the Order Confirmation are to be binding, the Seller shall not be held responsible for delays to delivery caused by adverse weather conditions, including, by way of example, rain, snow, hail and strong winds. The Seller shall assess at its discretion, on a case by case basis, the impact that such factors may have on the adherence to the delivery terms. In any case, the Seller shall inform the Client in writing with regard to the estimated length of the delay. Delays to delivery caused by adverse weather conditions do not give rise to any right on behalf of the Client to suspend payment or terminate the contract. 12. TEST AND DELIVERY 12.1 Once the Works have been completed, the Seller shall verify that the same are in compliance with the agreed technical specifications; in the case that they are, the Seller shall send the Client a report of the test (the “Test Report”) to be signed for acceptance within 3 (three) working days from the date on which it was received (the “Acceptance Term”). 12.2 Upon signature of the Test Report by the Client the works shall be deemed delivered and at that moment the Warranty Period shall begin. 12.3 The delivery of the Works shall be deemed to have occurred should the Client, within the Acceptance Term, not return a signed copy of the Test Report to the Seller or contest the compliance of the Works in writing. In such case, the Warranty Period shall commence on the day after expiry of the Acceptance Term. 13. WARRANTY OF WORKS 13.1 Within the limits of the following provisions, the Seller undertakes to remedy any defect due to the projects, the set up or installation of the installation. 13.2 Unless, due to the nature of the defect, it is necessary to carry out the repair in situ, the Client shall send the Seller the defective parts for their repair or replacement. In such a case, the Seller’s guarantee shall be considered to have been fulfilled on delivery to the Client of the duly repaired or replacement parts. When the repairs must be carried out on site, the travel expenses and lodgings borne by the Seller’s personnel as well as the expenses and the transportation risks of the material and necessary tools shall be divided as follows: 70% to be borne by the Seller and the remaining 30% to be borne by the Client. 13.3 The delivery of repaired or replacement parts shall be to FCA Incoterms® 2010 Via Luigi Galvani 2/4 Campodarsego (Padua), Italy. 13.4 This guarantee is further regulated by paragraph 8 of these General Conditions. 13.5 It remains understood that, where the Works include the assembly of materials provided by third parties, the Seller shall not be deemed responsible for defects or faults with the same, save for where the Client can prove that such defects have been caused by the fault or malice of the Seller during the assembly and installation activities. SECTION III – FINAL PROVISIONS 14. APPLICABLE LAW AND COMPETENT JURISDICTION 14.1 The supply and installation forming, the object of these General Conditions are governed by Italian Law, with the express exclusion of the application of the Vienna Convention on Contracts for the International Sales of Goods (with the exception of Article 8 and Article 11 of the Convention, which shall prevail over any other conflicting provision of Italian law). 14.2 Every dispute arising between the Parties in relation to the General Conditions and in relations to contracts regulated by the same shall be submitted to the exclusive jurisdiction of the Court of Padua (Italy). 14.3 As a partial derogation to that provided above, the Seller shall have the right to elect, at its discretion, the Court where the Client has its place of business. 15. MISCELLANEA 15.1 Failure by one of the Parties to enforce, at any time, any of the provisions of these General Conditions or of the contract ruled by the same shall not be construed as a waiver of such provision or of the right to thereafter enforce each and every provision therein. 15.2 If any provision of these Conditions is declared to be invalid, illegal or unenforceable by the competent Court the remaining provisions shall continue in full force and effect and shall not be affected thereby. 15.3 Any communication between the Parties must be carried out by registered mail with return of receipt, e-mail or fax and shall be effective as of the date of receipt.