1.1 These General Conditions are applicable to all the orders (hereinafter referred to as the “Orders”) regarding the goods (hereinafter referred to as the “Goods”) sold by the Seller.
1.2 The Specific Conditions contained in any order confirmation by the Seller (hereinafter referred to as the “Order Confirmation”) and these General Conditions represent the entire content of the agreement entered into by and between the parties (hereinafter referred to as the “Contract”) and avoid and replace any other agreement, previously reached by them, either in writing either orally.
1.3 The invalidity of one of these Conditions will not invalidate automatically neither the Contract nor any Order.
1.4. Any eventual emendation or integration of the Specific and the General Conditions shall be mutually agreed in writing by the Parties.
1.5 Any waiver, concession or other indulgence eventually granted by one party to the other shall never be interpreted as an implied waiver of the rights of the first party deriving from the Contract.
2.1 No quotation, advertisement or issue of a catalogue by the Seller shall constitute an offer. All Orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions. For the avoidance of doubt, any order form or quotation sent by the Buyer to the Seller shall not constitute an acceptance of any condition contained in that order form or quotation. The Order Confirmation only, shall constitute an individual and legally binding contract between the Seller and the Buyer.
2.2 If the Buyer does not reject the Order Confirmation in three days from receipt, the transaction will be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2.3 These Conditions shall apply to each individual and legally binding contract entered into between the Seller and the Buyer for successive deliveries of Goods. Where the Buyer places an order for successive deliveries of Goods, which is accepted by the Seller, each delivery of Goods shall be treated as an individual and legally binding contract and disputes arising out of or in connection with one delivery shall not affect the balance of deliveries to be made in execution of the Order from the Buyer.
3. Goods characteristics – Alteration
3.1 Any eventual information or data relating to technical features and/or specifications or characteristics of the Goods contained in any technical schedule, dépliants, brochures, price lists, catalogues and similar documents shall be binding for the Seller only in case they are expressly referred to in the Order Confirmation
3.2 The Seller reserves the right to make improvements or non-material modifications to any part of the Goods resulting from any variation in the specifications or technical data. The Seller will not be liable in respect of any loss or damage caused by or resulting from any such improvements or nonmaterial modifications. The Seller will take all reasonable steps to advise the Buyer of any such impending variation.
4.1 Quotations by the Seller in respect of Goods to be supplied to the Buyer’s order are issued by the Seller on the basis that the terms quoted, will in the normal course of business remain open for the placing of orders as specified in the quotation itself. On the expiry of the established period, the Seller reserves the right to vary or cancel any quotation without notice.
4.2 Without prejudice to Clause 4.1, at the discretion of the Seller, a quotation may be withdrawn at any time, on immediate notice to the Buyer.
4.3 Quotations for Goods offered ex-stock are valid only for immediate acceptance and are otherwise subject to prior sale and any change in the Seller’s prices.
5.1 Prices given by the Seller in any catalogues, price lists or other advertising literature or material are intended only as a guide, are not binding for the Seller, and may vary. All prices quoted are exclusive of any Value Added Tax. In the case of goods sold outside Italy, all prices quoted are exclusive of import duties and any local taxes and/or applicable duties which shall be payable by the Buyer.
5.2 All prices shown in the Seller’s current price lists are subject to alteration without notice. Such alteration shall not affect any order placed by the Buyer and accepted by the Seller in writing prior to such alteration, subject to any metal or currency variation.
5.3 Where the Seller’s quoted prices for the Goods are based on a metal price for copper, then unless otherwise agreed by the Seller in writing the Price shall be adjusted in respect of the metal content of the Goods to the price ruling on the next market day following receipt by the Seller of the Order. The metal price for copper grade A shall be the official London Metal Exchange “Settlement” Price and producers premium or such other basis as may apply. The Buyer shall also reimburse the Seller for any Contango costs incurred by it.
5.4 The Buyer shall reimburse the Seller on demand for all costs and losses (including without limitation Contango and Backwardation and financing costs) which are incurred by the Seller in respect of metals booked or purchased in order to fulfill the Contract and/or which arise from failure by the Buyer to take delivery of the Goods within the period stated in the Seller offer or in the Order confirmation or any longer period agreed by the Seller in writing,. The Seller reserves the right to claim any further damage.
5.5 Where the price is in a currency other than Euro, the price shall be adjusted at any time prior to acceptance of the Order to take account of any adverse change in the relevant currency exchange rate against Euro.
The Buyer shall reimburse the Seller on demand for all costs and losses incurred by the Seller in respect of foreign currency sold forward to cover payments due under the Contract which arise from the Buyer’s failure to take delivery of and pay for the Goods in accordance with the Contract. The Seller reserves the right to claim any further damage.
5.6 The Seller’s prices include the cost of routine testing carried out in accordance with the Seller’s standard procedures. Where additional tests are requested by the Buyer, these will be charged extra and may affect delivery. If the Buyer wishes to witness any tests all costs so incurred including inspection fees, traveling and other expenses shall be borne by the Buyer.
5.7 If the cost to the Seller of fulfilling any of its obligations under the Contract is increased by any act or omission on the part of the Buyer or by the coming into force after the date of the Contract of any law or regulation having the force of law in any part of the world, then the Price shall be adjusted to cover such additional costs.
5.8 All prices are net of any discounts, unless otherwise so stated.
6. Rescheduling and Cancellations
6.1 The Buyer may request changes to the date or place of despatch of all or part of an order no later than one week prior to despatch of the Goods. In this event, the Buyer will be liable to pay a reasonable rescheduling charge to be determined by the Seller to cover the Seller’s expenses incurred as a result of such rescheduling.
6.2 Cancellation of orders in whole or in part cannot be accepted without the Seller’s consent in writing and will only be accepted on the basis that the Buyer indemnifies the Seller in respect of all losses, costs or expenses incurred by the Seller up to the date upon which the Seller accepts the Buyer’s notice of cancellation.
7.1 The Seller shall deliver the Goods to the Buyer at such place as may be agreed in writing between the parties. Where the Goods are supplied for export from Italy, Incoterms 2000 shall apply. Except as otherwise agreed, the supply of the Goods will be Ex Works, even if it is agreed that the Seller will take care, in whole or in part, of the shipment.
7.2 Delivery commitments are entered into in good faith but any time quoted for delivery or despatch is an estimate only and shall not be deemed to be a term of the Contract.
7.3 The Seller shall not be liable for any loss or damage of any kind whatsoever arising directly or indirectly out of any delay or failure to deliver the goods by the estimated delivery date or time, unless the Seller and the Buyer agree separately in writing that the Goods must be delivered by a certain date. The Seller will take all reasonable steps to advise of any impending material delay in delivery.
7.4 The Buyer shall accept delivery of the Goods within a period of 15 days of being notified by the Seller that the Goods are available for delivery. If the Buyer fails to accept delivery as aforesaid the Seller shall be entitled:
7.4.1 to charge interest to the Buyer at the rate of BCE +7% per annum above the base rate for the time being of the BCE (such interest being calculated daily and charged monthly by the Seller and payable by the Buyer on demand by the Seller) on all sums due to the Seller in terms of the Contract and for the time being unpaid in respect of the period from the expiration of the said period of 15 days until delivery of the Goods is accepted by the Buyer;
and 7.4.2 to charge the Buyer storage and all other relevant costs.
7.5 The Seller reserves the right to despatch and invoice any part of an order when available.
8. Part Delivery
Each delivery shall be considered as a separate contract and any failure in performance on the part of the Seller in respect of any delivery shall not vitiate the Contract as to other deliveries, and no defect or default in any part delivery shall entitle the Buyer to treat the Contract repudiated for the balance of the Goods remaining to be delivered under it.
9. Non-Delivery or Damage to Goods
9.1 Any claim by the Buyer for loss or damage apparent on inspection or for non-delivery must be made in writing by the Buyer within 15 days of the earlier of delivery or receipt of the Seller’s invoice. In the case of damage, the said notice must contain full particulars of the alleged damage. Moreover a copy of the CMR delivery document accepted with reserve must be submitted in order to be refunded.
9.2 No claim for damage in transit or ‘short’ delivery will be considered by the Seller unless the signature of the Buyer on the delivery note (if any) is appropriately qualified. Delivery notes unsigned or signed “unchecked” (or similar) shall cause any such claim to be rejected by the Seller.
9.3 On being so notified, the Seller shall have the right to inspect and test the Goods provided that the Seller does so within 14 business days from receipt of the Buyer’s notice. In the event that the Goods or any part thereof are found to be (and agreed by the Seller to be) materially defective, the Seller will at its option refund the price paid or replace, by delivery to the Buyer`s address, the whole or such part of the Goods supplied as the Seller shall at its sole discretion deem reasonable in order to repair the defect.
9.4 There shall be no liability of the Seller in terms of this Clause 9 for any defects which in the opinion of the Seller, occur as a result of:-
9.4.1 misuse of the Goods or negligence on the part of any person other than the Seller;
9.4.2 loss or theft of the Goods or any part of them;
9.4.3 damage from any cause other than negligence by the Seller or the Seller’s personnel;
9.4.4 unauthorised modification, alterations or repair of any of the Goods; or
9.4.5 fair wear and tear.
9.5 In the event that the Seller chooses to replace the Goods or any part in question, the Buyer shall permit the Seller to retake possession of the Goods originally delivered and the Seller shall deliver the replacement Goods within a reasonable time. The replacement Goods shall be accepted by the Buyer in substitution for the Goods replaced.
9.6 The total liability of the Seller in respect of all breaches of Contract in relation to the Goods shall not exceed the difference between the value of the Goods in question at the time of delivery and their value as set out in the invoice.
9.7 Where the Goods are for delivery by instalments, any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments and the Buyer shall be bound to accept delivery thereof.
10.1 The Seller shall repair or (at its option) replace any Goods which prove to be defective under proper use within a period of 12 calendar months from the date of resale or use of the Goods by the Buyer or 18 months from the date of delivery of the Goods by the Seller (whichever period first expires), provided that:
10.1.1 notice in writing giving details of the defects is given to the Seller as soon as the defects become apparent;
10.1.2 where the Goods were manufactured by the Seller, the defects are shown to the Seller’s satisfaction to have arisen solely from the Seller’s faulty design, workmanship or materials;
10.1.3 the defective Goods are returned to the Seller’s works; and
10.2 the Seller shall not be liable in respect of any defect or damage to the Goods which is caused by ordinary wear and tear, lack of maintenance, inappropriate use, misuse or abuse, improper or unsuitable installation, alterations, modifications or dismantling, any third party or parties or any other cause beyond the Seller’s reasonable control.
10.3 As an alternative to repair or replacement of the defective Goods under 10.1 above, the Seller shall be entitled at its absolute discretion to refund the price paid by the Buyer for the defective Goods. The total liability of the Seller in this respect shall not excide the value of the Goods in question as set out in the invoice.
10.4 For the purposes of this Clause “inappropriate use” means a use which has not been either approved for the relevant Good in the Seller’s sales literature or quotation or otherwise approved by the Seller in writing.
11 Technical Advice or Assistance or Recommendations
11.1 The Seller at the request of the Buyer, may, but without obligation to do so, furnish technical advice or assistance or recommendation with reference to the use of the Goods sold hereunder, on the express condition that any such advice or assistance or recommendation is given and accepted at the Buyer’s risk and the Seller shall not be liable for any loss, damage costs or claims arising there from.
11.2 The Seller is not responsible for the consequences of any inadequacies, inaccuracies or other deficiencies in any drawing, specification or other information provided by the Buyer to the Seller.
Unless agreed otherwise in writing by the Seller and the Buyer, all Goods will be packaged in accordance with the Seller’s standard practice.
13.1 The risk in the Goods shall pass from the Seller to the Buyer upon delivery of such Goods to the Buyer. However, notwithstanding the delivery and the passing of risk in the Goods, title and property in the Goods, including full legal and beneficial ownership, shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full for all Goods delivered to the Buyer under this and all other contracts between the Seller and the Buyer for which payment of the full price of the Goods thereunder has not been paid. Payment of the full price of the Goods shall include the amount of any interest or other sum payable under the terms of this and all other contracts between the Seller and the Buyer under which the Goods were delivered
13.2 – Until the transfer or passing of property in the Goods under Clause 13.1 above:
13.2.1 the Buyer shall keep the Goods on its own premises in safe custody, separate from any goods which are the property of the Buyer or any third party, properly stored, protected and insured and in such a way that they are readily identifiable as belonging to the Seller;
13.2.2 the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored with such transport as may be necessary and repossess the Goods. In such circumstances the Buyer hereby waives any right to claim from the Seller damages caused to the Buyer’s premises, business reputation, profits or business whatsoever as a result of such entry. The exercise of such a right shall be without prejudice to any other rights the Seller may have; and
13.2.3 the Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness, any of the Goods, but if the Buyer does so all monies owing by the Buyer to the Seller shall forthwith become due and payable.
13.3 he Buyer is hereby appointed as the Seller’s agent until such time as payment is received in full for the Goods and the Seller grants authority to the Buyer to sell or use the Goods in the ordinary course of business. The Seller reserves the right at any time to terminate the Buyer’s power of sale or use hereby conferred at its discretion and, without prejudice to the generality of the foregoing, where the Buyer is in default for longer than seven days in the payment of any sum whatsoever due to the Seller for whatever reason or if the Seller have any reason to doubt the solvency of the Buyer.
13.4 Any power of sale or use which the Buyer may have over Goods which are the property of the Seller shall automatically cease:
13.4.1 if the Buyer (being an individual or a company) shall become apparently insolvent or commit any act of bankruptcy; or
13.4.2 if the Buyer (being a company) has a receiver or administrator appointed over the whole or any part of its property or undertaking or a petition is presented or a resolution proposed for its winding-up; or
13.4.3 if the Buyer ceases or threatens to cease to carry on business; or
13.4.4 if an administration order in relation to the Buyer is applied; or
13.4.5 if the Buyer is deemed unable to pay its debts or
13.4.6 if the Buyer enters into any composition or arrangement for the benefit of its creditors;
13.4.7 if the Buyer defaults in making payment in accordance with the terms hereof under any contract or any payment is not received by the Seller when due.
Unless otherwise agreed in writing, the Buyer must pay the full amount of each invoice of Goods delivered to him according to the payment terms specified as per the Seller Order confirmation and invoice. If the amount of the invoice has not been paid by the date it is due, the Buyer will be liable to pay the full invoice amount together with daily interest on the amount remaining outstanding at the rate of BCE +7% per annum above the base lending rate for the time being of the BCE from the date payment becomes due until the Seller receives payment in full, and the Seller may at its option (a) suspend or cancel further deliveries under any contract with the Buyer, and/or (b) resell the Goods.
15. Economic Loss
The Seller shall not be liable, whether in contract or in tort or otherwise, and irrespective of cause for:
15.1 any loss of profit, business, contracts, revenues or anticipated savings suffered by the Buyer; or
15.2 any special, indirect or consequential loss of any nature whatsoever suffered by the Buyer.
16. Limitation of Liability
The Seller’s liability to the Buyer in respect of the alleged defective performance or non-performance of any Goods supplied, whether such liability arises in contract, tort or otherwise, shall be limited in all circumstances to the price of the Goods specified in the invoice.
17. Force Majeure
The Seller shall not be liable to the Buyer for any delay in or failure to perform its obligations hereunder where such delay or failure results from force majeure, Act of God, fire, accident, war, terrorism, rebellion, riot, sabotage, official strike, lock-outs or official labour disputes, inability to obtain energy or suitable components, material, equipment, transportation services or any other causes beyond the Seller’s reasonable control.
18.1 This Contract may be terminated forthwith by notice in writing:
18.1.1 by the Seller, if the Buyer fails to perform any of its obligations under these terms and conditions, and such failure continues for a period of 14 days after written notice has been served by one Party on the other Party requesting that the breach be remedied; or
18.1.2 by the Seller if the Buyer, being an individual, company or partnership becomes apparently insolvent or the equivalent thereof in any foreign jurisdiction, or being an incorporated company, becomes unable to pay its debts or if a receiver or liquidator (including a provisional liquidator) is appointed over any of the assets or the undertaking of the Buyer or if an administrator is appointed to govern the affairs of the Buyer, or if a resolution is passed for the voluntary winding up of the Buyer or an application is made to the Court for the compulsory winding up of the Buyer, or if the Buyer generally makes any arrangement or composition with its creditors or becomes involved in any legal proceedings concerning its solvency or ceases trading.
18.2 In the event that the Contract is terminated by the Seller in accordance with Clause18.1 above, all sums due from the Buyer to the Seller in respect of Goods shall become immediately due and payable and the Seller shall, without prejudice to any other rights and remedies which it may have and without any liability whatsoever, be at liberty forthwith upon serving notice in writing to the Buyer:
18.2.1 to suspend or cancel all deliveries, orders and contracts or any part thereof remaining between the Seller and the Buyer for the delivery of Goods; and
18.2.2 to enter into and to have access to the Buyer’s premises wherever situate, and acting either by itself or through agents appointed by it and using any transport necessary, for the purposes of removing, realising and disposing of any Goods in which property has not passed from the Seller to the Buyer and the Buyer hereby expressly authorises the Seller and its agents to enter into such premises for any such purposes.
19. Intellectual Property Rights
The Buyer hereby acknowledges that any patent, copyright, design, trade mark or other industrial or intellectual property rights in relation to the Goods in which the Seller or the respective manufacturer, developer or third party has an interest shall at all times and for all purposes vest and remain vested in the Seller or such manufacturer, developer or third party and the Buyer shall not acquire any rights thereto.
20.1 – The headings in these Conditions are for reference only and shall not affect its interpretation.
20.2 The Buyer agrees not to assign any of its rights herein without the prior written consent of the Seller.
20.3 Any notice or other communication to be served under the Contract shall be given in writing and may be served by leaving it at, or sending it by facsimile or by first class recorded delivery post or by e-mail to, the business address of the relevant party. Any notice so served shall be deemed to have been received:-
20.3.1 if delivered personally, at the time of delivery;
20.3.2 if sent by first class recorded delivery post, 48 hours after the date of posting;
20.3.3 if sent by facsimile, e-mail, copier or other electronic means of communication, if the notice was sent during the business hours of the addressee, on the day of transmission, and otherwise on the next following business day and for the purposes of this Clause.
20.4 “business hours” and “business day” means the hours of 8.30 a.m. to 5.30 p.m. local time in Italy. In proving that any notice or document was given or served, it shall be necessary only to prove that the same was properly addressed and posted or faxed.
21. Confidential Information
The Buyer shall keep confidential and shall not disclose to any third party without the Seller’s prior written consent any information (whether of a commercial or technical nature) acquired from the Seller in connection with its tender or the Contract, including without limitation any information concerning the prices at which the Seller sells the Goods.