General Terms of Sale CARBOFER TECNOLOGIE SPA
Art. 1 – General Provisions
1.1 These General Terms of Sale are intended to be applied jointly with the Order and relevant Order Confirmation. However, they may also be independently referred to any other Sale Agreement. In the event of a conflict between these General Terms and the Specific Terms set forth in the Order, the Specific Terms (hereinafter also “Specific Terms”) shall prevail. The term Agreement means the agreement resulting from the Order and the Order Confirmation supplemented by these General Terms of Sale. Failing a written order from the Buyer, the Agreement is deemed to have been concluded upon receipt of the Product by the Buyer..
1.2 Any issue concerning this Agreement which is not expressly or implicitly solved by the provisions of the Agreement (i.e., by these General Terms of Sale and/or the Specific Terms agreed between the Parties) shall be governed by the Italian Law.
1.3 Any reference to trade terms (e.g., EXW, FCA, etc.) shall be made to the respective term of the INCOTERMS published by the International Chamber of Commerce, in the version in force at the date of the conclusion of the Agreement.
1.4 Any modification to the Agreement shall not be valid unless it is agreed and proved in writing.
Art. 2 – Product Characteristics
2.1 The quality standards (“Specifications”) concerning the Product shall be binding for the Parties to the extent they are expressly agreed in the Agreement. Failing these specifications, the Parties agree to sell and purchase the Product in accordance with the specifications, conditions and qualities corresponding to those indicated in the Seller’s analytical data relating to the consignment of the batch thereto, even if there is no reference to such specific batch.
2.2 Where the Parties have agreed the Specifications, the Parties agree that the data established by the Seller during the production of the consignment of the batch thereto are to be considered valid even if they do not refer to such specific batch.
Art. 3 – Inspection of Products Before Shipping
3.1 Unless otherwise agreed in writing, the Agreement does not provide the Buyer’s right to inspect the Product before dispatch.
3.2 If the Parties have acknowledged the Buyer’s right to inspect the Products before dispatch, the Seller shall inform the Buyer with a reasonable notice, as of the date of shipment,that the Products are available for inspection at the agreed place of delivery.
Art. 4 – Quantity
4.1 The Seller is entitled to deliver ± 10% of the agreed quantity, even if the Specific Terms do not include the word “approximately”.
4.2 For the purposes of quantitative checks, the weighing notes at the place of commencement of the shipping shall indisputably be considered valid and biding for the Parties.
Art. 5 – Price
5.1 If no price has been agreed in the Specific Terms, the price published by CCIAA (Chamber of Commerce, Industry and Craft-Trades) of Milan at the date of conclusion of the Agreement shall apply. In the absence of a written agreement, the Agreement shall be considered concluded at the time the buyer receives the goods.
5.2 Unless otherwise agreed, the price does not include VAT and any other taxes or charges on the goods and is not be subject to revision.
5.3 In the event the Seller has to bear any costs which according to the Agreement shall be borne by the Buyer (e.g., transport or insurance costs as part of EXW/ FAC delivery terms), such amounts shall not be considered included in the agreed price or in the list price and, shall be refunded by the Buyer to the Seller.
Art. 6 – Terms of Payment and Retention of title
6.1 Unless otherwise agreed in writing, the price and any other amount due by the Buyer shall be paid by the deadline set forth in the Agreement. Unless otherwise agreed in writing, amounts due shall be transferred by bank transfer to the Seller’s account at the Seller’s bank as indicated in the Agreement or in the invoice. The payment obligation shall be considered fulfilled as soon as the relevant amounts have been received from the Seller’s bank as funds immediately available.
6.2 If the Parties have agreed the advance payment of the price without further clarification, it is assumed – unless otherwise agreed – that the advance payment refers to the entire price and that the payment shall be received from the Seller’s bank in funds immediately available within the deadline agreed before the date of delivery or the date on which the agreed delivery period starts. Timely receipt of funds is a necessary requirement for the delivery of the Product.
6.3 If the Parties have agreed payment by means of documentary credit, the Buyer shall, unless otherwise agreed in writing, provide the Seller with a documentary credit governed by the Uniform Customs and Practices for Documentary Credits published by the International Chamber of Commerce in force at the time of the conclusion of the Agreement issued by a primary Italian bank accepted by the Seller . Such documentary credit shall be notified at least 15 days prior to the date agreed for the delivery or the date of commencement of the agreed delivery period. Unless otherwise agreed, the documentary credit shall be payable on demand and shall allow partial shipments and transfers. Timely issue of a documentary credit is a necessary requirement for the delivery of the Product.
6.4 If the Parties have agreed payment against documents, the payment – unless otherwise agreed – shall be made upon submission of the documents agreed in accordance with the Uniform Rules for Collections published by the International Chamber of Commerce.
6.5 If the Parties have agreed that the payment shall be assisted by a bank guarantee, the Buyer shall make available – at least 15 days prior to the date agreed for delivery or the date of commencement of the agreed delivery period – an irrevocable bank guarantee at first request and without possibility for the guarantor to oppose exceptions,. issued by a primary Italian bank accepted by the Seller.
Timely delivery of the irrevocable bank guarantee at first request is a necessary requirement for the delivery of the Product.
6.6 The seller retains title to the supplied Products until the Buyer has fully complied with all payment obligations in the terms above indicated
Art. 7 – Interests in case of late Payment
7.1 If the Buyer fails to pay the price when it is due, the Seller is entitled to interests on that amount from the time the payment was due until the full payment is made.
7.2 Unless otherwise agreed, the interest rate will be 2 points higher than the three-month Euribor rate, as published by “Il Sole 24 Ore” on the expiry day of the payment or in the last publication before that date.
Art. 8 – Contractual delivery terms
8.1 The delivery will take place according to the Incoterms specifications indicated in the Order Confirmation. The Product shall always and in any event be shipped and travels at the Buyer’s risk and on behalf of the Buyer. The Seller will therefore not be liable for any damage, deficiency, loss, natural shortage of the Product’s weight occurring after the loading on the agreed means of trasport, during transport or during the unloading of the goods, even if the Seller makes available his own containers.
8.2 If, by virtue of a specific agreement between the Parties, the Seller undertakes to procure the Buyer for the carriage, the delivery terms shall in any case remain “Free Carrier” at the named place (FCA), and the Seller shall be deemed to have provided the trasport on behalf, in the interests, at the risk, charges and expenses of the Buyer, without taking any liability .
8.3 The ownership of the Product shall be transferred from the Seller to the Buyer upon the identification of the Product. Such identification shall occur at the time of the delivery of the Product to the Buyer.
Art. 9 – Documents
9.1 Unless otherwise agreed by the Specific Terms, the Seller shall provide any documents set forth by the Incoterms (2010).
Art. 10 – Claims and limitation od liability
10.1 Unless the Buyer is entitled to inspect the Product upon departure, the Buyer shall immediately examine the Product upon the arrival at the destination and notify in writing to the Seller any defects or lack of conformity within 48 hours from the arrival, inviting the Seller to carry out any cross-checks on the claimed Product.
10.2 If the Buyer fails to notify the Seller within the aforementioned deadline , his right to object shall be forfeited.
10.3 In case of claims relating to the characteristics and the quality of the Product, the Product’s specifications, conditions and qualities ascertained by the Seller and certified by an independent body on the consignment of said batch will be indisputably valid and biding between the Parties.
10.4 In any event, the Seller shall not be liable for indirect and consequential damages, such as, for example, losses or standstill in production; sales failures; plants stoppages.
Moreover, paragraph 1 of Article 1518 of the Italian Civil Code shall not apply, as mutually agreed between the Parties.
Art. 11 – Co-Operation Between the Parties
11.1 The Buyer shall promptly inform the Seller of any claim against the Buyer by its Customers or a third party regarding the delivered Product.
11.2 The Buyer shall promptly inform the Seller of any action that may imply the Seller’s product liability.
Art. 12 – Force Majeure
12.1 Neither Party shall be liable for the non-fulfilment of an obligation, with the exception of the Buyer’s obligation to pay (whose non-performance shall never be exonerated or justified) to the extent the relevant Party provides evidence that:
(a) such non-fulfilment is due by an impediment beyond the Party’s control, and
(b) he/she could not foresee at the time of the conclusion of the Agreement, such impediment and its effects on his/her capacity to execute the Agreement, and
(c) the Party could not have avoided or overcome such impediment and its effects.
12.2 The Party invoking the force majeure exemption shall notify his/her counterpart – as soon as possible and immediately after having become aware of the impediment and its effects on his/her ability to perform his/her obligations – the existence of such impediment, and its effects on his/her ability to fulfil his/her obligations. A similar notification shall be given as soon as the force majeure event ceases. The Party who fails to provide either notification shall be liable for any damage which otherwise would have been avoided.
12.3 Under this Provision, the Party who failed to meet one of his/her obligations shall not be liable for damages. Also, he/she shall be exempted from penalties and any other sanction under this Agreement, except for the non-payment of the price.
12.4 If the force majeure event persists for more than two months, either Party is entitled to terminate the Agreement by notifying the other Party in writing.
In the event of partial or deferred deliveries, the force majeure event may imply, upon the expiration of two months, the release of the Parties from the obligation to deliver or collect the specific batch but not the termination of the entire Agreement. Undelivered quantities of goods will be definitively cut off from the entire quantity set forth in the Agreement.
Art. 13 Jurisdiction
13.1 Unless otherwise agreed in writing, all disputes arising from this Agreement will be referred to the exclusive jurisdiction of the Court of Brescia.