G&AS S.R.L. GENERAL TERMS AND CONDITIONS OF SALE
1. FORMATION OF THE AGREEMENT
1.1 The purpose of these general terms and conditions of sale of G&AS S.R.L –, having its
registered office in Via Visco, 20, 35010 Limena (Padua), Italy (“G&AS”), is to rule the purchase and sale of the Products manufactured by G&AS namely machinery for Grinds and for Pasta factories and machinery components (“Products”). The Products’s sale agreement between G&AS and the Buyer, of which these general terms and conditions of sale are an integral and essential part (“Agreement”), replaces any other commitment, agreement or understanding, whether oral or written, previously made between G&AS and the Buyer. Under no circumstances will general terms and conditions of any nature whatsoever, included in orders and/or in other documents sent by the Buyer or by third parties, be held as applicable, unless expressly accepted in writing by G&AS.
1.2 During the pre-contractual negotiations G&AS sends to the prospective Buyer a document named “OFFERTA”, having a mere commercial nature, which shall not be interpreted in any manner whatsoever as a “proposta” (i.e., offer) pursuant to Section 1326, par. 1, of the Italian Civil Code. G&AS subsequently sends to the Buyer an offer titled “CONFERMA D’ORDINE” to be interpreted as a “proposta” (i.e., offer) pursuant to Section 1326, par. 1, of the Italian Civil Code, to be sent to the Buyer by telefax, or by e-mail with acknowledgment of receipt (“Offer”). The Buyer undertakes to check the complete, correct and true fiscal and legal data and contact items, for which the Buyer shall be exclusively liable, and to promptly warn G&AS about any mistake and/or inaccuracy. Pursuant to Section 1326, par. 1, of the Italian Civil Code, the Agreement is formed at the moment in which G&AS receives by the Buyer the acceptance of the Offer, to be sent by the Buyer to G&AS by telefax or by e-mail with acknowledgment of receipt to commerciale@geasrl.it (“Acceptance”) duly signed and stamped in all parts.
1.3 If the Buyer requests to modify and/or annul the Order Confirmation, G&AS shall accept or refuse said requests at its sole discretion; under any circumstances, said requests shall not be accepted when sent by the Buyer after 5 (five) working days as from the date in which G&AS receives the Buyer’s sealed and signed Order Confirmation.
2. TERMS OF DELIVERY
2.1 Under no circumstances the terms of delivery provided for by the Agreement (“Terms of Delivery”) can be considered as of essence. The Terms of Delivery are indicated in the Conferma d’ordine and are to be considered from the date in which G&AS receives the Order Confirmation, provided that said Order Confirmation is sealed and signed by the Buyer and it contains all the data indicated above at clause 1.2, and in case of advanced required payment (total or with advance fund) from the date of receipt of wire transfer into G&AS’s bank account. For tailored products realized on purpose and out of G&AS’s production range, the Terms of Delivery are expressly indicated in the corresponding order form’s blank titled “Consegna prevista” (i.e., “Scheduled Delivery”). G&AS shall not be liable for delays in the Delivery due to carriers. Under no circumstances shall possible delays by G&AS in delivering the Products, when said delay is inferior or equal to 60 (sixty) calendar days with reference to the agreed or postponed Term of Delivery, entitle the Buyer to claim for damages or for a price reduction, nor to any termination- and/or any cancellation- and/or any modification-right. When the delay by G&AS in delivering the Products is greater than 60 (sixty) calendar days with reference to the agreed or postponed Term of Delivery, the Buyer shall be entitled to receive a daily penalty of EUR 10,00 (ten/00), starting from the sixty-first day and until the date of the effective delivery; the Buyer expressly waives to claim for further damages, as well as to any right to claim for a price reduction and to claim for any termination- and/or any cancellation- and/or any modification-right.
2.2 In case of delays in the delivery of the Products determined by a fortuitous event, force majeure and/or by other causes which cannot be ascribed to G&AS’s fraud and/or to G&AS’s gross negligence, G&AS shall endeavour in any reasonable efforts to deliver the Products within 60 (sixty) working days following the Terms of Delivery provided for by the Agreement, without prejudice of the above art. 2.1. In any case, the Buyer will not be entitled to compensation and/or damages, nor will the Buyer have any termination/modification/annulment right, nor will the Buyer have any right to claim for a price reduction with reference to the Products. Force majeure shall be interpreted as including, but not limited to, strikes, union agitation, lock outs, fire, flood, inundation, prevented or delayed navigation due to negative air/sea/river conditions, electricity breakdown, short supply or absence of raw materials, delay in the delivery by the suppliers, unsuitability of the site, regulation or other governmental order(s), earthquakes or other disasters of the elements, embargoes, war or insurrection or sanitary emergency or any other cause beyond G&AS’s reasonable control.
2.3 When, by performing its obligations, G&AS requests the transmission by the Buyer of specific data and information, any delay in the relevant transmission, or any delay in the sending of the Order Confirmation by the Buyer, will determine, at least, a proportional postponement of the Terms of Delivery. In any case, unless expressly otherwise agreed in writing, if, during the performance of the Agreement, the Buyer requires in writing any technical modification of the Products, on G&AS’s prior approval, the relevant Term of Delivery will be deemed as automatically extended for the period reasonably needed to accomplish the requested modifications, even when said modifications do not imply a price modification.
3. DELIVERY
3.1 Unless otherwise agreed in the Agreement, the Products are delivered EXW (Incoterms® 2010) – G&AS’s registered office in 35010 Limena (Padua), Italy, Via Visco, 20, after the issuance of G&AS’s notice of goods ready for delivery.
When otherwise agreed in writing, the Buyer undertakes to collect the Product within and no later than the agreed term. In case of delay in the Products’ collecting, the agreed terms of payment shall not be extended and the Buyer will bear all the expenses related to the storage in the warehouses of G&AS and/or of third subjects and related to the Products’ safekeeping as well. It is understood that the Buyer will bear the risk of damage, perishing, loss and/or theft of the same Products as from the term of collecting initially agreed. The Buyer declares and acknowledges that the storage and/or custody of the Products in the warehouses of G&AS are accomplished in places and/or with modalities which are suitable for the correct conservation of the same Products, but that a long storage could anyway damage the Products because of their inner nature; the Buyer therefore waives to raise any claim, plea or counterclaim to such a purpose.
3.2 When the Buyer does not collect the products within 15 (fifteen) days from G&AS’s notice of goods ready for delivery., the Buyer shall pay to G&AS, as a penalty, a sum equal to 100% (one hundred percent) of the price of the relevant Products, and the relevant further damages as well; under any circumstances, G&AS reserves the right to start judicial proceedings to enforce its contractual rights.
G & AS shall have the right to suspend the performance of the Agreement and to keep, by way of compensation, the sums already paid by the Buyer except G&AS’s right to claim for further damages.
3.3 The Buyer undertakes to be present during the unloading operations of the delivered Products and to sign the transport documents. In case of lacking signature at moment of the Delivery, the transport documents shall be transmitted via telefax and/or email by G&AS to the Buyer as soon as possible; in such a case, the relevant contents shall be deemed as entirely accepted by the Buyer lacking any written complaints by the Buyer within and no later than 24 (twenty-four) hours as from the receipt of the same documents.
4. PRICES – PRICE LIST
4.1 The price is the currency specified in the Agreement; lacking said specification, the price is deemed to be fixed in EUR currency, V.A.T. excluded.
4.2 G&AS reserves the right to modify and/or complement, at its sole discretion, the price list, by giving the Buyer a prior notice of 30 (thirty) calendar days.
4.3 If, after the formation of the Agreement under art. 1.2, an extraordinary or unforeseeable event takes place, so that G&AS’s performance becomes excessively onerous pursuant to Article 1467 of the Italian Civil Code, the Buyer and G&AS shall renegotiate in good faith the terms and conditions of the Agreement, without prejudice to G&AS’s termination right pursuant to Article 1467, par. 1, of the Italian Civil Code.
4.4 Without prejudice of above clause 4.3, it is hereby understood that, when the raw materials cost and/or the labour cost exceptionally increase and/or the money exchange becomes exceptionally unfavourable for G&AS in the space of time between the formation of the Agreement and the Delivery, G&AS is entitled to increase the agreed price. The amount corresponding to the price increase will be charged to the Buyer by issuing an invoice to be paid by bank wire 30 (thirty) calendar days after the invoice date.
5. PAYMENTS
5.1 The terms and conditions of payment are those indicated and/or referred to in the Agreement. Payments made by securities, bills of exchange, cheques, assignments or by other means, shall not constitute a novation of the original contractual relationships and they are accepted by G&AS subject to collection. The clearing charge, the discount charge and/or the registration-charge etc., of negotiable instruments, bills of exchange, cheques etc. are exclusively borne by the Buyer.
5.2 The Buyer declares and guarantees to G&AS to be fully solvent, to have and to keep adequate financial and/or patrimonial conditions for making the payment of the price of the Agreement without any undue delay.
5.3 In case of lacking or partial payment of the price, or in case of delay in the payment of the price exceeding 15 (fifteen) calendar days, G&AS shall have the right to suspend the performance of the Agreement till the complete payment of the amounts due, or till the providing of adequate guarantees, or the right to terminate the Agreement with any legal consequences. When the patrimonial and/or financial and/or company conditions of the Buyer (even when they so become after the execution of the Agreement) are deemed to put the relevant payment at risk, or if the Buyer does not timely and exactly pay the products delivered by G&AS also with reference to other contractual relationships between the Parties, G&AS shall have also the right to suspend the performance of the Agreement or the right to terminate the Agreement.
5.4 In case of delayed payment, whether total or partial, G&AS shall have the right to receive the payment of interests as provided by the applicable law (Italian Legislative Decree no. 231/2002, and subsequent modifications); in any case, interests accrual shall start automatically, without any need for G&AS to send a formal notice to pay.
5.5 In case of payment by instalments, the lacking payment of even just one instalment shall determine the forfeiture of the benefit of time and G&AS shall have the right to request the immediate payment of the total price, without any discounts on the price list, which shall be automatically deemed as non-applicable. In any case, in the abovementioned circumstances, G&AS shall have the right to withhold the received amounts. G&AS expressly reserves the right to claim any further damages.
5.5 Under no circumstances shall possible defects of the Products, even if expressly acknowledged by G&AS, a well as possible delays in respect of the agreed Terms of Delivery, give the Buyer the right to suspend the relevant payments and/or any other payment due to G&AS in relation to this Agreement or in relation to other contractual relationships (“solve et repete” clause pursuant to Section 1462 of the Italian Civil Code). Any claim, plea or counterclaim, whether judicial or out-of-court, shall be made by the Buyer only after having made the entire payment of the price of the Agreement.
6. NO ACTS OF DISPOSITION
6.1 Unless having first completely paid the price to G&AS, the Buyer undertakes not to sell the Products, nor to assign them to third parties, nor to grant them as securities.
6.2 Should the delivered Products be affected by possible enforcement measures taken by third parties, notwithstanding their proper names, the Buyer shall immediately communicate it to G&AS by return receipt registered letter. Lacking said communication, G&AS shall have the right to immediately terminate the Agreement, by withholding the received amounts as a penalty and without prejudice of G&AS’s right to claim for further damages.
7. WARRANTIES AND CLAIMS – RETURNED PRODUCTS – PRICE LIST
7.1 G&AS warrants the absence of any defects in the Products for 18 (eighteen) months as from the Delivery date, in accordance with the applicable law. When the Buyers’ complaints as to the existence of defects in the Products are well-founded and accepted by G&AS during the warranty period, G&AS shall substitute the defective Products for free and/or, at its sole discretion, by repairing them within a suitable term, by delivering them EXW (Incoterms® 2010) – G&AS’s registered office in Via Visco 20, 35010 Limena (Padua), Italy, or in accordance with the different terms agreed with the Buyer. It is agreed that the warranty here above is limited to the defects of the Products expressly acknowledged and accepted by G&AS.
7.2 Under penalty of cancellation of the warranty, the Buyer shall notify G&AS with the found defects in writing, by sending a detailed return receipt registered letter to be anticipated by telefax or by email, by also enclosing the relevant adequate pictures, within and no later than 8 (eight) calendar days as from the Delivery of the Products. In any case, under penalty of cancellation of the warranty, the Buyer expressly undertakes to make any complaints – about the quantitative differences or about the non-integrity of the Products – at the moment of the Delivery, to report said complaints in the transport documents and to confirm them within and no later than 8 (eight) calendar days as from the Delivery day; lacking the above, the relevant complaint shall be deemed null and void. In case of hidden defects, the Buyer shall notify G&AS with the found defects in writing, by sending a detailed registered letter with return receipt to be anticipated by telefax or by email and by also enclosing the relevant adequate pictures, within and no later than 8 (eight) calendar days as from the date of the relevant discovery. The burden of the proof as to the date in which the Products have entered into the material availability of the Buyer, the date of the discovery and, as the case may be, the burden of the proof of the hidden nature of the defects, shall be borne exclusively by the Buyer. The Buyer expressly waives to raise any claim, plea or counterclaim to such a purpose. Unless otherwise agreed in writing by the Parties, any and all other expenses and risks pertaining to the substitution and/or reparation shall be borne exclusively by the Buyer.
7.3 The warranty shall be excluded when the defects notified by the Buyer have been determined by one or more of the following causes: (i) mistakes in the information and/or in the technical data provided to G&AS by the Buyer in accordance to clause 2.3; (ii) alterations and/or modifications of the Products which have not been previously authorised in writing by G&AS; (iii) storage and/or safekeeping of the Products in places and/or with modalities inadequate for their perfect conservation; (iv) improper use of the Products by the Buyer or by third parties, included the Products’ washing with detergents and/or unsuitable substances; (v) installation of the Products in third parties’ sites; (vi) any other cause which cannot be directly ascribed to G&AS. With the correct and timely performance of the warranty activities, the Buyer waives any further claims and/or rights to damages towards G&AS.
7.4 The warranty does not extend to parts subject to normal wear and tear, or to damage caused by incorrect or defective maintenance, incorrect handling of the Buyer’s personnel, the use of inappropriate raw materials, defective or neglected treatment, excessive use of devices, from damage or deterioration caused or aggravated by the failure to use interruption of the goods in case of technical problems, or electric power surges or processing temperature, or any other cause beyond G&AS’s reasonable control.
7.5 The warranty loses effectiveness in case in the Products are installed equipment or devices or spare parts not provided by G&AS and in case any modifications are made without prior written consent by G&AS.
7.6 G&AS will not respond, without prejudice to the mandatory limits of the law, of damage caused by any defects of its Products and the warranty will be excluded any further damage, including those resulting from failure or reduced production, as well as indirect and consequential damages, or arising from the termination of the Agreement.
7.7 The Buyer declares and acknowledges that the information and/or data and/or images and/or wording of the Products, indicated in G&AS’’s price list(s) and/or on the website www.geassrl.it and/or in other technical/commercial/promotional material, have a mere indicative nature. G&AS expressly reserves the right to modify, at any time and without any prior notice, any and all specifications, models, materials, colours, accessories, trims and, in general, any and all features of the Products indicated in G&AS’s price list(s) and/or on the abovementioned website and/or in other technical/commercial promotional material.
8. NOT INCLUDED IN THE SUPPLY
The following items are excluded from the supply of the Products, unless otherwise agreed in writing:
9. ACCEPTANCE TESTING
If expressly stated in the contract G&AS will provide technical support for testing.
9.1 Testing of the Product means its commissioning, calibration and tuning to verify its functionality and compliance with the design conditions.
9.2 Testing should be performed within 15 (fifteen) days from completion of assembly or however, within three months from notice of goods ready for delivery. In case the Buyer is not available within specified period and/or does not communicate the result, or uses the Product for more that 5 /five) days without recording and reporting negative comments, the Product will be deemed accepted for all purposes.
9.3 Written report including comments of Parties should be compile at the end of the testing. After signing final testing report, the Buyer should send it as acceptance to G&AS. Missing final testing report Product equally intends approved to every effect.
10. LIMITATION OF LIABILITY
Parties agree that G&AS will be released and indemnified from and against any claim for compensation arising from: a) any loss of profit or loss, such as, merely as example and not limited to, loss of turnover or profit, financial costs, damages and losses arising from impossibility of producing; b) costs of failure-to-use or replacement of equipment, facilities or services; c) any damage caused by impossibility of honoring contractual obligations assumed by the Buyer; d) any indirect damages, including any claims by third parties, both public and private, in relation to environmental damage in any way connected with the Contract and its execution.
11. SUBCONTRACTING
The Buyer authorizes G&AS to use subcontractors for the execution of the Contract or part of it. In case the subcontractor will be expressly required by the Buyer, the Buyer will take completely responsibility connected to this choice, in case of damage to third parties, releasing and holding uninjured G&AS.
12. ANTI-ACCIDENTIAL PROTECTIONS
G&AS guarantees that Products are equipped with accident prevention protections in compliance with current European regulations on accident prevention.
13. DOCUMENTATION
The supply of products includes instruction manuals, spare parts catalog, wiring and tires diagrams and tires, in accordance with CE 98/37 and EN 60204 regulations.
14. CONFORMITY’ AND TECHNICAL IMPROVEMENTS
14.1 G&AS declares and guarantees that the Product complies with the regulations adopted by the EC and those in force in Italy at the time the Contract is signed. Where the Product is installed outside the Italian territory, compliance of the Product with the specific regulations in force therein will be the sole responsibility of the Buyer.
14.2 All deliverable needed to obtain permits, licenses and administrative authorizations will in any case be the sole responsibility of the Buyer as well as compliance with laws relating to the installation and operation of the Product. No obligation derives from the Contract to G& S regarding the obtainment, by the Buyer, of permits, licenses, approvals or other for any title and Authority requested by any entity.
14.3 G&AS reserves the right to make any changes, technical and/or aesthetic, which may be necessary to facilitate the best and safer operation of the Products ordered by the Buyer.
14.4 In designing the Product, G&AS will rely on the data and information received from the Buyer. Should actual conditions be different from those indicated by the Buyer, may jeopardize the suitability of the Product made on their basis, G&AS will promptly notice to the Buyer needs of changes and consequent adjustments to the delivery terms and costs.
15. CONFIDENTIALITY
15.1 In the pre-contractual phase and/or in the performance of its obligations, G&AS may transmit to the Buyer some information or data having a strictly confidential nature and related to the Product(s), such as, without limitation of the foregoing, preliminary projects, software, processing, methods, procedures and corresponding sketches, inventions, instructions manuals, techniques and related technologies, marketing plans, price list (“Confidential Information”).
15.2 The Buyer undertakes to receive and to keep the Confidential Information as confidential and secret. The Buyer undertakes not to reproduce, disclose, or in any way use – whether directly or indirectly – the Confidential Information, whether for its purposes or for third parties’ purposes, or for purposes not connected to the performance of the Agreement. The Buyer undertakes to perform the confidentiality obligations under this clause also on behalf of its shareholders/quota holders, employees, managers, directors, consultants, agents or other subjects linked to and/or dependent upon the Buyer, also on an occasional basis, to whom the Confidential Information may be disclosed.
15.3 The Buyer undertakes to return to G&AS the Confidential Information as soon as the Buyer does not need them anymore and, in any case, when G&AS so requires in writing. The Buyer undertakes not to make any copy, not even an electronic copy, of the Confidential Information, nor in whole nor in part.
15.4 The Buyer expressly acknowledge the importance of the Confidential Information for G&AS’s activity and therefore the Buyer acknowledges that any and all violation of the confidentiality obligations under this clause constitutes not only a contractual breach, but also an act of unfair competition. No clauses of these General Terms and Conditions of Sale may, directly or indirectly, entitle the Buyer to any rights or interests whatsoever on the Confidential Information. The Buyer undertakes to abstain from filing any patent application and/or model application which involves the Confidential Information. Should the Buyer breach the confidentiality obligations under this clause, the Buyer shall pay to G&AS all the relevant damages.
16. TAXES
16.1 Any taxes, tariffs, duties, customs, fees, tolls, licenses, authorizations, leaves and/or other fiscal and/or customs and/or administrative burdens, notwithstanding their names, provided for by the law of the State in which the products are imported (“Taxes”), are completely and exclusively borne by the Buyer.
16.2 Under no circumstances shall any delay in the payment of the Taxes shall give to the Buyer a termination right, nor shall entitle the Buyer to claim for damages. The Buyer expressly waives to raise any claim, plea and/or counterclaim in this regard.
17. NO ASSIGNMENT
The Agreement cannot be assigned, not event partially, by the Buyer, unless G&AS gives its prior written consent. G&AS reserves the right to assign, totally or partially, the Agreement, by sending a prior written notice to the Buyer.
18. LEASING CONTRACT
18.1 These general terms and conditions of sale rule also the purchase of the Product connected with a finance lease contract. In this case, the obligations affecting the Buyer, as well as the rights due to it, shall be considered as referring to the leasing company or to the user-tenant or to both as provided for by the leasing contract.
18.2 In the case the leasing company required to use different conditions other than those agreed by G&AS with the Buyer (user-conductor), requiring to G&AS subscribing of conditions, that were not bargaining object between G&AS and the Buyer (user-host), the latter must sign all documents requested by the leasing company before G&AS signature and sending required conditions.
18.3 Before sending to leasing company signed and stamped conditions, G&AS has the right to obtain from the leasing company, a certificate on the receipt and control of the documents necessary for the finalization of the leasing contract, that is the confirmation of the payment of the supply as established in the Contract.
18.4 As regards testing, conditions set forth in art. 9. The declaration of final testing could not reasonably be refused towards the leasing company for small adjustments of the Product that do not affect its operation.
19. LANGUAGE
These General Terms and Conditions of Sale are written in Italian language, to be considered as the sole binding text. In case of translation into foreign languages, the relevant texts shall be held as mere working papers.
20. TITLES
he clauses’ titles in these General Terms and Conditions of Sale have a mere indicative meaning and do not imply any restriction to what is therein provided for.
21. WAIVER
The circumstance that G&AS does not enforce, in any moment, its right/s in accordance with one or more clauses of the Agreement shall not be interpreted as a general waiver to said rights, nor shall it prevent G&AS from afterwards requiring their timely and exact compliance.
22. SEVERABILITY
The possible invalidity or ineffectiveness of any clauses of these General Terms and Conditions of Sale, for any reason whatsoever, shall not imply the invalidity of the whole Agreement nor the invalidity of any other contractual provisions which are not directly linked to and/or dependent on the clause to be held null or ineffective.
23. SOLE COURT – REIMBURSEMENT OF THE LEGAL FEES AND EXPENSES
23.1 For any dispute related to the formation, application, interpretation, validity, effectiveness, execution and/or termination of the Agreement the sole competent court shall be exclusively the Tribunale (i.e. the District Court) of Padova (Italy). Without prejudice of the above, G&AS shall have the right to start any legal proceedings, included preventive or provisional proceedings, before the courts of the Buyer’s domicile.
15.2 For any lawsuit related to the formation, application, interpretation, validity, effectiveness, execution and/or termination of the Agreement, the winning party shall be entitled to receive, by the losing party, the reimbursement of any and all costs, expenses and professional fees (whether legal or technical), to be calculated in a reasonable way, borne as a consequence of the lawsuit.
24. APPLICABLE LAW
The Italian law is applicable to the Agreement, it being understood that the application of the United Nations Convention on the International Sale of Goods (Vienna Convention 11th April 1980) shall be in any case expressly excluded.
Last issue: February 2018
