General conditions of sale for USA

General conditions of sale for USA

Scope
1. These general conditions of sale (the "General Conditions") exclusively govern all sales of Italtronic S.r.l. (hereinafter referred to as "Italtronic") to its Clients (hereinafter referred to as "Clients"/ "Client" – and jointly, Italtronic and the Clients, the "Parties") concerning the supply of its Products (hereinafter referred to as the "Products") and prevail over any Client’s general or special purchase conditions. They are an integral and essential part of all purchase orders confirmed by Italtronic, unless otherwise expressly agreed between the Parties for a specific order. In this case, the specific agreement that will intervene between the Parties shall apply, except where not expressly derogated from.
2. The Client waives to apply its own general and special purchase conditions which shall in any case be deemed to have no effect between the Parties.
3. Any other different and further condition is ineffective as well as any modification and / or addition to these General Conditions by the Client, unless expressly accepted by Italtronic. In the event that during the contractual relationship Italtronic express its written acceptance by way of derogation to changes and / or additions of these General Conditions, the changes and / or additions are to be considered limited to the specific order for which they are agreed.
4. These General Conditions also apply even if they are not expressly referred to and signed in the order confirmation. To this purpose, they are available and published on the Italtronic website (www.italtronic.com).
5. These General Conditions are effective until they are expressly revoked by Italtronic or replaced by new General Conditions
6. To the extent not governed by these General Conditions, the provisions of the Italian Civil Code on sale agreement shall apply
Orders and acceptance – conclusion of the sales contract
1. Orders shall be considered valid and effective only if placed in writing. The single sales contract (hereinafter the "Contract") is concluded upon the acceptance of the order by Italtronic (hereinafter the "Order Confirmation"). Order acceptance by Italtronic may be sent by written notice or by giving simple execution of the order in compliance with these General Conditions. In the latter case, Italtronic may inform the Client that to have start execution of the order, without this implying acceptance and / or subscription to any contractual conditions proposed by the Client.
2. Any Order Confirmation that does not comply with the respective order shall be considered as a counter-proposal. Such counter-proposal shall be considered accepted by the Client if not rejected or disagreed in writing within two (2) days from its receipt, without the Client being entitled to object or claim anything for any reason whatsoever.
3. Any amendments to the Contract proposed by the Client shall not apply, even partially, unless expressly accepted in writing by Italtronic.
4. Once the Contract has been concluded, any cancellation of the order by the Client shall determine the Clients’ obligation to pay Italtronic a sum, as liquidated damages, equal to: i) 100% of the total price established in the Order Confirmation in case of customized Products or ii) 80% of the total price established in the Order Confirmation in case of standard Products, without prejudice, in any case, to Italtronic's right to claim compensation for any further damage.
5. In the event of amendments to the Products agreed between the Parties after the date of conclusion of the Contract, the delivery date shall be automatically extended by the period necessary required to carry out such amendments.
Technical specifications
1. Technical specifications contained in catalogues, price lists, brochures, websites or other similar documents are merely indicative and do not bind Italtronic unless expressly provided for in the Contract. More details are shown in drawings available on the www.italtronic.com website. In any case, Italtronic reserves the right, at any time, even after the Order Confirmation, to modify technical data and dimensional parameters of the Products and / or to make any improvements and modifications, including aesthetic ones, deemed appropriate or necessary, without the Client being entitled to claim or object for any reason whatsoever
Delivery
1. Delivery terms are set out in the Order Confirmation. They shall be considered indicative and not binding for Italtronic, unless otherwise agreed in writing. Except in case of willful misconduct or gross negligence, any compensation for damages arising out of delay in delivery or non-delivery of the Products is expressly excluded.
2. In any case, any delay due to causes beyond the control of Italtronic (e.g. delays in deliveries from suppliers, difficulties in the supply of raw materials and components, etc.) shall not be considered as a delay for which Italtronic is responsible.
3. Delivery terms are calculated in working days and start from the date of Order Confirmation.
4. Unless otherwise agreed in writing between the Parties, deliveries are made Ex Works (EXW - Incoterms 2020) Italtronic’s premises Corso Stati Uniti n. 17 – 35127 Padova (Italy).
5. Regardless of the place provided for delivery, if it has been agreed that the transport, or part of it, is taken care of by Italtronic, the related risks pass to the Client with the delivery of the goods to the first carrier: any complaints for breakage, deterioration, tampering or deficiencies must be reported to the carrier within the terms established by the law, giving appropriate knowledge to Italtronic.
6. In any case in which the Client, for reasons not due to Italtronic, has not promptly collected the Products and in any case in which the delivery has not been possible for reasons due to the Client, all relevant and consequent expenses and costs shall be borne by the Client, as well as all the risks connected to them. In such cases, the Client shall pay Italtronic a sum, as liquidated damages, equal to 0.1% of the total value of the Products covered by the Contract for each week of delay, without prejudice to Italtronic's right to i) claim compensation for any further damage and ii) to request the termination of the Contract.
7. The Products shall be verified and checked upon arrival for their compliance with the order. Any discrepancies, concerning the quantity, species or type of Products supplied, shall always be reported in writing, even by fax, within a maximum period of 30 (thirty) days from receipt, providing for all details for immediate control. After this deadline, the Products will be considered accepted for all purposes.
Confidentiality - Customized Products
1. Each Party undertakes not to disclose, either directly or indirectly, and to treat as confidential all technical information, designs, models, prototypes, formulas and technical or commercial knowledge received from the other Party, and this even after the termination of the Contract.
2. The Client, whom customized products have been made for, warrants and, therefore, undertakes to indemnify and hold harmless Italtronic and/or Italtronic’s employees, its officers or representatives, upon first request and any objections being excluded, from any damage, charge, cost and / or expense, including legal fee and reasonable attorney’s fee, incurred by the latter and arising out of claims of third parties for unfair competition or for infringement of industrial or intellectual property rights (including, without limitation, trademarks, patents, models, copyrights or know-how).
3. Italtronic, unless otherwise agreed in writing with the Client, shall be the exclusive owner of any improvements and / or adaptations and / or additions made by the same to the design or project if provided by the Client. These improvements and /or adaptations and / or additions, unless otherwise agreed, may not be used by the Client either directly or indirectly.
4. Unless otherwise expressly agreed between the Parties, any molds made by Italtronic for the supply of customized Products remain the full and exclusive property of Italtronic.
Prices, terms and payment condition
1. Prices are indicated in the Order Confirmation or in a separate written agreement between the Parties.
2. The Products shall be supplied at the price set forth in Italtronic’s price list in force at the time of acceptance of the order, net of any discounts applied; the price list is available at Italtronic’s website www.italtronic.com. Unless otherwise agreed in writing between the Parties, all prices indicated on the price list shall be considered i) in Euro and ii) VAT excluded (or any other similar taxes excluded). In particular, the price does not include any federal, state, or local property tax, license, privilege, sales, use, excise, gross receipts, value added, or other taxes that may now or hereafter be applicable to, measured by, or imposed upon, or with respect to, any transaction or any property, (including without limitation its sale, its value, or its use), related to these General Conditions (the “Taxes”). The Client agrees to reimburse Italtronic for any Taxes that Italtronic is required to pay. Unless otherwise agreed, the prices are to be considered for Products packaged according to the uses of the sector in relation to the agreed means of transport, it being understood that any other expense or charge shall be borne by the Client. The price shall be paid within the term agreed upon by the Parties on a case by case basis or, in case the Parties did not agreed any term, within thirty (30) days from the date of the invoice issued by Italtronic.
3. Terms and payment conditions are also set forth in the Order Confirmation or in a separate agreement between the Parties. In case of delay in payments by the Client with respect to the established terms, the Client shall be charged by Italtronic, with no notice necessary, the interest for the late payment at the rate provided for by Article 5 of Italian Legislative Decree No. 231 of 9 October 2002, from the moment when the payment is due to the moment of the actual settlement of such amount.
4. The Client is not entitled to suspend nor delay payment for any reason whatsoever, not even in case of complaints (solve et repete). Set-off of any credit or amount owed to Italtronic against any credit/amounts, present or future, owed by Italtronic to the Client is expressly excluded, without the Client being entitled to claim and/or object anything for any reason whatsoever.
5. In the event of difficulties in payments by the Client or failing or decreasing the guarantees of solvency or, more in general, its economic capacity, Italtronic has the right to suspend or cancel the orders in progress, or to subordinate the delivery of the Products to the provision of adequate payment guarantees.
Warranty – Limit of liabilty
1. Products are guaranteed, within the limits of their respective technical specifications, from defects in material and / or workmanship.
2. The warranty applies only to the benefit of the Client and is limited to the remedies of repair or free replacement (at Italtronic’s sole discretion) of the defective parts, to be carried out Ex Works (EXW - Incoterms 2020) at Italtronic premises in Italy within the period of time usually needed. To this end, the Client, if requested in writing by Italtronic, shall return the defective parts to Italtronic at its own expense Delivered Duty Paid (DDP - Incoterms 2020), together with a report describing any data necessary to identify the related batch, the delivery date and the details of the defect.
3. Any parts replaced by Italtronic will be covered by a guarantee for a period equal to the remaining warranty period of the product to which they are related.
4. Warranty will not cover defects due to normal usage of the products and/or defects or malfunctions due to inexperience or misuse of the instructions of Italtronic, poor maintenance, tampering or changes to Products not previously authorized by Italtronic. The warranty will also not apply in case of use of parts or components not supplied by Italtronic, as well as in case of repairs not carried out or authorized by Italtronic.
5. Products are guaranteed for a period of 12 (twelve) months from delivery. The warranty is limited to apparent defects, thus excluding the warranty for hidden defects. The Client undertakes to examine the Products supplied in compliance with section 4.7 of these General Condition and it shall, under penalty of forfeiture, notify in writing any defect within 30 (tirthy) days from the day of receipt.
6. all warranties under section 7 are expressly limited to the repair or replacement of defective products as set forth herein. the above warranties are in lieu of all other warranties whether expressed, implied or statutory, including implied warranties of merchantability or fitness for a particular use, or performance warranties, and extend only to client purchasing from seller or its appointed distributor.
7. limit of liability - in no event will italtronic be liable for incidental, indirect or consequential damages of any kind including, without limitation, for loss of profits, loss of use, business, goodwill, either direct or indirect. italtronic‘s maximum cumulative liability relative to all other claims and liabilities, including that with respect to direct or indirect damages and obligations under any indemnity, whether or not insured, will not exceed the cost of the products giving rise to the claim or liability. these disclaimers and limitations of liability will apply regardless of any other contrary provision of the agreement and regardless of the form of action, whether in contract, tort or otherwise, and further will extend to the benefit of italtronic‘s vendors, appointed distributors and other authorized resellers as third-party beneficiaries. each provision in the agreement which provides for a limitation of liability, disclaimer of warranty or condition or exclusion of damages is severable and independent of any other provision and is to be enforced as such.
8. If Italtronic prevails in any legal action, arbitration or other proceeding related to or in any way connected with this Agreement, then the Client shall reimburse Italtronic for Italtronic’s reasonable attorney’s fees, court costs, litigation expenses, and any other costs that Italtronic incurs in connection with such proceeding, including but not limited to costs of collection. This relief is in addition to any other relief to which Italtronic is entitled.
Force majeure
1. Without prejudice to Client’s payment obligations, which in any event shall be performed at the contractually agreed time, no event constituting a breach of these General Condition shall give rise to termination or to compensation for any damages if it is due to the occurrence of a cause of force majeure or fortuitous event (including, but not limited to, strikes, fatalities, epidemics, embargoes, armed conflicts, state measures, or any other national or supranational authority, interference by military and civil authorities, acts of terrorism, riots and civil unrest, sabotage, fires, including arson, and in any other case of force majeure or fortuitous event provided for by the applicable laws), the act of which is carried out in such a way so that it could not have been reasonably foreseen or controlled by the Parties, and without such act having contributed to the negligible conduct of the defaulting Party. The Party seeking relief shall, as soon as practicable after the impediment and its effects upon its ability to perform become known to such Party, give notice to the other Party of such impediment and effects thereof on its ability to perform. Notice shall also be given when the ground of relief ceases.
2. Should a cause of force majeure or fortuitous event preventing the performance of the agreement in force occur for more than 8 (eight) weeks, either Party may terminate the agreement by sending the other Party the appropriate notice by means of registered letter with return receipt or by international courier with acknowledgement of receipt.
General provisions
1. Tolerance by Italtronic to Client’s breach of the provisions set forth in these General Conditions or in any single sale contracts shall not be considered as a waiver of the infringed provision nor as a waiver of the right to enforce any and all infringed provision nor shall impede Italtronic from subsequently asserting said rights or faculties, or any other right or faculty provided in its favor in these General Conditions.
2. The Parties expressly acknowledge that for no reason whatsoever, not even in light of subsequent implied conduct, the continuous and repeated sales of Products by Italtronic may grant any right of exclusivity to the Client or give rise to a relationship of dealership, distribution, agency or collaboration whatsoever.
3. These General Conditions are drafted in Italian language and translated into English; in case of any discrepancy, the Italian version shall prevail.
4. If, at any time, one or more provisions of these General Conditions become legally invalid or unenforceable, the validity and enforceability of the remaining provisions of these General Conditions shall not be affected in any way whatsoever.
Governing law and Jurisdiction
1. These General Conditions and all sale agreements executed between Italtronic and the Client shall be governed by the laws of Italy with the exclusion of the 1980 Wien Convention on the International Sale of Goods and with the exclusion of conflict of laws.
2. Any dispute arising out of or in connection with these General conditions and/or any sale agreement shall be submitted to the sole and exclusive jurisdiction of the Court of Padova (Italy), without prejudice to Italtronic’s right to bring legal proceedings against the Client in the court of the place of defendant.

Pursuant to articles 1341 and 1342 of the Italian Civil Code the Client hereby declares that it have carefully read and that it specifically approve the following clauses of these General Conditions: 1.2 (waiver of its own conditions by the Client) 2.2 (non-compliant acceptance) 2.4 (order cancellation – liquidated damages) 2.5 (changes subsequent to the conclusion of the Contract) 3.1 (information and technical parameters) 4.1 (exclusion of liability for delivery delays) 5 (customized products) 6.4 (exclusion of the right to make objections) 7.5 and 7.6 (warranty exclusion for hidden defects – exclusion of liability), 7.7 (limit of liability) 10.2 (Jurisdiction and exclusive competent Court).

General conditions of sale for USA

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