GENERAL TERMS AND CONDITIONS OF SALES OF SIGE SPA
1) Scope Of Application
1.1 These General Terms and Conditions of Sale (“General Conditions”) shall apply to any and all supply of products from SIGE S.p.A. (“SIGE”), with registered office in Via Baiana no. 10, 60020 Polverigi (AN), Italy, to the undersigned purchaser of the products (“Client”), even if they are not expressly referred to or mentioned from time to time.
1.2 No provisions deviating from these General Conditions shall be binding on SIGE unless included in the purchase order of the Client (“Order”) accepted in writing by SIGE as per article 3.3 below.
1.3 In no case shall any general conditions of contract of the Client be binding on SIGE.
2) Products – Technical Information
2.1 Any description or data relating to the products, even if included in websites, brochures, catalogues, price lists or other documents of SIGE is purely informational and will be binding on SIGE only if it has been expressly referred to in these General Conditions or in the purchase order confirmed by SIGE.
2.2 Before placing the Order, it is the responsibility of the Client to make sure that the products are suitable for their specific purpose and/or intended use and, in addition, that they also comply with the laws and regulations applicable in the place where the Client will import, distribute or use them in any way.
2.3 SIGE may make any changes to the products which, without altering their essential features, it deems necessary or convenient, even after acceptance of the Order.
2.4 The Client commits itself to treat with the utmost confidentiality all technical, industrial, commercial or other information, relating to SIGE, its business or its products, that it may come to know in connection with the execution of any Order, even if this information is not marked or identified as secret or confidential, hereinafter referred to as “Confidential Information”.
The Confidential Information is and shall remain of SIGE’s exclusive property and may be used by the Client solely for the purposes of executing the sale or assembly of the products.
The Client hereby agrees:
- not to, wholly or partially, disclose to or inform third parties of the Confidential Information, without SIGE’S prior written consent;
- to communicate the Confidential Information to its employees and collaborators only to the extent to which it is necessary for the production of the products;
- to adopt any and all the necessary measures in order for its employees, collaborators or third parties whom will have access on whatever basis to the Confidential Information, to ensure that they do not disclose it to third parties or use it in an inappropriate way.
3) Offers – Orders – Orders Acceptance
3.1 Written or verbal offers or quotations issued by SIGE are not to be taken as valid contractual proposals.
3.2 The Client shall place its Order in writing and shall submit it to SIGE by fax or email. The Order shall include all the information relating to the products being ordered (product code, description, quantity, price per unit, proposed terms of delivery and requested date of delivery, etc.) as well as the fiscal data of the Client to be included in the relative sale invoice.
3.3 The Order shall be binding on the Client from the time it is received by SIGE. The Order shall be considered accepted by SIGE and binding on it (“Confirmed Order”) if and when (a) SIGE expressly accepts it by sending its written order confirmation to the Client or (b) SIGE does not expressly refuse it or request modification thereof within 10 (ten) working days from receipt of the same or (c) SIGE requests modifications to the Order within the above mentioned term and the Client does not object to the request of modification within the following 10 (ten) working days.
3.4 All supplies of products will only include what is expressly indicated in the Confirmed Order.
4) Packing – Delivery term – Delivery time
4.1 The products will be packaged and readied to ship in compliance with the standard protection methods generally adopted by SIGE for the products in question, in consideration of the agreed mode of transport.
The Client shall expressly request to SIGE any special packaging or supplementary protection it deems necessary, and in such event the Client will bear all related costs thereof.
4.2 Unless otherwise provided for in the Confirmed Order, the products shall be delivered to the Client in accordance with the delivery term Ex-Works (EXW) – premises of SIGE, Via Baiana no. 10, 60020 Polverigi (AN), Italy – Incoterms® 2010.
The Client authorizes SIGE to undersign, in the name and on behalf of the Client, any and all transport documents which shall be signed at the time of collection of the products at the premises of SIGE, such as CMR.
In the event that the delivery term agreed between the parties provides that the Client shall execute the formalities for the exportation and custom clearance of the products, the Client undertakes to submit in Italy, to the competent authorities, the documents proving the exportation of the products (SAD-EX) as well as to notify SIGE as soon as the submission is accomplished.
4.3 SIGE shall use its best endeavour to deliver the products within the delivery date provided for in the Confirmed Order, in a single delivery or in partial deliveries. The delivery date shall always be considered approximate and neither essential nor peremptory.
Except in case of wilful wrongdoing or gross negligence, SIGE will not reimburse possible damages, either direct or indirect, suffered by the Client as a result of delay in the delivery of the products.
In no case of delay in the delivery of the products shall the Client be entitled to cancel the Order or to terminate the sale contract in question.
4.4 The Client must collect the products ordered and stocked at the premises of SIGE, and pay for them, not later than 2 (two) months from the date of receipt of the Order by SIGE. Should this not be the case, upon expiry of the above-mentioned period, SIGE shall be entitled to:
- definitively withhold any amount received, for any reason, before the said term of 2 (two) months; and
- obtain payment of liquidated damages equaling 0,2% (zero point two percent) of the sale price of the products in question for any additional day of delay in the collection of the products with respect to the period mentioned in this article 4.4, up to a maximum of 10% (ten percent) of the sale price of such products; and
- terminate the sale contract and dispose of or resell the products to third parties, without prejudice to SIGE’s right to obtain reimbursement of any greater damage suffered.
4.5 Upon receipt of the products, the Client must report possible shortages, losses, anomalies or damages to the packaging occurred during the transport, by notifying details of such events on the transportation document, and must also:
- have such notification countersigned by the carrier; and
- immediately inform SIGE thereof, in writing, and send SIGE a copy of the countersigned document by and no later than 5 (five) day(s) from the date of receipt of the products.
Should this not be the case, SIGE shall not be responsible for possible losses, theft or damages of the products occurred during the transport, even if transport risks were, in whole or in part, upon SIGE.
5) Prices – Payment – Late Payment
5.1 Unless otherwise stated in writing, the prices of the products included in SIGE’s price lists and/or offers are in Euro, net of VAT and for delivery according to the delivery term Ex-Works (EXW) – premises of SIGE, Via Baiana no. 10, 60020 Polverigi (AN), Italy – Incoterms® 2010. Therefore, should a different delivery term be agreed upon between the parties, the invoiced amount shall be modified accordingly.
The products shall be supplied at the prices resulting from the price list of SIGE in force when the Order is placed or at the different prices agreed in the Confirmed Order.
5.2 The Client shall pay for the products in accordance with the payments methods and terms provided for in the Confirmed Order or otherwise agreed upon in writing between the parties. In case no payment method and/or term is so agreed, the Client shall pay for the products by bank transfer by and no later than 30 (thirty) days from the date of issue of the invoice. No payment shall be considered as being made by the Client until the relative amount has been credited to the bank account of SIGE.
5.3 If the Client is delinquent in its payment obligation, SIGE may, upon written notice to the Client, withhold ongoing and future deliveries until all delinquent amounts and late payment interest are paid.
If delinquent amounts and late payment interest remain unpaid 15 (fifteen) working days after such written notice, then SIGE may also, at its option, in addition to any other right or remedy available at law or pursuant to these General Conditions:
- request accelerated payment of any and all remaining payments and declare due the total outstanding balance – even if payment by instalment or deferred payment has been agreed upon and/or bills of exchange, promissory notes, cheques or other payment documents have been issued and are falling due – or, alternatively, terminate the sale contract in question and definitively withhold any amount, for any reason, received;
- carry out future deliveries of products on a pre-payment basis only and/or setoff the Client’s outstanding debt against the sums eventually given by the Client for payment of other sales;
- cancel discounts and bonuses that may have been agreed between the parties.
5.4 SIGE shall be entitled to exercise the rights mentioned in article 5.3 above also in case the Client:
- is undergoing winding-up, bankruptcy, debt restructuring or enforcement proceedings;
- loses, totally or partially, its insurance creditworthiness;
- is undergoing financial difficulties able to hinder the regular execution of its activity resulting from, by way of example only, missed payment of bills of exchange, promissory notes, cheques or other payment documents, reduction of granted guarantees and/or missed granting of promised guarantees, as well as from any amount resulting unpaid, even though such circumstances have occurred with other suppliers of the Client.
5.5 The Client cannot claim any breach of contract by SIGE nor can the Client start any lawsuit or action against SIGE, until any amount resulting due to SIGE under article 5.3 above has been paid in full.
6) Retention of Title
6.1 With regard to each individual sale, SIGE will maintain exclusive ownership over the products sold until the price has been entirely paid by the Client. Therefore, until the products have been entirely paid for, the Client will simply be the depository of the products themselves, with the consequent obligation to maintain the products in a perfect state of preservation.
6.2 The retention of title shall, in addition, include the following:
- In the case of non-fulfilment, or late fulfilment of the obligation to pay the price, without prejudice to the rights under articles 5.3, 5.4 and 5.5, SIGE shall be entitled to enter the premises where the products are held, re-possess the products and withhold, as liquidated damages, any amount already paid by the Client. The exercise by SIGE of its right to
re-possess the products shall not constitute, and may not be interpreted as termination of the sales contract, except in case where SIGE expressly states its intention to that effect.
- In case of seizure, distraint or other similar legal constraints requested and obtained by third parties on products covered by retention of title, the Client must immediately inform SIGE, in any case within 2 (two) working days from the request or from the adoption of the legal constraint.
7.1 SIGE warrants that the products will be free from manufacturing and material defects and that they will conform to the Confirmed Order.
The warranty period is 12 (twelve) months from the date of collection of the products from the premises of SIGE, regardless of the agreed delivery term.
7.2 No warranty shall apply in case of:
- failure to assembly, install, utilize or maintain the products strictly in compliance with the instructions included in the relative technical sheets and/or with the diligence required by their nature;
- use of the products for purposes different from the standard use or outside the operating limits, guidelines and instructions described in the relative technical sheets or otherwise communicated by SIGE.
7.3 The Client shall inspect the products as soon as possible and shall notify SIGE of possible defects or non-conformities in writing, by fax or email, within and no later than the following terms; failing to do so will result in the lapse of the warranty and the unenforceability of the warranty rights:
- differences in type or quantity with respect to type or quantity agreed as well as other patent defects or non-conformities: 8 (eight) days from the delivery of the products at the premises of the Client;
- hidden defects or non-conformities of the products: 8 (eight) days from the discovery of the same and, for avoidance of doubt, within the warranty period above.
In the notification document, the Client shall indicate, in detail, the reference of the Order and of the Confirmed Order, the number of load, the number of the invoice and of the bill of lading as well as an exhaustive description of the claimed defects or non-conformities.
7.4 SIGE will have the right to examine the products, or samples of the products, which the Client claims to be defective or non-conforming. In this respect, the Client shall be entitled to return to SIGE the products that the Client considers to be non-conforming or defective only upon SIGE’s written authorization and only on the condition that the Client bears all costs and risks for the shipment of the products. The authorization to return the products or the samples purportedly defective or non-conforming shall never be interpreted as an acknowledgment of the claimed defects or non-conformities on the part of SIGE.
7.5 In case the products are ascertained by SIGE as actually defective or non-conforming, the Client will be entitled only to obtain, at the SIGE’s option:
- repair or replacement of the defective or non-conforming products at no costs to the Client; or
- partial or full exemption from payment of their price, depending on the seriousness of the defects or of the non-conformities.
7.6 For the purpose of article 7.5 paragraph (a), the products repaired at the premises of SIGE as well as the products replacing defective or non-conforming products shall be delivered to the Client in accordance with the delivery term Ex-Works (EXW) – premises of SIGE, Via Baiana no. 10, 60020 Polverigi (AN), Italy – Incoterms® 2010. At all events, SIGE shall become owner of the products that have been replaced.
7.7 The remedies described in articles 7.5 and 7.6 above are the sole warranty rights and remedies granted to the Client. Except in case of willful wrongdoing or gross negligence by SIGE, any other liability of SIGE, which may in any way arise from or in relation to the supply of defective or non-conforming products, including, but non limited to, compensation for direct or indirect or consequential damages, loss of profits, etc, is expressly excluded.
7.8 The present warranty is in substitution for, and excludes, any other warranty, express or implied, set forth by the law or otherwise.
8) Intellectual Property Rights of SIGE
8.1 SIGE reserves the right to authorize in written form the Client to use the trademarks, trade names and symbols of SIGE with reference to the particular needs of the Client. SIGE shall release such authorization in written form and, in any case, shall reserve the right to revoke the same at any time. At all events, the right of the Client to use the trademarks, trade names and symbols of SIGE shall cease after 12 (twelve) months from the date of the last Confirmed Order.
8.2 In no case shall the Client use or register any patents, copyrights design rights and other intellectual property rights and know-how, in respect to, or on the basis of, discoveries, inventions, technical information, procedures, manufacturing processes and/or of SIGE (“IP and Know-How”) or trademarks, trade names or symbols which are similar to, or which can be mistaken for, those of SIGE.
The Client shall not use the company name, the trademarks or any other alphanumeric word referred or referable to SIGE or to the products for the purpose of registering a domain name, either national or international, or in connection with any activity on social networks and social media of any kind, such as, for example, Facebook, Twitter, Google+, Linkedin, Skype, Youtube and the like.
8.3 SIGE shall be the sole and exclusive owner of all the trademarks, trade names and symbols as well as of the IP and Know-How of SIGE.
8.4 Should the Client have registered or register any right on trademarks, trade names, symbols, domain name or IP and Know-How of SIGE, in breach of the previous articles 8.1, 8.2 and 8.3, said registrations and rights shall be transferred automatically from the Client to SIGE, without the Client being entitled to any compensation or reimbursement of costs and expenses borne in order to effectively transfer such rights.
8.5 The Client shall notify SIGE of any infringement whatsoever of the trademarks, trade names, symbols, domain names and IP and Know-How of SIGE and, upon request, it shall assist SIGE in adopting any measures, including the start of legal proceedings, necessary to protect the trademarks, trade names, symbols, domain names and IP and Know-How of SIGE.
9) Force Majeure
9.1 SIGE shall not be liable or responsible for failure or delay in performing or fulfilling any obligations undertaken in reference to the supply of products when such failure or delay is due to the occurrence of an event of force majeure such as wars, fires, earthquakes, floods, tsunami, strikes, labor or employment difficulties, shortage of raw materials, restriction on the use of power, acts of public authorities or any other event or cause whatsoever, similar or dissimilar, which cannot reasonably be forecast or provided against and which cannot be overcome by SIGE with reasonable diligence.
9.2 In such event, the time for fulfilment of the obligation shall be extended for the period of continuance of such force majeure event.
In the event any of such force majeure event continue for a period longer than three (3) months, the Client shall have the right to terminate the underlying sale agreement, by giving written notice to SIGE by registered letter with return receipt or courier, and SIGE shall not incur any responsibility or liability whatsoever.
10) Applicable Law – Dispute Resolution
10.1 These General Conditions and all the sale that will occur on the basis on the same will be governed by the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980) and, with respect to matters not covered by such Convention, by Italian laws.
10.2 Any dispute arising out of or in connection with these General Conditions or in connection with a sale occurred on the basis on the same shall be settled in accordance with the following provisions:
- In case the Client has its registered office within the European Union, in Switzerland, in Norway or in Iceland, any dispute between the parties shall be subjected to the jurisdiction of the Italian courts and shall be exclusively referred for its resolution to the court of Ancona (Italy).
- In any other case, any dispute between the parties shall be exclusively referred to and finally resolved by arbitration, by a sole arbitrator, in accordance with the Rules of Procedure of the Arbitration Chamber “Leone Levi” of the Chamber of Commerce of Ancona. The seat of arbitration shall be, and the award shall be delivered in, Ancona (Italy). The language to be used in the arbitral proceedings shall be English.
(stamp and signature)
The Client hereby declares that it has read and that it expressly accepts the following clauses:
Article 2.2 (products); Article 2.3 (products modifications); Article 2.4 (technical information); Article 3.3 (orders); Articles 4.2, 4.3, 4.4 and 4.5 (delivery); Articles 5.3, 5.4 and 5.5 (late payment); Article 6 (retention of title); Article 7(warranty); Article 8 (intellectual property rights of SIGE); Article 9 (force majeure); Article 10 (applicable law – dispute resolution).
(stamp and signature)