These General Terms and Conditions of Sale, unless expressly departed from in writing by PERINELLI RULLI SRL
") in its order confirmation or its order proposal/order form, discipline all the sales of Products - as identified further on - and prevail over any other different clause included on forms or in other documents drawn up by the Parties or by the Customer.
1. PRODUCTS AND ACTIVITIES
The sales regulated by these General Terms and Conditions of Sale concern PERINELLI products marketed at the time of receipt of the order (hereinafter the "Products"). The forwarding of catalogues and promotional material by PERINELLI does not represent an offer and the same can be freely amended by PERINELLI at any time without notice. The data and technical features contained in the catalogues, in the promotional material and on the PERINELLI website are indicative and non-binding for PERINELLI.
If PERINELLI is asked to manufacture the Products on the basis of technical documentation, diagrams, specifications and/or designs provided by the Customer, the latter acknowledges that PERINELLI is solely the executor of the instructions provided by the Customer and that PERINELLI does not operate as co-designer and does not take part in the conception of the Products together with the Customer.
Even in the event that the designs for the Products are provided by PERINELLI, these designs shall be created on the basis of the technical information and specifications provided by the Customer within the limits of PERINELLI's technical capability, who shall use the machinery and equipment available at its premises in accordance with the tolerance limits of said machines. Also in this event, PERINELLI does not operate as co-designer and does not take part in the conception of the Products together with the Customer, who is the sole party informed with regard to the articles on which the Products must be installed and who is aware of the specific use which the Products are intended for.
The customer shall therefore be exclusively responsible for damages deriving from Product defects, unless this involves cases of non-compliance of the Products in relation to the technical documentation and specifications provided by the Customer or manufacturing and processing defects affecting the Products attributable to PERINELLI.
If PERINELLI, with regard to the faulty nature of the Products, should be summoned before the court for third party civil liability (including product-related liability) and/or for contractual liability or for violation of legal provisions (safety, environment, etc.), the Customer shall be obliged to compensate and keep PERINELLI unharmed from any damages or costs which could affect the latter with reference to the Products and the activities performed by the Customer.
2. ORDERS AND CONFIRMATION
Orders forwarded in writing by the Customer remain binding for the same until confirmation by PERINELLI and in any event for no longer than 10 (ten) business days from receipt. Orders are understood as accepted and binding for PERINELLI only upon receipt by the Customer of the PERINELLI order confirmation. Acceptance of the order by PERINELLI subject to conditions or reservations, will not be valid as confirmation.
If the order confirmation forwarded by PERINELLI to the Customer contains amendments with respect to the order, the amendments shall be considered tacitly accepted after 5 (five) days from receipt of the order confirmation without the Customer having expressed their dissent in writing.
PERINELLI reserves itself the right, even after the confirmation of the order, to agree any changes to the Products with the Customer.
Unless indicated otherwise in the order confirmation, the prices for each Product are those emerging from the PERINELLI price list in force at the time of the order and are understood to be in EURO and do not include VAT, other sales tax and/or customs duties.
As a consequence of any changes in the costs (in detail, including but not limited to, labour costs and those for raw materials) or changes in other elements or circumstances which have repercussions on the prices, PERINELLI reserves itself the right to amend the price of the Products.
Unless agreed otherwise in writing, the prices are understood to include delivery ex-works PERINELLI in Vallese di Oppeano (VR) (EXW - Incoterms 2010), do not include transport, shipment and insurance costs for the Products or other material and/or any other cost subsequent to the delivery to Vallese di Oppeano, which remain the Customer's responsibility. Unless agreed otherwise with the Customer who shall have to pay the costs for any special packaging, the Products are supplied with standard packaging.
4. PAYMENT OF THE PRICE
The payment terms and formalities are those indicated by PERINELLI in the order confirmation, unless indicated otherwise by means of PERINELLI's express declaration.
Irrespective of the matters indicated in the order confirmation, the payment must in any event be made care of PERINELLI's registered offices. The issue of bills of exchange, cheques or other payment instruments by the Customer is not valid for payment nor does it lead to a change in the place of execution or involve the renewal of the original obligation. In any event, the Customer is responsible for all the costs for the issue of said bills of exchange, cheques or other payment instruments as well as the related bank charges.
If advance payment has been agreed, the same shall have to be made by the Customer at the time of signing the order. The advance shall not bear interest and shall be promptly returned to the Customer if the related order is not confirmed by PERINELLI by the deadline indicated in Article 2.1 above.
In the event of payment in instalments, the Customer shall have to provide PERINELLI with the necessary transactional instruments (cheques, etc.) along with the guarantees which have been agreed. If the Customer fails to pay even just one instalment, also with regard to a different order, or reduces the guarantees provided to PERINELLI, the latter shall have the right to request the immediate payment of the full amount due with application of the acceleration clause, the additional rights of PERINELLI as per Article 4.6 below being unaffected.
In the cases where it is envisaged that payment takes place by means of direct remittance, this must be carried out by means of Swift credit transfer - fixed value date in favour of the beneficiary equal to the day when the payment was due - care of the bank indicated by PERINELLI.
In the event of late or non-payment, full or partial, the Customer shall have to pay default interest on the suspended sum at the legal rate as established on the basis of Article 5 of Italian Legislative Decree No. 231/2002. In this event, the following rights of PERINELLI are unaffected:
a) to suspend the manufacture or the delivery of the Products and/or any other orders underway;
b) to declare the related sales contract as terminated;
c) to demand compensation for the damages suffered due to late or non-payment;
d) to keep the advance payments and any sum possibly already collected, without prejudice in any event to compensation of any further damages.
The Customer cannot in any event suspend or delay the payments in the event of disputes, Product defects, complaint or delay in the delivery of the Products by PERINELLI.
The Customer shall act as an independent entrepreneur, purchasing the Products from PERINELLI and re-selling them in its own name and on its own account.
The sale of the Products by PERINELLI to the Customer does not provide the latter with an exclusive right in terms of sales area, nor does it permit the Customer to undertake the capacity of distributor or licensee/dealer of PERINELLI.
The re-sale price of the Products shall be established freely by the Customer.
Irrespective of the matters agreed with regard to transportation and insurance costs, as well as any reference to the Incoterms contained in the order or the order confirmation, delivery shall be understood as made ex-works care of the PERINELLI factory with the Products being made available care of the latter's factory in Vallese di Oppeano (VR) (EXW - Incoterms 2010) and will involve the identification of the goods and the simultaneous transfer of the risks. If requested by the Customer, PERINELLI may carry out the loading of the Products, it being understood that the related costs and any damage to the Products during the loading operations shall be the Customer's responsibility.
Unless agreed otherwise between the parties, all the costs relating to the transportation of the Products shall be the Customer's responsibility.
The delivery terms indicated in the order confirmation are understood to be calculated in business days and are not essential. The delivery terms cannot in any event be less than 20 (twenty) days from receipt of the order by PERINELLI. If an advance payment is envisaged for the order, the delivery terms shall start to be applicable as from the date of receipt of the advance.
The delivery may be suspended by PERINELLI
a) in the event of non-payment of the advance by the Customer pursuant to the previous Article 4.3 or even of just one instalment, even if relating to a different order, pursuant to the previous Article 4.4.
b) until all the technical and administrative information and data useful for the correct dispatch of the order has been received.
If PERINELLI does not observe the delivery terms due to delays or lack of deliveries from its suppliers, interruptions or suspensions of transport or energy, strikes and trade union unrest, as well as due to any other unforeseeable event beyond its reasonable control, the applicability of the deadlines remains suspended as from the day of communication of the impediment to the Customer. Once 2 (two) months have elapsed as from the occurrence of the impediment to important deliveries of Products without said impediment having been removed, each of the Parties may withdraw from the contract providing the other with written communication. In this case, no compensation or indemnification shall be due to the Customer by PERINELLI who shall in any event have to be paid by the Customer for the Products already manufactured for it as at the date of communication of the impediment.
6. INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
The Customer shall not have to register or transfer the PERINELLI trademarks or any distinguishing marks of PERINELLI, nor use the trademark or other distinguishing marks of PERINELLI or other similar trademarks, names or expressions in order to register internet domains and/or create websites or homepages, not even for the purpose of promoting and reselling the Products. The Customer may not insert or indicate the PERINELLI trademark and/or Products on its websites or homepages. If expressly authorised in writing by PERINELLI, the registration must be considered to be made on behalf of PERINELLI and the PERINELLI trademark and/or domain name must therefore be transferred to PERINELLI upon mere request by the latter.
The Customer acknowledges PERINELLI's property rights, titled or otherwise also as per Article 2598 of the Italian Civil Code, and shall have to keep any information relating to the latter and the know-how and show-how used by PERINELLI in the creation of the Products secret and confidential: consequently, it may not file or register tangible and/or intangible assets such as inventions or technical solutions created by PERINELLI, as its own intellectual and industrial property or that of third parties.
7. FAILURE TO COLLECT
Unless communicated otherwise by PERINELLI, the Customer shall have to collect the Products on the date indicated in the order confirmation. Once 10 (ten) days have elapsed without the Customer having collected the Products, the contract shall terminate legally by means of PERINELLI's declaration that it intends to avail itself of this faculty, without prejudice in any event to PERINELLI's right to request the payment of the penalty as per Article 8, in addition to compensation of additional damages possibly deriving due to failure by the Customer to collect the Products.
PERINELLI shall also have the right to definitively keep the advance payments and any instalments paid by the Customer as well as the right to sell the uncollected Products to third parties, informing the Customer of the sales conditions at least 10 (ten) days beforehand. The difference between the contractual price (increased by the safekeeping charges) and the price obtained from the recovery sale shall represent a liability for the Customer and shall generate default interest to the extent of that for late payment as per Article 4.6.
8. PENALTY CLAUSE
In the event of cancellation of a firm and/or confirmed order and/or the non-collection of the Products, the Customer shall be obliged to pay a penalty equal to 20% (twenty percent) of the contractual price of the Products cancelled and/or not collected, PERINELLI's right to compensation of further damages being unaffected.
PERINELLI guarantees the Customer the lack of manufacturing and processing defects with regard to the Products and that they comply with any prototypes or designs approved by the Customer, within the tolerances of use and the normal conditions of use and wear and tear, within the limits of the technical specifications provided by PERINELLI. IN DETAIL, ANY ADDITIONAL LEGAL AND CONVENTIONAL GUARANTEE, EXPRESSED OR IMPLICIT BY PERINELLI RELATING ALSO TO TECHNICAL AND/OR FUNCTIONAL FEATURES OF THE PRODUCTS, IS EXCLUDED.
The warranty does not extend:
a) in the event of Products damaged during transportation;
b) to incorrect installation and/or assembly, negligence, insufficient or lack of maintenance, incorrect safekeeping;
c) to damages deriving from fire, accident, unforeseeable events or other circumstances not attributable to PERINELLI;
d) to defects deriving from measures and modifications to the Products not carried out by PERINELLI;
e) to damages deriving from repairs and/or replacement not carried out by PERINELLI;
f) to normal use and wear and tear;
g) to damages which have occurred during the period of non-payment by the Customer.
At the time of receipt, the Customer shall have to - under penalty of forfeiture - examine the individual Products and inform PERINELLI in writing, without delay and in any event within the following 8 (eight) days from discovery, of any defects or faults in the deliveries which it or its customers have noted, precisely indicating the faulty Product, the product code, the related batch and delivery date and the nature of the defect.
Any hidden defects which cannot be verified on receipt, shall have to be reported by the Customer - under penalty of forfeiture - without delay and in any event within the following 8 (eight) days from discovery by the Customer or its customers, precisely indicating the faulty Product, the product code, the related batch and delivery date and the nature of the defect.
In no event are agents, customers or intermediaries of PERINELLI authorised and have the power to represent and commit the latter vis-à-vis the Customers or other third parties. Accordingly, each communication relating to defects of the Products shall be invalid and ineffective if it has been made to agents, customers and intermediaries of PERINELLI.
The Customer shall have to make the faulty Products available to PERINELLI for a reasonable period of time for the purpose of permitting any inspections and may not, in the absence of the written authorisation of the latter, go ahead with their replacement. If required by PERINELLI, the faulty Products shall have to be returned to the latter under the formality of carriage paid to Vallese di Oppeano (VR) (DDP - Incoterms 2010).
In the event of prompt reporting of the faults by the Customer and acknowledgement of the same by PERINELLI, the latter as per normal technical timescales shall take steps - at its exclusive discretion - to repair and/or replace free-of-charge ex-works PERINELLI in Vallese di Oppeano (VR) (EXW - Incoterms 2010) the Products recognised as faulty.
No other form of intervention under warranty and/or compensation may be demanded by the customer, any liability of PERINELLI for damages, indirect, accidental or consequential, in particular remaining expressly excluded; and thus, within the limits permitted by law, they must be understood as expressly waived by the Customer. In detail, the Customer expressly waives the right to recourse envisaged by Article 131 of the Consumer Code.
This warranty shall have a validity of 12 (twelve) months as from the delivery of the Products and cannot in any event be suspended or extended as a consequence of the failure by the Customer to use the Product. It is in any event understood that with regard to the components and/or products not manufactured by PERINELLI, the liability of the same vis-à-vis the Customer shall be limited to the content and duration of the warranty provided by the third party to PERINELLI.
Without prejudice to any cases of withdrawal and/or termination envisaged in these General Terms and Conditions, PERINELLI shall also have the right to terminate the sales agreement if the Customer is in breach of its contractual obligations and does not suitably remedy them with 15 (fifteen) days following receipt of the related communication of placement in default.
11. RETENTION OF TITLE AND PRODUCTS OWNED BY PERINELLI
All the Products delivered by PERINELLI to the Customer are subject to this retention of title, also in the absence of reference to the clause in the order confirmations or in other PERINELLI documents.
PERINELLI shall remain the owner of the Products until the full payment of the price indicated on the invoice and of any other fulfilment relating to the commercial relationship between the Customer and PERINELLI. In the absence of full or partial payment of the price by the Customer and/or breach by the same, PERINELLI shall have the right to automatically terminate the sales agreement and/or demand the return of the Products, without any obligation to provide notice. In this event, the Customer shall be obliged to immediately return the Products to PERINELLI.
Until the moment ownership of the Products has been transferred to the Customer, the latter shall be obliged to keep them with due diligence, as well as inform PERINELLI - in writing and without delay - of any forced execution or action taken by third parties and to immediately inform the third parties of the existence of the retention of title in favour of PERINELLI.
12. TAXES, EXPENSES AND TRANSFER OF THE RISK
Irrespective of the matters agreed with regard to transport costs, discounts or anything else and/or irrespective of any reference to the Incoterms contained in the commercial documentation of the Parties:
a) Any cost, tax and duty inherent to the sale of the Products, including the costs of all the customs formalities (such as duties, taxes and other official charges to be paid for exporting the Products from Italy and/or importing them to the area of the Customer) must be paid by the Customer;
b) The delivery, identification of the Products and the related transfer of the risks shall have to be considered as carried out care of the premises of PERINELLI making the Products available for their loading onto the means of transport of the shipper appointed for this purpose.
13. APPLICABLE LAW
The General Terms and Conditions, as well as all the sales disciplined by the same, are regulated by Italian law, with express exclusion of the application of the 1980 Vienna Convention on contracts for the international sale of goods (with the exception of the matters envisaged by Article 11 of the Convention concerning the freedom of the form of the contracts).
14. JURISDICTION AND ARBITRATION
Any dispute between the Parties in relation to the supplies forming the subject matter of the order and/or the order confirmation of PERINELLI and/or disciplined by these General Terms and Conditions:
a) in the event of Customers with headquarters within the European Union, will fall under the exclusive jurisdiction of the Verona Court, in Italy;
b) in the event of Customers with headquarters outside the European Union, it will be decided by an arbitrator appointed in compliance with the Arbitration Regulations of the Milan National and International Chamber of Commerce.
The arbitration proceedings will be binding, procedural and the arbitration tribunal shall have to file the award care of the general secretariat of the Arbitration Board within 6 (six) months of the establishment of the Arbitration Tribunal. The venue of the arbitration shall be Verona, Italy, and the arbitration proceedings shall be held in Italian.
By way of partial departure from points 14.1 (a) and (b) above, PERINELLI in any event reserves itself the right to take action, at its own exclusive discretion, before the competent legal authorities in the location where the Customer has its headquarters.
15. FINAL CLAUSES
These General Terms and Conditions of Sale as well as the contracts disciplined by the same cannot be amended unless in writing, by means of deed signed by the Parties as of a date subsequent to their finalisation.
The circumstance that one of the Parties does not at any time enforce the rights it is acknowledged by one or more clauses of these General Terms and Conditions or the sales contract disciplined by the same, cannot be taken as a waiver of these rights, nor can it prevent the same from subsequently requiring their accurate and strict observance.
If one of the clauses of these General Terms and Conditions should be declared invalid, unlawful or ineffective by the competent legal authorities, the remaining conditions shall continue to be effective for the part not invalidated by said clause.