GENERAL TERMS AND CONDITIONS OF SALE
1. General Provisions.
1.1 The terms and conditions set out below (the “General Terms and Conditions of Sale”) shall form part of all the agreements executed between Johnson-Fluiten S.r.l. (“Seller”) and the Buyer for the supply of the Seller products (the “Products”) and any additional accessory installation and maintenance activities agreed between the parties.
1.2 The General Terms and Conditions of Sale shall apply to all transaction executed between the Seller and the Buyer without any need of express reference thereto or agreement thereon at the conclusion of such transaction. Any dissenting terms and conditions shall only apply if confirmed in writing by the Seller.
1.3 The Seller reserves the right to change, integrate or vary the General Terms and Conditions of Sale, by including such variations in the quotations or in any other written correspondence sent to the Buyer.
2. Offers and Orders.
2.1 The Seller’s offers shall not be binding, in particular with reference to quantities, price and delivery time.
2.2 Unless otherwise specified in the Johnson-Fluiten quotation, the prices are valid only for 30 days from the date they are written
2.3 Orders placed by the Buyer shall not be regarded as accepted before these have been confirmed by the Seller in writing. If the Seller should fail to confirm an agreement in writing which it has entered into verbally, the Seller’s invoice or the execution of the order by the Seller shall be regarded as confirmation.
2.4 Orders and/or amendments of orders placed verbally or by telephone, must be confirmed in writing by the Buyer. Otherwise the Seller does not accept any responsibility for errors or consequent misunderstandings.
2.5 Johnson-Fluiten reserves the right to accept the cancellation of an order by a Buyer; in this case, however, the costs and expenses incurred up to the date of cancellation and the losses and damages suffered by the Seller due to the cancellation must be immediately reimbursed by the Buyer. The acceptance of the cancellation of the order will in any case be binding on the Seller only if expressed in written form.
2.6 The Buyer ensures that the purchase of Johnson-Fluiten's Products takes place exclusively for professional purposes, ie relating to his activity. The relationship between the Seller and the Buyer will therefore not be regulated by consumer protection regulations, including in particular Legislative Decree no. 185/1999, D.lg. 50/1992, d.lvo 24/2002, Law 126/1991 and art. 1469 and ss. of the C.C.
3.1 The prices of the Products shall exclude any statutory VAT which shall be payable at the date of delivery or pursuant specific provisions included in the invoice.
3.2 Taxes, duties, shipping, insurance, installation, end user training, after sales service are not included in the prices unless separately quoted.
3.3 Johnson-Fluiten may at any time make adjustments to prices in case of significant variations in the costs of raw materials used for production and in any case vary or revoke offers and / or estimates before the Contract is signed.
3.4 When the installation is carried out by Johnson-Fluiten, unless otherwise agreed in writing between the Parties, the following items are charged separately: a) travel expenses; b) cost of accommodation and other expenses related to Johnson-Fluiten's personnel; c) worked time; d) time necessarily dedicated to travel, as well as the time of inactivity, whenever it is impossible to proceed with the work due to circumstances that for the Contract do not depend on the Seller, all at the rates referred to in point c); e) the expenses incurred by Johnson-Fluiten in accordance with the Contract in relation to the supply of the equipment on its part; f) all taxes and duties imposed on the invoice and owed by the Seller in the country of execution of the assembly.
3.5 Whenever the installation is made on lump sum basis, the indicated price must be considered as inclusive of all the items listed in the previous Clause, from point a) to point e).
4. Payment terms
4.1 Unless otherwise agreed, payment must be made by direct remittance. The payment of the invoice must be done without discounts, reductions or rounding, unless otherwise agreed in writing by Johnson-Fluiten.
4.2 Each Contract must be considered in its own right and honored as such: the Buyer has no right to make any compensation, withholding or reduction.
4.3 The payment cannot be considered executed - whatever instrument is used - until the amount has been completely and irrevocably credited to the Seller's current account.
4.4 In case of late payment, Johnson-Fluiten has the right to charge interest from the day on which payment should have been made, calculated at the official reference rate of the European Central Bank, in addition to reimbursement of documented recovery costs.
4.5 In the event that the Purchaser does not make the payment within the terms and according to the methods indicated by the Seller or in the event that the activity of the purchaser is carried out not in accordance with the ordinary business course, by that means, without any limitation , the issuance of seizure or protests, or when the payments have been delayed or have been requested or promoted bankruptcy proceedings, the Seller has the right, at its discretion, to suspend or cancel further deliveries and to declare any claim deriving from the business relationship as immediately due. Furthermore, the Seller may in such cases request advance payments or a guarantee deposit.
5. Terms of Delivery.
5.1 Unless otherwise expressly agreed in writing any indicated time of delivery shall be nonbinding for the Seller. Unless different agreement between the parties, the approximate term for the delivery is the one specified in the confirmation of order.
5.2 The Seller reserves the right to reasonably delivery in instilments.
5.3 Any liability to supply as a result of force majeure or other unforeseen incidents outside the Seller responsibility including, without limitation, strike, lock out, acts of public authorities, subsequent cease of export or import opportunities shall, for their duration and in accordance with their impact, relieve the Seller from the obligation to comply with any agreed time for delivery.
5.4 The Seller is not obliged to accept the Products returns, unless otherwise agreed in writing. Any costs arising thereof shall be at the expense of the Buyer.
6. Duty to Inspection and Acceptance of Products
6.1 Upon taking possession of the Products, the Buyer shall immediately:
6.1.1 check quantities and packaging of the Products and record any
objections on the delivery note; and
6.1.2 conduct a conformity check on the Products compared to the data indicated in the confirmation of order and record any objections on the delivery note.
6.2 In case of a notice of defect the Buyer shall comply with the following procedures and deadline:
6.2.1 the notification shall be made by no later than [3 (three) working days] from the taking possession of the Products by the Buyer. In the event of an objection to a defect which, despite a first inspection has remained undiscovered, the objection must be raised within the early of the expiry of the working day on which the defect has been discovered but in any event by no later than [2 (two) weeks] after takeover of the Products;
6.2.2 the detailed notice above mentioned shall be delivered in written form to the Seller within the deadlines. Any notice by telephone conversation shall not be accepted;
6.2.3 the notice must clearly specify the kind and amount of the alleged defect;
6.2.4 the Buyer agrees to make available for inspection the objected Products; such inspection shall be done by the Seller or by any expert designated by the Seller.
6.3 No objections with regard to the quantities, quality, type, and packaging of the Products shall be possible unless a note has been placed on the delivery note in accordance with the above-mentioned procedure.
6.4 Any Product to which objection shall not have been raised in accordance with the procedures and deadlines set out above shall be regarded as approved and accepted by the Buyer.
Art. 7 - Preparatory work and working conditions
7.1 Johnson-Fluiten undertakes to provide installation instructions explaining how the Product must be assembled, together with all necessary information.
7.2 the Buyer must provide all installation requirements in advance and must ensure that the indispensable conditions for the assembly of the Product and for the correct execution of the installation are respected.
7.3 The preparatory work must be issued by the Buyer in accordance with the drawings and information provided by the Seller. The work must be completed in time to allow installation in the scheduled time.
7.4 Unless otherwise agreed by the Parties, the Product will be installed by the Buyer. In case the Parties have established that the installation and / or assembly of the Product are the responsibility of the Seller, the latter has the right to choose whether to provide it directly or to instruct another Company of the performance of such activity.
8. Terms of Warranty.
8.1 All products are covered by a 12-month warranty starting from the date of issue of the invoice, against any faults and / or manufacturing defects. In this case, the defective Products will be repaired or replaced, always and only within the warranty period.
8.2 The warranty shall be valid only on the products used in suitable environment and for suitable applications in appliance with technical specifications forwarded by the Seller; every improper use of the products is forbidden
8.3 The warranty is however limited to the cost of repairing the defects and / or defects of the product itself or its replacement. When the defects and / or defects of the Product are such as to cause damage to the Customer and / or to any other person, in any case the responsibility of the Company may exceed the price paid by the Customer for the Product.
8.4 The warranty shall not be valid if the defect or not conformity will prove to be depending on not correct on not suitable applications of the product, or if the product has been incorrectly placed in operation. Any change or replacement of product parts, which has not been authorized by the Seller releases the manufacturer from any civil or penal liabilities and makes the warranty invalid. The warranty does not cover the normal products parts subject to consumption.
8.5 The warranty is however limited to the cost of repairing the defects of the product itself or its replacement. When the defects of the Product are such as to cause damage to the Customer and / or to any other person, in any case the responsibility of Johnson-Fluiten may exceed the price paid by the Buyer for the Product.
8.6 For further Terms of Warranty please refer to the document “Warranty certificate”.
9. Limitation of Liability.
9.1 Unless in case of justified objection which shall have been raised in accordance whit the procedure and deadlines set forth in paragraph 5 above, the Buyer
shall not be entitled to any further rights or remedies. In particular, the Seller shall not be responsible for any compensation based on breach of contract or default, for any direct or indirect damage or loss of profit due to the use, the inability to use, or the incorporation of the Products in other products
9.2 The Seller shall do its best endeavor to deliver the Products within the time agreed (if any), but it shall not be liable for any loss or damage of any kind whatsoever caused directly or indirectly by any delay in the completion of the contract or delivery of the Products.
9.3 Catalogues, price lists or other advertising matters of the seller are only an indication of the type of Products and no prices or other information contained herein shall be binding for the Seller. The Seller does not accept any responsibility for errors or omissions contained in its price lists or promotional matters.
10. Retention of Title.
10.1 The Product supplied shall remain in the property of the Seller until the date of the full payment by the Buyer of the entire price of the Products and of all amounts due to the Seller. Until that time the Buyer shall hold the Products as the Seller’s fiduciary agent and shall keep the Product properly stored, protected and insured.
10.2 If in the Country of the Buyer’s domicile for the validity of the retention of title for the benefit of the Seller it is necessary to fulfil some administrative or legal formalities as, without limitation, to file the Products with the public registers or to affix particular seals on them, the Buyer shall cooperate with the Seller and shall do its best effort for carry out all the necessary actions in order to obtain a valid retention of title right on the Products for the benefit of the seller.
11 - Transmission of risk
11.1 If no conditions of sale have been expressly agreed, the delivery terms are to be considered CPT incoterms with charge to the customer on the invoice.
11.2 The goods always travel at the risk of the Purchaser, even if the delivery has been agreed FOC. Johnson-Fluiten is not responsible in any case for any damage resulting from failure to deliver the Product.
11.3 Unless otherwise agreed, any risk of loss or damage is transmitted to the Purchaser upon delivery to the carrier or forwarder.
12. Johnson-Fluiten S.r.l.’ s Intellectual Property
12.1 The Client expressly recognizes that trademarks, commercial names or other distinctive marks on the goods are in the exclusive property of Johnson-Fluiten S.r.l. and will not be altered, changed, removed or cancelled in any manner.
12.2 The Client has the limited right to use trademarks, commercial names or other distinctive marks, as well as other industrial exclusive right or Know how (productive or commercial) associated with the goods - which nonetheless remain in the exclusive property of Johnson-Fluiten - to the limited purpose of the resale of the goods to the final consumer. Any other utilization of the Johnson-Fluiten S.r.l. Intellectual Property by the Client, if not expressly granted by Johnson-Fluiten S.r.l. in writing, will be considered an infringement of the exclusive rights of Johnson-Fluiten S.r.l., and a breach of contract, and will be therefore prosecuted.
12.3 The documents, drawings, data and information (both in written papers and on electronic support) which should be delivered to the Client, remain exclusive property of Johnson-Fluiten S.r.l. and constitute a support for a better representation of the product and are significant of the general performances of the product itself.
12.4 The Client engages itself not to reproduce them, neither to disclose them to a third party, and he engages himself to undertake the proper precaution towards staff in order to grant the above protection.
12.5 The Buyer cannot use the Products or part of them or any description or drawing, even if not specifically protected by a patent or registered trademark, to design or manufacture interchangeable goods, unless it has obtained the prior written consent from Johnson-Fluiten; even in this case, however, all patents, registered designs, trademarks, copyrights and intellectual property rights inherent or connected to the Products remain fully and exclusively owned by the Seller and the Buyer must maintain the strictest confidentiality in this regard .
13. Data Protection Law.
The personal data of the Buyer shall be processed in accordance with the Italian data protection law (Legislative Decree 196/2003). The Seller inform the Buyer that the Seller is the data controller and that the Buyer’s personal data shall be collected and processed for the only purpose of the performance of this agreement. Pursuant article 7 of the Italian Legislative Decree 196/2003, the Buyer has the right to ask to the Seller the updating, amendment, integration, writing off and transformation in anonymous form of its data
14. Applicable Law.
14.1 In case of the Buyer is a subject having Italian nationality, the present General Terms and Conditions of Sale and all the agreements executed between the Seller and the Buyer shall be governed by Italian laws.
14.2 The United Nations Convention of Vienna of 1980 on Contracts for the International Sale of Goods is not applicable.
15.1 Any dispute arising between the parties in connection with the interpretation, validity or performance of the present General Terms and Conditions of Sale and of all the relevant agreements, shall be of the exclusive competence of the referred to the Court of Milano.
15.2 It is agreed between parties that the Seller, at its own discretion, may have the faculty to waive the exclusive jurisdiction set forth in paragraph (a) to bring an action against the Buyer in its domicile and before any court of competent jurisdiction.
16. Final Provisions.
16.1 The total or partial invalidity of any provision of the present General Terms and Conditions of Sale shall not affect the validity of the other provisions.
16.2 The present General Terms and Conditions of Sale have been drafted in both Italian and English languages. In case of problems of interpretation, the Italian version shall prevail.
16.3 Pursuant articles 1341 e 1342 of the Italian Civil Code the Buyer hereby specifically accepts the following provisions: Art. 1.1, Art. 4.7, Art. 4.2, Art. 5, Art. 6, Art. 9, Art. 10, Art. 14, Art. 15