General terms and conditions for sale
Art. 1 Scope
These General Terms and Conditions for Sale apply to any supply relations between the parties. Even in case of a derogation agreed in written, these General Terms and Conditions will remain in force for the remainder of the provisions not derogated. Any additional or different terms proposed by the Buyer will not be binding upon Camozzi S.p.a. unless specifically assented to in writing by Camozzi S.p.a. and, in any case, will not exclude the validity of the present General Terms and Conditions which they will have to be coordinated with.
Art. 2 Formation of the contract
Any quotation of Camozzi S.p.a. which is accepted by the Buyer or any order of the Buyer which is accepted by Camozzi S.p.a., whatever form they have, are subject to the present General Terms and Conditions. Any quotations or statement made to the Buyer by Camozzi S.p.a. agents, sale representatives or any other commercial intermediary shall not be binding unless confirmed in writing by Camozzi S.p.a..
Quotations will remain valid for 30 (thirty) working days from their issuance and exclusively for the complete supply of the quoted products. After the above period, quotations will expire and consequently Camozzi S.p.a may modify the relevant terms. Quotations do not include: manuals, training courses. starting – up assistance and other similar services, unless they are expressly specified by Camozzi S.p.a.
Art. 3 Technical data and documents related to the supply
Weights, dimensions, prices, performances, colours, pictures and other information, including samples characteristics, indicated in Camozzi S.p.a.’s catalogues, price lists, circular letters or other sales and technical literature are merely indicative and not binding unless Camozzi S.p.a. expressly refers to them in its quotation or order confirmation.
Camozzi S.p.a. reserves the right at any time to make changes to its products technical specifications in order to improve their performances, priory informing the Buyer in writing in case the above changes are substantial (i.e. changes affecting: products’ installation procedures, products’ interchangeability features, etc.).
Art. 4 Prices – Payment
Prices shall be those listed in the price list in effect at the date Camozzi S.p.a.’s quotation is accepted by the Buyer or at the date of Camozzi S.p.a.’s order confirmation. Camozzi S.p.a. reserves the right to modify at any time the price list in effect, by giving written notice to the Buyer, if there is any increase in the cost of raw materials, labour or any other production factors which affects in a substantial way the production costs.
All prices are Free Carrier (FCA Incoterms 2010), unless different agreement between the parties.
Payments will have to be made in compliance with the instructions specified in the quotation or in the order confirmation. All payments shall be deemed net Camozzi S.p.a.’s domicile. In any case amounts paid to Camozzi S.p.a. agents, sale representatives or any other commercial intermediary shall not be considered as received by Camozzi S.p.a. until Camozzi S.p.a. has received the relevant cleared funds.
Unless otherwise provided, payments are made in Euros.
In case of prices quoted in different currency, Camozzi S.p.a. reserves the right to review such prices following to fluctuation of the relevant exchange rate.
If the Buyer fails to make any payment on the due date, Camozzi S.p.a. shall be entitled:
a) to suspend all further deliveries on any contract between Camozzi S.p.a. and the Buyer, even in case these are not referred to the delayed payment;
b) to change the payment and discount terms for the next supplies, asking for advanced payments or other guarantees;
a) to charge the Buyer with interests on the unpaid amount at the rate provided by the Italian rules in force for commercial relationships, until payment is made in full, without prejudice to the right for claiming compensation for any further damages.
Moreover, any amount due to Camozzi S.p.a. becomes immediately payable.. Even in case of a dispute between the parties, the Buyer is not released from the obligation to comply with the payment terms in full. No set off whatsoever is allowed (including, without limitation, setoff under other contracts with Camozzi S.p.a.)
Art. 5 Reservation of Title
Title to the products shall not pass to the Buyer until Camozzi S.p.a. has received all amounts due and payable by the Buyer.
Art. 6 Delivery
Unless otherwise provided for, Camozzi S.p.a. shall deliver the products Free Carrier Camozzi S.p.a.’s factory (FCA Incoterms 2010) and therefore Camozzi S.p.a. shall remain responsible for risk of loss to the products only until delivered to the carrier, at that moment any relevant risk shall pass onto the Buyer. Delivery terms are merely indicative and are calculated on working days’ basis. Camozzi S.p.a. is not responsible for damages in case of advanced or postponed deliveries, both total and partial.
In case the Buyer does not fulfil all its obligations regarding payments, then Camozzi S.p.a. will be entitled to suspend or delay any delivery of the Products until the Buyer has settled any outstanding amounts.
The Buyer will grant Camozzi S.p.a reasonable tolerances on the delivered products quantity. If the Buyer or the Buyer’s carrier fails to collect the products, due to any cause not attributable to Camozzi S.p.a., Camozzi S.p.a. may store the products, upon notification to the Buyer, charging the Buyer for any eventual cost of storage.
Art. 7 Excusable delays
Camozzi S.p.a. shall not be considered to be in breach or default of its obligations under the contract if such breach or default, directly or indirectly, is due to:
a) causes beyond its reasonable control and/or due to force majeure events;
b) acts (or omissions) of the Buyer including failure to promptly provide Camozzi S.p.a. with information and approvals necessary to permit Camozzi S.p.a. to proceed with its work;
c) failure by the Buyer in complying with the terms of payment;
d) inability to obtain materials, components or services necessary to perform the work on account of causes beyond the reasonable control of Camozzi S.p.a..
In the event of any such delay, Camozzi S.p.a. shall notify it to the Buyer. The date of delivery shall be extended for a period equal to the time lost due to the delay, plus such additional time as may be reasonably necessary to overcome the effect of such excusable delay. Camozzi S.p.a. shall notify the Buyer, as soon as possible, of the revised delivery date. If Camozzi S.p.a.’s performance is delayed by acts or omissions of the Buyer, or by the prerequisite work of Buyer other contractors or suppliers, Camozzi S.p.a. shall also be entitled to an equitable price adjustment.
Art. 8 Technical standards and liabilities
Camozzi S.p.a. products comply with current Italian laws and rules; the Buyer is solely responsible for eventual differences between Italian laws and the laws of the location where the products are to be installed, holding Camozzi S.p.a. harmless of any consequences thereof.
Camozzi S.p.a. guarantees its products’ performances exclusively in relation to uses, applications, tolerances etc., expressly specified by Camozzi S.p.a. itself.
Art. 9 Patents
With reference to the products supplied, Camozzi S.p.a. agrees to indemnify and hold the Buyer harmless from any liabilities resulting from third party’s rightful claims related to eventual infringement of third party’s intellectual property rights. In case of a third party claim, the Buyer will have to promptly notify Camozzi S.p.a. of the receipt of such claim, giving Camozzi S.p.a. information, assistance and exclusive authority to settle and defend the claim.
The provision above shall not apply to any products manufactured according to the Buyer’s design, drawings, instructions and/or technical specifications; in such case Camozzi S.p.a. assumes no liability whatsoever for intellectual property rights infringement the Buyer will be responsible for.
Art. 10 Warranty
Camozzi S.p.a. warrants that the products shall be designed according to the contract specifications, and shall be free from defects that could make the products unsuitable for the use expressly provided. The above warranty operates only for defects in workmanship and materials that are attributable to Camozzi S.p.a. s. Camozzi S.p.a. does not warrant the products or any repaired or replacement parts against normal wear and tear.
The warranty set forth herein is conditioned upon Buyer’s full compliance with payment terms. Unless a different written agreement between the parties, this warranty shall be valid for 12 months from the date of production for special products not included in Camozzi S.p.a.’s catalogue and for 18 months from the date of production for standard products included in Camozzi S.p.a.’s catalogue, considering one daily shift of eight hours.
The warranty set forth herein is further conditioned upon: i) Buyer’s compliance with the operational instructions specified in Camozzi S.p.a.’s catalogue and technical instructions, ii) repair or modifications applied pursuant to Camozzi S.p.a.’s written approval, iii) proper storage of the products and iv) defects not caused by chemical and electrical agent. The Buyer shall inspect the products and verify the lack of defects within 10 days from products delivery date and, anyway, before any use of the same. The Buyer shall notify in written eventual evident defects (i.e. defects found during the entry inspection performed on samples) within 10 days from the delivery of the products, while the Buyer shall notify in written non apparent and/or operation defects (i.e. defects that are found only after the products’ use) within 10 days after the discovery of the defect and in any case within the validity of the warranty period. Any claim has to be notified in written to Camozzi S.p.a. following Camozzi S.p.a.’s instructions, specifying in detail defects or failures attributable to Camozzi S.p.a. The Buyer cannot enforce its rights deriving from the present warranty, if it does not make the products available to Camozzi S.p.a. for inspection, upon Camozzi S.p.a.’s request, or if the Buyer, having received Camozzi S.p.a.’s request, does not return the defective products within 10 days from the above mentioned request. When any valid claim is notified to Camozzi S.p.a., Camozzi S.p.a. may at its discretion: a) repair the defective products or b) replace them free of charge, within a reasonable time considering the importance of the claim, with transport cost charged to Camozzi S.p.a. (DAP Incoterms 2010) or c) issue a credit note to refund to the Buyer the price of the defective products as specified in the invoice. In this case Camozzi S.p.a. may ask the defective products back which become of its property. Unless otherwise provided for, it is understood that all expenses related to Camozzi Sp.a.’s technical assistance, will be borne by Camozzi S.p.a. itself.
If, during Camozzi S.p.a.’s intervention, the defect results not to be attributable to Camozzi S.p.a.’s responsibility, any expenses and costs of repairing or replacing the defective products will be borne by the Buyer.
The foregoing warranties are exclusive and are in lieu of all other warranties and guarantees whether written, oral, implied or statutory, and exclude any liability of Camozzi S.p.a. arising out of or in connection with the Products supplied; the Buyer will not be entitled to ask for compensation for damages, price reduction or cancellation of the contract and for indirect or consequential loss or damages.
Art. 11 Liability
The total liability of Camozzi S.p.a., on all claims of any kind, whether in contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise, arising out of the performance or breach of the contract or use of any product, shall not exceed the value of the product such liability is related to.
In no event shall Camozzi S.p.a. be liable for loss of profit or revenues (“lucro cessante”), loss of use of the product or any associated equipment, claims of Buyer’s or third parties for such damages, or for any special, consequential, incidental, indirect or exemplary damages.
Art. 12 Confidentiality
The Buyer commits to (i) keep confidential all information/data/drawings/know how/documentation received and/or learnt from Camozzi S.p.a., to (ii) limit the use of such confidential information/documents and the relevant access only for purposes related to the execution of the contract. Confidential information/documentation cannot be copied without the prior written consent of Camozzi S.p.a., and those copies will be immediately returned to Camozzi S.p.a. upon the latter’s request.
The provisions set forth above do not apply to information that: (i) is or becomes in the public domain not by fault of the Buyer, its personnel and/or partners, or (ii) is known by the Buyer prior to the disclosure of Camozzi S.p.a., or (iii) is lawfully disclosed to the Buyer by third party without breaching confidential obligations similar to those the Buyer has to comply with, or (iv) is disclosed with the prior written authorization of Camozzi S.p.a.
Art. 13 Miscellaneous
The delegation or assignment by the Buyer of any or all of its duties or rights under the contract without Camozzi S.p.a.’s prior written consent shall be void. Camozzi S.p.a. shall have the right at all times to assign to third parties any and all credits under the contract subject to prior notification in writing to the Buyer.
The invalidity in whole or in part of any part of these General Terms and Conditions for Sale shall not affect the validity of the remainder of these General Terms and Conditions.
In no case, failure of a party to enforce the rights resulting from the present General Terms and Conditions, even in case of a contractual breach by the other party, cannot be construed as a waiver to exercise such rights.
Art. 14 Dispute resolution - Governing Law
Any disputes arising out of or in connection with such General Terms and Conditions shall be settled, by the ordinary law courts of Brescia (Italy). However, as an exception to the above, Camozzi S.p.a. is in any case entitled to bring its action before the competent court of the place where the Buyer has its registered office.
The validity, performance and all matters relating to the interpretation and effect of the present General Terms and Conditions for Sale shall be construed and interpreted in accordance with the Italian law.
Brescia, 1 gennaio 2013
Camozzi S.p.a. The Buyer
As provided in the article 1341 of the Italian Civil Code, both Parties expressly declare to accept and approve the following clause:
Art. 4 Prices – Payment
Art. 6 Delivery
Art. 10 Warranty
Art. 11 Liability
Art. 12 Confidentiality
Art. 13 Miscellaneous e
Art. 14 Dispute resolution - Governing Law