- These general conditions are applicable together with any and all special conditions of the attached Order Confirmation to any sale of goods (the “Goods”) by Tableswin S.r.l., with legal offices in Via San Giovanni Bosco 41 – 36022 – Cassola (VI) – Italy, VAT n. 03988060244 (the ‘Seller‘) and any possible company, person, entity wherever located (the ‘Buyer‘) (the Seller and the Buyer are jointly referred to as the “Parties” and severally as a “Party”). These general conditions together with the special conditions of the Order Confirmation by the Seller shall form a sole contractual deed to be undersigned by the Buyer without any modification or amendment and shall constitute the entire agreement between the Parties (the “Agreement”).
- In case of contradiction the special conditions will prevail.
2. Sale of Goods
2.1 The Seller agrees to sell and transfer to the Buyer and the Buyer agrees to buy the Goods specified and described in the Order Confirmation, and upon the terms and conditions hereinafter set out.
3. Characteristics of the Goods. Modifications
The Buyer acknowledges and agrees that the Goods are usually expressly customized according to the following procedure and that his cooperation is a substantial condition for the correct Seller’s performance:
- the Seller provides the Buyer with a mandatory form (the “Form”) where the Buyer shall specify each and all technical details, features and finishing of any Good to be sold;
- the Buyer must return to the Seller the Form duly filled in within a mandatory term of 15 (fifteen) days from receipt;
- the Seller will provide the Buyer with samples of the materials chosen by the Buyer in the Form, which the Buyer must evaluate and confirm in writing within a mandatory term of 7 (seven) days from receipt of said samples. After such term is expired without confirmation by the Buyer, the Seller shall be entitled to deem the samples as confirmed by the Buyer and the Buyer may not raise any claim in connection thereto.
3.2 In case the Buyer does not return to the Seller the Form within the relevant term or if the Form is not duly filled in, the Seller shall be entitled to suspend any delivery of the Goods until a complete Form is received. The Seller will communicate in writing to the Buyer a new delivery term, which the Buyer may not contest.
3.3 In case the Buyer requests to modify any detail, feature or finishing already specified in the Form sent to the Seller, the Seller shall be entitled to evaluate such request and to modify the original price of the Goods. The Seller will communicate to the Buyer a new delivery term, which the Buyer may not contest. The Buyer agrees to pay to the Seller any cost or expense related to the modifications requested.
3.4 Any further modification requested by the Buyer before delivery of the Goods shall be agreed upon by the Parties and shall not be binding unless expressly accepted by the Seller.
3.5 The Seller may make any change to the Goods which, without altering their essential features, appear to be necessary or suitable.
4. Purchase Price and Payment Conditions. Installation Costs
The Buyer shall pay for the Goods the entire price specified in the Order Confirmation.
4.2 Unless otherwise agreed in writing, payment must be made as indicated under art. 4.4 hereunder. The Parties agree that any and all costs for transport and installation of the Goods and any other cost or charge shall be for the account of the Buyer and are excluded from the purchase price and are expressly indicated in the Order Confirmation. The fact that such costs or charges are not indicated in the Order Confirmation shall not be intended as they are included in the Purchase Price.
4.3 The Parties agree that any tax and/or custom duty (present or future, related to the sale or use or similar) applicable to the sale of the Goods shall be paid exclusively by the Buyer. The Buyer may alternatively provide the Seller with a tax exemption certificate acceptable to the proper and competent taxing authorities.
4.4 Payment of the sale price must be made according to the following terms, which are of essence for the Seller:
- 50% (fifty percent) in advance within 7 (seven) days from the purchase order confirmation;
- 50% (fifty percent)at least 7 (seven)days before the agreed date of delivery;
4.5 All payments must be made by bank transfer on the Seller’s bank account as communicated to the Buyer. Any payment is deemed to be made when the respective sum is as the Seller’s disposal at its bank in Italy. Unless otherwise agreed, any expenses or bank commissions due with respect to the payment shall be for the Buyer’s account.
4.6 The Seller is entitled to suspend the performance of his contractual obligation in case of delay in payment by the Buyer.
4.7 The Seller may provide installation on site of the Goods if requested by the Buyer. Installation costs are for the Buyer’s account and may be indicated in the Order Confirmation or otherwise agreed upon by the Parties but are always excluded from the Purchase Price, unless otherwise expressly agreed by the Parties in writing. Installation costs shall include:
a.travel expenses of Seller’s personnel from the Seller’s seat to the place where the Goods are to be installed (number of persons and period will be communicated by the Seller and is determined at Seller’s sole discretion). The Seller will try to minimize when possible the travel costs; in case of modification or cancellation of reserved flights or travels due to Buyer’s decision or responsibility, the Buyer must reimburse any costs suffered by the Seller;
b.transportation costs for Seller’s materials and tools necessary for installation;
c.all living expenses (board and lodging, local transport etc.) incurred by Seller’s personnel. Living conditions must be of European standard and guarantee safety and wellness of Seller’s personnel. Such expenses shall be paid directly by the Buyer, unless otherwise agreed;
d.the agreed man/day rate or forfeit price for installation work;
e.any other costs related to the installation of the Goods.
5. Time of Delivery and Delivery Terms
The Seller shall deliver the Goods on the date and at the place specified in the Order Confirmation. The date of delivery is the date when the Goods are placed at the Buyer’s disposal according to the Incoterm and at the place specified in the Order Confirmation.
5.2 If the Seller expects that he will be unable to deliver the Goods at the date agreed for delivery, he must inform the Buyer within the shortest delay, in writing, of such occurrence, stating, as far as possible, the estimated date of delivery. It is agreed that if a delay for which the Seller is responsible lasts more than 6 (six) weeks, the Buyer will be entitled to terminate the Agreement with reference to the Goods the delivery of which is delayed, by giving a 30 days’ notice, to be communicated in writing to the Seller.
5.3 Any delay caused by force majeure (as defined in art. 9) or by acts or omissions of the Buyer (e.g. the lack of indications which are necessary for the supply of the Goods), shall not be considered as a delay for which the Seller is responsible.
5.4 In case of delay in delivery for which the Seller is responsible, the Buyer may only request a compensation for the damages actually suffered, equal to 0,1% (zero point one percent) per day of the Purchase Price of the Goods the delivery of which has been delayed, within the maximum amount of 3,0 % (three point zero percent) of said Purchase Price.
5.5 Except in case of fraud or gross negligence, the payment of the amounts indicated here above excludes any further compensation for damages arising out of non-delivery or delayed delivery of the Goods.
5.6 Delivery shall be made according to the trade term (Incoterms 2010) specified in the Order Confirmation. In any case, whatever the delivery Incoterm agreed between the Parties, the risks will pass to the Buyer, at the latest, on delivery of the Goods to the first carrier.
5.7 If the Buyer expects that he will be unable to take delivery of the Goods at the date agreed for delivery, he must inform the Seller within the shortest delay, in writing, of such occurrence, stating, as far as possible, the estimated date of taking delivery. It is agreed that the Seller, in case the delay in taking delivery of the Goods lasts more than 20 days, is always entitled to a compensation for storage costs equal to [3%] of the Purchase Price for each 30 days of delay to be paid by the Buyer at Seller’s request.
6. Inspections and Complaints
The Buyer must carefully inspect the Goods within the shortest time after receipt and in any case not later than 7 days.
6.2 Any complaints relating to packing, quantity, number or exterior features of the Goods (apparent defects), must be notified to the Seller, by registered letter with return receipt, within 7 days from receipt of the Goods; failing such notification the Buyer’s right to claim the above defects will be forfeited and waived.
6.3 Any complaints relating to defects which cannot be discovered on the basis of a careful inspection upon receipt (hidden defects) shall be notified to the Seller, by registered letter with return receipt, within 7 days from discovery of the defects and in any case not later than 12 months from delivery; failing such notification the Buyer’s right to claim the above defects will be forfeited and waived.
6.4 It is agreed that any complaints or objections do not entitle the Buyer to suspend or to delay payment of the Goods as well as payment of any other supplies.
7. Warranty for defects
The Seller undertakes to remedy any defects, lack of quality or non-conformity of the Goods for which he is liable, occurring within 12 (twelve) months from delivery of the Goods, provided such defects have been timely notified in accordance with art. 6 above. The Seller will have the choice between (i) repairing or (ii) replacing the Goods or (iii) reimburse in full or in part the Purchase Price to the extent the Goods have shown to be defective. The Goods repaired or replaced under the warranty will be submitted to the same guarantee for a period of six months starting from the date of repair or replacement.
7.2 The Seller does not warrant that the Goods conform to special specifications or technical features or that they are suitable for particular usages except to the extent such characteristics have been expressly agreed upon between the Parties.
7.3 Except in case of fraud or gross negligence of the Seller, the Seller’s only obligation in case of defects, lack of quality or non-conformity of the Goods will be that of repairing or replacing the defective Goods or reimbursing in full or in part the Purchase Price. It is agreed that the abovementioned guarantee is in lieu of any other legal guarantee or liability with the exclusion of any other Seller’s liability (whether contractual or non- contractual) which may anyhow arise out of or in relation with the Goods supplied (e.g. compensation of damages, loss of profit, recall campaigns, etc.).
8. Retention of Title
The Parties agree that the Goods delivered remain the Seller’s property until complete payment is received by the Seller.
9. Force Majeure
The Seller shall have the right to suspend performance of his contractual obligations, with no liability to the Buyer, when such performance becomes impossible or unduly burdensome because of unforeseeable events beyond his control, such as strikes, labour disputes, boycotts, lock-outs, fires, war (either declared or not), civil war, riots, revolutions, requisitions, embargo, energy black-outs, delay in delivery of components or raw materials, transportation shortage.
9.2 The Seller, if wishing to make use of the present clause, must promptly communicate in writing to the other Party the occurrence and the end of such force majeure circumstances.
9.3 Should the suspension due to force majeure last more than 6 (six) weeks, the Parties may agree in good faith a new delivery date. The Seller shall be entitled to terminate the Agreement with no Buyer’s right to any damage or compensation whatsoever.
The Seller reserves the right to terminate or cancel this Agreement immediately without liability in the event that:
- if the Buyer fails to pay any amount due;
- in the event of the Buyer’s insolvency or bankruptcy; or
- if the Seller deems that its prospect of payment is heavily impaired.
11.1 Any notice or document in relation to the subject matter hereof to be given by either Party to the other shall be given in writing (which shall without limitation include by facsimile and email) and shall be duly served upon, but only upon, actual delivery to the address of such other as stated directly in the Order Confirmation.
12. General Provisions
No modifications of or additions to this Agreement shall be valid unless made in writing and signed by both Parties hereto.
12.2 No delay or failure in exercising by either Party any right conferred on it under this Agreement shall be deemed to be a waiver thereof. No waiver of any such right shall be effective unless made in writing. No waiver of any such right shall be deemed to be a waiver of any other such right.
12.3 The Parties may not assign its rights or obligations under this Agreement wholly or partially, to any physical person, company or entity, without prior written consent of the other Party. Each Party has a substantial interest in having the other Party perform or control the acts required by this Agreement.
12.4 In the event that any clause, term or provision contained within this Agreement is or becomes invalid, or is deemed to be invalid by any competent court or authority, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The invalid clause will be deleted from this Agreement and the balance of this Agreement will remain in full force and effect.
12.5 This Agreement will inure to the benefit of and be binding upon the Seller and the Buyer and their respective successors and assigns.
12.6 This Agreement, together with the relevant documents and annexes (Order Confirmation) constitutes the entire agreement between the Parties and there are no further items or provisions, either oral or otherwise. The Buyer acknowledges that it has not relied upon any representations of the Seller as to prospective performance of the Goods, but has relied upon its own inspection and investigation of the subject matter.
13. Applicable law and Jurisdiction
This sale Agreement shall be governed by the UN 1980 Vienna Convention on the International Sale of Goods and – for the matters not covered by the Convention – by the Italian law exclusively.
13.2 All disputes – included those of not contractual nature – arising out of, related or connected to this Agreement, shall be settled by arbitration under the Rules of the Chamber of Arbitration of Milan (the Rules), by a sole arbitrator, appointed in accordance with the Rules, which are deemed to be incorporated by reference into this clause. The seat of the arbitration shall be Milan (Italy). The language of the arbitration shall be English.