Unless otherwise agreed in writing between the Parties, these General Conditions of Sale (hereinafter the “General Conditions”) together with the special conditions foreseen in the order confirmation shall govern all the sales of goods between Piovan S.p.A. (hereinafter “Piovan”) and any purchaser (hereinafter the “Purchaser”) and shall prevail over any other possible conflicting provision contained in forms or other documents utilised by Piovan and/or the Purchaser (hereinafter also jointly the “Parties”).
1.1 The object of the contracts of sale governed by these General Conditions are all the machinery and equipment, relevant fittings and components such as and without limitation, the piping, frames, etc., inserted in Piovan’s price list hereinafter the “Products”) in force at the time of submission of the order by the Purchaser, with the specifications indicated therein.
1.2 The forwarding of illustrative material shall not be deemed a formal offer of sale by Piovan but rather an invitation to negotiate with Piovan, who may modify them at any time without previous notice.
1.3 Any descriptions, indications of weight, measurements, dimensions, capacity, efficiency and any other data contained in drawings catalogues and prospects or Piovan’s publications or any other illustrative material provided by Piovan shall be of a merely indicative character and shall not be deemed binding for Piovan, unless otherwise stated in the Order Confirmation.
1.4 Should the object of the sales contract be complete system, the Parties agree that Piovan will be entitled to deliver installation materials in quantities which reasonably exceed the estimated needs of the Purchaser, in order to prevent shortages of such installation materials during the installation process. Once the installation is finished the leftovers shall be returned to Piovan.
1.5 Products are supplied with a copy of the relevant ECC Conformity Declaration. Drawings and other technical documents belonging to Piovan will be retained by Piovan and, upon request, will be made available to the competent authorities for inspection.
2. ORDERS AND CONFIRMATIONS
2.1 The offer sent by Piovan in writing to the Purchaser (hereinafter the “Offer”) shall be deemed an invitation to negotiate and shall therefore be followed by the Purchaser’s order (hereinafter the “Order”).
2.2 Any request of amendment to the Offer shall be submitted in writing by the Purchaser for approval. Based on the nature of the amendment requested by the Purchaser , Piovan shall be entitled to vary the price, the lead time, the estimated delivery terms, as well as the Product.
Should the requested amendment imply changes or customization (of any kind or entity) to the Products compared to what is described in Piovan’s catalogue, the Purchaser shall enclose to the relevant request all the technical drawings, the technical details and any other relevant instructions and information concerning the requested change or customization.
2.3 Orders are, to be made in writing, indicating the relevant description, code number, quantity, unit price, requested delivery date, method of transport and name of the forwarding agent or carrier entrusted therewith for each Product. Orders remain firm and binding for the Purchaser until the order confirmation is issued by Piovan, but in no event for more than ten working days from its receipt by Piovan. In the case of repeated Orders effected under the price list, those Orders which need checks and measurements shall remain firm and binding for the Purchaser for thirty working days. Orders shall be deemed sent in writing if received by Piovan via e-mail. The sale contract shall be deemed executed when the Purchaser has received the order confirmation issued by Piovan (hereinafter the “Order Confirmation”).
2.4 Should the Order Confirmation contain amendments with respect to the Order, these amendments shall be deemed tacitly accepted after three working days from receipt of the Order Confirmation, if the Purchaser does not express in writing any objection during this period.
2.5 Should the Purchaser cancel an Order any later than 5 days after the execution of the sales contract pursuant to art. 2.3 or not collect the Products for any reason other than Piovan’s breach, the Purchaser shall pay Piovan a liquidated damages fee calculated on the percentage of the value of the cancelled Order and/or non-collected Products in detail as follows, without prejudice to Piovan’s right to claim compensation for any further damages suffered in connection therewith:
15%, if the cancellation is received by Piovan after the technical development process has already started
60%, if the cancellation is received by Piovan after the procurement of the construction material but before the manufacturing process has already started
90%, if cancellation is received by Piovan after the manufacturing process has already started
2.6 Piovan shall have the right to suspend and/or cease the production of the Products should the requirements of the market and/or of the production request it, without the Purchaser being entitled to raise any complaint or claim in this regard.
3.1 Unless otherwise provided in the Order Confirmation, the prices for the Products shall be the prices set out in Piovan’s price list in force on the date of delivery and shall be expressed in Euros (“Prices”).
3.2 Unless otherwise specifically provided in the Order Confirmation, the Prices shall be Ex Works (Incoterm 2000) at Piovan’s premises. Any arrangement made by Piovan, upon the Purchaser’s request, with carriers or forwarding agents, with reference to the shipment, shall be carried out exclusively on behalf of the Purchaser, at the latter’s own expense and risk. Therefore the Ex-works clause shall remain, in any case, in force.
3.3 Unless otherwise provided in the Order Confirmation, Prices include standard cardboard packing only.
3.4 Prices are exclusive of any value added tax or tax duty and all costs or charges in relation to special packing, loading, unloading, carriage and insurance shall be paid by the Purchaser in addition to and under the same terms and conditions of payment of the Products.
3.5 Unless otherwise provided in the Order Confirmation, Prices do not include installation, start-up or training of the Purchaser’s personnel. Such services may be provided by Piovan to the Purchaser, upon execution of a specific written agreement between the Parties.
4. TERMS OF PAYMENT
4.1 Unless otherwise provided in the Order Confirmation, the payment is due from the date of the invoice issued by Piovan.
4.2 Any payment shall be deemed effected at Piovan’s place of business upon receipt thereof by Piovan. The issue of bills of exchange shall not be considered as payment nor shall be deemed a novation of the original obligations. In any case all stamp duties and bank costs shall be borne by the Purchaser.
4.3 If payment is to be made by Letter of Credit (“L/C”), the same shall be issued pursuant to the ICC Uniform Customs and Practice for Documentary Credits in force at the time of the Order. Furthermore, the L/C shall be irrevocable and confirmed by a first class bank located in Italy and satisfactory to Piovan, transferable in whole or in part, payable on the due date set out in the Order Confirmation and negotiable against the documents mentioned therein. Should Piovan not require confirmation of the L/C, payment and negotiation thereof shall be in any event effected at the counters of the advising bank.
The opening of the L/C shall be notified to Piovan by the confirming or advising bank, as the case may be, within 10 (ten) banking days from receipt of the Order Confirmation by the Purchaser. Failure to do so shall automatically cause the cancellation of the order, unless Piovan otherwise communicates. The L/C shall be effective and binding until 30 (thirty) days after expiry of the payment term indicated in the Order Confirmation. If, for any reason, the original payment terms are extended, the Purchaser undertakes to renew the L/C. If the Purchaser fails to renew the L/C within 5 (five) days from the extended date, the payment shall be deemed as immediately due.
5. NON-PAYMENT OR DELAYED PAYMENT
5.1 In case of total or partial delay in performing the payment, the Purchaser will be liable to pay the relevant interest to Piovan at the rate fixed by D.Leg. n. 231/2002, for the entire period of delay.
5.2 Piovan shall in any case and under these circumstances have the right to suspend any supply in progress, terminate the contract and retain as liquidated damages all sums already cashed, without prejudice to its right to claim for further damages.
5.3 Failure by the Purchaser to honour even one instalment or diminish the security granted will automatically determine acceleration of all payments due.
6.1 Ownership of the Products remains vested with Piovan and shall not pass to the Purchaser until full and complete payment of the Price is effected by the latter and, should the payment be made by means of cheques or bills of exchange, until their clearance, even if such documents are delivered in advance. Consequently failure by the Purchaser to pay the Price shall determine acceleration of all payments due as described in the preceding paragraph 5.3 and Piovan shall have the right to obtain the restitution of the Products. Nevertheless, the Parties agree that all risks deriving from loss or damage to the Products due to any cause whatsoever will pass to the Purchaser as from the time of delivery of Ex Work Incoterms 2000 at Piovan’s premises.
6.2 All costs for registration of the retention of title shall be entirely borne by the Purchaser. Unless otherwise agreed in writing between the parties, before full payment of the Price is made, Purchaser is not entitled to resell, hire or allow third parties to use the Products.
6.3 The Purchaser shall have the obligation to inform Piovan, within 24 hours, of any enforcement proceeding or interim injunction filed by third parties on Products under retention of title. The Purchaser shall remain, in any case, liable to Piovan for any expense or damage, which Piovan may suffer in relation to such acts.
6.4 Unless otherwise expressly authorized by Piovan, The Purchaser shall not resell, transfer or constitute pledges or lien of any type on the Products until full and complete payment of the Price is effected by the Purchaser.
7. DELIVERY TERM
7.1 The delivery terms are stated in the Order Confirmation. Unless otherwise agreed in writing by the parties, the delivery terms are to be calculated with reference to the working days under the Italian calendar. The Terms indicated in the Order Confirmation are indicative and in case of delay in delivery the Purchaser shall not be entitled to cancel the Order.
7.2 Deliveries shall take place Ex Works (Incoterms 2000) at Piovan’s premises, S. Maria di Sala (VE). Therefore, if for any reason the Purchaser fails to accept delivery of any of the Products when they are ready for delivery, or the Company is unable to deliver the Products on time because the Purchaser has not provided appropriate instructions, documents, licenses or authorizations:
the risk in the Products shall pass to the Purchaser (including for loss or damage caused by Piovan’s negligence);
the Products shall be deemed to have been delivered; and
Piovan may store the Products until delivery whereupon the Purchaser shall be liable for all related costs and expenses (including without limitation storage and insurance).
7.3. The delivery term shall be deemed automatically extended in case of non- payment by the Purchaser of the agreed down payment, if any, or of even one installment or in case of amendments in the supply requested by the Purchaser after the execution of the sales contract.
8. WARRANTIES AND CLAIMS
8.1 Piovan warrants that its equipment and machinery (Guaranteed Products) are free from defects in design, material and workmanship under normal use and maintenance and comply with the specifications contained in the Order Confirmation sent to the Purchaser.
The warranty does not apply to material, software, semi-finished product or component or any other product which is incorporated or not into the machine, which is directly supplied by the Purchaser or by third parties who act, in any way, on behalf of the aforementioned.
8.2 The warranty hereof applies to the original Purchaser only, cannot be assigned and is limited to the repair or replacement, at no cost Ex-Works (Incoterms 2000) of the defective Guaranteed Products and/or parts; any extra costs relating to the repair or replacement of defective Guaranteed Products and/or parts at the Purchaser’s premises (travel expenses, lodging, etc.) will be borne by the Purchaser. Defective parts replaced under this warranty shall be returned to the supplier at the Purchaser’s expenses.
Any further express or implied warranty or remedy, whether by operation of law or convention including but not limited to any warranty of merchantability and/or suitability for specific purposes as well as any responsibility for direct, indirect, incidental or consequential damages being, to the extent permitted by law, are expressly excluded and waived.
8.3 The warranty shall be excluded in case of:
i) damage which derive directly or indirectly from designs, plans, information, software, documentation, directions, instructions, materials, semi-finished products, components or other material goods supplied by the Purchaser or by third parties who act, in any way, on behalf of the aforementioned.
ii) damages in transit and/or improper storage, installation, start-up, assembly, use, handling, repair, replacement or maintenance of the Products or failure to comply with Piovan’s instructions as specified in the relevant Service Book and/or any other documents which may have been submitted to the Purchaser;
iii) damages resulting from processing of unauthorized materials or ancillary equipment, part suppliers, fluids, lubricants, insulation, foundations, clearances and services;
iv) damages caused by improper or unstable services, such as cooling water, electricity, compressed air etc.;
v) damages caused by accident, fire, or other casualty or negligence not ascribable to the Principal normal wear and tear.
8.4 The Purchaser shall, subpoena of forfeiture, notify Piovan within 15 days of installation or 60 days of delivery ex-works (Incoterms 2000) – Piovan’s premises in Santa Maria di Sala (Venice -Italy), as a result of shipping documents, whichever comes first, of any incomplete or erroneous delivery as well as of any patent defects and/or missing, damaged or non-conforming Products discovered.
Likewise, in case of hidden defects, the same shall be notified to the Principal, subpoena of forfeiture, within 15 days of discovery.
The notice of complaint shall be in writing and contain the serial number of the defective Product or the relevant parts, the date of delivery, the date and place of installation and a detailed description of the defects discovered.
Unless otherwise agreed upon in writing, in no event shall a complaint be accepted after 24 (twenty-four) months from delivery as a result of the shipping documentation. In no event shall the warranty period hereof be suspended or prolonged because of idle time of the Guaranteed Products.
Unless specifically agreed in writing between the Parties, the Purchaser shall be exclusively responsible for the installation and assembly of the Products.
10. APPLICABLE LAW AND COMPETENT JURISDICTION
10.1 Unless otherwise agreed in writing between the Parties, the sales subject to these General Conditions are governed by the Laws of Italy, with the express exclusion of the 1980 Vienna Convention on Contracts of International Sales of Goods (except for articles 8 and 11 thereof, which shall prevail over any conflicting provision of Italian law).
10.2 Any dispute, which might arise in relation to these General Conditions and to each contract regulated by the same, shall be submitted exclusively to the Court of Padua (Italy), with the exclusion of any alternative grounds of jurisdiction.
11. FINAL PROVISIONS
Failure by one of the Parties to enforce, at any time, any of the provisions of these General Conditions or of the contract ruled by the same shall not be construed as a waiver of such provision or of the right to thereafter enforce each and every provision therein.