1. Scope and Validity
1.1 These general terms and conditions of sale (“General Conditions”) shall govern all contracts for the sale of goods concluded between Neri S.p.A. or its affiliated companies (“SELLER”), and its customers having their place of business outside Italy (“CUSTOMER”), even if not expressly referred to or mentioned from time to time.
1.2 Provisions deviating from these General Conditions shall be binding on the SELLER only if included in the purchase order of the CUSTOMER (“Order”) accepted in writing by the SELLER. In no case shall any general conditions of contract of the CUSTOMER be binding on the SELLER.
2. Goods - Modifications
2.1 Any description or data relating to the goods, even if included in websites, brochures, catalogues, price lists or other documents of the SELLER is purely informational and will be binding on the SELLER only if referred to in these General Conditions or in the Order confirmed by the SELLER.
2.2 Before placing the Order, it is the responsibility of the CUSTOMER to make sure that the goods are suitable for a specific purpose and/or intended use, and that they comply with the laws and regulations applicable where the CUSTOMER will import, distribute or use the goods.
2.3 At any time, the SELLER will be entitled to modify, the goods for technical or commercial reasons or due to legal requirements, even after acceptance of the Order, provided that the CUSTOMER is firstly notified thereof.
2.4 The SELLER shall be entitled to discontinue, at any time and without notice, the supply of any product and, provided the essential characteristics of the models mentioned in the catalogue, to make price changes, changes of parts or details deemed suitable for further improvement or technical and/or commercial reasons.
3. Offers - Orders - Conclusion of Contract
3.1 Offers or quotations issued by the SELLER will remain valid for a period of 60 (sixty) days unless otherwise stipulated in writing.
3.2 The CUSTOMER shall place its Order in writing and shall submit it to the SELLER by fax or email. The Order shall include all the information relating to the goods ordered (e.g. product code, description, quantity, etc.) and the fiscal data of the CUSTOMER to be included in the invoice.
3.3 The Order shall be binding on the CUSTOMER when it is received by the SELLER. The Order shall be considered accepted by the SELLER (“Confirmed Order”) and the sale contract concluded if the SELLER has sent a written confirmation of the Order or has directly delivered the goods to the CUSTOMER. However, a simple confirmation from the SELLER acknowledging receipt of an Order does not imply the conclusion of the contract.
3.4 Any special instruction by the CUSTOMER (e.g. delivery requests, deadlines, payment terms, discount, etc.) are considered proposal by the CUSTOMER and shall only form part of the contract if accepted by the SELLER in its written confirmation of the Order.
3.5 Upon conclusion of the contract, changes to the same are only possible with the approval of the SELLER in written form.
4. Packing - Delivery term - Delivery time
4.1 The goods will be packed and set to ship in compliance with the standard protection methods generally adopted by the SELLER for the transport of the goods in question by land or by sea. The CUSTOMER shall request to the SELLER any special packaging or supplementary protection it deems necessary at least 15 (fifteen) days before the agreed delivery date, and in such event, the CUSTOMER will bear all related costs thereof.
4.2 Unless otherwise provided for in the Confirmed Order, the goods shall be delivered to the CUSTOMER in accordance with the delivery term Ex-Works (EXW) SELLER’s premises, S.S. Emilia 1622, 47020 Longiano (FC), Italy, Incoterms® 2010. The CUSTOMER authorizes the SELLER to undersign, in the name and on behalf of the CUSTOMER, all transport documents which shall be signed upon collection of the goods at the premises of the SELLER, such as the CMR. If the delivery term agreed between the parties provides that the CUSTOMER shall execute the formalities for the exportation and custom clearance of the goods, the CUSTOMER shall submit in Italy, to the competent authorities, any document proving the exportation of the goods (SAD-EX) and shall inform the SELLER as soon as such submission is accomplished.
4.3 The SELLER shall deliver the goods within the delivery date provided for in the Confirmed Order, in a single delivery or in partial deliveries. The delivery date shall always be considered approximate and not of the essence. Except in case of wilful wrongdoing or gross negligence, the SELLER will not reimburse possible damages, either direct or indirect, suffered by the CUSTOMER as a result of delay in the delivery of the goods. In no case of delay in the delivery of the goods shall the CUSTOMER be entitled to cancel the Order or to terminate the sale contract in question.
4.4 Upon receipt of the goods, the CUSTOMER must report possible shortages, damages or anomalies occurred during the transport, by notifying details of such events on the transportation document, and must also:
a) have such transportation document countersigned by the carrier; and
b) immediately inform the SELLER thereof, in writing, and send the SELLER a copy of the countersigned document by and no later than 3 (three) days from receipt of the goods.
Should this not be the case, the SELLER shall not be liable for any loss, theft or damage occurred to the goods during the transport, even if transport risks were, in whole or in part, upon the SELLER.
5. Prices - Payment - Late Payment
5.1 Unless otherwise stated in writing, the prices of the goods included in the SELLER’s price lists and/or offers are in Euro, net of VAT and for delivery according to the delivery term Ex-Works (EXW) SELLER’s premises, S.S. Emilia 1622, 47020 Longiano (FC), Italy, Incoterms® 2010. Therefore, should a different delivery term be agreed upon between the parties, the invoiced amount shall be modified accordingly. The SELLER shall supply the goods at the prices agreed in the Confirmed Order or, should no prices be mentioned in the Confirmed Order, at the prices resulting from the price list of the SELLER in force when the Order is placed by the CUSTOMER.
5.2 The CUSTOMER shall pay for the goods in accordance with the payments methods and terms provided for in the Confirmed Order or otherwise agreed upon in writing between the parties. In case no payment method and/or term is so agreed, the CUSTOMER shall pay for the goods by bank transfer at least 15 (fifteen) days before delivery. No payment shall be considered as being made by the CUSTOMER until the relative amount has been credited to the bank account of the SELLER.
5.3 If the CUSTOMER is delinquent in its payment obligation, the SELLER reserves the right, upon written notice to the CUSTOMER, to withhold ongoing and future deliveries until all delinquent amounts and late payment interest are paid. If delinquent amounts and late payment interest remain unpaid 10 (ten) working days after such notice, then the SELLER may also, at its option, cumulatively and in addition to any other right or remedy available at law or under these General Conditions:
a) request accelerated payment of any and all remaining payments and declare due the total outstanding balance - even if payment by instalment or deferred payment has been agreed upon and/or bills of exchange, promissory notes, cheques or other payment documents have been issued and are falling due - or, alternatively, terminate the sale contract in question and definitively withhold any amount received in regard to such contract or to other sale contracts, offsetting the CUSTOMER’s outstanding debt against all sums already paid by the CUSTOMER;
b) carry out future deliveries of goods on a pre-payment basis only;
c) cancel discounts and bonuses that may have been agreed between the parties.
5.4 The SELLER shall be entitled to exercise the rights mentioned in paragraph 5.3 above also in case the CUSTOMER:
a)is undergoing winding-up, bankruptcy, debt restructuring or enforcement proceedings;
b) loses, totally or partially, its insurance creditworthiness;
c) is undergoing financial difficulties capable of hindering the regular fulfilment of its payment obligations.
5.5 The CUSTOMER cannot claim any breach of contract by the SELLER, nor can the CUSTOMER start any lawsuit or action against the SELLER, until any amount resulting due to the SELLER under paragraph 5.3 above has been paid in full.
6. Retention of Title
6.1 The SELLER will maintain exclusive ownership over the goods sold until their price has been entirely paid by the CUSTOMER.
6.2 In case of non-fulfilment or late fulfilment of the obligation to pay the price of the goods, without prejudice to the rights under paragraphs 5.3, 5.4 and 5.5, the SELLER shall be entitled to enter the premises where the goods are held, re-possess the goods and withhold, as liquidated damages, any amount already paid by the CUSTOMER.
In case of non conformities or defects affecting the Products, the standard warranty available at www.neri.biz, at Warranty page, shall apply.
8. Intellectual property rights
8.1 If the goods are manufactured by the SELLER based on design specifications, drawings, models or other specifications from the CUSTOMER, the CUSTOMER shall indemnify the SELLER and hold the SELLER harmless in the event of any breach of proprietary rights and upon request from the SELLER, shall join the corresponding proceedings as a party or intervening party at the expense of the CUSTOMER and shall conduct the lawsuit to the SELLER’s benefit.
8.2 Offer and project documents as well as performance documents such as plans, sketches, and other technical documents as well as samples, catalogues, prospectuses, illustrations, etc. always remain the intellectual property of the SELLER and are subject to the applicable legal requirements as regards copying, reproduction, competition and the like.
9. Force Majeure
The SELLER shall not be liable for any failure or delay in fulfilling any obligations undertaken in reference to the supply of goods when such failure or delay is caused by circumstances beyond the SELLER’s reasonable control, including without limitation, by fires, earthquakes, floods, strikes, labor or employment difficulties, shortage of raw materials, restriction on the use of power, acts of public authorities or any other event or cause whatsoever, similar or dissimilar, which cannot reasonably be forecast or provided against and which cannot be overcome by the SELLER with ordinary diligence.
10. Applicable Law - Dispute Resolution
10.1 These General Conditions and all the sales that will occur on the basis on the same will be governed by the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980) and, with respect to matters not covered by such Convention, by Italian laws.
10.2 Any dispute arising out of or in connection with these General Conditions or in connection with a sale occurred on the basis on the same shall be settled in accordance with the following provisions:
a.In case the CUSTOMER has its registered office within the European Union, in Switzerland, in Norway or in Iceland, the dispute shall be subjected to the jurisdiction of the Italian courts and shall be exclusively referred for its resolution to the Court of Forlì (Italy).
b. In any other case, the dispute shall be exclusively referred to and finally resolved by arbitration, by a sole arbitrator, in accordance with the Rules of the Milan Chamber of Arbitration. The seat of arbitration shall be, and the award shall be delivered in, Milan (Italy).The language to be used in the arbitral proceedings shall be the English language.
10.3 Irrespective of the above, the SELLER reserves itself the unconditional right to initiate legal proceedings under the jurisdiction of the CUSTOMER, before the competent court.