General Conditions Of Sale Of Fuchs Peter KG/SAS
With regard to and in conformance with Art. 1469 ff. of the Italian Civil Code, the parties hereto declare that the entire contract and each separate provision herein was the subject matter of discussions and agreements between them.
1. Scope – Type of Contract - Orders
a) Notwithstanding any deviations and amendments, each requiring written approval, the following Terms & Conditions of Sale (“Terms”) shall apply to all future client orders and/or written contract confirmations by the client, including any and all deliveries made by Fuchs Peter KG/SAS (“Fuchs”).
The following Terms shall be deemed accepted by and binding upon the client following written confirmation of a purchase offer made by Fuchs and/or a written order placed by the client.
b) Without prejudice to the fact that these General Conditions of Sale apply to all additional future deliveries, the parties expressly agree that each individual order brings the termination of each individual sale contract and that therefore the existence of a permanent and exclusive privity of contract is expressly excluded.
c) The parties expressly agree that the sale contract between the company and the professionals (professionisti) has been carried out and therefore any direct liability or liability from avenues of recourse of the consumer, is not applicable to the end user of the product. For this purpose the client shall inform the consumer of the content of the general conditions of sale if only to exclude the right of recourse pursuant to Art. 1519 quinquies of the Civil Code.
d) After written confirmation of the client of the written offer sent to him by Fuchs, this is consequently held to be accepted and irrevocable.
e) Direct orders by the client, which must be in writing and submitted to Fuchs by the client, constitute an irrevocable offer to purchase after three days following receipt of same by Fuchs. They are only regarded as accepted if confirmed in writing by Fuchs. Fuchs will confirm by mail, fax and/or e-mail.
f) The client states that he is aware that possible verbal agreements, negotiations, amendments concluded with the agents/employees/personnel of Fuchs are not binding after the contract with Fuchs has been entered into, if the latter submits confirmation of order in accordance with above clause 1e).
g) The onus for any errors attributable to faulty transfer of technical data, colours, dimensions, or materials etc. to Fuchs shall be borne exclusively by the client. In this respect, the client also declares its awareness that depictions and descriptions of the products in the brochures and other illustrative materials are merely indicators, and hence any variations in the product ordered compared to the promotional material shall not be deemed as defects or deviations. Fuchs shall retain exclusive rights to all brochures, drawings, advertising artwork, and the attendant immaterial rights thereto, including all documents incorporated into the offers and orders, such as illustrations, technical drawings, stated weights, and dimensions.
h) Fuchs reserves the option, at its own discretion, to accept possible requests for changes either submitted in writing by the client at the end of the three days deadline in accordance with clause 1e) and/or by receipt of written confirmation in accordance with clause 1d) and furthermore, taking into consideration the present production progress of the products ordered. The requests for changes must be submitted in writing; any requests which would entail full replacement of the product ordered, will be declined (aliud pro alio). Fuchs shall inform the client timely of possible acceptance of requests for changes, notwithstanding the condition that, should there be no response within two days after receipt of the relevant request, the latter must be regarded as declined. Possible expenses and other additional costs incurred as a result of the requested changes and/or additions will be charged exclusively to the client.
2. Prices – Delivery of the product – Obligations of the client
a) All prices are included in Fuchs current price list at the time of confirmation of the order/offer and are net of VAT. Unless otherwise agreed, the prices are “ex works Fuchs Peter KG/SAS – San Candido, Italy”, according to Incoterms 2000, and therefore do not include costs relative to transport, insurance and packing or any other expenses.
b) The prices quoted in the offers and confermation of orders refer exclusively to the products listed.
c) The delivery schedules stated in the purchase offers/orders are merely indicative and non-binding, whereby Fuchs shall be held harmless for any delays in delivery. In particular, Fuchs shall not be liable for failure to deliver for causes arising from events beyond its control, or incidences including third party actions not attributable to Fuchs, since the client is aware that certain supplies and raw materials used by Fuchs are obtained from third party suppliers. In any event, Fuchs shall not be liable for delays in delivery if such delay is due to modifications requested by the client and accepted by Fuchs. Furthermore, Fuchs retains the right to make partial deliveries, whereby any liability for delays involving products not yet delivered is excluded.
d) Regardless of special agreements delivery takes place “ex works Fuchs Peter KG/SAS – San Candido, Italy” in accordance with Incoterms 2000. The delivery date is regarded as fulfilled and met at the time of delivery of the products to the client by personnel of Fuchs or at the time of delivery of the products to the third party carrier.
e) Following delivery „“ex works Fuchs Peter KG/SAS – San Candido, Italy in accordance with Incoterms 2000 all liability and risk regarding the product is transferred to the client. This is also applicable if transport of the goods is handled by Fuchs on request of and instruction by the client.
3. Payments - Claims
a) Notwithstanding agreements to the contrary, payment must be effected without any deductions within and no later than the deadlines agreed upon by the parties and must be regarded as exhaustive and fixed in favour of Fuchs.
b) If the payment deadline is passed, interests shall be charged in accordance with Art. 4 and 5 of the Decreto Legislativo No. 231/2002, in conversion of the European directive No 2000/35/EC, amounting to the actual European EURIBOR six-month interest rate plus 7%, including any payment collection costs incurred.
c) Fuchs has the right to suspend or cancel the order or to modify the payment terms at any time, if in Fuchs’s view the client’s solvency status is anticipated to deteriorate. In the event the client has not fulfilled its payment obligations at the time of delivery of the goods (pre-payment of the amount due, preceding deliveries, or contractual securities), Fuchs shall have the option to subordinate delivery of the goods to the payment of outstanding invoices – without such an action obligating payment of certain amounts or damage claims to the client
d) In the event that the client defaults on punctual payment of the contracted amount, this agreement shall be deemed automatically cancelled. Thereafter, in case of agreed upon installment payments, the client forfeits such right without being specifically notified. Subsequently, Fuchs shall have the right to demand full payment of all deliveries made, under provison of the right to claim additional damages.
e) Payments must be effected at Alpiplast’s registered office.
f) Complaints or contenstations of any kind whatsoever do not entitle the client to suspend or delay outstanding contractual payments. In any event, the client may not file complaints or charges against Fuchs, until any and all suspended payments are made, including those for goods under dispute.
g) The client is obligated to check the goods immediately upon receipt, and to file notification of any defects in writing within eight days thereafter by fax or reply-paid registered letter, encompassing the shipment documents and a detailed description of the defect(s) involved. In the event of hidden damage, such notification must also be filed within eight days after discovery of the same. Fuchs shall not be held liable for any defects not reported within the stated deadline.
h) Guarantees in accordance with this clause are ruled out in the following instances:
1)defects resulting from incorrect transportation and incorrect storage of the products;
2)defects or deviations which can be attributed to incorrect order information by the client;
3)capacity of any software, interfaces, compatibility and similar.
i) Following such notification, notwithstanding any necessity to accept responsibility for the defect, Fuchs shall have the right to replace or repair the goods or reduce the price, at its sole discretion. Fuchs shall also have the exclusive right to examine the defective goods on site, or to request their return at the client’s expense. The defective goods may be returned to Fuchs only following its express consent.
j) The current warranty covers only repair of the defective goods. However, at the discretion of Fuchs, the goods may be replaced or their price reimbursed. Any other liability for direct or indirect damages, including loss of profits, is excluded.
4. Data protection code
a) In the context and with effect of Art. 13 of Decree No. 196/03 (Italian data protection code) the client states that he has been informed of the processing provisions and the purpose of the data processing in question as well as his rights in accordance with Art. 7 of Decree No. 196/03 and subsequent amendments. By signing these General Conditions of Sale the client explicitly confirms that he has received and taken note of the information mentioned above and, in view of the purpose contained therein, gives his consent in accordance with Art. 11 and in accordance with Art. 20 for processing, including the transfer and distribution of his data by Fuchs within the context of the aforementioned information.
5. Applicable law - Place of jurisdiction
a) Any question concerning the international sales agreemente entered into by the contracting parties not espressly or implicity resolved by these terms, shal ber regulated escusively by Italian Law
b) The parties hereto agree that Bolzano, branch Brunico, Italy shall be the exclusive place of jurisdiction for any and all disputes arising from or in connection with this agreement.
By express acceptance of the general conditions above, especially, as defined by Art. 1341 c.c. (Civil Code), the client hereby declares having read and especially acknowledges the provisions set under clauses 5a) and b) governing law and place of jurisdiction.