1.1 All sales entered into by MACTEC SRL, a company having its registered office at Via L. Einaudi 12, 61032 FANO (PU), ITALY, hereinafter referred to as the “Seller” or “Mactec”, in favour of any buyer, hereinafter referred to as the “Buyer”, shall be governed exclusively by the following general conditions of sale (“General Conditions of Sale”). Any clause or condition drawn up by the Buyer is ineffective if in conflict with the following General Conditions of Sale. The Seller shall provide the Buyer documentation relating to the Equipment. Such documentation shall be supplied to the Buyer exclusively in Italian and/or English.
2. Orders and Quotes and Delivery
2.1 Estimates issued by Seller, including the description, technical features and prices of the goods shall not in any case be considered as a binding sales agreement, but rather a quote.
2.2 Any order sent by the Buyer shall be construed as an irrevocable purchase proposal, which shall be valid from the date it was received by Seller, unless said term is explicitly extended by Mactec from time to time (the “Buyer’s Order”).
2.3 The Buyer’s Order must indicate the type and the quantity of the products to be purchased, Mactec product code number and description, requested time of delivery and the price.
2.4 The sending of the Order by the Buyer shall imply that the Buyer has read and is familiar with all these General Conditions of Sale, which shall consequently be fully accepted unconditionally and without restriction by the Parties.
2.5 Buyer’s Orders only become binding for Seller after Seller has sent a written order acknowledgement to the Buyer (the “Order Acknowledgement”) which shall include these General Terms and Conditions of Sale and the Buyer;
a) has received the Order Acknowledgement; and alternatively
b) accepts it in writing by returning the Order Acknowledgement duly signed or otherwise communicating its acceptance, also via email; or
c) does not notify the Seller in writing that it rejects or propose amendments to the Order Acknowledgement within five days of receipt thereof;
hereinafter referred to as the “Sale Contract”.
In the event of conflict between these General Terms and Conditions and the Order Acknowledgment, the specific conditions pursuant to the Order Acknowledgement shall prevail.
2.6 Any information or data relating to the technical features and/or specifications of the Products contained in leaflets, price lists, catalogues and similar documents cannot be referred as binding. Seller may make any change to the Products which appears to be necessary or suitable.
2.7 Seller shall not be liable for any errors or omissions contained in the catalogues.
3. Packaging and Delivery
3.1 The Equipment shall be packaged appropriately according to the standard protection method used by the Seller for the delivery taking into consideration the State to which the Equipment is delivered. Should the Buyer need particular packaging, it shall request it in writing to the Seller and the relating costs shall be borne by the Buyer.
3.2 Except as otherwise agreed in writing by the Parties hereto, delivery of Equipment shall be made by the Seller according to the ICC Incoterms® rule 2010 CPT (Carriage Paid To) the Place of Delivery agreed in the Sale Contract, it being understood that any alternative delivery term may be agreed upon in writing, using trade ICC Incoterms® rules and shall have the meaning given to it in the relative Incoterms® rule.
4. Price and Payment – Breach of payment obligation
4.1 Buyer shall pay to Seller, for the Equipment and for all obligations specified herein, as full and complete consideration therefore, the Total Amount agreed in the Sale Contract (hereinafter “Purchase Price”).
4.2 Payment of the Purchase Price shall be made by Buyer to Seller in the invoice currency in accordance with the payments terms and methods agreed upon in the Sale Contract.
4.3 Unless otherwise provided in the Sale Contract, the Buyer shall pay:
a) Twenty Percent (20%) of the total Purchase Price (the “Down Payment”) by wire transfer to a bank account indicated by the Seller, immediately upon Seller’s issuance of the relative proforma invoice.
b) Eighty Percent (80%) of the total Purchase Price, by Letter of Credit.
4.4 In case the Purchase Price shall be paid, in full or in part, by Letter of Credit (the “Letter of Credit”), the Letter of Credit shall be issued, within and by no later than 15 (fifteen) days from the issuance of the relating proforma invoice, by a primary Bank of the country of the Buyer, in compliance with the Publication UCP 600 of the International Chamber of Commerce, shall be irrevocable, and confirmed by a primary Italian Bank satisfactory to and accepted by the Seller.
4.5 The text of the Letter of Credit to be issued shall be accepted by the Seller before issuance and shall be payable by not later than ten working days following Final Performance test pursuant to Article 5 hereunder, or in the event that the Parties agree that the Equipment will not be installed by the Seller, upon presentation of documents attesting delivery of the Equipment pursuant to clause 3.2 above and against presentation of: i) the Seller’s commercial invoice; and ii) where applicable, the Final Acceptance Certificate signed by the Buyer or person appointed by it.
4.6 Should the Buyer fail to effect payment as agreed between the parties or to issue the Letter of Credit in accordance with the provisions of the preceding clauses 4.4 and 4.5, then the Seller shall be entitled, at its sole discretion and without incurring any liability for damages:
a) to terminate the Sale Contract and to retain any Down Payment already paid by the Buyer by way of partial compensation for expenses incurred by the Seller in connection with the Sale Contract and to claim further damages, if any; and/or
b) to refuse to deliver, in whole or in part, any Equipment not yet delivered or to postpone delivery until such time as all sums owed to the Seller by the Buyer have been paid; and/or
5. Installation, Start-up and Acceptance Test
5.1 If the Sale Contract provides for Installation to be executed by the Seller, this clause 5 shall apply.
5.2 Following delivery of the Equipment in compliance with clause 3 above, the Seller agrees to provide its qualified personnel, bearing all travel costs, to go to the site of installation of the Equipment to assemble and start up the Equipment (hereinafter “Installation and Start up”).
5.3 The Buyer shall be responsible for providing accommodation for the Seller’s personnel involved in the installation and start-up. Within 10 days from delivery, the Buyer shall also ensure that the installation site is ready for installation and provide all utilities, material and labour, services and facilities which are reasonably necessary to permit the Seller’s personnel to perform Installation and Start-up of the Equipment expediently.
5.4 The Installation and Start up and performance tests of and in respect of the Equipment at Buyer’s premises shall be carried out in accordance with the standards and principles normally applied in test runs of equipment of a similar kind, the terms “Start-up” shall mean the stage during which the Equipment is put into production for the purpose of testing its correct operation, which stage ends with the Final Performance Test. The Parties shall cooperate fully with one another to this end.
5.5 Once the Parties ascertain that the Equipment is fully functional and meets the technical specifications agreed during the Final Performance Test then the Buyer or third party appointed by Buyer will, upon Seller’s request, provide Seller with written receipt/acceptance of the Equipment (the “Final Acceptance Certificate”). In any event, the Equipment shall be deemed to have been accepted by Buyer upon expiry of 15 days from conclusion of Installation and Start-up.
5.6 Any of the Parties is entitled, at its own expenses, to appoint a third-party technician undertake the proper installation and start-up of the Equipment verified.
6.1 The Seller warrants and guarantees to the Buyer that for a period of 12 (twelve) months from the date of completion of the Final Performance Test (hereinafter the “Warranty Period”) the Equipment shall be free from defect in materials and workmanship and is in all respects in accordance with the specifications stipulated in the Sale Contract.
6.2 The Seller shall repair or replace, at its sole discretion, any defective parts. Where the materials used by Seller in manufacturing the Equipment have been manufactured by third parties and are themselves subject of warranties by said third party manufacturers, the Seller shall available to the Buyer the same warranties made available to the Seller by the third-party manufacturers in lieu of Seller’s warranty herein.
6.3 The Buyer acknowledges and agrees that the Seller’s warranty is expressly limited to manufacturing defects and the Warranty shall not extend to defects resulting from other causes, including, without limitation defects caused in whole or in part by damage in transit, by improper use, installation or maintenance of the Equipment as resulting from the technical and use manuals provided by the Seller (unless such installation or maintenance was directed, supervised or advised by the Seller’s personnel) or by any work done or any changes made to the Equipment by the Buyer or any third party without the Seller’s prior written consent or by ordinary wear and tear, nor shall the warranty extend to works, repairs or replacements carried out by Buyer or third parties without the Seller’s prior written consent in writing. This warranty is exclusive and in lieu of any other warranty whether written, oral or implied.
6.4 Any claim relating to defects in the Equipment must be made to the Seller in writing within 21 (twenty one) days following discovery of said defect and in any case shall be deemed waived if not made on or before the later of the following – i) twelve months following the date of delivery of the Equipment and ii) the expiration of the Warranty Period. Along with the claim, the Buyer shall send the Seller photos of the defect or photos proving the occurrence of the defect or the malfunctioning of the Equipment.
In addition, upon the Seller’s request, the Buyer shall:
a) communicate data relating to the Equipment and its use;
i) execute tests and analysis on the Equipment, upon Seller’s instructions, also through third party technicians indicated by the Seller;
in order to ascertain the status of the Equipment.
7. Limitation of Liability
7.1 The Seller’s warranties, guarantees and liability under and in connection with any Sale Contract are limited to those expressly set forth in this General Terms and Conditions. The Seller shall have no liability with respect to the Equipment. In no event shall the Seller by liable for loss of profit, incidental or consequential damages, direct or indirect losses of any kind (including personal injury and damage to property) or for any loss or damage resulting from mere recommendations given to the Buyer by the Seller. The Parties hereby acknowledge and agree that the Seller’s total liability arising out of and/or relating to this Agreement shall be limited in all events to the Purchase Price.
7.2 The Seller makes no representation or warranty as to the compliance of the Equipment with the applicable laws, safety regulations and/or technical standards of the country in which the Equipment is set up and used. The Buyer alone shall be responsible for ensuring that the Equipment complies with said laws, regulations and standards. The Buyer shall indemnify the Seller and hold the Seller harmless from and against any and all claims against the Seller and/or costs to the Seller arising out of or relating to any failure by the Buyer to ensure that the Equipment complies with the applicable laws, safety regulations and/or technical standards of the Country where the Equipment shall be used.
8. Training and Maintenance
8.1 The Seller provides training for the Buyer’s personnel on the use, maintenance and repair of the Equipment and provides the Buyer with operation manuals relating to the function, use and maintenance of the Equipment (hereinafter referred to as “Operation Manuals”). All costs and expenses relating to the organisation of such training shall be borne exclusively by the Buyer.
8.2 At the Buyer’s request, after the Warranty Period, the Seller shall supply the Buyer with technical assistance in relation to the Equipment at the rate currently charged by the Seller for such services at the Buyer’s request. All reasonable travel and living expenses incurred by the Seller in providing technical assistance pursuant to this clause shall be borne exclusively by the Buyer.
9. Confidential Information
9.1 The parties shall hold in strictest confidence any information and material which is related to either Buyer’s or Seller’s business or is designated by either Buyer or Seller as proprietary and confidential, herein or otherwise. It is understood that this confidentiality clause does not include information which: (i) is now or hereafter in the public domain through no fault of the party being provided the confidential information; (ii) prior to disclosure hereunder, is property within the rightful possession of the party being provided the confidential information; (iii) subsequent to disclosure hereunder, is lawfully received from a third party with no restriction on further disclosure; or (iv) is obligated to be produced under order of a court of competent jurisdiction, unless made the subject of a confidentiality agreement or protective order in connection with such proceeding, which the parties in all cases will attempt to obtain. Buyer and Seller hereby covenant that each shall not disclose such information to any third party without prior written authorization of the other.
10. Force Majeure
10.1 Neither Party shall be responsible to the other Party for any failure to perform, including without limitation late delivery or failure to deliver which failure to perform is caused by occurrences beyond said Party’s reasonable control (“Force Majeure Event”), including but not limited to, delivery or non delivery of materials by suppliers, suspension of or difficulties in transportation, strikes, lock-outs, labour disputes of any kind, fires, accidents, earthquakes and other natural events, riots, war (whether declared or undeclared) uprisings, delay of carriers, government seizures, embargos, laws or regulations of any political sub-division or agency (including government controlled export credit agency) or any government.
10.2 As soon as practicable after a Force Majeure Event and its effects upon a Party’s ability to perform become known to the same Party, said Party shall give written notice to the other Party of such impediment and its effect of the first Party’s ability to perform. Notice in writing shall also be given when the Force Majeure Event ceases.
10.3 The existence of a Force Majeure Event under this clause 10 relieves the Party failing to perform from liability for damages, penalties and other contractual sanctions in any. Should the Seller’s delivery be impeded as a result of a Force Majeure Event in the Destination Country, as long as and to the extent that the Force Majeure Event exists, the Seller shall have no responsibility whatsoever.
11. Applicable Law
11.1 This Agreement shall be governed by and interpreted in accordance with the laws of Italy and, in particular, the United Nations convention on contracts for the international sale of goods (CISG), signed in Vienna on April 11 1980.
12. Disputes Resolution
12.1 With respect to any dispute arising from the formation, rights or duties under, termination or enforceability of this General Terms and Condition or of any Sale Contract executed hereunder, all such matters shall be settled according to the provision of this clause 12. Within 30 days after a dispute is identified, the Parties shall use their best efforts to jointly seek an amicable resolution to the dispute.
12.2 In the event that such dispute, controversy or claim has not been amicably settled within the aforesaid term:
a) in case the Buyer has its registered office in a country which is not a State member of the European Union, the disputes between the parties shall be exclusively settled by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers’ Arbitration Institution in force on the date when the Notice of Arbitration was submitted in accordance with those Rules. The number of arbitrators shall be three.
The seat of the arbitration shall be in Lugano, Switzerland. The arbitral proceedings shall be conducted in English. The arbitration shall be conducted in accordance with the provisions for Expedited Procedure.
b) In case the Buyer 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 Pesaro (Italy).
12.3 Irrespective of the above, the Seller shall have the exclusive right to take any judicial action in the country of the Buyer, before the competent court.