Sale of Filtrex S.R.L. Goods and services to a third party General. Terms and conditions
1. APPLICABILITY: These General Terms and Conditions (the “GTC”) shall govern all sales of Seller’s Equipment and/or Services (the “Goods”) to Buyer issuing a purchase order (the “Order”). The GTC supersede any prior written or oral agreement, understanding, representation or promise, and any standard terms and conditions contained in Buyer’s request for quote, purchase order, invoice, order acknowledgement, or similar document. The GTC may not be amended, supplemented, changed or modified except by concurrent or subsequent written agreement, signed by an authorized representative of Seller and Buyer. Seller’s acknowledgement of the Order shall not constitute acceptance of any terms and conditions contained therein, regardless of how such terms and conditions may be prefaced or described.
“Buyer” means the company who accepted Seller’s offer and is named in the Order.
“Seller” means Filtrex s.r.l. named in the Order .
“Equipment” means all equipment and parts purchased, manufactured and sold by Seller.
“Service(s)” means work, technical information and documentation, training, engineering design and other technical services furnished by Seller to Buyer.
“Goods” means Equipment and Services.
3. DELIVERY / SUSPENSION / FORCE MAJEURE:
Terms of delivery of the Goods are stated in Seller’s offer and, unless expressly stated otherwise, will be read and interpreted in accordance with the Incoterms 2010 definitions. In the event Buyer requests a delay or suspension in the completion and/or shipment of the Equipment or any part thereof for any reason, the parties shall agree upon any cost and/or scheduling impact of such delay and all such costs shall be borne by Buyer. For any delay period beyond thirty (30) days after the original scheduled shipment date, Buyer shall (i) take title and risk of loss of the Equipment, and (ii) make arrangements for storage of the Equipment with Seller or other party. Seller’s invoice, which is contractually based on shipment, shall be issued upon Seller’s readiness to ship the Equipment. Seller shall not be liable for any losses or damages of any nature and for delays in performance and delivery due to causes beyond its control including, but not limited to, acts of God, acts of government, acts of Buyer, fires, labor disputes, boycotts, floods, epidemics, quarantine restrictions, wars, insurrections, acts of terrorism, riots, interference by civil or military authorities, freight embargoes, transportation shortages or delays, unusually severe weather or inability to obtain necessary labor, materials or manufacturing facilities due to such causes. In the event of any such delay, the date of delivery shall be extended for a length of time equal to the period of the delay.
4. WARRANTY AND LIABILITY:
(A) Engineering Design. Seller warrants that such design shall be performed in accordance with accepted engineering practices and the engineering standards and codes agreed upon with Buyer. Seller total liability for the breach of this warranty shall be limited to reperforming, at its own expense, that portion of the work and services for which such breach has occurred, and provided that any claim or demand shall be made by Buyer in writing prior to (i) twelve (12) months after commencement of initial operation of the Equipment, or eighteen (18) months after the ready for shipment date, whichever is earlier.
(B) Material and Equipment. Subject to the limitations in Section 15 herein, Seller warrants that the Equipment shall be freefrom defects in material and workmanship, and that its title shall be good and it transfer toBuyer rightful. Seller shall remedy, at its own expense, any defect in material and workmanshipoccurring (i) within twelve (12) months after commencement of initial operation of theEquipment, or (ii) eighteen (18) months after the ready for shipment date, whichever occursfirst, provided that Buyer gives written notice of such defects within thirty (30) days afterdiscovery of such defects. Seller shall thereupon promptly correct such defects by repair orreplacement ex works Seller’s factory or service centre. Seller’s sole obligation and Buyer’ssole remedy under this warranty is repair or replacement at Seller’s election. Seller shall not beresponsible for any on-site costs, including removal and reinstallation of the Equipment. Buyeragrees to provide Seller reasonable and clear access to the Equipment which may includeremoval of materials or structures as well as supplying any labour, equipment, materials orstructures which are necessary to provide reasonable access to the Equipment being repaired orreplaced. All Equipment repaired or replaced will be rewarranted only for the remainder of theoriginal warranty period. THE EXPRESS WARRANTY SET FORTH HEREIN IS THEEXCLUSIVE WARRANTY OF SELLER, AND NO OTHER WARRANTY, EITHEREXPRESSED OR IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY ORFITNESS FOR PURPOSE, SHALL APPLY. Seller is not responsible for repairs or alterationsmade by others without written agreement between Seller and Buyer. Seller does not warrantthe Equipment or any repair/replacement part against the effects of erosion, corrosion, ornormal wear and tear due to operation or the environment. The warranty and remedies set forthherein are applicable only with proper storage, installation, use and maintenance of theEquipment in all material respects, and in accordance with Seller’s written instructions.
5. PAYMENT: All payments are net cash thirty (30) days from date of Seller’s invoice, unlessotherwise stated in Seller’s proposal, quotation, or offer. Should Buyer for any reason defaulton his payment obligations , Buyer shall pay all collection costs, attorney fees and expensesincurred in collecting payment, including interest on the amount due at the maximum ratepermitted by the applicable law. All transportation, insurance and similar charges relating todelivery shall be paid by Buyer. If Buyer’s financial condition is or becomes unsatisfactory toSeller, Seller reserves the right to: (a) require payment from Buyer on a Cash In Advance (CIA)basis; (b) require a letter of credit or other acceptable security before shipment; or (c) cancelshipment at any time prior to delivery of the Equipment without further obligation or liabilityon the Seller’s part.
6. CHANGES: Buyer may request modifications as to the amount, scope and/or nature of theEquipment to be supplied with a written change request. If, in the opinion of Seller, anymodification will affect the price and/or time of delivery, Seller will notify Buyer in writingand will not be obligated to perform any modification unless the changes in the price and timeof delivery are accepted by Buyer . Buyer shall confirm that such changes are authorized andaccepted by issuing an Order revision.
7. BUYER CANCELLATION: Buyer may cancel the Order only upon written notice andpayment to Seller of reasonable cancellation charges . Notwithstanding the foregoing, Buyerhas the right to cancel any portion of the Order affected by any insolvency or suspension ofSeller’s operations or any petition filed or proceeding commenced by or against Seller underany state or federal law relating to bankruptcy, arrangement, reorganization, receivership orassignment for the benefit of creditors.
8. SET-OFF: All amounts that Buyer owes Seller under the Order shall be due and payableaccording to the terms of the Order. Buyer is prohibited from, and shall not set-off suchamounts or any portion thereof, whether or not liquidated, which Buyer asserts are due to theBuyer, its parent affiliates, subsidiaries or other divisions or units under other transactions withSeller, its parent affiliates, subsidiaries or other divisions or units.
9. CONFIDENTIALITY, NON-DISCLOSURE AND RESTRICTION ON USE OFSELLERS’ INFORMATION: Buyer agrees that it will not i) use Seller’s data or informationfor the manufacture or procurement of the Equipment which is the subject of the Order or ofany similar equipment, or ii) reproduce said data and information without the writtenauthorization of Seller. Buyer agrees that it will not disclose or make available to any thirdparty any of Seller’s data or information pertaining to the Order which is proprietary to Sellerwithout obtaining Seller’s prior written consent.
10. OWNERSHIP OF DOCUMENTS, DRAWINGS AND SPECIFICATIONS. Buyer agrees that all drawings, specifications, software, and any other documents and materialsdeveloped by Seller in connection with the Order shall remain the property of Seller. Buyershall have the right to use the documents, drawings and specifications solely for the installation,operation and maintenance of the Goods furnished by Seller under the Order.
11. SPECIAL TOOLING AND TECHNICAL DATA: Unless otherwise agreed in writing,all material, software, data processes, equipment, facilities and special tooling, which termincludes but is not limited to jigs, dies, fixtures, molds, patterns, special taps, special gages,special test equipment, other special equipment and manufacturing aids and replacementsthereof, used in the manufacture of the Equipment covered by the Order shall be and remainthe property of Seller. Seller retains all rights, title and interest in drawings, engineering designspecifications, and all other written data furnished with the Equipment. Buyer shall have theright to use Seller’s technical data for the installation, operation and maintenance of theEquipment.
12. NON-COMPETE: Buyer its successors and assigns agree not to directly or indirectly competewith the business of Seller for a period of 10 years from the signing thereof.Buyer and its key persons will not directly or indirectly be involved in the sale, marketing ormanufacture of any items which are competitive with and/or similar to the Equipment andwithout prejudice to the generality of the foregoing not, in particular, to act as agent, seller, reseller,distributor or in any other manner or capacity for or on behalf of third partymanufacturing, distributing, selling or marketing of products competing with and/or similar tothe Equipment. The Buyer will not directly or indirectly acquire any interest in any firm,company or other undertaking which is carrying on a trade or other activity competitive orlikely to be competitive with the Seller’s business or distributing, marketing and selling theEquipment. The Buyer further undertakes that it shall not either on its own account or for anythird party directly or indirectly solicit, interfere with or endeavour to entice away from theSeller any customer who has had dealings with the Seller.If any provision or any part of any provision of this General Terms and Conditions is held to beenforceable, invalid, or illegal, than it shall be severable and deemed to be deleted and theremaining provisions shall remain valid and binding.
13. EXPORT / IMPORT: Buyer agrees that it will comply with all applicable import andexport control laws and/or regulations, including all jurisdictions from which the Equipmentmay be supplied or to which the Equipment may be shipped. In no event shall Buyer use,transfer, release, import, export or re-export the Equipment in violation of such applicable lawsand/or regulations.
14. TAXES: Seller’s price, unless otherwise agreed, shall be fixed and does not include, andSeller is not responsible for, payment of any taxes levied for sales, use, excise, value-added,goods and services, business (franchise or privilege) or any duties, charges or other such taxes.Seller is only responsible for any tax imposed on Seller, by tax authorities in Seller’sjurisdiction. If Seller is required to pay any taxes or other charges that are the responsibility ofthe Buyer, then Buyer shall promptly reimburse Seller those amounts.
15. ASSIGNMENT: Neither party shall assign the Order or any portion thereof without theadvance, written consent of the other party, which consent shall not be unreasonably withheld.
16. WAIVER / SEVERABILITY: Failure by Seller to assert all or any of its rights upon anybreach of the Order shall not be deemed a waiver of such rights either with respect to suchbreach or any subsequent breach, nor shall any waiver be implied from the acceptance of anypayment of service. No waiver of any right shall extend to or affect any other right Seller maypossess, nor shall such waiver extend to any subsequent similar or dissimilar breach.If any portion of the GTC are determined to be illegal, invalid, or unenforceable, for anyreason, then such portion shall be deemed stricken and all other provisions shall remain in fullforce and effect.
17. APPLICABLE LAW / DISPUTES: The Order shall be governed by the law of Italy.Seller and Buyer expressly agree not to exclude from the Order the United Nations Conventionon Contracts for the International Sale of Goods, 1980, and any successor thereto and theContracts (Rights of Third Parties) Act of 1999.Except as otherwise specifically agreed in writing by Buyer and Seller, any dispute which isnot resolved by the parties shall be adjudicated by a court of competent jurisdiction in Italy.
18. COMPLIANCE WITH LAWS / ANTI-BRIBERY: Seller and Buyer agree to complywith all applicable international laws, regulations, codes and standards and other jurisdictionswhere the parties conduct business. Additionally, Buyer has not and will not offer, promise,authorize or make, directly or indirectly, any payments (in money or any other item of value),contributions or gifts to any government agency, department, official or government owned orcontrolled entity in order to obtain or retain business, or secure
19. LIMITATION OF LIABILITY / EXCLUSION OF CONSEQUENTIAL LOSS: Theremedies set forth herein are exclusive, and the total liability of Seller with respect to theOrder, or any breach thereof, whether based on contract, warranty, tort (including negligence),indemnity, strict liability or otherwise, shall not exceed the Order price.In all cases where Buyer claims damages allegedly arising out of defective or nonconformingEquipment or Services, Buyer’s exclusive remedies and Seller’s sole liability shall be thosespecifically provided for under Section 4 .IN NO EVENT, WHETHER ARISING BEFORE OR AFTER COMPLETION OF ITSOBLIGATIONS UNDER THE CONTRACT, SHALL SELLER BE LIABLE FOR SPECIAL,INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANYKIND (INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUE OR PROFITS,INVENTORY OR USE CHARGES, COST OF CAPITAL, OR CLAIMS OF CUSTOMERS)INCURRED BY THE BUYER OR ANY THIRD PARTY.
20. GENERAL PROVISIONS: (a) No Action, regardless of form, arising out of transactionsunder the Order, may be brought by the Buyer more than one (1) year after the cause of actionhas accrued. (b) Any modification to the GTC must be set forth in a written instrument signedby duly authorized representatives of Seller and Buyer. (c) In the event Buyer has reason tobelieve the Equipment could be subject to a claim for damages or personal injury, Buyer shallimmediately provide Seller with written notice of such claim, and shall provide Sellerreasonable opportunity to inspect said Equipment and/or investigate the basis for such potentialclaim. (d) UNLESS OTHERWISE SPECIFICALLY PROVIDED IN SELLER’SQUOTATION, EQUIPMENT AND SERVICES HEREUNDER ARE NOT INTENDED FORUSE IN ANY NUCLEAR OR NUCLEAR RELATED APPLICATIONS. Buyer (i) accepts theEquipment and Services in accordance with the restriction set forth in the immediatelypreceding sentences, (ii) agrees to communicate such restriction in writing to any and allsubsequent purchasers or users, and (iii) agrees to defend, indemnify and hold harmless Sellerfrom any and all claims, losses, liability, suits, judgments and damages, including incidentaland consequential damages, arising from the use of the Equipment or Services in any nuclear ornuclear related applications, whether the cause of action be based in tort, contract or otherwise,including allegations that the Seller’s liability is based on negligence or strict liability.
21. TRANSLATIONS / GOVERNING LANGUAGE: English shall be the legal language ofthe Order, and all parties waive any right to use and/or rely upon any other language,translation or interpretation. The parties specifically agree that in the case of anyinconsistencies or interpretation disputes, the English language version shall control.