GENERAL TERMS AND CONDITIONS OF SALE
1. GENERAL PROVISIONS
2. OFFERS, ORDERS AND ORDER CONFIRMATIONS
3. PRICES AND TERMS OF PAYMENT
4. TERMS OF DELIVERY
6. DUTY TO INSPECTION AND ACCEPTANCE OF PRODUCTS
7. RIGHT OF INSPECTION
8. DOCUMENTATION AND CERTIFICATIONS
9. TERMS AND CONDITIONS OF WARRANTY
10. LIMITATION OF LIABILITY
11. DISCRETION OBLIGATION
12. PERSONAL DATA PROTECTION
13. APPLICABLE LAW
1. General Provisions
a. The terms and conditions set out below (the “General Terms and Conditions of Sale”) shall form part of all agreements executed between Gemmo Group S.r.l. and the Buyer for the supply of the products of Gemmo Group s.r.l. (the “Products”).
b. The General Terms and Conditions of Sale shall apply to all transactions executed between Gemmo Group s.r.l. and the Buyer, without any need of express approbation, being sufficient the reference to the same ones enclosed to the offer and available in the website www.gemmogroup.it.
c. Any different term or condition shall be applied only if previously written and agreed between the parts.
d. Gemmo Group s.r.l. reserves the right to change or integrate the General Terms and Conditions of Sale by enclosing them to the offers or to any other written communication sent to the Buyer.
2. Offers, Orders and Order Confirmations
a. Offers issued by Gemmo Group s.r.l. are valid for 30 (thirty) days as regards quantities and prices stated in them. The delivery terms shall not be considered binding because they depend on the moment of the receiving of the order and on the production loads. Example: if the offer is issued today and the order comes after 25 days, the date of delivery depends on the working load in that moment and will be stated in the order confirmation that will be sent (see “c”).
b. Gemmo Group s.r.l. produces following its operative instructions and drawings; therefore, Gemmo Group s.r.l. shall not follow the technical specifications or production requirements of the Buyer. In the case of drawings provided by the Customer, they will be re-drawn by Gemmo Group S.r.l., so for the construction of these pieces Gemmo Group S.r.l. will follow its standard production process.
c. Gemmo Group s.r.l. shall not send back orders signed for acceptance to the Buyer. The orders of the Buyer will be followed (usually within 8 following days) by the order confirmation of Gemmo Group s.r.l. (complete with all the elements of the contract according to the agreements specified in the offer – see a -) that the Buyer shall return WITHIN 8 DAYS, per fax or e-mail, stamped and signed FOR ACCEPTANCE. Gemmo Group s.r.l. will not accept modifications to its order confirmations under any circumstances; if mistakes are noticed on the order confirmation, the Buyer must contact the Sales Department to point out the mistake and, if acknowledged, a new order confirmation will be issued and sent to the Buyer to replace the incorrect one.
d. THE CONTRACT WILL BE EXECUTED ONLY WITH THE ACCEPTATION (as described in the previous letter “c”) OF THE ORDER CONFIRMATION. Gemmo Group s.r.l. shall accept telephone orders too, but only for spare parts and following the procedure and the conditions of previous letter “c”.
Gemmo Group s.r.l. reserves the right to suspend the production or anyway the delivery of the products until the order confirmation signed by the Buyer has been received.
e. Modifications of the contract shall be previously written agreed. Following the new agreement, the Buyer shall send the updated order that will be followed by the order confirmation of Gemmo Group s.r.l. and following acceptance, as ruled at the previous letter “d”. Otherwise, Gemmo Group s.r.l. does not take any responsibility for possible mistakes and/or misunderstandings.
f. Anticipations or postponements of the delivery dates (to be made according to the provisions of the previous letter “e”) shall be required with a notice of at least 8 working weeks. In any case, the goods shall be collected within the year of the scheduled delivery.
g. The agreed delivery date is indicative only and shall not be binding for Gemmo Group s.r.l., as it might be affected by delays of its suppliers.
3. Prices and Terms of Payment – Retention of Title
a. The prices of the products stated in the offer and in the order confirmation shall exclude any statutory VAT, which shall be payable according to the terms of payment stated on the order confirmation and on the invoice. All prices of the products of Gemmo Group S.r.l. written on the offer and on the order confirmation do not include packing and transport costs, unless otherwise agreed.
b. All money on account paid before the delivery are considered as earnest. Therefore, Gemmo Group S.r.l. will issue a single invoice after the production of the goods.
c. The terms of payment are those written on the order confirmation and on the invoice.
d. The terms of payment have effect from the ready good notice as stated at 4 letter “c”.
e. The payment of the Net invoice price shall be made free of any reduction.
f. Interest will be payable on late payments starting from the due date, in accordance with the Italian Legislative Decree 231 of 09.10.2002.
g. In the event that the Buyer fails to make payments within the agreed time and manner or is subject to seizures, protests and / or bankruptcy proceedings, or disposes of all or part of its assets to its creditors or reaches an agreement with its creditors for a moratorium on debt, Gemmo Group s.r.l. Shall, at its sole discretion, have the right to modify the conditions of payment or to suspend or cancel further deliveries and to declare all its claims arising from the business relationship as immediately due. Moreover, Gemmo Group s.r.l. may in such event request for anticipations on the payments or a warranty deposit.
h. The Buyer shall not be entitled to make any set-off, deduction or reduction, unless his claim to that effect have been definitively upheld in by a court of law.
i. Gemmo Group s.r.l. informs the Buyer that all the credit is insured and therefore, in case of failed payment, the recovery of the credit is made by the insurance company of Gemmo Group s.r.l. and the costs shall be charged to the Buyer.
j. The goods sold remain the property of Gemmo Group S.r.l. until full payment of the price and any accrued interest has been received. All risks regarding loss off goods resulting from e.g. theft, fire, or accident, pass to the Buyer on the date of delivery to the carrier, or when a written request is made to the Buyer to collect the goods.
4. Terms of Delivery
a. The terms of delivery shall be considered the date when the goods are ready at the shipping area of Gemmo Group s.r.l.
b. The agreed date of delivery, as written in the order confirmation, is approximate and not binding, as specified at point 2, letter “h”. For this reason there is a delivery tolerance period of 90 days during which Gemmo Group shall not be liable for the payment of penalty charges or compensation for damages. If there are any delays beyond said tolerance limit, the Buyer has the right to withdraw, subject to a formal written notice to comply within not less than 30 days. In case of withdrawal, the Buyer will have the right to secure repayment of advances paid to Gemmo Group s.r.l., with the exclusion of any compensation or other claim.
c. Unless otherwise agreed, the delivery of the products shall be EXW (Incoterms 2000) Gemmo Group s.r.l. Gemmo Group s.r.l. shall send a copy of the delivery note per e-mail or fax, stating the date of the ready goods. The cost and the organisation of the transport shall be at the expense of the Customer, unless otherwise agreed.
d. Gemmo Group s.r.l reserves the right to reasonably deliver in instalments.
e. The force majeure or other unforeseen incidents outside the responsibility of Gemmo Group s.r.l. including, without limitation, strikes, locks-out, acts of public authorities, subsequent cease of export or import opportunities shall, for their duration and in accordance with their impact, relieve Gemmo Group s.r.l. from the obligation to comply with any agreed time for delivery and release it from any responsibilities consequent a lacked or delayed delivery.
f. Gemmo Group s.r.l. does not accept the products return, unless otherwise agreed in writing. Any costs arising thereof shall be at the expense of the Buyer.
a. Gemmo Group s.r.l. packages, unless otherwise agreed, all its products with heat-reducing nylon and, in case of palletisable products, puts them on pallet.
b. The costs of the packing are written on the offers, order confirmations and invoices, and are always at the expense of the Buyer.
6. Duty to Inspection and Acceptance of Products
a. Upon taking possession of the products, the Buyer shall immediately :
check the quantities, integrity of the packing and conformity of the Products and inform the Sales Department of Gemmo Group s.r.l. about any anomalies within 24 hours. If the notification of defects of the packaging shall come out of the terms above, they shall not be considered.
b. In case of complaints regarding Product defects, the Buyer shall comply with the following procedures and deadlines:
1) the notification shall be made no later than eight working days from the delivery. In the event that the dispute is in relation to a hidden defect, the complaint must be made within eight days of it being discovered;
2) the detailed complaint regarding the defects shall be sent to Gemmo Group s.r.l. within the above mentioned deadlines via e-mail or fax or they will be considered null and void. Notifications made by telephone are not accepted;
3) the notice must clearly specify the kind of the alleged defects and photos must be enclosed, when possible;
4) the Buyer, when Gemmo Group s.r.l. requires him to do so, must agree to make the products available for inspection; such inspection shall be carried out by Gemmo Group s.r.l. or by any expert nominated by Gemmo Group s.r.l.
c. Any Product to which a dispute has not been raised in accordance with the procedures and deadlines set out above shall be regarded as approved and accepted by the Buyer.
7. Right of Inspection
a. Gemmo Group s.rl. gives the Buyer, upon notice, the possibility of inspecting the goods in production at its facilities.
8. Documentation and certifications
a. Gemmo Group s.r.l. gives the Buyer the possibility to require a copy of the operative instructions (recalled on the drawings starting from 18.07.2007), which describe the standard production process of Gemmo Group s.r.l. :
Operative instruction for the painting 7/5.3-IO1
Operative instruction for the fusion welding of metallic products, tanks, manifolds, jacks, oil dynamic cylinders 7/5.3-IO2
Operative instruction for heat-treatment 7/5.3-IO3
Operative Instruction for the Precision Grade of dimension, forms, pairing, threads and jacks spot-facing 7/5.3-IO4
b. For the end products (CE marked) destined for end users Gemmo Group s.r.l. will supply, and pack together with the product, a paper copy of the User’s Manual and of the CE Certificate. A copy of the manual in electronic format will be available in the Reserved Area of the website www.gemmogroup.it .
c. For the partly completed machinery (parts of machinery such as tracked undercarriages or motorised undercarriages) destined to be incorporated on complex machinery Gemmo Group will make the User’s Manual and the CE Certificate available on the Reserved Area of the website, from where the must be downloaded. www.gemmogroup.it .
d. Inside the User and Maintenance Manual there is also a Warranty and CE Conformity Certificate.
e. The Reserved Area is protected by a password. The Username and Password will be given to the Buyer while sending the delivery note (see 4.c.).
9. Terms and Conditions of Warranty
a. Gemmo Group s.r.l. warrants that the Products are free from defects and comply with the technical specifications stated in the offers and in the order confirmations.
b. Gemmo Group s.r.l. ensures the proper operation and the good quality of all the parts of its machines for the period indicated in the Warranty and CE Conformity Certificate (12 months unless otherwise agreed). If the machine is used more than 48 hours a week, the Manufacturer reserves the right to reduce the warranty coverage in due proportion. The warranty is limited to manufacturing defects and does not include normal wear and tear, the tools and other equipment supplied with the machine.
c. In the event of defects or non-conformity recognised by Gemmo Group S.r.l the latter, may, at his own choice., repair or replace the goods or reimburse part of the price paid by the Buyer Under no circumstances will monetary compensation exceed the price paid for the defective goods. Returned goods will not be accepted unless authorized in advance.
d. Parts that are obviously defective parts be returned to Gemmo Group S.r.l., with prior written consent, at the buyer’s expense. They must be returned together with a delivery note for repair, in which the problem regarding the part must be specified. The part will be made available the Buyer, repaired or replaced in the shortest possible time. Shipment and transport costs are always at the expense of the Buyer.
e. Breakages, defects and incorrect functioning caused by the following are excluded from the warranty and result in the termination of any obligations on behalf of Gemmo Group s.r.l:
• Wrong positioning or tampering of the machine.
• Inexperience, incorrect use, overloads.
• Lack of or insufficient maintenance.
• Delayed report of the detected defects.
• Different use from the established one.
• Any modifications or change made on the machine and on the attachments included in the delivery without the Manufacturer’s authorisation.
• Use of non original spare parts and/or lack of respect of the instructions given in the User and Maintenance Manual.
f. If, following repairs performed by Gemmo Group s.r.l during the warranty period it is found that failures were not attributable to Gemmo Group s.r.l., and therefore not covered by the warranty, all expenses, the cost of the replaced parts and labour will be charged to the Buyer. Any assistance and repairs to the products are always carried out at Gemmo Group s.r.l. premises which reserves the right of retention art. 2756 civil code.
g. In case of machine downtime due to faults, even if covered by the warranty, Gemmo Group s.r.l. is entitled to a reasonable time in which to carry out the necessary repairs and to eliminate the reported faults. No compensation for the damages due to machine downtime and no extension of the warranty period will be granted. No extensions for outstanding payments or requests for the cancellation of current agreements will be accepted.
h. In case of failures of a component during the warranty period, it is necessary to proceed as follows:
• Communicate promptly to Gemmo Group s.r.l. the type of damaged component.
• Gemmo Group s.r.l. Shall supply the Customer with a new component on consignment (transport is at the Customer’s expense) as soon as possible.
• The Buyer shall send the damaged component back, with a delivery note for repair, in which the problem with the part is specified and written authorization, within a maximum of 10 days from the receiving of the new piece. If the damaged component is not received by Gemmo Group s.r.l. within this deadline, it will no longer be covered by warranty.
• As soon as Gemmo Group s.r.l. receives the damaged component it will examine it or their supplier will examine it. Then a report regarding the cause of failure will be sent to the Buyer.
• If the failure is recognised as being covered by the warranty, the Buyer will be refund as follows:
– Gemmo Group s.r.l. will authorise the Buyer to issue a sales invoice for the failed component for the same value of the new previously supplied component invoiced by Gemmo Group S.r.l.;
– the broken part will be owned by Gemmo Group s.r.l.
• If the failure is not recognised as being covered by the warranty, the Buyer will pay the sales invoice for the new component and shall notify Gemmo Group s.r.l. in writing, choosing among the following possibilities:
1. ask for the return of the non repaired part;
2. ask for the repair of the part paying the relevant costs;
3. authorise Gemmo Group s.r.l. to scrap the part.
10. Limitation of Liability
a. Catalogues or other advertising materials of Gemmo Group s.r.l. are only an indication of the type of Products and the information contained herein shall not be binding. Gemmo Group s.r.l. assumes no responsibility for errors or omissions contained in its catalogues or promotional materials.
b. Gemmo Group s.r.l. will do everything in its power to deliver the products within the time agreed (if any) but under no circumstances will it be liable for any loss or damage whatsoever caused directly or indirectly by any delay in the completion of the contract or delivery of the Products.
c. The remedies provided for in these general conditions of sale are only the Buyer’s rights in the case case of justified objection raised in accordance with the provisions of paragraphs in 6 and 9.. In particular Gemmo Group s.r.l. shall not be responsible for any direct or indirect damage or loss of profit due to the use, the inability to use, or the incorporation of the products in other products, unless in the case of wilful misconduct or gross negligence on the part of Gemmo Group.
d. La Gemmo Group s.r.l. will accept complaints only directly from the Buyer.
11. Discretion Obligation
a. During negotiations and after the conclusion of the contract, the parties agree to keep the “confidential information” which they become aware during the contract secret.
b. “Confidential information “ refers to all tangible and/or intangible information, data, and paper and electronic documents, including all orally transmitted information concerning technical, sales and organisation aspects, that every part shall let know to the other part in connection with the agreement; information and data concerning the strategies of both companies, the development plans of new projects and new products, the production and organisational methods, the data and information regarding customers and markets and generally the documents (drawings, information files, specifications, etc.) and the knowledge, which represent the significant property of experiences and know-how and are reserved and in possession of both parties and vital information about the strategic plans, which every part would like to study and eventually to develop on the occasion of the agreement. The models, samples and prototypes are also object of “confidential information”.
c. The following information shall not be considered as “confidential information”:
– information which were already of public domain before the date of the beginning of the contractual negotiations;
– the parties are able to prove that they were already aware of them before the start of contractual negotiations;
– it is possible to demonstrate that they have been created and developed independently, without using information provided by the other party.
d. All “Confidential Information” either of Gemmo Group S.r.l. or of the Buyer:
• shall be used by both parties exclusively for the purposes and aims of the agreement, unless in case of derogations clearly granted in writing by both parties;
• shall be kept confidential by both parties within their own organisation, which shall be bound to the same confidentiality obligations and that cannot be transferred or divulged to a third party without the written permission of every underwriter of the agreement.
• the parties shall be directly responsible of the behaviour of their employees and collaborators in order to protect the discretion of Information.
• shall remain exclusively of property of the party which supplies it;
• the obligation of discretion shall have a validity of five years from the signing of the contract. All documents of every party in possession of the other party at the date of the cessation of the confidentiality obligation shall be given back to the subject who supplied them. Under written authorisation of the interested party, these documents can be destroyed under the responsibility of whoever possess them.
• unless otherwise agreed, the receiving party cannot claim patents on “innovations ” developed on the basis of of information supplied by the other party.
• each party must adopt all necessary measures in order to prevent the disclosure of “confidential information” and in particular, without limitations to the generalisation of the aforesaid, to allow the access only to employees and/or trustworthy collaborators, who are bound in advance to the same obligations of secrecy and confidentiality.
12. Personal Data protection
In accordance to the articles 13 and 23 of Legislative Decree n. 196/2003 containing provisions for protecting persons and other subjects regarding the processing of personal data, Gemmo Group S.r.l. confirms that the address, personal and identification data of the Buyer shall be entered and registered in the archives of Gemmo Group S.r.l. and treated according to the current legislation.
The purpose of the data processing is to complete and fulfill the contract and shall be performed in compliance with the above mentioned legislation and confidentiality obligations.
Data processing is performed through the operations or a number of operations indicated in the article 4, paragraph 1°, letter a) T.U., collection, recording, organization, storage, consultation, processing, modification, selection, extraction, comparison, use , interconnection, blocking, cancellation and data distribution.
The processing will be done buy both electronic and non-electronic means and instruments.
The provision of data is strictly necessary for the purposes listed above. Any refusal to supply such data will mean it will be impossible to fulfill the contract.
The personal data are not subjected to diffusion.
According to the article 7 of the Decree n. 196/2003, the Buyer can oppose data processing for legitimate reasons, to have free access to the data concerning him, and to verify the correctness and the use to which they are intended, possibly asking for them to be updated, amended or deleted at any time.
Personal data may be made known to those responsible for data processing and may be disclosed for the purpose of the contract to external collaborators or to the sales agents of Gemmo Group s.r.l. (such as branches, agents, representatives etc.) to the state tax authorities, to social security and insurance institutes, to credit institutes and in general to all subjects, for which the communication is necessary for the correct implementation of the intended contract purposes or to comply with legal requirements, with the possibility of transferring the data abroad (also outside of the European Union), where it is necessary in the scope of fulfilling the contract.
Owner of the treatment of the personal data is: Gemmo Group s.r.l., in the person of its legal representative pro tempore, Via della Tecnica n. 34, Noventa Vicentina (VI) – Italy.
13. Applicable Law
All the agreements executed between the Buyer and Gemmo Group s.r.l. shall be governed by Italian laws. In the event of international sales the 1980 Vienna Convention regarding International Sales will apply.