General supply terms

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General supply terms




DATE     01st Jan 2008

REV. 01/08

1. Terminology and Definitions
For the purposes of these Conditions, the terms below are intended to mean the following:
Supplier: the firm Agazzi Giancarlo srl located in 9, via Manzoni – 24045 Fara Gera d’Adda (VAT number 02185900160) – hereinafter referred to as ‘Agazzi Giancarlo srl’ or, more simply, as ‘Agazzi’
Customer: any individual person of legal entity which purchases or agrees to purchase products and/or services from Agazzi Giancarlo srl
Parties: Agazzi and the Customer considered jointly
Product: that which is sold which the Customer purchases or agrees to purchase as described in  Agazzi Giancarlo srl documents such as offers and order confirmations.
Third  Party Product: a product that is not manufactured by Agazzi Giancarlo srl which is sold by Agazzi Giancarlo srl (e.g.  commercial parts)
Contract: agreement between two parties, the Customer and the Supplier, to transfer a good or a service in exchange for a sum of money (sale and purchase). This agreement is entered into when a purchase order is made by a Customer and the Supplier responds with an Order Confirmation.
Offer: the quantity of a certain good or service, either already existing or to be produced, which it is intended to put on sale at a given time, at a given price and for a given delivery date.
Purchase Order: the quantity of a certain good or service which is requested by a Customer at a given time, at a given price and for a given delivery date.
Order Confirmation: written acceptance of a Customer’s order by Agazzi Giancarlo srl.  

N.B.: these terms and the relative definitions are to be considered valid even if used, where applicable, in the plural form.
Moreover, hereinafter, the term “General Conditions of Supply” may be used in the abbreviated form “Conditions”.

2. Scope of application
2.1 Any contract signed by Agazzi for the supply of its Products and by a Customer shall be regulated, whenever they are mentioned in the documents that create those contracts, by these General Conditions of Supply which take precedence over those which may have been drawn up by the Customer and over any other past or present agreement and also over any other commitments and agreements that may have been entered into with that same Customer. Acceptance by a Customer of an Agazzi Offer or Order Confirmation, even when this occurs by tacit consent or by the simple performance of the contract by conduct, leads to the application of these Conditions to the contract. Exceptions to the content of these Conditions may only exist if there is common written agreement between the Parties and even in that case these Conditions continue to apply for those parts for which no exception is made. Any general conditions of purchase of the Customer do not apply, not even partially, unless they are expressly accepted in writing by Agazzi and in any case, even in the event of acceptance, those parts of these General Conditions of Supply which are not in contrast with those of the Customer (with the exception of the provisions of point 9.5, which shall remain in force in all cases) shall continue to apply.
2.2 Agazzi reserves the right to amend and/or change these General Conditions of Supply at any time, by furnishing a reference to the new version published on its website in the section “General Conditions of Supply” in Offer and Order Confirmation documents.
If a Customer is unable to gain access to an Internet connection to view these documents, Agazzi will send a hardcopy version, but only on written request.
These General Conditions of Supply and any amendments that may be made to them are considered as accepted by the Customer in the absence of written objection made within three days of receipt of the Order Confirmation.

3. Offers
3.1 Agazzi Offers are valid only if in writing and for a period of 10 days from the date of issue, unless otherwise indicated in the Offer itself.
3.2 Offers are to be considered as proposals to sell, which are not binding on Agazzi, to sell the good or service proposed in the Offer itself.

4. Purchase Orders
4.1 Purchase Orders are to be considered as requests by a Customer which are not binding on Agazzi to sell the good or service requested in the Purchase Order itself even if they have been issued in compliance with an Offer made beforehand by Agazzi.

5. Order Confirmations
5.1 Agazzi shall confirm the establishment of a contract by issuing an Order Confirmation. In the absence of objection from the Customer in writing within 3 days of receipt of the Order Confirmation, the Order Confirmation is considered valid and approved by the Parties and it shall therefore be binding. The contract between the Parties shall therefore only be established at the time when an Order Confirmation is issued by Agazzi and by the tacit, or signed, approval of the Customer.

6. Responsibility of Agazzi for information supplied on Products sold in relation to its catalogues.
6.1 The Customer declares that it has negotiated directly with Agazzi for each contract, receiving an adequate and exhaustive illustration of the technical and structural characteristics of the Product: the Parties therefore rely in no way on the weights, dimensions, capacities, prices, performances and any other data contained in the Agazzi catalogues, tables, circulars, announcements, periodical advertisements, illustrations and price lists, which are solely of an advertising nature, except in cases where an individual contract makes an explicit reference to them.

7. Product Modifications
7.1 With a view to improving and/or satisfying clauses in contracts, Agazzi reserves the right to modify the characteristics of Products and Services to be supplied, nevertheless guaranteeing at least a level of supply with regard to the technical characteristics and, where applicable, the functionalities, that is equivalent to that specified in the Order Confirmation.
In any case, Agazzi shall not make any significant modifications without the consent of the Customer.

8. Price
8.1 The price that must be paid by the Customer shall be given in the Order Confirmation and on the Agazzi invoice. The prices of the Products are always given exclusive of VAT and they are for the “goods alone” and not inclusive of packaging, shipping and particular quality control programme costs, unless otherwise indicated in the Order Confirmation.
8.2 For large orders with deferred delivery, Agazzi may make changes to sales prices due to changes in exchange rates, taxes, insurance, transport costs and expenses for purchases of raw materials.

9. Payment
9.1 Payments must be made in accordance with contractual agreements and within the time limits in those agreements.
9.2. If a Customer is late in making any payment whatsoever, Agazzi may suspend performance of its obligations until payment is made.
Failure to comply with the terms and conditions of payment similarly releases Agazzi from all delivery obligations, even with regard to goods other than those to which the failure applies, and that failure gives Agazzi the right to demand advance payment of all amounts due to it, unless it prefers to terminate the contract in accordance with point  9.3.
9.3. In cases where the Customer fails to pay for more than 30 (thirty days) following the due date, Agazzi has the right, with a simple registered letter, to terminate the contract, without prejudice to its right to retain, as  a penalty, all sums paid to it up to that time by the Customer for the Products and without prejudice to the right to the interest in accordance with point 9.4 and to compensation for greater damages.
9.4 If payment is not received by the agreed date, interest on arrears shall be charged to the Customer, following a written reminder, calculated on the sum due in an amount equal to the legal interest rate. Any expenses incurred to collect the debt and/or to repossess the Products shall be charged to the Customer.
9.5 A Customer may not raise objections of failure to perform by Agazzi if the Customer is not up-to-date with payments: any failures to perform by Agazzi do not allow the Customer to suspend or delay payments.
9.6 If goods are exported abroad, the Customer guarantees that the goods may be freely imported and formally agrees to make full payment for them, even if when the goods are actually imported into the country of destination limitations or prohibitions are imposed on that importation.
9.7 If a Customer does not collect Products at the contractually agreed time and place, the Customer must nevertheless make all agreed payments as if the Products had been delivered. In that case Agazzi will make arrangements to store them at the expense and risk of the Customer. Furthermore Agazzi has the right to compensation for damages and to reimbursement of all expenses it incurs as a consequence of the failure to collect the Products.

10. Ownership
10.1  Ownership of the Product is transferred to the Customer only when the price is paid in full. Until ownership is transferred, Agazzi has the right to repossess the Products supplied to the Customer, and therefore, in that case, Agazzi is granted access to the land or buildings of the Customer in which the Products are stored in order to regain possession of them.
10.2  If these Conditions are violated by the Customer, Agazzi may take back possession of the Products at any time before ownership of them is transferred to the Customer.
10.3  If the Customer transforms the Products not yet paid for into a new object or combines them with others in order to create a new object, Agazzi shall have the right of ownership over the new object in an amount proportional to the value of the products not paid for. This applies until the Products originally sold are not fully paid for.
10.4  If the Customer sells the Products not yet paid for, or the new objects resulting from them, the Customer transfers a part of its credit with the third party purchaser to Agazzi, that part being equal to the sums due for the goods not yet paid for.

11. Transfer of risk
11.1 When there is no specific indication concerning the method of transfer of the goods in an individual Offer and/or Order Confirmation, the Products are sold “ex works” (Incoterms 2000) with the point of collection at Agazzi’s premises. Therefore the assumption by the Customer or by those appointed by it or its representatives of the risk of the Products perishing, being damaged or lost commences when the goods are loaded, even if this is performed by Agazzi personnel and equipment.
11.2 Agazzi is not liable in any case whatsoever for the loss of or damage to Products after responsibility for bearing risks has passed to the Customer, which is in no case whatsoever released from its obligation to pay the price agreed for the supply according to the terms and conditions contractually defined.

12. Delivery
12.1 The date of delivery of the Products specified in the Order Confirmation must be considered as indicative. The methods of delivery (handover and transport) are, unless otherwise indicated on Agazzi contractual documents, “ex works” (Incoterms 2000) with the Customer responsible for loading and transport.
12.2  If a time limit on delivery is not agreed, the goods shall be delivered on the basis of programming and production capacity decided by Agazzi.
12.3 When the Customer, or another entity designated by it, must communicate processing specifications, technical data (e.g. drawings, indications of heights, etc.) or give other instructions for the preparation of the Products, the time limit for delivery of the Products shall be extended automatically for a period equal to the delay in communicating that information.
12.4 If modifications to the Products are agreed between the Parties subsequent to the issue of an Order Confirmation by Agazzi, the time limit for delivery shall be extended automatically by a period considered as reasonably necessary to make those modifications.
If a revised Order Confirmation is issued, the new delivery date indicated on it takes precedence.
12.5 Where administrative authorisations are necessary and required by the country of export and/or the country of import for the exporter of the Products (Agazzi or the shipper appointed to transport the goods), the delivery times agreed shall be extended automatically by the time needed to issue those authorisations and no objections against Agazzi may be made in relation to those extensions.
12.6 Penalties for delays are not accepted. Should the Parties agree in writing to penalties for delays in delivery by Agazzi, these may only apply if the following conditions are satisfied:
(i) Payments are made on time by the Customer;
(ii) requests for information needed to produce the Product are made in writing and in full by the Customer;
(iii) no requests for substantial modifications have been made by the Customer, while work is in progress on the Product.

13. Acceptance and right of rescission
13.1 The Customer may refuse to accept the Products only if there has been failure to comply with the contract, with communication made in writing to Agazzi within 8 days of the delivery, with the date of sending the communication certified; if this condition is not met the Products shall be considered as accepted.
In no case may Agazzi be charged for costs and/or expenses incurred by the Customer or by third parties in relation to tests and inspections of the Product and consulting services performed to ascertain failure of the Product to comply with specifications.
13.2 Agazzi shall verify the claims made within a reasonable period of time and if it accepts them it shall replace non compliant and defective Products in guarantee, with the limitations contained in point 14.
13.3 If prior to or during use of Products, a Customer learns of flaws or defects in Products purchased, or considers it reasonable to suppose they exist, then the Customer is obliged to cease all use of them immediately and to adopt all measures necessary to reduce the defects and/or not to make the defects and the damage caused by them worse. If the Customer fails to do so, Agazzi is released from all liability and the guarantee shall expire.
13.4 Unless otherwise agreed, the transport of a defective Product and/or its parts is at the expense of the Customer, following instructions from Agazzi on the type of packaging to employ.
If the non compliance of the Products disputed is also ascertained by Agazzi, the return of the replaced or repaired Product shall be at Agazzi’s expense; if it is not ascertained, the original Product shall be made available to the Customer with transport at the expense of the Customer.

14. Guarantee
14.1 The Guarantee described here is the sole and only guarantee of the Products released by Agazzi and it replaces all other guarantees, spoken or written, implicit or explicit, of the Products.
14.2  Materials and Processing
14.2.1 Agazzi guarantees the Products supplied, with the exception of Third Party Products, as free from production defects and defects in the materials used for a period of 12 (twelve) months from the date of delivery (“Period of Guarantee”).
14.2.2 This Guarantee does not apply in the following cases:
(i) defects in the design of the Product attributable to the Customer;
(ii) if defects in Products are the result of faulty installation, maintenance or repair or of modifications or repairs made subsequently by the Customer;
(iii) to Products subject to wear and tear;
(iv) if the defect is the result of external causes such as accidents, accidental events and unsuitable environmental conditions.
14.2.3 The Products or parts removed and replaced during repair are the property of Agazzi. The Products or the parts removed and not returned to Agazzi on request by it, shall be charged to the Customer.
14.2.4 With regard to Third Party Products, the Customer may benefit from guarantees granted to Agazzi by the constructor or supplier of those products.
14.2.5 Agazzi shall do what is reasonably within its power to resolve Customer claims in the minimum time necessary.
The repair or the replacement of Products in compliance with guarantee obligations does not involve any extension to the time limits of the Guarantee.
14.2.6 Agazzi shall not be held liable for direct or indirect losses caused by a defective Product and for loss of production by the Customer due to the time taken to solve the non compliance problem.
Neither shall Agazzi be held liable in any way or under any contractual or civil law obligation because of Product defects or  because of damages that may be caused by the defects to third parties because of failure to repair or replace the Products in a reasonable period of time.
14.2.7 If Products do not maintain their guaranteed characteristics as specified in the previous paragraphs during the Period of Guarantee, the Customer  must report those flaws and defects within 8 (eight) days of their discovery on pain of the guarantee becoming null and void. In that case Agazzi shall perform its obligations under the guarantee with the free of charge repair or replacement of those parts found to be originally defective.
14.2.8 Unless otherwise agreed in writing between the Parties, the travel and board and lodging expenses of personnel employed by Agazzi for the repair and/or replacement of defective Products are excluded from the Guarantee.
14.2.9 A report of possible Product defects, or the actual existence of them, does not release the Customer from its obligation to make the relative payments by the agreed due dates. Payments made in arrears result in any case in the immediate expiry of the Guarantee.
14.3  Suitability for the Purpose and Level of Performance
14.3.1 Agazzi does not provide any guarantee whatsoever that Products are suitable for particular purposes, or in other words that Products will attain particular levels of performance unless otherwise agreed in writing.
14.3.2  With the exception of that which is expressly stated in these Conditions, Agazzi does not provide any guarantee nor does it undertake any obligations, explicitly or implicitly, for the conditions, quality, performance, saleability, or duration of the Products or in relation to the violation of the rights of third parties, and consequently those guarantees are excluded entirely from these Conditions.
14.4 The replacement, or repair of a defect, mentioned in paragraph 14.2.7 is the sole obligation of Agazzi and the only legitimate right of a Customer resulting from this Guarantee; it excludes recourse to any other remedies that may be applicable by law.
14.5 Agazzi shall not be held liable in any way whatsoever for further and different guarantees issued by the Customer to third  parties, including, without limitations, any guarantees concerning the useful life and duration of the Products, of products produced with the Products or of products in which the Products are incorporated.
14.6 Any compensation whatsoever for damages made to the Customer may not in any case exceed the value of each single defective component of the Product and/or of the defective Product, except in cases of gross and wilful negligence.
In no case shall Agazzi be held liable to the Customer for:
(i) indirect or consequential damages such as loss of business, wages, compensation, data or savings.
(ii) any loss of profits for any type of economic damages (for the sole sake of example: machine down time and loss of production), for indirect, consequential damages, resulting from or in relation to the use, to the conditions, to the possession, to the performance, to the maintenance or to the  non delivery or late delivery of the Products even in cases in which Agazzi has been informed or has learnt of the damages in question.
(iii) losses that could have been avoided if the Customer had conducted itself differently.
14.7 Agazzi cannot be held liable for damages resulting from decisions made by the Customer to make particular use and/or employment of the Product and/or for events which occur, even as a result of the Product supplied, in the exclusive sphere of the Customer and/or over which Agazzi cannot exercise control, or which, in any case, cannot be unequivocally attributed to the direct and exclusive responsibility of Agazzi itself because of the absence of qualities promised for the Product.

15. Guarantee of compliance of Products with legislation and regulations in force
15.1 No guarantee is provided by Agazzi concerning the compliance of its products with legislation and regulations in force in the nation of the Customer, and this includes legislation and regulations concerning safety and accident prevention.
Agazzi guarantees that its Products comply with the European Union (EU) standards that may apply to them, including standards relating to safety and accident prevention, only in cases in which it is the owner of the intellectual property of the product itself and has not sold the design to the Customer. In that case responsibility for compliance with European Union (EU) standards, including standards relating to safety and accident prevention, lies with the Customer.

16. Intellectual property rights
16.1 Where applicable, copyright, patents, brands and any other intellectual property right relating to the supply  of Products remain the full and exclusive property of Agazzi, unless they have been sold for valuable consideration to the Customer.

17. Impossibility of performance
17.1 Neither of the Parties shall be liable for breach of contract caused by circumstances beyond their reasonable control (acts of God) inclusive of, but not limited to, strikes, terrorism and vandalism, war, problems relating to supplies and transport and manufacture, fluctuations in foreign exchange rates, government or regulatory actions, natural disasters  and the Parties shall have the right to a reasonable extension of the time needed for performance of the contract. In any case, if those circumstances should persist for a period of longer than 60 days, each of the Parties shall have the right to rescind the contract without any compensation due from the other party, by giving notification in writing.

18. General clauses
18.1 Reports of defects pursuant to points 13.1 and 14.2.7 must be sent with a description of the defects and photographs illustrating the problem to:
Agazzi Giancarlo srl
Via Manzoni, 9
24045 Fara Gera d’Adda ( BG ) – Italy
18.2 If Agazzi fails to exercise its rights, powers or remedies resulting from these General Conditions of Supply or if it delays in exercising them or partially exercises them, this must not be considered as an exception to them, nor may it preclude subsequent or future exercise of them.
18.3 The Customer may not transfer, transmit or in any way sell ownership of its rights under the guarantee without prior written approval from Agazzi. Any transfer, transmission or sale without the prior written approval of Agazzi is null and void and in any case without validity and effect. The Guarantee has effect and is binding between Agazzi and the Customer. If claims are made they may only be presented by the Customer and not by the customers of the Customer or by other parties.

19. Protection of personal data
With regard to the personal data that Agazzi has obtained from the Customer in relation to this Contract, the Customer acknowledges that it has been properly informed by Agazzi in advance in compliance with article 13 of Legislative Decree No. 196 of 30th June 2003. The personal data delivered by the Customer to Agazzi must be kept and treated in accordance with the law applicable and in compliance with Agazzi privacy policy.

20. Confidentiality
Each party must treat the information of a confidential nature received from the other party  in the same manner in which it would treat its own confidential information and in any case with a reasonable standard of diligence.

21. Termination
Each party may terminate this Contract if the other party:
(i) substantially or persistently violates these Conditions and does not remedy the violation within 30 days of receipt by the non performing party of a written warning to perform;
(ii) becomes insolvent or is unable to pay its debts when they are due.

Furthermore Agazzi may terminate the Contract with immediate notification in writing if the Customer:
(i) does not make payments for supplies punctually;
(ii) violates, or gives reason to suspect that it is violating, regulations on the control of exports.

22. Law Applicable and Jurisdiction
These Conditions are regulated by Italian Law and are subject to the sole jurisdiction of the Court of Bergamo. Nevertheless Italian law concerning the conflict of laws is not applied.
If part of the provisions of these Conditions are considered invalid or without effect by a court, this does not lead to the invalidity or lack of effect of the other provisions.
If legal action is taken, all communications must be made in writing and sent to the legal representative of each party at the address of their respective registered offices. The Geneva Convention on Contracts for the Sale of International Goods does not apply.

23. Transfer
Agazzi may sell, sub-contract or transfer its obligations and its rights, fully or in part, to a third party. The Customer may only do the same with the written consent of Agazzi.

Pursuant to and for the purposes of articles 1341 and 1342 of the Italian Civil Code and since these Conditions are mentioned in contract documents such as for example in Order Confirmations, the following clauses are considered as expressly approved by the Customer by the mechanism of tacit consent:
2. Scope of application
3. Offers
4. Purchase Orders
5. Order Confirmations
6. Responsibility of Agazzi for information supplied on Products sold in relation to its catalogues.
7. Product Modifications
8. Price
9. Payment
10. Ownership
11. Transfer of risk
12. Delivery
13. Acceptance and right of rescission
14. Guarantee
15. Guarantee of compliance of Products with legislation and regulations in force
16. Intellectual property rights
17. Impossibility of performance
18. General clauses
19. Protection of personal data
20. Confidentiality
21. Termination
22. Law Applicable and Jurisdiction
23. Transfer