General sales conditions
Save as otherwise agreed between the Parties, the present General Sales Conditions (hereinafter called the “General Conditions”) together with the special conditions indicated in the order confirmation regulate all sales of products between Zhermak S.p.A.. (hereinafter called the “Seller”) and any buyer (hereinafter referred to as the “Client”) and, save any specific agreements in terms of exceptions in a written form, they will prevail over any other different clause inserted in forms or in any other documents used by the Seller and/or Clients (hereinafter jointly referred to as the “Parties”).
1.1 The object of sales regulated by the present General Sales Conditions are the products indicated in the price lists of the Seller (hereinafter called the “Products”) applicable when the purchase order is transmitted by the Client, with the specifications indicated.
1.2 Any catalogues or price lists sent will not constitute a formal offer by the Seller who will be free to modify the same at any time and without any obligation to provide notice.
2. ORDERS AND CONFIRMATION
2.1 Every Client’s order (hereinafter called the “Order”), to be sent to the Seller in writing, will be considered firm and binding for the Client until receipt of the relative confirmation by the Seller and, in any case, no later than 15 days from receipt. Written Orders sent by the Client will be considered received by the Seller by e-mail, fax or through its internet site (www.zhermack.com).
2.2 Orders will be considered accepted by the Seller upon receipt by the Client of an order confirmation issued by the Seller (hereinafter called the “Order Confirmation”).
2.3 If the Order Confirmation contains modifications compared with the Order, the modifications will be considered tacitly accepted following three working days from receipt of the Order Confirmation without the Client expressing his disapproval in writing.
2.4 The delivery of a quantity of Products that exceeds or is less than 5% compared with the quantity ordered and accepted is to be considered compliant with the Order.
2.5 Save the execution of orders following an Order Confirmation, the Seller may suspend and/or cease the production of Products at any time and without any notice if market and/or production requirements may so demand, without the Client having any right to make any kind of claim or demand.
3.1 Save any other agreements made in writing between the Parties, the prices of Products (hereinafter called the “Prices”) are the ones indicated in the Seller’s price list applicable when the Order Confirmation is issued.
3.2 Prices do not include transport, despatch or packaging costs of the Products and any other cost not specifically indicated in the Order Confirmation.
4. PAYMENT CONDITIONS
4.1 Payment will be considered due in cash, within 15 days from the invoice date.
4.2 Regardless of any agreements made between the Parties with reference to payment methods, any payment will be considered made or due in the Seller’s offices. The emission of bills or cheques will not be considered as valid payment. All costs related to stamping of bills and relative back charges will be borne by the Buyer.
5. NON PAYMENT OR DELAYED PAYMENT
5.1 In the case of a totally or partially delayed payment, the Client will be obliged to pay the Seller interest on the amount due and invoiced. This interest rate will be equivalent to the three month EURIBOR rate applicable during the period of interest on arrears increased by 8 points or, if higher, at the official interest rate applicable in the country of the Client at the time of non payment, increased by 10 percent.
5.2 If the Client delays a payment totally or partially, the Seller may suspend any pending delivery, rescind the relative contract and withhold any amount paid in advance as compensation, until payment of the damage agreed, without compromising the right to claim for further damages.
5.3 Total or partial non payment of even just one invoice by the Client, as well as the reduction of any possible guarantees provided, will automatically result in the loss of the benefit of the term with reference to any amount due to the Seller by the Client himself.
6. PROPERTY RESERVE
6.1 The Products will remain the property of the Seller until total payment of the Price by the Client and, in the case of payment by bills or cheques, until their successful conclusion. Nevertheless, the Parties agree that all risks deriving from the loss or from damages to the Products for any reason whatsoever will fall back on the Client from despatch.
6.2 The Client is obliged to sustain any possible cost necessary for registration of the reserved dominion pact, according to the law of the country in which the Products are located.
6.3 The Client has the right to resell the Products to third parties even prior to having made total payment of the Price. In this case, the Client is obliged to fulfil, at his own expense, all of the acts and formalities required according to local law in order to make the reserved dominion pact opposable to third parties. The Seller will automatically be substituted with regards to the Clients rights towards third parties and the profit deriving from sales, until total payment of the price, will be received by the Client on behalf of the Seller or directly by the latter.
6.4 The Client is obliged to inform the Seller within 24 hours of any executive or precautionary act performed by third parties to the Products subject to property reserve. In this case the Client will still be responsible with regards to the Seller for all costs or damages borne by the Seller due to such acts.
7.1 Delivery of the Products is to be considered Ex Works, (Incoterms 2000) Badia Polesine, RO, Italy. The Client undertakes to nominate a forwarding agent or a carrier within days from communication by the Seller to the Client that the Products are ready for despatch according to the expected despatch date indicated by the Seller in the order confirmation. If the Client does not nominate a forwarding agent or a carrier within this period of time or the forwarding agent or carrier nominated by the Client does not promptly collect the Goods ready for delivery, the Client will be obliged to pay the Seller, as indemnity for storage in the warehouse, an amount of 5% of the price of the Products purchased indicated in the invoice and calculated for every month or fraction of month of storage.
7.2 The delivery term agreed will be automatically suspended in the case of non payment or delayed payment by the Client as indicated in sub art. 5, or extended if the Client requests modifications to the supply, subsequently accepted in the Order Confirmation.
8.1 The Seller guarantees compliancy with the Order Confirmation as well as the absence of faults in the materials or production of the Products, as long as they are used in normal conditions of use. Save any different specifications made in writing by the Seller, the warranty will cover a 12 month period from the date of delivery of the Products and will not, in any case whatsoever, be suspended or extended due to lack of use of the Products, even if due to repair intervention covered by the warranty.
8.2 The Client will irrevocably waive any right to regression with regards to the Seller in accordance with article 131, paragraph 1 of the Legislative Decree n. 206 of 6th September 2005;
8.3 No other legal or conventional warranty will be provided by the Seller to the Client.
8.4 Within a reasonable period of time and, in any case, no later than 5 working days from delivery, otherwise the warranty will no longer be valid, the Client must carefully examine each Product in order to establish compliancy of the supply with the quantities and quality of the Products indicated in the Order Confirmation, and also checking the existence of any clear faults.
8.5 Within the following 8 days the Client is obliged to inform the Seller in writing, otherwise the warranty will no longer be valid, of the existence of faults or deformities in terms of the quantity or quality of the Products. After this period of time, the supply will be accepted without reserves by the Client, with the consequent waiver of the same to objecting to any clear fault of the Product as well as any fault in terms of quality or quantity to the supply.
8.6 The presence of hidden faults that cannot be noticed upon delivery should be communicated, otherwise the warranty will no longer be valid, within 8 days from their discovery as indicated for visible faults.
8.7 In the case of repeated supplies of Products with the same characteristics, the Client waives the right to any claim deriving from quality faults, if the same faults have been previously accepted without any objection having been made in writing.
8.8 If the Seller is involved in supplying the Products compliant with the sample sent to the Client, the Seller undertakes to use the same materials used in production of the sample, except for the tolerances due to changes in colour, the composition and other characteristics of the raw material.
8.9 In the event of sub 8.4 and 8.5, the Seller will have the right to examine the faulty Products at his own discretion.
8.10 Each controversy that may arise between the Parties in terms of the existence or the entity of defects or the lack of compliancy of the Products, will be referred to the exclusive competence of an independent expert nominated by the President of the Chamber of Commerce of Rovigo. The decision of this expert will be considered final and inappellable. The experts fees and costs related to technical controls will be paid in advance by the party requesting such control but they will be subsequently borne by the losing party following the results of the control.
8.11 In the case of recognition or a valid and rapid report of the defects by the Client, the Seller, at his own discretion and in compliance with its technical standards, may organise free repairs or replacement of the Product or of the fault parts of the same or, alternatively, reimburse the Client with the price paid for the faulty Product, without any further responsibilities.
8.12 No other form of intervention covered by the warranty and/or compensation may be requested by the Client, with specific exclusion of any responsibility in terms of direct, indirect, accidental or consequential damages that may derive from faulty and/or non compliant Products. The Client should specifically waive such compensation, within legal limits.
8.13 The warranty as indicated in article 8 will only cover material or production faults noticed during normal conditions of use of the Product. In no case whatsoever will the warranty be extended to defects caused by insufficient maintenance or storage, incorrect use or any use different from the relative instructions, normal wear and tear and/or repairs or intervention carried out by third parties without the written agreement of the Seller.
9. PRODUCT TRACEABILITY
9.1 In accordance with Annex VII of art. 4 of the Directive 93/42/CE with regards to medical devices, the Client undertakes to adopt a traceability system for the Products and to inform the Seller of any malfunction/deterioration of their characteristics and/or performance, as well as any poor instructions that may cause or may have caused death or serious damage to the state of health of a patient or of a user.
10. APPLICABLE LAW AND PLACE OF JURISDICTION
10.1 The sales indicated in these General Conditions are regulated by Italian law, with specific exclusion of the application of the Vienna Convention on International Sales Contracts of Goods (except for the specifications made in articles 8 and 11 of the Convention, that will prevail over any other prediction of Italian law).
10.2 For any controversy that may arise between the Parties with regards to the General Conditions and their sale regulated by the same, the Tribunal of Rovigo (Italy) will be considered competent.
11. FINAL CLAUSES
11.1 The circumstance that the Parties do not assert their rights recognised by one or more clauses of the present General Conditions or of the sales contract regulated by the same, cannot be considered as a waiver of such rights and it cannot prevent them from requesting compliancy.
The following regulation is solely applied to the sale of Products to clients based in Italy:
In accordance with the contents of articles 1341 and 1342 of the Italian Civil Code, the Client declares that he specifically approves the regulations contained in the following paragraphs: 2.1 (Waiver to the right to cancel orders); 2.3 (Acceptance of Orders); 2.4 (Tacit acceptance of modifications); 2.5 (Delivery tolerance); 2.6 (Suspension and discontinuance of production); 4.2 (Place and conditions of payment); 5.1 (Seller’s Rights in the case of delayed payment); 5.2 (Acceleration of payments due); 6 (Property Reserve); 7.1 (Warehouse costs); 7.2 (Extension to the delivery terms); 8 (Warranty and nomination of an independent expert); 10.1 (Applicable law); 10.2 (Place of jurisdiction), of the present General Sales Conditions.
HANDLING OF PRIVATE DETAILS (Legislative Decree 196/2003)
In accordance and following the effects of the Legislative Decree 196/2003 the undersigned declares having received the informative note as indicated in article 13 of the mentioned decree and having examined the rights granted by the same. Consequently, I also give my unconditional consent to the handling, communication and diffusion in Italy and abroad, also in countries that do not belong to the European Union, of personal data, including “Sensitive Data”. This will be used to catalogue, elaborate, preserve and register the same data in the archives of the company and also for reasons related to management, promotion, publicity, transmission of commercial and technical information, market research and, in particular, without any restrictive intentions, for all uses suitable to guarantee greater protection and safety of the goods purchased.