GENERAL CONDITIONS OF SALE

Unless otherwise expressly provided for in the order or order confirmation of LONARDI CLAUDIO S.r.l. (hereinafter the “Seller”), the sales of the Products by the latter are governed by these General Conditions of Sale (hereinafter the “General Conditions”) which supersede any conflicting provision printed on the forms utilised by the parties or by the buyer (hereinafter the “Buyer”).

1.

1.1

PRODUCTS AND ACTIVITY

The Products covered by these General Conditions are those sold by the Seller at the time the order is placed (hereinafter the “Products”). Catalogues and promotional material shall not constitute an offer and may be modified by the Seller at any time without notice. The information and the technical characteristics of the Products contained in the catalogues, price lists, the promotional material and in the Seller’s internet website are indicative and do not bind the Seller.

1.2

Should the Seller be requested to manufacture the Products on the basis of technical documentation, schemes, specifications and/or drawings provided by the Buyer, the latter acknowledges that the Seller is only the performer of the instructions furnished by the Buyer and that the Seller is not the co-designer or the co-developer of the Products together with the Buyer.

Save for the hypothesis of non-conformity of the Products to the technical documentation and specifications provided by the Buyer or for defects in material and workmanship ascribable to the Seller, the Buyer will be therefore the only responsible for defects of the Products and for the relevant damages.

Should the Supplier be sued either for civil (including product liability) or for contractual responsibility or violation of law regulations (safety, pollution, etc.) as a consequence of the Products’ defectiveness, the Buyer will be obliged to indemnify and hold the Supplier harmless from each and every damage or cost which may derive to the Supplier in respect of the Products and the activity executed for the Buyer.

2.

ORDERS AND ORDER CONFIRMATIONS

2.1

Orders shall be made in writing and shall be firm for 10 (ten) working days from their receipt by the Seller. Orders shall be deemed accepted and binding upon the Seller only upon receipt by the Buyer of the duly signed order confirmation from the Seller.

2.2

Should the order confirmation contain modifications in respect of the order, such modifications shall be deemed accepted by the Buyer after five (5) days of receipt thereof unless notice of disagreement is given within the above period.

2.3

Seller shall have the right, even after confirmation of the order, to introduce any modification to the Products that it may deem necessary or appropriate, in accordance with the Buyer.

3.

PRICES

3.1

Unless otherwise indicated in the order confirmation, prices of the Products are those indicated in Seller’s prevailing price list as of the date of receipt of the order. Such prices are expressed in Euros, V.A.T. or other sales tax or duty excluded.

3.2

In case of substantial variations in the costs (in particular, without limitation, costs of materials and workmanship), or in case of any other fact or circumstance which may affect the price of Products, prices may be varied by Seller.

3.3

Unless otherwise agreed upon in writing, prices are for delivery EX-Works Seller’s offices in San Pietro di Legnago (Verona) (EX Works - Incoterms 2000) and do not include shipping, transport and insurance costs of the Products or any other material and/or any other cost after delivery in San Pietro di Legnago, which shall remain for the reseller’s sole account. Any special packaging is to be quoted separately by the Seller, as Products are supplied with standard packaging.

4.

PAYMENT

4.1

Terms and methods of payment are those indicated in the Seller´s order confirmation, unless subsequently modified by an express declaration of the Seller.

4.2

Irrespective of what set out in the order confirmation, payment shall be deemed effected at Seller’s offices. The delivery of bills of exchange, cheques or other negotiable instruments by the Buyer shall not be considered as payment nor determine the shifting of the place of performance or the novation of the original obligations. All costs for issuance of the bills of exchange, cheques or other negotiable instruments including all relevant banking expenses, are for the Buyer’s account.

4.3

Whenever a down-payment is agreed, same shall be paid by the Buyer at the time the order is signed. The down-payment shall not bear interest and will be promptly reimbursed to the Buyer should the relevant order not be confirmed by the Seller within the period specified in paragraph 2.1 above. 

4.4

In case of payment by instalments, the Buyer shall deliver to the Seller the required negotiable instruments (cheques etc.), together with any security which may have been agreed. Should the Buyer fail to honour even one instalment or diminish the security granted to the Seller, the latter shall have the right - without prejudice to what set forth under paragraph 4.6 hereunder in favour of the Seller - to claim for immediate payment of the entire outstanding amount with forfeiture of any term benefit.

4.5.

In case of payment by direct remittance, it shall be made by means of bank transfer via SWIFT  - value date in favour of  the beneficiary equal to the day on which payment is due – to the bank indicated by Seller.

4.6

In case of non-payment or delayed payment, in whole or in part, the Buyer shall be charged with interest at the rate provided for in Art. 5 of Italian Legislative Decree no. 231/2002. In such an event the Seller shall be further entitled to forthwith:

a)        suspend the production or delivery of any Products and orders in progress;

b)        terminate the relevant sale contract;

c)        claim for refund of all damages suffered as a consequence of the non-payment or delayed payment;

d)        retain the down-payment and any other amounts so far paid by the Buyer, without prejudice to Seller’s right to proceed for the recovery of any additional damages it may have suffered as a result thereof.

4.7

The Buyer shall not be entitled to suspend or delay any payment in case of  complaints, defects of the Products or delay in delivery by the Seller.

4.8

The Buyer shall act as an independent contractor purchasing the Products from the Seller and reselling them in its own name and behalf.

The sale of the Products from the Seller to the Buyer do not rise any exclusive territorial right for the Buyer and it does not grant the latter any right or title to be considered as distributor or concessionaire of the Seller.

The resale price of the Products will be freely determined by the Buyer.

5.

DELIVERY

5.1

Regardless of what agreed upon with respect to transport costs and/or any reference to the Incoterms and/or in the purchase order or order confirmation, delivery, identification of the Products and the relevant transfer of risks shall be deemed effected EX-Works at the Seller’ facilities in San Pietro di Legnago (Verona) (Ex-Works Incoterms 2000) with the loading of the Products onto the means of transport of the carrier entrusted therewith. If requested by the Buyer the loading of the Products can be made by the Supplier, it being nevertheless understood that the relevant costs and risk of damage of the Products during the loading operation shall be borne by the Buyer.

5.2.

Unless otherwise expressly agreed upon by the parties, all costs regarding delivery and shipment of the Products are borne by the Buyer.

5.3.

Time of delivery shall be calculated in working days and shall not be of the essence. Delivery periods are in no case less than 20 (twenty) days from Seller’s receipt of the order. In case down-payments are agreed, the relevant delivery period shall start from receipt by the Seller of the down-payment.

5.4.

Delivery may be suspended by the Seller

(i)                    in case of failure by the Buyer to effect the down-payment provided for in paragraph 4.3 or even the one instalment provided for in paragraph 4.5,

(ii)                  until all technical and administrative data and information required to properly fulfil the order are received.

5.5.

Should Seller be prevented from meeting any delivery date due to lack or delayed deliveries on the part of the suppliers, interruption or suspension of transport or energy, strikes or union agitations or by reason of any other event beyond its reasonable control, time of delivery shall cease to run from the day of communication of the impediment to the Buyer. In case the impediment of material deliveries lasts for more than 60 (sixty) days, each party shall be entitled to terminate the contract by giving written notice to the other, without any compensation or indemnity being due by the Seller which will have in any case the right to have the Products already manufactured for the Buyer at the time of the communication of the impediment, duly paid by the Buyer.

6.

INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS

6.1

The Buyer shall not register or assign the Trademark or any other Seller’s distinctive marks nor use the Trademark or other Seller’s distinctive marks, trademarks, names or expressions to register domain names and/or to build internet sites or web pages, even for the purpose of the promotion and resale of the Products. The Buyer cannot insert or display the Trademark and/or the Products on its own web sites or home pages. In case of express written authorisation by the Seller, the registration is to be considered as effected on behalf of the Seller and the Trademark and/or the domain name must, therefore, be assigned back to the Seller.

6.2

The Client acknowledges LOANARDI's exclusive right, titled or not also according to article 2598 of the civil code, and must keep strictly confidential and secret all information relating to the latter and to the know-how  as well as show-how utilised by LONARDI in the manufacture of the Products: consequently the Client cannot deposit or register, as its own or third parties exclusive industrial and intellectual property right, tangible and/or intangible assets such as inventions or technical solutions realised by LONARDI.

7.

NON-COLLECTION

Except as otherwise communicated by the Seller, the Buyer shall collect the Products on the day indicated in the order confirmation. After 10 (ten) days have elapsed without the Buyer having collected the Products, the Seller shall be entitled to forthwith terminate the sale contract by giving written communication thereof to the Buyer, save – in any case - for Seller’s right to claim payment of the penalty fee provided for under paragraph 8 herebelow, as well as compensation of any further damage it may have suffered as a consequence of non-collection of Products by the Buyer. The Seller shall be further entitled to definitely retain the down-payment and any instalments so far paid by the Buyer and sell the Products to third parties by giving notice to the latter of the terms and conditions of the sale at least 10 (ten) days in advance. Any difference between the contractual price (increased by any custody and preservation costs) and the price actually recovered from the sale shall constitute a debt of the Buyer and shall yield interest at the rate set forth in paragraph 4.6 above.

8.

PENALTY CLAUSE

In case of cancellation by the Buyer of a firm and/or confirmed order as well as in case of non-collection of the Products by the Buyer, the latter shall pay to the Seller a penalty fee equal to 20% (twenty per cent) of the value of the cancelled order and/or non-collected Products, without prejudice to Seller’s right to claim compensation of any further damages suffered in connection therewith.

9.

WARRANTY

9.1

Seller warrants that the Products are free from defects in and workmanship under normal use and maintenance and that they conform with the prototypes or drawings approved by the Buyer, should it be the case.

NO FURTHER EXPRESS OR IMPLIED WARRANTY, WHETHER BY OPERATION OF LAW OR CONVENTIONAL, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR SPECIFIC PURPOSES, IS GRANTED BY THE SELLER TO THE BUYER.

9.2

The warranty shall not apply in case of

(i)                    Products damaged in transit,

(ii)                  improper installation and/or assembly, use, application and/or maintenance of the Products,

(iii)                 damages caused by accident, fire or other casualty or negligence not ascribable to the Supplier,

(iv)                 failures resulting from modifications or alterations of the Products not effected by the Seller,

(v)                   damages occurred during repair and/or replacement operations not effected by the Seller,

(vi)                 normal wear and tear,

(vii)                damages incurred during Buyer’s default in payment.

9.3

The Buyer shall, subpoena of forfeiture, examine the Products immediately after arrival and notify, subpoena of forfeiture, the Supplier of any incomplete or non-conforming consignments as well as of any patent defects discovered by it and/or its customers without delay and in any case not later than 8 (eight) days thereafter,

clearly indicating the defective Product, the Product code, the relevant consignment lot and delivery date and the nature of the defect.

Likewise, hidden defects shall be notified, subpoena of forfeiture without delay and in any case no later than 8 (eight) days from discovery by the Buyer and/or its customers, clearly indicating the defective Product, the Product code, the relevant consignment lot and delivery date and the nature of the defect.

In no event shall the agents, buyers or intermediaries of the Seller be entitled and have the authority to represent and bind the latter towards the Buyer or any third party. For the purposes hereof any notice of complaint for defects in the Products will, therefore, be of no effect if made to the Seller’s agents, buyers or intermediaries.

9.4

The Buyer shall hold the defective Products at Seller’s disposal for a reasonable period of time in order to permit the inspection thereof and no returns are allowed without the latter’s prior written authorisation. Upon Seller’s request, the replaced parts shall be returned to the latter DDU San Pietro di Legnago (Verona) (Incoterms 2000).

9.5

Should any defect be notified timely and acknowledged by the Seller, it will repair or replace  - at its sole discretion - within the usual time required therefore the defective Products free of charge EXW LONARDI CLAUDIO S.r.l.  in San Pietro di Legnago (Verona) (Incoterms 2000), ANY OTHER INTERVENTION AND REMEDY AS WELL AS ANY RESPONSIBILITY FOR DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES BEING, TO THE EXTENT PERMITTED BY LAW, EXPRESSLY EXCLUDED AND WAIVED BY THE BUYER, INCLUDING, WITHOUT LIMITATION, THE RIGHT OF REDRESS PROVIDED FOR BY ARTICLE 131 OF THE ITALIAN CONSUMER CODE.

9.6

The warranty hereof shall be valid for a period of 6 (six) months  from the date of delivery of the Products and in no event shall the validity period of the warranty be affected by the non-use of the Products by the Buyer. It is however agreed that as to the components and/or products which are not manufactured by the Seller, the relevant  warranty of the Seller to the Buyer shall be limited to the content and the duration of the warranty given by the third party to the Seller.

10.

TERMINATION CLAUSE

Without prejudice to any express provision on termination contained in these General Conditions, the Seller shall have the right to terminate at any time the sale contract in case of breach or failure by the Buyer to perform or observe any material terms and conditions thereof, provided said breach or failure is not cured within 15 (fifteen) days of receipt of the relevant notice of complaint.

11.

RETENTION OF TITLE

All Products delivered by the Seller to the Buyer are subject to the retention of title clause hereof, although not mentioned in the relevant order confirmations or in other documents of the Seller.

The Products shall remain the property of the Seller until the invoiced price and any other pertinent obligation of the Buyer have been fully discharged by the latter. In case of lack of or delay in payment and/or breach of duty by the Buyer, the Seller shall automatically be entitled to terminate the relevant sale contract and/or claim back the Products without any notice period being due. In such an event the Buyer shall be under the obligation to immediately return the Products to the Seller.

As long as the property has not passed to it, the Buyer shall be bound to treat the Products with the utmost care, and to notify the Seller in writing and without delay of any levy of execution or interference by a third party and immediately inform in writing the third party of the existence of the retention of title in favour of the Seller.

12.

TAXES, COSTS AND TRANSFER OF RISK

Regardless of what may be agreed with respect to transport costs, discounts or other, and/or regardless of any reference to the Incoterms contained in the sale documentation of the Parties

(i)                    any cost, tax or duty relevant to the sale of the Products including the costs of all customs formalities (as well as duties, taxes, and other official charges payable upon exportation of Products from Italy and or importation into the territory of the Buyer) must be borne by the Buyer,

(ii)                  delivery, identification of the Products and the relevant transfer of risks shall be deemed effected at the Seller’s facilities with the loading of the Products onto the means of transport of the carrier entrusted therewith.

13.

GOVERNING  LAW

The sales contract ruled by these General Conditions shall be governed by the laws of Italy, the application of the April 11, 1980 Vienna Convention on  International Sale of Goods being expressly excluded (except for what set forth in Article 11 thereof  with respect to the form of the contract).

14.

COMPETENT JURISDICTION AND ARBITRATION

14.1

Any dispute between the Parties concerning supplies governed by any order and/or order confirmation of the Seller and/or governed by these General Conditions will:

a) in case of Buyers with registered offices within the European Union, be submitted to the sole jurisdiction of the Courts of Verona, Italy;

b) in case of Buyers with registered offices outside the European Union, be settled by  one or more arbitrators appointed in accordance with the Rules of Arbitration of the National and International Chamber of Commerce of Milan, Italy. The arbitrator or the arbitrating body will decide according to the law and the award shall be deposited by the arbitrating body at the Secretary of the Chamber of Commerce of Milan within 6 (six) months from the constitution of the arbitrating body. The arbitration proceedings will be held in Padova in the English language.

14.2

As a partial derogation to what set forth under 14.1 points (a) and (b) above, the Seller will have in any case the right to act, at its sole discretion, before the competent Court where the Buyer has its registered offices.

15.

FINAL PROVISIONS

15.1

Any sale contract ruled by these General Conditions may be amended only in writing, signed by each of the parties subsequent to the date of its execution.

15.2

Failure by Seller to enforce at any time any of the provisions of these General Conditions or of the sales contracts ruled thereby shall not be construed as a general waiver of such provision or of the right of the Seller to thereafter enforce each and every provision contained therein.

15.3

In the event any of the provisions of these General Conditions or any of the clauses of the sales contracts governed thereby will be declared null and void or ineffective or contrary to law, the remaining portions thereof shall continue in full force and effect and the offending portion shall be severed therefrom.