1 Contracting parties
SICA S.P.A. is a company with registered office at via Stroppata 28, 48011 Alfonsine (RA), that produces and markets machinery for the manufacture of plastic pipes for the following purposes: Haul offs, cutters, belling machines, ring inserters, palletizers, strapping machines, bagging-machines, coilers, threading-machines, slotting-machines, tanks for hydrostatic testing (PRODUCTS).
These General Conditions apply in relation to the sale of Products or the supply of services or provision of consultation provided by SICA S.P.A. (SICA, VENDOR or SUPPLIER) to the customer (BUYER or PURCHASER).
These General Conditions, offers, order confirmations and any attachments form the sole reference documents that regulate the relations between the PURCHASER and SICA, and hereinafter shall be defined jointly as a “Contract”.
2 General regulations
These General Conditions are an integral part of each Contract drawn up between SICA and the PURCHASER; these General Conditions shall apply unless otherwise agreed and accepted in writing by both parties.
Any addition or amendment to the Contract should be approved in writing in order for it to be considered binding.
The contract shall be deemed concluded at the moment when, upon receipt of an order by a possible PURCHASER, the PURCHASER receives from SICA an acceptance in writing. If, in drafting its offer, SICA has set a validity period, the PURCHASER should send the related Order within the said period, the effectiveness whereof is always subject to acceptance by SICA. The customer’s order is a firm and irrevocable proposal of his up to the confirmation.
These conditions render inoperative any clause to the contrary in any way drawn up by the PURCHASER, unless expressly accepted by SICA, and the said clause must be drawn up in writing.
All the offers presented by SICA are understood to be liable to changes without prior notice.
These general conditions apply whatever the PURCHASER’s nationality.
3 Delivery terms
Without prejudice to the provision set out in art. 9 of these General Conditions of sale, in the case of deferred payments of the price, ownership of the Products shall pass to the PURCHASER with all consequences when the goods are delivered.
The SICA’s Offer , or its order’s confirmation sent to the PURCHASER as acceptation, will contain the delivery term according to, unless otherwise agreed in writing, the ICC INCOTERMS 2010.
Unless otherwise agreed in writing the risks connected with products will be transferred to the PURCHASER from the moment to delivery on, that will be made according to the” EX WORKS” formula. This terms of delivery, like any others agreed by the Parties- shall be in accordance with the International Chamber of Commerce (ICC) Incoterms 2010 edition. In any case, from the moment of delivery on, all the risks and costs connected with Products delivered shall be at the PURCHASER’s expenses.
Products transportation until final destination shall be entirely at PURCHASER’s expenses. SICA shall not subscribe any transport agreement and shall not ensure Products without specific order given by the PURCHASER and at PURCHASER’s risk and expenses. If SICA has provided the Products transportation or has included transportation fees in sale prices this does not change time and place of delivery as set above.
In the case where the PURCHASER requests and is granted a deferment, the delivery terms shall have an irreducible penalty of 0.5% of the agreed price applied thereto for each week’s delay, from the start of the third week.
If the PURCHASER does not collects the goods within 15 days from the date set, SICA is entitled to, alternatively and at its own discretion, apply the above mentioned penalty or terminate the Agreement.
The Products shall be considered to have been accepted by the PURCHASER after a period of 10 days for checking the Products. SICA shall not be held liable for any delay or failure to deliver with regard to the Goods if this is due to events beyond its control (including the case of company strikes) provided that the PURCHASER is notified promptly, as regulated under paragraph 11 below.
In any case, if the delivery terms are exceeded in any way, this may not be a reason for cancellation of the orders in progress, blocking of payments, refusal to take delivery and does not give rise to entitlement to claims for compensation for damages.
Unless otherwise set out, the prices stated in the price lists and catalogs should be applied to non-packed equipment.
The prices stated in the offers and in the contract shall include, if necessary, the cost of packing and protection required only for normal travel conditions against damage and deterioration to the equipment before it reaches its correct destination, as set out in the contract. Specific packing prepared on request shall involve an additional cost, that shall be paid by the customer.
5 Drawings and ownership of graphic documents
Weights, dimensions, capacities, prices, performance estimates and other details appearing in the catalogs, brochures, circulars, advertisements, illustrations and price lists are for information only. These details have a binding value insofar as they are expressly stipulated in the contract.
Any drawing, document, technical information or software relating to the manufacture or assembly of the machinery, as well as those relating to parts thereof, and any other drawing, document, technical information or software of SICA sent to the PURCHASER before or after the contract has been drawn up remain the exclusive property of SICA. These drawings, documents, technical information or software may not be used by the PURCHASER for purposes outside the contract, or copied, reproduced, transmitted or disclosed to third parties without consent in writing from SICA. It is, however, set out that the aforesaid documents shall be the property of the customer:
a) if expressly agreed, or
b) if they refer to a previous separate development contract on the basis whereof there was no reservation of ownership of these drawings or documents to SICA.
Installation and inspection of products may be carried out according to one of the following methods, unless otherwise stipulated on the order confirmation:
1) one week before delivery, the customer, at his own expense, sends his own engineers to the plant of SICA to check the full operational capacity of the products together with the engineers of SICA.
2) SICA sends its own engineers, at the purchaser’s expense, to the latter’s plant to perform ‘in-situ’ the installation and inspection of the products delivered.
7 Technical assistance
Unless otherwise agreed in writing, the technical assistance work SICA is requested to carry out is to be understood to be paid by the PURCHASER. If SICA accepts a technical assistance work and after is not able to respect the execution time, PURCHASER is not entitled to ask any compensation/indemnity if the delay is less than 21 days (Grace period). In any case, at the end of the Grace period the PURCHASER is entitled only to terminate the Agreement concerning the technical assistance work previously agreed without any right to ask further compensation.
8 Prices and terms of payment
The contract price shall be the price stated on the accepted Order in writing by SICA through its order’s confirmation.
All prices are understood to be “Ex Works” net of VAT and exclusive of shipping and packaging costs, unless otherwise agreed. Any sales taxes, local taxes, charges and duties, as well as insurance costs on freight and transport costs shall be the responsibility of the PURCHASER and shall be debited thereto.
SICA, at its own discretion and taking into account the internal productivity and work organization conditions, applies variations to the prices of the Products on the basis of the status of the main cost items as derived from official reports. In the tenders, SICA states the periods within which the proposed terms are to be considered valid.
The agreed payment, unless otherwise stated on the Order’s confirmation, shall be regulated as follows:
– 30% at the time the order is signed as payment on account;
– 60% before the Products are dispatched
– 10% at the time the Products are delivered.
In the event of a breach by the PURCHASER, SICA may withhold the payment on account by way of compensation for damages. If the payment on account is not made, SICA may consider in any case the order to be null and void.
All payments should be considered due at the moment SICA’s invoices are presented, without any discount whatsoever on the amount.
Payment shall be understood to be made at the date when the amount owed is effectively credited to the VENDOR’s account. The latter may accept cheques and bills of exchange only after special agreement in writing. All possible costs, charges for collection or discount that may be owed shall be the responsibility of the PURCHASER, who should repay them without delay and merely upon request.
In the event of late payment or failure to pay, including one single installment of the price, interest on arrears shall be applied at the rate set out in Leg. D. 231/2002, art. 5 and subsequent amendments and additions.
Breach of any payment term, as well as the existence of a protest or circumstances arising that could give rise to serious doubts about the purchaser’s solvency shall, fully in accordance with the law and without the need for placement in arrears, lead to lapse of the term, and as a result immediate requirement of the sum still due for any reason as well as suspension of all further deliveries or supplies.
In the event of financing by leasing, the PURCHASER shall sign the contract with the leasing company at least 30 (thirty) days prior to the date of the planned delivery, submitting this order to the leasing company. At least 20 (twenty) days prior to the date of planned delivery of the product, all the documents relating to the leasing contract should be sent to SICA; subsequently the “record of inspection and acceptance of delivery”, signed by the PURCHASER at the time the PRODUCT is delivered, that shall oblige the leasing company to make payment, shall be attached.
In the event of failure to submit the documents required for payment by leasing, SICA may consider the order to be null and void or execute the contract with the PURCHASER.
9 Reservation of ownership
Under the terms of art. 1523 et seq. of the Civil Code, in the event of deferred payments, the Products delivered remain the property of SICA until full payment of the price, as well as costs and expenses, In the event of breach or insolvency of the PURCHASER, SICA shall be entitled to obtain restitution of the Products that may already have been delivered to the PURCHASER, and whereof it never ceased to be the owner.
SICA guarantees that the Products supplied are in conformity with the agreed features. The PURCHASER, under penalty of lapse, must report to SICA any operating defect within 15 days from delivery or 30 days of discovery thereof (or wherefrom he could have discovered it by means of a precise examination and test of the Product).
The guarantee validity period is, in any case, 12 months and starts from the date of delivery of the products to the PURCHASER.
The PURCHASER shall be entitled to have use of this guarantee only if he fulfills all the payments and obligations with the Vendor, including payment’s obligation.
In the terms stipulated, SICA undertakes to deliver Products in conformity with the agreement and free of defects that would make them unsuitable for use in the way products of this type would normally be used.
SICA is not liable for defects of conformity of the Products and defects caused by non-observance of the regulations set out in the instruction manual and in any event by misuse or mishandling of the machine. Nor is it liable for defects of conformity and defects that result from incorrect use of the Product by the PURCHASER or from the latter having made changes or repairs without prior consent in writing from SICA.
In the case of products dispatched disassembled, that must be assembled by SICA, every guarantee is considered to have lapsed if the assembly at the PURCHASER’s plant is not carried out directly by SICA or at least under the control of its specialized personnel.
SICA is not liable for defects of conformity of the products and faults due to normal wear and tear of the said parts, that by their nature are subject to rapid and continuous wear. In no case is SICA liable for defects of conformity and faults that are caused by an event attributable to the PURCHASER after the transfer of risks.
When the PURCHASER requests the supply of a Product with variations of any type and size compared with the product shown in the SICA catalog, (or in any event requests a custom-made machine), he should notify SICA in writing with regard to the drawings, technical documents, details and any other instructions, including the geometric structure and type of material forming the walls of the pipes to be manufactured, and it is understood that SICA shall be obliged to deliver a Product in accordance with these variations only if they have been confirmed in writing by SICA.
The guarantee provisions are, at SICA’s discretion and conditionally on recognition of the fault/defect, limited:
a) to repair of faulty products;
b) reduction in purchase price;
c) replacement of the Products.
For all products purchased by secondary suppliers, SICA shall be liable only within the limits of any guarantee obtained by the secondary supplier himself.
11 Act of God
The period of delivery shall be extended by a period equal to that of the length of the obstacle, when events occur that are beyond the control of SICA, such as fires, wars (even if not declared), general mobilizations, uprisings, seizures, restrictions on the use of power, disturbances in transport, strikes of any kind, lock-outs, production shutdowns and defects or delays in deliveries by suppliers, and other obstacles beyond the control of the parties, that make delivery temporarily impossible or excessively difficult. On learning about the obstacle, SICA shall notify the PURCHASER, within a reasonable period, of the existence of the obstacle and its likely effects on the obligation of delivery. Similarly, SICA shall notify the PURCHASER when the obstacle is removed. In none of these circumstances that arise which may delay delivery or make it completely impossible, may the PURCHASER demand from SICA compensation, indemnity or damages of any kind.
12 Liability for delay in delivery
If SICA delivers the goods later than the agreed time, the PURCHASER may make no claim by way of compensation since this date must be understood to be merely for guidance purposes and only in the interest of SICA as stated in paragraph 3.
13 Report of defects of conformity and limitation of liability
On penalty of lapse, the PURCHASER should report the defect of conformity or the fault to SICA within 15 days from delivery or within 30 days from discovery (or wherefrom he could have discovered it by means of a precise examination and test of the Product) if related to hidden defects, in any event specifying in detail in writing the nature thereof. In no case may the report of the defect of conformity or fault, however, be made with validity after the date of expiry of the guarantee terms stated under paragraph 10 or of those otherwise agreed between the parties.
The guarantee set out in this clause incorporates and replaces the guarantees or liabilities stipulated by law, and excludes all other liabilities of SICA in any way caused by the goods supplied. In particular, the PURCHASER may not put forward any claims of compensation for damages, price reduction or cancellation of the contract, exempting SICA from any liability for indirect damages (eg. those resulting from loss of production). At the end of the guarantee period, no claim may be put into effect against SICA.
SICA’s liability is limited to cases of gross negligence or fraud and relates only to damage to the Products delivered or to the service provided, excluding any injury through accident to people, damage to Products not forming part of the contract, loss of profit or any other consequential damage caused by any means.
14 Supply of trade and design spares
When this is expressly agreed in the contract, SICA shall supply the PURCHASER, for payment, with the spares he reasonably needs to use the machine for the whole of the time agreed between the parties and provided that these parts can be found on the market. SICA is exempt from any liability for possible direct or indirect damages arising from the delay in delivery of these spares, due to causes not attributable to SICA insofar as they are the subject of secondary supply by independent third parties.
15 Withdrawal from and Cancellation of the contract
SICA may, at its complete discretion and without providing any justification, by simply giving notice in writing seven days in advance, withdraw from the Contract or from the individual Order or suspend execution thereof with no obligation whatsoever of compensation or indemnity.
This contract may be cancelled by the PURCHASER only in the event of serious breach attributable to SICA.
The PURCHASER shall notify SICA of the breach by registered letter with return receipt, as well as his intention to cancel the contract, specifying the cause of the infringement and, in the event that this infringement is not corrected within the next 30 days, the PURCHASER shall be entitled to cancel the contract with a further notice in advance sent to SICA by means of another registered letter with return receipt.
If the contract is drawn up in several languages, the wording in Italian shall take precedence.
17 Legislation applicable
The contract, as well as all the relations existing between the parties, are governed exclusively by Italian law.
18 Settlement of disputes
Each and every dispute that may arise in relation to the validity, interpretation and/or execution of the contract shall, at the request of one of the parties, be referred to an arbitration board, made up of one representative of each party, with powers to settle the dispute in the name and on behalf of the parties and with the intention of settling these disputes amicably, If the board does not succeed in settling the dispute within 60 (sixty) days from the date whereon all the representatives were appointed, a report shall be drafted specifying the reasons for the lack of conciliation; the parties shall be duly notified of this report.
If an agreement is not reached within the above-mentioned period, or if one of the parties does not appoint its own representative, the Ravenna Law Courts, in Italy, shall have exclusive jurisdiction, with regard to any dispute arising from this contract or in relation thereto.
19 Sundry matters
The possibility of one or more clauses in the contract being null and void shall not affect the other provisions of the contract, or the whole contract; the parties shall arrange to replace, if possible, the clauses that are null and void with other valid agreements that have equivalent or similar contents. The Contract may not be transferred by the PURCHASER without consent in writing from SICA.
Parties declare to have agreed and well-understood each single article of the Present General Condition of Sales.