1) FORMATION OF THE AGREEMENT - These general terms and conditions of sale (“GTCS”) of IDEAL S.R..L, having its registered office in Via Paiette 9/b, 35040 Castelbaldo (Padua), Italy, VAT number IT02276470289 (“IDEAL”) are an integral and essential part of the purchase agreement (“Agreement”) of the products manufactured and/or marketed by IDEAL (“Products”). Under no circumstances shall general terms and conditions of any nature whatsoever, included in orders and/or in other documents sent by the Buyer or by third parties, be held as applicable, unless expressly accepted in writing by IDEAL. This document, titled “Offer” and sent by Ideal to the Buyer, shall be construed as an offer pursuant to art.1326, par.1, of the Italian Civil Code (“Offer”): the Offer shall be signed by the Buyer (“Acceptance”) and the Agreement is formed at the moment in which IDEAL receives the Acceptance of the Offer by the Buyer. Following the formation of the Agreement, IDEAL reserves to send to the Buyer a document titled “Order confirmation”, to be construed as a mere recap.
2) DELIVERY - Products are delivered by IDEAL according to the Incoterms® 2010 term indicated in the Offer (“Delivery”). The Buyer undertakes to collect the Product within and no later than the agreed term. In case of delay in the Products’ collecting, the agreed terms of payment shall not be postponed; the Buyer will bear all the expenses related to the storage in the warehouses of IDEAL and/or of third subjects and related to the Products’ safekeeping as well; it is also understood that the Buyer will bear the risk of damage, perishing, loss and/or theft of the same Products as from the initial term of collecting as agreed. Under no circumstances the term of delivery provided for by the Agreement (“Term of Delivery”) can be considered as of essence. In case of delays in the delivery of the Products determined by a fortuitous event, force majeure and/or by other reasons which cannot be ascribed to IDEAL’s fraud and/or to IDEAL’s gross negligence, IDEAL shall endeavour in any reasonable efforts to deliver the Products within 120 (one hundred and twenty) calendar days following the Term of Delivery provided for by the Agreement. During said 120-calendar days period, the Buyer shall not be entitled to compensation and/or damages, nor shall the Buyer have any termination/modification/annulment right, nor shall the Buyer have any right to claim for a price reduction with reference to the Products. Force majeure shall be interpreted as including, without limitation of the foregoing: strikes, union agitations, lock outs, fire, flood, inundation, prevented or delayed navigation due to negative air/sea/river conditions, electricity breakdown, short supply or absence of raw materials, delay in the delivery by the suppliers, regulation or other governmental order(s), earthquakes or other disasters of the elements, wars, embargoes, war or insurrection or sanitary emergencies or any other cause beyond IDEAL’s reasonable control.
3) PRICES - The price is specified in the currency indicated in the Agreement (“Price”); lacking said specification, the price is deemed to be fixed in EUR currency, packaging excluded, V.A.T excluded and with the exclusion of any other tax and/or levy. If, after the formation of the Agreement, an extraordinary or unforeseeable event takes place, so that IDEAL’s performance becomes excessively onerous pursuant to Article 1467 of the Italian Civil Code, the Buyer and IDEAL shall renegotiate in good faith the terms and conditions of the Agreement, without prejudice to IDEAL’s termination right pursuant to Article 1467, par. 1, of the Italian Civil Code. Without prejudice of the above, it is hereby understood that IDEAL’s performance may become excessively onerous when the raw materials cost and/or the labour cost increase in the space of time between the formation of the Agreement and the Delivery.
4) PAYMENTS AND NO ASSIGNMENT - The terms and conditions of payment of the Price are those indicated in the Agreement. In case of lacking or partial payment of the Price, or even when the payment is delayed for more than 8 (eight) calendar days, IDEAL shall have the right to suspend the performance of the Agreement till the complete payment of the amounts due, or till the provision of adequate guarantees by the Buyer, or to terminate the Agreement. IDEAL shall also have the right to suspend the performance of the Agreement, or the right to terminate the Agreement, when the patrimonial and/or financial and/or company conditions of the Buyer are deemed to put the relevant payment at risk (even when the conditions change occurs after the formation of the Agreement), or when the Buyer does not timely and exactly pay the products delivered by IDEAL also with reference to other contractual relationships between the Parties. Under no circumstances shall possible defects of the Products, even if expressly acknowledged by IDEAL, as well as possible delays in respect of the agreed Term of Delivery or any claim pertaining to the execution of the Agreement, give to the Buyer the right to suspend the relevant payments and/or any other payment due to IDEAL in relation to this Agreement or in relation to other contractual relationships (“solve et repete” clause pursuant to Section 1462 of the Italian Civil Code). Any claim, counterclaim or plea, whether judicial or out-of-Court, shall be made by the Buyer only after having completely paid the Price. The Agreement shall not be assigned by the Buyer, not even partially, without having obtained the prior written consent by IDEAL.
5) RETENTION OF TITLE – Should the Agreement provide for a payment by instalments, the delivered Products shall be in the ownership of IDEAL till the complete payment of the Price. In such a case, the lacking payment of one single instalment exceeding the eighth part prescribed by Section 1525 of the Italian Civil Code (one eight of the price) shall determine the forfeiture of the benefit of time and it shall give to IDEAL a termination right pursuant to Section 1526 of the Italian Civil Code. The Buyer undertakes to keep the Products in perfect conditions of conservation till the complete payment of the Price. The Buyer authorises IDEAL to accomplish, at the Buyer’s expenses, any formality which is necessary in order to oppose the retention of title to third parties.
6) WARRANTY - Pursuant to article 1490 ss. of the Italian Civil Code IDEAL warrants the absence of any defects in the Products for 12 (twelve) months as from the Delivery (“Warranty”).If the Buyers’ claims as to the existence of defects in the Products are well-founded and accepted by IDEAL during the Warranty period, IDEAL shall substitute the defective Products and/or, at its sole discretion, shall repair them within a reasonable time, by delivering them EXW (Incoterms® 2010)- IDEAL’s registered office or in conformity with a different Incoterm to be agreed with the Buyer. Under penalty of cancellation of the warranty, the Buyer shall notify the Products’ defects to IDEAL within and no later than 8 (eight) calendar days as from the Delivery; in case of hidden defects, the notification shall be made within and no later than 8 (eight) calendar days as from the relevant discovery. The burden of proof as to the date in which the Products have entered in the material availability of the Buyer, the date of the discovery and, as the case may be, the burden of proof of the hidden nature of the defects, shall be borne exclusively by the Buyer. The Buyer expressly waives to raise any claim, plea or counterclaim to such a purpose. Unless otherwise agreed in writing by the Parties, any and all other expenses pertaining to the substitution and/or reparation shall be borne exclusively by the Buyer, who shall bear also all the relevant risks. The Warranty shall be excluded if the defects notified by the Buyer have been determined by one or more of the following causes: (i) mistakes and/or inaccuracies in the information and/or in the technical data provided to IDEAL by the Buyer; (ii) alterations and/or modifications of the Products which have not been previously authorised in writing by IDEAL; (iii) storage and/or safekeeping of the Products in places and/or with modalities inadequate for their perfect conservation; (iv) improper use of the Products by the Buyer or by third parties; (v) any other cause which cannot be directly ascribed to IDEAL, such as, without limitation of the foregoing, the damages occurred during the transportation.
7) APPLICABLE LAW - The Italian law is applicable to the Agreement, it being understood that the application of the United Nations Convention on the International Sale of Goods (Vienna Convention 11th April 1980) shall be in any case expressly excluded.
8) EXCLUSIVE CHOICE OF COURT - For any dispute related to the formation, application, interpretation, validity, effectiveness, execution and/or termination of the Agreement the sole competent court shall be exclusively the Tribunale di Padova (Italy). Without prejudice of the above, IDEAL shall have the right to start any legal proceedings, included preventive or provisional proceedings, before the courts of the Buyer’s domicile.
Place and date:_______________ Signature and stamp of the Buyer:______________
Unfair terms. The Buyer hereby declares to have carefully read and to have expressly approved, pursuant to Articles 1341 and 1342 of the Italian Civil Code, the following provisions: art. 1 (Formation of the Agreement), art. 2 (Delivery), art. 3 (Prices), art. 4 (Payments and No Assignment), art. 5 (Retention of Title), art. 6 (Warranty), art. 8 (Exclusive Choice of Court).
Place and date:_______________ Signature and stamp of the Buyer:______________