HYMSON ITALY SRL – GENERAL SALE TERMS AND CONDITIONS
1. SUBJECT. These general conditions govern the purchase and sale, with retention of title, of the Goods and services (hereinafter “Goods”) supplied by HYMSON ITALY SRL as precisely identified in the order confirmation attached to these general terms of contract. This contract of sale and related activities are therefore governed not only by these conventions, but also by the special terms and conditions of contract as referred to in the order confirmation (which in case of discrepancies prevail over such conventions), by the provisions of the Civil Code not otherwise derogated, and possibly by the additional agreements signed by the parties governing particular aspects resulting from the Buyer’s specific requests. The parties acknowledge that by signing these general conditions they are fully and totally aware of their contents, which they expressly approve. These general terms of sale may not be modified or derogated from by the parties except in writing. The Buyer agrees that, in the event of conflict between the general terms of contract of the parties, those of HYMSON ITALY SRL shall prevail.
2. CLOSURE OF CONTRACT. The contract will be understood as finalized and effective as soon as HYMSON ITALY SRL learns about written acceptance by the Buyer in keeping with the purchase proposal. Furthermore, it should be pointed out that this contract is subject to the condition of termination, i.e. it will be terminated if the approval of the HYMSON SRL ITALY’s General Management is not expressed within 90 days since HYMSON SRL ITALY’s taking cognizance of the acceptance conformable to the proposal. Down payments made in the meantime by the Buyer will be considered as partial payments with the understanding that, should the contract be terminated failing approval by HYMSON ITALY SRL General Management, they will be returned without any further charge. The technical characteristics specified in the descriptive section of the purchase proposal are considered only as indicative, reserving the right for HYMSON ITALY SRL to make all appropriate changes to obtain the best performance of the Goods. Any contract changes regarding the order and proposed by HYMSON ITALY SRL in writing will be understood as accepted and final, subject to written refusal by the Buyer within 15 days of dispatch.
3. GOODS READINESS AND DELIVERY TERM. The term of Goods readiness and/or delivery is approximate unless otherwise agreed upon. In the event of delay or failed delivery and/or readiness, the Buyer shall not be entitled to compensation or indemnities whatsoever. The termination of the contract may be requested only if it is preceded, pursuant to art. 1454 C.C., by a notice to comply within a period not less than 60 days, to be sent by registered letter. In case of contract termination HYMSON ITALY SRL is bound to exclusively return the advance payments received, thus excluding any claims for damage compensation. In case of delayed delivery or even non-delivery due to Force Majeure or to causes beyond the parties’ control, each party is entitled to the suspension of contract fulfilment for a total period of six months, after which each party is entitled to terminate the contract by written notice to the other party. In case of lease purchases, the relevant contract shall reach HYMSON ITALY SRL at least thirty days before the scheduled preparation date. Failing this, the term of Goods preparation will be automatically extended for thirty days from the date of leasing contract receipt. Failure to finalize the leasing contract within the requested deadline will entitle HYMSON SRL ITALY, by giving the Buyer a 15-day written notice by registered letter with return receipt, to cancel the order and withhold any advance payment as compensation. The parties agree that the commissioning of the Goods, understood as the making available of such Goods to the Buyer’s workers or to any third parties, is equivalent to accepting the Goods with consequent obligation to settle the balance.
4. DEADLINES FOR EXECUTION AND DELIVERY – FORMAL NOTICE TO COMPLY – PENALTIES. The Buyer is bound to comply with the obligations imposed on him and preparatory to the respect of the deadline for delivery of the Goods, as well as to proceed with payment within the terms governed respectively by the clauses no. 3 and 6, as well as set forth in the order confirmation sent by HYMSON ITALY SRL except in cases of Force Majeure, if for any reasons attributable to the Buyer HYMSON ITALY SRL cannot respect the delivery date (these reasons including, but not being limited to, failure to pay even a single instalment, failure to comply with the agreed deadline for pre-acceptance and failure to prepare the places for receiving, assembling and installing the Goods), HYMSON ITALY SRL autonomously reserves the right to send by registered mail a formal notice to comply to the Buyer who, within the deadline of 15 days, must confirm to have fulfilled its obligations. It is understood that no damage for the delay with respect to the deadline for delivery may be considered attributable to HYMSON ITALY SRL In the event that, after the expiry of the term fixed in the warning referred to above, the conditions hindering the delivery of the Goods persist, HYMSON SRL ITALY, without any further notice, will apply for each week of delay, with respect to the term fixed with the aforementioned notice, a penalty equal to 0.5% (for a maximum period of 10 weeks and therefore until a final penalty equal to 5% is reached) of the amount agreed for each supply whose deadline has not been respected. Failure to fulfil the required obligation within the additional period mentioned above, equal to 10 weeks with respect to the term fixed with the aforementioned notice, HYMSON ITALY SRL reserves the right to terminate the contract, withholding any advance payment already paid as compensation for damage (in addition to the penalty accrued in the meantime and calculated as above), without prejudice to the right to compensation for any further damage suffered.
5. TRANSPORT AND PACKING. Transport and packing are at the Buyer’s charge unless otherwise specified. Goods are shipped at the Buyer’s risk. Any all-risk insurance shall be separately ordered to HYMSON SRL ITALY, specifying the amount and the extent of the insurance demanded.
6. PAYMENT. Any fees for contract registration, if required, are at Buyer’s charge. Payments are due according to the deadlines and terms, set out in the order confirmation, which may not be changed or discontinued, on pain of loss of right of any exception for whatever dispute may arise between the parties. Advance payments never give interest. HYMSON ITALY SRL will start execution of the order only upon receipt of the advanced sum, previously agreed upon. Should the Buyer cancel the order, HYMSON ITALY SRL will retain the advanced sums. Should compensation for the damages exceed this sum, the Buyer will have to pay the costs exceeding this sum. Payments are acknowledged only if made directly to HYMSON ITALY SRL or to appointees expressly appointed by HYMSON ITALY SRL If payment is agreed by issue of bills or bank receipts, any banking, collecting and stamp charges are for the Buyer’s account.
If payment is agreed by assignment or issue of bills, to be accepted “subject to collection” and without representing a novation of the agreement, the Buyer authorizes HYMSON ITALY SRL to issue drafts on their name for the amount of the non-delivered assignments within 15 days from the date of Goods delivery; the Buyer also authorizes HYMSON ITALY SRL in advance to issue a redraft for those assignments which remain unsettled. Until the transfer of the ownership of the delivered Goods, which takes place when the last instalment is paid, the Buyer may neither sell, rent or lease, nor pledge or transfer any right thereon to third parties, unless the Buyer obtains prior written authorization from HYMSON ITALY SRL in case of delay in payments, the Buyer shall pay for the annual interest equal to the A.B.I (Italian Banking Association) prime rate plus 3% per year, unless otherwise agreed upon between the parties, without a default action being required.
7. RETENTION OF TITLE. Sales are executed under the explicit clause, as per art. 1523 of the Italian Civil Code, of the retention of the title of Goods delivered by HYMSON SRL ITALY, which remains the only owner until payment of the total price agreed upon is fulfilled. In case of non-payment, at maturity date, of one instalment exceeding one eighth of the total price of the supply, or of non-payment of two instalments, in accordance with the effects of the combined provisions of art. 1525 and 1456 of the Italian Civil Code, the contract shall be deemed to be terminated by right; HYMSON ITALY SRL is entitled to retain the sums already paid as indemnity for using the Goods, without prejudice to claims for further damages. In case of Buyer’s default, HYMSON ITALY SRL is entitled to take the supplied Goods back, retaining all advance payments as indemnity for hire charges, wear and tear and decreased market value of Goods, without prejudice to claims for further damages.
8. DISTRAINT. Should the Goods be impounded or distrained by third parties, the Buyer undertakes to enter in the execution report, drawn up by the distraint officer, the statement that, in virtue of the retention of title, the Goods owner is HYMSON SRL ITALY; the Buyer also undertakes to immediately advise HYMSON ITALY SRL thereof so that he can proceed with opposition and/or claim. The Buyer declares he shall indemnify HYMSON ITALY SRL for all expenses and dues related with said proceedings.
9. ASSEMBLY. HYMSON ITALY SRL staff in charge of assembly, if required in the order confirmation, will reach the Buyer’s premises only after the Goods are delivered and once the Buyer has arranged for all the fittings at its charge as provided for by HYMSON ITALY SRL drawings, including the fulfilment by the Buyer of the obligations to comply with the provisions of clause no. 10 below. The Buyer shall be solely responsible for having the systems used by the Goods, including the electrical and dust collection systems, installed by professionals qualified by law in compliance with the regulations in force. If the assembly costs are not included in the price, the costs relating to the staff in charge of assembly will be debited at the intervention rates of HYMSON ITALY SRL. The Buyer shall also be responsible for the works relating to masonry, smithery, electricity, pipe laying, handling of machinery, as well as energy and consumables for tests and inspections carried out by the assemblers.
10. SAFETY AT WORK. For all activities that can take place at the Buyer’s, the latter undertakes, in compliance with the existing legislation on health and safety at the place of performance of the services, to deliver to HYMSON ITALY SRL complete and detailed guidelines on the risks in the work environment in which the technical staff of HYMSON ITALY SRL and / or its assistants and collaborators will operate. The Buyer also assures cooperation and coordination to implement all the measures to protect and prevent from the risks which may impact on employment under this contract and that require the protection of both workers as well as all other entities who operate or are otherwise present in the same working environment. HYMSON ITALY SRL on its part agrees to participate – through the exchange of information and within the scope of its respective competence and under current regulations – in cooperating and coordinating activities proposed by the Buyer to safeguard health and safety at the workplace and in connection with accident prevention.
The Buyer also undertakes – where necessary – to carry out, at its own expense, all the works that are necessary to ensure safety in the area of intervention of HYMSON ITALY SRL staff for the purposes of carrying out the activities covered by this contract and also undertakes to ensure easy, safe and timely access to the workplace for HYMSON ITALY SRL staff or for those the latter employs for the performance of the services provided for in the contract.
It is understood between the parties that during the period intended for the assembly of the Goods or for other activities to be carried out on the Goods, no other works or activities may be carried out by the Buyer’s staff or by third parties appointed by the Buyer in the place of assembly and installation of the Goods or on the Goods directly. Any exceptions must be subject to specific agreement between the parties. Any delays in the preparation of the places or in the other activities referred to in clause no. 9 by the Buyer shall result in the suspension of the assembly of the Goods, subject to HYMSON SRL ITALY’s enforcement of the same penalties referred to in clause no. 4 and without prejudice to further damage.
HYMSON ITALY SRL reserves the right, without prejudice to compensation for any other damages, to claim against the Buyer for all damages resulting from the Buyer’s failure to fulfil or incomplete fulfilment of its obligations to provide information on any risks in the workplace, as well as of all other obligations, both general and specific, provided for in this clause.
11. GUARANTEE. The Goods the subject matter of this supply are covered by a guarantee the duration and terms of which are stated in the order confirmation. If not otherwise provided for, the terms of guarantee are as follows. The guarantee shall last for 12 (twelve) months from installation date or 15 (fifteen) months from date of invoice issued at the time of shipment, at the latest, and therefore it will expire when one of these terms is first complied with. The guarantee covers the gratuitous repair or replacement, at HYMSON ITALY SRL discretion, of parts revealing original manufacturing or material defects which make them unfit for use. Defects, if any, will not entitle to damage compensation of any kind whatsoever, also towards third parties. The guarantee does not cover mechanical and electric failures due to voltage drop/surge, crashes, and accidental causes as well as failures due to carelessness, lack of operating skills and tampering. The guarantee also excludes defects resulting from unsuitability, non-conformity or faults in the electrical energy supply system or other energy source. The guarantee is also excluded if the maintenance plan provided for in the manual and/or prompted by the machines through specific messages has not been complied with. Using non original spare parts forfeits the right to guarantee as well as any repair or changing interventions carried out by unqualified staff and/or staff unduly qualified by HYMSON ITALY SRL Even the discovery, on the occasion of interventions, of tampering or modifications made on the Goods supplied, immediately invalidates the warranty, any type of technical assistance and supply of spare parts. Returns are not accepted unless authorized and in free port. Parts replaced under guarantee shall be shipped back to HYMSON SRL ITALY, who acquires their ownership. Guarantee is not provided if the Buyer is not up to date with payments. During the warranty period the cost of working hours, of travel expenses, of the flat rate reimbursement of board and lodging expenses and of the fixed call charge will be entirely borne by the Buyer. The warranty service does not include the routine maintenance of Goods or the replacement of parts due to standard wear and tear. Attendance to the instruction/training course is a prerequisite for using the Goods and for the phone assistance service. In case the defect cannot be rectified: a) the Buyer is entitled to a reduction of the purchase price in proportion to the decreased value of the supplied Goods, provided that such reduction may in no case exceed 15% of the purchase price; or b) should the defect be so critical as to make the Goods unfit for the use it was purchased for, the Buyer may terminate the contract, with an indemnity for the loss incurred up to maximum 15% of the purchase price. In any case, any and all compensation for loss of production, loss of profit, loss of contracts or any other indirect loss that may occur during the installation, use and maintenance of the Goods or, in any case, in connection with said Goods, is excluded.
12. ASSISTANCE. The technical assistance provided by HYMSON ITALY SRL is subject to HYMSON ITALY SRL tariffs in force at the date of performance.
13. EXCLUSION AND LIMITATION OF LIABILITY. In addition to the provisions of clause no. 11, HYMSON ITALY SRL declines all liability for direct and/or indirect damage that may occur to persons and/or animals and/or property during the installation, use and maintenance of the Goods supplied, for reasons not attributable to or beyond the control of HYMSON ITALY SRL HYMSON ITALY SRL is relieved of any liability in relation to any infringement of patents, trademarks or models that may be found on products obtained by the Buyer while using HYMSON ITALY SRL Goods. HYMSON ITALY SRL disclaims any liability for any damage that may arise directly or indirectly to persons, and/or animals and/or property as a result of the modification of the Goods supplied, as well as a result of failure to follow the instructions and warnings contained in the documentation accompanying the Goods. HYMSON ITALY SRL declines also any responsibility for any damage that may result from failure to comply with the law and/or regulations in force in the countries of the effective utilization of the Goods as regards installation, use and maintenance. In any case, the liability of HYMSON ITALY SRL may never exceed 15% of the purchase price of the Goods.
14. CONFIDENTIALITY. The Buyer must keep all the technical information (such as technical documentation, drawings, particulars and manuals) obtained from the HYMSON ITALY SRL for the execution of this contract as confidential. None of such information may be disclosed or communicated to third parties without the prior written approval by HYMSON SRL ITALY
15. COMPETENT COURT AND APPLICABLE LAW. Sole competent local jurisdiction, cognizant of all controversies arising from this contract, is the Court of Vicenza (Italy), therefore to the exclusion of any other court. This contract is likewise ruled exclusively by the Italian procedural and substantive Law.
16. PERSONAL DATA PROTECTION NOTICE. Pursuant to art. 12 and 13 of the EU Reg. no. 2016/679 and further amendments (protection of persons and other subjects with regard to the processing of personal data) HYMSON ITALY SRL advises that the collection and treatment of data provided by the Buyer are accomplished for the following purposes: a) purposes related to the fulfilment of obligations under the Law, Regulations and Community Regulations as well as provisions issued by Authorities empowered to do so by the Law b) purposes functional to the business for the execution of contracts for sale or supply of services or the fulfilment of obligations under this guarantee c) with the express consent of the Buyer, for commercial and marketing purposes, such as information and promotion of products and services, detection of the quality of services provided, market research, etc., for the publication of data of the Buyer on the website and brochures for promotional purposes only. These activities may also be carried out by persons who collaborate with HYMSON ITALY SRL and to whom, therefore, HYMSON ITALY SRL communicates the data, within the limits of their specific competence in relation to the special relationship between the interested party and HYMSON ITALY SRL Therefore the consent requested also concerns the processing implemented by these subjects. The treatment for the purposes mentioned above will be accomplished only with methods and procedures that appear strictly necessary.
The processing of data concerning the Buyer will be based on principles of correctness, lawfulness and transparency in full respect of the right to privacy. The data and their processing will not be shared or disclosed outside the cases permitted by law and will take place in the manner permitted by the law. The Buyer is entitled to exert the rights provided for in articles 15 to 22 of the above-mentioned EU Regulation.
The Buyer explicitly declares having read all the conditions of sale, both particular and general (from no. 1 to no. 16), and that he accepts them unconditionally.
DATE ………………………SIGNATURE AND STAMP OF THE BUYER ………………………………………………………………
The Buyer declares that he specifically accepts the following clauses, in so far as it is necessary for the purposes of art. 1341 C.C.:
2. CLOSURE OF CONTRACT, 3. GOODS READINESS AND DELIVERY TERM, 4. DEADLINES FOR EXECUTION AND DELIVERY – FORMAL NOTICE TO COMPLY – PENALTIES, 7. RETENTION OF TITLE, 10. SAFETY AT WORK, 11. GUARANTEE, 13. EXCLUSION AND LIMITATION OF LIABILITY, 15. COMPETENT COURT AND APPLICABLE LAW.
DATE ………………………SIGNATURE AND STAMP OF THE BUYER ………………………………………………………………
Buyer’s authorization to HYMSON ITALY SRL to use the Buyer’s name/logo in HYMSON ITALY SRL marketing documentation:
Please tick off where you feel appropriate:
YES, we accept our company’s name/logo to be mentioned in HYMSON ITALY SRL customers’ reference lists;
NO, we do not accept our company’s name/logo to be mentioned in HYMSON ITALY SRL customers’ reference lists;
YES, we allow HYMSON ITALY SRL to use our company’s trademark in their sales material;
NO, we do not allow HYMSON ITALY SRL to use our company’s trademark in their sales material.
BUYER’S SIGNATURE AND STAMP …………………………………………………………………………………………………….