Orefice Generators
ITEN
Legal

General terms of supply for technical service activities

Definitions

Definitions of the main items mentioned in the contract:

  • «Buyer»: means the Buyer or the beneficiary of the good/service.
  • «Year – day – month»: means calculated according to the calendar in force in Italy.
  • «Seller»: Orefice Powergen S.r.l., with registered office at Ex S.S.131 km 7.00 Sestu (CA), Italy.
  • «Plant(s)»: means the plants and services covered by the contract and indicated in the Special Conditions.
  • «Service(s)»: means all intangible or engineering services.
  • «Work(s)»: means the entire set of intangible and engineering services.
  • «Contract»: means jointly the Special Conditions and the General Conditions.
  • «Use and Maintenance Manual»: means the use and maintenance manual of the Plant and of its components.

Art. 1. Preamble

1.1. These General Conditions apply, together with the Special Conditions above, to all orders (hereinafter «Orders», singular «Order») and to all sales, even if split, divided or continuous, made by the Seller to the Buyer concerning the Seller's Plants. In case of conflict, the Special Conditions prevail.

1.2. Any Order by the Buyer, even in the case of simple execution of the Contract by conclusive behaviour, entails acceptance of these General Conditions. Any general conditions issued by the Buyer shall not apply, even partially, unless expressly accepted in writing by the Seller.

1.3. By way of derogation from Article 1418 of the Italian Civil Code, the invalidity of any individual clause of these General Conditions shall not automatically affect the validity of the entire Contract.

1.4. These General and Special Conditions represent the agreement reached between the Parties and supersede any other previous agreement, whether written or verbal. This contract is the sole and exclusive supply contract and cancels and replaces any purchase contract proposed by the Buyer.

1.5. Any amendment or addition to these Special and General Conditions must be agreed between the Parties in writing.

1.6. The fact that one of the Parties refrains, even on several occasions, from demanding strict performance of this Contract by the other Party does not imply any waiver by the first Party of the full exercise of its rights under the Contract.

Art. 2. Order

2.1. The Order shall be considered valid and accepted by the Seller if confirmed in writing by sending the Order Confirmation to the Buyer together with these General and Special Conditions, which shall in turn be countersigned for acceptance by the Buyer and returned to the Seller.

2.2. Each Order is firm and irrevocable and cannot be cancelled once confirmed by the Seller.

2.3. Any advance payments made by the Buyer prior to delivery of the work shall be credited toward the total price of the service. Should the Buyer fail to collect the Plant within the terms and conditions provided in the General and Special Conditions, the advance payments shall be retained by the Seller as a penalty, without prejudice to the Seller's right to claim any further damages.

Art. 3. Service characteristics – Technical modifications – Intellectual and industrial property rights

3.1. Any information regarding weight, dimensions, prices, performance or any other data concerning the characteristics and/or technical specifications of the Plants contained in datasheets, brochures, price lists, catalogues or prospectuses is purely indicative and binding only if expressly referenced in this Contract or in the Order Confirmation.

3.2. Together with the Works, the Seller delivers to the Buyer the related Use and Maintenance Manual and, if applicable, the Declaration of Conformity, only if requested at the time of order. The Buyer acknowledges that all drawings, documents, technical information and the Use and Maintenance Manual are the exclusive property of the Seller (also with regard to industrial and intellectual property rights) and are provided to the Buyer on a confidential basis.

3.3. The Seller reserves the right to make technical modifications to the Plants, even during the execution of the Order or after the Order has been completed, where necessary or appropriate – at the Seller's sole discretion – for a better use of the Plants, without altering their essential characteristics.

3.4. All drawings, documents, technical schemes, manuals, as well as all logos, trademarks (whether registered or not), symbols, names and any other distinctive sign used by the Seller in connection with the Plant – including any adopted in the future – are the exclusive property of the Seller, including with regard to intellectual and industrial property rights.

3.5. The Buyer is strictly forbidden from reproducing or communicating to third parties, by any means, any news or information enabling the reproduction or duplication of the Plants.

Art. 4. Access to the plant – Service delivery

4.1. The Buyer shall ensure safe access to the plant and its premises throughout the works, promptly communicating the time slots when it is available for activities.

4.2. The Buyer is aware of and accepts disruptions of various kinds on the plant and on all loads connected to it, in particular disconnections from the grid supplier, to allow works to be carried out safely.

4.3. The delivery date is indicative and not binding on the Seller. Should the Seller foresee being unable to deliver the Plants on the agreed date, the Buyer shall be promptly notified in writing, indicating, where possible, the expected delivery date. Only where the delay attributable to the Seller exceeds 8 weeks, the Buyer may:

  • terminate the Contract for the Plants whose delivery is delayed, by giving 10 days' written notice;
  • request, after written notice of default to the Seller, compensation for actual damages proven, up to a maximum of 5% of the price of the Plants.

4.4. The Seller shall not be held responsible for any delay caused by force majeure or events not attributable to the Seller, including strikes at the Seller's premises and/or at its suppliers and/or carriers, or arising from the need to modify the Plants under Art. 3.3, or from acts or omissions of the Buyer (e.g. failure to provide information necessary for the supply). These cases justify a postponement of the delivery date or, where necessary, partial execution of the Order or, if this is not possible, withdrawal of the Seller.

4.5. Except in cases of wilful misconduct or gross negligence of the Seller, the payment of the sums under Art. 4.3 excludes any further compensation for non-delivery or delayed delivery of the Plants.

4.6. In case of delay in delivery attributable to the Buyer, the Seller reserves the right to charge the Buyer the related costs, including but not limited to storage costs.

4.7. Fault-finding and/or technical consultancy services are rendered and considered completed even if they do not resolve the issue.

4.8. The costs of intervention at the Seller's premises or at the Buyer's site, and the related travel expenses, shall be calculated from the operating base in Z.I. Su Fraigu, 09026 San Sperate (SU), Italy. All costs, except spare parts, shall be indicated in the Order Confirmation and invoiced. Any required repairs may be quantified at the Buyer's premises and shall be confirmed in writing. The Seller reserves the right to add further costs arising from missing information provided by the Buyer or from events not attributable to the Seller.

Art. 5. Warranty

5.1. The warranty offered by the Seller covers exclusively the works performed and the spare parts used and entails, at the Seller's sole discretion and expense, the repair or replacement of Plants found to be defective, at the assistance centres indicated by the Seller, as soon as possible and within the terms agreed from time to time. For the purposes of this warranty, defective Plants are only those affected by design, material or construction defects attributable to the Seller. The Seller reserves the right, at its sole discretion, to carry out repair or replacement at its plant in San Sperate (South Sardinia) – Italy. No type of work in any way extends the warranty on the product or on a part of the plant. The warranty may also be subject to acknowledgement by the spare part manufacturer and to the outcome of the analyses on the spare part.

5.2. This warranty is granted for a period of one year from the delivery of the work and shall be valid only if the defect is reported by the Buyer in writing within 30 days of discovery.

5.3. The above warranty (consisting in the obligation to repair or replace the Plants) absorbs and replaces the warranties or liabilities provided by law and excludes any other liability of the Seller – whether contractual or extra-contractual – arising from the Plants supplied (e.g. damages, loss of profit, recall campaigns, etc.), except in cases of wilful misconduct or gross negligence. Save for wilful misconduct or gross negligence, the Buyer may not claim damages, price reductions or termination of the contract. After the warranty period, no claim may be made against the Seller.

5.4. This warranty is excluded and not applicable in the following cases:

  • if the Buyer has modified or had repairs carried out on the Plants without the prior written authorisation of the Seller;
  • if the Plants are improperly used and/or placed under conditions different from those described in the Use and Maintenance Manual;
  • if the Plants are connected to non-compliant and/or faulty loads;
  • if defects or malfunctions are caused by inexperience or negligence by the Buyer, overload, wear from prolonged use or improper use of the Plants;
  • if the Plant has not been subject to the maintenance and/or lubrication services scheduled in the Use and Maintenance Manual, exclusively by the Seller's specialised personnel or other personnel authorised by the Seller, and/or has not used the fuel and lubricants indicated in the Use and Maintenance Manual;
  • if the Buyer has failed to carry out the maintenance interventions prescribed for the Plant in the Use and Maintenance Manual, or has used non-original spare parts, or has had repairs or modifications carried out at centres not authorised by the Seller;
  • if the place of use of the Plant differs from the agreed one or must be changed, is located in areas not accessible by normal vehicles, or the Plants are used in dusty environments, saline climates, in the presence of corrosive substances, high humidity, or harsh environmental conditions – low temperatures (below 0°) or high temperatures (above +35°).

5.5. Under this warranty, only the costs of replacement and/or repair of the Plants shall be borne by the Seller. Should the Buyer require repair and/or replacement at the place where the Plant is installed, travel, transport and subsistence costs (including authorised personnel costs) shall be borne by the Buyer. If it becomes necessary to bring the Plant or its main parts to the Seller's premises, the related costs and expenses (in particular lifting means, transport, etc.) shall be borne by the Buyer.

5.6. Any defects or malfunctions of the Plants shall not entitle the Buyer to suspend or delay payments for the Plants concerned, nor for any other supplies.

5.7. Any warranty intervention and replacement of parts or components by the Seller does not renew this warranty, which remains valid only within one year from the original delivery of the Plant.

Art. 6. Seller's liability

The Seller cannot be held liable for direct or indirect damage to persons, animals or property where:

a) the damages are caused by:

  • I) negligence, carelessness, improper and/or incorrect use by the Buyer and/or its auxiliaries, or use of fuels or lubricants other than those indicated in the Use and Maintenance Manual;
  • II) lack of, or poor, or incorrect maintenance;
  • III) modifications or tampering with the Plants supplied;
  • IV) non-compliance with the instructions in the Use and Maintenance Manual delivered with the Plant;
  • V) use of non-original spare parts, or failure to have repairs or modifications carried out at centres authorised by the Seller;
  • VI) violations of accident-prevention and safety regulations.

b) the state of scientific and technical knowledge at the time of delivery of the Plant or original spare part did not yet allow the Plant to be considered defective;

c) the Plants were not operated by adequately informed and trained personnel;

d) the injured party, despite knowing of the defect, voluntarily ignored it, thereby exposing themselves to danger.

In the above cases the Buyer also undertakes to expressly hold the Seller harmless from any claim of any kind raised by third parties against the Seller.

In general, the Buyer may not seek redress from the Seller for service disruptions, damages arising from loss of profit or machine downtime.

Art. 7. Prices – payment terms – late payments – Buyer's solvency

7.1. The prices of all services and products do not include packaging, shipping, transport, assembly, installation (unless otherwise agreed), VAT or other related tax charges. Service prices are fixed and unchangeable if delivery occurs within 30 days from the Order.

7.2. The Customer may not invoke any breach by the Seller unless payments are up to date. In any case, any breach by the Seller does not entitle the Buyer to suspend or delay payments, even partially.

7.3. In case of late or missed payment of the price on the agreed due dates, or where the Buyer's solvency guarantees are lacking or reduced, the Seller shall be entitled, at its sole discretion and at any time, to suspend and/or cancel the current Order, as well as any further delivery and/or remaining Orders, by giving written notice to the Buyer. Where the Seller has granted payment extensions, fifteen (15) days after the expiry of the agreed payment dates the Seller is expressly authorised to issue a sight draft, which the Customer hereby accepts and authorises, increased by collection and draft charges.

7.4. Without prejudice to the previous clause, in case of late or missed payment, default interest shall accrue automatically on the amounts due and without need for prior notice, equal to the official discount rate of the European Central Bank in force at that time, increased by 2 points, calculated on overdue and unpaid amounts.

Art. 8. Retention of title – Right of retention

It is agreed that the delivered Plants and Spare Parts remain the property of the Seller until full payment of the price has been received.

The Buyer undertakes to collect any goods on repair or on approval within 30 working days. After 30 days the Seller may exercise the right of retention and charge the storage costs accrued from the day of delivery, without prejudice to any other charge or credit due for activities or works carried out.

After this term the Seller may proceed with disposal, charging the related costs.

Art. 9. Privacy – Personal data

Pursuant to Italian Law no. 675 of 31.12.1996 and subsequent amendments, the Parties declare that they have informed each other and consent to the processing of the personal data collected within the Customers/Suppliers archive for civil and fiscal compliance and for management, statistical, commercial and marketing purposes. The Parties, as data controllers, expressly declare that they are aware of their mutual rights arising from the application of Legislative Decree no. 196/2003 and subsequent amendments.

Art. 10. Jurisdiction

For any dispute relating to or connected with this Contract, the Court of Cagliari, Italy, shall have exclusive jurisdiction. However, by way of derogation from the above, the Seller may also bring proceedings before the Buyer's Court.

OREFICE POWERGEN S.R.L.