Orefice Generators

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»: shall mean Orefice Powergen S.r.l. with registered office in Italy at Ex S.S.131 km 7.00 Sestu (CA) Italy.
«Plant»: shall mean the plants indicated in the Special Conditions.
«Contract»: shall mean jointly the Special Conditions and the General Conditions.

Art. 1. Preamble

1.1. These General Conditions shall apply, together with the Special Conditions, to all orders (hereinafter referred to as «orders» or, in the singular, «order») and to all sales, even if split, divided or continuous, made by the Seller to the Buyer, concerning the Seller's products. In case of conflict, the Special Conditions shall prevail. The present contract constitutes the sole and exclusive supply contract, therefore it cancels and replaces any purchase contract proposed by the Buyer.

1.2. Any order by the Buyer, even in case of simple execution of the Contract by concluding behaviour, implies the acceptance of the present General Conditions. Any general conditions prepared by the Buyer shall not apply, even partially, unless they have been expressly accepted by the Seller.

1.3. Notwithstanding the provisions of Article 1418 of the Civil Code, the invalidity of one of the clauses 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 and replace any other agreement previously made between them, whether in writing or verbally.

1.5. Any amendment or integration of these Special and General Conditions shall be agreed between the Parties in writing.

1.6. The fact that one of the parties refrains from demanding payment from the other party, even on several occasions, 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 only if confirmed in writing by the latter by sending the Order Confirmation to the Buyer.

2.2. Each order shall be considered firm and irrevocable and can no longer be cancelled from the moment it is confirmed by the Seller.

2.3. Any advanced payment made by the Buyer before the delivery of the plant shall be charged against the total price of the plant. In the event that the Purchaser fails to fulfil his obligation to collect the plant within the terms and conditions set forth in the General and Special Conditions, the advance payments shall be retained by the Seller as a penalty, even if no advance payment has been made prior to delivery, the Purchaser shall pay the full amount, without prejudice, in any case, to the Seller's right to compensation for any greater damage.

Art. 3. Characteristics of Implants – Use and Maintenance Manual – Technical modifications – Intellectual and Industrial Property Rights

3.1. Any information regarding weight, dimensions, prices, performance or any other data regarding the characteristics and/or technical specifications of the equipment contained in the technical data sheet, brochures, price lists, catalogues and prospectuses are purely indicative and shall be considered binding only if expressly referred to in this Contract or in the order confirmation. The performance and consumption data provided by the Vendor and/or engine and alternator manufacturers are nominal and include tolerances in accordance with ISO-CEI-UNI standards.

3.2. Together with the Plant, the Seller shall deliver to the Buyer the relevant Operating and Maintenance Manual. The Buyer acknowledges that all drawings, documents, technical information, as well as the Use and Maintenance Manual are the exclusive property of the Seller (also under the profile of industrial and intellectual property rights) and that they are provided to the Buyer on a confidential and reserved basis.

3.3. The Vendor reserves the right to make any technical changes to the equipment, even during the execution of the order or after the order has been executed, which, without altering the essential characteristics of the same and at its sole discretion, may be necessary or appropriate for a better use of the same.

3.4. All drawings, documents, technical diagrams, manuals, as well as all logos, trademarks, whether registered or not, symbols, names and any other distinctive sign referable to and used by the Vendor with respect to the Plant – including those that the Vendor may adopt in the future – shall be deemed to be the exclusive property of the Vendor, also under the profile of intellectual and industrial property rights.

3.5. It is strictly forbidden for the Buyer to reproduce or communicate to third parties, by any means, news or information allowing the reproduction or duplication of the implant.

Art. 4. Delivery

4.1. Unless otherwise agreed, deliveries of Implants are intended Ex Works; it is understood that the risks of transport are at the total expense of the Buyer, even if the Implants are transported by the Seller and even if by means chosen by the latter.

4.2. Without prejudice to the fact that the price of the packaging is at the Buyer's charge, since it is not included in the price of the plant as established in art. 8) below, the Seller reserves the right to determine the type of packaging according to the needs of transport and shall in any case be released from any liability upon delivery of the plant, properly packed, to the carrier or forwarding agent. The packaging shall be considered to be in a workmanlike manner when the carrier and/or forwarder have accepted the delivery.

4.3. In view of the fact that the delivery period is to be considered as indicative and not taxable for the Seller, if the latter foresees that it will not be able to deliver the goods on the agreed delivery date, it shall promptly notify the Buyer thereof in writing, indicating, where possible, the expected delivery date. Only in cases where the Seller's delay exceeds 8 weeks, the Buyer may:

terminate the Contract in respect of any implant whose delivery is delayed by giving 10 days' notice in writing to the Buyer;
request, after written notice of default by the Seller, compensation for the actual damage proved by the Seller, up to a maximum of 5% of the price of the goods.

4.4. The Seller shall not be held responsible for any delay due to causes not attributable to the Seller or due to Force Majeure, strikes at the Seller's premises and/or at the Seller's suppliers' premises and/or at the Seller's carriers' premises, or due to the need to modify the equipment referred to in art. 3.3) or due to the conduct or omissions of the Buyer (e.g. failure to provide information necessary for the supply of the equipment). Such cases justify an extension of the established delivery date or, if necessary, the partial execution of the order or, if this is not possible, the withdrawal of the Seller.

4.5. Unless the Seller is guilty of gross negligence or wilful misconduct, payment of the sums referred to in Article 4.3) shall exclude any further compensation for damages for non-delivery or delayed delivery of the goods.

4.6. In the event of a delay in delivery attributable to the Buyer, the Seller reserves the right to charge the Buyer for any costs incurred as a result of this delay, such as, but not limited to, storage costs.

Article 5. Guarantee

5.1. The warranty offered by the Seller concerns brand new implant as accepted and purchased by the Purchaser, and entails, at the Seller's unquestionable discretion and a the later's expense, the repair or replacement of any implant that proves to be faulty, at the assistance centres indicated by the Seller, as soon as possible, and in any case within the terms agreed from time to time.

5.2. However, it is understood that for the purposes of this warranty, defective products are only those affected by design, material or construction defects attributable to the Seller. The Seller, in any case, reserves the right, at its sole discretion, to repair or replace the goods at its plant in San Sperate (SU) – Italy.

5.3. This guarantee shall be granted for a period of one year from delivery of the plant and shall be considered valid only if the defect is reported by the Buyer in writing within 30 days of its discovery. It is understood that the aforementioned warranty (consisting in the obligation to repair or replace the implant) absorbs and replaces the warranties or liability provided for by law and excludes any other liability of the Seller except in cases of fraud or gross negligence of the latter, whether contractual or non-contractual, however arising from the implant supplied (eg. damages, loss of earnings, recall campaign, etc..). The Purchaser, therefore, except in the event of fraud or gross negligence, shall not be entitled to make claims for damages, price reductions or termination of the contract. Once the warranty period has expired, no claim may be made against the Seller.

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

if the Buyer has modified or repaired the equipment without the prior written consent of the Seller;
if the equipment is improperly used by the Buyer and/or put into conditions of use other than those explained in the Use and Manteinance Manual;
if the defects or malfunctions are caused by inexperience or neglect in the use of the implants by the Buyer, by overloading, by wear and tear due to prolonged use or by improper use of the implants;
if the Plant has not been subject to maintenance and/or lubrication services to be carried out at the intervals provided for and contemplated in the Use and Maintenance Manual supplied with the Plant, exclusively by specialised personnel of the Seller or other personnel authorised by the latter and/or has not used the fuel and lubricants indicated in the Use and Maintenance Manual;
if the Buyer has not carried out the maintenance operations prescribed for the equipment in the Use and Maintenance Manual, or if the Buyer has used non-original spare parts or has carried out any repairs or modifications at centres not authorised by the Seller;
if the place of use of the plant is different from the agreed one or if it has to be changed, if it is located in areas that cannot be accessed by normal vehicles or if the plants are to be used in dusty places, in salty climates, in the presence of corrosive substances, in high humidity, in difficult environmental conditions – low temperatures (below 0°) or high temperatures (above 0° / +35°).

5.5. It is understood that, by virtue of this guarantee, the Seller shall only be liable for the costs of replacement and/or repair of the equipment. Therefore, should the Buyer require repair and/or replacement service in the event of a warranty claim at the place where the equipment is installed, the costs of travel, transport and subsistence (including the costs of authorised personnel) shall be borne by the Purchaser. Should it be necessary to bring the plant or the main parts of it to the Seller's premises, the costs and expenses of this operation (in particular, lifting means, transport, etc...) shall be borne by the Purchaser.

5.6. Defects or malfunctions of the implants shall not entitle the Buyer to suspend or in any case delay payments for the implants complained of or for other supplies.

5.7. Any intervention under warranty and replacement of parts or components by the Seller shall not entail the renewal of this warranty, which shall be valid only within one year from the original delivery of the equipment.

Art. 6. Seller's Liability

The Seller shall not be liable for any direct or indirect damage to persons, animals or property in the event of:

a) the damage is 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 Owner's Manual;
II) lack of, or poor, maintenance;
III) modifications or tampering with the equipment supplied;
IV) non-compliance with the instructions in the Operation and Maintenance Manual delivered together with the installation;
IV) use of non-original spare parts or failure to carry out repairs or modifications at the Seller's authorized centers;
V) violations of accident prevention and safety regulations.

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

c) the equipment was not operated by adequately trained and instructed personnel;

d) the injured party knew of the defect but deliberately ignored it, thereby exposing himself to danger.

In the aforementioned cases, the Buyer also undertakes to explicitly indemnify the Seller against all claims of any kind made by third parties against the Seller.

Art. 7. Used Equipment

7.1. Unless otherwise agreed between the Parties, the warranty provided for in art. 5 above shall not apply to used equipment supplied by the Seller, which shall be deemed to have been purchased by the Purchaser in the state in which it was found at the time of delivery, as seen and liked.

7.2. In any case, the following components are not subject to any form of guarantee: the starting battery, electronic components, the instrumentation and, more generally, all those parts whose revision or replacement are part of normal or extraordinary maintenance (e.g. oil leaks, liquid leaks, replacement of sleeves, gaskets, calibrations, adjustments, etc.).

Art. 8. Prices – Payment Terms – Late Payments – Solvency of the Buyer

8.1. The prices of the equipment do not include packaging, shipping, transport, assembly, installation (if applicable), VAT and other related taxes. Plant prices are fixed and unchangeable if delivery takes place within 120 days. For subsequent deliveries, not due to delays attributable to the Seller (art. 4.3), the price list in force at the time of actual delivery shall apply.

8.1. The Customer shall not be entitled to rely on any breach of contract by the Seller unless it is in a position to do so regular with payments. In any case, any default by the Seller shall not entitle the Buyer to suspend or delay payments, even in part.

8.2. In the event of late payment or non-payment of the price on the agreed dates, so if the Buyer's guarantees of solvency are lacking or diminished, the Seller, at its sole discretion, shall have the right, at any time, to suspend and/or cancel the current Order, as well as any further deliveries and/or remaining Orders, giving written notice thereof to the Buyer. Fifteen (15) days after the expiry of the payment dates, the Seller shall be explicitly authorised to issue a sight draft, which the Customer hereby accepts and authorises, plus collection and draft charges.

8.3. Without prejudice to the provisions of the previous clause, in the event of delayed payment or non-payment of the price on the agreed due dates, interest on arrears equal to the official discount rate applied by the European Central Bank plus 2 points, in force at that time, calculated on the amounts due and not paid, will automatically be charged on the amounts due without prior notice.

Article 9. Reserve of propriety

It is agreed that the delivered equipment shall remain the property of the Seller until the Seller has received full and complete payment of the price. In case of damage and/or loss of possession of one or more machines or plants, the Customer transfers to the Seller the rights of compensation deriving from any insurance coverage taken out, without precluding any other recourse action.

Art. 10. Assembly – Installation – Authorizations

10.1. All matters relating to the assembly and installation of equipment by the Seller, if any, as set out in the Special Conditions, as well as any request for further equipment supplies or services, are governed by the annex marked «A», which also forms an integral part of this Contract.

10.2. Unless expressly agreed otherwise, the assembly and installation of the system are carried out at the expense and under the responsibility of the Buyer.

10.3. It is understood that the system is intended for permanent use and that it is not intended to be used for any other purpose, neither self-propelled nor mobile within the meaning of Directive 2000/14/EC and subsequent amendments, which is therefore not applicable.

10.4. The Purchaser undertakes to pay all taxes and charges relating to the plant, as well as to comply with requests for authorization to install and use the plant from the relevant authorities according to the intended use of the machine, expressly exonerating the Vendor.

Art. 11. Privacy – Personal data

Pursuant to and for the purposes of Law no. 675 of 31.12.1996 and subsequent amendments, the Parties declare that they have mutually informed each other and agree that the personal data collected will be processed in the Customers/Suppliers archive for civil and fiscal purposes and for management, statistical, commercial and marketing purposes. The Parties, owners of the respective data, expressly declare that they are aware of their reciprocal rights arising from the application of Legislative Decree no. 196/2003 and subsequent amendments.

Art. 12. Conformity with current regulations

The Seller guarantees the conformity of the equipment with the rules, regulations and laws in force in Italy at the time of the Order.

Art. 13. Dual-use

13.1. The Buyer declares to be aware of the existence of the European Union regulations concerning the transfer of the used technologies and of the fact that a possible measure of the Italian and/or European competent authority and/or of a Member State of the European Union may limit or prohibit the exportation of the Plants from Italy or from another European State and that in this eventuality the Seller shall not be held responsible in any way or under any title.

13.2. The Purchaser warrants and represents that the equipment shall be used exclusively for civil purposes and that any other use is excluded. Furthermore, the Buyer warrants, guarantees and assumes the responsibility – also towards third parties – that the Plants will not be re-exported outside Italy without formal written authorization agreement from the manufacturer.

Art. 14. Possible sale of the plants

In order not to mislead or create confusion in the market place, the seller – if the Buyer is a commercial intermediary – suggests, by means of price lists, minimum resale prices, it being understood that the Buyer is free to determine his own prices but shall endeavour to adhere as far as possible to the Seller's suggested price lists.

Article 15. Competent Court

For any dispute relating to or in any way connected with this Contract, the place of jurisdiction is exclusively the Forum of Cagliari, Italy. However, notwithstanding the above, the Seller may also bring the dispute at the Buyer's place of business.

General Conditions of Sale