General Conditions of Sale
1. Foreword and field of application
Our General Conditions of Sale as set out below shall constitute be the only terms applied to all sales of goods and services relating to machinery and their accessories. Customers shall accept the General Conditions of Sale of machinery and spare parts as binding even if their orders or the correspondence which precedes them are in conflict with the said Conditions or refer to their own different terms.
Orders shall not be fulfilled until these General Conditions of Sale have been signed for approval.
In these Conditions of Sales, the following definitions shall apply:
“Conditions”: the conditions of sale and supply contained herein;
“Contract: a contract for the sale of Products, signed by the Vendor with other parties (“Customers” or “Customer”), further to receipt by the Vendor of an Order Confirmation from the latter;
“Vendor”: Fantini Sud S.p.A.;
“Third Parties”: producers and/or constructors other than Fantini Sud S.p.A;
“Product(s)”: all the products offered on the market by our company;
“Constructor”: company which manufactures parts of the Final Product for the Vendor;
“Order”: an order for the purchase of Products sent to the Vendor by the Customer;
“Working Day”: any day from Monday to Friday (inclusive) which is not a public holiday;
“Order Confirmation”: the confirmation of the Order by the Vendor, the original of which shall be sent to the Customer, even if it has been forwarded by fax or email;
“Acceptance”: receipt of the original Order Confirmation signed by the Customer for acceptance.
3. Publication of the Conditions of Sale
These Conditions are published in the “SALES NETWORK” heading of the “MACHINERY DIVISION” menu of the www.fantinispa.it Internet site.
4. Offer, Signing of Contract
The contract shall be considered finalised on signing and specific approval of the Order Confirmation together with the annexed General Conditions of Sale by the purchaser, and on payment of the down payment or deposit required, opening of the Letter of Credit on the agreed terms or issue of the order by the financial leasing company.
Acceptance shall imply the Customer’s agreement to the General Conditions of Sale and waiver of its own general conditions, if any, subject to any amendments, additions or waivers to these Conditions agreed by the parties, which shall be in written form.
In the event of the supply of spare parts or products taken directly from our stores without issue of an Offer or Order Confirmation, the contract shall be finalised on issue of the invoice and the Customer declares itself to be familiar with and to accept these General Conditions of Sale.
The Vendor shall have the right to refuse any Orders not properly drawn up or signed.
5. Withdrawal and cancellation of the Contract
The Vendor shall have the right to withdraw from the contract with no charge if it becomes aware of protested bills, or the start of security, warnings or bankruptcy proceedings, including out of court proceedings, against the Customer or moneys owed by the Customer to the Vendor’s exclusive dealers and/or agents.
Unless otherwise agreed, goods shall be delivered ex-works Vendor’s store and delivery shall thus take place at the moment when the products are placed at the Customer’s disposal at our company’s plants or stores or on the premises of its agents or dealers.
Although complied with as far as possible, the delivery terms stated in the Order Confirmation shall be purely guideline, representing the forecast delivery date at the time when the Order Confirmation is drafted; the Vendor shall not accept any liability for damage arising from delays in delivery. Delivery terms shall be the date when the products are consigned to the transport company and shall always be calculated in actual working days. Any risk, including the deterioration of and accidental damage to the product supplied, shall pass to the purchaser on delivery and, in the case of purchases for shipment, on consignment of the goods to the forwarding agent, the courier or the person or organisation appointed to handle the shipment.
The loss or deterioration of the goods after transfer of the risks to the purchaser shall not relieve the latter of the obligation to pay the price.
7. Product characteristics
In view of its policy of the constant improvement of its Products, the Vendor shall reserve the right to modify their concept or specifications without notice. The Vendor guarantees that the Products are equipped with safety features compliant with the current European occupational health and safety regulations.
Apart from the details specified in the “Machinery Description” section of the Order Confirmation and the Operator’s Manuals, the Supplier does not guarantee that the Products conform to particular standards and/or specifications requested by the Customer unless specifically accepted by the Supplier.
Unless otherwise agreed, preliminary testing of machines shall take place on the premises of Fantini Sud S.p.a., while final testing, when specifically requested or envisaged, shall be carried out on the Customer’s premises with installation and commissioning or start-up.
On arrival of the Products, the Customer shall be responsible for inspecting their condition and type and their compliance with the Order, also checking that the delivered goods correspond to the details stated by the Vendor in the shipping document.
Any loss and/or damage noted on the packaging on arrival of the Products must be reported to the transporter at once.
Any complaints to the Vendor for shipments which do not conform to the Order must be made at once and confirmed in writing within 3 days of receipt of the Products by the Customer. In the absence of any such complaint, the Vendor shall be relieved of all obligations in relation to the Customer.
In the event that transport for the Products is arranged by the Vendor, the latter shall be free to choose the means of delivery. Goods shall always travel at the Customer’s risk and expense. On the Customer’s request and at its expense, our company shall insure the shipment against theft, breakage, fire, damage in transit and water damage, and against other insured risks. In the event of delay in shipment due to circumstances for which the customer is responsible, the risk shall be transferred to the customer with effect from the date of notification that the goods are ready for shipment.
10. Failure to collect goods
In the event that the delivery of the goods, or even just one shipment lot, cannot actually be made due to circumstances beyond the Vendor’s control, once fifteen days have passed after receipt of the “goods ready and awaiting shipment” notice sent to the Customer in writing, the Vendor shall be entitled to terminate the contract unilaterally and to retain any sums already paid as compensation, subject to the right to claim further damages. The Vendor shall retain the right to use all legal remedies to obtain redress for the Customer’s default.
The price due from the Customer for the Products, and the relative currency, shall be as stated in the Order Confirmation; payments in currencies different from the one agreed may be accepted but the value assigned to the payment in the accounts shall be that deriving from the actual exchange rate applied on the date of receipt of the payment.
Payment terms shall be considered essential conditions of the contract. In the event that the Customer defaults on the agreed payment terms, subject to the right to terminate the contract and any other right under the law or these Conditions, the Vendor shall reserve the right immediately to suspend and/or interrupt the delivery of further Products, with no consequent liability. In addition to the above, in the event of default on payment of the price, the Vendor shall be entitled to compensate any sums owed to it by the Customer.
Interest shall be charged on all sums left unpaid after expiration of the due date, at the rate and by the procedures envisaged by Italian Decree Law no. 231 dated 23/10/2002.
Unless otherwise stated, prices shall be calculated without packaging, freight or insurance.
12 Payment terms and procedures
The price of the Products shall be paid by the Customer to the bank current account specified by the Vendor on each occasion. The Customer hereby agrees that the Vendor may nominate a third party as the only party entitled to receive the payment which extinguishes the debt; the details of any such party shall be notified to the Customer in writing without delay.
13. Retention of ownership
All sales are made with express retention of property rights, so the Customer may not mortgage the Product nor transfer ownership of the same to obtain financial cover, until the debt has been fully extinguished.
In the event of attachments, distraints by third parties, the Customer shall notify the Vendor at once by registered letter with return receipt.
In the event that all or part of the payment is to be made after delivery, the Products delivered to the purchaser shall continue to be the property of the Vendor until full payment of the price.
The Customer shall also undertake not to sell the Products to third parties, even temporarily, and not to lend or lease them to third parties, or to remove or transfer them, without the Vendor’s prior written consent. The Vendor shall be entitled to waive the contents of this article in writing.
14. Force majeure
Force majeure shall signify any unpredictable action and/or event, beyond the direct control of the contract parties, for which no swift remedy is available (e.g. war, acts of terrorism, uprisings and riots, transport and/or customs strikes, interruptions in communications, embargo, fire, sabotage, natural disasters or other adverse natural events such as blizzards, floods, gas leaks, impedance by the measures of Government, fiscal or customs authorities, and the suspension of the supply of raw materials , equipment, motive power, electricity or fuel, or the provision of labour). On the occurrence of circumstances of force majeure, the obligations on the parties which cannot be fulfilled due to these events shall be considered automatically suspended, without penalty, throughout the duration of the state of force majeure.
However, the parties shall undertake to do everything in their power to ensure the normal fulfilment of their obligations within a short time.
In the event that the parties are unable to fulfill their obligations for a period of time of more than six months due to the persistence of the circumstances of force majeure, they shall meet to reach the appropriate decisions with regard to the Contract.
Where envisaged, the documentation required under the Machinery Directive no. 2006/42 EC shall be supplied in Italian and/or English and the Customer shall specifically relieve the Vendor of the obligation to deliver manuals in languages not amongst those listed above, undertaking to make any translations for the use of its own end users.
16. Use of software
If the sale/supply includes the software, the Customer shall be granted the non-exclusive right to use the software supplied and the relative documentation. The software shall only be supplied for use on the Product sold intended for the purpose, and its use on more than one system shall be forbidden.
17. General conditions for hire, trial, viewing and temporary export
Unless specifically agreed to the contrary, when the Product is delivered to the customer for hire, trial, viewing or temporary export, the delivery shall not imply transfer of ownership and the Product may not be transferred or lent to third parties.
The Customer shall notify the Vendor of the insurance cover planned and/or obtained, on its responsibility and at its expense, against all risks, for the full value of the Product or for the amount stated in the Order Confirmation.
If no suitable insurance cover is obtained, the Delivery (or collection) of the Product may be conditional on payment of the specified sum as a Deposit or the provision of a suitable bank guarantee for the amount set in the Order Confirmation on the basis of the Product’s value, or the provision of a suitable bond.
The Customer shall take delivery of the Product and equipment with compilation of the appropriate report. In the event that transport of the Products is arranged by the Vendor, the latter shall be free to choose the means of delivery and the Products shall travel at the Customer’s risk and expense.
From the moment of delivery (or collection), the Customer shall relieve the Vendor of any liability under criminal or civil law for injury and/or damage arising from the use of the Product.
The Customer shall have full liability under civil or criminal law arising from the use of the Product and the relative equipment, even in relation to third parties.
All expense and costs arising from the operation and use of the Product during the hire/trial/viewing/temporary export period shall be payable by the Customer.
The Customer shall undertake to take care of the Product with all due diligence, and to use it solely for its intended purpose. The Product shall be supplied with the necessary certification and complete with operator’s manual; the Customer shall undertake to implement all procedures necessary to train and inform its employees and assistants assigned to use the Product.
The Product shall be returned at the scheduled date and at the Customer’s expense, in the condition in which it was delivered, and the Vendor shall be entitled to claim against the Customer for the costs incurred for collection and any repairs or damage, except for those arising from normal wear and tear of the Product.
Unless otherwise stated in writing, the duration of the warranty from the date of delivery shall be:
– for chain saw machines, 12 (twelve) months;
– for plants (generators, power supply systems, cutting machines, welding and positioning equipment), 12 (twelve) months.
For Products installed on “JCB” tractors (e.g. JCB model tractors equipped with Fantini Sud S.p.A. cutting system), or for any products installed on parts produced by Third Party constructors, the duration and conditions of the warranty shall be subject, with regard to these parts, to the General Conditions applied by the constructor in relation to Fantini Sud S.p.a. and published by the former on its Internet site.
The warranty shall not apply to consumable materials and parts subject to wear and tear specifically mentioned in the Order Confirmation and, in general, to all parts intrinsically subject to wear and tear; the warranty shall not apply to replacements or repairs necessary due to normal wear of materials, their improper use, failure to comply with the use or maintenance instructions, poor maintenance (e.g. failure to change oil and/or filters, insufficient lubrication, low lubricant levels, or greases or lubricants other than those we recommend), the improper use of the Product, the use of the Product by staff without the necessary training, or modifications made without the Vendor’s permission, and malfunctions due to the use of spare or consumable parts not supplied as genuine by the Vendor. To receive warranty cover for obvious defects, the Customer shall notify the Vendor of defects it attributes to the Product within 2 (two) days after receipt of the goods and in writing, providing all necessary documentation, and also
submitting proof of purchase. Concealed defects shall be reported in writing within 10 (ten) days after their discovery. The Vendor undertakes to repair and/or replace the Products and/or their components due to defects.
Freight costs for the return of Products and/or their components to the Vendor for repair and/or replacement shall be paid by the Customer. The warranty shall cease to apply in the event that the Customer repairs or modifies the Products, or has any such work done by third parties, without the Vendor’s written consent. Work done under this warranty shall not imply an extension of the same but only the start of the new warranty for the replacement parts.
19. Election of domicile
The Customer shall elect domicile at its registered office which, unless otherwise stated in writing, shall be the domicile provided at the time of dispatch of the purchase Order.
Our company shall address all its communications, and arrange the service of all documents, including injunctions, to this domicile.
20. Applicable law
This Contract shall be subject to Italian domestic law and all items not specifically regulated by these General Conditions of Sale shall be governed by the Italian Civil Code.
The official language of the Contract, to which reference shall be made, shall be Italian, even if these General Conditions of Sale are translated into other languages (English, French, German, Spanish, etc.).
The Law Court of Frosinone (Italy) shall have sole jurisdiction over any disputes arising from contracts signed in Italy with either Italian or foreign customers.
Any disputes arising from contracts signed abroad shall be submitted to a Board of Arbitration while the parties shall retain the right to appeal to the International Chamber of Commerce (I.C.C.) (ITALY)
The Vendor shall retain the right to take legal action before the law court of the location where it has its registered office or plant, or the location where the Purchaser has its registered office, to obtain precautionary and/or urgent measures.
22 Data Protection (Decree Law 196/2003)
The Vendor shall use the personal data supplied by the Customer, or otherwise acquired from third parties, by computerised and/or manual means, with procedures and processes depending on the purposes for which the data are used.
The data shall be used for the fulfilment /signing of the Contract, for the exercise or defence of rights, and for compliance with legal obligations. The provision of the data for the fulfilment of this Contract is necessary and compulsory to comply with legal requirements; the failure to provide them renders the fulfilment of this Contract impossible. The Vendor’s staff and the Trustee, if appointed, have access to the data; the Customer may request the up-to-date list of the Trustees and the subjects to whom the data are disclosed, who are: authorities, public institutions, banks, staff, third parties for technical and organisational services used for the above purposes, other companies in the group, and the legitimate recipients designated by law, who use the data as Controllers, Trustees, or users, respectively, for the above purposes. The Customer may exercise its rights under art. 7 of the Data Protection Law at any time, by contacting the Data Controller, for example, to obtain confirmation of the existence or otherwise of data, verify their contents, origin and accuracy, request their supplementation, updating, rectification or deletion, conversion into anonymous form or freezing further to a breach of the law, or oppose their use on legitimate grounds. The Data Controller for Fantini Sud S.p.A. is Luigi Fantini. Consent is not necessary for use of the data as aforesaid for fulfilment of legal obligations, for the exercise of a right or for the implementation of this Sales Contract.
SIGNED FOR ACCEPTANCE
FANTINI SUD S.p.A.
For acceptance of the articles nr. 4, 5,11,13,15,20,21.
SIGNED FOR ACCEPTANCE
FANTINI SUD S.p.A.