These General Terms for the Sale of Goods shall exclusively apply to all future contracts for the sale of goods between Elcontrol ENERGY NET Srl (hereinafter referred to as "Elcontrol") and the buyer, unless expressly modified in writing by Elcontrol and the buyer (hereinafter collectively referred to as the "parties"). Elcontrol shall enter into contracts exclusively on the basis of these General Terms for the Sale of Goods, notwithstanding any other general or particular conditions of the buyer. The offer, order, order acknowledgement, order acceptance issued for the conclusion of the contracts covered herein, shall be regulated by these General Terms for the Sale of Goods. Any conditional or different terms proposed by the buyer shall not be binding upon Elcontrol, unless accepted in writing by Elcontrol. Any reference to trade terms contained in these General Terms for the Sale of Goods, or contained in any order, order form, order acknowledgement, acceptance, order acceptance, or contained in any other contractual document regulating the relationships between the parties, shall be interpreted in accordance with Incoterms published by the International Chamber of Commerce (ICC), last published edition at the time of the conclusion of the relevant contract. Any typographical, clerical or other errors or omissions in any sales literature, catalogues, quotations, price lists, offers, invoices, manuals or any other document issued by Elcontrol will be corrected without any liability to Elcontrol. The place of performance of all the contracts for the sale of goods between Elcontrol and the buyer is Elcontrol's registered office in Pontecchio di Sasso Marconi , Bologna, Italy.
No order placed by the buyer shall be deemed to be accepted by Elcontrol unless confirmed in writing by Elcontrol within sixty (60) days from the receipt of the order. To this effect, unless otherwise agreed, electronic or fax messages from Elcontrol to the buyer, reporting the order number and the scheduled delivery dates, constitute confirmation and acceptance of the order, with the reserves and modifications appearing therein. Nevertheless, whenever Elcontrol receives an order from the buyer and intends to comply with the conditions set forth in the same, the order is deemed to be accepted and the relevant contract concluded as soon as Elcontrol performs or takes steps to perform the order. In the latter case, Elcontrol shall anyway inform the buyer of the acceptance of the order within sixty (60) days from the receipt of the order. If Elcontrol accepts and/or confirms an order with reserves, modifications or additions to it, the relevant contract shall be concluded at the terms and conditions of the order with the reserves, modifications or additions placed by Elcontrol, unless the buyer gives a notice in writing to Elcontrol within five (5) days from the receipt of the acceptance or confirmation whereby it expressly indicates which reserves, modifications or additions it is unwilling to accept. Should the latter situation occur, Elcontrol, within eight (8) days from the receipt of the buyer's notice, may give a notice in writing to the buyer whereby Elcontrol accepts the order in its original version, or with the reserves, modifications or additions previously made by Elcontrol together with the modifications and deletions required by the buyer. All Elcontrol's offers are made without any commitment on its part and shall be intended only as invitations to offer. Each order placed by the buyer is a final and irrevocable offer for a thirty (30) days period from the receipt of the same by Elcontrol. All changes or cancellations are prohibited, unless expressly authorised by Elcontrol in writing. Any request from the buyer to Elcontrol for additional goods shall be deemed to constitute a new and independent order. The quantity, quality, specifications and description of the goods shall be those set forth in Elcontrol's quotation (if accepted by the buyer) or in the buyer's order (if accepted by Elcontrol). The goods specifications, sales literature, quotations etc. shall be strictly confidential and must not be made available to third parties. The buyer is responsible to Elcontrol for ensuring the accuracy of all data reported in the order. The buyer shall promptly give Elcontrol any necessary information to enable Elcontrol to perform the order in accordance with the terms provided for therein. Elcontrol reserves the right to make any changes in the specifications of the goods which are required to conform with any applicable statutory requirements or with any new and/or different Elcontrol's technical specifications, provided that such changes do not materially affect their quality and performance.
The prices of the goods shall be Elcontrol's quoted prices or, where no prices have been quoted, the prices listed in the current Elcontrol price list and/or reported in the relevant Elcontrol offer at the date of acceptance of the order. Where the goods are supplied for export from Italy, Elcontrol's published export price list shall apply. Elcontrol reserves the right, at any time, to change its price lists. Elcontrol reserves the right, by giving notice to the buyer at any time before delivery, to increase the prices of the goods to reflect increases in the costs to Elcontrol which are due to any factor beyond Elcontrol's control (such as foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of materials or other costs of manufacture) or any change in delivery dates required by the buyer. Except as otherwise agreed in writing between the buyer and Elcontrol, all prices are given by Elcontrol on an Ex-Works Pontecchio di Sasso Marconi-Bologna-Italy basis. Where Elcontrol agrees to deliver the goods other than at Elcontrol's premises (Pontecchio di Sasso Marconi, Bologna , Italy) the buyer shall be liable to pay Elcontrol's charges for transport, packaging and insurance. The prices do not include any applicable tax, value added tax, fees and similar which the buyer shall be additionally liable to pay to Elcontrol.
Unless otherwise agreed in writing between the parties, the buyer shall pay the price of the goods in advance. Payments shall be effected by interbank payment transaction. No cheque or bill of exchange shall be considered as fulfilment of the payment obligation. In case of agreement for deferred payment, Elcontrol may at any time, even in the case of regular payments on due dates, request the buyer to provide payment guarantees within eight (8) days from Elcontrol's request. In this case the buyer may, at its own discretion, either deliver an irrevocable letter of credit issued by its bank (or any bank accepted by Elcontrol) in accordance with the ICC Uniform Customs and Practice for Documentary Credits, latest edition, or provide Elcontrol with a first demand bank guarantee, issued in accordance with the ICC Uniform Rules for Demand Guarantees, by a primary bank and payable on simple declaration by Elcontrol that it has not received payment within the agreed term. The buyer's refusal or failure to put up such guarantees will be considered as the non-performance of its payment obligation. If the buyer fails to make any payment or to exactly perform its payment obligation on due dates, then, without prejudice to any other right or remedy available to Elcontrol, all claims pending between the parties, even though arising from separate contracts, shall become payable immediately. Notwithstanding the foregoing, Elcontrol shall at its discretion be entitled either to: - terminate the contract and demand an amount in damages equal to twenty percent (20%) of the amount invoiced, excluding taxes, as well as the reimbursement of all costs, judiciary and extra-judiciary fees, without prejudice for the possibility to demand the entire amount of the damage suffered, and to cancel or suspend the performance of all or part of pending orders, even if already confirmed and/or accepted by Elcontrol itself; or - charge the buyer for interest on the amount unpaid, without the need for any notice to this effect, at the rate of four percent (4%) per annum above the European Central Bank discount rate, from the due date until full payment is made, without prejudice for the possibility to demand the entire amount of the damage suffered as a consequence of the delay.
Unless otherwise agreed in writing between the parties, the goods are delivered Ex-Works Pontecchio di Sasso Marconi (BO) - Italy.
Provided that the delivery of the goods is Ex-Works Pontecchio di Sasso Marconi (BO) - Italy and that all the risks of loss or damage of the goods pass to the buyer upon delivery, if the buyer asks Elcontrol to deal with the shipment of the goods and Elcontrol accepts, Elcontrol may determine the itinerary and the least costly means of transportation and anticipate transportation costs which shall be invoiced to the buyer together with the price of the goods. Delivery dates are not binding and delays do not entitle the buyer to damages. Sixty (60) days following the expiration of the delivery dates, the buyer may formally request Elcontrol to deliver the goods within additional ninety (90) days. Beyond the latter date, it may refuse delivery without entitlement to damages. Elcontrol has the right to suspend performance of its contractual obligations when such performance becomes impossible or unduly burdensome, due to unforeseeable events beyond its control. Under these circumstances, Elcontrol promptly communicates to the buyer the occurrence and the end of such force majeure events. Should the suspension due to such events last more than fifty (50) days, Elcontrol have the right to terminate the contract by a ten (10) days written notice to the buyer, without entitlement of the latter for damages. The buyer shall inspect all goods as soon as it takes delivery of the goods. The buyer shall also perform any other activity to reserve all possible rights and claims against the transportation company or third parties, in case of damaged, missing goods, etc. For its own protection the buyer should immediately report shortage or damage in transit to the carrier. The buyer should obtain a notated delivery receipt stating the quantity of the product shorted or damaged on all copies of the delivery receipt at the time of delivery. The legible signature of the driver must appear on all copies of the delivery receipt. Under no circumstances will a claim be allowed if a customer disposes of product which has been damaged in transit, concealed or otherwise, without the carrier’s or Elcontrol advance approval. . If the buyer fails to take delivery on due date, it shall nevertheless make any payment conditional on delivery as if the goods had been delivered. In this case, Elcontrol shall arrange for the storage of the goods at the buyer's risks and costs. If required by the buyer, Elcontrol shall insure the goods at the buyer's costs.
All risks of damage or loss of the goods pass to the buyer at the time of delivery at Elcontrol premises in Pontecchio di Sasso Marconi (BO) - Italy. Although the parties agree in writing that the goods are to be shipped in places other than at Elcontrol premises, nevertheless all risks of damage or loss of the goods shall pass to the buyer at the time of delivery at the agreed place, according to article 4 of the present General Terms for the Sale of Goods.
Notwithstanding delivery and the passing of risks in the goods, or any other provision of these General Terms for the Sale of Goods, the property in the goods shall not pass to the buyer until Elcontrol has received full payment of the price of the goods. The buyer shall take all steps required by its national law in order to make this retention of title clause enforceable against third parties. Elcontrol shall have absolute authority to retake, sell or otherwise deal with or dispose of all or any part of the goods which are still property of Elcontrol. Until the time in which the property in the goods passes to the buyer, the buyer shall hold the goods as Elcontrol fiduciary agent and shall keep the goods properly stored, protected and insured. Until that time the buyer shall be entitled to resell or use the goods in the ordinary course of its business, but shall account to Elcontrol for the proceeds of the sale (or otherwise) of the goods (including insurance proceeds) and shall keep all such proceeds separate from any money or properties of the buyer and third parties.
Elcontrol warrants that the goods delivered under these General Terms for the Sale of Goods shall be free from defects in material and workmanship, in accordance to the Elcontrol specifications and suitable for the purposes declared by Elcontrol, for a period of twelve (12) months from the documented purchase date, with the exception of DMM3, ED39din, VIP396, Star3, Star3 din and Sirio analysers for which the warranty period is thirty-six (36) months. The warranty includes only those hardware parts recognised as defective. It does not cover software, labour costs, consumable material or transport costs. Warranty repairs will be carried out only if Elcontrol acknowledges manufacture defects or low quality materials. The warranty will not apply if the defect has been caused by: wrong power supply, overvoltage, wrong connection, tampering, repairs or modifications carried out without prior approval from Elcontrol; Mechanical shocks or different use conditions than those described in the User Manual. No damages deriving from the product’s standstill or damages caused to a third party will be recognized. Faulty products must be returned carriage paid to the local importer/distributor or to Elcontrol, after prior authorization by Elcontrol. Within the warranty period , faulty products must be returned together with documentation proving its purchase date. Elcontrol shall not be liable under the above warranty if the total price for the goods has not been paid by the buyer at due dates
Warranty claims for defects of the delivered goods, either apparent or hidden defects, must be in writing and filed by the buyer to Elcontrol by registered letter with return receipt. The buyer shall in no event return the goods without being authorised to do so by Elcontrol or by a decision of the competent Court. The goods must always be returned within ten (10) days as soon as the authorisation is issued by Elcontrol or the Court. In the event of a claim, and notwithstanding the content and reason thereof, the buyer is obliged to pay the amount of the relevant invoice in full. No claims shall be accepted, nor effective, once the goods delivered have been altered, modified or in any way used by the buyer. Discrepancies which are commercially commonplace and discrepancies which cannot be avoided technically, in particular involving quality, colour, processing, design, and similar, cannot be object of complaints. Elcontrol reserves the right to make any change in the specifications of the goods which do not materially affect their quality and performance. Any of such changes cannot be object of complaints. Where any valid claim, based on a defect in the quality or condition of the goods or their failure to meet specification, is notified to Elcontrol in accordance with the terms herein provided, Elcontrol shall be entitled, at Elcontrol sole discretion, to replace the goods free of charge or repair the goods or issue a credit note. All damages are excluded. During the term of validity of the warranty, transportation costs related to the shipments of the defective goods , to and from Elcontrol , shall be borne by the buyer.
Except for the warranty herein provided under article 7, in no event Elcontrol shall be liable for any material, direct or indirect, consequential or special damage suffered by the buyer, including, without limitation, lost profits or lost savings, loss or damage to records or data of the buyer, third-party claims for damages and/or damages arising from any application carried out by the buyer - either for its own or third party benefits - using Elcontrol goods.
The buyer shall refrain from reproducing all or portions of the samples and goods it has purchased or seen, and from transmitting data to third parties permitting the total or partial reproduction of these samples or goods. The buyer shall not disclose any confidential information obtained from Elcontrol or regarding Elcontrol or Elcontrol's goods or Elcontrol's business. Should the buyer disclose any such information, Elcontrol shall be entitled to terminate immediately the relevant contract and to obtain a sum equal to the value of the buyer's total purchases of the preceding year. All drawings, designs, patterns, documents, elements, models, software samples, technical information, advertising materials and similar given to the buyer remain Elcontrol's property and must be returned on request. The buyer undertakes not to copy, reproduce, disclose to third parties by any means the foregoing materials and shall make its best efforts to keep them strictly confidential. Failure to comply with the foregoing provision shall entitle Elcontrol to immediately terminate the relevant contract and to immediately suspend any order in course, even though related to separate contracts, and to claim damages.
The buyer shall indemnify and hold Elcontrol harmless from any patent infringement claim, loss, damage, suit, liability, fees or expenses (including reasonable attorney's fees) which may be suffered by Elcontrol on account of the following buyer actions: (1) the use of components or goods not supplied by Elcontrol, (2) the modified goods which become infringing as a consequence of the modification, (3) the use of the goods in infringing combinations or systems or apparatuses, (4) the use of the goods in infringing processes, (5) the use of the goods in association with third parties trademarks or distinctive signs.
These General Terms for the Sale of Goods shall be governed by and construed in accordance with Italian law. Unless the parties expressly agree in writing upon an arbitration clause, the parties agree to submit all disputes arising out of or in connection with the contracts covered herein to the exclusive jurisdiction of the competent Court of Bologna - Italy.
The buyer hereby give his consent to the processing and diffusion of his personal data for the following purposes:
The buyer hereby gives his consent to the disclosure of his personal data to those recipients to whom the disclosure is necessary and/or useful for the compliance with the obligations of the contracts regulated by these General Terms for the Sale of Goods. The consent mentioned above also includes the disclosure of the personal data to those advisors and/or corporations acting on behalf of the Elcontrol in the processing of accounting and administrative data. The buyer hereby gives his consent to transfer abroad his personal data to those recipients to whom the disclosure is necessary and/or useful for the compliance with the obligations of the contracts regulated by these General Terms for the Sale of Goods and for accounting and/or fiscal purposes. Except as otherwise provided for or specified by these General Terms for the Sale of Goods, Elcontrol will be free to process and disclose their personal data within the cases provided for by law.
These General Terms for the Sale of Goods supersede and invalidate all other commitments and warranties relating to the subject matter hereof which may have been made by the parties either orally or in writing prior to the date hereof, and which shall become null and void. All the contracts regulated by the present General Terms for the Sale of Goods shall not be transferred or assigned by the buyer without Elcontrol's written consent. Each party shall be responsible for all its legal, accountancy or other costs and expenses incurred in the performance of its obligations arising from these General Terms for the Sale of Goods. The invalidity of any one of the provisions contained in the present General Terms for the Sale of Goods, or the invalidity of any provision contained in any other contractual document intended to regulate the relationships between the parties, shall not undermine the validity of any of the other conditions contained herein.