Terms and Conditions of Sale

1 General – Scope of Application

1 The general terms and conditions of sale (“Sales Conditions”) set forth herein apply to all products or services (“Products”) supplied by Movex S.p.A (“Seller“) to a purchasing company (“Buyer”) in a sales transaction. Seller does not accept conditions of Buyer which are contradictory to or diverging from the Sales Conditions unless Seller expressly approves of their validity in writing. These Sales Conditions also apply in case Seller supplies Buyer without reservations even though contradiction or divergence of the Buyer’s conditions from the Seller’s Sales Conditions is known to Seller.

2 All agreements between Seller and Buyer concerning the performance of the contract at hand are set down in writing therein. For the avoidance of any misunderstandings, subsidiary agreements not put into writing do not exist.

3 Until further notice, the Sales Conditions also apply to all future transactions with Buyer.

2 Size of order 

1 The size of the order is to be determined by Seller's  written confirmation of order .In the event that Seller submits an offer open for acceptance within a specified period and that offer is accepted by Buyer within that period Seller's offer shall determine the size of the order. Any amendments to or variations from Seller's written confirmation of order or offer require  Seller's confirmation in writing.

2 Seller reserves the right to deliver +/- 10% of the ordered quantity and/or technically altered Products, if such minor and/or major quantity and/or technical alteration is reasonable with respect to the Buyer’s needs.

3 Seller reserves title and any copyright with respect to any estimates of costs, drawings or other documents that Seller has sent to the Buyer. Any such document may not be disclosed to any third party without Seller's prior consent in writing and must be returned to Seller upon request without delay.

3 Performance

1 Delivery products may be subject to modifications as far as customary in trade or technically inevitable and not unreasonable for Buyer.

2 Specifications concerning conditions and possible use of Seller’s products do not imply any guarantee, particularly not in accordance with law, unless they are expressly set out as such in writing.

3 In view of sec. (2) Buyer is not released from the duty to test the suitability of the Products for the intended purpose.

4 Cancellation or modification requests can be evaluated only if placed within 48 hours after receipt of order confirmation.

Any modification requested after that period will not be taken into consideration, unless differently agreed between the parties.

5 Seller shall use reasonable endeavours to deliver the agreed quantities of serial Products according to Buyer’s wishes or agreed-upon drawings and of Seller's outsize non-standard Products  but shall not be liable for minimal deviations.

The quantity actually delivered shall be charged. In case of prepayment, the difference shall be credited at once. In case of short delivery Buyer shall be informed immediately..

4 Prices – Terms of payment  

1 Unless otherwise agreed by Seller in the order confirmation, prices are quoted in EURO and are effective EXW warehouse Castelli Calepio, Incoterms 2020, packaging not included.                            

Any other possible additional costs, such as bank charges or expenditure for customs clearance, shall be borne by Buyer.

2 Minimum value for orders is EUR 100.00 net of product value. In case of lower value, handling fee of EUR 25.00 is charged.

3 Value added tax is not included in Seller’s prices; it is set out separately on the invoice at the statutory rate of the date of Seller’s invoice.

4 In case the delivery time is longer than 4 months Seller reserves the right to introduce price changes in case of cost increase after closure of contract, particularly owing to changes in cost of materials and to wage settlements. Changes in the individual items concerned shall be proven to Buyer on demand.

However, Seller shall not be obliged to disclose the calculation as a whole.

5 Should unusual substantial increases in cost occur after closure of the contract, e.g. in Seller’s or Seller’s suppliers’ costs for raw materials, energy   or freight, and should these rises lead to considerable increase in Seller’s   purchase prices and prime costs, Seller is entitled to demand negotiations with Buyer for price adjustment at once.

6 Failing any other explicit arrangements, payment must be credited net  within 30 days following the date of Seller’s invoice. Bills of exchange and cheques are only accepted on explicit agreement.

7 In case of default in payment, statutory regulations apply. Particularly, Buyer must pay interest at 8 percentage points above the current base rate of the European Central Bank on Seller‘s claim.

8 Buyer is not entitled to set off any counterclaims or to lay a lien on his payment, unless said claims are legally confirmed, undisputed or have been accepted by Seller.

9 Seller’s prices apply for the scope of performance and delivery that has been agreed. Any additional or special performance is charged for separately.

5 Terms of delivery

1 Delivery prior to the expiry of the delivery period and partial deliveries are allowed. Reservation is made that Seller is supplied with the material in a punctual and correct way.

2 Any term of delivery is approximate and not binding, unless confirmed by Seller in writing.

3 The delivery period shall commence from the day on which Seller forwards Seller's confirmation of order or from acceptance of Seller's offer by Buyer. The delivery period shall be met if on its expiry the Goods have left Seller's works or if Buyer has been notified of their readiness for dispatch.

4 The delivery period shall be extended by an appropriate period in the event of industrial disputes and in particular of, but not limited to, strikes and lock-outs , and any unforeseen obstacles beyond Seller's control. 

Seller shall notify Buyer as soon as possible of the beginning and the end of obstacles of the above-mentioned type.

5 If after closure of contract Buyer requests modifications and/or amendments to the contract which make it impossible or unreasonably difficult to deliver the Goods within the agreed-upon delivery period, then the delivery period shall be extended by an appropriate amount of time. The delivery period shall also be extended by an appropriate amount of time if Buyer does not deliver all necessary documents, approvals, clearance papers, plans and other documents  in time.

6 If dispatch is delayed upon Buyer's request, Seller is entitled after expiry of one month after notification of the readiness of the Goods for dispatch, to charge Buyer for storage costs an amount of at least 0.5% of the invoiced amount for every month of additional storage of the Goods. This rate shall be higher if Seller proves higher damage. Seller is entitled to fix an appropriate extended grace period and on its expiry without any delivery having been made to decide otherwise on the Goods' usage and to supply Buyer within an appropriate delivery period at the prices then valid.

7 Seller shall have the right of retention with respect to further deliveries until all previous deliveries have been paid.

6 Delay in Delivery and Impossibility of Performance

1 Notwithstanding Buyer’s right to withdraw from the contract in case of defects of the Goods, Buyer may withdraw from the contract in the event of Seller's impossibility to perform or of a delay in delivery only if the impossibility to perform or the delay in delivery are caused by Seller's negligent or wilful act.

2 In the event of a delay in delivery, Buyer has the right to set a grace period of at least four weeks, indicating expressly that Buyer  shall withdraw from the contract and/or claim for damages upon fruitless expiry of the grace period. Upon fruitless expiry of the grace period Buyer shall, upon Seller's request, declare whether Buyer still claims for delivery or for damages or intends to withdraw from the contract. Buyer is not entitled to withdraw from the contract or to claim for damages instead of accepting delivery, should Buyer fail to notify Seller on Buyer's intention to do so within a reasonable period of time set by us.

7 Transfer of Risk, Shipping and Acceptance

1 The risk of loss and deterioration of the Goods shall be transferred to the Buyer immediately upon dispatch of the Goods to Buyer or collection of the Goods by Buyer. The same applies to partial deliveries and if Seller has accepted additional obligations, such as transportation costs.

2 Should dispatch be delayed in consequence of circumstances which Buyer is responsible for, the(1) risk of loss and deterioration of the Goods pursuant to the forgoing sub-clause shall be transferred to the Buyer at the date of notification of the readiness of the Goods for dispatch.

3 Packaging and shipping of the Goods are at Seller's discretion. All costs related to packaging and shipping are borne by the Buyer. Seller shall take insurance coverage against damages caused by theft, breakage, transport, fire, water and other insurable risks only upon an explicit request by Buyer in writing and subject to payment of the respective expenses by Buyer in advance.

4 Buyer must accept the delivered Goods, even in case of irrelevant deviations from agreed-upon quality of the Goods and irrelevant decrease in suitability of the Goods for a specific purpose.

8 Liability for Faulty Goods

1 Buyer’s right to claim for liability for defects presupposes Buyer’s inspection of the Products immediately upon delivery. Should any defects become manifest during such inspection, Buyer shall give written notice thereof to Seller immediately after discovery of said defect(s). Omission of notification shall be deemed as acceptance of the delivery products unless a defect appears later which was not identifiable during above inspection. Nevertheless, the delivery products are deemed accepted as well, if Buyer omits immediate notification of said (hidden) defects in writing. The timely dispatch of the claim shall preserve Buyer‘s rights. Furthermore, all provisions of the law shall apply.

2 In case of justified complaints Seller is entitled to subsequent performance which may be carried out as elimination of defect(s) or delivery of faultless items, as Seller‘s choice may be.

3 Subsequent performance – irrespective of its extent – shall not be considered as acknowledgement of any asserted defects.

4 Where subsequent performance fails, Buyer shall be entitled to rescission of the contract or to a price reduction, according to Buyer’s choice.

5 Statutory provisions shall apply in case of Buyer‘s claims due to Seller‘s intent or gross negligence. As far as claims do not concern any intentional breach of contract, Seller shall be liable for foreseeable, typically arising damages only.

6 Furthermore, statutory provisions shall apply in case of Seller‘s culpable breach of cardinal contractual obligations; in that event Seller‘s liability shall be limited to foreseeable, typically arising damages only.

7 As far as Buyer is entitled to claim for indemnity instead of Seller‘s performance, Seller‘s liability in the context of sec. (4) shall as well be limited to foreseeable, typically arising damages only.

8 Seller‘s liability for culpable personal injury shall remain unaffected as shall be liability according to the product liability rule.

9 Seller takes no further liability than stated above, particularly not for claims concerning indirect damage or loss of profit.

10 Period of warranty shall expire twelve (12) months after transfer of risk.

9 Return of Delivery

Return of products as new always requires Seller’s consent; costs for freight and packaging shall have to be borne by Buyer. A restocking fee starting from 25% may be deducted from the credit note made out for the amount of the returned delivery. Credit notes may only be credited with products.

10 Liability and Damages

1 Notwithstanding any other provision in the conditions, all claims for damages of the Buyer, i.e. liability for defects, liability for impossibility of performance and delay in delivery, as well as any liability for damages arising from a breach of any obligation before or at the time of contracting, breach of secondary contractual obligations, tort, or any other consequential loss or damage of whatsoever nature and howsoever arising shall be excluded. The same applies if the damage was caused by Seller's duly authorized agents.

2 Seller shall only be liable if and to the extend that it can be proved that Seller, the Seller's executives and/or duly authorized agents were acting wilfully or with gross negligence, including such cases in which Seller was in breach of cardinal obligations whereby the overall purpose of the contract was jeopardized. Seller shall not be liable for any irrelevant breach of Seller's obligations.

3 In case of negligent breach of cardinal obligations, Seller's liability shall be limited to the amount of the value of the order. Should, as an exception , the value of the order not correspond to the typically foreseeable damages arising from such breach of cardinal obligations, then Seller's liability shall be limited to such typically foreseeable damage.

4 Should Seller by ordinary negligence omit to provide, before or after the closure of the contract, the necessary instructions or not abide by secondary obligations - in particular the instructions for the operation and maintenance of the Goods and thereby cause damage or loss to Buyer, Seller's liability for aforesaid omission or non-observance is expressly excluded without prejudice to any liability for grossly negligent or willful acts.  

11 Intellectual Property Rights

1 Buyer warrants that production of items according to Buyer‘s instructions does not infringe third parties’ rights. Insofar Seller expressly excludes any liability.

2 Should infringement of intellectual property rights be substantiated to Seller by a third party, Seller is entitled to abandon any further activity running contrary to those rights.

3 If so, Buyer shall indemnify Seller from third parties’ claims on first demand. Buyer’s duty of release comprises any expenditure Seller necessarily incurs in the context of third parties' claims.

4 Seller reserves the right of further claims for indemnity.

5 Statute of limitation concerning said claims expires ten (10) years as of conclusion of the respective contract.

12 Retention of Title

1 Seller reserves the right of property in the delivery products until Buyer completely satisfies Seller‘s claims already agreed upon at conclusion of the contract at hand. In case of current account, retention of title serves as security for Seller‘s entire balance claim.

2 Buyer shall store the reserved property free of charge for Seller. Buyer is obliged to treat the reserved property with care; necessary maintenance or inspections are to be performed in time by Buyer at Buyer‘s own expenses. Particularly Buyer is obliged to insure Seller‘s property sufficiently according to its replacement value and at Buyer‘s own expenses against damage caused by fire, water, theft and vandalism.

Claims arising from said insurances as well as everything possibly acquired as a substitute according to the law are herewith assigned from Buyer to Seller; Seller hereby accepts assignment. Despite the transfer, Buyer is entitled to assert and collect the debt in his name, by legal proceedings if need be. Seller‘s entitlement to collection of debts remains unaffected by Buyer‘s authorisation.

3 In case of garnishment or other intervention of third parties, Buyer is  obliged to notify Seller in writing at once in order to enable Seller to institute an action (third-party claim proceedings) in accordance with the law; Buyer is obliged to inform concerned third parties about Seller’s rights. Buyer shall be liable for  Seller’s detriment, if and to the extent to which third parties are not able to refund costs arising in or out of court for actions taken in accordance  with the law.

4 Even after assignment Buyer remains authorised to collect outstanding claims. This shall not influence Seller’s right to collect the debt. However, Seller shall not collect the debt as long as: Buyer fulfils his obligation of payment from the sales revenue, Buyer is not in arrears with payment, no application for opening composition or insolvency proceedings is filed, payment has not been stopped.

Should one of these cases apply, Buyer may be required to inform Seller about the assigned debts and the respective debtor, to give all details necessary for collection, to hand over all necessary documents and to inform the debtor (third party) about the assignment of claims.

5 Buyer is not entitled to assignment of claims arising from the resale of Seller’s merchandise under reserved property.

6 Should the merchandise under reserved property be processed or modified by Buyer, such processing and modification shall always be deemed to have been performed on Seller’s behalf. Should the delivery products under reserved property be processed or modified along with other objects not belonging to Seller, Seller acquires co-ownership in the resulting merchandise at an interest depending on the ratio of value of the delivery products (amount of the invoice, taxes incl.) to the other objects‘ value which do not belong to Seller. Relevant value shall be that at the time of processing or modification. Furthermore, above provisions concerning delivery products under reserved property apply accordingly.

7 Should the resulting merchandise consist of Buyer‘s objects forming the main part, Buyer herewith undertakes to assign proportionate co-ownership to Seller according to Seller‘s contribution. The parties hereby agree upon passage of title. Furthermore, above provisions concerning delivery products under reserved property apply accordingly.

8 Seller hereby covenants to gradually release on Buyer‘s request the securities obtained by retention of title in so far as the property’s realizable value exceeds the debts to be secured not only temporarily by more than 10 %.

The choice of the securities to be released is incumbent upon Seller.

13 Secrecy

1 Buyer is obliged to keep all illustrations, drawings, calculations, other documents or information secret, as well as all commercial and technical details not commonly known, which Buyer has received in this business connection, unless disclosure has been expressly agreed by Seller in writing.

2 The secrecy obligation shall survive performance of this contract, but shall lapse if and in so far as the information included in the entrusted illustrations, drawings, calculations or other documents has become common knowledge.

14 Place of Performance – Jurisdiction

1 Unless otherwise stated in the order confirmation, Seller’s place of business shall be the place of performance.

2 The parties agree that for the settlement of all matters relating to the construction, performance, termination, validity and effect of this contract, none     

   excepted and barred, the Italian Jurisdiction shall be exclusively competent with territorial jurisdiction of the Bergamo Court.

15 Applicable Law

1 In addition to the above Sales Conditions, the parties agree that the transaction is subject to the Italian law.

2 Furthermore, Incoterms 2020 shall apply along with the Sales Conditions.

Notice for data protection: Seller informs Buyer that all data related to Buyer’s company is digitally stored or processed for Seller and Buyer’s business purposes.