general conditions of supply
General conditions of supply for machines and installations of Pulsar Engineering Srl.
1. Agreement
1.1 The following General Conditions of Sale (hereinafter “General Conditions”), if they are not expressively derogated, define all the Contracts of sale (the “Contract”), in Italy and/or abroad, concerning all the Products (hereinafter “Products”) produced or sold by Pulsar Engineering Srl (“the Supplier” or “the Seller”) to the Buyer (collectively the “Parties” and individually “the Party”). All the offers, the agreements and the deliveries made by the Supplier are generally submitted to the General Conditions set forth hereunder, except when specifically derogated in writing by the Supplier.
1.2 The Buyer cannot make over the Contract to a third party without the written approval of the Supplier.
2. Characteristics of the Products - Modifications
2.1 The Buyer hereby agrees to purchase from the Seller, and the Seller hereby agrees to sell and provide to the Buyer, the Products set forth in the Contract subjected to the General Conditions set forth hereunder. The Supplier shall be entitled to make any changes to the Products which, without altering their essential features, appear to be necessary or suitable and do not result in a price increase.
2.2 The Products are supplied in relation to the Buyer’s demand but without being in connection with other Products at the terminal points. Therefore, the Buyer is liable for the integration of the Products into the lines and the environment wherein is installed the equipment.
2.3 The Buyer is the main contractor and the solely referent for the Seller. Therefore, the Buyer shall organize the other parallel and concurrent supplies.
2.4 The Supplier shall supply the Buyer, free of charge, with the technical documentation relating to the Products. Said documentation shall be supplied to the Buyer exclusively in Italian and/or in English.
2.5 Each Party to the contract retains all rights to technical documents provided to the other. The Party receiving such documents recognises these rights and shall – without previous written consent of the other Party – not make these documents available to any third party, either in whole or in part, nor use them for purposes other than those for which they were handed over.
2.6 Any information or data relating to technical features and/or specifications of the Products contained in dépliants, price lists, catalogues and similar documents shall be binding only to the extent they are expressly referred to in the Contract.
2.7 The Buyer represents and warrants that the Buyer purchases the Products for a lawful and legitimate civil use (only) and is the end user of the Products. The Parties acknowledge that no resale or other use is authorized and that the Buyer shall be fully and solely liable for any violation hereof.
2.8 The Buyer shall, at latest when placing the order, draw the attention of the Supplier to the standards and particular regulations applicable to the execution of the supplies and services, to the operation of the plant as well as to the health and safety of personnel.
2.9 The Seller warrants that the Products are certified and comply with the Machinery Directive 2006/42/EC of the European Parliament and of the Council. They also satisfy the European essential requirements provided for the protection of health and safety.
3. Delivery
3.1 The delivery period starts from the moment when the Buyer has provided all information of any kind, necessary to enable the execution of the supply. In the event that, after the signing of the Contract, the Buyer requests technical changes, the Seller reserves the right to assess the feasibility, timing, and price of these changes even if they do not involve changes in price.
3.2 If the Supplier accepts the above changes, the delivery period shall be automatically extended and any agreement regarding penalties for delay shall be cancelled, unless the Parties explicitly agree otherwise. In addition, Buyer shall bear any price increase due to such changes.
3.3 The delivery period will begin as soon as the Contract has been concluded and all official formalities, such as, but not limited to, import, export, transit and payment permits, have been completed, payments due under the order have been made, any agreed warranties have been provided, and major technical points have been resolved. The delivery deadline will be considered met if by that time the Supplier has sent a notice to the Buyer informing that the supplies are ready for shipment.
3.4 The delivery period is reasonably extended if payments have not been made according to contractual obligations.
3.5 The delivery period shall be extended due to events beyond Supplier’s control or due to circumstances beyond Supplier’s control (strikes, fires, floods, production interruption, power failure, etc.) or otherwise due to reasons beyond Supplier’s good will or diligence (“Force Majeure”).
3.6 The Supplier shall have the right to terminate the Contract in whole or in part, if causes beyond control prevent or delay the performance of the contract and/or delivery of the supply without the possibility for the Buyer to claim compensation or claim damages of any kind or kind.
3.7 If the suspension due to Force Majeure lasts for more than six (6) months, either Party shall have the right to terminate the Contract with 10 days’ written notice to the other party.
3.8 Unless otherwise agreed in writing between the Parties, all deliveries of the Goods shall be made by Seller EXW (Ex Works) as defined in Incoterms® 2010, International Chamber of Commerce, with the understanding that any alternative delivery terms that may be agreed in writing, using commercial delivery terms included in Incoterms®, shall have the meaning ascribed in Incoterms®. In any event, whatever the delivery term agreed between the Parties, risks shall pass to Buyer, at the latest, upon delivery of the goods to the first carrier. In the event of delayed transmission at Buyer’s request or for other reasons not due to Supplier, the risks shall pass to Buyer on the date originally scheduled for delivery leaving Supplier’s factory.
3.9 Partial shipments are always allowed.
3.10 In the event of a delay in delivery for which the Supplier is responsible, the Purchaser may claim, after having summoned the Supplier in writing, compensation for actual damages incurred, up to a maximum amount of 5% of the price of the Products whose delivery was delayed.
3.11 Except in cases of fraud or gross negligence and as provided in clause 7.2, payment of the amounts specified in clause 3.10 excludes any further compensation for damages resulting from non-delivery or delay in delivery of the Products.
4. Prices
Unless otherwise agreed, prices are to be considered Ex Works, for Products packaged in accordance with trade custom with respect to the agreed means of transportation. All additional charges, such as, but not limited to, freight charges, insurance premiums, fees for export, transit, import and other permits, and for certifications, shall be borne by Buyer. Likewise, Buyer shall bear all taxes, duties, customs and similar charges that are imposed in connection with the Contract, or shall reimburse Supplier for them against adequate proof in the event Supplier is liable for them.
5. Payment
5.1 Unless otherwise agreed in writing between the Parties, payments (collectively the Down Payment and subsequent installments) shall be made to the bank account specified by the Supplier, unless otherwise specified, within 30 days from the date of the invoice, by bank transfer. Each payment shall be deemed made when the respective amount is available to the Supplier at its bank in Italy.
5.2 The Contract is denominated in Euro. In case of payment by a promissory note, the Buyer shall pay the cost of discounting such notes, taxes on the notes, and collection fees.
5.3 Payment dates must also be met if transportation, delivery, assembly, commissioning, or taking delivery of the supplies or services are delayed or prevented for reasons beyond the Supplier’s control, or if unimportant parts of the supplies are missing, or if post-delivery work must be carried out without the supplies being prevented from use.
5.4 The Contract shall become effective upon its signature by both Parties, provided that the Down Payment has been received by the Supplier. If the Down Payment is made after the signature by both Parties, the Contract shall have no effect unless the Down Payment is made and shall become effective at the time the Down Payment is made.
5.5 If the Down Payment or contractually agreed warranties are not provided in accordance with the terms of the Contract, the Supplier shall have the right to adhere to or terminate the Contract, and in either case shall have the right to claim damages and substantial interest.
5.6 If the Buyer, for any reason, is late with further payment, or if the Supplier is seriously concerned that it will not receive payments in full or on time due to circumstances occurring after the Contract was entered into, the Supplier, without being limited in its rights under the law, shall have the right to refuse further performance of the Contract and to withhold supplies ready for shipment until new payment and delivery terms are agreed upon and until the Supplier has received satisfactory assurances.
If such an agreement cannot be reached within a reasonable time, or in the event that the Supplier does not receive adequate guarantees, the Supplier shall have the right to terminate the contract and claim damages.
5.7 If Buyer delays in the agreed payment terms, Buyer shall be liable, without reminder, for interest from the agreed date on which payment was due without further notice, at the rate of 4% above the EURIBOR base rate for three months. The right to claim further damages is reserved.
5.8 The Supplier reserves the right to adjust prices if wage rates or raw material prices vary between the Supplier’s submission and the contractually agreed upon performance. In addition, an appropriate price adjustment will apply in the cases indicated below:
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the delivery period was subsequently extended for any reason stated in clause 3.4 or
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the nature or scope of the agreed supplies or services has been changed, or
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the material or performance underwent changes because the documents provided by the Buyer did not conform to the actual circumstances, or were incomplete.
Pulsar Engineering has always been particularly attentive to the regulation of privacy and confidentiality of the personal data it comes into possession of. For a complete description of the management of personal data, please refer to the Privacy Policy on the “Privacy” page.
6 Retention of title
Except as otherwise provided by applicable rule of law, which rule of law is absolute and may not be varied by contract, title to the Products shall pass to the Buyer only when the Buyer has effected the payment in full of the price of the sale in question and any of any previous transaction between the Parties as well as payment of any delay interest which may be due. If the Products are sold and delivered to third parties before the transfer of title in the course of Buyer’s ordinary business relations with the latter, retention of title of Seller shall also apply to third parties unless otherwise provided for by law. Alternatively, Seller shall acquire all the Buyer’s credit towards third parties arising from such sales and payments effected in respect thereof or, where that is not permitted by law, such sums shall be retained by the Buyer as Seller’s trustee with an undertaking to transfer to Supplier title to the same credits or to pay such sums to Seller on request. The Products subject to retention of title shall be kept by the Buyer physically separated and labelled as property of the Seller. The Buyer shall inform third parties of the content of this clause before entering into any sale of Products subject to retention of title.
7 Inspection, erection and start-up
7.1 Buyer shall have the right, at its own expense, to have the Products inspected by its representatives during the manufacture, assembly, disassembly, packaging and shipment of the Products during Supplier’s normal business hours and, in any event, upon reasonable written notice to Supplier, provided that such inspection does not interrupt the work of Supplier’s employees.
7.2 If, as a result of such inspections, Buyer believes that certain materials or parts of the Products are defective or do not conform to the Performance Criteria (hereinafter “Performance Criteria”) set forth in the Contract, Buyer shall notify Seller of its objections in writing stating the reasons therefor. In this case, the Seller shall inspect the Products and, if the Products do not meet the Performance Criteria or do not conform to the Contract, the Seller shall promptly begin to correct any nonconformity at the Seller’s expense and notify the Buyer again. Provided that these corrections cause a delay in delivery, in accordance with clause 3.10, the Buyer may claim, after summoning the Supplier in writing, compensation for actual damages incurred, up to a maximum amount of 5% of the price of the Products whose delivery has been delayed.
7.3 Prices are normally to be understood as not including installation and commissioning.
7.4 If installation and commissioning are agreed upon (included in the price or billed separately), the following conditions apply:
(a) The Purchaser shall provide auxiliary personnel and equipment for assembly and commissioning at its own expense;
(b) Costs for operating personnel during commissioning will be borne by the Buyer;
(c) Buyer shall be responsible for providing adequate foundations, buildings, lifting equipment, skilled and unskilled labor, water, power, and effluent connections, raw materials, and all material, labor, services, and facilities reasonably required for installation, erection, and commissioning;
d) If installation and commissioning cannot be completed in one trip due to circumstances for which the Supplier is not responsible, the additional costs incurred will be borne by the Buyer.
7.5 Within 10 days after installation, the Buyer may request commissioning (“Final Performance Test”) of the supply to verify its smooth operation. However, such commissioning must be carried out within 30 days after installation.
7.6 After the test with positive results, or once the time limit has elapsed without a request for commissioning by the Purchaser, or once the time limit has elapsed without commissioning being carried out for reasons beyond the Supplier’s control, the supply shall be deemed accepted by the Purchaser.
7.7 In case of unsatisfactory commissioning, according to the Performance Criteria, the Purchaser shall give the Supplier the opportunity to remedy the deficiencies reported in accordance with clause 7.2 as soon as possible.
7.8 If one or more remedies are not found within one hundred eighty (180) days after the commencement of the Final Performance Test for reasons not attributable to Buyer, Buyer may terminate this Agreement by written notice to Seller and Seller shall refund to Buyer the portion of the Purchase Price paid to that point, with the understanding that, without prejudice to the provisions of Article 10 below, Seller’s aggregate liability to Buyer for damages shall be limited to five percent (5%) of the Purchase Price.
7.9 The performance of a take-over test and the establishment of related conditions require a special agreement and must be written into the Purchase Agreement.
7.10 Deficiencies of any kind in supplies or services shall not entitle Buyer to rights and claims other than those expressly stipulated in clause 9 (warranty, liability for defects).
8 Performance guarantees
8.1 Supplier warrants that the Products, when assembled and started in accordance with the Contract, will meet the Performance Criteria (“Performance Criteria”) specified in the Contract.
8.2 It shall be the responsibility of the Purchaser to make the necessary adaptations in order to be able to produce the Products using the equipment provided by the Supplier. The Supplier will assist the Purchaser in the agreement regarding the assembly of the Products and commissioning.
9 Warranties
9.1 Supplier warrants and assures Buyer that (a) subject to the provisions of Article 6 above, title to the Products will pass to Buyer free and clear of any liens or encumbrances and (b) for a period of twelve (12) months from the date of completion of the Final Performance Test (hereinafter “Warranty Period”) the Products will be free from defects in materials and workmanship (hereinafter “Post-Sale Warranty”). Any manufacturing defects occurring during this Warranty Period will be corrected by Supplier at Supplier’s expense in accordance with the terms of this Post-Sale Warranty.
9.2 Any claim or demand relating to the packaging, quantity, number, or external characteristics of the Products (external defects) must be notified to the Vendor, by registered letter with return receipt, within eight (8) days of receipt of the Products; in the event of failure to do so, the Purchaser’s right to claim such defects shall be forfeited. Any claim for defects that cannot be discovered on the basis of careful inspection upon receipt (hidden defects) must be notified to the Vendor, by registered letter with return receipt, within twenty-one (21) days after discovery of the defects and in any event not later than twelve (12) months after delivery; in the event of failure to notify, the Purchaser’s right to claim the said defects shall be forfeited.
9.3 Supplier will repair or replace, at its option, any defective part covered by the After-Sales Warranty. Supplier shall have the right to choose between delivery of replacement parts, repair at Buyer’s site, or repair at Supplier’s workshop. When the materials used by the Supplier in the manufacture of the Products have been manufactured by third parties and are themselves the subject of warranties by such third party manufacturers, the Supplier shall make available to the Purchaser the same warranties made available to the Supplier by the third party manufacturers in lieu of the After-Sales Warranty.
9.4 Buyer acknowledges and agrees that Supplier’s warranty is expressly limited to manufacturing defects and the Warranty does not extend to defects arising from other causes, including, without limitation, defects caused in whole or in part by damage in transit, misuse handling or maintenance of the Products (unless such handling was directed or supervised by Supplier’s personnel) by any work performed or any modifications made to the Products by Buyer or any third party without Supplier’s prior written consent, or by normal wear and tear, nor does the Warranty extend to work, repairs, or replacements performed by Buyer or any third party without Seller’s prior written consent. This Warranty is exclusive and is in lieu of all other warranties, whether written, oral or implied.
9.5 The Supplier does not warrant that the Products will conform to special specifications or technical characteristics or be suitable for particular uses, except to the extent that such characteristics have been expressly agreed to in the Contract or in the documents referred to in the Contract for that purpose.
10 Limitation of Liability
10.1 Supplier’s warranties, assurances, and liability under and in connection with the Contract are limited to those expressly set forth in the Contract and the General Conditions. Except as expressly provided herein or by applicable law, which is absolute and cannot be varied by contract, Supplier shall have no liability in connection with the Products. In no event shall Supplier be liable for loss of profit, incidental or consequential damages, direct or indirect loss of any kind (including personal injury and property damage) or for any loss or damage resulting from mere recommendations given to Buyer by Supplier. The Parties acknowledge and agree that Supplier’s total liability arising out of and/or relating to the Contract (including but not limited to Supplier’s liability for the return of the Purchase Price in whole or in part) shall be limited, in each case, to the Purchase Price.
10.2 Except in case of fraud or gross negligence on the part of the Supplier, the Supplier’s sole obligation in case of defects, lack of quality or non-conformity of the Products shall be to repair or replace the defective Products. It is agreed that the above warranty (i.e.: the obligation to repair or replace the Products) supersedes any other legal warranty or liability to the exclusion of any other liability of the Supplier (whether contractual or non-contractual) which may otherwise arise out of or in connection with the Products supplied (e.g. damages, loss of profit, recall campaigns, etc.).
11 Training and maintenance
11.1 At Buyer’s request, Supplier will provide training courses for Buyer’s personnel on the use, maintenance and repair of the Products. All costs and expenses relating to the organization and holding of such courses shall be borne solely by Buyer, and Supplier’s rate for such training courses shall be the rate currently charged by Supplier for such activities at the time of Buyer’s request.
11.2 At Buyer’s request during the Warranty Period, as defined in Article 9.1 above, and in addition to the aforesaid Post-Sale Warranty, Supplier will provide Buyer with technical assistance in connection with the Products at Supplier’s current rate for such services at the time of Buyer’s request. All reasonable travel and living expenses incurred by Seller’s personnel in providing technical assistance under this Article 11 shall be borne solely by Buyer.
12 Major Force and Difficulty
12.1 Each Party shall have the right to suspend the performance of its contractual obligations when such performance becomes impossible or unduly burdensome due to unforeseeable events beyond its control, such as strikes, boycotts, lockouts, fires, war (whether declared or not), civil war, riots, revolutions, requisitions, embargoes, power blackouts, and delays in delivery of components or raw materials.
12.2 A Party wishing to avail itself of this clause must promptly notify the other Party in writing of the occurrence and termination of such Force Majeure circumstances. Failure to give such notice shall make the defaulting Party liable for damages and losses that otherwise could have been avoided.
12.3 If the suspension due to Force Majeure lasts more than six (6) months, either Party shall have the right to terminate the Contract by giving 10 days’ written notice to the other party. In this case, Supplier shall have the right to retain the portion of the Purchase Price already paid by Buyer as partial compensation for expenses incurred by Supplier in connection with the Contract.
12.4 If at any time during the term of the Agreement (a) Supplier’s continued performance of its obligations becomes unduly burdensome due to an event that was expected to be taken into account at the time of signing the Agreement, and (b) Supplier could not reasonably avoid or overcome such event or its consequences, the Parties shall, within thirty (30) days after Supplier’s written notice to Buyer to that effect, negotiate alternative contract terms to alleviate or mitigate the effects of such difficulty. If the Parties are unable to reach agreement on such alternative contractual terms, Supplier shall have the right to terminate this Agreement and retain the portion of the purchase price already paid by Purchaser as partial compensation for Supplier’s expenses incurred in connection with the Agreement.
13 Resolution
13.1 Each Party shall have the right to immediately terminate these Terms and Conditions, as well as any contract for the sale of Products that has not been performed, if the other Party commits a material breach of these Terms and Conditions.
13.2 In particular, the Seller shall have the right to terminate the Contract in the following cases: a) in the event that the Buyer violates any provision of Articles No. 4, 5 above; b) in the event that the Buyer becomes subject to insolvency or bankruptcy proceedings or liquidation proceedings, or its financial condition reasonably allows the Seller to assume that the Buyer will become insolvent; c) in all other situations provided for in the General Conditions.
13.3 The Purchaser shall have the right to terminate the Contract, in addition to the cases specified herein and in the Contract, if the Supplier becomes bankrupt or insolvent.
13.4 If Buyer terminates the Contract for any reason, Buyer shall fully reimburse all expenses and costs incurred by Seller and pay compensation to Seller for loss of profit based on the purchase price.
13.5 As defined in paragraph (b) of clause 13.2, in the event that the Buyer becomes insolvent or goes bankrupt, the Seller shall have the right to terminate the Contract and obtain reimbursement of all expenses and costs together with loss of profit.
14 Jurisdiction and applicable law
14.1 The Contract shall be governed by and construed in accordance with the laws of Italy and, in particular, the United Nations Convention on Contracts for the International Sale of Goods signed in Vienna on April 11, 1980.
14.2 Any dispute arising out of or relating to the Contract shall be resolved by the courts of competent jurisdiction for the location of the Supplier’s principal place of business.
14.3 In the event of a dispute or disagreement arising out of or in connection with the Contract, which cannot be resolved under any other provision of the Contract or the General Terms and Conditions, the Parties agree to submit the matter, in the first instance, to expertise proceedings administered in accordance with the Rules of Expertise of the International Chamber of Commerce.
14.4 Any such dispute or disagreement which has not been resolved through such administered Expertise proceedings shall, after the ICC Centre’s notification of the termination of the Expertise proceedings, be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three (3) arbitrators appointed in accordance with said Rules. The place of arbitration shall be Bologna – Italy. The language of arbitration shall be Italian. The arbitration award shall determine the Party or Parties required to pay the cost of arbitration. Any such decision shall be final and binding upon the Parties and may be entered as a final judgment in the jurisdiction of domicile of either Party or any jurisdiction in which such Party has assets.
15 Miscellaneous
15.1 Neither Party shall assign any right or delegate any obligation arising out of the Contract without the other Party’s prior written consent.
15.2 The Contract, together with the General Conditions, is the entire Agreement of the Parties hereto with respect to the subject matter hereof, and supersedes all other prior oral and written agreements and all prior correspondence in respect of the subject matter hereof.
15.3 The Contract and the General Conditions are written and signed in the English and in the Italian version. Both versions are equally valid but in case of conflict the Italian version prevails.
15.4 Any amendments to the Contract or to the General Conditions shall be valid only if made in writing, signed by the duly authorized representatives of both Parties and marked explicitly as amendments to the Contract or to the General Conditions.
15.5 The invalidity or unenforceability of any provision of the Contract or of the General Conditions shall not affect the validity and/or enforceability of the remainder of the Contract or of the General Conditions.
15.6 Should either party fail to take any action or assert any right hereunder, such acquiescence shall not be interpreted as a waiver to take any action or assert any right in the future.
