Art. 1 — General
1.1 These Sales Conditions shall apply to all requests for proposals, Offers, Orders, Contracts and other legal relationships between Geoplast and Customer which concern the supply and delivery of Products and / or Services by Geoplast. These General Sales Conditions shall be applicable in so far as in a specific agreement itself it is not expressly stipulated otherwise in writing.
1.2 If upon acceptance of the Offer or otherwise Customer declares its general conditions applicable, the reference to these GENERAL SALES CONDITIONS contained in Geoplast's Offer shall be seen as the only reference made and these GENERAL SALES CONDITIONS shall be applicable. The GENERAL SALES CONDITIONS of Customer shall not be applicable.
1.3 In the event Customer has once entered into an agreement or other legal relationship with Geoplast, to which these GENERAL SALES CONDITIONS apply, Customer shall be considered to have tacitly and irrevocably agreed to the applicability of these GENERAL SALES CONDITIONS to future agreements or other legal relationships with Geoplast.
1.4 Unless otherwise mentioned in the Offer, the Offer shall be valid for a period of thirty (30) days.
Art. 2 — Contracts
2.1 Offers of Geoplast are non-binding.
2.2 Any Contract for Product or Services must be received by Geoplast in written form (fax, letter or e-mail). Orders placed by phone or in person by Customer must be confirmed in writing by Geoplast before they are considered valid and accepted.
2.3 Should there be any differences in the single items of Geoplast's order confirmation with respect to the Contract or Order, the Customer who has not made a claim by fax or e-mail within twenty-four (24) working hours from receipt of said order confirmation shall be obliged to accept the acknowledgment as it is. Should there be any differences in the offer or order, Geoplast's order confirmation is to be considered the only valid document.
2.4 Partial processing of the order without Geoplast's previous order confirmation does not mean that the complete order was approved by Geoplast, but is rather as a partial confirmation relative to the Products and / or Services delivered. In such a case, reception of the Product or performance of the Service shall be equivalent to acceptance on the part of Customer of the new contractual provisions.
2.5 Customer's orders are firm and definitive and may not be cancelled following their acceptance by Geoplast, without agreement in writing by Geoplast.
2.6 Geoplast furnishes application-related advice, such as, but not exclusively, free technical advice and design, Product utilisation drawings, to the best of its knowledge. Any statements or representations Geoplast may make with regard to the use of its products and their fitness for a particular purpose shall not relieve Customer of its obligation to conduct and perform its own calculations, designs, tests and experiments to establish the size, amount and the fitness of the Product for any intended use or purpose.
2.7 Geoplast shall not be held responsible for any Product quantity discrepancy (lack or surplus) between the Contract and actual physical requirement at any Customer location, plant or job site. No Product shall be returned by Customer and reimbursed by Geoplast, unless Geoplast has given written agreement. In the case a greater quantity of Product is required by Customer than mentioned in the Contract, the difference will be subject to a new Contract.
2.8 Contractual requirements applying to the Product of Geoplast are defined in relevant Product descriptions. Nevertheless, such statements regarding the quality of a Product do not imply any warranty per se. Any warranties made by Geoplast must be expressly laid down in writing.
Art. 3 — Price and payment
3.1 All Products and Services are sold and all prices are quoted Ex Works (EXW) (place mentioned in the Contract) in accordance with Incoterms 2000, unless otherwise stated in the Offer or the Contract.
3.2 The prices are exclusive of VAT, unless otherwise mentioned in the Offer or the Contract. The prices of Products do not include Services (such as on-site support, advising and consulting) unless otherwise explicitly stated in the Offer or the Contract.
3.3 Prices are quoted and payments shall be made in Euro unless stated otherwise in the Contract.
3.4 Geoplast's pricelists may be changed without notice whenever required by new laws and regulations, or technical reasons.
3.5 All payments shall be made by Customer to Geoplast in accordance with the payment terms mentioned in the Contract. In the absence of the payment terms in the Contract, invoicing and payment of the Products shall take place by bank transfer before the delivery thereof and invoicing and payment of the Service shall take place upon performance thereof.
3.6 No exception, save that of nullity, possibility of annulment, or rescission of the contract, can be posed by the purchaser with the purpose of delaying or avoiding payment.
3.7 In the event of overdue payment Geoplast shall have the right to levy interest equal to the most recent yearly overdue interest rate specified by the Italian Gazzetta Ufficiale as per the date of payment, and Geoplast shall furthermore have the right to demand payment of all its costs incurred to collect the payment with an amount of at least 12% (twelve percent) of the total overdue amount.
3.8 Whenever Customer fails to meet its obligations resulting from previous claims for payment, or whenever part payments from such claims are overdue, Geoplast shall be entitled to suspend delivery of any Product and/or Service to Customer, even if not related to these obligations. Any payments already received by Geoplast will be withheld as penalty; Geoplast's right to claim further damages will remain unaffected thereby.
3.9 Geoplast has the right to compensate all of its claims for payment against Customer with claims for payment from Customer against Geoplast even if such claims are not related.
3.10 Each Party shall be responsible and liable for any and all taxes and social premiums related to employees or other persons involved by the respective Party in execution of the Contract and the Parties shall hold each other harmless for claims regarding such taxes and social premiums.
Art. 4 — Documentation
4.1 Unless otherwise mentioned in the Contract, the Documentation shall be supplied in English and in Geoplast's standard format.
4.2 Where it is found that any part of the Documentation supplied is incomplete and/or incorrect, the Party discovering such deficiency shall notify the other Party and Geoplast shall promptly complete and/or correct such part of the Documentation and Geoplast's liability of the Documentation being incomplete or incorrect is limited to such rectification.
Art. 5 — Title and risk, transportation, storage and insurance
5.1 Products or Documentation are always considered as sold, received and accepted at Geoplast's premises: all risk of loss and damage thereof shall pass to the Customer upon delivery in accordance to the delivery term Ex Works (EXW) Incoterms 2000 (place mentioned in the Contract). Any possible reserves must immediately be registered on the bill of lading, or be sent to the hauler by registered post with notification of receipt at latest within 48 hours following the delivery.
5.2 The Products shall remain property of Geoplast until Geoplast has received full payment in accordance with the Contract, and title to and ownership of the Products shall pass to Customer upon receipt by Geoplast of such payment.
5.3 Customer shall exercise due care in storing any Product in which Geoplast retains a security interest, and insure such Product against loss and damage at its own expense. Customer hereby assigns to Geoplast any future claims it may have under such insurance policies. Geoplast hereby accepts this assignment.
Art. 6 — Delays
6.1 If Geoplast at any time has reason to believe that the performance of its obligations will be delayed, Geoplast shall promptly notify Customer and shall subsequently define in writing the estimated period of delay.
6.2 Circumstances outside of Geoplast's control, including but not limited to circumstances which are attributable to Customer such as delay in payment or delay of any of Customer's undertakings causing Geoplast a delay, shall entitle Geoplast to postpone any of its undertakings to such extent as is reasonable. For delays attributable to Customer, Geoplast shall be reimbursed for its costs.
Art. 7 — Warranties
7.1 Customer is deemed to have received the Product or supplied under the Contract in good condition and complete of all parts, accessories and Documentation required by the Contract. Geoplast shall repair, replace or refund, at Geoplast's option, any part of the Product not to be in conformity with the Specifications by reason of defective material, design or workmanship, provided that the Customer notifies Geoplast, on pain of forfeiture of the warranty stipulated above, within: a) a preclusive time limit of eight (8) days after delivery for obvious defects shall be notified; b) the time limit of three (3) days after discovery for hidden defects. Such notifications shall include a description of the defect, which must be as detailed as possible. Complaints lodged in person or by telephone shall be supplemented within eight (8) days by detailed explanations in writing. This does not include on-site support.
7.2 Any warranty, shall apply only if: a) the Products are used and maintained under normal conditions and in accordance with the Documentation, information and advice furnished by Geoplast; b) the Products are not modified or changed without the written approval of Geoplast; c) Customer, without undue delay, has given Geoplast notice of such defects, non-conformities or deviations before the expiration of the applicable warranty period; d) such defect, non-conformity or deviation was not caused by interworking or interoperable equipment or other products not supplied under the Contract; e) such defect, non-conformity or deviation was not caused by abuse, misapplication or external influences; f) Customer has given Geoplast every opportunity to inspect and remedy such defect, non-conformity or deviation; g) Customer has withheld from using, applying, or processing defective Product after discovery of a defect. Customer shall store such Product carefully in a safe place, and shall not be entitled to claim compensation for storage and other costs. Normal wear and tear of Product is excluded from the scope of this guarantee. Such repairs or replacements or refunds of the Product shall be made without undue delay from the date Customer has provided Geoplast with a complete request related thereto and Geoplast has accepted such request in writing. Any repaired or replaced Product will be warranted for the remainder of the original warranty period which shall not be extended.
7.3 Geoplast must authorise all returns of equipment for repair or replacement. Transportation cost and risk of loss incurred with respect to the repair and/or replacement of defective goods shall be borne by Customer, unless otherwise agreed.
7.4 The warranties given above constitute the only warranties made by Geoplast with respect to the Products and are in lieu of all other warranties, expressed or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose.
Art. 8 — ……..
Indemnification for employee negligence Geoplast and Customer agree to indemnify and hold each other harmless from and against all damage or injury (including death) to property or person resulting from the intentional or negligent acts or omissions from their respective officers, employees, agents, Geoplast or subcontractors, in connection with the performance of the Contract.
Art. 9 — General limitation of liability
9.1 Except as expressly provided in this Article 9 or elsewhere in the Contract neither Party shall in any event be liable to the other Party under the Contract for loss of production, loss of use, loss of business, loss of data or revenue or for any special, indirect, incidental or consequential damages, whether or not the possibility of such damages could have been reasonably foreseen.
9.2 Neither party shall in any event be liable to the other Party for damages exceeding 5% (five percent) of the Contract price per event, where a series of related events are deemed to be one event, and a total aggregate maximum of 25% (twenty-five percent) of the Contract price.
9.3 The limitation of liability provided for in Article 9.1 and 9.2 shall not apply with respect to damages related to a breach of the obligations under Article 12, Confidentiality.
9.4 No action, regardless of form, arising out of any alleged breach of the Contract or obligations under the Contract may be brought by either of the parts more than two (2) years after the cause of action has occurred.
9.5 A party suffering loss or damages shall take reasonable measures to limit such loss or damage.
Art. 10 — Modification of contract
No addition or modification of the Contract shall be effective or binding on Geoplast unless agreed in writing and executed by a duly authorised representative of Geoplast.
Art. 11 — Force majeure (reliefs)
11.1 Either Party shall be excused from the performance of any of its obligations under the Contract and such obligations shall be extended by a period reasonable under the circumstances if the performance thereof is prevented or delayed by industrial disputes or any cause beyond the affected Party's reasonable control which, without in any way limiting the generality of the foregoing, shall include acts of God, riots, wars, accidents, embargo or requisition (acts of government), including non-availability of an export licence for the Products or any part thereof or visa and permits for Geoplast's personnel, or delays in the performance of its subcontractors caused by any such circumstances as referred in this article 11.
11.2 The right of relief shall apply irrespective of whether the cause of prevention or delay occurs before or after the agreed due time for such obligations.
11.3 In case of force majeure, the affected Party shall promptly notify the other Party in writing and furnish all relevant information thereto.
11.4 Should a cause of force majeure continue for more than 3 (three) months, either Party shall then have the right to terminate the Contract.
Art. 12 — Confidentiality
12.1 For the purpose of this Article, Confidential Information is defined as information specifically designated as confidential at the time of disclosure or by nature obviously confidential or proprietary, such as trade secrets and designs.
12.2 Except as provided below in this Article 12, the receiving Party of confidential information agrees to treat the same as strictly confidential and shall not divulge, directly or indirectly, to any other person, firm, corporation, association or entity, for any purpose whatsoever, confidential information so received, and shall not make use of or copy such confidential information, except for the purpose of the Contract. Such confidential information may be disclosed only to such of the employees, consultants and subcontractors of the receiving Party who reasonably require access to such information for the purpose for which it was disclosed and who have secrecy obligations to the receiving Party. This commitment shall impose no obligation upon either Party with respect to any portion of such information that: a) was known to the receiving Party prior to its receipt from the other Party; b) is known or which (through no act of failure on the part of the receiving Party) becomes generally known; c) is supplied to receiving Party by a third party which the receiving Party in good faith believes is free to make such disclosure and without restriction on disclosure; d) is disclosed by the disclosing Party to a third party generally, without restriction on disclosure; e) is independently developed by the receiving Party without use of any confidential information provided by the disclosing Party.
12.3 Customer and Geoplast agree that each others trade secrets are proprietary and confidential. Customer agrees that the contents of the Offer and the Contract are confidential.
12.4 Unless otherwise agreed, Geoplast shall have the right to use Customer as a reference.
12.5 The obligation of confidentiality set out in this article 12 shall survive the termination or expiration of the Contract for a period of five (5) years.
Art. 13 — Export regulations
Customer is informed that sale and delivery of (parts of) the Products in an export situation may be subject to export regulations, e.g. Italy and/or the European Union. Customer shall hold Geoplast harmless of any and all claims which relate to infringement by Customer of such regulations.
Art. 14 — Entire contract
The Contract sets forth and shall constitute the entire agreement between Customer and Geoplast with respect of the subject matter thereof, and shall supersede any and all prior agreements, understandings, promises and representations made by one Party to the other concerning the subject matter of the Contract.
Art. 15 — Assignment
Neither Party shall have the right to assign the Contract or any right herein without the prior written consent of the other Party.
Art. 16 — Governing law
The Contract and all other rights and obligations between Customer and Geoplast shall be governed by and construed in accordance with the laws of the state of Italy.
Art. 17 — Disputes
All disputes, differences or questions between the Parties with respect to any matter arising out of or relating to the Contract or other rights and obligations between Customer and Geoplast which cannot be settled in an amicable manner, shall be settled by the competent court in Padova, Italy.
Art. 18 — Definitions
The following expression shall have the meaning hereby assigned to them unless the context would obviously require otherwise. Contract: the Contract concluded between Customer and Geoplast, either by acceptance of the Offer by Customer or otherwise. Until the Contract has been concluded between the Parties, the word «Contract» used in these General Sales Conditions shall mean the Offer. Contract Effective Date: the date upon which the Contract comes in force. Customer: the party to whom Geoplast has made an Offer or from whom Geoplast has received an order, or with whom Geoplast has otherwise entered into a relationship wherein Geoplast is the suppler of Products and / or Services and legal successors in title to the Customer and any assignee of the Customer approved by Geoplast. Documentation: the documentation specified in the contract. Geoplast: Geoplast S.p.A. Installation: the installation of the Products to be performed in accordance with the Contract. Intellectual Property Rights: copyrights, patents, drawing and model rights, tradenames, trademarks, and all other intellectual property rights. Offer: the offer or price list made by Geoplast to Customer. Parties: Customer and Geoplast collectively. Products: all goods, Software, Documentation and works that have been or will be supplied from Geoplast to Customer. Service(s): the services from Geoplast to Customer specified in the Contract or pursuant thereto, such as – if applicable – consulting, Installation, maintenance and training. Software: any computer program or software module as specified in the Contract. Specifications: the technical and functional specifications of the Products as specified in the Contract or in the standard documentation of Geoplast. Territory: as defined in the Contract. Words indicating the singular also include the plural and vice versa, where the context so requires. The headings of the Articles are for convenience only and shall not affect their interpretation.