GENERAL TERMS AND CONDITIONS OF SALE
I. GENERAL NOTICE
The following general terms and conditions of sale (hereinafter also the “T&Cs”) shall apply to and regulate any purchase order, contract or agreement (hereinafter the “Contract”) resulting between Cofimco s.r.l. ("Cofimco") and any person, whether legal or natural, who orders or purchases or is offered products/equipment from/by Cofimco (hereinafter “Buyer” and, together with Cofimco, the “Parties” or, singularly, the “Party”) and constitute the complete and final agreement between the Parties.
II. TERMS OF PAYMENT
Unless otherwise stated in Cofimco’s order acknowledgment, payment shall become due pro rata as shipments are made and, namely, each payment will be due and payable at the time of the delivery of the equipment to the F.A.S. point specified in the Contract, it being understood that Seller may retain the equipment until payment is made. If Buyer delays shipment, date of readiness for shipment shall be deemed to be the date of shipment for payment purposes. If Cofimco’s manufacturing is delayed by Buyer, Buyer shall pay that portion of the purchase price which is equal to the percentage of completion; the balance shall be payable in accordance with the terms as stated above.
III. TITLE AND RISK OF LOSS
Title to the equipment to be supplied hereunder shall pass to Buyer upon full payment or upon delivery to the F.A.S. point specified in the Contract, whichever occurs last. Notwithstanding the foregoing, risk of loss or damage to the equipment shall remain with Cofimco until delivery of the equipment to the F.A.S. point. If Buyer is unable to take delivery when the equipment is ready for shipment, the equipment will be stored at Buyer’s expense and risk of loss shall immediately pass to Buyer.
IV. PROPRIETARY INFORMATION
All documents, drawings or writings ("Information") of any kind or in any form provided to Buyer by Cofimco are and shall remain the property of Cofimco. Buyer acknowledges that the Information may contain trademarked, copyrighted or otherwise proprietary and/or confidential concepts, ideas and data, all of which is and shall remain owned solely by Cofimco. In light of these acknowledgements, Buyer agrees to keep confidential and treat all information as if Buyer itself held a confidential and proprietary interest in the Information; to obtain Cofimco`s written permission prior to any disclosure or distribution of the Information to third parties and/or prior to the incorporation of the Information into any database, network or other computerized system; and to properly identify and attribute Cofimco`s proprietary interest in the Information including all appropriate trademark and/or copyright notices, whenever Information is disclosed or distributed pursuant to this Section. Buyer shall promptly return any Information to Cofimco upon request and Buyer and its agents shall abide by all nondisclosure terms and other reasonable provisions required by Cofimco as a condition of visiting any Cofimco facility. Except to the extent that the Information may be relied upon by Buyer to use and operate the equipment for its intended purpose(s), nothing in this agreement shall be construed as an implicit or explicit license by Cofimco to Buyer to make, use, research and develop, sell, copy, disclose, distribute, or otherwise benefit from the proprietary or confidential nature of the Information. The rights and obligations of this Section ("Proprietary lnformation") shall survive the cancellation, completion or any other termination of this Contract for a period of three (3) years after the date of said event.
Unless expressly agreed otherwise, in writing in Cofimco’s order acknowledgment, Cofimco warrants that the equipment delivered hereunder will be free from defects in workmanship and material for a period of one (1) year from the date of initial startup or eighteen (18) months from the date of shipment, whichever occurs first. In case of proved mechanical breakage or defects, Cofimco shall, at its expense, repair or replace, at the F.A.S. point specified in the Contract, the defective (portion of any) equipment, or, alternatively, Cofimco may, at its sole discretion, refund to Buyer the price paid for the defective item(s). For the foregoing remedy to apply, the following conditions shall be met: (i) the defect must occur and be discovered during the warranty period as set forth above, (ii) the use of defective equipment must be promptly discontinued by Buyer, (iii) Buyer must return the defective equipment to Cofimco and (iv) Buyer must give Cofimco written notification within thirty (30) days after Buyer's discovery of the defect, provided that any alleged or purported lack of fitness of the equipment or services supplied hereunder consequential upon the failure by Buyer to supply accurate, complete and reliable information regarding its needs and the technical and performance specifications and requirements of the equipment shall not constitute a defect hereunder. In any event, this warranty and remedy shall apply only subject to the further essential condition that Buyer properly unloads, stores, handles, maintains and installs the equipment, protects the equipment from damaging agents, and operates the equipment in a normal and proper manner within proper hosting premises, plant or facilities, in accordance with all due and appropriate standard procedures, in compliance with any applicable installation, maintenance and operations manual(s) for Cofimco fans and all instructions, recommendations and indications given by Cofimco at any stage, and not in excess of any applicable rating limitations, design specifications or technical, operating and dimensional requirements prescribed by the applicable documentation and drawings. Cofimco makes no warranty whatsoever regarding resistance of materials to corrosion or erosion. The sole liability of Cofimco and the exclusive remedy of Buyer, whether arising under contract, tort (including negligence), strict liability or otherwise, arising out of defects in the services or equipment supplied hereunder, shall be the remedies set forth above. In addition, Cofimco shall obtain for Buyer the warranties and guarantees provided by the manufacturers of equipment provided by others, but Cofimco shall have no further liability or responsibility for any equipment supplied by others. Buyer shall take any and all reasonable actions to mitigate any losses, damages or costs arising out of or in connection with the supply of equipment by Cofimco, this agreement and the Contract and any possible liability of Cofimco shall be limited and reduced accordingly and shall in no event include any losses, damages or costs which could have been prevented, avoided or mitigated by prompt, appropriate and diligent action by Buyer or by giving prompt notice to Cofimco.
Unless expressly agreed otherwise in writing in Cofimco’s order acknowledgment, Buyer and Cofimco agree that, in consideration of the express warranties above, all other warranties and guarantees, whether express or implied, whether arising under law, equity or custom of trade, including warranties of merchantability and fitness for a particular purpose, are excluded from these T&C and the Contract.
VI. FORCE MAJEURE AND DELAY IN PERFORMANCE
Except for the payment of monies due hereunder or as otherwise set forth, neither party shall be held liable for any expense, loss, damage, failure to perform, delay in performing, or for any possible mechanical breakage or defect resulting from delay or prevention of performance caused by a Force Majeure Event or other circumstances outside Cofimco’s control such as, without limitation, hostilities, restraint of rulers or peoples, revolution, civil commotion, strike, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, epidemic, accident, fire, flood, wind, earthquake, explosion, blockade or embargo, lack or failure of transportation facilities, actions of the other party, failure of the other party to perform required or necessary actions, delays in performance by the other party, or any law, proclamation, regulation or ordinance, demand or requirement of any government or governmental agency having or claiming to have jurisdiction over the work, the materials purchased for the work, or the Parties hereto, or any other cause, whether similar or dissimilar to those enumerated above, beyond the reasonable control of the Party affected. Accordingly, Buyer shall not have any claim against Cofimco in respect of nonperformance, erroneous performance or delay in performance. In the event Cofimco is delayed by reason of any of the foregoing, the time for performance and delivery shall be extended by a period of time equal to the period of delay, and the Contract price shall be increased to compensate the affected party for the increased cost of performance hereunder.
The prices for equipment are exclusive of any present or future state, municipal or other sales or use tax or any other present or future excise tax upon, measured by the gross receipts for any transaction hereunder or any allocated portion thereof, or by the gross value of the equipment, or of any present or future property tax or similar charge with respect to the equipment. If Cofimco is required by applicable law or regulation to pay or collect any such tax or taxes on account of the equipment, then such amount of tax and any penalties and interest thereon shall be reimbursed to Cofimco by Buyer.
Vlll. TEST OF EQUIPMENT
Any performance test of equipment shall be made in accordance with procedures to be agreed upon in writing between Cofimco and Buyer. Cofimco shall be notified of and may witness any such test. All such tests shall be conducted within the warranty period. Buyer shall obtain Cofimco's written permission prior to any disclosure to a third party concerning the nature or results of such tests.
Buyer may cancel orders entered on Cofimco's books only after Cofimco consents thereto and Buyer agrees to pay Cofimco for all costs incurred by Cofimco, all costs to cancel orders by Cofimco for performance, and a reasonable amount for Cofimco's profit.
X. LIMITATION OF LIABILITY
Notwithstanding any other provision to the contrary of these T&Cs, the Contract or at law, neither Cofimco nor its subcontractors shall be held liable to Buyer or any third party for, without limitation, loss of anticipated profits, loss of business reputation or opportunity, loss by reason of plant or other facility shutdown (therein including missing or reduced production), nonoperation or increased expense of operation, service interruptions, cost of purchased or replacement power, claims of customers, loss of use of capital or revenue, cost of money, or for any special, indirect, incidental and/or consequential loss or damage of any nature whatsoever arising at any time from any cause whatsoever in connection with the Contract.
Accordingly, regardless of whether Cofimco has been advised of the possibility of such damages, under no circumstance shall Cofimco be liable for any losses, liabilities, claims, damages and/or expenses howsoever arising as a result of any action or omission by Cofimco under or in connection with the Contract whether under contract, tort (including gross negligence), strict liability or otherwise, except exclusively in the event they are the direct and immediate consequence of willful misconduct or gross negligence by Cofimco resulting in the material breach of essential duties under these T&Cs finally established by a court or arbitral panel of competent jurisdiction after due process of law.
In all cases, any liability of Cofimco arising out of or in connection with these T&Cs or the Contract shall not extend to any damages payable by Buyer to any third parties and shall be limited to such losses, liabilities, claims, damages and/or expenses which had been foreseeable at the time of the execution of the Contract, taking into account the circumstances of which Cofimco was aware at such time; moreover, in no event shall the total liability of Cofimco arising out of the supply of equipment or services hereunder - whether under contract, tort, strict liability or otherwise and regardless of the form of action - exceed the price of the purchase order under which the services or equipment giving rise to liability are provided.
Cofimco’s liability under these T&Cs and within the limits set forth herein, shall be exclusive and in lieu of any provisions, conditions and warranties implied by law, equitable principles or rules and/or custom of trade (including implied warranties of fitness for purpose and merchantability). Accordingly, to the maximum extent permitted and regardless of whether Cofimco has been advised of the possibility of any such loss or damage, Buyer waives any remedies and reliefs provided by the applicable law arising out of, or in connection with, any possible loss of (anticipated) profits and/or any other loss or damage other than as expressly specified under this Article X.
XI. REFUNDS, KICKBACKS, ILLEGAL PAYMENTS
Buyer is prohibited from paying any company funds to any director, officer, employee, or other agent of Cofimco or from otherwise making any payments from the funds that would be illegal under any applicable laws.
XII. GOVERNING LAW
These T&Cs, the Contract and all contractual and non-contractual disputes arising out of, or in connection therewith and with the supply of the equipment or services by Cofimco to Buyer, shall be governed by, and shall be construed solely in accordance with, the substantive laws of the Republic of Italy.
Unless otherwise stated in Cofimco’s order acknowledgment, each Party agrees for the benefit of the other Party that the court of Milan, Italy, shall have exclusive jurisdiction to hear and determine any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with these T&Cs, the Contract or the supply of the equipment or services by Cofimco to Buyer and for such purposes, irrevocably submits to the exclusive jurisdiction of such court.
XIV. ENTIRE AGREEMENT CLAUSE
Together with Cofimco’s order acknowledgement, these T&Cs, irrespective of whether they are or will be attached or referred to by other Contract documents, constitute the only general terms and conditions of sale by Cofimco, and purchase by Buyer, of the equipment to be delivered or services to be rendered hereunder. Accordingly, except as provided for under Article XV below, these T&Cs shall supersede all communications, negotiations, arrangements and agreements, whether oral or written, between the Parties with respect to the subject matter of the Contract and, particularly, shall override any terms and conditions stated in any order or acknowledgement or any other document or communication issued, supplied or sent by Buyer.
Cofimco shall not be bound by any terms and conditions stated in Buyer’s purchase orders, acknowledgements forms or in any other document(s) or correspondence which vary, limit or add to these T&Cs, which shall prevail notwithstanding the diverging, conflicting or additional terms and conditions that may appear on any of the aforementioned documents unless not expressly incorporated herein. Moreover, it is expressly agreed that if Buyer issues a purchase order or other documents for the supply of the equipment or the services provided under these T&Cs, such document will be deemed to be for Buyer’s internal use only, and these T&Cs shall supersede any provision therein. Notice of objection is hereby given to any additional or different terms and conditions and Buyer accepts it.
Finally and in any event, subject to Article XV below acceptance by Buyer of the equipment or the services under the Contract will amount to and be deemed to all effects as an unconditional and final acceptance and approval by Buyer of these T&Cs.
XV. AMENDMENTS TO THE T&Cs
Any amendment or addition to these T&Cs may only be made in writing and shall bear the signatures of the duly authorized representatives of each Party.
For purposes of Articles 1341 and 1342 of the Italian Civil Code, Articles V, VI, X, XII, XIII, XIV of the General Terms and Conditions of Sale are hereby expressly and specifically agreed upon and approved by the Buyer.