The Purchaser irrevocably accepts the following terms and conditions of sale (“GTCS”) and declares to have read in their entirety and fully understands them. The clauses given herein, none excluded, are binding for all Offers and Order Confirmations undersigned.
These GTCS prevail over any of Purchaser’s general terms and conditions of purchase regardless of whether or when Purchaser submitted its order or such terms.
1. Offer and Order Confirmation
Offers by the Seller are for evaluation by a potential Purchaser only and are not binding on Seller if not signed by Seller and Purchaser and in any case will be generally followed by an Order Confirmation (Contract). Rendering and the photographs included in the Offers and Order Confirmation are approximate and not binding for the Seller. The Seller reserves its right to accept or reject an order on a case by case basis.
In the event an Offer and Order Confirmation are properly accepted by the Seller, or in any case when the Order Confirmation has been performed, it is hereby understood that it will be regulated by the present TCS. Each sale shall only include what is expressly specified in the Order Confirmation; any additional labour or material shall be invoiced separately. The Seller reserves the right, with prior written approval by Purchaser, to make any changes to the original project for technical reasons and in order to improve overall performance of the goods. These modifications will automatically replace any previous technical specifications.
2. Effectiveness
The Offer and Order Confirmation shall become binding from the time of signing by both parties (“Contract”).
The Order Confirmation will take effect, if required, from the grant of permit, by authorities in the Purchaser and Seller’s respective countries.
In any event, the Seller may cancel the Contract without either party having the right to claim damages if:
- The Purchaser fails to sign the Order Confirmation within one month from the receipt of the signed copy by the Seller; or
- The required permit is not obtained within one month after signing the Order Confirmation.
In the absence of express acceptance within 30 days from the receipt, the most recent Order Confirmation will, in any event, be considered as accepted by the Purchaser, at the time of performance of the Offer and Order Confirmation or - in the alternative – in case of:
- Goods delivery and invoicing by the Seller;
- Communication of the opening of stipulated credit by Seller’s Bank specifically mentioning the Offer and Order Confirmation.
The executed Offer or Order Confirmation replaces, for all purposes, all previous offers.
3. Delivery and liquidated damages
The delivery date is expressly specified in the Order Confirmation and Offer.
Unless otherwise agreed, good’s delivery will always be considered as made Free Carrier at factory Seller’s facility (FCA) according to ICC’s INCOTERMS in force at the date of the execution of the Contract.
In any event, it is hereby understood that delivery dates are considered as guidelines and not essential terms, therefore they are not binding on the Seller.
The Seller shall not be held liable to pay compensation of any kind for direct or consequential damages resulting from delayed deliveries.
The delivery terms will be considered automatically extended, subject to production capacity considerations, should the Purchaser fail to timely fulfil the undertaken contractual obligations, and in any case, when:
- the owing payments or guarantees are not timely made or issued (e.g. in case of delays in sending advance payments, in opening letters of credit, etc.); or
- the delay results from an event of force majeure or other event beyond the reasonable control of the Seller; or
- the Purchaser does not promptly supply all relevant data which is required for the execution or does not duly and promptly prepare the facilities and areas where the goods must be installed.
In case of delay by the Purchaser in picking up the goods on the stipulated delivery date, Seller shall be entitled, starting from the second week of delay, to invoice the Purchaser for any storage charges incurred in an amount equal to 0,5% of the portion of the supply not collected, for each week of delay, up to a maximum of 5% of Contract’s sale price.
In case of failure by the Purchaser to pick up the goods for more than 10 weeks, or, in any event, if the Contract is cancelled by the Purchaser for any reason whatsoever, and unless Seller decides, at its sole discretion, to require performance of the Contract, the Contract will be considered cancelled with the obligation of the Purchaser to pay, as liquidated damages, 30% (thirty percent) of the Contract’s total sale price. Seller will be entitled to withhold any possible advances paid up to the amount required.
4. Payment terms
Payment is not considered valid unless made directly to the Seller.
The fixed payments deadlines are considered peremptory.
If the Purchaser fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract. Any revision to the payment due dates will automatically extend the delivery terms.
Any payment delay, without any notice of default being required, shall imply:
- a suspension of the supply and/or warranty until regular payments are resumed, it being understood that the original guarantee deadline shall remain unchanged;
- the Seller’s right to request payment of the remaining amount in one solution with the Purchaser’s express forfeiture of the benefit of the term.
Any taxes, duties, stamps and bank bill charges, together with any other charges that may increase the sale price, shall be borne by the Purchaser. Any tax exemptions or tax benefits must be notified in writing, by a statement made on the Purchaser's own civil and criminal liability within a term of 5 days from receiving the Order Confirmation.
Any claim regarding the processing of the Order Confirmation shall not entitle the Purchaser to suspend or delay payments.
The Purchaser and Seller will each pay for their own bank fees and costs.
Where the means of payment or banks chosen by the Purchaser should involve particularly heavy costs for the Seller, the Seller reserves the right to charge the Purchaser for any costs exceeding usual market prices as registered by the banks currently used.
5. Pre-defined commercial terms
Any and all commercial terms used (ex-works, FCA, FOB, CIF, CIP etc) shall refer to the INCOTERMS of the International Chamber of Commerce, as per the text in force when the Contract was concluded.
6. Retention of title
The title of the goods shall remain vested in the Seller until the purchase price for the goods has been paid in full and received by the Seller (any accessories included).
Therefore, the Seller shall have the right to claim back the goods wherever they are located, and even if joined to or integrated with other assets owned by the Purchaser or by third parties.
All risks, dangers and consequences, including the destruction, deterioration and/or damaging of the sold goods, resulting from thefts, fires, accidents, incidents, personal injuries, damages to property or otherwise, will therefore be exclusively borne by the Purchaser.
The Purchaser hereby undertakes to adopt all necessary measures to safeguard and enforce, to the widest extent possible, within the Country and the place of destination of the goods, the Seller's right to retention of title.
The Purchaser may not in any way transfer title to the goods to which this retention of title clause is applicable.
The Purchaser is requested to inform any third parties of this retention of title clause in favour of the Seller and to bear all the necessary costs to ensure that the goods are not subjected to any liens or that they are released from any liens.
7. Seller’s warranty
The goods sold shall be incompliance with applicable regulations and directives of EU relating to CE certification. Except as otherwise agreed in writing in the Order Confirmation, the Seller makes no representation or warranty as to the compliance of goods with the applicable laws, safety regulations and /or technical standard of the country of installation. The Purchaser alone shall be responsible for ensuring such compliance and agree to make no claims against the Seller from indemnity or damages resulting from failure of the goods to comply with such laws or standards.
Seller warrants each good sold to be free from defects in material, workmanship and assembly (only if installation was carried out by the Seller’s personnel) when used in accordance with technical instruction provided.
The warranty includes repair and/or replacement at Seller’s expense of all structural parts of the machinery and their components that are broken or defective, with the exception of parts subject to normal wear and tear.
The warranty period will be equal to 12 months considering a shift of 8 working hours per day, effective as of the date of the commissioning report; it may not, in any case, exceed 15 months from the date of shipping.
Any claim by the Purchaser based on goods’ s defects shall be notified to the Seller by fax, certified mail or by email, within ten (10) days after discovery of the defect. If the Purchaser does not so timely notify the Seller, the Seller shall not be liable for such defect. The replaced parts remain the property of the Seller.
The Purchaser will waive its right to the warranty if, without authorization from the Seller:
- it applies modifications or installs devices and/or spare parts which were not supplied by the Seller;
- it does not make payments within the agreed deadlines;
- the systems and accessories to be implemented by the Purchaser are not entirely or only partially implemented in an optimal manner.
The warranty of the Seller does not cover, and the Seller makes no warranty with respect to any defect, failure, deficiency, or error which include, but are not limited to:
- Not timely reported to the Seller; or
- Due to misapplication, modification, disassembly, abnormal conditions of temperature, dirt or corrosive matter; or
- Due to operation, either intentional or otherwise, above rated capacities or inappropriate or erroneous use, misuse, or operation in an otherwise improper manner; or
- Due to negligent, poor, improper or incorrect maintenance or use not in accordance with Seller’s directions, or
- Caused to failure to follow the directions given in the Operation and Maintenance manuals.
This is without prejudice to the Seller's right to collect the machine or line and reimburse the price pursuant to the following article 8, last paragraph.
8. Seller’s limited liability
Unless a result of gross negligence or wilful misconduct, Seller’s maximum and cumulative liability from any and all claims arising from or pertaining the Contract, including the fulfilment of Seller’s obligations shall in no event exceed 5% of the contract’s sale price even in the case of direct damages, regardless of whether the damage is greater than such amount.
Under no circumstance shall Seller be liable to Purchaser or any third party for any downtime or reduced production, loss of business or profit or any other economic loss, or any incidental, indirect, special or consequential damages howsoever caused and whether based in contract, tort, warranty, strict liability, negligence or otherwise and irrespective of whether Seller was advised or aware that such damages were possible.
Such limitation shall apply both in case of Seller’s breach of contract and/or in case of requested reduction of the sale price or in case of termination for breach of Contract caused by defective goods.
In the event of unresolvable dispute, differences, controversy or claim between the Parties arising out from the Seller’s impossibility to solve an eventual functionality problem in the equipment provided, that is directly imputable to the Seller’s responsibility, gives the Seller’s the absolute right, at its discretion, to take back the line/goods supplied, forgo due payment and credit the amounts received without any further indemnification obligation to the Purchaser.
9. Modifications made while preparing the line/Unpredictable events and force majeure
Any changes requested in writing by the Purchaser, while the line is being prepared, and accepted by the Seller, shall increase the price
as well as extend the delivery term.
If, before purchasing the materials/components, the performance of the supply becomes excessively burdensome for the Seller due to
unforeseeable events and in any case for events beyond its reasonable control, the Purchaser and the Seller are required, within 20
days of communication of such events, to renegotiate the price and conditions of the Order Confirmation. It is understood that in the
absence of an agreement, within this period, the Seller will have the right to terminate the Order Confirmation by retaining any sums
advanced as compensation for the activities already carried out.
Force majeure means any event beyond the reasonable control and that cannot be foreseen and avoided by the affected party,
resulting in the non-performance by the affected party of all or part of its contractual obligations.
Force majeure includes, but is not limited to, the following: earthquake, hurricane, flood, fire and other natural disasters or epidemic,
war, revolution, usurped power, insurrection, and other military or civil disorders, invasions, acts of terrorism, eminent domain,
confiscation, embargo or destructions ordered by governmental, civilian or military authorities; prohibitions and acts coming from the
State, the Government or public entities. If, because of an event of force majeure, one party is not able to fulfil its contractual
obligations for a period exceeding 180 days, each party shall have the right to terminate the contract.
Neither party will in any case be responsible for damages, losses or increased costs, caused by the other party due to non-performance
or delay due instead to events of force majeure.
10. Installation/Commissioning
The Purchaser undertakes to store and maintain the goods supplied in the conditions indicated in the Order Confirmation and to prepare the material, premises, equipment and accessories necessary for assembly/testing, as well as to guarantee the availability of its personnel, as described in the Order Confirmation, and to notify the Seller the fulfilment of said obligations
Unless otherwise expressly provided for in the Order Confirmation, the goods duly installed will undergo a commissioning period by the Seller.
The Seller reserves its right to change the initial installation and/or commissioning date if the latter cannot be started within the deadlines agreed upon in the Order Confirmation for causes ascribable to the Purchaser, the revised date will be agreed with the Purchaser.
If, for causes ascribable to the Purchaser, installation and/or commissioning cannot be carried out within 18 months after shipment, the Seller will no longer have any obligation to proceed with installation and commissioning and will have the right to definitively retain the amount already paid for this purpose.
During the commissioning phase, the Purchaser acknowledges that the Seller retains full rights to apply any improvements to of the goods without this constituting a reason for the Purchaser to stop deferred payments.
The goods will be considered successfully accepted, without any further possibility of objection by the Purchaser, in case of persistent inertia by the Purchaser in facilitating and executing the commissioning despite express written request made by Seller.
An additional training will be carried out during commissioning; during this period, an entrusted employee of the Seller will train the personnel appointed by the Purchaser on the proper use and maintenance of the goods as well as on security devices and plant systems.
Upon the completion of the commissioning and training phases, specific reports will be issued and undersigned by the parties.
If the Purchaser refuses, without any justified technical reasons, to sign the commissioning report, despite written request, and there is a continued use/operation of the goods for at least two months after the end of the commissioning period, the goods will be deemed, in any case, positively tested and accepted for all legal and contractual purposes.
11. Intellectual property rights and confidentiality
The Seller shall retain all intellectual and industrial rights to any designs, projects, drawings, models, technical and design solutions, software, and any other documents that may be created in relation to the sold goods, as well as any commercial brand, trade name or trade dress. The above-mentioned rights may not in any case be intended as transferred to the Purchaser, and the Seller will remain the exclusive and full owner of such rights. The Purchaser, therefore, expressly undertakes not to make use of the received drawings and technical information, commercial brand, trade name or trade dress, and not to reproduce any of them in any medium or format, for any other purposes than those strictly required for the execution of the Order Confirmation.
12. Processing of personal data
The Parties mutually undertake to process the personal data acquired directly and/or indirectly in the performance of the Contract in compliance with the European Regulation UE 2016/679 (hereinafter also “GDPR”), Italian law (or any other laws applicable for jurisdiction) and the regulations adopted by the competent Data Protection Authority (hereinafter "Regulations in force").
Data will be processed exclusively for administrative and account purposes, for the fulfilment of statutory obligations, for purposes related to the management and performance of the Contract and will be stored with the support of print and/or computer or electronic media.
13. Contact information / MOG
The Purchaser hereby expressly agrees to the processing of its personal information and authorizes the Seller to use its name and address as contact information to add to the customer list for technical and commercial promotional activities. The Purchaser declares to be familiar with the Ethical Code and the Organisation, Management and Control Model (“MOG”) adopted by the Seller, available at the following web site www.cefla.com and therefore, to comply with its provisions. The Seller will have the right, to legally terminate the contractual relationship in the event of failure to comply with the aforementioned provisions/principles.
14. Applicable law and arbitration
These TCS and the related Contract /orders shall be governed by and shall be construed in accordance with the German Laws, without giving effect to the conflicts of law rules thereof.
The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 is excluded.
Any dispute, difference, controversy or claim between the Parties arising out of, relating to or in connection with this TCS and related Order Confirmations, including any question regarding its existence, validity or termination, that cannot be settled by mutual agreement within the term of 30 days, shall be referred to and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce, in force at that date.
The tribunal shall consist of three (3) arbitrators to be appointed in accordance with said Rules. The place of the arbitration shall be Munich and the language of the arbitration shall be English. The award shall be final and binding upon the Parties, and for the avoidance of doubt, judgment upon any award may be entered in any court having jurisdiction.
15. Specific terms and conditions of sale when in presence of Digital Printing Equipment in the Offer/Order Confirmation
15.1 All Digital Printing Equipment supplied by Seller shall be regulate with the following additional conditions complementary to the Terms and Conditions of Sale. These additional conditions of sale don’t apply in case of absence of Digital Printing Equipment in the Offer and Order Confirmation.
15.2 These Specific Terms and Conditions for the sale of Digital Printing Equipment do not exclude any of the items of the previous Terms and Conditions of Sale of the Seller, but complement and specify them as to Digital Printing Equipment.
15.3 All data, plans and other products described in the Offers and Order Confirmation are merely explanatory, they shall not imply any obligation by the Seller and may be changed or replaced by updated items or data.
15.4 All technical documentation provided by the Seller, as well as any knowledge transmitted to the Purchaser, shall remain confidential as long as the Seller considers it appropriate, and shall not become the property of the Purchaser in any case.
15.5 The Seller reserves all rights on the software and hardware included in the installation, and it shall not be allowed in any case to share information, software or hardware with third parties.
15.6. The Seller shall have online access to the software of the Digital Printing Equipment acquired by the Purchaser for the purposes of obtaining consumption and performance data to perform technical analyses, improve performance and assess the inks most suitable for each use. The Seller undertakes to keep confidentiality of the details to which it has access through the described connection and not to use the information for uses other than those specified herein.
The Purchaser may request the Seller to disconnect the system of online access to the machine software.
15.7. Handling of components, software or hardware by persons not authorized by the Seller shall not be allowed.
15.8 All consumables must be used and handled under the express supervision of the Seller or authorized personnel following fully standardized processes.
15.9 The installation must be located in a specifically prepared area free from dust and acclimatized.
15.10 Working temperature in the installation may not be in any case under 20°c or aver 30°C.
15.11 In case of power failure, transferring of the equipment or any other event entailing a change in the installation ambient conditions, the Purchaser shall give sufficient prior notice to the Seller to carry out any preventive maintenance tasks on the equipment, all costs shall be on Purchaser side.
15.12 All inks, cleaning liquids, cleaning procedures, cleaning materials and any other element that by its nature may be in contact with sensitive elements of the equipment shall be supervised and expressly certified by the Seller.
15.13 The equipment must have an uninterrupted power line.
15.14 The conservation of inks and other liquids to be used in the installation shall be under strict conservation control as to temperature, light exposure and expiry date.
15.15 All personnel authorized to handle the equipment must be trained in machine set up and maintenance processes and in the relevant safety and hygiene precautions. Such training shall be performed by a course taught by personnel of Purchaser at the Purchaser's facilities, during the pre-acceptance test, if those accessory services have been contracted by the Purchaser. In any case, the adequate training of operators and the correct use of the equipment as per the instructions of Seller shall be at the Purchaser's responsibility.
15.16 The printing quality accepted by the Purchaser shall relate solely and exclusively to tests previously performed at the facilities of Seller with the inks and materials specified. Any tests performed in other installations or with other materials may not be used as a reference. Such quality is reflected in the pre-acceptance test document or protocol.
15.17 Any defects in printing due to occasional loss of printing lines, either recoverable or not after a proper cleaning, may not be claimed to the Seller.
15.18 Printing heads may have slight shade changes, especially noticeable in printing solid one-color masses images, such designs should be avoided or quality compromises accepted.
15.19 Digital printing equipment are designed with pre-fixed resolution and point size, and there are no possibility of claim or change concerning that.
15.20 The colors and color range obtained are limited by the ink formulation and its pigment capacity, and there are no possibilities other than those set by the manufacturer. The Seller shall not take liability for any tests performed with inks not duly confirmed and approved by the head manufacturer.
15.21 The equipment printing capabilities shall always relate to the tests performed in laboratory and the quality obtained with the Purchaser's parts and the inks certified during the acceptance tests at the Seller's site.
15.22 To change the inks used in the digital printing equipment once the machine has been installed, the Purchaser shall require technical assistance from the Seller, which shall undertake any tasks necessary so that such change does not damage the equipment.
Should the Purchaser decide to make a change in the inks used, it shall request the Seller, before carrying out the such change, to make any necessary preparatory modification. The Purchaser shall bear the personnel and material expenses and costs incurred by the Seller for any preparation works necessary in the equipment in order to be able to use a different ink and such costs shall be quoted by the Seller.
Carrying out the ink change without fallowing the specifications set forth by the Seller shall entail a complete loss of the Digital Printing Equipment warranty. The Seller shall not be liable for any damages in the machine if the Purchaser carries out an ink change without the Seller's advice and/or intervention.
15.23 Any non-compliance of the Purchaser's obligations shall entail the full or partial loss of the warranty.
15.24 Machine consumables, the useful life of which depends on the use and quality of the maintenance provided, in particular concerning the ink jet injection heads and their shooting electronics, shall be covered by the warrantee for 6 months from shipment date.
15.25 Any damage caused by the use of non-certified inks, non-certified cleaning products or damages in the digital printing heads shall entail the full loss of the warranty.
15.26 The diagnosis of the items under warranty shall be the exclusive competence of the Seller's competent personnel. For such purpose, the Seller, with the Purchaser's authorization, may connect electronically to the equipment.
15.27 After the first six months of installation and under penalty of forfeiture of the residual warranty for defects, the parties agree on a general inspection of the digital printing equipment, with maintenance and verification of its correct functioning. The intervention is entirely at the Purchaser's expense, but originally defective parts and components will be replaced under warranty.
15.28 A printhead to be considered defective must show at least 5 non-functioning nozzles or at least 2 consecutive nozzles.