UNIFORM TERMS OF SALE AND DELIVERY
Article 1 Applicability
1.1. Unless explicitly agreed otherwise, these terms and conditions will apply to all offers, quotations, orders, agreements, services and all subsequent contracts of whatever nature which are preapraed or entered into by the Seller.
1.2. The Buyer accepts the applicability of these terms and conditions through the sole fact of enquiring and/or ordering. Any uniform or specific conditions for purchase used by the Buyer will not be accepted by the Seller and will not be applicable to the Agreement of Sale and Purchase and/or to the services, unless these are expressly accepted in writing by the Seller in respect of any specific transaction.
1.3. In case for whatever reason one or more of the articles of these terms and conditions are invalid, the other articles shall remain valid.
Article 2 Definitions
2.1. Seller: Chugoku-Boat Italy S.p.A. via Macaggi 19, 16121 Genova (GE) Italy and/or any agents, stockist, licensee and (associated) manufacturer of Chugoku-Boat Italy S.p.A.
2.2. Buyer: any party asking offers or quotations for or ordering paints for marine or industrial use and/or services and any party on whose behalf the said offers, orders and subsequent agreements or contracts have been made.
Article 3 Offers, quotations and prices
3.1. All quotations submitted by the Seller are without engagement to the Seller unless explicitly stated otherwise.
3.2. An offer, even it is irrevocable, may be withdrawn by the Seller if the withdrawal reaches the Buyer before the offer.
3.3. An acceptance of an offer becomes effective at the moment the indication of assent reaches the Seller.
3.4. All prices offered or quoted by the Seller are net cash, without reduction and with the exclusion of any tax, duty, costs and charge owed at the time of delivery. If an order is placed and no definite price has been agreed upon in advance, then it will be executed at the price which is valid at the time of the execution of the order, irrespective of any offer made before or any price charged before.
3.5. All prices and/or tariffs do not include V.A.T. unless specifically stated otherwise.
3.6. For special colours or non-standard products agreed upon, a margin of 10% is permitted, on the understanding however, that the Buyer will be obliged to receive and pay 10% more or less, such with a minimum of one kilogram or litre respectively.
3.7. Any later or extra tax, duty or other charge, or any price increase in additional costs borne by the Seller caused by any change in the Seller’s contemplated source of supply, coming into existence after the Agreement has been concluded, will be added to the agreed purchase price, provided that the Seller will give the Buyer notice to this effect.
Article 4 Acceptance of an order, quotation
4.1. A reply to an offer or quotation which purports to be an acceptance, but contains addition, limitations or other modifications, is a rejection of the offer or quotation and constitutes a counter offer.
4.2. Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party’s liability to the other or the settlement of disputes are considered to alter the terms of the offer materially.
Article 5 Specifications
5.1. The specifications as given by the Seller are average analyses, unless explicitly stated otherwise.
5.2. The Seller will deliver goods which are of the quantity, quality and description required by the Contract and which are contained or packaged in the manner required by the Contract.
5.3. Except where the parties have explicitly agreed otherwise in writing, the goods are not fit for any particular purpose and the Seller will not be liable for any lack of fit for purpose conformity of the goods.
Article 6 Delivery
6.1. The Seller will deliver goods which are free from any right or claim of a third party, unless the Buyer agreed to take the goods subject to that right or claim.
6.2. The time of delivery as given by the Seller will have been given approximately, unless specifically agreed otherwise in writing. The time of delivery will only be binding for the Seller when all information, necessary for the Seller to comply with its obligations, have timely come into the possession of the Seller. The Seller will be entitled to deliver the goods in partial deliveries, in which case each partial delivery will be construed as a separate agreement.
6.3. If the Seller is bound to hand over documents relating to the goods, he must hand them over at the time place and form required by the Contract. If the Seller has handed over documents before that time, he may, up to that time, cure any lack of conformity in the documents. If the Seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists in handing the goods over to the first carrier for transmission to the Buyer, or in placing the goods at the Buyer’s disposal at the place of manufacture or production or drawing from a specific stock.
6.4. Late delivery, provided it occurs within reasonable limits, will not result in any right to compensation or cancellation of the Agreement.
6.5. If, however, it has been stipulated within the Agreement that the delivery will take place at a date fixed and the Buyer has notified the Seller in writing that this term cannot be exceeded for any reason whatsoever, then the Buyer will be entitled, after the agreed term has been expired and delivery has not taken place, to cancel the Contract of Sale without taking the matter to Court and without prejudice to the Buyer’s right to compensation except in the event of force majeure on the Seller’s part. He will be obliged to notify the Seller thereof immediately and in writing. Any agreed dates of delivery will be target dates, unless explicitly agreed otherwise.
Article 7 Reservation of title
7.1. Title on the goods delivered and/or property rights on such goods, will remain the exclusive property of the Seller until the moment when all claims (including, without limitation, the payment of the goods) – whether from this or from previous supplies or services – from the Seller against the Buyer are fully discharged by the Buyer.
7.2. Until full payment of everything due to the Seller, for whatever nature, has been made, the Buyer will not be entitled to sell, encumber, pledge, alienate, or surrender the goods to third parties.
7.3. The goods can be reclaimed by the Seller immediately if the Buyer has not fulfilled his obligations or if the Seller has reasons to believe that the Buyer will not meet his obligations. The costs of taking back the goods, will be charged to the Buyer. When the goods are taken back, a credit note will be made based on the value which the goods will appear to have when they are taken back.
7.4. The Contract of Sale involves carriage of the goods and the Seller is not bound to hand them over at a particular time. The risk passes to the Buyer when the goods are handed over to the first carrier for transmission to the Buyer in accordance with the Contract of Sale. If the Seller is bound to hand the goods over to a carrier at a particular place, the risk does not pass to the Buyer until the goods are handed over to the carrier at that place. The fact that the Seller is authorised to retain documents controlling the disposition of the goods does not affect the passage of the risk. In other cases the risk passes to the Buyer when he takes over the goods or, if he does not do so in due time, from the time when the goods are placed at his disposal and he commits a breach of contract by failing to take delivery.
Article 8 Complaints
8.1. The Buyer must examine the goods, or cause them to be examined, within as short a period as practicable in the circumstance, not exceeding 10 calendar days after delivery of the goods. If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination.
8.2. The Buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the Seller specifying the nature of the lack of conformity within 8 calendar days after he has discovered it.
8.3. Complaints of any nature whatsoever will not postpone the Buyer’s obligations to pay and can only be brought to the Seller’s notice in writing within the period laid down in this article.
8.4. The faultiness of paint products delivered can only be proved by the Buyer, with the exclusion of any other proof, through submission to the Seller of a report issued by the coating institute TNO, at which the costs of the report will be borne by the party found to be in error. For all other goods there is no binding evidential regulation.
8.5. In any event, all claims of the Buyer will become time-barred unless legal proceedings will have been instituted before the Court of competent jurisdiction within 1 year after the date of delivery.
Article 9 Payment terms
9.1. Unless differently agreed in writing, invoices of the Seller will be due 15 days from the date of the invoice without deduction of any discount or set-off.
9.2. Payments must be made at the bank account indicated by the Seller on the respective invoice.
9.3. If the Buyer does not pay the invoice price owed in time, he will owe the Seller an interest of 1% of the invoice price for every month by which the term of payment has been exceeded.
9.4. Payment made by the Buyer will, notwithstanding the description, be credited with costs, subsequently with interest and thereafter with invoices in the order of their age, also if not yet mature.
9.5. The Buyer will owe to the Seller out-of-court collection charges in every case in which the Seller has secured the assistance of a third party with the collection of overdue invoices. These collection charges will be 10% of the amount due with a minimum of € 340,–.
9.6. All costs borne by the Seller in connection of overdue payments and in general all costs in connection to any breach of the Agreement by Buyer, will be for Buyer’s account as well.
9.7. The Seller will at all times be entitled to require to the Buyer to give security for the proper performance of all its obligations under the Agreement in a manner as will be deemed sufficient by the Seller. Failing immediate provision of such security, the Seller will be entitled to stop the further execution of the Agreement(s) until such time as the Buyer will have provided the required security.
Article 10 Liability
10.1. The Seller will not be liable for damages of whatever nature nor for delay in making deliveries or rendering services, even when such damages or delay have been caused by faults or negligence on the side of the Seller to the maximum extent permitted under the applicable law. The Seller shall furthermore not be liable for damages or delays described above when such damages or delay have been caused by faults of its personnel or (sub)contractors.
10.2. Liability of the Seller for any consequential damages is explicitly excluded. In any event the Seller’s liability will not exceed the invoice value of the goods supplied and/or the services rendered under the relevant Agreement.
10.3. No servant or agent of the Seller (including independent sub-contractors from time to time employed by the Seller) will be under any liability to the Buyer for loss, damage or delay, while acting in the course of or in connection with its employment and/or agency. Without prejudice to the above every exemption, limitation, condition and liberty herein contained, and every right, exemption from liability, defence or immunity of whatever nature applicable to the Seller will also be available and will extend to protect every such servant or agent of the Seller acting as aforesaid.
10.4. The Buyer will be liable towards the Seller and herewith undertakes to indemnify the Seller for any and all damages and/or costs suffered and/or made to the Seller due to a breach of contract and/or fault or neglect of the Buyer, its agents, servants, employees and the officers, crews and/or other people whether or not on board of the respective vessel or into the employment of the Buyer. The Buyer furthermore undertakes to hold the Seller harmless in case a third party institutes a claim against the Seller in connection to an Agreement under the terms of these conditions. Third party will mean any other physical or legal person than the Buyer.
Article 11 Force Majeure
11.1. Force majeure will be considered to exist in all those circumstances which prevent or render impossible or make unreasonably burdensome to the Seller the execution of the Agreement or any part thereof, in and as far as such circumstances occur beyond the reasonable control of one or both parties.
11.2. In case of force majeure the execution of the Agreement will be suspended for the duration of the said circumstances. The party which invokes force majeure will immediately notify the other party in writing of the occurrence and cessation of any circumstances purportedly causing force majeure.
11.3. In the event that the Seller, as a consequence of force majeure, does not have sufficient quantities of goods available to supply all its buyers, the Seller will have the right to choose which obligation(s) to meet and in which order, and/or to pro-rate the quantity of goods available between the various buyers, whereby the Seller will not be required to purchase goods to replace its supplies or to make use of other than its normal transportation and/or other facilities.
11.4. In the event of force majeure lasting more than 3 consecutive months, the Seller will be entitled to cancel the Agreement(s) without being obliged to pay any compensation to the Buyer.
Article 12 Trademarks and packaging
12.1. The Seller reserves the right to furnish the goods with his own name and trademark. Only packaging returned within 6 months form date of invoice, which is in a sound state and has been invoiced, will give the right to compensation of the value charged. When packaging is rejected, the Buyer will be notified in writing within 30 days after receipt, after which this packaging will be kept at his disposal for one week. After this week the Seller will be free to dispose of the packaging without any obligation to pay damages. Any packaging which is not charged separately in the invoice, will not be taken back by the Seller.
Article 13 Transport
13.1. Costs for barges, cranes, etc. are in charges of Buyer.
13.2. Normal delivery term is Free Alongside Ship (FAS).
Article 14 Certain undertakings on Buyer’s Debt
14.1. Any amount due from the Buyer to the Seller as a consequence of the purchase by the Buyer of goods or services is defined “Debt”. With reference to the Debt:
a) In accordance with what provided for in article 1268 of the Italian Civil Code (cumulative delegation) if the Buyer intends to assign a new debtor to the Seller, the Buyer is not discharged from his obligation towards the Seller unless all the following conditions are met: (1) the assignment is notified to the Seller through certified email with the details of the new debtor; (2) the Seller has accepted the assignment through a certified email to the Buyer and (3) the Seller has expressly discharged the
Buyer through a certified email. If the Seller has not discharged the Buyer as indicated above, the Seller may require the payment of the Debt to the Buyer even without a previous request to the new debtor.
b) In accordance with what provided for in article 1272 of the Italian Civil Code (Expromission) if a third party, without delegation from the Buyer has taken on the Debt towards the Seller, the Buyer is not discharged from his obligation towards the Seller unless the Seller has expressly discharged the Buyer through a certified email. It remains understood that in no case the Expromission of the Debt will have an effect towards the Seller if it has not been notified by the Buyer to the Seller through certified email with the details of the third party.
c) In accordance with what provided for in article 1273 of the Italian Civil Code (Assumption of debt) the possible acceptance by the Seller of the assumption of debt between the Buyer and a third party must be notified through certified email being understood that before signing the assumption of debt the Buyer and the third party must, in order to make it effective towards the Seller, communicate the terms and the conditions of the assumption of debt. The Buyer will not be discharged from his obligation towards the Seller, in accordance with article 1273 n. 2 of the Italian Civil Code.
d) In any case, in accordance with article 1274 of the Italian Civil Code, the discharge of the Buyer by the Seller in accordance with what provided above will become ineffective if the third party is insolvent and therefore the Buyer will be obliged to the payment of the Debt.
e) In case of change of control of the Buyer, the actual controlling shareholder of the Buyer will be jointly obliged towards the Buyer for the payment of the Debt.
f) If the Debt is part of a branch of the Buyer’s company which is being transferred to third parties (or rented to third parties) the Buyer shall give prompt notification through certified email to the Seller. The Buyer will in any case be obliged towards the Seller for the payment of the Debt. The provisions above are applicable to any restructuring of the Debt which is not a bankruptcy procedure.
Article 15 Law and jurisdiction
15.1. The Italian law will apply. Applicability of the United Nations Convention on Contracts for the International Sale of Goods (Vienna 11 April 1980) is excluded.
15.2. All disputes between Seller and Buyer will have to be exclusively brought to the Court of competent jurisdiction in Genova – Italy unless Seller would elect or agree to the jurisdiction of another Court.