GENERAL CONDITIONS OF SALE
Unless otherwise agreed between the Parties in writing, these general conditions of sale (hereinafter the “GCS”) shall govern all sales of goods between O.Z. S.p.A. (hereinafter the “Seller”) and the purchaser (hereinafter the “Client”) and shall prevail over any other possible conflicting provision contained in forms or other documents utilised by the Seller and/or the Client (hereinafter also jointly the “Parties”). Registered users in possession of a password and username may make on-line purchases on the http:www.ozracing.com website (hereinafter the “Website”), where the section named “Download/User Manuals” constitutes an integral and essential part of the present GCS.
1.1. The object of the contracts of sale governed by these GCS are all the goods produced and/or distributed by the Seller and inserted in the Seller’s latest catalogues in force at the time of submission of the order by the Client or on the Website (hereinafter the “Products”) with the specifications indicated therein.
1.2. The forwarding of catalogues shall not be deemed a formal offer of sale by the Seller and the same catalogues may be modified at any time without prior notice.
Any indication of weight, measurements, dimensions, power, capacity, efficiency and any other data contained in drawings, catalogues and prospectuses of the Seller or any other illustrative material provided by the Seller shall be merely indicative and shall not be deemed binding on the Seller.
2. ORDERS AND CONFIRMATIONS
2.1. After registering, orders can be made on-line via the Website, or in writing by fax, letter or email (hereinafter the “Orders”).
2.2. On-line Orders made by the Client via the Website are only effective if the Client has filled in all the requested sections and reviewed and accepted the GCS. Acceptance of the GCS shall occur via the so-called “first click” on the ACCEPT option for review and acceptance of the same and the so-called “second click” on the CONFIRM button for definitive confirmation. On-line Orders are not be considered effective if any error messages appear on the Website.
2.3. On-line or written Orders remain effective and binding on the Client in accordance with Article 1329 of the Italian Civil Code until the Seller sends confirmation and, in any case, no longer than 15 (fifteen) working days from their receipt. Orders are deemed binding on the Seller from the moment at which acceptance by the Seller is published in the Back Orders area of the Website (hereinafter the “Order Confirmation”). The Order Confirmation summarises the order number, chosen articles, respective prices (including delivery charges, any discounts etc), delivery address and the GCS which apply to the Order.
2.4. Notwithstanding that the Order Confirmation is binding in accordance with the previous article 2.3, the Seller may, at his or her own discretion, send a fax, email or letter with the details of the order which has already been published in the Back Orders area of the Website. For On-line sales the abovementioned communication will be sent by email to the address given during the Website registration phase.
2.5. Should the Sale be to a Client who has registered offices or is domiciled in Italy, the effectiveness of the Sale shall be deemed subject to restitution to the Seller by the Client of these GCS duly signed according to articles 1341 and 1342 of the Italian Civil Code. For On-line sales, the present GCS must be printed by the Client, who, in order to complete the registration process and carry out any further on-line purchases must also undersign them in accordance with articles 1341 and 1342 of the Italian Civil Code and return them by post to the following address: Via Monte Bianco 10, 35018 SAN MARTINO DI LUPARI (PD), Italy.
2.6. Should the order confirmation contain amendments with respect to the Order, these amendments shall be deemed tacitly accepted after fifteen working days from receipt of the Order Confirmation, provided the Client does not express its disagreement in writing during this period.
2.7. The Seller reserves the right, even after the order confirmation, to modify the Products with technical amendments which, with due respect for the functional characteristics and performances requested by the Client, may be deemed necessary and appropriate, without the Client having any right to complain or claim, and without any obligation in this respect on the Seller. The delivery of a quantity of Products above or below 10% of the quantity ordered and accepted shall be deemed in conformity with the order. Likewise, the Seller shall have the right to suspend and/or cease the production of the Products should the requirements of the market and/or of the production request it, without the Client being entitled to raise any complaint or claim in this regard.
2.8. Should an order be cancelled or if the Products remain uncollected, even in part, the Client shall pay a sum equal to 30% of the value of the cancelled orders and/or uncollected Products, without prejudice to the Seller’s right to claim the full price and seek further compensation.
Unless otherwise specifically agreed in writing between the parties, the prices for the Products delivered EX WORKS, Incoterms®2010, (hereinafter the “Prices”) shall be the Prices set out in the Seller’s price list in force on the date of delivery.
4. TERMS OF PAYMENT
4.1. Unless otherwise agreed in writing between the Parties, the payment is due from the date that the invoice is issued for the Products. The terms of payment are those indicated in the Order Confirmation. Where on-line sales are concerned payment methods are indicated before the order is carried out on the supermarket page.
4.2. Irrespective of what may be agreed with regard to the method of payment, any payment shall be deemed executed at the Seller’s office. The issue of bills of exchange shall not be considered as payment nor shall be deemed a novation of the original obligations. In any case all stamp duties and bank costs shall be borne by the Client.
5. NON-PAYMENT OR DELAYED PAYMENT
5.1 Should there be a total or partial delay in payment, the Client will be liable to pay interest on the amount owed in accordance with the Legislative Decree no. 231/2002 regarding delayed payments for commercial transactions. The Seller shall in any case and under these circumstances have the right to suspend any supply in progress, terminate the contract and retain as pre-liquidated damages all sums already cashed, without prejudice to its right to claim further damages.
5.2 Where the Price is paid in instalments, the Client’s failure to comply with even one instalment or diminish the security granted will automatically result in the forfeiture of the benefit of instalments with regards to each and every amount due by the Client to the Seller, even if related to a previous supply.
6. RETENTION OF TITLE
6.1. Ownership of the Products remains vested with the Seller and shall not pass to the Client until full and complete payment of the Price is effected by the Client and, should the payment be made by means of cheques or bills of exchange, until the Seller has received from the Bank a communication that the cheques and bills of exchange have been paid in full, even if such documents are delivered in advance. Nevertheless, the Parties agree that all the risks deriving from loss or damage to the Products due to any cause whatsoever will pass to the Client as from the time of delivery EX WORKS pursuant to the relevantIncoterms®2010 provision governing each sale.
6.2. All possible costs for the registration of the retention of title shall be deemed totally due by the Client.
6.3. The Client may transfer the Products to third parties even before the total payment of the Price is effected. In this case, the Client shall carry out all acts and formalities required by the local laws in order to render such reservation of title enforceable against third parties. The Seller shall be automatically surrogated in the Client’s rights towards third parties and the proceeds of the sale, until full payment is received, shall be retained by the Client in the name and on behalf of the Seller.
6.4. The retention of title as stated in this clause shall be enforceable against the Client’s third-party creditors pursuant to Article 11, par. III of Legislative Decree no. 231/2002. To this end, it shall be duly indicated on the sales invoices. The Client shall be under an obligation to inform the Seller, within 24-hours, of any enforcement proceeding or interim injunction filed by third parties on Products under reservation of title. The Client shall remain, in any case, liable to the Seller for any expense or damage which the Seller may suffer in relation to such acts.
7. DELIVERY TERM
7.1. Unless otherwise agreed in the Order Confirmation, the delivery is intended to be executed at the Seller’s warehouse on Via Monte Bianco 10, San Martino di Lupari (PD) pursuant to the EX WORKS provision contained in Incoterms®2010. The Seller warrants that the Products shall be packaged in accordance with the custom of the business sector and suitable for the agreed means of transport.
7.2. Within 8 days of the Seller giving the Client notice that the Products are ready for delivery, the Client shall name the forwarding agent or the carrier entrusted therewith. In case of failure by the Client, the Seller may ship the Products at the Client’s expense and inform the latter of the terms and conditions of shipment
7.3. The delivery terms specified in the Order Confirmation are merely indicative and shall not be deemed of the essence. Such terms shall be deemed automatically extended in case of non-payment by the Client of even one instalment or in case of amendments in the supply requested by the Client after the execution of the contract.
8.1. The Seller warrants that the Products are free from material and workmanship defects under normal use. Unless specifically agreed in writing between the Parties, the Seller undertakes to remedy any defects or faults with the Products caused by the Seller. Unless specifically indicated in writing by the Seller, this warranty will be valid for a period of 2 years from the delivery EX WORKS of the Products pursuant to the Incoterms® 2010 provision governing each sale, and may not, in any case, be suspended or extended as a consequence of the non-use of the Product by the Client, even if due to warranty interventions. The Seller grants no other warranty to the client, who expressly waives any further legal or conventional warranty, whether implied or express. The Client also waives the right to claim termination of contract and/or seek damages in connection with any defective product.
8.2. At the time of delivery, the Client shall carefully examine each individual Product in order to verify the conformity of the supply to the agreed quantity and quality, verifying also the existence of any patent defects. Should the Client discover any defect or non-conformity in the agreed Product, it shall give immediate notice thereof to the Seller by specifically detailing its claims on the delivery note and notifying them to the Seller in writing, on pain of forfeiture, within 8 days of delivery. After such time has elapsed, the supply shall be deemed accepted without reservation by the Client, with consequent waiver by the same to contest any defect in the Product. Any possible latent defects which are not discoverable at the time of delivery, shall be notified on pain of forfeiture within 8 days of their discovery in the same way as patent defects.
8.3. In case of acknowledgement of the defects and the timely report of such defects by the Client, the Seller shall, at its discretion and in accordance with its technical standards, repair and/or replace free of charge EX WORKS (Incoterms® 2010) the Product or its defective parts, or refund the Client the price paid for the defective Product. No other form of intervention under warranty and/or refund shall be claimed by the Client. In particular, the Seller shall not be liable for direct, indirect, incidental or consequential damages which may derive from the defective nature or non-conformity of the Product, the Client’s right to seek such damages being expressly forfeited.
8.4. Any possible claim by the Client, as well as any judicial action by the same, shall not, in any case, entitle the Client to withhold or delay the payments due under the contract.
8.5. The warranty under this clause 8 does not cover defects caused by: (i) wrong installation or assembly of the Product by the Client or any third-party; (ii) unapproved use on vehicles unfit for street usage and/or with a higher load than the one recommended by the Seller; (iii) non conforming installation, maintenance and cleaning contrary to the instructions contained in the “Installation, use and maintenance handbook” or, in any case, insufficient maintenance; (iv) improper or non conforming use contrary to the Seller’s instructions and/or contrary to standard use; (v) use with different accessories from the ones recommended by the Seller; (vi) use with tires, valves and/or pressure sensors (eg. TPMS, etc.) non conforming to the vehicle to be rigged; (vii) use in on-track and/or off street competition expect where expressly authorised by the Seller; (viii) normal wear; (ix) repairs or other interventions carried out by third parties without the Seller’s written consent; (x) use on vehicles when such use is not approved by the competent motoring authorities (if applicable) and/or allowed by the governing laws as applicable from time to time in the country of use.
9.1 Unless specifically agreed in writing between the Parties, the Client shall be exclusively responsible for the installation and assembly of the Products.
These GCS and/or each individual contract of sale regulated by the same may be terminated by any Party for just cause and without notice, by means of a simple declaration to be sent to the other party by registered letter, return receipt requested, in the following situations:
a) in case of non-payment;
b) in case an insolvency or bankruptcy procedure is filed against the other Party;
c) should one of the Parties have participations or interests, whether directly or indirectly, in companies or entities in competition with the counterpart.
11. APPLICABLE LAW AND COMPETENT JURISDICTION
11.1. Unless otherwise agreed between the Parties, the sales subject to these GCS are governed by Italian Law, with the express exclusion (except for its Articles 8 and 11 which shall prevail on any other Italian legal provision) of the 1980 Vienna Convention on Contracts of International Sales of Goods.
11.2. Any dispute which might arise in relation to these GCS and to each contract regulated by the same, shall be submitted exclusively to the Court of Padua. As a partial derogation to that above stated, the Seller shall nevertheless have the right to apply to the Court where the Client has its place of business.
12. CODE OF ETHICS
12.1. The Client hereby declares that it has reviewed Code of Ethics adopted by the Seller pursuant to Legislative Decree no. 231/01 on corporate liability for criminal acts as published on the Website. The provisions contained therein shall form an integral part of this Agreement and be deemed binding on the Parties.
12.2. The Client’s breach of any one of the provisions contained in the Code of Ethics shall constitute a material breach of this Agreement pursuant to and for the effects of Article 1456 of the Italian Civil Code. In such event, the Seller shall be entitled to terminate this Agreement immediately by giving written notice thereof to the Client without prejudice to the Seller’s right to seek compensation for further damages.
13. FINAL PROVISIONS
13.1 Failure by one of the Parties to enforce at any time any of the provisions of these GCS or of the contract ruled by the same, shall not be construed as a waiver of such provision or of the right to thereafter enforce each and every provision therein.
13.2 All communications between the Parties must be made by means of registered letter, return receipt requested, or telegram or fax and shall have effect from the time of its receipt.
13.3 If any provision of these Conditions is declared to be invalid, illegal or unenforceable by the competent Court the remaining provisions shall continue in full force and effect and shall not be affected thereby.
13.4 The Client with place of business or domicile in Italy declares to expressly approve, for the purposes and to the extent provided for by Articles 1341 and 1342 of the Italian Civil Code, the provisions contained in the following paragraphs of these GCS: 2.4 (Waiver of the right to cancel Orders and Order Confirmations); 2.6 (tacit acceptance of amendments); 2.7 (Technical amendments; delivery of Products of more or less than 10%; suspension and cease of production); 4.2 (Place and terms of payment); 5.1 (Seller’s right in case of delayed payment); 5.2 (Expiry of the right to pay in instalments); 6. (Reservation of Title); 7.2 (Delivery and transport expenses); 7.3 (No essence of terms of delivery); 8.1 (Warranty); 8.2 (Expiry of time-limit and unreserved acceptance); 8.3 (Warranty time-limit and waiver); 8.4 (Withholding payment); 8.5 (Exclusion of warranty); 10. (Termination); 11. (Applicable Law); 11.2 (Competent jurisdiction); 12 (Code of Ethics).
DATA PROTECTION ACT (Law no. 196/2003)
For the purposes and to the extent of Law no. 196/2003 the undersigned declares to have received the information provided for by article 13 of the above-mentioned law and to have taken due note of the rights granted thereby.
Therefore, the undersigned gives its unconditional acceptance to the processing, communication and diffusion in Italy and abroad, including countries outside the European Union, of its personal data, including any “sensitive data” to the extent that such data is used for the purposes of filing, processing or registering the same in the company files or for operational, advertising and promotional purposes, the transmission of commercial and technical information, the conduct of marketing surveys and in particular, without limitation, for all uses which may be deemed appropriate to guarantee greater protection and safety of the Products.