General conditions of sale
(rev. 0 – August 2nd, 2016)
1. General provisions
2. Execution of the Contract
3. Samples, technical drawings and documents
4. Warranty for defective parts
5. Claims
6. Seller’s manufacturing responsibility
7. Liability
8. Delivery
9. Payments
10. Cancellation and Termination
11. Reservation of title & risk
12. Force majeure
13. Assignment of the Contract
14. Interpretation, modification, invalid clauses
15. Governing Law
16. Arbitration
1. General provisions
1.1 These General Conditions, exception made for any
written derogation, govern the Contract of sale of which
they are part, for the supply of Seller’s plants or
machinery hereinafter referred to as “Product”.
1.2 Parties means “Buyer and Seller”
1.3 Any General Conditions of the Buyer shall not
apply to any relationship between the parties, if not
expressly accepted in writing by the Seller and co-
ordinated therewith. In case the Buyer issues an Order
Confirmation after Contract signature, all terms and
clauses of the Confirmation are deemed to be compliant
and co-ordinated with these General Conditions, that in
case of conflict will prevail.
1.4 Terms of delivery (e.g. EXW, FOB, etc.) are taken
from the Incoterms of the International Chamber of
Commerce in the text in force at the moment of the
Contract coming into force.
1.5 The compliance to these General Conditions does
not imply the granting to the Buyer of any right to use, in
any form, the trade-marks, logos or other distinctive
signs of the Seller.
1.6 During negotiations, the receipt by the Buyer of
these General Conditions shall not imply the acceptance
of any offer of the Seller; nevertheless these General
Conditions supersede any Conditions priorly proposed
by either of the parties.
1.7 The wording "not binding", "if available" or similar
ones inserted by the Seller in his offer, shall not firmly
bind the Seller himself to the terms of the offer,
exception made for subsequent specific confirmation in
writing by the Seller that he will confirm with them,
during the Contract execution.
1.8 The Contract is subject to the approval of the
Seller's competent National Authorities and of the
Seller’s Board of Directors; in case the Seller has
applied to a Factoring or Credit Insurance Seller, the
Contract shall also be subject to the approval by the said
Companies
1.9 Buyer is responsible for providing Seller with the
information necessary to enable Seller to carry out the
contract and Seller are not responsible for any
shortcomings in such information. Both parties accept
that in complicated engineering projects the contract will
involve co-operation. Both parties will have an overriding
duty to act fairly and reasonably.
1.10 None of the Parties undertakes any obligation and
responsibility except those stipulated in this Contract. All
amendments, supplements and alterations to the terms
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1 and conditions of this Contract shall be made in written
1 form and signed by both Parties.
1
2 1.11 Correspondences (emails, fax, letters), Minutes of
2 Meetings exchanged between Parties shall be valid on
2 chronological order.
2
3 2. Execution of the Contract
3 2.1 The acceptance, with no expressed claim by the
3 Buyer, of non-conforming Products for type or quantity,
3 i.e. shipped at terms different from the Contract, will
3
3
imply acceptance by the Buyer of both the supply and
3 the delivery conditions proposed by the Seller. The
4 claims hereabove shall have no effect if not submitted in
4 writing by the Buyer, fifteen days after receiving the
Product; reference is also made to the Clause “Claims”.
If the Product is delivered with integer packing, the
Buyer’s acceptance may take place when the Product is
unpacked (but in any case not later than fifteen days
from the date when the Product arrives at plant site) with
the attendance of one Seller’s Representative or Site
Engineer. If the Product’s packing shows evidence of
damages or that has been forced, the Buyer shall notify
in writing the Seller of such occurrence within a
maximum of fifteen days from receiving the Product on
plant site.
2.2 The Seller has the right to submit the Product
and/or materials subject of the Contract to any useful
modification aiming to improve their efficiency and/or
operability.
2.3 All permits, approvals, licenses, filing, waiver,
exemption, variance, clearance, entitlement, allowance,
franchise or other authorization from any Authority of
whatever nature in the Buyer’s country and/or in the
country of destination/transit of the Product, that are
required to give full effectiveness to the Contract, shall
have to be obtained by the Buyer at its own care and
charge.
Any and all taxes, duties, levies, fees and charges of
any kind to be paid in the Buyer’s Country and/or in the
country of destination/transit of the Product or more
generally beyond the contractual delivery point
(according to Incoterms) in connection with the
execution of the Contract, shall be borne by the Buyer.
2.4 Third party inspection, customer inspection, costs
and expenses are specifically excluded unless otherwise
stipulated in the Contract.
3. Samples, technical drawings and
documents
3.1 It is agreed that weights, dimensions,
performances and other data contained in catalogues,
advertisements, or other Seller's documents will not
have binding value unless if expressly mentioned as
such in the Offer.
3.2 In case the Seller refers the performances of the
Product to a sample received by the Buyer, this sample
is deemed to be fully representative of the raw material
to be processed by the Product in the Contract frame.
3.3 Any technical drawing or document (including all
copyright, design, right and other intellectual property in
them) enabling the manufacturing or assembling of the
Product subject of the Contract, whether released to the
Buyer before or after the Contract coming into force,
remains intellectual property of the Seller. Buyer is not
entitled to make any use of the Designs other than for
the specific purpose of this Contract.The drawings or
documents hereabove shall not be copied by the Buyer,
reproduced or transmitted to third parties without the
Seller’s written consent.
3.4 Any inventions, modifications, improvements,
techniques or know-how affecting the Product made or
gained in the course of performing this Contract, shall
belong to the Seller absolutely.
3.5 Each party warrants that it has the necessary
intellectual property rights to enable it to perform its
contractual obligations and will forthwith inform the other
on discovery of any infringement of intellectual property
rights.
3.6 All dimensions indicated to in the technical
documentation and drawings issued for the fabrication of
the Product are in accordance with the Metric System.
4. Warranty for defective parts
4.1 The Seller warrants the conformity of the Product
to the Contract stipulations. This Seller’s warranty will
cover all mechanical, electrical and electronic parts of
the Product.
4.2 The warranty will be limited to the defects of
Product deriving from defects in material or
manufacturing, attributable to the Seller, and shall not be
valid in the absence of the Buyer’s proof of its correct
use, maintenance and conservation in accordance to the
Seller’s Technical Manual, and of no modification or
repair to the Product without the Seller's consent.
Normal wear and tear of the parts during Product’s
operation are excluded from the Mechanical warranty.
4.3 Unless otherwise stipulated in the Contract, the
warranty shall have duration of twelve months,
beginning from the date of the Seller’s “Notice of goods
ready for shipment”. The warranty for defective parts is
subject to the Buyer’s claim in writing, as indicated in the
following clause, and to the request to the Seller for a
rectifying action under this warranty Clause.
4.4 The Seller undertakes to comply with the Buyer’s
request within a reasonable period of time and according
to the Claim’s importance, by taking one of the following
actions, at his option:
a. the Seller shall supply the parts proven defective
or not complying with the Contract, ex-works and free of
charge to the Buyer in the same quantity and type. In
this option the Buyer undertakes to return, at his care
and charge, the defective parts to the Seller’s premises,
upon the request of the latter.
b. the Seller shall, at his charge, repair and make
good the defective part at Buyer’s plantsite or at his own
workshop; in this latter case the shipping costs of the
part from and back to plantsite will be at Buyer’s charge.
c. in case the Buyer directly provides, upon prior
written consent and approval by Seller, for repair and
making good of the part, the Seller shall refund the
Buyer of reasonable costs of materials incurred by the
latter.
4.5 The Buyer will be responsible (at its own cost) for
dismantling and refitting any Products or parts thereof
repaired or replaced under this Warranty.
4.6 Apart from the warranty and other remedies clearly
provided in the CONTRACT and/or Seller’s offer, Seller
hereby disclaims any other guarantee, implied warranty,
or performance warranty including without limitation,
warranty of merchantability or fitness for a particular
purpose.
4.7 Warranties set forth in this paragraph shall not be
effective:
1. if the commissioning and start-up of the supplied
equipment/plants have not been effected under the
direction of the Seller’s specialist purposely
deputed at site.
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2. If Seller has not received by Buyer all monies due
in accordance to the contract terms.
3. If Buyer or any of its affiliate proceeds with any kind
of modification and/or repair without notification and
approval by Seller according to article 4.4.c
5. Claims
The Buyer and the Seller agree on the following:
a) any latent/hidden defects or lack of compliances of
the Product’s parts, not claimed under the preceding
clause, shall be notified by the Buyer to the Seller within
the shortest time from their discovery, and in any and all
case not later than 12 months from the date of the “Plant
Take-Over Certificate” or 18 months from the date of the
last Seller’s “Notice of Goods ready for Shipment”,
whichever is earlier.
b) weights and electrical powers are indicated in the
Seller’s offer for reference only. Differences between the
offer values and the actual Product can not constitute
ground for a claim by the Buyer
All of the Seller’s specifications, designs, drawings,
illustrations and indications of physical, chemical and
electronic properties (“the Designs”) are approximate
indications only and are not binding in detail, and the
Seller shall be entitled to vary the same and/or to correct
errors and omissions provided the Products remain in
substantial conformity with the contractual requirements.
6. Seller’s manufacturing responsibility
The Seller will abide to the laws in place in the Country
of manufacture at the time of the Contract signature date
and technical rules specified in the appropriate section
of the Contract or of his offer, as applicable. Any
different technical standards to be used in the Product’s
design and/or fabrication, shall be specified as a
Contract provision and informed by written notice to
Seller prior any Contract signature.
7. Liability
This clause shall take precedence and will be overriding
over any other term of contract.
This clause sets out the respective parties general and
contractual risk.
7.1 Save only as set out in sub-clause 7.2) and 7.3)
below, neither party shall be liable to the other for any
kind of special, incidental, indirect and/or consequential
damages whatsoever, such as but not limited to loss of
use, loss of profits, loss of production and Contracts,
cost of downtimes or increased operating costs, etc.,
third party costs, indirect or consequential loss arising
under any cause of combination of causes whatsoever.
7.2 Each of the parties will be responsible for and shall
indemnify the other party against all liability, loss,
damage, cost or expense (including attorney’s fees and
expenses) arising from death or personal injury to the
extent caused by its own acts or omissions.
7.3 Each of the parties will be responsible for and shall
indemnify the other party against all liability, loss,
damage, cost or expense (including attorney’s fees and
expenses) resulting from any other loss or damage to
property to the extent caused by its own acts or
omissions and insofar as covered by the insurance
effected by it.
7.4 Save as set out above the Seller's cumulative
liability arising under any cause or combination of
causes (including any alleged breach of contract) shall
not exceed the total amount of monies received with
reference to the Contract with a cap, in any and all
cases, up to the twenty percent (20%) of the contract
price. However, Seller’s liability is only for the proven
cost to the Buyer for any default under the contract.
7.5 For the defect and/or non-performance of the
equipment supplied by Buyer based on the basic
data/basic engineering/detail engineering supplied by
Seller, the same shall be modified/rectified by Buyer
based on the mutual discussions between Buyer and
Seller. However, if such defects and/or non-performance
is due to the faulty basic data / basic engineering / detail
engineering by Seller, Seller’s liability shall be limited to
the extent of correction of basic data / basic engineering
/ detail engineering free of cost to Buyer.
8. Delivery
8.1 Time shall not be “of the essence”.
8.2 The terms of delivery, unless otherwise indicated
in the Contract or in this offer, are deemed to be Ex-
Works (EXW) according to the Incoterms actually in
force.
8.3 The Seller will supply the Product and the Services
stipulated in the Contract within the agreed schedule of
time. The Contract shall be deemed to come into force,
when all approvals from any concerned Governmental
Authorities are granted, as applicable; this is in addition
of any other specific provisions made in the Contract to
this end.
8.4 If not otherwise specified in the Contract, the Ex-
Works delivery of the Product will become effective by
means of a Seller’s written information to the Buyer that
the Product is at his disposal for collection; this
information will be a “Notice of Goods ready for
Shipment”.
8.5 A period of time of 30 days is granted to the Buyer
for Product’s collection after the a.m. notice, beyond
which period the Seller reserves the right to charge the
Buyer with the storage cost of the Product.
8.6 Delivery Dates as specified in the contract are
based on Buyer fulfillment of any progressive payments
as detailed in contract; any delay in releasing any of the
payments – not for Seller’s fault- shall extend the
contractual delivery date of equipment without any
penalty for Seller.
8.7 Seller will decline any responsibility for any
shortage of material that will be notified to Seller beyond
the contractual delivery point defined according to
INCOTERMS in force at the moment of the Contract
coming into force.
9. Payments
9.1 Payments to the Seller are governed by the
Contract provisions.
9.2 If not otherwise specified in the Contract all
invoices shall be paid in Indian Rupies at sight from the
date of invoice (“the Due Date”) without any deduction or
withholding on account of any rights of equitable set-off
which the Buyer may have.
9.3 For any delays or irregularities in the payment the
Seller shall be entitled (without prejudice to any other
rights) to suspend deliveries and charge the Buyer for all
costs and expenses occasioned thereby and/or at any
time thereafter to terminate the Contract in accordance
with clause 10 below.
Moreover, the Seller will have the right, beginning from
the maturity of the delayed payment, to claim for
interests from the Buyer for the delayed payment,
corresponding to the prevailing discount rate in India
increased by 8 points.
9.4 The Buyer shall be bound to fulfill his obligations of
entire payment even in case of claims or controversies.
In case of disputed amounts, the Buyer may, at his
option, deposit the sums object of the controversy in a
bank in the country of the Seller until the controversy
has been settled, binding the bank to transfer said sums
to the Seller should the controversy be settled in favor of
the latter. No compensation with any credit however
arisen towards the Seller can be accepted.
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10. Cancellation and Termination
10.1 The Buyer shall be entitled to cancel this Contract
at any time (“Cancellation”).
10.2 The Seller shall be entitled forthwith to terminate
this Contract in the event of non-payment (in whole or in
part) by the Due Date or if at any time before payment in
full is made (whether or not payment is yet due) a
Petition is presented or Resolution passed for the
winding up or bankruptcy of the Buyer or in the event of
the appointment of a receiver or administrator of the
Buyer’s business (“Termination”).
10.3 In the event of Cancellation or Termination the
Buyer shall be liable to the Seller for all the costs and
expenses which it incurred up until the date thereof and
the profit it reasonably expected to make on the Contract
had the same been fully performed, less such net sum (if
any) as the Seller is able to make in disposing of the
Products.
10.4 In the event of “Termination” or in the event of non-
payment (in full or in part) for the Products by the Due
Date, the Buyer hereby irrevocably licenses the Seller
(insofar as it is able) to enter upon any premises to
repossess the product.
11. Reservation of title & risk
11.1 Should the payment be made - in whole or in part -
after the delivery, the Product remains property with the
title of the Seller until the payment obligations have been
entirely fulfilled, within the limits of the law of the country
where the Product is located.
11.2 Between delivery and payment in full the risk in the
Products shall be with the Buyer, who shall keep the
same in good condition and repair, properly stored and
labelled as being the Seller’s property.
11.3 The Buyer shall have the obligation to take all
necessary steps to constitute, in the country where the
products are located, a valid property reservation in the
most extensive form permitted or to create a similar form
of guarantee in favor of the seller.
12. Force majeure
12.1 Should either Party be prevented from executing
the present Contract due to force majeure such as war,
serious fire, strike, flood, typhoon, earthquake, acts of
God, which will be officially recognized as Force
Majeure, the time for executing the present Contract
shall be extended by a period equivalent to the effect of
the occurrences, plus the time required for re-organizing
the works, as the case may be.
12.2 The prevented Party shall deliver to the other as
soon as possible by fax and then by courier/airmail
registered letter, a Certificate issued by competent
authorities stating the occurrence of Force Majeure.
12.3 In case the duration of Force Majeure exceeds 120
days, both Parties shall discuss the reasonable remedial
measures to be taken to overcome the problem.
13. Assignment of the Contract
The Buyer shall have no right to assign his position in
the Contract or in individual binding relationships
deriving from the Contract, without the written Seller's
consent thereof. The Buyer remains, however, jointly
and severally responsible with the assignee for the
assigned obligations.
14. Interpretation, modification, invalid clauses
14.1 English shall be the Contractual language, unless
otherwise stipulated in the Contract.
14.2 Any exhibit or preamble shall be considered part of
the Contract they refer to. Any reference made to Price-
lists, General Conditions or other documents either by
the Seller or by Seller’s Third Parties, shall be deemed
as made to documents in force at the moment of said
reference, unless otherwise specified. All correspondent
documents previously in force between the parties, have
to be considered superseded and invalid.
14.3 The declarations made or the behavior held by the
parties during the execution of the Contract may
contribute to the interpretation solely of the Contract they
refer to, and only in case they do not conflict with these
General Conditions or with the written agreements made
by the parties at the time of entering the Contract.
14.4 Any modification or integration jointly made by the
Buyer and the Seller to the Contract, in connection with
these General Conditions, shall be invalid unless set
forth and agreed in writing by Buyer and Seller. Any
derogation to one or more provisions of these General
Conditions shall not be interpreted extensively or for
analogy, and shall not imply the will to disregard and
invalid any part of these General Conditions.
14.5 In case any Contract provisions are found invalid
or ineffective by either party, the Contract shall be
integrated and interpreted as containing all the Clauses
that allow for reaching the essential aim pursued by the
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Contract, in compliance with the applicable law.
15. Governing Law
Contract shall be construed in accordance with the laws
of the Republic of India.
16. Arbitration
All disputes arising between the parties from or in
connection with the Contract interpretation, validity,
effectiveness or performance, and in general all and
every dispute arising, also indirectly, from the existence
of said Contract, shall be finally settled under the Rules
of Conciliation and Arbitration of the International
Chamber of Commerce - Paris by one or three
arbitrators, appointed in accordance with the said Rules.
The arbitration shall take place in New Delhi (India) and
it shall be executed in English language. The disputes
shall be settled by the arbitrator or by the three
arbitrators, in conformance to the local law.