GENERAL TERMS AND CONDITIONS OF SALE
1.1 The terms defined in this clause will have the following meaning in the Contract:
"Catalog" means the document that lists the products sold by Hammer and describes their technical characteristics;
“GTCs” means these general terms and conditions of sale governing the purchase and sale relationship of the Products between Hammer and the Buyer;
"Buyer" means the person identified in the Order Confirmation as the purchaser of the Products
“Order Confirmation” means the purchase confirmation form which contains the Buyer's data, as well as, inter alia, the type, quantity and prices of the Products sold by Hammer to the Buyer and regulated by the GTCs;
“Contract” means jointly the Order Confirmation and the GTCs;
"Force Majeure" means any event that (i) obstructs, delays or prevents a Party from performing one of its obligations, (ii) is beyond any reasonable control of such a Party, (iii) is unforeseeable, (iv) occurs without fault or negligence on the affected Party, (v) cannot be prevented by the affected Party, although acting with reasonable care and due diligence;
“Hammer” means Hammer Srl, with its registered office in Montegrosso d'Asti (AT), Via della Guardia n. 19, VAT number n. 00094860053, registered in the Asti Register of Companies, REA n. AT-46448;
"Hammer Price List" means the document that lists the prices applied by Hammer for the sale of the Products;
"Party" means Hammer or the Buyer, depending on the context, and "Parties" means Hammer and the Buyer jointly;
"Price" means the price for the sale of the Products indicated in the Order Confirmation;
"Hammer Products" means the goods referred to in the Catalog to be sold according Order Confirmation, as described therein.
2. Effectiveness of the GTCs
2.1 The GTCs are binding for the Parties and supersede and replace and all prior understanding and agreements, in whatever form regarding the subject matter, as well as any other form pre-arranged by the Buyer.
2.2 The GTCs apply to all Order Confirmations intervened between Hammer and the Buyer during the validity period of the Hammer Price List.
2.3 In the event that the GTCs are in conflict with the provisions contained in the Order Confirmation, the latter will prevail over the GTCs.
3. Hammer Catalog and Price List
3.1 The Buyer expressly declares to have read the Catalog and the Hammer Price List, and to accept the contents of these documents.
3.2 The Buyer acknowledges that the Hammer Price List could be composed of one or more documents depending on the type of Products.
3.3 Hammer reserves the right to change at any time and without notice both the Catalog and the characteristics of the individual goods described therein - in order to adapt them to regulatory, technical or commercial requirements - and the Hammer Price List.
4.1 Hammer undertakes to sell the Products to the Buyer, and The Buyer undertakes to purchase, according to all terms and conditions set forth in the Order Confirmation and in the GTCs.
5. Packaging, Transport, and Delivery
5.1 Hammer undertakes to pack the Products with material suitable for transport.
5.2 The Parties agree that the delivery of the Product takes place EXW headquarters of Hammer (Incoterms 2010).
5.3 Hammer reserves the right to deliver the Products by partial deliveries.
6.1 The Buyer undertakes to pay Hammer the Price
according to the methods specified in the Order Confirmation.
7.1 Hammer warrants that the Products are:
(a) fit for the purpose for which they are intended;
(b) manufactured accurately, diligently and according to the highest industry standards;
(c) compliant with all the requirements prescribed by applicable law.
7.2 The warranty period for avoidance and defects of the Products is twelve (12) months from the date of delivery of the Products.
7.3 The Buyer is required to report to Hammer the defects of the Products within 8 calendar days from the discovery, on pain of loss of such a right.
7.4 Defective parts must be returned to Hammer, together with proof of purchase (invoice and sales note). Hammer, following the report received, reserves the right to make its own assessment based on the samples provided and, where necessary, an inspection.
7.5 No agent, distributor or other intermediary of Hammer is authorized to offer any warranty other than those contained in the GTCs.
8. Limitations of Liability
8.1 The Buyer acknowledges that Hammer is in no case liable for defects or damage caused by (i) negligent use of the Products, (ii) installation of Products by personnel not active in the window industry, (iii) failure to maintain the Products, (iv) repairs, replacement of individual components or maintenance carried out by persons not authorized by Hammer, (v) use or maintenance of the Products that does not comply with the indications in the technical documentation and (vi) use of spare parts or consumables not supplied by Hammer.
8.2 The Buyer expressly acknowledges that Hammer is in no case liable for damages, compensation or indemnity in the following cases:
(a) losses regarding production or profits, as well as indirect costs or damages caused by defects or product malfunction;
(b) use of the Product for purposes other than those for which the Product is intended
8.3 With regard to surface finishes only, the warranty is not applicable in the event of unexpected defects, in particular in the case of finishes or surfaces that have changed their original condition as result of: (i) use of brushes and / or abrasive or aggressive products for cleaning, (ii) damage caused by scratches or abrasions, (iii) alterations, improper installations, vandalism and in any case incorrect use, (iv) fire damage or other accidental events, (v) non-maintenance, against Hammer’s indications, (vi) application in saline environments, (vii) exposure to solvents, chemicals or to chemically aggressive environments.
8.4 Within the maximum limits established by law, Hammer's liability is in any case limited to the Price, for each Order Confirmation.
9. Retention of Title
9.1 Pursuant to Article 1523 of the Italian Civil Code:
(a) the sale of Hammer Products is understood to be carried out with Hammer Products under the ownership of Hammer until full payment of the Price;
(b) the risks on the Hammer Products and the responsibility for loss, damage or other losses of Hammer Products pass to the Buyer from the moment of delivery of the Hammer Products.
9.2 Until the transfer of ownership of the Hammer Products is completed, the Buyer is not allowed to sell or otherwise dispose of the Hammer Products without Hammer's consent.
9.3 The Buyer undertakes to keep the Hammer Products in perfect condition. Ordinary and extraordinary maintenance of Hammer Products is the Buyer's responsibility.
9.4 Hammer has the right, at any time and at its own
expense, to inspect the Hammer Products to verify their status. Inspections have not to adversely affect the Buyer's right to normal use of Hammer Products.
9.5 In the event of termination of the Contract due to default by the Buyer, Hammer may withhold, by way of indemnity, the payment installments already received, without prejudice for compensation for damages.
10.1 In the event of default by one of the Parties with respect to the obligations deriving from the Contract, the other Party may terminate the Contract pursuant to Article 1454 of the Italian Civil Code, provided that the defaulting Party has not remedied it within fifteen (15) calendar days of receipt of the letter of formal notice specifying the nature of the breach of Contract.
11. Transfer of the Contract
11.1 The Buyer is not allowed to transfer or assign, in whole or in part, any of the rights and / or obligations provided for in the Contract without the prior written consent of Hammer.
11.2 The Buyer hereby gives his consent for Hammer to transfer, in whole or in part, the Contract or the rights and / or obligations provided for in the Contract. To this end, the Buyer, as soon as requested by Hammer, has to promptly carry out all those obligations that may be necessary for the purpose of the transfer of the Contract.
11.3 Hammer may disclose all the information in its possession relating to the Contract, including those relating to its negotiation, as well as those relating to the Buyer which are necessary for the purpose of the transfer of the Contract.
12. Force Majeure
12.1 In the event of a Force Majeure event, the Party whose performance of its obligations is prevented has to notify the other Party within five (5) calendar days providing all relevant details and has to do everything possible to immediately remedy the situation.
12.2 No Party will be liable for any non-fulfillment of the obligations provided for by the Contract to the extent that the fulfillment has been hindered or delayed or prevented by a Force Majeure event communicated in accordance with this Clause. The deadline to perform will be postponed accordingly.
13. Final Provisions
13.1 The Contract constitutes the entire manifestation of all the understandings and agreements between the Parties in relation to its object and constitutes the only source of rights and obligations between them, superseding and replacing any previous understanding and agreement in verbal and written, or otherwise reached through facta concludentia.
13.2 Each Party acknowledges that it has not relied on any pre-contractual declaration when agreeing to sign the Contract.
13.3 Any modification or integration to the Contract will not be valid, effective and binding unless it is made in writing and signed by both Parties, in particular by the Party against which such a modification or integration is invoked.
13.4 The possible tolerance of one of the Parties to the conduct of the other Party, which result in a violation of the provisions contained in the Contract, does not constitute a waiver of the rights deriving from the violated provisions, nor the right to demand the exact fulfillment of all the terms and all the conditions provided therein.
13.5 The rights and remedies included herein are not exclusive in nature, but are in addition to the other rights and remedies available under applicable law.
13.6 The headings of the individual Clauses have been set aside for the sole purpose of facilitating the reading of the Contract and, therefore, they should not be taken into account for the interpretation of the Contract.
13.7 If any provision of the Contract is found by any court or other competent authority to be invalid or unenforceable, that provision will be deemed to be deleted from the Contract and the remaining provisions of the Contract will remain in full force and effect. The Parties will therefore negotiate in good faith in order to agree on the terms of a mutually satisfactory provision replacing the provision deemed void and unenforceable. In the event that no agreement is reached on a new provision, the Contract will remain valid and enforceable unless the invalid provision is of material importance to at least one of the Parties and it can reasonably be assumed that the Parties would not have signed the Contract without such an invalid provision.
14. Applicable Law and Jurisdiction
14.1 The Parties expressly agree that the Contract is governed solely by Italian law without regard to the conflict of laws rules of such a legal system. In addition, the Parties exclude the applicability of the Convention on Contracts for the International Sale of Goods 1980 and its amendments.
14.2 The Parties expressly agree that any dispute arising out of or relating to the validity, execution or termination of the Contract will be subject to Italian jurisdiction and, in particular, to the exclusive jurisdiction of the Court of Asti.