DEFINITIONS
In this document:
“Buyer” means the company or sole proprietorship from which an order and/or offer approval is received;
“Contract” means the agreement between the Seller and the Buyer relating to the sale and purchase of Products;
“Products” means the goods (including any part or parts thereof) agreed in the Contract to be supplied by the Seller to the Buyer, including (where applicable) services;
“Parties” means the Buyer and the Seller.
1. ORDERS AND ORDER CONFIRMATIONS
1.1 Unless otherwise agreed in a written and signed agreement by G.n.a. Srl (hereinafter also the “Seller”), these terms and conditions shall apply to all purchase orders for materials, machinery, or services of any kind (hereinafter: “Goods”).
These Conditions of Sale shall be deemed incorporated into all contracts between the Seller and the Buyer for the supply of Products, excluding any other terms referenced or relied upon by the Buyer.
Notwithstanding any contrary provisions in the Buyer’s purchase terms and conditions, the Buyer agrees that its acceptance of the Seller’s purchase order shall constitute:
(1) an express waiver by the Buyer of its own purchase terms and conditions, and
(2) an express acceptance by the Buyer of the terms and conditions set forth herein.
1.2 Unless otherwise agreed between the parties, an order shall be considered final and binding upon receipt by the Buyer, within 30 (thirty) days from the order date, of the written confirmation of the order by the Seller, via email. Failure to confirm the order within the above term will entitle the Buyer to cancel the order. Unless otherwise agreed in writing, any condition contained in the Buyer's response following order confirmation that modifies, contradicts, or opposes any of these terms and conditions shall be deemed invalid and inapplicable.
2. PRICE, BILLING AND PAYMENT
2.1 The applicable price is the one indicated in the Seller's purchase order confirmation.
2.2 Unless otherwise agreed in writing by the Seller, all prices provided shall be net of any additional costs, such as, but not limited to, VAT, transport costs, packaging costs, taxes, etc.
2.3 Unless otherwise stated in writing by the Seller, the payment terms are those indicated in the Contract.
2.4 The Seller reserves the right to invoice any additional work, modifications, or additional requirements requested by the Buyer or made necessary for reasons beyond the Seller's control and not specified in the Contract, in accordance with the Seller's price list in effect at the time of performance.
2.5 All masonry, carpentry, painting work or similar, as well as large-scale use of unskilled labor, scaffolding setup, handling/lifting of the Product and its transport (except for transport provided by the Seller in accordance with the terms of the Contract), etc., shall be excluded and properly provided by the Buyer, as well as disconnection or reconnection of the existing product or any part thereof, cleaning and clearing of the areas before the start of work, or any work that may be necessary and/or subordinated to installation (e.g., supply of electricity, gas if necessary, compressed air, drains, etc.), and removal and disposal of packaging shall be the responsibility of and performed by the Buyer.
2.6 The Seller shall issue invoices to the Buyer in accordance with the billing schedule set forth in the Contract or the order confirmation.
Invoices shall contain the purchase order number or reference, quantity, and description of the Goods supplied.
2.7 Unless otherwise agreed in writing in the purchase order, the payment term shall be 30 (thirty) days from the invoice end of month date.
3. PACKAGING AND DELIVERY
3.1 Unless the Buyer requests special packaging in the purchase order, the Seller shall provide the Goods with standard packaging, taking into account the nature of the goods and in accordance with good commercial practice, (ii) acceptable by usual couriers for delivery at best rates, and (iii) adequate to ensure intact delivery to the indicated destination.
3.2 The method of delivery and the respective obligations of the parties shall be specified in the purchase order confirmation: unless otherwise specified, transportation of the Goods shall be at the Buyer’s risk and expense.
4. TIMING AND DELAYS
4.1 The timing and delivery dates are specified in the purchase order confirmation.
4.2 Any delivery date indicated by the Seller refers to the approximate date on which the Products are expected to be ready for delivery. Although the Seller will make every effort to meet the delivery dates, it shall not be held liable for any losses (whether consequential or not) resulting from delays. Consequently, delivery time shall not be considered of the essence unless expressly stated in writing by the Seller.
4.3 It is also understood that a fundamental condition for meeting the delivery date is that all commercial and technical obligations under the Contract have been duly fulfilled by the Buyer (including but not limited to: sending material samples, certificates, approvals, technical details, shipping information, payment, etc.).
4.4 Compliance with the delivery term is subject to the proper supply by the supply chain. In the event of delays, failures, or inaccurate supplies attributable to third parties or events beyond the Seller’s control, the Seller shall not be liable and shall be entitled to an automatic extension of delivery terms. The Seller shall promptly inform the Buyer and take all reasonable steps to limit delays, without any obligation to compensate or right of order cancellation.
4.5 The delivery date shall be deemed met if, by such date, the Seller has made the Products available to the Buyer at the Seller’s premises or the agreed location. In this case, the Seller shall be entitled to require payment for the Products under the agreed terms.
5. CHANGES AND SUBSTITUTIONS
5.1 The Seller shall promptly inform the Buyer of any price or timing modifications made necessary by changes requested by the Buyer and accepted by the Seller, provided such changes are agreed upon in writing by the Parties in an amendment to the purchase order or in a new purchase order signed by both Parties.
6. EXECUTION OF THE ORDER AND REFUSAL OF GOODS - TRANSFER OF RISK
6.1 Unless otherwise agreed in writing by the Seller, for Products that are to be transported, the Seller shall release itself by delivering the goods to the carrier; the goods will therefore travel at the risk and peril of the Buyer, who will also bear the related transportation costs.
6.2 If the Seller arranges for transport, the Buyer must inform the Seller of the shipping instructions by the delivery date of the Products.
6.3 If the Buyer does not accept or pick up the Products or does not provide the Seller with adequate delivery instructions (for reasons other than those beyond the reasonable control of the Buyer or attributable to the Seller), then, without prejudice to any other rights or remedies available to the Seller, the Seller may, at the Buyer's expense, store the Products and charge documented costs and risks related to storage to the Buyer (including insurance).
7. WARRANTIES
7.1 Unless otherwise agreed by the Parties in writing, the Seller will warrant for a period of 12 (twelve) months (or in the case of used or refurbished spare parts, six (6) months) from the date of the Seller's invoice, that the Products are free from material and workmanship defects, conform to the statements and data of the CE certification provided with the machine at the time of delivery (which cites the serial number of the machine), and are compliant with the following applicable standards: Machinery Directive 2006/42/EC and Electromagnetic Compatibility 2014/30/EU. The Seller warrants that the Product sold under this document is free from defects in materials and workmanship for a period of 12 months from the date of delivery. The Products will operate in accordance with the applicable specifications under this Agreement and generally accepted industry standards.
7.2 The warranty will only be valid if any non-conformity that occurs is promptly communicated to the Seller's After-Sales Service within no later than 8 (eight) days from its discovery and, in any case, within the warranty period referred to in Article 7.1 above, in writing, providing all necessary information that the Seller may require to ascertain the validity of the warranty as well as the Product in question.
7.3 If the Products are found not to conform to the warranty of Article 7.1, the Seller's sole obligation shall be limited (at its sole and exclusive discretion) to i) the replacement or repair of the defective product or part (labor costs, removal, installation, and reinstallation will not be included in the Seller's obligations under this warranty) or ii) the refund of the price of the Products (or a proportional part of the price) instead of repairing or replacing them, but the Seller will have no further liability toward the Buyer regarding the claim.
7.4 If the Seller, at its sole discretion, deems it necessary to inspect the Products at the Buyer's premises (or other locations where the Products may be located) to assess the validity of a claim under this Article 7.1, and the Seller, at its sole discretion, determines that the Products are not defective, the Buyer will immediately pay, upon invoicing, all costs and expenses incurred by the Seller in relation to such visit, including, but not limited to, travel costs and technical assistance.
7.5 The Buyer shall comply with the reasonable requests of the Seller in the investigation of a claim, including returning the Product securely packed to the Seller for examination or rectification by the Seller, at the transport cost paid by the Buyer, but credited by the Seller if the claim is accepted.
7.6 The Seller will not be responsible for: a) any visits requested after the commissioning of the machine for production checks, optional installations, personnel training; b) maintenance visits requested by the Buyer; c) materials subject to wear due to their technical-functional characteristics (including, but not limited to, components in contact with trays and films, etc.); d) costs for removal, installation, reinstallation, or access to any product or item supplied by the Buyer or third parties, if removal, installation, reinstallation, or access is necessary to repair or replace defective Products; e) for materials or labor or any other transport costs, labor costs, or other expenses related to any work performed by third parties for the repair or replacement of defective Products; f) any defect in any replacement product or service that emerges after the warranty period applicable to the original Products has expired; or g) except as provided in Article 7.3, any part or consumable item used for the repair or replacement of defective Products.
7.7 The warranty shall be void and of no effect if the defect and/or fault is due to:
a) installation or repairs carried out, after sale, by personnel not belonging to the Seller or by personnel or third parties not included in the list of the Seller's Authorized Service Centers;
b) use of non-original parts or those not supplied by the Seller;
c) alterations or modifications made to the Product without the Seller's written consent;
d) failure to comply with the usage instructions contained in the Operating and Maintenance Instructions and any other technical documentation provided with the machines;
e) improper connections made (not by the Seller) on the machine or any part thereof;
f) natural wear, misuse, negligence, tampering, lack of cleaning and maintenance, improper storage, or accidents; and
any liability for defective Products sold to the Buyer will lapse if the Buyer does not file a complaint within the deadlines indicated in these Terms and Conditions or if the Buyer has not reasonably taken the measures requested by the Seller or those generally expected from a skilled technician, including the measures to limit damage to the Products.
7.8 The Seller commits to keeping spare parts for the Product for a period of 10 (ten) years from the date of production of the Product.
It is understood that this commitment is subject to the ongoing production and availability of said parts by the third-party manufacturer. If, for reasons beyond the Seller's control, including but not limited to, the interruption of production by the third party supplier without prior adequate notice, the availability of spare parts becomes lacking, the Seller shall not be held responsible for any unavailability, nor shall it bear obligations for compensation or replacement of unavailable parts. In such cases, the Seller commits to timely notifying the Buyer of the identified unavailability and, where possible, proposing compatible alternative solutions.
7.9 All repair interventions on the machine carried out under this warranty and all maintenance interventions on the machine must be performed by the Seller or by third parties included in the list of the Seller's Authorized Service Centers.
7.10 For all Products supplied, the following is agreed:
a) any claim related to the supply of Products cannot in any case justify the suspension or delay of payment by the Buyer;
b) no Product may be returned unless the Seller has requested its return; and
c) to the maximum extent not prohibited by mandatory public order provisions, all warranties or representations not specifically included in the terms of the Contract, including those regarding merchantability or fitness for a particular purpose (whether express, implied, legal, or arising from trade practice, use in commerce, or otherwise) that exceed the obligations and time limits indicated in this warranty are hereby disclaimed by the Seller and excluded from the warranty. No express or implied warranty is provided regarding the capacity, efficiency, or performance of any Product, except as may be provided in a written agreement executed by the Seller.
8. LIABILITY
8.1 Subject to the Seller's liability under Article 7, which governs the Seller's duties and responsibilities in relation to the warranty, all remaining liabilities of the Seller and their limitations are governed as follows:
8.2 Limitation of liability for breach of contract:
The Seller’s liability, for any reason—contractual, non-contractual (including negligence or violation of legal obligations), fraudulent misrepresentation, or other cause—connected to the execution or anticipated execution of the Contract, shall in any case be limited to the total amount of the Contract price, excluding cases of fraud, fraudulent misrepresentation, or intentional wrongdoing.
8.3 Indirect, consequential, and other damages: The Seller shall not be liable for special, punitive, exemplary, incidental, indirect, or consequential damages, including (but not limited to): loss of profits, loss of use, claims from customers, loss of business, loss of revenue, or other economic losses (in any case direct or indirect losses), costs, expenses, or other claims for compensation arising from any type, whether caused by the Seller's negligence (including negligent misrepresentation), its employees, agents, or subcontractors, under any statements (unless made fraudulently) or any implied warranties, conditions, agreements, indemnities, or any other cause or combination of causes, including any applicable concurrent liability arising from a duty of care under law or otherwise. It is also agreed that in no case will the Seller be liable for damages such as loss of expected profits, additional costs for implementing alternative solutions by third parties, customer claims, costs for restoring lost data, management time costs, and any other costs.
8.4 Product liability: In cases of strict liability of the Seller, its liability—under any title, including negligence, strict liability, indemnity obligations, or any other cause, single or combined—shall be limited to the amount of the price attributable solely to the Products deemed to be the cause of the damage.
8.5 The Buyer shall be responsible and shall indemnify and hold the Seller harmless from any claim, proceeding, cost, damage, liability, and expense incurred or suffered by the Seller due to instructions, data, drawings, specifications, tools, equipment, materials, services, or other elements provided by or on behalf of the Buyer to the Seller or the failure to provide them or any inaccuracy, insufficiency, or non-compliance thereof or any violation or alleged violation of third-party rights resulting from the Seller's use of any of the aforementioned elements.
8.6 The Buyer shall indemnify the Seller from any claim by third parties related to the Products.
8.7 In the event that the Seller provides information, opinions, recommendations, or advice, the Buyer is required to verify their suitability for the particular application for which the Products are intended, and the Seller assumes no responsibility for any losses, damages, or expenses arising from the use of such information. Without limiting the generality of the above, the Seller shall not be liable for the consequences of improper use of any product or improper processing by the Buyer or the user.
9. INSTALLATION AND COMMISSIONING OF MACHINERY
9.1 Only if expressly provided for in the relevant offer and/or order confirmation, the activities of installation and commissioning of the machinery shall be governed as follows. GNA will perform, at its complete care and expense and under its exclusive responsibility, the installation of what is the object of the order. The Buyer shall inform, always prior to the commencement of installation and commissioning activities, of the name of a trusted technical contact person who will be requested to attend to all phases. The Buyer shall provide all technical specifications so that GNA can carry out the installation of the machinery at the location chosen by the Buyer, providing proper detailed instructions for connection to the electrical and pneumatic networks. The Buyer shall also check that the layout drawings of the machinery for its placement, as provided by GNA, are correct and accurate, and that any civil works necessary for the placement of the machinery correspond to the projects. It is nonetheless up to the Buyer to properly prepare the site where the installation of the machinery will take place, ensuring the safety of the locations where the installation activities will occur, and that the lifting and handling equipment, in addition to any additional equipment, as per GNA's prior request and at the Buyer's expense, comply with current safety and accident prevention regulations, being in necessary conditions of efficiency, having undergone periodic maintenance and inspection. Installation and commissioning activities may not commence in cases where the Buyer: a) has not adequately prepared the site in a timely manner and in any case no later than the deadline agreed upon by the parties for the installation and commissioning of the machinery; b) has not guaranteed GNA what is required for the proper execution of the installation and commissioning activities or what is otherwise required of it in the order confirmation; c) is not in compliance with the necessary administrative authorizations and/or permits for the installation and commissioning; d) is in default of payment obligations to be honored before the commencement of the installation and commissioning activities; e) is in default of obligations imposed on it concerning safety.
9.2 It is understood that if the installation and commissioning activities do not commence and/or are interrupted and/or postponed beyond the agreed deadlines for reasons attributable to the Buyer, all additional costs incurred by GNA for labor, travel expenses, storage of materials and equipment, and any further costs resulting from the delay will be borne by the Buyer. While remaining fully responsible for the execution of installation and commissioning activities, GNA is hereby authorized to carry them out using third-party companies.
10. TESTING
10.1 The testing will involve verifying the conformity of the supply with the order confirmation and any subsequent modifications agreed upon, and the proper functioning of the machinery. Specifically, technical operating tests will be conducted to ensure that the performance and technical characteristics declared in the description of the machinery are met. The testing will take place at the Buyer's/End User's premises, according to the methods established by GNA, unless otherwise agreed. The testing shall be considered successfully completed:
a) if the Buyer is present during the testing, in the absence of a specific written contestation in the testing report regarding any defects in conformity of the machine, during or immediately after the conclusion of the testing;
or b) if the Buyer states that they do not wish to attend the testing, or does not attend despite being invited, provided that the testing report prepared by GNA does not show defects in the conformity of the machine.
10.2 The delivery terms shall be extended by a period equal to that necessary to make modifications deemed necessary established during the testing, without any additional costs imposed on the Buyer or the right of the Buyer to claim compensation and/or damages for such extension.
10.3 The Buyer forfeits any right, warranty, action, or exception related to defects in conformity and faults of the machinery that, with due diligence, could have been detected during the testing or during the commissioning of the machinery itself, unless they have been specifically contested in writing in the testing report or in any other communication within no later than 15 (fifteen) calendar days from the testing or commissioning.
11. INTELLECTUAL AND INDUSTRIAL PROPERTY
11.1 All documents, plans, drafts, projects, drawings, descriptions, and anything else, as well as software, patents, trademarks, licenses, rights to industrial patents, models or industrial designs, copyright, or any other right of intellectual and industrial property addressed to the Buyer before, concurrently, or after the conclusion of the contract, are and remain the property of the Seller. The Buyer may not, without prior written authorization from the Seller, alter, delete, modify, copy, or in any way reproduce the content of the aforementioned acts, documents, or rights, nor communicate them to any other person.
12. CONFIDENTIAL INFORMATION AND CONFIDENTIALITY
12.1 The Buyer agrees to keep strictly confidential all material and information referred to in Article 11 as well as any other material or confidential information owned by the Seller, received for these purposes, and agrees to avoid any communication or release of such materials and information to third parties, without the prior written consent of the Seller.
12.2 Any advertising information or written and oral communication concerning the order or its details is subject to prior written consent from the Seller.
13. TRANSFER AND RESERVATION OF OWNERSHIP
13.1 The ownership of the machinery shall pass to the Buyer upon delivery. In the case of installment sales and/or deferred payments, it shall be considered made with a retention of ownership in favor of GNA until the total payment of the agreed price, plus any additional charges. GNA is authorized to complete, at the expense of the Buyer, all formalities necessary to render the retention of ownership enforceable against third parties.
13.2 From the delivery of the machinery, all risks, dangers, and consequences arising from any damages, theft, fire, fortuitous events, or force majeure shall be borne by the Buyer, who, despite their occurrence, must respect all obligations and payment methods agreed upon. It will nonetheless be the Buyer’s responsibility to inform GNA adequately about any event, whether theirs or third parties', from which loss or damage to the machinery may arise.
13.3 As long as ownership of the machinery has not been transferred to the Buyer, the Buyer may not assign and/or modify, even in part, the machinery itself, nor move it to another place of installation and use, unless receiving the express written consent of GNA.
13.4 It is also the Buyer's responsibility to ensure the proper maintenance of the machinery, assuming the costs of ordinary and extraordinary maintenance; the Buyer acknowledges GNA's right to verify the state of preservation and maintenance of the machinery until full payment is made.
13.5 Furthermore, it is understood that, in the event that the machinery is subjected to precautionary or enforcement measures initiated by the creditors of the Buyer, it is the Buyer’s obligation to have the judicial authorities proceed verified by presenting this contract and all related documentation, that ownership of the machinery belongs to GNA, and simultaneously to notify the latter so that it can adopt the most appropriate initiatives.
13.6 Failure to make payment within the agreed terms of even a single installment that exceeds one-eighth of the selling price shall give GNA the right to consider the contract terminated and to withhold, as compensation and without prejudice to the claim for greater damages, the installments already collected; GNA, at its sole discretion, if it does not wish to exercise the express termination clause, may declare the Buyer to be in default of the term, obliging the latter to pay the entire agreed price.
14. FORCE MAJEURE
14.1 None of the Parties shall be liable for delays or failures resulting from an event or circumstance that is beyond their reasonable control, including, without limitation, accidents, force majeure, acts against the State, earthquakes, fires, floods, labor disputes, riots, civil unrest, wars (declared or not), demands or acts of government or governmental authorities.
14.2 The party experiencing the delay shall notify the other party in writing of the delay and the reason justifying it as soon as possible after the party becomes aware of the cause of the delay in question. The obligations of the affected party shall be suspended for the duration of the Force Majeure Event, and the contractual terms shall be automatically extended for a corresponding period without penalties or other sanctions.
14.3 If the event persists beyond [180] consecutive days, either party may terminate the Contract without compensation, settling any performances already executed.
15. APPLICABLE LAW AND COMPETENT JURISDICTION
15.1 All disputes relating to the interpretation or execution of what has been agreed, and in any case deriving from it, will be resolved by arbitration according to the Rules of the Milan Arbitration Chamber established at the Milan, Monza and Brianza Chamber of Commerce, by one arbitrator, appointed in compliance with the Regulations in force at the same. The Arbitral Tribunal will judge according to Italian law. The seat of the arbitration will be in Milan. The language of the arbitration will be English.
16. PRIVACY
Pursuant to and for the purposes of the Code regarding the protection of personal data, Legislative Decree n. 196/2003, and subsequent amendments and the subsequent REG. EU 2016/679 (GDPR) the company will process personal data in compliance with the principles and rights set by the aforementioned Code and for purposes strictly related to the execution of this contract. With regard to the processing of data, the interested parties will have the right to exercise all the rights recognized by the aforementioned legislation
17. GENERAL RULES
17.1 Partial nullity: In the event that any contractual provision set forth in these general terms and conditions of sale are for any reason null, annulled, invalid, illegal, or unenforceable for any reason, they will be considered as not written and this will not affect the validity and applicability of any other provisions of this Agreement.
17.2 Acquiescence: The waiver by one Party to exercise its rights in the event of a breach by the other Party of the terms of these terms and conditions of sale shall not constitute a waiver of any subsequent breach. The failure of one Party to enforce a term or condition of this Agreement shall not constitute a waiver of such term or condition and shall not limit the right to enforce such term or condition at a later time.
17.3 Subcontractors: The Seller is hereby authorized by the Buyer to directly or indirectly engage subcontractors in the fulfillment of the purchase order or any part thereof