Terms and Conditions
Art. 1. Scope of Application
1.1 The legal relationships between FORKOMMERCE SRL (hereinafter referred to as the “Seller”) and the Buyer are governed exclusively by the General Terms and Conditions of Sale, the Special Terms and Conditions of Sale and the Ancillary Conditions applicable to each individual sale.
1.2 The Special Terms and Conditions of Sale consist of the Product Return Guidelines and the conditions applicable to the special services and activities that the Seller may offer, such as education and training services, repair services, etc., and to the Seller’s shipping methods, etc. The Ancillary Conditions relating to individual sales consist of the offer and/or order confirmation and/or shipping information and/or any other written contractual agreement entered into between the Seller and the Buyer.
1.3 The General Terms and Conditions of Sale, the Special Terms and Conditions of Sale and the Ancillary Conditions shall be deemed binding following the Seller’s confirmation of the Buyer’s order and are hereinafter collectively referred to as the “Contract”.
1.4 In the event of any conflict between these General Terms and Conditions of Sale and the Special Terms and Conditions of Sale, the Special Terms and Conditions of Sale shall prevail. In the event of any conflict between the provisions of the Special Terms and Conditions of Sale and the Ancillary Conditions, the Ancillary Conditions shall prevail.
1.5 Any failure or delay, even partial, by the Seller in exercising a right provided for by any clause of the Contract shall not be interpreted as a waiver, whether implied or otherwise, present or future, of the rights arising from this Contract.
1.6 The Seller communicates its General and Special Terms and Conditions of Sale to the Buyer by linking to the dedicated page of its website containing its Terms and Conditions of Sale and/or through its e-commerce system. The Ancillary Conditions applied by the Seller are communicated to the Buyer through its e-commerce system, by email, fax or any other means of written communication.
1.7 The Buyer may not in any way (e.g. by mere conduct), unilaterally or tacitly, act in a manner that differs from the provisions of the Contract. The Contract expressly excludes the application of the general or special terms and conditions applied by the Buyer, whatever they may be. The Buyer therefore acknowledges that its own general and special terms and conditions do not apply to the Contract.
1.8 The Seller reserves the right to amend the provisions of the Contract at any time by giving notice on the relevant page of its website. Such amendment shall be deemed effective and binding upon the Buyer as from the Buyer’s acceptance of the Seller’s order confirmation issued at least fifteen (15) calendar days after the date on which the amendment was made.
1.9 The Contract replaces any agreement, arrangement, proposal or commitment, whether oral or written, relating to the subject matter of the Contract, entered into prior to this Contract.
Art. 2. Quotations and Orders
2.1 Quotations prepared by the Seller are free of charge and indivisible. The prices indicated in such quotations are valid for thirty (30) calendar days, subject to availability. The offer. It is understood that under no circumstances shall the aforementioned quotations be understood as contractual proposals pursuant to Art. 1326 of the Italian Civil Code and, therefore, they do not oblige the Seller to enter into any sales contract. Only the Seller’s written confirmation of the Buyer’s purchase order is capable of creating a contractual relationship pursuant to Art. 1326 of the Italian Civil Code.
2.2 The Buyer submits its orders using the Seller’s e-commerce system, or by email, and uses one of these tools for all subsequent communications concerning the relevant order, unless otherwise specified in the Contract.
2.3 The Seller assumes that the information, drawings and other data communicated by the Buyer are correct and that the Seller is authorised to use them in order to prepare its offer. If the Buyer communicates directly to the Seller the references of the products it wishes to order, the Seller shall assume that such references actually correspond to the requested Product.
2.4 Although the illustrations, dimensional data, capacities, weights and other indications and specifications relating to machinery, spare parts, price lists and promotional offers included in the Seller’s catalogue or shown on the Seller’s website, as well as demonstration models, have been prepared with the greatest possible care, they shall in any case be considered merely as examples and shall have exclusively informative value, without any binding effect or obligation on the Seller.
Art. 3. Subject Matter
3.1 The subject matter of each sale is expressly described in the Contract and refers to the spare part(s), equipment, tool(s), machine(s) and/or service(s) described therein. The subject matter shall hereinafter be referred to as the “Products”.
3.2 The Buyer is entirely responsible for the choice of Products. The Products may be either standard items, i.e. items not specifically designed for the Buyer’s particular requirements, or items adapted by the Seller at the Buyer’s request in order to meet certain characteristics as specified by the Buyer. No liability shall arise for the Seller if it is evident that the Products do not correspond to the Buyer’s specific requirements, provided that they actually meet the characteristics specified by the Buyer.
Art. 4. Price
4.1 The price of the products (hereinafter the “Purchase Price”) is defined in the Contract. The stated Purchase Price shall be understood as excluding value added tax (VAT), import and export duties and other taxes and charges. The Purchase Price does not include either the costs relating to the collection and delivery of the Products or any assembly, installation, start-up or commissioning costs (hereinafter the “Costs”). The Costs shall be borne by the Buyer and shall be invoiced separately, in addition to VAT, taxes and charges.
Art. 5. Payment Terms and Conditions
5.1 Unless otherwise agreed in writing in the Contract, the Buyer is required to pay the Purchase Price and the Costs within thirty (30) days from the end of the month of the invoice date issued by the Seller, by bank transfer to the current bank account indicated on the invoice, stating in the payment description the details mentioned on the invoice itself. The Seller shall also be entitled to request payment of a deposit or even full payment before proceeding with delivery of the Products. Sending a complaint to the Seller pursuant to Art. 9.2 or 9.3 shall not exempt the Buyer from the obligation to pay within the prescribed term. Upon written request by the Buyer, sent no later than thirty (30) days from the invoice date, the Seller shall send the Buyer a copy of the waybill if delivery of the Products to the Buyer’s premises is provided for. The Buyer expressly acknowledges that, if it has not requested a waybill within the prescribed term (thirty (30) days from the invoice date), the Seller shall not be required to provide the waybill and the Products shall be deemed to have been effectively delivered.
5.2 The Purchase Price and the Costs shall be deemed paid when the relevant amounts have actually been collected by the Seller.
5.3 If the Seller has agreed in writing to be paid by cheque or bill of exchange, payment made using these instruments shall be considered fully completed only when the Seller has collected the amount of the bill of exchange or cheque without reservation.
5.4 The Buyer shall not be entitled to suspend and/or defer payment of the Purchase Price, nor to unilaterally offset its debts to the Seller, even if the purchase is the subject of disputes for any reason, including in court proceedings.
5.5 In the event of total or partial non-payment of the amount due by the deadline referred to in Art. 5.1, the Buyer shall be required to pay, without any prior notice being necessary, default interest pursuant to Legislative Decree 231/2002, as amended and supplemented, on the total outstanding amount from the day following the due date of the amount until full payment of the sums due. In addition, the defaulting Buyer shall be required to pay immediately, without prior notice, a penalty by way of damages equal to 15% of the remaining balance with a minimum of 125 euros, in accordance with Article 1382 of the Italian Civil Code, even if an extension of the payment terms is granted, without prejudice to the Seller’s right to claim greater damages.
5.6 If the Seller becomes aware of circumstances that may substantially compromise the Buyer’s financial and asset position, or if the Buyer does not promptly accept one of its bills of exchange, all amounts due but not yet payable, including those owed by the Buyer to other companies affiliated with the Seller, shall become immediately payable without any prior notice being required. Pursuant to Art. 1461 of the Italian Civil Code, if the Buyer’s financial and asset position has become such as to jeopardise the fulfilment of the counter-performance, the Seller shall be entitled, at its discretion, to suspend or terminate the Contract with immediate effect and without any obligation to give prior notice. In such case, the Buyer shall be required to compensate the damage suffered, given the Seller’s right to obtain such compensation.
5.7 If, when sending the purchase order, the Buyer requests that the invoice be issued to a third party, the Buyer shall nevertheless remain primarily and indivisibly bound to fulfil all its obligations towards the Seller.
Art. 6. Transfer of Ownership and Risk
6.1 The risks relating to the Products shall transfer to the Buyer from the time of their delivery.
6.2 The Products shall remain the property of the Seller until the later of the following conditions occurs: full payment of the Purchase Price and the Costs, or delivery of the Products. It follows that transfer of ownership of the Products is deferred until the later of full payment of the Purchase Price and the Costs and delivery of the Products.
6.3 Until ownership of the Products has been fully transferred, the Buyer undertakes to:
6.3.1 keep the Products in their original condition and not render them immovable by destination, nor mix them with other goods;
6.3.2 keep the Products in good condition and adopt all appropriate measures to protect the Products from any deterioration, even partial, and in particular, by way of example and without limitation, from damage caused by fire, water, explosions, theft, etc. The Buyer shall take out, for the benefit of the Seller, insurance to protect the Products against all potential risks, covering their full value, until full payment of the Purchase Price and the Costs.
6.4 In the ordinary course of its business activity, the Buyer is entitled to resell the Products of which it has not yet acquired ownership. In such case, the Buyer automatically assigns to the Seller all rights and claims against its customers arising from the resale of the Products of which the Seller remains the owner, to the extent corresponding to the Purchase Price of the Products and until ownership of the same has been transferred to the Buyer. The Buyer is authorised to collect the receivables resulting from the resale of the Products. At the Seller’s request, the Buyer is required to notify its customers of the assignment of the receivable to the Seller and to provide all information necessary to safeguard the Seller’s rights.
6.5 The Buyer acknowledges that the Seller or one of its affiliated companies remains the exclusive owner of all intellectual property rights relating to the Products, as well as of the name and logo under which they are sold by the Seller, and undertakes to refrain from making any claims or demands in this regard.
Art. 7. Delivery
7.1 Deliveries are made EXW (Ex Works) FORKOMMERCE SRL Via Ingegnere Bertolo Bertolaso, 190, 37040 Zimella VR, unless otherwise agreed in writing between the Seller and the Buyer in the Contract. If, by way of derogation from the foregoing, it has been agreed in writing that the Products shall be delivered to the Buyer or to a place indicated by the Buyer, delivery may also be made in the Buyer’s absence. In such case, as provided for in Art. 5.1, the waybill shall constitute suitable proof of delivery.
7.2 If the packaging of the Products is damaged and/or the number of packages is lower than the expected number, the Buyer must note this on the waybill at the time of delivery of the Products, where possible. The Buyer must also inform the Seller thereof in writing, by fax, within twelve (12) hours following delivery of the Products.
7.3 Delivery dates are merely indicative for the Seller and are not essential for the benefit of the Buyer. The Buyer may not rely on a delay in delivery, or on the Seller’s material impossibility to perform the Contract, in order to claim any compensation or to refuse to receive the Products delivered to the Buyer.
7.4 If a specific delivery term has been expressly agreed, such term shall begin to run only when the Seller is in possession of all information and all documents necessary for the material execution of the delivery.
7.5 If the Seller has expressly undertaken in writing in the Contract to pay compensation in the event of late delivery of the Products, such compensation shall be due only if the Buyer notifies the Seller of the delivery delay by registered letter within five (5) calendar days from the expiry of the agreed delivery term, attaching proof of any damage suffered. However, the Seller shall not be required to pay the Buyer any compensation if the delay in delivery was due to an event of Force Majeure, or is attributable to the Buyer’s act and fault. In the latter case, the Buyer is required to compensate the Seller for the damage suffered and the costs incurred. Events of Force Majeure include, without the following list being limiting but merely exemplary: orders from public authorities, mobilisations, wars, epidemics, lockouts, strikes, demonstrations, defects, fires, floods, explosions, shortage of raw materials or labour, changes in the economic situation, acts of vandalism, exceptional weather conditions and any other circumstance, beyond the Seller’s control, capable of having negative consequences on the normal course of the Seller’s business, without the Seller being required to prove the unforeseeability of such events and circumstances. In any case, any compensation for late delivery shall be limited to 0.5% of the Purchase Price for each full week of delay starting from the 21st working day following the originally agreed delivery date, with a maximum amount equal to 5% of the Purchase Price.
7.6 The Buyer may not rely on delay in delivery as grounds for requesting termination of the Contract.
7.7 If a partial delivery has already been made and the Buyer refuses to accept or makes further deliveries impossible, the invoiced amount of the Products already delivered shall become immediately payable and the Buyer shall be required to pay compensation, the minimum amount of which is set at 35% of the Purchase Price of the part of the Contract not yet performed, without prejudice to the Seller’s right to prove greater damage suffered.
Art. 8. Right of Retention
8.1 In the event of non-payment, even partial, of the Purchase Price, the Seller shall be entitled to retain all objects and documents sent by the Buyer until full payment of the amount due, as well as interest and costs.
Art. 9. Condition of the Products and Seller’s Warranty
9.1 Used Products are received by the Buyer in the condition in which they are at the time of delivery. Receipt of the used Products by the Buyer at the time of delivery, as provided for by the Incoterms clauses referred to in Article 7.1 above, entails acceptance of the Products. Without prejudice to the case referred to in Article 1490, second paragraph, of the Italian Civil Code, used Products are not covered by any warranty.
9.2 If the Buyer believes that the new Products do not comply with the order or have apparent flaws or defects, the Buyer must send a written complaint to the Seller no later than 48 hours after delivery of the Products. Once this term has expired without the Seller having received any written complaint from the Buyer, the Products shall be deemed accepted by the Buyer for all purposes.
9.3 The Buyer must notify the Seller of any hidden defects found in the Products by registered letter sent to the Seller within eight (8) working days of their discovery or of the time when they should have been discovered, and in any case no later than three (3) months from the date of delivery of the Products.
9.4 The Seller’s liability, with regard to custom-made Products and reconditioned Products, is limited solely to hidden defects that seriously affect the essential components of the Products and require the Buyer to carry out repairs of such magnitude that it would not have entered into the Contract had it been aware of the existence of such hidden defects.
9.5 Without prejudice to the provisions of Art. 1229 of the Italian Civil Code, the Seller shall not be required to provide a warranty to the Buyer if:
9.5.1 the Buyer has carried out repairs or modifications to the Products or has even only attempted to do so; or
9.5.2 the defects result from incorrect or abnormal use of the Products, such as, for example, use of the Products for purposes other than those for which they are reasonably intended, excessive loads, improper use taking account of the operating instructions, assembly, maintenance, installation or use not compliant with the technical and safety standards in force in the place where the Products are used, as well as activities or interventions by third parties on such Products; or
9.5.3 any damage attributable to normal wear and tear, failures caused by the Buyer’s inexperience and/or negligence, overloads, unauthorised interventions, accidental events or Force Majeure; or
9.5.4 the defects were not reported to the Seller in a timely manner (i.e. within the terms referred to in Articles 9.2 and 9.3), in writing and in detail in accordance with the General Terms and Conditions of Sale, and in particular with the Product Return Guidelines.
9.6 If the Products have a lack of conformity or an apparent or hidden defect as specified above and if, following the relevant assessment carried out by the Seller’s technicians, the Products are found to actually be affected by the lack of conformity, defects or apparent flaws reported by the Buyer, it is expressly agreed that the Buyer may decide, at its choice and as alternatives to one another, whether to repair or replace the Products, obtain a reduction of the Purchase Price, or terminate the Contract, with the corresponding refund, in its favour, of the Purchase Price and return of the Products to the Seller. The Buyer shall not be entitled to any further compensation or to direct and/or consequential damages.
9.7 Ownership of the Products for which the Purchase Price has been refunded, or ownership of the Products replaced by the Seller, shall automatically transfer to the Seller. Transport, assembly and disassembly costs, as well as customs, travel and accommodation expenses of the Seller’s representatives, shall remain entirely borne by the Buyer.
9.8 The provisions of this Article 9 constitute, in relation to the Contract, the entire warranty offered by the Seller. Therefore, without prejudice to the provisions of the second paragraph of Article 1490 of the Italian Civil Code, any other warranty by the Seller is expressly excluded.
9.9 The warranty limitations provided for in this Art. 9 shall also apply in the event of interventions that may be carried out by the Seller on the Products in order to eliminate any defect and/or lack of the promised qualities of the same reported by the Buyer.
Art. 10. Complaints and Product Returns
10.1 All complaints and Product returns are governed and interpreted in accordance with the Product Return Guidelines available on the relevant page of the Seller’s website.
Art. 11. Liability
11.1 The following provisions exhaustively define the Seller’s liability (including liability resulting from acts or omissions of its employees, agents, representatives or subcontractors) towards the Buyer in the event of the Seller’s breach of the provisions of the Contract, as well as in respect of any statement, unlawful act or omission in relation to the Contract.
11.2 Except for damages arising from the Seller’s failure to comply with the obligations undertaken pursuant to and for the purposes of this Contract, the Seller’s liability is limited to what is mandatory under the law.
11.3 If the Seller is liable pursuant to Article 11.2, under no circumstances may it be held liable towards the Buyer for financial losses, loss of profits, decrease in turnover, depreciation of goodwill or other similar losses suffered by the Buyer, whether direct, indirect or consequential, nor for any claim for damages (whatever its cause) by the Buyer arising from, or originating from, the Contract.
11.4 If the Seller is found liable pursuant to Article 11.2, the maximum amount of its liability is in any case expressly limited, pursuant to Article 1382, paragraph 1, of the Italian Civil Code, to the amount corresponding to the Purchase Price.
11.5 If the Buyer is sued by third parties for damages arising from a defect in the Products delivered, in any form, by the Buyer to such third parties, the Buyer may under no circumstances bring a recourse action against the Seller.
Art. 12. Suspension of Performance of the Contract and Termination
12.1 In the event of non-payment or incomplete payment by the deadline provided for in Article 5.1 of an invoice relating to a sale, the Seller shall have the right to refuse any new sale or to suspend performance of its obligations towards the Buyer arising from any other purchase and sale relationships in place with the Buyer.
12.2 Without prejudice to the provisions of Article 12.1, the Seller shall be entitled to suspend performance of its services if, after conclusion of the Contract, the Seller becomes aware of circumstances that may substantially compromise the Buyer’s financial and asset position. If the Seller suspends performance of its services pursuant to the Contract, it shall immediately notify the Buyer of such suspension.
12.3 If it appears evident to the Seller that the Buyer may be responsible for a serious breach before the Seller performs the services incumbent upon it under the Contract, the Seller may, at its choice, declare the Contract suspended or terminated by immediately notifying the Buyer.
Art. 13. Miscellaneous
13.1 The possible nullity of one or more provisions of the Contract shall not in any way affect the validity of the other provisions.
13.2 During the course of the commercial relationships between the Seller and the Buyer, the personal data communicated by the Buyer (hereinafter the “Data”) are stored and processed by the Seller or by one of its associated companies in its customer database in compliance with the legislation in force (in particular, Legislative Decree no. 196/2003, as amended and supplemented, and related legislation). The Seller informs the Buyer that the Seller acts as data controller and that the Buyer’s personal data, where collected, shall be processed exclusively for the purposes of this Contract. Pursuant to Art. 7 of Legislative Decree no. 196/2003, the Buyer has the right to ask the Seller to update, rectify, supplement, erase and transform the Data into anonymous form. If the Buyer wishes to consult and rectify the Data, the Buyer must make a request by registered letter addressed to the commercial department at the Seller’s registered office. The Seller shall not communicate the Data to any parties other than subsidiaries or affiliated companies of the Seller.
13.3 For the purposes of this Contract, working days shall mean: the days of the week from Monday to Friday inclusive, except when these days coincide with official public holidays in the Seller’s country.
13.4 The Italian version of the General and Special Terms and Conditions of Sale shall be exclusively authoritative. Any other language versions of the General and Special Terms and Conditions of Sale that may be made available by the Seller are intended for information purposes only and may not be used by the contracting parties as a basis for any rights or claims whatsoever.
Art. 14. Assignment
14.1 The Contract may be assigned, even partially, by the Seller to any person, firm or company.
14.2 The Buyer may assign the Contract or part thereof only with the Seller’s prior written consent.
Art. 15. Applicable Law
15.1 The parties agree that, for anything not expressly provided for in the General and Special Terms and Conditions of Sale and in the Ancillary Conditions, this Contract shall be governed by Italian law. The application of the 1980 Vienna Convention on the Sale of Goods is expressly excluded.
Art. 16. Jurisdiction
16.1 Any dispute arising from the interpretation or application of the Contract shall be referred to the exclusive jurisdiction of the judicial authority having territorial competence with regard to the place where the Seller has its registered office, with the express exclusion of any other competent court.
16.2 Art. 16.1 shall be deemed to apply in the interest of the Seller; therefore, the Seller may, at its sole discretion, decide to waive the exclusive jurisdiction referred to in Art. 16.1 and bring legal action against the Buyer at the Buyer’s domicile, before any court having jurisdiction.
Pursuant to Articles 1341 and 1342 of the Italian Civil Code, the Buyer expressly accepts the following provisions of the above General Terms and Conditions of Sale: 1.7, 3.2, 5.4., 5.5., 5.6., 6.4., 6.5., 7.2., 7.3., 7.5., 7.6., 7.7., 9., 11, 12., 13.4., 14., 16.