Supplier, VIS HYDRAULICS Srl, hereby sells to the party or parties noted on the front of this document as Customer, the products described on the face of this offer on the terms and conditions stated herein. Acceptance of this transaction is expressly limited to acceptance of all the terms and conditions of this transaction. No additional terms contained in any document tendered by Customer and no oral terms shall become part of the agreement between the parties.
Any changes to this agreement requested by the Customer shall only be allowed if the Supplier expressly agrees to such change in writing. Customer may accept or reject proposed changes in its sole discretion.
Sales shall take place at the prices applied by the Supplier at the tie of execution of the Agreement. All prices are excluded of value added tax and other public charges. Payment shall be made against invoice. Under no circumstances, such as in the event of delay or defect, shall the Customer be entitled to withhold payment. Where, after the purchase, the customer’s actions or economic circumstances are such that it may reasonably assumed the he will fail to make the payment in full, the Supplier shall be entitled to suspend performance and withhold delivery. Where the Supplier has already shipped the products and circumstances are referred to in the preceding sentence exist with respect to the Customer, the Supplier shall be entitled to prevent the products from being delivered to the Customer.
Delivery terms shall be interpreted in accordance with INCOTERMS as worded at the time of execution of this Agreement. Where no delivery terms have been agreed upon in writing, delivery shall be EX WORKS. Where delivery is delayed due to any of the circumstances constituting FORCE MAJEURE or due to any act or omission by the Customer, the delivery period shall be extended by such a period as is reasonable in light of the circumstances. The delivery period shall also be extended where the cause of the delay arises after the
expiry of the originally agreed delivery period.
Where the Supplier fails to the deliver the Prodcuts in due time, the Customer shall be entitled, through written notice to the Supplier, to demand delivery by a final reasonable deadline. In case the Supplier fails to deliver by the deadline, the Customer shall be entitled to terminate the agreement by written notice to the Supplier.
Where the Customer terminates the Agreement in accordance with the above, he shall be entitled to compensation from the Supplier for direct additional costs incurred in acquiring an equivalent product from another source, however limited to 10% of the price of the product. In the event that the Customer does not terminate the Agreement, he shall not be entitled to any compensation as a consequence of the Supplier’s delay.
Where the products deviate from the specifications agreed between the parties, it shall be deemed defective unless the deviation is immaterial to the intended use. The Supplier shall be liable for defects due to deficiencies in design, materials of manufacture.
The Supplier shall not be liable for defects resulting from erroneous, ambiguous, or incomplete information provided by the Customer. Liability should not cover defects due to circumstances arising after the risk for the product has passed to Customer such as, however no limited to, defects due to normal wear and tear or deterioration. The Supplier’s liability shall related solely to the defects which become apparent during a period of 2 years from the day the Products have shipped from the Supplier’s premises.
The Supplier undertakes, during the warranty period, either to deliver new products free of charge as a replacement for defective products, or to rectify defects, depending on which is deemed most appropriate by the Supplier. The Supplier’s obligations do not include the obligation to bear the cost of replacement agents or replacement liquids e.g. cooling agents. Rectification may take place either at the supplier or at the Customer, depending on which is deemed most appropriate by the Supplier. Replacement products or replacement parts provided by the Supplier to the Customer shall be subject to the warranty period set above.
Through delivery to the Customer of the repaired or replaced part or product in question, the Supplier shall be deemed to have performed its obligations in accordance with this section. Where any installation or any dismantling results in interference other than with the product, the Customer shall be liable for the work and costs occasioned thereby.
The Customer shall investigate the products immediately upon delivery in accordance with generally accepted business practice.
The Customer shall not be entitled to invoke defects where the Customer fails to provide the Supplier with written notice of a defect within 15 days of the date in which the defect was or should have been discovered, however no later than 2 years after the products were delivered the Supplier’s premises.
The Customer shall indemnify the Supplier to the extent the Supplier is held liable to any third party for such damage or losses in respect of which the Supplier is not liable to the Customer.
The Supplier shall not be liable for damage caused by the product to real or personal property which occurs while the product is in the customer’s possession, or to goods manufactured by the Customer or goods in which the Customer’s goods are incorporated, or for damage to real or personal property caused by such goods as a consequence of the product.
The liability for injury or damage caused by the product to persons or real or personal property belonging to the Customer or any third party shall under no circumstances exceed 250.000 €uros per occasion of loss. The Customer shall indemnify the Supplier for all liability exceeding the aforementioned amount.
Where a third party brings a claim against the Supplier or the Customer for compensation for damage or loss as referred above, the other party shall be immediately notified thereof.
In the event of delay or defect, the Customer shall be entitled to damages subject to the limitations set right below where, in light of rectification of the defect, the Supplier elects to refund the purchase price for the Products in question. Where the supplier has developed the product at its own cost in collaboration with the Customer pursuant to an agreement between the parties, under no circumstances shall the Supplier be liable for delays in delivery or defects in the product.
Under no circumstance shall the Supplier be liable for loss of production, loss of profits, or other economical consequential loss.
Unless otherwise prescribed in the Agreement, the Customer’s entitlement to damages shall at all times be limited to an amount equal to 150% of the purchase price for the product. Irrespective of whether or not the Agreement is terminated, the Supplier’s liability shall be limited in accordance with this Agreement.
The Supplier shall retain title in the product until such time as payment therefore has been made in full.
The Supplier’s products have been successfully applied in a wide variety of applications: such products are designed to generally conform to general industrial and mobile performance standards and practices.
However, the Supplier prohibits any distributor, Customer, or other third party from applying Supplier’s products in the following applications:
Questions regarding approval of applications should be directed VIS Hydraulics Engineering personnel.
Approval must be released in writing and does not represent suitability for use which is in the sole decision of the designer, based on qualification testing of the device.
The performance of each party’s obligation under this Agreement are subject to contingencies beyond the control of such party or its suppliers, including, but not limited to, Force Majeure, strikes, labor disputes, floods, fire, civil commotions, embargos, quotas, shortage of labor, delays in transportation, or government actions, including but not limited to, price controls, currency controls, or detention of goods by authorities, and the parties accordingly have to be relieved of any obligations to each other for damages which may result from such contingencies. Provided, however, that the parties shall perform their obligations to their maximum extent as soon as possible.
A party may not disclose documents to a third party without the other party’s consent, nor in any other manner disclose information of a confidential nature regarding the Agreement or regarding the other party, other than to the extent required for the performance of the Agreement. A party shall ensure that confidentiality is observed by means of confidentiality undertakings with personnel or in any other appropriate manner. The confidentiality obligation shall not apply to information that a party can demonstrate has duly come to the attention of such party other than as a consequence of the Agreement or information, which is in the public domain. The duty of confidentiality shall survive the termination of this Agreement.
This Agreement shall be governed by Italian law with the exception of its choice of law provisions. The language to be used in arbitral proceedings shall be that chosen by the Supplier.