1) Recitals:
The recitals and annexes are an integral and essential part of this agreement.
2) Conditions agreed between the Parties:
2.1 These Terms and Conditions shall, unless specifically agreed in writing between the Parties, apply to all the orders commissioned by the Buyer. Therefore, this Agreement and the related appendices shall govern the contractual relations deriving from any supply request in the future. Amendments to this Agreement shall only be valid if made in writing.
2.2 The information supplied in the catalogues, brochures and pricelists is non-binding and subject to change. For each purchase, reference should be made to the specific context of the purchase order, and confirmation.
2.3 The Buyer is a professional operator and has sole responsibility for the choice of equipment requested from Mixer.
3) Object:
Mixer shall supply its Products to the Buyer who hereby agrees to buy the same, under the terms and conditions of this Agreement, for the purposes of marketing them.
4) Orders and order confirmations:
4.1 The orders of the Buyer shall indicate the number of the order, the exact description of the goods ordered and details of the product code, quantity, unit and total price, terms of payment, destination and any other instructions for delivery. Mixer shall not be held liable for any wrong shipment due to the incomplete or inaccurate compilation of the purchase order by the Customer.
4.2 The order shall be deemed to have been accepted when the Buyer receives the Order Confirmation duly accepted by the Supplier.
4.3 If the order is preceded by an offer from the Supplier, said offer shall be valid for a maximum of 60 days unless indicated otherwise. The sale contract shall be deemed to have been made at the time the order is confirmed by the Supplier.
5) Product characteristics:
5.1 In issuing the purchase order, the Buyer confirms that it has carefully reviewed the technical, functional and cosmetic characteristics of the Products and considers them to be fit for the purpose for which they will be directly or indirectly used.
5.2 Subject to specific written approval from Mixer, which shall be considered an essential condition, the sale of a Product may be preceded by a demonstration; in such a case, only Mixer operators shall be authorised to handle the equipment during the demonstration. In such case, the Customer shall provide, at its own caring expense, the resources and products necessary for the demonstration (e.g. power, water, air, paints, coatings etc.). The Customer shall take all precautions necessary to guarantee the safety of personnel during the demonstration, and Mixer may not be held liable for any injury to persons and/or damage to property, under any circumstances.
6) Delivery and transport:
6.1 The Products may only be delivered against specific purchase orders from the Customer.
6.2 The goods shall always be transported at the risk and peril of the Buyer, even if they are delivered free to destination. Unless indicated otherwise, the delivery shall be Ex Works from the site in Torri di Quartesolo (province of Vicenza, Italy), Via dei Carabinieri n. 44/45.
7) Terms of delivery:
7.1. The lead time for each consignment is the period indicated on the order. The Supplier shall inform the Buyer, within three working days, and in writing, of any cause of temporary or partial impediment to delivery, whether or not it is within the Supplier’s control, and shall propose a new delivery date to the Customer who may either accept or agree a new date in writing.
7.2 Unless expressly indicated as essential conditions, the terms of delivery are provisional and non- binding. Compliance with the agreed delivery date also presupposes the fulfilment by the Buyer of all its contractual obligations. Unless specific information is provided to the contrary, the time between the date of the order and the date of delivery will be ………… working days. Mixer shall fulfil the Customer’s orders according to the agreed timeframe, methods, quantities and quality. Shorter lead times or upgraded performance may be requested and agreed in each case.
7.3 Delays in delivery may not be used as a valid reasoning to cancel the order or to refuse the Products, and may not result in any compensation for damages and/or interest in the Buyer’s favour, as the delivery deadlines are, as mentioned, provisional and non-binding.
7.4 In the event of non-collection or the impossibility of delivering the Products for reasons not attributable to Mixer, if the materials are stored on the Supplier’s premises, the Buyer shall, in addition to the value of the supplies, pay a penalty for delay, in an amount equal to 0.5% of the total value of the goods not delivered for each week of storage after the first 10 days, to cover storage and administration costs. The order may be terminated due to fault of the Customer, pursuant to article 1456 civil code.
7.5 Orders, order confirmations, waybills and invoices will be exchanged as hardcopies (by fax) or by email.
8) Prices and terms of payment:
The prices of those indicated in the order confirmation and stated on each invoice. If the order confirmation provides for one or more payments prior to the delivery of the goods, non-payment of such advances on the agreed dates shall entitle Mixer to suspend the consignment and/or any other activity, without prejudice to the Supplier’s right to compensation for damages.
9) Delayed payment or non-payment:
9.1 If the Customer fails to make due payment for a consignment, the Supplier may suspend the fulfilment of any further supplies until the payments are up to date.
9.2 The non-payment of even a single invoice on its due date shall result in all the other outstanding invoices become immediately due and payable, pursuant to art. 1186 civil code.
9.3 If the Customer is involved in insolvency proceedings, has become insolvent or has, through its own fault, reduced the guarantees given, or fails to provide Mixer with the requested guarantees, the Supplier may demand payment immediately, regardless of whether the agreed payment period was in favour of the Buyer, pursuant to art.1186 civil code.
9.4 The non-payment or delay of payment for more than 8 working days, of even a single consignment, shall lead to termination of the contract pursuant to art. 1456 civil code.
9.5 All delayed payments shall be subject to default interest, charged in accordance with legislative decree 231/02, plus compensation for greater losses and any costs incurred by Mixer.
10) Complaints; Warranty:
10.1 Any complaints regarding the quantity or integrity of the packages or products must be reported directly to the carrier at the time of delivery, by marking the waybill or delivery note with the words “Accepted with reservation”. Any defects in the Products delivered must be reported to the Supplier in writing, by registered post or certified email, within eight days from the date of delivery. Any discrepancies in the quantity of goods delivered compared to the order shall not give the right to termination of the contract nor to the suspension of payments but only to the completion of the consignment with the missing goods. Any return of goods must be authorised by the Supplier.
10.2 The Buyer shall not use any defective products and shall report any complaints in writing, by registered post or certified email, within 8 days from discovery, even if the complaints have been reported to the Buyer by a third party.
10.3 The supplier’s warranty on the Products as supplied shall run for 12 months from the date of delivery for Products in normal conditions of conservation, and after defects have been reported, in accordance with the procedure indicated in paragraph 10.2 above.
10.4 The warranty shall not cover any defects or damage deriving from normal use, any accident not attributable to Mixer, any changes made by a person other than the Supplier, incorrect use, storage or treatment of the Products.
11) Reservation of title:
11.1 The goods supplied in each consignment are sold with reservation of title, and therefore until full and final settlement of the invoice, the Products sold shall be considered the property of Mixer pursuant to art. 1523 civil code, with the risks to be borne by the Customer until the items are delivered.
11.2 In the event of non-payment by the Buyer, Mixer may demand immediate return of the Products at the risk and expense of the Customer; in such a case, the sale shall be considered cancelled and any sums already collected by Mixer shall be retained by the latter as an indemnity for use of the Products. Mixer shall also have the right to take action for any costs incurred to recover possession of the goods, and for any losses resulting from damage to the same.
12) Assignment of contract:
The Buyer may not assign this Agreement or any individual supplies to any third party, without the written consent of Mixer.
13) Limitation of Supplier’s liability:
Mixer shall not be held liable and/or in default if the Products cannot be delivered or deliveries are delayed due to causes of force majeure, exceptional atmospheric events, strikes, public uprising, war, the lack of electricity and/or water services, or other technical issues beyond the Supplier’s control. Mixer may, after giving notice, cancel an individual consignment.
14) Termination:
14.1 Either Party may terminate this Agreement at any time, after giving written notice of at least three months.
14.2 Mixer may withdraw, without notice, in the case of:
- actions or proceedings are commenced for the liquidation of the Supplier
- interruption or suspension of the Supplier’s production operations
- the Supplier is made subject to insolvency proceedings
- the Supplier declared in writing that it cannot meet its obligations according to the terms of the Agreement or of the individual orders
15) Express termination:
Pursuant to art. 1456 civil code, Mixer may give written notice to terminate this Agreement in the event of:
- failure to comply with the terms of delivery ex art. 7.4
- non-payment or delayed payment ex art. 9.4
- the start of liquidation proceedings of the Customer
- the introduction of suspension of the Customer’s production operations
- the Customer is made subject to insolvency proceedings
- if the conditions in paragraph 9.3 materialise
- in any case of serious breach of contract by the Customer
16) Governing law:
The present contract is governed by the Italian law. For all matters not expressly agreed herein, the Parties shall refer to the provisions of current laws.
17) Notices:
All notices between the Parties shall be validly issued if sent to the declared addresses
18) Forum:
The Parties agree that the Court of Vicenza shall have sole jurisdiction with regard to the interpretation, application and/or execution of this Agreement and of the individual consignments.
19) Privacy:
Mixer shall process the Customer’s data electronically and/or manually, in accordance with the principles of legality and fairness and in accordance with legislative decree 196/2003. Personal data may be used directly by Mixer or through trusted service providers (banks, credit institutions, insurance companies, administration and/or IT services providers, debt recovery agencies), in their capacity as data controller or data coordinator but only to comply with the legal obligations including fiscal and accounting obligations and the contractual obligations. In consideration of the existence of electronic computer links or electronic correspondence with the above parties, the data may be transferred abroad.
Under Art. 7 of legislative decree 196/2003, the Customer may also be informed of the existence of his/her personal data and request their integration, rectification or cancellation, by contacting Mixer at the above address.