GENERAL TERMS AND CONDITIONS
Website publication and entry into force date: 09/01/2020
These general terms and conditions of sale (“Terms”) shall apply to all BtoB Orders for Products sold or intended to be sold by Rocky-Agri S.r.l. after 09/01/2020. These Terms are subject to change by Rocky-Agri S.r.l. at any time without notice. As a consequence, it is recommended a check of the applicable Terms on a regular basis. The current version of these Terms can be found at www.rocky-agri.com.
In these Terms and any related Contract:
Buyer means the party purchasing the Product from Rocky-Agri S.r.l..
Contract means a sale contract as referred to in clause 3.3.
Order means a purchase order for Products which has been accepted by Rocky-Agri S.r.l. but excluding any terms or conditions printed on or referred to in Buyer’s offer to purchase or order or other documentation, unless expressly agreed to in writing by Rocky-Agri S.r.l..
Product means the machine with electric motor purchased or to be purchased by Buyer from Rocky-Agri S.r.l. which are the subject of a Contract.
Rocky-Agri S.r.l. means ROCKY-AGRI S.R.L., a limited liability company incorporated under the laws of Italy, having its registered office at Via Palladio 6/C, 36044 Val Liona (VI), Italy.
2.1 Products are supplied by Rocky-Agri S.r.l. only under the following Terms. The Terms shall be deemed to have been accepted by Buyer also in the event that Buyer has not signed the document in which these Terms are incorporated or the document in which these Terms are incorporated by reference. No variation of such Terms shall be binding unless expressly accepted by Rocky-Agri S.r.l. in writing. No terms or conditions of Buyer, including any terms or conditions printed on or referred to in Buyer’s offer to purchase or order or other documentation, shall be binding on Rocky-Agri S.r.l. or have any legal effect unless expressly agreed to in writing by Rocky-Agri S.r.l..
2.2 Product specifications and prices may be altered by Rocky-Agri S.r.l. without prior notice. Rocky-Agri S.r.l. shall use its reasonable efforts to supply the Products in the quantities specified in the relevant Contract. Purchasing plans and forecasts not included in Orders accepted by Rocky-Agri S.r.l. and other discussions and negotiations regarding the supply of Products, do not constitute any commitment by Rocky-Agri S.r.l. to sell these, or any, volume of Products to the Buyer.
2.3. The documents accompanying the Products offer of Rocky-Agri S.r.l., such as images, drawings, catalogues, price lists, brochures or information about weights and measures, serve as indication, are not binding on Rocky-Agri S.r.l. and do not constitute an offer nor have any legal effect unless Rocky-Agri S.r.l. expressly states that they are binding. The indications contained in the Products technical documents are binding on Rocky-Agri S.r.l. only if they are subject to express warranty by Rocky-Agri S.r.l. Buyer acknowledges that the Product sold may differ in appearance and, in some cases, in size/equipment compared to that represented in the illustrative material of Rocky-Agri S.r.l. (website, advertsing in specialised magazines…).
2.4. Rocky-Agri S.r.l. reserves the right to retain all copyright and proprietary rights to the images, drawings, technical documents, software, drafts, estimates, calculations and other documentation, which cannot be disclosed by Buyer to third parties without Rocky-Agri S.r.l.’s prior written approval and must be promptly returned to Rocky-Agri S.r.l., at Rocky-Agri S.r.l.’s first request, in the event that the parties have not entered into the Contract.
3. ACCEPTANCE OF THE ORDERS
3.1 All orders shall be subject to acceptance by Rocky-Agri S.r.l..
3.2 Once accepted by Rocky-Agri S.r.l., an Order may not be cancelled by Buyer except with the express consent of Rocky-Agri S.r.l..
3.3 Upon the acceptance of each Order by Rocky-Agri S.r.l., a separate contract of sale shall arise (“Contract”). Each Contract shall comprise the accepted Order and these Terms. If there is any inconsistency between these Terms and another provision in a Contract then the provision in the Contract shall prevail only to the extent of the inconsistency.
4. PRICES. PAYMENTS
4.1 The price for the Products is specified in the Contract. Unless the Contract states otherwise, Rocky-Agri S.r.l. reserves the right to increase the price upon occurrence of variations in increase in tax, duties or costs for unforeseeable events occurring after the execution date of the Contract. Rocky-Agri S.r.l. may invoice the Buyer for the Products at any time after they are ready for collection and transport. Unless the Contract states otherwise the price is exclusive of VAT and of any other applicable form of sales, tax, duty, levy, tariff or charge applicable to the supply of the Products in addition to, and at the same time as, payment of the price, which shall be paid by Buyer. Rocky-Agri S.r.l. shall provide Buyer with a tax invoice as required by applicable law.
4.2 Time for payment shall be of the essence. Buyer shall pay the price of the Products in the invoiced currency by the date specified on the invoice except as otherwise agreed in writing.
4.3 Buyer must not withhold payment or make any deduction from the invoiced price or any other amount owing to Rocky-Agri S.r.l. without Rocky-Agri S.r.l.’s prior written consent.
4.4 Rocky-Agri S.r.l. is entitled to refuse to deliver the Products to Buyer if there are any outstanding payments owed by Buyer to Rocky-Agri S.r.l., without prejudice to any other right provided for under applicable law, including termination, even partial of the Contract and Buyer’s liability for any loss and damage suffered by Rocky-Agri S.r.l..
5.1 Delivery of the Products shall be made in compliance with the delivery terms specified in the relevant Contract or if not specified, delivery shall be made as determined by Rocky-Agri S.r.l.. Time for the delivery of the Products shall not be of the essence. Any timeframes for delivery of the Products are quoted by Rocky-Agri S.r.l. as accurately as practicable but are not guaranteed estimates.
5.2 Rocky-Agri S.r.l. shall not be liable for any loss and/or damages suffered by Buyer arising out of any delay or failure to deliver the Products (or any part of them) or failure to deliver in the requested quantities. The Order accepted by Rocky-Agri S.r.l. cannot be cancelled, in whole or in part, by Buyer, due to delays in shipment or delivery of the Products.
5.3 If Buyer delays or refuses Products’ shipment or delivery, Buyer shall bear any and all relevant expenses and be liable to Rocky-Agri S.r.l. of any damages which this latter may suffer.
5.4 The shipment and delivery of the Products remains subject to any prohibition, restriction or regulation imposed by governments, departments or agencies. Rocky-Agri S.r.l. is not responsible for any delay or non-compliance caused, in whole or in part, by prohibitions, restrictions or regulations or by other causes beyond its control.
6. RISK. NON CONFORMING PRODUCTS.
6.1 Unless otherwise specifically agreed by the parties, risks for loss and/or damage in the Products pass from Rocky-Agri S.r.l. to Buyer when the goods are ready for collection and notification of readiness has been received by Buyer. Buyer shall be deemed to have accepted the Products following their delivery provided Buyer has had a reasonable time to inspect the Products.
6.2. Rocky-Agri S.r.l. shall have no liability for any shortage or other discrepancy in any delivery of Products hereunder unless Buyer sends Rocky-Agri S.r.l. written notice, either (i) within 8 (eight) days from the time of delivery of the Products, that the easily recognizable shortage or discrepancy or defect existed when the delivery was received or (ii) within ten (10) days after the date on which hidden defects occurred o could have occurred. Upon expiry of the aforementioned terms, Buyer shall be intended to have accepted the Products and waived any claims relating to the intrinsic quality and quantity of the Products. Claims will be individually dealt and reviewed in advance by Rocky-Agri S.r.l and any replacements will be authorized in writing by Rocky-Agri S.r.l. Rocky-Agri S.r.l. shall not accept return of Products supplied against an order except by prior agreement. Claims communication does not exempt Buyer from payment of the agreed purchase price. The Product under claim can be returned only upon receipt of Rocky-Agri S.r.l.’s express written authorization. This latter reserves the right to analyze the deficiency or the discrepancy or the defect before proceeding with the replacement or the withdrawal of the Product or defective component. Rocky-Agri S.r.l.’s return authorization relating to a Product under claim is subject to the return of such Product by Buyer in its original packaging and intact in all its.
6.3 Unless otherwise specifically agreed by the parties, Buyer shall be responsible for the compliance with applicable legal and administrative laws on import, export, transport, storage, deposit and use of the Products. In the event that the Products sold are subsequently exported, it will be Buyer’s responsibility to obtain, at its own expenses, all the necessary licenses and authorizations, complying also with the export laws between Italy and the country of destination, with particular reference to the rules relating to electrical products export. Buyer undertakes to hold harmless and indemnify Rocky-Agri S.r.l. from claims for damages arising from the inadequate storage of the Products and/or from their misuse not in accordance with the instructions provided and/or with technical standards and/or experience.
7. LIMITED WARRANTY. DAMAGES AND LIMITATION OF LIABILITY
7.1 Rocky-Agri S.r.l. hereby warrants that the Products shall conform to the Products’ minimum specifications contained in the Product Maintenance Booklet, which includes maintenance standards, technical data, operating and use instructions of the Products and complies with the standards required by applicable European laws. The warranty covers only defects inherent in the Products that have occurred acting in compliance with the Products’ use instructions. Except as expressly stated in this clause and to the extent permitted by applicable laws, no warranties, express or implied or otherwise operating, relating to the Product sold pursuant to Contract are granted by Rocky-Agri S.r.l.. Rocky-Agri S.r.l. does not provide and disclaims any further warranties, whether express or implied, including, without limitation, warranties or other representations relating to merchantability, quality, degree or suitability of the Product for any specific purpose or to the correspondence of the Product to descriptions made by Rocky-Agri S.r.l..
7.2 Subject to clause 7.1, where any terms, conditions or warranties are implied by law into these Terms which the law expressly provides may not be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent, the liability of Rocky-Agri S.r.l. to Buyer under such implied terms, conditions or warranties is limited, at the option of Rocky-Agri S.r.l., to the replacement of Product, or payment of the cost of replacing the Product, net of VAT, sales taxes and all other applicable taxes.
7.3. Except as expressly provided in these Terms, to the extent permitted by law, Rocky-Agri S.r.l. will have liability to Buyer only in respect for damages caused from Rocky-Agri S.r.l.’s gross negligence or wilful misconduct. Any provision of these Terms that excludes any terms, conditions or warranties, or limits the liability of a party shall apply only to the extent permitted by law and these Terms shall be construed subject to such terms, conditions, warranties and limitations. Nothing in the Contract shall exclude or limit liability for any matter in relation to which exclusion or limitation of liability would be illegal.
7.4 Except as expressly provided in these Terms, to the extent permitted by law, Rocky-Agri S.r.l. shall have no liability to Buyer and/or third parties, however arising and under any cause of action or theory of liability, in respect of special, indirect, punitive, consequential or unforeseeable damages, loss of profit (whether direct or indirect) or loss of business opportunity, loss of revenue, depletion of goodwill howsoever caused, costs and expenses however caused.
8. TERMINATION OF THE CONTRACT AND OTHER ROCKY-AGRI S.R.L.’S RIGHTS. RETENTION OF TITLE
8.1. Rocky-Agri S.r.l. may by written notice to Buyer, at its option and without prejudice to any other right it may have, suspend or terminate a Contract or require payment before or on delivery of the Products (notwithstanding the terms of payment applicable to the Products), or cancel any undelivered or uncompleted Products under a Contract, if:
(a) Buyer becomes insolvent, has a receiver or administrator appointed over the whole or any part of its assets, enters into any compromise with its creditors, has an order made or resolution passed for it to be wound up or undergoes any similar occurrence under any applicable legislation;
(b) Buyer becomes a joint venturer or, directly or indirectly, under control by a Rocky-Agri S.r.l.’s competitor.
8.2. It is agreed that the Products delivered remain the Rocky-Agri S.r.l.’s property until Rocky-Agri S.r.l. has received payment in full. Rocky-Agri S.r.l. shall have the right to collect the delivered Products if payment in full has not been made by Buyer.
9. FORCE MAJEURE
Rocky-Agri S.r.l. shall not be in breach of contract if there is any total or practical failure of performance by it of any duties or obligations occasioned by Act of God, plague, epidemic, natural disaster, act of Government or State, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining any raw materials, energy or other supplies, explosion, fire, destruction of machines, equipment, factories and of any kind of installation, labour disputes of whatsoever nature, prolonged break-down of transport, telecommunication and any other circumstance or reason beyond its reasonable control which results in Rocky-Agri S.r.l. being unable to observe or perform on time an obligation under a Contract of which these Terms form part. Rocky-Agri S.r.l. shall in such event give written notice thereof to Buyer. If a delay by Rocky-Agri S.r.l. to perform its obligations is caused or anticipated due to Force Majeure, the performance of Rocky-Agri S.r.l.’s obligations shall be suspended, without prejudice to Rocky-Agri S.r.l.’s right to terminate the Contract by giving written notice to Buyer.
10. PROHIBITION OF ASSIGNMENT
The Contract of which these Terms form part is personal to Buyer who shall not assign the benefit thereof without Rocky-Agri S.r.l.’s written consent.
11. USE OF TRADEMARKS. CONFIDENTIALITY
11.1 All trademarks, service marks and logos displayed on the Products and any referenced document or website (the “Trademarks”) are registered and unregistered trademarks of Rocky-Agri S.r.l. or of third parties who have licensed their trademarks to Rocky-Agri S.r.l. Buyer shall not reproduce, display or otherwise use any Trademarks without Rocky-Agri S.r.l.’s prior written permission. Buyer acknowledges the intellectual and industrial property rights of Rocky-Agri S.r.l. and undertakes not to transmit Rocky-Agri S.r.l.’s drawings, documentation and software of to third parties without written consent from the latter. If the Products are resold, this provision shall also be imposed upon Buyer’s own buyer and to any subsequent buyers.
11.2 All technical, business, financial, operational or other information, material or data of any type and form, as well as the means related to Rocky-Agri S.r.l. or its products and services are the property of the latter and shall be treated confidentially by Buyer. Buyer will keep the information private and will not disclose it to third parties without Rocky-Agri S.r.l.’s prior written consent or use it for any purpose other than that mentioned in these Terms. That confidentiality undertaking shall not apply to information which at the time it was disclosed (i) was already in the possession of Buyer (ii) was in the public domain without liability on the part of Buyer (iii) was lawfully received by the Buyer from a third party entitled to disclose it (iv) must be disclosed by court order. This Section shall survive during 5 (five) years following the termination/expiration date of the Contract for whatever reason caused.
12.1 Pursuant to article 13 of the Regulation (EU) 2016/679 of the European Parliament and of the Council dated 27 April 2016 (“GDPR”), Rocky-Agri S.r.l.’s collection and use of Buyer’s personal information may for purposes including: (a) to process and administer Buyer’s dealings as a customer, including assessing Buyer’s credit worthiness; (b) to provide Buyer with the Products Buyer has requested and assisting Buyer with further relevant information including Product related information; and (c) to administer the transactions contemplated by these Terms.
12.4 The data and business information relating to the management and execution of the transactions contemplated by these Terms and the Contract of which these Terms form part, shall be processed by Rocky-Agri S.r.l.’s representatives and Buyer’s representatives with the utmost confidentiality in compliance with applicable laws.
13. APPLICABLE LAW. JURISDICTION
13.1 These Terms and the Contract of which these Terms form part shall be construed and applied in accordance with the laws of Italy, without application of conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods adopted at Vienna, Austria on 10 April 1980 does not apply to the supply of Products under these Terms.
13.2 The courts of Vicenza, Italy, shall have sole jurisdiction in any dispute relating to these Terms and the Contract of which these Terms form part.
14.1 Buyer must comply with all applicable laws, regulations, industry standards and codes of conduct in any relevant jurisdiction in relation to all matters contemplated (whether expressly or implicitly) by these Terms.
14.2. Any notice in connection with these Terms or any Contract shall be deemed to have been duly given when made in writing and delivered or sent by post or email to the party to whom such notice is intended to be given, at the address of that party in the Contract or to such other address as may from time to time be notified in writing to the other party.
14.3 If any provision of these Terms is invalid, illegal or unenforceable, these Terms take effect (where possible) as if they did not include that provision.
14.4 Any failure by Rocky-Agri S.r.l. to insist upon strict performance by Buyer of any provision in these Terms shall not be taken to be a waiver of any existing or future rights of Rocky-Agri S.r.l. in relation to the provision.
14.5 These Terms do not create a relationship of agency, partnership, joint venture or employment between the parties. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner.
14.6 In case of doubt or differences of interpretation, the Italian version of these Terms shall prevail over the English version.