General Conditions of Sale
for machinesDEFINITIONS
For the purposes of these General Conditions of Sale (hereinafter “General Conditions”), the following terms will have the meaning indicated here-under:
- “Buyer”: any natural or juridical person, company, institution or legal entity which purchases from the Seller Machines as well as Services or any relevant Part;
- “Contract”: the supply contract concluded between MG2 and the Buyer as a result of the Order Confirmation submitted in writing from the Supplier to the Buyer;
- Factory Acceptance Test (“FAT”): Machine acceptance test to be performed according to procedures referred to in art. 3.4 at either MG2 factory or at another factory specified by the Seller;
- “In-house Testing”: any kind of testing and verification carried out by the Seller during the production process, at its own discretion, to test the Machine compliance with: (i) agreed technical specifications, (ii) applicable regulations and (iii) the best industry practice;
- “Machine”: the machinery which will be supplied to the Buyer, as a whole, including the relevant software owned by MG2, it being understood that dosing units, size parts and assembled items usually supplied by MG2 to the Buyer are also included in the definition of Machine;
- “Materials”: the testing and manufacturing materials (powders,liquids, granules, tablets, etc.) and containers (capsules, vials, sachets, cartons, bottles, boxes, etc.), in all their possible formats and combinations, which the Machine has been designed to work with under operating conditions, as specified within the Contract and/or in a following document agreed by the Parties under the following art. 3.1;
- “Offer”: the Machine offer sent by MG2 to the Buyer, which contains all the key elements of the Contract to be concluded between the Parties, including but not limited to the technical specifications of the Machine, the price, the delivery terms, the list of the Materials the Machine is designed to work with under operating conditions and, if agreed by the Parties, the performance levels expected from the Machine (including the Buyer URS, if communicated by the latter);
- “Order”: the order for the purchase of the Machine filed by the Buyer in writing to MG2, which includes the key elements of the Contract to be concluded between the Parties, including but not limited to the technical specifications of the Machine, the price, the delivery terms, the list of the Materials the Machine has been designed to work with under operating conditions and, if agreed by the Parties, the performance levels expected from the Machine (including the Buyer URS, if communicated by the latter);
- “Order Confirmation”: the document which constitutes the acceptance of the Order from MG2 and that conclusively determines all the Contract key elements, including but not limited to the technical specifications of the Machine, the price, the delivery terms, the list of the Materials the Machine has been designed to work with and, if agreed by the Parties, the performance levels expected from the Machine (including the Buyer URS, if communicated by the latter);
- “Parties”: the Buyer and the Supplier;
- “Preliminary Checks”: manual tests and verifications aimed at defining as precisely as possible the features of the Materials which are compatible with the Machine specifications as agreed with the Buyer;
- “Seller” or “Supplier”: MG2 S.r.l. (Tax Code and Vat Number: 01819491208), with its registered offices in Via del Savena no. 18, 40065 Pianoro (BO) – Italy – hereinafter also referred to as “MG2”;
- “Services”: any kind of service (for example: packing & transport, commissioning, support to production start-up, support to validation execution, training, Machines revisions, etc.) supplied by the Seller to the Buyer;
- Site Acceptance Test (“SAT”): Machine acceptance test to be performed according to procedures referred to in art. 3.6, after the Machine installation and start-up at the Buyer factory;
1. SCOPE OF THE REGULATION
1.1 These General Conditions regulate all the supplies of Machines as well as the relevant Services provided by MG2 to the Buyer in connection with or during the supply of Machines.
1.2 In case any conflict may arise between the terms and conditions set forth in these General Conditions and the terms and conditions resulting from the Order Confirmation sent by MG2 to the
1.2 In case any conflict may arise between the terms and conditions set forth in these General Conditions and the terms and conditions resulting from the Order Confirmation sent by MG2 to the
Buyer, the latter shall prevail.
1.3 Under no circumstances the Supplier shall be bound by general purchase conditions of the Buyer nor by any term and condition contained in or referred to in the Order or in any other document coming from the Buyer; such terms and conditions, even if sent by the Buyer in reply to a document of the Seller, shall be deemed to be
fully and specifically rejected.
1.4 The version of the General Conditions applicable to the Contract shall be the one which is submitted by the Seller to the Buyer or, if not available, the version published on the Seller web site at the time of conclusion of the contract.
1.4 The version of the General Conditions applicable to the Contract shall be the one which is submitted by the Seller to the Buyer or, if not available, the version published on the Seller web site at the time of conclusion of the contract.
2. CONTRACT CONCLUSION AND SCOPE OF DELIVERY
2.1 Conclusion of the Contract: the Contract enters into force and can be considered as concluded when the Buyer receives the Order Confirmation sent by MG2, without which any previous document shall not be binding for the Seller. Should several Order Confirmations be sent by MG2 one after the other, the latest shall prevail.
2.2 Changes requested by the Buyer: After the conclusion of the Contract, the Buyer may request any changes to the technical specifications and/or customising activities on the Machine only in writing. MG2, upon its undisputable evaluation of the technical and economic feasibility of the received request, shall submit to the Buyer a specific quote for the requested changes, by indicating the new delivery terms and the new Machine price; the requested changes shall be binding for MG2 only after having received the written acceptance of said quotation from the Buyer.
2.3 Changes due to regulatory compliance: throughout the execution of the Contract, whenever a regulatory amendment occurs which must be applied imperatively to the Machine, the Party
2.2 Changes requested by the Buyer: After the conclusion of the Contract, the Buyer may request any changes to the technical specifications and/or customising activities on the Machine only in writing. MG2, upon its undisputable evaluation of the technical and economic feasibility of the received request, shall submit to the Buyer a specific quote for the requested changes, by indicating the new delivery terms and the new Machine price; the requested changes shall be binding for MG2 only after having received the written acceptance of said quotation from the Buyer.
2.3 Changes due to regulatory compliance: throughout the execution of the Contract, whenever a regulatory amendment occurs which must be applied imperatively to the Machine, the Party
in whose legal system those changes intervene shall have the right to ask for the corresponding changes of the Machine, which the Seller will have to implement, without prejudice to the Seller right to the adjustment of price and production time.
2.4 Software: the Machine will be provided with the relevant application software, which is installed by MG2 and made available to the Buyer on the basis of a free and non-exclusive license, and shall be deemed to be incorporated in the Machine. The software shall remain in the exclusive ownership of the Seller and shall be used by the Buyer only for the Machine functioning. It is excluded that MG2 may concede any kind of transcription of the software to the Buyer, unless this transcription is required by any mandatory legal obligation in force in the country of destination and in any case, under this circumstance, the delivery of this transcription by MG2 will be subject to specific agreements between the Parties. The software, any transcription thereof, and any information regarding its content and functioning, are strictly confidential information, subject to the Buyer confidentiality obligation and
2.4 Software: the Machine will be provided with the relevant application software, which is installed by MG2 and made available to the Buyer on the basis of a free and non-exclusive license, and shall be deemed to be incorporated in the Machine. The software shall remain in the exclusive ownership of the Seller and shall be used by the Buyer only for the Machine functioning. It is excluded that MG2 may concede any kind of transcription of the software to the Buyer, unless this transcription is required by any mandatory legal obligation in force in the country of destination and in any case, under this circumstance, the delivery of this transcription by MG2 will be subject to specific agreements between the Parties. The software, any transcription thereof, and any information regarding its content and functioning, are strictly confidential information, subject to the Buyer confidentiality obligation and
protected as know-how owned by MG2. The Buyer is not allowed to make copies of the software and/or its transcription, as well as the Buyer is not allowed to use the software for any other machine and/or disclose it to third parties without a specific legal obligation and/or under order of Public Authorities; it being understood that, under any circumstances, a previous written authorization from MG2 is needed. Any modification to the software that the Buyer should consider necessary or useful shall be requested only to MG2, which remains the only entity in possession of the software source code and the only subject allowed to operate on an editable version of the software and to change it; any non-allowed use or modification of the software, as well as any decompiling activity, disassembly or reverse-engineering will imply the loss of the Buyer right to any after-sale support and to any contractual and legal warranty. As a consequence of any breach of this clause, the Buyer shall be obliged to pay to the Seller a penalty of € 50.000,00 for each violation, without prejudice to the compensation of further damages.
3. TESTS
3.1 Preliminary Checks: After the conclusion of the Contract, the Supplier may carry out several manual tests and checks aimed at defining, as precisely as possible, the features of the Materials which are compatible with the Machine specifications, as agreed with the Buyer, after the Buyer has provided the same Materials in the quantities requested by the Supplier pursuant to the following art. 3.2. After these checks, the Parties shall identify the Materials features (as precisely as it is possible on the basis of manual tests) and jointly determine, in good faith, any resulting change to the technical specifications of the Machine which were previously indicated in the Order Confirmation, it being understood that only the changes agreed in writing within a specific technical appendix to the Contract or through the sending of a new Order Confirmation by MG2 to the Buyer shall be binding between the Parties.
3.2 Buyer obligations related to the testing Materials: with reference to the performance of the Preliminary Checks, the In-house Testing, the FAT, the SAT and any other test carried out by the Seller on the Machine, for which MG2 may ask the Buyer to deliver testing Materials, the following conditions shall apply: (i) for each Material, the Buyer shall provide all the information specified in the document “Instructions for testing materials”, forwarded by MG2 to the Buyer, by lack of which the same Material may be rejected from MG2, at the Buyer expenses; (ii) the Buyer is exclusively responsible for the exact match of the Materials provided to MG2 with the Materials identified by the Parties within the Order Confirmation as well as within subsequent written agreements, in respect of all the tests conducted during the production as well as at the end of it under this art. 3; the consequences deriving from any non-compliance of the Material, especially the achievement of results that differ from the performance levels expected from the Machine, if agreed by the Parties, as well as of unsatisfying results with regard to the dosing precision achieved with the different dosing units, will be fully at Buyer expenses; therefore, in case of ascertained non-conformity of the Materials, should the FAT or SAT show results which differ from the ones expected, such as to determine a (even partial) negative result of the test, MG2 shall have the right to adopt the necessary adjustments and changes to the Machine considering the Materials actually used by the Buyer, as well as to repeat the testing, all the foregoing at the Buyer expenses and without charging MG2 in any way for the subsequent delivery delay; (iii) unless otherwise agreed by the Parties in writing, in order to carry out machine tests during the production as well as FAT tests, the Buyer shall provide MG2 with a suitable quantity of Material/s to allow at least 3 hours of production, per each type of Material and size, as it is specified either within the Order Confirmation or in the subsequent changes agreed by the Parties according to articles 2.2 and 2.3, as well as after completion of the Preliminary Checks under art. 3.1; (iv) the testing Materials shall be delivered to MG2 premises, at no charge for MG2, within the deadline indicated by MG2 in the Order Confirmation or in a specific written request, without prejudice to the fact that any delay attributable to the Buyer shall imply the postponement, at least for a corresponding time-period, of the deadlines established by the Parties for the Machine delivery; (v) whenever the Buyer fails, fully or partially, to provide the Materials necessary to carry out the testing, MG2 shall be entitled to use its own placebo or any other similar material at its choice, which is suitable with the dosing unit fitted in the Machine, at the Buyer
3.2 Buyer obligations related to the testing Materials: with reference to the performance of the Preliminary Checks, the In-house Testing, the FAT, the SAT and any other test carried out by the Seller on the Machine, for which MG2 may ask the Buyer to deliver testing Materials, the following conditions shall apply: (i) for each Material, the Buyer shall provide all the information specified in the document “Instructions for testing materials”, forwarded by MG2 to the Buyer, by lack of which the same Material may be rejected from MG2, at the Buyer expenses; (ii) the Buyer is exclusively responsible for the exact match of the Materials provided to MG2 with the Materials identified by the Parties within the Order Confirmation as well as within subsequent written agreements, in respect of all the tests conducted during the production as well as at the end of it under this art. 3; the consequences deriving from any non-compliance of the Material, especially the achievement of results that differ from the performance levels expected from the Machine, if agreed by the Parties, as well as of unsatisfying results with regard to the dosing precision achieved with the different dosing units, will be fully at Buyer expenses; therefore, in case of ascertained non-conformity of the Materials, should the FAT or SAT show results which differ from the ones expected, such as to determine a (even partial) negative result of the test, MG2 shall have the right to adopt the necessary adjustments and changes to the Machine considering the Materials actually used by the Buyer, as well as to repeat the testing, all the foregoing at the Buyer expenses and without charging MG2 in any way for the subsequent delivery delay; (iii) unless otherwise agreed by the Parties in writing, in order to carry out machine tests during the production as well as FAT tests, the Buyer shall provide MG2 with a suitable quantity of Material/s to allow at least 3 hours of production, per each type of Material and size, as it is specified either within the Order Confirmation or in the subsequent changes agreed by the Parties according to articles 2.2 and 2.3, as well as after completion of the Preliminary Checks under art. 3.1; (iv) the testing Materials shall be delivered to MG2 premises, at no charge for MG2, within the deadline indicated by MG2 in the Order Confirmation or in a specific written request, without prejudice to the fact that any delay attributable to the Buyer shall imply the postponement, at least for a corresponding time-period, of the deadlines established by the Parties for the Machine delivery; (v) whenever the Buyer fails, fully or partially, to provide the Materials necessary to carry out the testing, MG2 shall be entitled to use its own placebo or any other similar material at its choice, which is suitable with the dosing unit fitted in the Machine, at the Buyer
expenses; (vi) upon completion of every testing activity, the Manufacturing Materials provided by the Buyer, unless otherwise indicated by the same, shall be disposed according to the current Italian regulations, at the Buyer expenses, without prejudice to the possibility of MG2 to keep some samples of the same Materials to verify their matching to the Materials which will be supplied for the purposes of any following test.
3.3 In-house Test: during the production process, MG2 will perform all the tests it considers appropriate in order to assess the Machine compliance with: (i) the agreed technical specifications, (ii) the applicable regulations and (iii) the best industry practice. Especially, MG2 shall carry out, under its own discretion, the In-house Testing of the Machine before the Factory Acceptance Test as referred to in the following art. 3.4. With respect to the execution of the In-house Test, the Buyer is required to provide all the information, the technical details as well as the Manufacturing Materials which are necessary to this purpose, as stated under the foregoing art. 3.2.
3.4 Factory Acceptance Test (FAT): after the In-house Test, MG2 shall notify the Buyer its availability to perform the FAT at its own factory, or shall indicate another factory where the test shall be executed; the FAT will start from the date agreed with the Buyer and, however, within 30 days from MG2 notification of availability and will have the duration envisaged in the Contract. The FAT is aimed at verifying the Machine compliance with the Order Confirmation, as well as with the additional features subsequently agreed under articles 2.2, 2.3 and 3.1, including all the technical specifications and the performance levels expected from the Machine, if agreed, and shall be executed by MG2 staff and under the Buyer or its representative supervision. Should it not be possible to agree on the FAT starting date because of the Buyer inactivity, or in case the Buyer as well as its representative did not attend the FAT, MG2 shall not be entitled to perform the FAT in absence of the Buyer, unless otherwise provided in writing from the latter. The Buyer in any case will be obliged to pay the price in compliance with the procedures and deadlines under following art. 6.1, any exception based on the failure to perform the FAT being excluded; moreover, in every case of delayed performance of the FAT attributable to the Buyer, the latter will be obliged to pay MG2 the Machine storage charges. In order to assess the acceptance criteria of the sample-production carried out during the FAT and especially in order to establish the Acceptable Quality Limit, the Parties recall henceforth the Regulation UNI ISO 2859-1 (2007) Sampling Procedures For Inspection By Attributes Part 1: Sampling Schemes Indexed By Acceptance Quality Limit (AQL) For Lot-By-Lot Inspection and subsequent amendments.
3.5 Delivery of the Machine: the FAT positive outcome shall entitle MG2 to proceed with the delivery of the Machine to the Buyer, which shall be accomplished in compliance with the INCOTERMS® 2020 clause as agreed in writing by the Parties and as it is indicated in the Order Confirmation. In case the Buyer either refuses to receive the Machine or delays the delivery time, thus turning into the Machine to be kept at MG2 premises for a longer period than it had been foreseen, the Buyer will be obliged to pay MG2 for the storage charges. The Machine delivery shall be performed by the Supplier within the deadline stated in the Order Confirmation or subsequently agreed by the Parties in writing, it being understood (i) that this deadline shall start running only after all the technical specifications of the Machine have been established by the Parties,
even under the foregoing art. 3.1, and that (ii) in any case, the date for the performance of the FAT and the delivery date indicated in the Order Confirmation shall be binding for MG2, only if the Buyer has complied with both the payment deadlines for the agreed deposits and with the defined time-schedule of testing Materials delivery. MG2 will pack the Machine in wooden cases for the purposes of delivery in compliance with the applicable regulations and especially with the ISPM-15 (International Standards for Phytosanitary Measures), considering the specific treatments allowed in each State.
3.6 Site Acceptance Test (SAT): After the FAT and the Machine delivery, the Seller will perform the installation, the Machine start-up and, if requested, MG2 will provide the technical support to the Machine validations. The relevant costs will be charged in the framework of the Machine price in accordance with the quotation indicated in the offer, determined on the basis of MG2 price-list and tariffs in force at the date of sale. The SAT is aimed at verifying the correct functioning of the Machine in its final operating environment and its correct coordination with other systems and devices; the outcome of the test will be verified according to the criteria provided by the above-mentioned Regulation UNI ISO 2859-1 (2007) and subsequent amendments. The SAT shall be performed by people in charge of MG2 for the period of time specified either in the Order Confirmation or in any subsequent agreement between the parties, starting from the date agreed with the Buyer and, in any case, within 60 days from the Machine delivery, it being understood that, should the SAT duration be longer than planned because of reasons which are not attributable to MG2, including the working hours imposed to MG2 personnel in accordance with the regulations in force in the country of destination, this circumstance will give MG2 the right to request the Buyer to pay all additional costs and charges consequently accrued. The Buyer shall provide, at its own cost and under its own liability, the necessary auxiliaries and technical means to support the SAT operations and the Buyer shall do whatever is necessary to ensure that the installation and the related operations can start immediately upon the arrival of MG2 people in charge and they can continue without interruption until their completion. Particularly, the Buyer will be responsible for positioning the Machine in the production room, together with any necessary electric and pneumatic connection and auxiliary machines (without prejudice to the connecting activities that, upon discretion of the people in charge of MG2, must be accomplished under their direct control). The Buyer shall adopt all the safety measures aimed at preventing any accident at work and at protecting the MG2 people in charge involved in the SAT execution according to the applicable regulations, and shall further make available the necessary Materials in accordance with the foregoing art. 3.2. Should it not be possible to complete the SAT within the deadline of 90 days from the Machine delivery due to the Buyer fault, the latter shall in any case pay the price in the ways and within the deadlines indicated in the following art. 6.1, any exception in respect of the failure to complete the SAT being excluded. The SAT positive outcome, by failure of the Buyer to stipulate in writing any specific terms in the relating minutes, will imply the Buyer definitive acceptance of the Machine without any reservation, even by lack of the Buyer signature of the relevant report. In the absence of a Buyer request to perform the SAT, the same effects shall be connected to the FAT successful completion.
3.6 Site Acceptance Test (SAT): After the FAT and the Machine delivery, the Seller will perform the installation, the Machine start-up and, if requested, MG2 will provide the technical support to the Machine validations. The relevant costs will be charged in the framework of the Machine price in accordance with the quotation indicated in the offer, determined on the basis of MG2 price-list and tariffs in force at the date of sale. The SAT is aimed at verifying the correct functioning of the Machine in its final operating environment and its correct coordination with other systems and devices; the outcome of the test will be verified according to the criteria provided by the above-mentioned Regulation UNI ISO 2859-1 (2007) and subsequent amendments. The SAT shall be performed by people in charge of MG2 for the period of time specified either in the Order Confirmation or in any subsequent agreement between the parties, starting from the date agreed with the Buyer and, in any case, within 60 days from the Machine delivery, it being understood that, should the SAT duration be longer than planned because of reasons which are not attributable to MG2, including the working hours imposed to MG2 personnel in accordance with the regulations in force in the country of destination, this circumstance will give MG2 the right to request the Buyer to pay all additional costs and charges consequently accrued. The Buyer shall provide, at its own cost and under its own liability, the necessary auxiliaries and technical means to support the SAT operations and the Buyer shall do whatever is necessary to ensure that the installation and the related operations can start immediately upon the arrival of MG2 people in charge and they can continue without interruption until their completion. Particularly, the Buyer will be responsible for positioning the Machine in the production room, together with any necessary electric and pneumatic connection and auxiliary machines (without prejudice to the connecting activities that, upon discretion of the people in charge of MG2, must be accomplished under their direct control). The Buyer shall adopt all the safety measures aimed at preventing any accident at work and at protecting the MG2 people in charge involved in the SAT execution according to the applicable regulations, and shall further make available the necessary Materials in accordance with the foregoing art. 3.2. Should it not be possible to complete the SAT within the deadline of 90 days from the Machine delivery due to the Buyer fault, the latter shall in any case pay the price in the ways and within the deadlines indicated in the following art. 6.1, any exception in respect of the failure to complete the SAT being excluded. The SAT positive outcome, by failure of the Buyer to stipulate in writing any specific terms in the relating minutes, will imply the Buyer definitive acceptance of the Machine without any reservation, even by lack of the Buyer signature of the relevant report. In the absence of a Buyer request to perform the SAT, the same effects shall be connected to the FAT successful completion.
4. TRAINING
4.1 Training Services: During and/or following the phases related to FAT and SAT as described above, if previously requested by the Buyer, MG2 shall provide the training service to the Buyer personnel focused on the Machine setting and use, both mechanical and electronic, the Machine maintenance and the use of the software. The relevant cost will be charged, in addition to the
Machine price, on the basis of MG2 price-list and tariffs in force on the date of sale. The training on-site will be provided to a predetermined number of attendees, to be specified in advance, during a period of time agreed between the Parties.
4.2 The Parties declare themselves aware as of now that the performance of a correct and exhaustive training, provided by the people in charge of MG2, is
4.2 The Parties declare themselves aware as of now that the performance of a correct and exhaustive training, provided by the people in charge of MG2, is
essential in order to assure that the Buyer and its personnel may be able to correctly use the Machine, both from a safety point of view and in compliance with the correct ordinary maintenance, and also to ensure the performance levels expected from the Machine in the manufacturing activity, where applicable.
5. WARRANTY
5.1 Warranty period: MG2 undertakes to deliver the Machine free of faults and defects and warrants its proper functioning (i) for a 12-months period, running from the SAT completion date, or (ii) if this event occurs earlier, at the achievement of 2000 hours of use of the Machine.
5.2 Exclusion of Warranty: The Warranty set forth in art. 5.1 will not apply:
a) In case the Buyer has not entrusted MG2 people to perform the Machine installation and start-up and SAT;
b) In case MG2 people in charge, during the installation, detect a damage in the Machine delivered to the Buyer, even when attributable to third parties, considering the applicable INCOTERMS® 2020 (for example: damage during transportation);
c) In case the defect is due to the normal wear and tear of a part;
d) In case the Buyer has made changes to the Machine, including changes to either the software or electrical parts, or when the Buyer has made any repair and/or replacement by installing non-original spare-parts, without the Seller previous written consent;
e) In case the Buyer has used the Machine without complying with the instructions in the user manual, also with respect to the environmental conditions of use of the Machine and to the normal production regime and timing, or, in any case, in violation of the technical and/or safety measures required by the country of use and by the law, regulations and customs in force;
f) In case the Buyer has failed to perform or has delayed the Machine maintenance compared to the requirements set forth by the user manual, or has performed the above operations either inadequately or improperly;
g) In case the defect is due to the Buyer negligence
5.2 Exclusion of Warranty: The Warranty set forth in art. 5.1 will not apply:
a) In case the Buyer has not entrusted MG2 people to perform the Machine installation and start-up and SAT;
b) In case MG2 people in charge, during the installation, detect a damage in the Machine delivered to the Buyer, even when attributable to third parties, considering the applicable INCOTERMS® 2020 (for example: damage during transportation);
c) In case the defect is due to the normal wear and tear of a part;
d) In case the Buyer has made changes to the Machine, including changes to either the software or electrical parts, or when the Buyer has made any repair and/or replacement by installing non-original spare-parts, without the Seller previous written consent;
e) In case the Buyer has used the Machine without complying with the instructions in the user manual, also with respect to the environmental conditions of use of the Machine and to the normal production regime and timing, or, in any case, in violation of the technical and/or safety measures required by the country of use and by the law, regulations and customs in force;
f) In case the Buyer has failed to perform or has delayed the Machine maintenance compared to the requirements set forth by the user manual, or has performed the above operations either inadequately or improperly;
g) In case the defect is due to the Buyer negligence
or third parties’ negligence or improper use of the Machine;
h) In case the Buyer, when exercising the warranty, has not entirely fulfilled any payment obligation related to the Machine price and/or any other MG2 activity.
5.3 Notifications of defects: Under penalty of loss of warranty claims, the Buyer is obliged to notify in writing, by registered letter with return receipt or by certified e-mail to the mail address mg2postacertificata@legalmail.it, or by any other trackable means, the Machine lack of conformity or fault, by specifying into details its nature and by providing the adequate relevant documentation, by including pictures, within either 15 days after the discovery date of the defect or the date when the defect could have been discovered by using normal care, through careful Machine examination and testing. Under no circumstances the notification about the lack of conformity or fault of the Machine can be validly effected after expiration of the warranty period indicated in the foregoing art. 5.1.
5.4 Remedies: following a regular Buyer complaint, effected according to art. 5.3, MG2 may choose, under its undisputable choice, whether to send its personnel at the Buyer premises or to rely on the pictures provided by the Buyer in order to ascertain the existence of the Machine lack of conformity or defect. In case MG2 verifies the effective existence of a lack of conformity or defect attributable to itself, MG2 will, at its own choice, replace or repair, for free, the defective part, with the right to retain the replaced part as its own property, or to give the Buyer instructions about the destination of the same part. Only duties and/or local importation fees relating to spare-parts will remain at the Buyer cost.
5.5 Limits of liability: Except in case of intent or gross negligence, any compensation for any damage timely claimed by the Buyer may not exceed the
h) In case the Buyer, when exercising the warranty, has not entirely fulfilled any payment obligation related to the Machine price and/or any other MG2 activity.
5.3 Notifications of defects: Under penalty of loss of warranty claims, the Buyer is obliged to notify in writing, by registered letter with return receipt or by certified e-mail to the mail address mg2postacertificata@legalmail.it, or by any other trackable means, the Machine lack of conformity or fault, by specifying into details its nature and by providing the adequate relevant documentation, by including pictures, within either 15 days after the discovery date of the defect or the date when the defect could have been discovered by using normal care, through careful Machine examination and testing. Under no circumstances the notification about the lack of conformity or fault of the Machine can be validly effected after expiration of the warranty period indicated in the foregoing art. 5.1.
5.4 Remedies: following a regular Buyer complaint, effected according to art. 5.3, MG2 may choose, under its undisputable choice, whether to send its personnel at the Buyer premises or to rely on the pictures provided by the Buyer in order to ascertain the existence of the Machine lack of conformity or defect. In case MG2 verifies the effective existence of a lack of conformity or defect attributable to itself, MG2 will, at its own choice, replace or repair, for free, the defective part, with the right to retain the replaced part as its own property, or to give the Buyer instructions about the destination of the same part. Only duties and/or local importation fees relating to spare-parts will remain at the Buyer cost.
5.5 Limits of liability: Except in case of intent or gross negligence, any compensation for any damage timely claimed by the Buyer may not exceed the
price of the Machine faulty or defective part.
The warranty under the present article supersedes and replaces any warranty or liability provided by the law and it excludes any other MG2 liability whatsoever deriving from the Machine supply, it being understood that, in particular, any other Buyer request concerning a price reduction or the termination of the Contract request is excluded. Moreover, MG2 cannot be held liable for: the compensation of direct or indirect damages to persons or property, the loss of profit, the Machine or any other related machinery technical down-time, claimed by the Buyer or by third parties, it being understood that the Buyer shall indemnify and hold harmless MG2 from any claim of third parties in this regard. However, no claim can be brought by the Buyer after the expiry of the warranty period as provided in art. 5.1.
5.6 Effects of the exclusion of warranty: in case of exclusion of the warranty as provided for in art. 5.2, or if the warranty period provided for in art. 5.1 has expired, all the costs and expenses of any reparation and/or replacement to be effected by MG2 shall be fully at the Buyer cost based on MG2 price-list and tariffs in force at the date of reparation/replacement; nevertheless, MG2 shall keep the right to dispose of the replaced parts at its own discretion.
5.7 Compliance with the European Community regulations: MG2 warrants that the Machine complies with the European Community regulations; on the other hand, MG2 does not warrant that the Machine complies with the country of destination regulations. Unless otherwise specifically agreed in writing with the Buyer, this latter will be exclusively liable to check the Machine conformity with any regulation which may exist in the country of destination.
The warranty under the present article supersedes and replaces any warranty or liability provided by the law and it excludes any other MG2 liability whatsoever deriving from the Machine supply, it being understood that, in particular, any other Buyer request concerning a price reduction or the termination of the Contract request is excluded. Moreover, MG2 cannot be held liable for: the compensation of direct or indirect damages to persons or property, the loss of profit, the Machine or any other related machinery technical down-time, claimed by the Buyer or by third parties, it being understood that the Buyer shall indemnify and hold harmless MG2 from any claim of third parties in this regard. However, no claim can be brought by the Buyer after the expiry of the warranty period as provided in art. 5.1.
5.6 Effects of the exclusion of warranty: in case of exclusion of the warranty as provided for in art. 5.2, or if the warranty period provided for in art. 5.1 has expired, all the costs and expenses of any reparation and/or replacement to be effected by MG2 shall be fully at the Buyer cost based on MG2 price-list and tariffs in force at the date of reparation/replacement; nevertheless, MG2 shall keep the right to dispose of the replaced parts at its own discretion.
5.7 Compliance with the European Community regulations: MG2 warrants that the Machine complies with the European Community regulations; on the other hand, MG2 does not warrant that the Machine complies with the country of destination regulations. Unless otherwise specifically agreed in writing with the Buyer, this latter will be exclusively liable to check the Machine conformity with any regulation which may exist in the country of destination.
6. CONSIDERATION, TERMS OF PAYMENT AND REMEDIES IN CASE OF OMITTED OR DELAYED PAYMENT
6.1 Billing system and payment of the consideration: Except for what otherwise agreed in writing between the Parties, the Buyer shall pay the total consideration for the supply (including installation, start-up and SAT services, where applicable) as follows:
- 40% upon conclusion of the Contract, upon receipt of the relevant invoice and within the deadline indicated therein;
- 50% upon the positive outcome of the FAT, before the shipment of the Machine, upon receipt of the relevant invoice and within the deadline indicated therein;
- 10% upon the positive outcome of the SAT, where applicable, and in any case within the deadline of 90 days from the Machine delivery, upon receipt of the relevant invoice and within the deadline indicated therein.
If the Buyer registered office is located outside the Italian territory, all bank charges, including those relating to letters of credit, bank guarantees and wire-transfers, will remain at the Buyer charge.
6.2 Prohibition of payments suspension by the Buyer: The Buyer is not allowed to suspend payments for any reason and is entitled to bring any claim or raise any objection only after having duly fulfilled its payment obligations.
6.3 Default interest: Any delayed payment shall determine the automatic charging of default interests at the rate provided for by Italian law on delayed payments in commercial transactions (Legislative Decree no. 231/2002 and subsequent amendments), in connection to which MG2 shall issue the relevant invoice.
6.4 Supplier rights in case of delayed payment: Failure to timely pay even one of the instalments provided for in art. 6.1, at MG2 request, may result
6.2 Prohibition of payments suspension by the Buyer: The Buyer is not allowed to suspend payments for any reason and is entitled to bring any claim or raise any objection only after having duly fulfilled its payment obligations.
6.3 Default interest: Any delayed payment shall determine the automatic charging of default interests at the rate provided for by Italian law on delayed payments in commercial transactions (Legislative Decree no. 231/2002 and subsequent amendments), in connection to which MG2 shall issue the relevant invoice.
6.4 Supplier rights in case of delayed payment: Failure to timely pay even one of the instalments provided for in art. 6.1, at MG2 request, may result
in the Buyer loss of the advantage of paying in more instalments, hence the acceleration clause will be applied and the entire amount agreed for the supply of the Machine as well as of the additional services will become immediately due for payment. In such case MG2 will also have the right to suspend the Machine supply, without prejudice to further remedies provided for by the Contract and by the Italian law, or to make the performance of any further services conditional upon the opening of a letter of credit for the entire remaining amount, confirmed by a primary Italian bank.
6.5 Retention of title: The Machine is delivered under the express agreement for retention of title pursuant to Article 1523 of the Italian Civil Code in favour of MG2, therefore it remains the property of the latter until the Buyer has paid all considerations set forth in the Order Confirmation.
6.5 Retention of title: The Machine is delivered under the express agreement for retention of title pursuant to Article 1523 of the Italian Civil Code in favour of MG2, therefore it remains the property of the latter until the Buyer has paid all considerations set forth in the Order Confirmation.
7. EXPRESS TERMINATION CLAUSE
7.1 The Seller shall be entitled to terminate the Contract, wholly or partially, with immediate effect and without incurring in any liability for damages, by written notice to be sent by certified e-mail or registered letter with return receipt, or other trackable means, whenever:
a) any bankruptcy or insolvency proceedings or any proceedings or agreements with creditors for the
a) any bankruptcy or insolvency proceedings or any proceedings or agreements with creditors for the
settlement of the crisis are opened against the Buyer;
b) the coverage of the Contract through credit insurance is reduced for reasons not attributable to the Seller;
c) the Buyer provides incorrect information about its solvency or reduces the guarantees offered to cover its contractual obligations;
b) the coverage of the Contract through credit insurance is reduced for reasons not attributable to the Seller;
c) the Buyer provides incorrect information about its solvency or reduces the guarantees offered to cover its contractual obligations;
d) the Buyer violates the article 9 (“Confidentiality Obligation”) of these General Conditions.
7.2 In any case of termination of the Contract pursuant to this article, the Seller shall be entitled to retain the amounts received until then as an advance payment, in the form of compensation for the costs incurred until that very moment and in any case as a contractual penalty.
7.2 In any case of termination of the Contract pursuant to this article, the Seller shall be entitled to retain the amounts received until then as an advance payment, in the form of compensation for the costs incurred until that very moment and in any case as a contractual penalty.
8. FORCE MAJEURE
8.1 Each of the Parties shall not be liable for any breach of its obligations arising under the Contract, if such Party is able to prove: (i) that the breach was caused by an event beyond its reasonable control; (ii) that, at the time of the conclusion of the Contract, it could not be reasonably expected that the Party could foresee the possible occurrence of such event and the relevant effects on its ability to perform; and (iii) that it was not reasonably possible to avoid or overcome such event or at least its effects. For the purposes of this clause, the following shall be considered, by way of example and not by way of limitation, Events of Force Majeure: natural disasters, fire, floods, wars (whether declared or not), riots, rebellions or revolutions, acts of terrorism, sabotage or piracy, embargoes, epidemics and pandemics, strikes of a national nature, provisions of any public or governmental, local, national or international authority, including laws,ordinances, rules and regulations, whether valid or invalid, as well as any other
unforeseeable event beyond the control of the affected Party.
8.2 The Party whose performance is made impossible by the occurrence of a Force Majeure Event shall adopt any solution that allows to cancel, or at least limit, the consequences of its non-performance.
8.3 The occurrence and cessation of the Force Majeure Event shall be promptly reported in writing by the Party whose performance is made impossible.
8.4 For the entire period during which the Force Majeure Event, or its effects, still exist, the defaulting Party shall be relieved from any liability for its failure to perform, including any liability for damages, penalties or other sanctions provided for in the Contract. Any deadline set for the performance of the contractual services shall be considered extended for a duration equal to that of the Force Majeure Event.
8.5 It is understood that, in the event that the Force
8.2 The Party whose performance is made impossible by the occurrence of a Force Majeure Event shall adopt any solution that allows to cancel, or at least limit, the consequences of its non-performance.
8.3 The occurrence and cessation of the Force Majeure Event shall be promptly reported in writing by the Party whose performance is made impossible.
8.4 For the entire period during which the Force Majeure Event, or its effects, still exist, the defaulting Party shall be relieved from any liability for its failure to perform, including any liability for damages, penalties or other sanctions provided for in the Contract. Any deadline set for the performance of the contractual services shall be considered extended for a duration equal to that of the Force Majeure Event.
8.5 It is understood that, in the event that the Force
Majeure Event lasts for more than 12 months after its occurrence, the Party whose obligations are not impeded by the Force Majeure Event shall be entitled to terminate this Agreement in advance by giving written notice to the other Party by certified e-mail or by registered letter with return receipt or other traceable means.
8.6 In case of termination of the Contract due to the continuation of a Force Majeure Event pertaining to the Buyer, pursuant to the foregoing art. 8.5, the Seller shall be entitled to be reimbursed for the expenses incurred until then for the execution of the Contract; the relevant amount and the methods of reimbursement shall be agreed by the Parties, or, if they fail to reach an agreement within 60 (sixty) days from receipt of the notice of termination of the Contract, they have to be established by a single arbitrator appointed by the President of the Bologna Bar Association on the initiative of the Party that communicated the termination.
8.6 In case of termination of the Contract due to the continuation of a Force Majeure Event pertaining to the Buyer, pursuant to the foregoing art. 8.5, the Seller shall be entitled to be reimbursed for the expenses incurred until then for the execution of the Contract; the relevant amount and the methods of reimbursement shall be agreed by the Parties, or, if they fail to reach an agreement within 60 (sixty) days from receipt of the notice of termination of the Contract, they have to be established by a single arbitrator appointed by the President of the Bologna Bar Association on the initiative of the Party that communicated the termination.
9. CONFIDENTIALITY OBLIGATION
All information communicated by either Party in connection with the design, implementation, financial plans, development of the Machine and/or other machines produced by either Party, commercial and financial forecasts, as well as any information relating to the Materials used and any other document or material marked as “Confidential” or “Private”, shall be treated by the
receiving Party as confidential information and the receiving Party shall take all the reasonable precautions to ensure that it is treated as such by its own personnel and/or any other auxiliary or authorised representative.
Any confidential information shall be used by the receiving party and its personnel only in so far as it is strictly necessary for the performance of its
Any confidential information shall be used by the receiving party and its personnel only in so far as it is strictly necessary for the performance of its
obligations under this Contract.
All documents and other materials containing confidential information shall be promptly returned to the Party that provided them, or destroyed, at the choice of the Party that provided them, upon written notice and, in any case, upon termination of this Contract.
All documents and other materials containing confidential information shall be promptly returned to the Party that provided them, or destroyed, at the choice of the Party that provided them, upon written notice and, in any case, upon termination of this Contract.
10. GOVERNING LAW – PREVAILING LANGUAGE
10.1 The agreed place for the performance of all obligations under these General Conditions and any contractual relationship to which these apply is Pianoro (BO), Italy.
10.2 Any legal relationship between the Parties, which is included in the scope of application of these General Conditions, is subject to the Italian law.
10.3 These General Conditions will be sent to the
10.3 These General Conditions will be sent to the
Buyer in Italian for national contractual relations, in English for international contractual relations; both versions shall be available on the MG2 website.
11. PLACE OF JURISDICTION
Any dispute, both contractual and non-contractual, arising from or connected to relationships governed by these General Conditions shall be referred to the exclusive jurisdiction of the judicial authorithy of the
Court of Bologna, without prejudice to the possibility for the Seller to take action before the judicial authority competent for the domicile of the same or before the judicial authorithy
competent for the domicile of the Buyer for actions concerning the recovery of claims against the Buyer.
12. ANY OTHER BUSINESS
12.1 If one or more clauses of these General Conditions are considered void or unenforceable, the validity and/or applicability of the remaining clauses of these General Conditions shall not be affected. The void and/or unenforceable clause shall be replaced by agreement between the Parties with another clause in accordance with law, which shall be as close as possible to the economic purposes of such void and/or unenforceable provision.
12.2 Any exception from these General Conditions will be valid and effective between the Parties only if it is made in writing and signed by persons authorized to oblige each Party.
12.3 Any waiver by any of the Parties to apply any clause of these General Conditions or to insist on its punctual application shall not imply the waiver of any other provision of these General Conditions, nor may be construed as a continuous waiver unless
12.3 Any waiver by any of the Parties to apply any clause of these General Conditions or to insist on its punctual application shall not imply the waiver of any other provision of these General Conditions, nor may be construed as a continuous waiver unless
expressly stated. The tolerance, even repeated, of one of the Parties for active or omissive conduct in breach of the obligations provided in these General Conditions shall not affect the validity and enforceability of said clause. The failed, delayed or partial exercise by one of the Parties of any right or power provided for by these General Conditions cannot be construed as a waiver of the same nor prejudice any further act of exercise of the same.
Pursuant to articles 1341-1342 of the Italian Civil Code, the Purchaser declares to specifically approve the following clauses:
Art. 2.4 – Penalty in connection with the Software
Art. 5.2 – Exclusion of warranty
Art. 2.4 – Penalty in connection with the Software
Art. 5.2 – Exclusion of warranty
Art. 5.5 – Limitation of liability
Art. 6.2 – Prohibition of payments suspension by the Buyer
Art. 6.4 – Loss of the advantage of paying in more instalments in case of delay – acceleration
Art. 6.2 – Prohibition of payments suspension by the Buyer
Art. 6.4 – Loss of the advantage of paying in more instalments in case of delay – acceleration
clause
Art. 6.5 – Retention of title
Art. 7 – Express termination clause
Art. 10 – Governing law – Prevailing language
Art. 11 – Exclusive Place of Jurisdiction
Art. 6.5 – Retention of title
Art. 7 – Express termination clause
Art. 10 – Governing law – Prevailing language
Art. 11 – Exclusive Place of Jurisdiction
MG2 • General Conditions of Sale for Machines