GENERAL SALES CONDITIONS
for the supply of goods exclusively within the national territory
Art. 1 - GENERAL PROVISIONS AND DEFINITIONS
1.1 These Conditions of Sale ('Conditions') regulate each sale and purchase operation relating to movable goods concluded between BayWa r.e. Solar Systems Srl ('BayWa r.e.') and its clients (individually, the 'Customer'; collectively, 'Customers'). Both of the current contracting parties may also be hereinafter collectively referred to as the 'Parties'.
1.2 Any issue concerning the agreement stipulated between BayWa r.e. and the Customer which is not expressly or implicitly referred to under these Terms will be regulated by Italian law.
1.3 To ensure their validity, any modification and/or derogation from these Terms must be stipulated or established in writing.
1.4 These Terms cancel and replace any other previous agreement having the same subject matter between BayWa r.e. and the Customer.
1.5 For the purposes of these Terms and with respect to the legal relationship, the terms indicated below, if written with a capital letter, shall be construed in the following manner.
"Offer" refers to the document that is signed and forwarded by BayWa r.e. to the Customer and which contains the Customer's data, a description of the product, a description of any additional services (consultancy) and/or the offered supply of incidental goods or services, the cost thereof and methods of payment. The Offer, countersigned by the Customer for acceptance, is an integral and essential part of the Contract.
'Contract' means the entire content of the Offer signed by BayWa r.e. and the Customer and of the Conditions and Annexes.
'Annex' means the document in which particular aspects of the Contract are covered and regulated. This document forms an integral and essential part of the Contract.
'Service' indicates each of the services provided by BayWa r.e. to the Customer the content of which is analytically determined by the Contract. In particular the term 'Service' shall be construed as referring to the provision of consultancy and assistance.
'Product' indicates the products supplied by BayWa r.e., such as photovoltaic modules, inverters, load-bearing structures, DC terminal boxes, solar cables and accessories as better specified and described in the Offer.
Art. 2 - CONCLUSION OF THE CONTRACT (the order/order confirmation)
2.1 The Offer of BayWa r.e. is not binding as far as the price, quantity, timing and the possibility of delivery are concerned.
2.2 To conclude the Contract the Customer must sign the same unconditionally for acceptance and submit to BayWa r.e. within a reasonable time and in any case not later than two days after the Offer that has been received, accompanied by a copy of these General Conditions of Sale, duly signed ( 'Order Confirmation'). The Offer shall be sent by the Customer to BayWa r.e. by fax and/or by registered mail with notice of receipt.
2.3 This Contract shall in any case be considered concluded at the registered offices of BayWa r.e. and the place of delivery of the product shall always be at the premises of BayWa r.e.. Products are always transported with risks and hazards borne by the Customer.
2.4 If following the conclusion of the Contract the Customer requests any variations of the quantities, quality, measurements or technical characteristics of the product, these will be subject to re-negotiation and in the event of a failure to reach an agreement the Parties shall remain bound to the original Contract.
2.5 If acceptance of the Offer is conditional or if it is received by BayWa r.e. following expiry of the term of validity of the Offer or in any case if it were not fully compliant with the Offer, it will acquire the nature of a counter-proposal and shall be irrevocable pursuant to Art. 1329 of the [Italian] Civil Code for the duration of 10 (ten) days from the date of receipt of the same by BayWa r.e..
2.6 The material (documents, technical specifications, designs, drawings, etc.) relating to the Contract ('Materials') which may be supplied by BayWa r.e. is the exclusive property of the same and shall not be used by the Customer for purposes other than those for which it has been supplied and must not be duplicated or made available to third parties.
2.7 The Parties hereto agree that if the Products are made in accordance with technical specifications directly provided by the Customer, BayWa r.e. shall not be deemed liable for the accuracy of the same, nor for the durability and functioning of the Products supplied. All characteristics not explicitly indicated by the Customer in the technical specifications will be established at the discretion of BayWa r.e. and accepted by the customer.
2.8 Any differences between the Product and any sampling of the same material in the possession of the Customer or any differences with respect to brochures and illustrative materials shall not give rise to any complaints as the samples have a purely indicative value.
Art. 3 - DELIVERY
3.1 Delivery will be effected, unless otherwise specified, at the premises of the Customer indicated in the Offer. BayWa r.e. may effect split deliveries at different times, also in relation to the same order.
3.2 Any terms of delivery ('Terms of Delivery') specified in the Offer are purely indicative and not binding. As of now BayWa r.e. is authorized to supply the product or part of the Product ordered to the Customer also before the Delivery Deadline agreed upon.
3.3 Transportation and delivery of the Product shall occur with costs and risks borne by the Customer (cf. Incoterms 2000 'EXW'). The mode of transport will always be determined, executed and managed by BayWa r.e.. The transportation costs are borne by the Customer.
3.4 BayWa r.e. will communicate in writing to the Customer any risk of delay, quantifying the same and providing an adequate justification of such an occurrence.
3.5 Acceptance of such delays on the part of the Customer must occur strictly in writing and will be submitted via fax and/or mail and/or via computerized systems.
3.6 If, due to delays in the delivery of products, it is necessary to effect an urgent transfer of goods resulting in an increase in relative expenses, any further charges shall be borne by BayWa r.e..
3.7 BayWa r.e. will not be liable for any delays caused by force majeure as referred to in Art. 11 below or relating to behavior or omissions on the part of the Customer which may be justified by a default of the same.
3.8 If for any reason attributable to BayWa r.e. the delay in delivery of the product exceeds a period of 40 days and this has not been notified in writing by BayWa r.e. to the Customer, in accordance with the provisions of Art. 1456 of the Civil Code the Customer will have the right to immediately terminate the Contract relating to the Product for which delivery has been delayed and BayWa r.e. must be notified in writing of such withdrawal (also by fax).
3.9 The Customer undertakes to receive the Product referred to in the Contract as soon as at is made available at the place of delivery and in accordance with the timing or schedule set forth in the Order Confirmation, assuming any costs and charges related to a delay in taking delivery of the goods.
3.10 Upon receipt of the Product, the Customer must verify the integrity of the packages and correspondence in terms of quantity and quality with the data indicated in the accompanying document. In the event of discrepancies and/or a lack of conformity the Customer will be responsible for compiling a precise note of such conditions on the transport document (consignment note or bill of lading) and notifying BayWa r.e. of the same via registered mail within the strict deadline of 10 days following receipt of the Product, under penalty of annulment of the possibility to assert its rights in this regard.
3.11 The Customer moreover forgoes the possibility to demand from BayWa r.e. any payment relating to penalties or made by way of reimbursement for damages in the event of a delay or failure to effect delivery of the Product with respect to the dates originally specified in the Order Confirmation.
3.12 By way of derogation from Art. 1464 of the Civil Code, if the Products are no longer easily available on the market the Client renounces the right to withdraw from the Contract and the Customer's obligation to effect payment within the established terms for delivery with respect to operations that have already been carried out shall remain valid, without any right to a reduction in price or to reimbursement for damages of any kind.
3.13 Returns, replacements of products or any reversals, also of a partial nature, will be accepted only upon written approval of BayWa r.e. and invoiced with the payment of a minimum contribution of 30% of the net price of the product sold.
Art. 4 - RESERVATION OF TITLE
4.1 BayWa r.e. shall retain ownership of the Product until full payment has been effected of the Fees indicated in the following article and whatever else may be due. The retention of title also applies until such time as when bills of exchange or checks delivered to BayWa r.e. have been collected in full.
4.2 In accordance with the provisions of law, non-payment by the Customer, in whole or in part, of the Fees as specified in the Contract will give BayWa r.e. the right to regain possession of the Product, without prejudice to any further rights of the same.
Art. 5 - SUMS PAYABLE
5.1 By way of consideration for the supply of the Product and the provision of any Services and/or incidental goods the Customer will pay to BayWa r.e. the Fees indicated in the Offer by the deadlines and in the manner indicated therein. If an advance payment with respect to the consideration for the supply is provided for, delivery of the same shall not be effected unless the advance payment agreed upon is effected and completed.
5.2 Unless a different agreement is established in writing or derives from previously established agreements made by the Parties herein, payment of the Fees and any other amounts owed by the Customer must be carried out on the stipulated expiration date by bank transfer to the current account indicated by BayWa r.e. in the invoice. The payment of each invoice must be made by the Customer by the 30th day following its issue without exception unless a different agreement has been stipulated between the Parties.
5.3 Fees are not inclusive of VAT, insurance and transportation costs or any charges not expressly provided for in the Contract.
5.4 In the case of a partial payment of Fees, BayWa r.e. will be entitled to allocate the amounts received, at its own discretion and regardless of any indication that may have been made by the Customer concerning their allocation, to cover one or more of the Fees for goods that have been supplied.
5.5 At its sole discretion BayWa r.e. may refuse to proceed with the supply of the Product if Customers have previously failed to meet their obligations, if they have been been entered in defaulters/insolvency registers or are subject to enforcement procedures, if they have presented insolvency petitions or are subject to bankruptcy procedures in their capacity as company owners or legal representatives of a company, for technical and organizational reasons or for any other reason on the basis of which BayWa r.e. may deem it to be inconvenient to conclude the Contract. Such a refusal will be communicated via fax or by e-mail to the e-mail address of the Customer indicated in the Contract.
5.6 In the event of a delayed payment to BayWa r.e., without any need for prior formal notice and without prejudice to any other right that may be applicable, the interest referred in Legislative Decree 231/2002 will be applied and determined as provided for in the aforementioned Decree.
5.7 Any repeated delays or constant irregularities in payment on the part of the customer will entitle BayWa r.e. to suspend or interrupt delivery of the Product ordered, without prejudice to the right of BayWa r.e. to reimbursement for direct or indirect pecuniary losses.
5.8 If BayWa r.e. has reason to fear that the Customer can not or does not intend to pay for the Product on the due date agreed, it may at any time suspend or cancel the order and change the conditions of payment if in its own unquestionable judgment the Customer is deemed to be no longer solvent or the Customer's level of solvency has decreased or it may make delivery of the Product subject to the provision of adequate guarantees of payment (e.g. a bank guarantee, issue of a bank draft or bill of exchange). In the case of deferred payment granted to a Customer the latter will automatically lose this benefit if on two consecutive occasions it has not provided for timely payment of the single installments.
5.9 The possibility for the Customer to suspend the payment of Fees agreed upon, either fully or in part, on the basis of any alleged default and breaches of BayWa r.e. is in any case excluded.
Art. 6 - COMMITMENT REGARDING CONFIDENTIALITY
BayWa r.e. and the Customer undertake to maintain and ensure the confidentiality of all details and information concerning the same ('Confidential Information') and therefore not to disclose or divulge such details to any third parties, also following termination of the effects of the Contract.
Art. 7 - LIABILITY
7.1 Both Parties agree that BayWa r.e. is the mere supplier of the Product and therefore does not assume any obligation beyond those provided for in this Contract.
7.2 Except as expressly provided for by law, BayWa r.e. assumes no responsibility for damage of any kind suffered by the Customer in connection with this Contract or performance of the services provided for therein.
7.3 In any case BayWa r.e. shall in no way be responsible for damage due to causes beyond his control or which can be attributed to the Customer (by way of example due to erroneous static calculations referring to the installation and the presence of wind and snow, etc.).
7.4 The Customer agrees to hold harmless and release BayWa r.e. from any liability with respect to any claims for compensation that may be advanced against it and any prejudicial consequences it may become subject to.
Art. 8 - VARIATIONS IN THE CONDITIONS OF SALE
8.1 BayWa r.e. reserves the right to change and modify unilaterally and at any time the conditions specified in this Contract, and having regard in particular to applicable fees and charges, providing notification of the same by fax or via e-mail.
8.2 These changes shall take effect immediately.
Art. 9 - WARRANTY
9.1 BayWa r.e. hereby declares that the Product which constitutes the subject of the Contract is free from defects and/or faults and/or any form of malfunctioning that may render it unsuitable for the agreed use or which are likely to appreciably impair its value.
9.2 If the Product presents any defects and/or faults and/or any form of malfunctioning and provided the Customer has reported such anomalies by means of a written notice submitted by fax, registered letter (with advice of receipt) or telegram to BayWa r.e. within the essential term of 10 (ten) days from the date when the Customer discovered or should have discovered the defect or malfunctioning, and indicating in detail the nature and extent of the same, BayWa r.e. may at its own discretion: a) replace the faulty Product with a compliant product, without any additional burden on the Customer, or; b) repair the faulty Product, without any additional cost to the Customer, or; c) apply a reduction to the Fees paid by the customer, or d) refund to the Customer the price paid for the non-compliant products and consequently terminate the Contract relating to the same.
9.3 It remains understood that any complaints or disputes do not entitle the Customer to suspend or in any case to delay payments relating to the products subject to contestation or any other supplies.
9.4 If it is ascertained that a complaint relating to a defect or malfunctioning is unfounded, the Customer will be required to reimburse BayWa r.e. for all expenses (expert analyses and reports, costs relating to inspection, etc.) incurred by the same for assessments regarding the alleged anomalous and faulty products.
9.5 In any case, the guarantee shall not apply if the Product supplied by BayWa r.e. presents tampering and/or any modification that is unauthorized or has been caused by improper handling on the part of the Customer and/or by unauthorized personnel, or if the instructions provided by the Manufacturer or by BayWa r.e. are not observed by the Customer or, in the case of defects caused by poor and improper use and storage on the part of the Customer.
9.6 The guarantee relating to proper functioning and operation of the Product supplied is generally set at 24 months from the date of delivery to the Customer unless otherwise agreed between the Parties.
Art. 10 - FISCAL OBLIGATIONS
Any tax, duty or contribution which, for whatever reason, may be brought to bear on the Contract, on the services provided for therein or on the Fees will be borne by the Customer, with the exclusion of taxes payable by BayWa r.e..
Art. 11 - FORCE MAJEURE
11.1 BayWa r.e. will not be liable for default with respect to the fulfillment of any of its obligations if it proves that such non-performance is due to an impediment or event (by way of example, fires, war, kidnappings, disruption of transport operations, strikes, production system stoppage or delays in deliveries caused by suppliers) independent of its control and which it could not have been reasonably expected to foresee at the time the Contract was concluded.
11.2 If the event or impediment continues to exist for a period exceeding 50 (fifty) days, the party that is unable to fulfill its obligations may terminate the Contract by means of a written notice submitted to the other party (by fax, registered mail with advice of receipt), which shall not claim any compensation for damages or other contractual sanctions.
Art. 12 - PROTECTION OF PERSONAL DATA
12.1 Pursuant to and by effect of Art. 13 of Legislative Decree 196/03, the Customer hereby declares that it has received relevant information concerning the data processors and the methods and purposes of the processing of its data and that it is aware of its rights under Art. 7 of Legislative Decree 196/03.
12.2 By signing this document, the Customer moreover provides its consent to BayWa r.e., permitting the same to collect, file, use and process the data it acquires for the promotional, commercial, accounting and taxation purposes associated with the fulfillment of the Contract. The Customer also authorizes BayWa r.e. to transmit its data to qualified third parties in compliance with the provisions of law and/or contract-related obligations and/or which may derive from relations existing with BayWa r.e..
Art. 13 - MISCELLANEOUS
13.1 Notification Any notification that has to be submitted in accordance with this Contract will be deemed to be valid, unless otherwise provided for, if it is made in writing and sent to the addresses indicated in the Offer and to those disclosed later by the Parties. Notifications for which a specific procedure has not been indicated must be submitted by registered mail with acknowledgment of receipt.
13.2 Tolerance. Any conduct engaged in by the Customer in violation of the conditions contained in the Contract may be tolerated and recognized by BayWa r.e. by means of a written note, however, such tolerance, also of a tacit nature or by mere and implied conduct, shall not constitute a waiver of rights under the provisions that have been breached or the right to demand proper and precise fulfillment of all services to be performed.
13.3 Transfer of rights Only BayWa r.e. is entitled to transfer to Third Parties the Contract itself and the rights deriving from the same, such as credit; in this regard the Customer as of now provides its consent pursuant to Art. 1407 of the Civil Code.
13.4 Completeness The Contract constitutes a comprehensive regulation of relations existing between the Parties, with reference being made to the subject indicated, and it supersedes all prior agreements, declarations or commitments between the same.
13.5 Partial Invalidity Where possible, each provision of the Contract shall be interpreted in such a way as to be valid and effective, however, if a provision were in itself deemed to be invalid or ineffective, this shall not invalidate the remaining part of the Contract.
13.6 COMPETENT COURT OF LAW All disputes relating to the Contract, including those concerning its implementation and/or interpretation and/or application, also arising from non-contractual action, shall be exclusively brought before the Court of Law of Bolzano, also in the case of a joinder or recourse to third parties in an action under warranty.
13.7 Annexes Any annexes form an integral and essential part of the Contract.