The term “Buyer” in the context of these General Conditions of Sale and Delivery (“General Conditions”) shall mean: any person accepting an offer from SER S.p.A. for the sale of Goods or any person whose order for Goods SER S.p.A. accepts. The term “Goods” shall mean: Goods that SER S.p.A. is to deliver based on the agreement concluded with the Buyer in accordance with these General Conditions. The terms “written” and “in writing” in the context of these General Conditions shall mean: by letter, fax or electronically.
These General Conditions shall form part of all offers and order confirmations by SER S.p.A. and the agreements that SER S.p.A. concludes with the Buyer. Acceptance of an offer from SER S.p.A. or the concluding of an offer with SER S.p.A. in which reference is made to these General Conditions shall be considered as approval of these General Conditions. Departures from these General Conditions shall only be binding if expressly agreed in writing. The Buyer may not derive any rights for future transactions following any agreed departures from these General Conditions. If these General Conditions have also been prepared in another language than Dutch, the Dutch text shall always prevail in the event of any discrepancies.
Any offer from SER S.p.A. shall be made free of obligation even if the offer contains a deadline for acceptance. These offers shall only be valid as far as items have not been sold prior to acceptance bearing in mind that all offers shall relate to individual items. No agreement shall be concluded between the Buyer and SER S.p.A. until SER S.p.A. has sent the Buyer a confirmation of order confirming the receipt and acceptance of the Buyer’s order. SER S.p.A. shall be entitled to cancel an order if clear errors or carelessness occur regarding the Goods or if Goods are unavailable. SER S.p.A. shall be entitled to demand an advance payment or a guarantee and to suspend the carrying out of all or part of the agreement if it believes in its reasonable opinion that the principal’s financial circumstances warrant this. All descriptions for the offers (weight, number, colour, etc.) shall be carefully prepared. SER S.p.A. shall not be liable for any errors or shortcomings regarding these descriptions. SER S.p.A. is and shall remain the rightful claimant to existing and/or future rights regarding Goods compiled and designed by SER S.p.A. (possibly in cooperation with the Buyer).
If between the day of the offer and the sales agreement – even if SER S.p.A. has made a binding offer – or between the day of the sales agreement and the delivery, there is a change of price relating to the Goods offered or sold as a result of a change in prices of materials, production costs, import duties, taxes, exchange rates for foreign currencies or transport costs, SER S.p.A. shall be entitled to pass on these increased costs or to cancel the order without the Buyer being entitled to any compensation. All prices stated by SER S.p.A. shall be in euros and exclude VAT, import duties and other taxes, levies or charges unless expressly agreed otherwise in writing.
If the delivery is considered an EU transaction and zero per cent VAT is charged (based on article 28, paragraph a of Directive 91/680 EC), the Buyer shall be obliged to inform SER S.p.A. in writing and in good time prior to the delivery – subject to the Buyer carrying out the transport – as to what VAT number the Buyer uses for each individual transaction and that the product is being shipped to another EU Member State by or on behalf of the Buyer. If SER S.p.A. is sufficiently convinced that it can gather evidence of the above and then charges zero per cent VAT, the Buyer shall provide SER S.p.A. as soon as possible with documents proving that the product was exported to an EU Member State. The Buyer shall be responsible for paying the VAT, possible VAT supplements or levies payable by SER S.p.A. to the tax authority if the above documents are not delivered on time to SER S.p.A. If the tax authority cannot confirm the VAT number on time or the VAT number cannot be used during a control by the tax authority, the delivery shall be considered as an internal transaction and VAT shall be payable.
None of the delivery dates stated shall be considered as binding deadlines. SER S.p.A. shall not be considered to be in default regarding a delivery time until after the Buyer has placed it in default and given it opportunity to still deliver within a reasonable deadline and SER S.p.A. has failed to follow this up. Delivery shall take place based on the agreed conditions of the international rules for the interpretation of trade provisions, the so-called INCO Terms (latest version ). SER S.p.A. shall reserve the right to deliver the Goods in parts in which case the following Conditions (of Payment) shall also apply to each part delivery. The Buyer’s failure to fulfil a payment obligation (on time) shall lead to SER S.p.A. suspending the obligation to deliver.
The Buyer shall be obliged to accept the Goods when these are made available to him according to the agreement. The Goods shall be stored at the Buyer’s risk if he refuses to accept the Goods or neglects to provide information or instructions necessary for delivery. The Buyer shall in such case be liable for all additional costs including in any case, storage and transport costs. SER S.p.A. shall also be entitled to dissolve the agreement without prejudice to its right to claim full compensation for costs incurred and/or damage sustained (including reduced earnings).
The Buyer shall check the Goods (or have them checked) on delivery. While he does this, the Buyer shall check whether the Goods correspond with the agreement, i.e., whether the Goods: • have been delivered; • delivered comply with what has been agreed as regards the scope (for example, the numbers and the quantities); • comply with the agreed quality requirements or – if these do not apply – with the requirements established for normal use and/or commercial purposes. If visible defects or shortcomings are discovered, the Buyer shall report this in writing in the transport documents (consignment notes) on delivery and also inform SER S.p.A. in writing within 24 hours of delivery. The Buyer shall notify SER S.p.A. of any non-visible defects immediately following discovery but no later than seven days after delivery. The Buyer shall be obliged to accept the delivery if the Goods delivered differ in numbers, quantity, dimensions and weights by less than 15 per cent of what was delivered. The Buyer shall in such case have no right to delivery or return with respect to the differences between what was delivered and what was agreed. The obligation to pay and accept orders placed shall remain even if the Buyer introduces a complaint on time. The Buyer shall not be entitled to offset any payment owed to SER S.p.A. with a claim that he brings against SER S.p.A. Goods shall only be returned to SER S.p.A. subject to prior written agreement.
Payment shall be made within 30 (thirty) days of the invoice date unless an express written agreement has been reached to show otherwise. The Buyer shall be legally in default if SER S.p.A. has not received payment within the agreed period and the Buyer shall be liable to SER S.p.A. for interest of one per cent per month from the due date. SER S.p.A. shall without prejudice reserve its right to demand the amount due including the costs for out-of-court demands based on the price norms from the Netherlands Bar Association. These costs shall be due in addition to the costs of the procedures for legal demands. If SER S.p.A. can show that it has incurred higher costs than were reasonably necessary, these shall also be considered for compensation by the Buyer. All payments shall be made in full. The Buyer shall not be entitled to withhold any amount from the invoice for a claim that he asserts against SER S.p.A. SER S.p.A. shall be entitled, before carrying out any (more) services, on or after entering into the agreement to demand a guarantee from the Buyer (including advance payment) that he shall comply with both payment and other obligations under this agreement. If the Buyer fails to provide such a guarantee, SER S.p.A. shall be entitled to suspend its obligations and to ultimately dissolve the agreement in whole or in part without notice of default or judicial intervention without prejudice to its right to claim compensation for damage sustained. 10A. RESERVATION OF OWNERSHIP (for buyers not registered in Germany) Reservation of ownership of Goods delivered by SER S.p.A. shall not pass to the Buyer until SER S.p.A. has received full payment for the Goods and all other Goods delivered by SER S.p.A. and until the Buyer has fulfilled all his other obligations towards SER S.p.A. under the agreement and these General Conditions of Sale and Delivery. The Buyer shall be entitled to sell the Goods delivered by SER S.p.A. in the context of its normal day-to-day business. The Buyer shall not however be entitled in the context of his normal day-to-day business to sell the Goods at the point when the Buyer files for a suspension of payment or the Buyer is declared bankrupt. If the Buyer fails to fulfil his obligations or if there are well-founded grounds to assume that he shall not do so, SER S.p.A. shall be entitled at any desired moment to demand that the Buyer return the Goods to SER S.p.A. and if the Buyer fails to comply with this, to gain access to business premises of the Buyer or any third party where the Goods are stored in order to regain possession of the Goods. The Buyer shall not be entitled to in any way use the Goods, which shall remain the property of SER S.p.A. as security, to register these as his property or have these taken into account with respect to any liability of any kind but if the Buyer nevertheless does so, all monies owed by the Buyer to SER S.p.A. shall become outstanding and payable
The property rights to the Goods delivered shall remain reserved for the guaranteeing of all claims to which SER S.p.A. shall be entitled based on the current and future business relations until all balances have been liquidated with respect to the Buyer and its concern companies. The property rights of SER S.p.A. shall also refer to the new item created following processing of the Goods delivered under reservation of ownership. The Buyer shall produce the new item for SER S.p.A. without him acquiring the ownership rights to this and shall hold this item in storage for SER S.p.A. This shall not entitle him to make any claims towards SER S.p.A. In case of Goods delivered under reservation of ownership with goods from other suppliers whose property rights also relate to the new item, SER S.p.A. shall, together with these suppliers: • with the exception of the consumer’s co-ownership; • the co-ownership of the new item whereby the co-ownership share of SER S.p.A. corresponds to the relationship between the invoice value of the Goods delivered by SER S.p.A. under reservation of ownership to the total invoice value of the all processed Goods delivered under reservation of ownership. The Buyer shall, by way of guarantee, already transfer to SER S.p.A. his demands from the sale of the Goods under reservation of ownership to be delivered now and in the future together with all ancillary rights amounting to the share of ownership of SER S.p.A. With the processing, in the context of a labour agreement, the labour demands for a proportional amount of the invoice from SER S.p.A. for the processed Goods delivered under reservation of ownership shall already be transferred to SER S.p.A. So long as the Buyer fulfils his obligations from the business relationship towards SER S.p.A., he may, in the context of his normal day-to-day business, dispose of the Goods under reservation of ownership by SER S.p.A. and receive the demands transferred to SER S.p.A. himself. In the event of late payment or if there are sound reasons to doubt the Buyer’s solvability or creditworthiness, SER S.p.A. shall be entitled to receive the demands transferred and to withdraw the Goods delivered under reservation of ownership. Payments by cheque/bill of exchange shall not be considered as effected until the Buyer has received the payment. SER S.p.A. shall be obliged to release the Goods under reservation of ownership if and as far as the value of these Goods exceeds the demands from SER S.p.A. by 150 per cent or more. Agreements on the reservation of ownership rights shall be governed exclusively by German law.
SER S.p.A. shall offer no warranty regarding the Goods unless expressly stated in these General Conditions. Subject to the conditions set out below, SER shall offer the guarantee that the Goods shall correspond to the standard specifications as considered at the time of delivering the Goods and also with the contents of any other written warranty, including that provided by SER S.p.A. for the Buyer’s benefit with respect to the Goods. The above warranty shall be provided by SER S.p.A. and subject to the conditions that the warranty as stated in this passage shall only apply to defects to the products delivered by SER S.p.A. subject to the condition that these products are not in a processed state. SER S.p.A. shall issue no other warranty that has priority over this warranty and shall in no way be liable unless an alternative provision has been expressly made for this. SER S.p.A. shall be informed of any complaint from the Buyer, which is based on any effect on the quality or state of the Goods or if the Goods fail to satisfy the specifications (whether or not the Buyer has refused the delivery) according to the conditions of article 8. If the Buyer fails to inform SER S.p.A. accordingly, the Buyer shall not be entitled to refuse the Goods and SER S.p.A. shall not be liable due to such defect or faults and the Buyer shall be obliged to pay the price for the Goods as if the Goods had been delivered as agreed. If in the opinion of SER S.p.A., a valid complaint regarding any of the Goods has been brought to the attention of SER S.p.A. in accordance with these conditions and which is based on any defect of the quality or state of the Goods or not being able to fulfil the specifications, SER S.p.A. shall be entitled to replace the Goods (or the respective part thereof) without any further costs or at the discretion of SER S.p.A., to compensate the Buyer for the purchase price of the Goods (or a proportional part thereof); it shall however have no further liability towards the Buyer. SER S.p.A. shall never be liable due to any damage suffered by the Buyer except in case of intent or gross negligence on the part of SER S.p.A. and apart from statutory liability based on imperative law. Liability due to consequential damage, immaterial or consequential trading losses shall also be expressly excluded. If and as far as any liability rests on SER S.p.A. for any reason despite that stated in article 11, paragraph 6, this liability shall be limited to the amount equal to the net invoice amount of the respective Goods. The Buyer shall indemnify SER S.p.A. and protect it completely and effectively from any liability and from any third party and for whatever reason (contractual or otherwise) following delivery of the Goods to the Buyer flowing from, regarding or in connection with any defect to the Goods and/or any loss, injury or damage of any nature (either directly, indirectly or otherwise also including but not limited to any loss of profits and/or any resulting special loss or damage according to any description flowing from, regarding or in connection with delivery of the Goods or their use or resale).
SER S.p.A. shall not be liable towards the Buyer or be considered as being in default as regards the agreement, for any delay in carrying it out or any negligence in carrying out any obligation from SER S.p.A. regarding the Goods if the delay or negligence is due to any cause outside the reasonable power of SER S.p.A. (i.e.: force majeure). Force majeure shall include but shall not be limited to the following circumstances: resolutions and measures from any Government (or any institution), industrial disputes, work shortages, shortages of raw materials or parts, defects or delays in transport, failure to comply, comply properly or comply with obligations on time by suppliers and other contractual parties of SER S.p.A. If a situation of force majeure lasts longer than six months, SER S.p.A. shall be entitled to end the agreement with respect to the Goods that have not been delivered. The Buyer shall in this case not be entitled to any compensation.
SER S.p.A. shall be entitled to declare that all agreements with the Buyer are dissolved without judicial intervention if the Buyer is declared bankrupt or has filed for his own bankruptcy or a suspension of payments, if the tax authority has seized any of the Buyer’s property, if the Buyer decides to suspend, close or liquidate his business, if the Buyer offers a settlement to his creditors or if the Buyer is clearly no longer able to fulfil his financial obligations. The Buyer shall in such case be obliged to return immediately any Goods that have not been paid for in full to SER S.p.A.
Agreements concluded with SER S.p.A. and these General Conditions shall be governed exclusively by Dutch law. Any dispute between the Buyer and SER S.p.A. shall be assessed by the competent court in the district where SER S.p.A. has its registered office without prejudice to the entitlement of SER S.p.A. to submit this if desired to another competent court. Disputes between SER S.p.A. and buyers registered outside the EU shall be definitively adjudicated in accordance with the ICC Arbitration Rules by one or more arbitrators appointed in accordance with these Rules. The language used shall be English. Arbitration shall take place in Amsterdam.
SER S.p.A. may amend these conditions. These amendments shall take effect on the date stated. The Buyer shall also be informed of the amendments by way of a notice on the SER S.p.A. website. SER S.p.A. shall forward the amended conditions to the Buyer within a reasonable period. If for whatever reason even only some of these provisions of these General Conditions are ineffective, this shall not affect the validity of the remaining terms. These General Conditions were deposited with the Chamber of Commerce at 2011, December 15th under number 28100038.