The offers, confirmations and estimates formulated by Kimera are not binding. The customer’s order or any condition are only taken to be accepted by Kimera if confirmed in writing by the latter and do not imply any modification to the place of jurisdiction, which remains Modena. For all other cases, these conditions prevail over any general, special and/or additional condition of the customer included in the order or any other document issued by the Customer. Should the confirmation issued by Kimera contain modifications or additions to the order, the contract is taken to be finalised unless the Customer notifies his dissent or refusal within 15 days from the date the confirmation was sent. In any case, the acceptance, by the Customer, of the shipment of the ordered goods, constitutes acceptance of the conditions issued by Kimera.
1a) DEPOSITS AND DOWN PAYMENTS
Deposits made against the purchase price, paid upon the signing of the purchase agreement, are non-interest bearing and if the buyer revokes the purchase agreement, the deposit will be retained by Kimera as a compensation for the loss of business. Kimera retains the right to keep the deposits paid until acceptance, as in point 1. In case of breach or revocation of the present order contract, if no deposit has been paid, the buyer must pay a compensation of € 3.000,00 plus the more serious damage which will have been provoked.
The term “delivery” starts on the date when the Customer and Kimera have defined all aspects of the supply contract and Kimera has been notified of all administrative information. The delivery date may be subject to change due to causes not ascribable to Kimera such as strikes, lock-outs, insurrection, fire, floor, reject material, delays in delivery by sub-contractors, power blackouts, irregular operation of haulage or other Acts of God.
Should a delay in delivery occur that is ascribable to Kimera, the purchaser has no right to demand cancellation of the contract and/or compensation for damages.
In any case, delivery is taken as perfected upon the notification that the goods are ready at the premises of Kimera or when they are collected by the forwarder. The risks pertaining to the goods are transferred to the Customer on this date and the latter becomes responsible for its storage, safekeeping, maintenance and insurance.
3) PACKING AND TRANSPORT
The Customer will be charged for any packaging; this will be invoiced at cost and returns will not be accepted. The goods travel at the exclusive risk of the Customer even if sold carriage paid. Insurance is only stipulated if requested by the Customer in writing and at the latter’s expense.
4) AUTHORISATION FOR USE
The Buyer authorises Kimera and its employees to use, at their headquarters and on the entire road system of Italy, the vehicles it owns, delivered to Kimera after the completion of the installation of the goods covered by this contract.
5) PRICE AND PAYMENT
The prices are intended ex-works Kimera factory. They are binding for Kimera for immediate acceptance by the buyer and do not bind for subsequent orders. These prices are intended to be susceptible to changes in relation to any increases in labor costs and raw materials that occur during supplies, even with retroactive effect. Taxes, duties and expenses of any kind are the responsibility of the Client.
Payments are intended in cash, net, upon delivery of the goods and in any case at Kimera’s domicile. The latter has the right to accept bills or checks or other means of payment. Any acceptance by Kimera of payments not made in accordance with the above will not constitute an exception to the aforementioned clauses.
In the event of delayed payment, interest on arrears will start at a rate 3 (three) points higher than the official discount rate of the Bank of Italy.
The bills of exchange endorsed by the Client to Kimera are accepted subject to collection. Kimera declines all responsibility for the failure to present the bills in time for the bill protest or for their formal irregularities. For no reason, including the occurrence of any dispute of a technical or commercial nature, the Client may suspend payment of the price at the agreed deadlines. Failure to pay even one or any of the installments will automatically expire any obligation of guarantee or technical assistance by Kimera Srl.
6) TRANSFER OF TITLE – RETENTION OF TITLE
Should the agreed method of payment of the price be with instalments, the sale is made with retention of title and therefore the Customer acquires the right of ownership of the goods with the payment of the last instalment, interest and incidentals, while assuming all risks at the time of delivery. Kimera may lay claim to the above-mentioned goods wherever they may be located, even if combined or incorporated with other goods owned by the Customer or third parties. During this period, he assumes the obligations of the consignee and agrees to put the goods to good use, and not to transfer them or hand them over to third parties for any reason. He also agrees to notify the Supplier without delay of any seizure or executive proceedings referring to the goods.
7) RISOLUZIONE DEL CONTRATTO
Should the contract be cancelled prior to the execution of the work, the Customer must pay a penalty equal to 30% of the price of the entire order. If this occurs during order execution, further to the 30% penalty, the customer is obliged to pay the cost of the completed order.
7b) RESULOTORY CLAUSE (ART. 1456 C.C.)
In case of unpaid price installment, even just one, the purchaser loses any right on the order and the contract is immediately cancelled without need of notice. In this case Kimera Srl is entitled to request the immediate return of the sold goods, confiscating the amounts already paid as compensation of the use and of the losses consequent to the non fulfillment. Unprejudiced the right to request for a compensation.
At the delivery of the item or vehicle homologated for on-road use, Kimera is exonerated from any responsibility deriving from the failure to comply with the laws in force in the country, standards for accident prevention, instructions or use or inappropriate or incorrect use of the goods by the Customer.
9) INSPECTION – CLAIMS
The request for an inspection in the presence of the Customer must be made in writing. In any event, all inspections are carried out before shipment in the premises of the Supplier using the technical means in his possession. Inspections at the Customer’s premises will only be carried out if requested in writing and at the Customer’s risk and expense.
Kimera S.r.l. warrants its products free from defects of manufacturing for a period of 12 months/1500 working hours/4000 m³ for all components, rules whichever condition happens first, (excluded those subject to normal wear like the mixer blades, the rubbers, etc..) and for 36 months for structural parts. The warranty period starts from the date of delivery. The warranty request will be taken into consideration only under presentation of the warranty certificate duly filled in and signed by the final purchaser. Kimera S.r.l. must receive its copy of the warranty certificate, within 30 days from the delivery date. The warranty consists of the free replacement or repair of inefficient or unusable parts ( ex-works ) due to defects of construction ascertained and acknowledged by the producer or by its delegate; possible delays in the execution of the works do not determine any right of damages reimbursement or extension of the warranty period. No reimbursement for down time due to the immobilisation of the units is recognised for forced inactivity consequent of the breakdown and the repair. The costs concerning the transfer of the unit to the authorised service centre for the repair are at purchaser’s expense. The warranty for non Kimera fabricated components or accessories is the one offered by its respective manufacturer. The consumable material is excluded from the warranty (oil, grease, sliding shoes, etc.). The warranty on replaced materials follows the one of the unit. The warranty doesn’t apply if the plant: is not utilized in conformity with the instructions; is modified, repaired or disassembled, also partially, outside the service centre of the seller or belonging to the commercial and service organisation of Kimera Srl; the installation on the vehicle is carried out by a service centre not belonging to the commercial and service organisation of Kimera Srl without its previous written authorisation; the plant defects are caused by accidents, carelessness, lack of periodic maintenance, utilisation of non original parts, that is to say not produced and/or not supplied, tested and sold by Kimera Srl; the plant is used with non compatible implements. The tampering of the sealed safety check valves releases the producer from any responsibility and warranty. What is above expressly stated represents the only warranty granted by the producer and replaces in all effects any other warranty provided by law. It consequently expressly excludes the right of the purchaser to request the cancellation of the contract, the replacement of the plant , the refund of damages or reduction of the price.
11) PLACE OF JURISDICTION
Any controversy will be resolved out of court wherever possible. The parties to the contract agree to subject any controversy or disagreement that may arise between them regarding the interpretation or dispute concerning defects or faults of the goods in this contract, to the free arbitration of a single arbitrator, or to the customary arbitration of a board of arbitrators to be undertaken according to the regulations of the Board of Arbitrators of the province of Modena, and each party confirms his acceptance regarding this. The place of jurisdiction for any legal controversy is Modena.