1. Standard
1.1.These standard conditions of sale of Cartello S.r.l. (the “Conditions”) discipline in exclusive way any contract of products sales (the “Products”) between Cartello S.r.l. (“Cartello”) and the clients (the “Buyer/s”). The Conditions will exclusively apply if the Buyer is a professional and the contract is closed within the Buyer’s professional activity. The Conditions will not apply to any sale made to “consumers” according to and due to the Italian and European law in the field. Closing a sale contract disciplined by these Conditions, the Buyer declares to be a “professional”.
1.2.The offer and sale of Products, the improvement of contracts and any other relation between Cartello and the Buyer regarding the Products sale are regulated by the Conditions. Different terms proposed in any other form of way by the Buyer will not have any efficacy and be binding for the parts (“Parts”), except for explicit written acceptance made by Cartello; equally not applicable will be also standard/specific conditions prepared by the Buyer, who by accepting these Conditions expressly declares to renounce to them.
2. Orders
2.1.The Buyer commits to making orders according to the previsions of this Article.
2.2.It is therefore understood that orders that do not respect the following dispositions, incomplete or inaccurate orders will not be taken into consideration by Cartello.
2.3.Cartello will not be forced anyway to accept the orders sent by the Buyer, being able to freely evaluate wether to proceed or not to the acceptance and the consequent delivery of the Products.
2.4.The orders must be made by means of written acceptance by the Buyer of the relative offer (“Offer”) by sending an email to the following addresses:
SPARE PARTS, ACCESSORIES and LIQUIDS: fabio.rossi@yanmarmaritalia.it
ENGINES: alberto.castiglioni@yanmaritalia.it
Possible change of address will be communicated from time to time. Any possible term/date of delivery inserted in the Offer has to be intended as indicative and not binding for Cartello, except for what is foreseen in these Conditions.
2.5.Cartello – once received the Offer acceptance by the Buyer, will send the order confirmation (“Confirmation”) to the Buyer. This may have different terms than the Offer, confirming the approximate deadline delivery inserted in the Offer or indicating a different one. The Buyer, if agreeing with the new proposal expressed by Cartello, will have to send Cartello the Confirmation duly approved for acceptance, by mail. The already accepted order Confirmation is revocable by the 1st working day following the sending. The contract will be considered perfected in the moment of the Confirmation for acceptance by the Buyer (from now on “Contract”). In case of contrast between the dispositions expressed in the Contract and in the Conditions, the first must be considered prevalent over the others.
2.6.The modalities foreseen in the previous articles 2.4 and 2.5 will not apply to the orders whose objects are spare parts, oils, accessories and liquids, for which the order Confirmation made by the Buyer and sent by Cartello is not needed. The order regarding these products indeed must be considered definitive with the shipping made by Cartello of the order Confirmation to the Buyer.
2.7.To every order the following minimum thresholds of net merchandise value are applicable: (i) Euro 100,00 for orders whose object is the purchase of spare parts, (ii) Euro 150,00 oils and liquids; (iii) Euro 350,00 for orders whose object is the purchase of engines. It stays expressly understood that for orders whose object is the purchase of engines whose value is less than the minimum expressed at the previous point (ii), fix management fees of Euro 10,00 will be applied.
2.8.With the exception of a different negotiation between the parts the merchandise shipping date will be that indicated in the order confirmation.
3. Products Specifications
3.1.Cartello reserves its right to modify at any point, also after the Contract completion, the Products specifications that are needed to conform to the applicable laws and regulations and/or do not substantially modify the quality, the performance or the saleability of the Products. Cartello will inform the Buyer of these changes.
4. Products Price
4.1.The Products prices will be those indicated in the Contract or, if not specifically indicated, the prices of Cartello prices catalogue in effect at the time of the Contract conclusion. Cartello reserves its right to modify – at its unquestionable discretion – its prices list, according to the periodic updates published on the website www.hideapower.eu and that the Buyers must periodically verify. The changes in the prices list will not have efficacy on the Contracts concluded before the changes, but not accomplished yet.
4.2.The prices indicated by Cartello must be interpreted ex warehouse/ex works Incoterm 2010 and are therefore intended net of taxes, packing expenses, – pre-emptively quantified, as indicated in the following Article 4.3, transportation, insurance, custom expenses and other taxes, VAT or other, that will be paid by the Buyer.
4.3. Specifically the following packaging expenses will be applied: (i) for the Contracts whose object is the purchase of spare parts, oils, accessories and liquids, equal to the 0,8% of the net value of the bought products; (ii) for Contracts whose object is the purchase of engines one must refer to the rates published in the public list and available on the www.hideapower.eu and that the Buyers have to periodically verify.
5. Terms of Payment
5.1.The Buyer has to pay the Products price within the compulsory deadline indicated in the Contract, or otherwise, no later than 30 days after the invoice emission. Payments must be made by means of wire transfer in advance, except different agreement between the parts. The parts agree that different payment systems generate additional costs that will be charged in invoice to the Buyer.
5.2.The Parts can agree that the Buyer will have to deliver a letter of credit or other guarantee. In this case the letter of credit and/or guarantee will have to be issued by a primary credit institution in conformity with the applicable regulations and the standard text delivered by Cartello.
5.3.If the Buyer does not make the payment by the deadline, unprejudiced any other available right or remedy, Cartello will have the right to immediately annul the contract ex art. 1456 Italian Civil Code, informing the Buyer.
5.4In case of delay of the payment, Cartello will have the indisputable right to: (i) suspend the execution of the Contract and/or, (ii) charge the Buyer by way of penalty the sum of Euro 40,00 except the further potential damages,; (iii) charge the Buyer with the interests on the amount due to the interest rate foreseen by the article 5 of the Legislative Decree 231/2002 “Carrying out of the Directive2000/35/CE regarding the fight against payment delays in commercial transaction” and following changes and integrations, with no need for formal notice by Cartello on the deadline and/or communication sent by Cartello to the Buyer.
6. Delivering, Packaging
6.1.When it is not differently agreed in writing by the Parts in the Contract, any sale must be considered “ex works” (“Incoterms® 2010”) Cartello’s warehouse or other factory indicated in the Contract. The Buyer will have to collect the Products no later than 10 working days after he/she has been informed by Cartello that the Products are ready for collection.
6.2.In case the Buyer orders different Products for which can be foreseen different delivery dates, Cartello, taking into consideration the various time frames for the Products provision, reserves to make one only delivery in the last delivery date indicated, except in case of an explicit different request made by the Buyer, who in that case, will be charged with the extra costs for all the partial deliveries.
6.3. If the delivery is arranged in an approximate date and Cartello does not make the delivery within the 60 days following the deadline, the Buyer will have the right, by informing Cartello in writing after the deadline of 60 days, ask for the contract dissolution, without any damage/expense/cost charged. The above-mentioned deadline implies the correct and prompt implementation by the Buyer of the activities charged on him/her in the Contract.
6.4In any case, Cartello will not be responsible for any delay in delivery caused by: (i) events or facts caused by “force majeure”; (ii) non-fulfilment or delay of the Buyer in the implementation of his/her obligations; (iii) acts or delays of Public Authorities, including those that are not a consequence “force majeure” events.
6.5.If the Buyer does not accept (or is late with) the delivery and/or does not collect it, he/she will have to pay anyway as if the Products had been collected. Cartello will provide for the storage of the Products, with risks and expenses on the Buyer. If requested by the Buyer, Cartello will insure the Products on condition that the Buyer anticipates the relative costs. In case of missed collection by 10 working days Cartello will have the right to annul the Contract ex art. 1456 Italian Civil Code, informing the Buyer.
6.6.Cartello will take care of the Products packaging according to its commercial procedure. Particular packagings or delivery instructions requested by the Buyer must be agreed by the Parts in writing and the relative costs will be separately invoiced to the Buyer.
7. Risk Transfer
7.1.If not differently agreed by the Parts in the Contract, the risk of damages or loss of the Products goes to the Buyer “ex works” (“Incoterms® 2010”) Cartello’s warehouse or a different factory indicated in the Contract.
8. Property Reservation
8.1.In spite of the delivery deadlines and the passage of the risk regarding the Products and any other prevision of the present Conditions, the Products property will not be transferred to the Buyer until Cartello receives the total payment for the Products and all the other products that are sold by Cartello to the Buyer and the due payment.
8.2. Cartello will have the absolute right to reclaim, sell or treat or dispose in any other way of any and each part of the Products whose property stays with Cartello. Until the Products property is transferred to the Buyer, the Buyer has to treat the Products as a Cartello’s fiduciary and keep the Products accurately stocked, protected and insured. Until then the Buyer will be authorised to use the Products in the usual course of his/her activity.
8.3. If a third part acts to distrain or dispose of the Products in other ways, the Buyer must inform the third part/the Bailiff that the Products are Cartello’s property and immediately inform it in order to give it the chance of protects its rights by means of the suitable legal initiatives.
8.4.The Buyer has to keep all the technical news secret (ex: drawings, technical prospects, documents and general correspondence) and the information explicitly qualified as confidential received by Cartello and learnt in execution of the Contract. This obligation will be valid for the Buyer for 5 years since the delivery to the Buyer of the last product or lot of sold Products. All the industrial or intellectual property rights regarding sold materials or Products (including drawings, manuals, brochures etc. delivered together and/or in relation to the Products) is exclusively up to Cartello and its owners.
8.5. This Article dispositions will stay valid and efficient also after the suspension or dissolution (for any reason) of the Contract.
9. Warranties – Liability limitations
9.1 In case the Parts agree not to apply the Incoterm “ex works” and the transport is at the expense Cartello, The Buyer had to accurately examine the Products packaging at the moment of the delivery. In case these packagings appear damaged, open or incomplete or inadequate, without the original “CARTELLO SRL” cellar tape, the Buyer has duty of: (i) accepting the shipping with reservation, specifying the precise reason for the reservation on the delivery note when signing; (ii) promptly sending a written communication to Cartello and the shipper, informing about the observed damages and attaching a copy of the delivery note. It is understood that, in case it is not respected as indicated at the points (i) and (ii), Cartello will not be considered responsible for any damage experienced during the transport.
9.2. Within 10 working days from the delivery, the Buyer has to examine the Products and verify if the delivered Products correspond with the ordered Products. In case of missing written claim within the above-mentioned deadline by the Buyer, the orders will be considered accepted without reservation.
9.3.If not differently established in the Contract, Cartello guarantees against possible hidden defects: (i) engines for a period of 12 months since the delivery date (ii) spare parts, oils, accessories and liquids, for a period of 6 months since the delivery date. The substitution of components on warranty does not further extend its duration.
9.4.Notwithstanding as foreseen at the 9.3, the notifications of defects will have to be made in writing – in compliance with the above-mentioned deadlines – under penalty of expiration by 5 days since the moment the defect appeared. The defects notification will also have the indication of the observed defect and the identification data of the Product: [model, delivery date, serial number]. In order to start the call management procedure, it is essential the correct notification sending by the deadlines and as above indicated.
9.5After the notification made with deadlines and modalities indicated in the previous art. 9.4, the Buyer has to give Cartello back the defective Products paying the shipping cost (if not differently indicated by CARTELLO SRL). Cartello, if accepting the notification, will substitute the defective Products paying the shipping cost
9.6.The Products and/or materials substituted paying and not with a warranty, are guaranteed against hidden defects for a period of 6 monthssince the shipping date.
9.7.The warranty is excluded in case of breakages or injuries of all the parts resulting damaged because of improper use of the Products, negligence, transport or still due to the use of not original packaging. It is also excluded in relation to consumer products such as cleaners, belts, seals and eraser parts where not differently specified in the Contract and any other component subject to normal wear, and also in case of damages due to accidental events or force majeure. (i.e. natural disasters and lightnings).
9.8.The warranty fails in the following cases: (i) interventions on the Products made by not pre-emptively authorised by Cartello technical personnel; (ii) lacking implementation of the pre-emptive maintenance as specified in the usage and maintenance manual; (iii) substitution of components with not original components; (iv) improper use of the Product (application not foreseen in the usage manual); (v) tampering of the seals originally placed in the factory; (vi) Products custody in not suitable/in compliance with Cartello indications environments.
9.9.The intervention in warranty will include the free repair or supply of the components resulted defected, “ex works” (“Incoterms® 2010”) Cartello’s warehouse. Where an intervention of Cartello’s personnel at the Buyer’s offices is needed, travel expenses will be further charged while the parts on warranty and the manpower connected to the reinstatement will stay free. The components substituted on warranty by Cartello will be returned to Cartello (except in case of different indication received by CARTELLO SRL) and will become its property.
9.10.Cartello will not be hel responsible for possible direct and/or indirect damages resulting from the sale of Products as, for example: production interruption and/or losses, lacking or limited incomes, financial costs etc. In any case, Cartello’s responsibility in relation to the Contract with the Buyer or of any other nature is limited to the price payed by the Buyer for the Products.
9.11.The Article 9, without prejudice of the imperative applicable laws, is the only warranty given by Cartello in relation to Products. The warranty is explicitly offered in place of any other warranty or declaration, either explicit or implicit, including any warranty relative to the Products suitability.
10. Commercial Products to be Returned
10.1. The Buyer has the faculty of requesting the return to Cartello of not used and intact Products, in their original package and without visible defects. The return request has to be sent to Cartello (addressed to the representative sales person, see the point 2.4) by 30 days from the delivery date.
10.2. Cartello has the faculty of accepting or refusing the request for Commercial product to be Returned and in case of acceptance, the Buyer has to pack and send cartello the returned Product , with the exact indication of the ARM number (numer of authorization merchandise return) meeting the shipping costs.
10.3. The dispositions of the preceding articles 10.1. and 10.2 will not apply to the Products: (i) ordered in sample;(ii) ordered in URGENT and/or EXPRESS modality or directly from CHINA with direct delivery to the Buyer; (iii) consumer Products, for which it is explicitly excluded the Commercial Return.
10.4. This Rate is applied to Commercial Returns: Euro 10,00 per line + 13% of the returned amount.
11. Miscellaneus – Communications
11.1.The possible appeared total or partial inapplicability of a clause of these Conditions leaves unprejudiced the other clauses validity.
11.2.Data reported on the offers, catalogues, newsletters, adverts, as for example prices, speed, delivery deadlines etc. are purely approximate and do not represent Cartello’s commitment in this sense.
11.3.All the communications foreseen in accordance with the Contract and/or in relation to the Conditions will have to be made by email and confirmed within 3 working days by means of certified email, to the email address indicated in the Contract. For the purpose of the deadline foreseen in the Contract, it will be considered anyway the reception date of the first of the above-mentioned messages.
12. Applicable Law, Jurisdiction
12.1.The Buyer and Cartello agree that these Conditions, their interpretation, execution, implementation, non-fulfilment, validity and efficacy will be regulated by the Italian law. The Parts explicitly exclude the application of the Vienna Convention of 1980 on the contracts for the international sale of movable goods.
12.2.All the controversies deriving from these Conditions or any other agreement stipulated in connection with it, from its interpretation, execution, implementation and non-fulfilment, validity and efficacy will be exclusively submitted to jurisdiction of the Court of Milan. Only Cartello can decide to submit a fight to the exclusive jurisdiction of the Court of the place where the Buyer has its offices preferring it to the jurisdiction of the Court of Milan.
13. Final instructions
13.1.These Conditions can exclusively be modified, integrated and varied by Cartello, in writing.
13.2.These Conditions are written in two languages, Italian and English. In case of contrast between the two versions, the Italian will prevail.
14. Privacy
14.1For the intents and purposes of Italian Decree Law n. 196/03 (cd. “Privacy Code”) and the UE Regulations 679/2016 (“GDPR”), the Parts reciprocally give credit and accept that, in the execution of the activities foreseen by these Conditions, personal data regarding each of them will be treated for aims connected to the execution of these Conditions for the intents of the art. 6.1, lett. b) of the GDPR, also with the help of electronic means or to give execution to obligations foreseen by the regulations in force or the Authorities in charge.
For the intents and purposes of the articles 1341 and 1342 Italian Civil Code, the Buyer declares to explicitly approve the clauses foreseen by the following Articles: Article 1. General; Article 5. Terms of payment;Article 6. Delivery, packaging; Article 7. Risk transfer;Article 8. Property reserve; Article 9. Warranties – Limitations of responsibility; Article 12. Applicable law, jurisdiction.
