ALGO GROUP – GENERAL TERMS AND CONDITIONS OF SALE
Edition: January 2021
In these General Terms and Conditions of Sale the following terms shall have the following meaning:
a) “Algo Group”: the Italian law public limited company Algo Group S.p.A.;
b) “Purchaser”: the natural or legal person requesting the purchase of products marketed by Algo Group;
c) “Party” or “Parties”: Algo Group and the Purchaser, either individually or collectively;
d) “Order” or “Orders”: the purchase order(s) issued by the Purchase to Algo Group;
e) “Products”: all the products and services offered by Algo Group, as described in catalogues, price lists, drawings, technical sheets, brochures and/or other promotional material;
f) “Agreement” or “Agreements”: each contract relating to the sale of Products by Algo Group and the corresponding purchase of Products by the Purchaser;
g) “General Terms and Conditions”: the general terms and conditions of sale as defined here below.
These General Terms and Conditions shall apply to any sale of Products from Algo Group to the Purchaser and shall replace any other previous Algo Group’s general conditions of sale.
Unless otherwise explicitly agreed by the Parties, these General Terms and Conditions are an integral part of all quotations and offers of Products provided by Algo Group and shall also apply to any and all acceptances, acknowledgements and confirmations of Orders by Algo Group, thus being deemed as an integral part of each Agreement.
Therefore, the Purchaser may not demand or object to conditions other than those contained in these General Terms and Conditions.
These General Terms and Conditions shall be effective only for Agreements entered into by and between Algo Group and professional entities; as a consequence, Italian Legislative Decree no. 206 of 6 September 2005 (Consumer Code) shall not apply.
In the event of any discrepancies, the provisions agreed in writing between the Parties in a specific Agreement shall prevail over these General Terms and Conditions.
PROCEDURES FOR ENTERING INTO INDIVIDUAL AGREEMENTS
Algo Group’s offers are valid only for the period of time established by Algo Group in the offer or, failing this, up to ninety (90) days as from the date of the offer, without prejudice to Algo Group’s right to revoke, at any time, any offers and quotations of Products before receiving the Purchaser's Acceptance.
The Purchaser shall provide Algo Group with the Orders, which represent an irrevocable contractual proposal binding for a period of ten (10) days as from the moment Algo Group has become aware thereof. Algo Group may accept such Orders according to its own production requirements.
During this period, the Purchaser may not cancel the Order without the prior written consent of Algo Group. The Agreement shall be deemed as entered into once the Order is accepted or carried out by Algo Group.
In the event that Algo Group's order confirmation differs from the Order in terms of, without limitation, quantity of Products, prices and delivery methods, the order confirmation shall represent a counter-proposal by Algo Group and the Agreement shall be deemed as entered into upon Purchaser’s express acceptance thereof.
Any and all indications, measures, drawings, images and data sheets of the Products and related components as contained in any Algo Group’s catalogues, brochures and websites and, more generally, all data contained therein as to characteristics and performance of the Products are to be considered as an indication only. Therefore, Algo Group reserves the right, at any time and without any notice obligation, to make any changes that may be deemed, in its sole discretion as manufacturer, as necessary or appropriate to improve the functionality and performance of the Products, as well as to meet technical, technological and production needs.
PRICES AND PAYMENT TERMS
The prices of the Products offered by Algo Group are those indicated in each offer, order confirmation or other document formalising the Agreement, and are expressed in Euro.
Prices are EX WORKS (Incoterms® 2010) warehouse Algo Group, unless otherwise agreed in writing between the Purchaser and Algo Group, and as such they do not include transport and insurance costs, nor any other charges related to the sale, including taxes or duties. The relevant tax amounts, where required, shall be indicated separately and are to be paid by the Purchaser together with the price of the Products which they refer to.
The prices provided for in Algo Group’s price-lists or catalogues, as applicable from time to time, are an indication only and are not, in any way, binding on Algo Group, which reserves the right to amend them according to any increases in labour, raw materials and other costs, or for other reasons that may have occurred during the period of validity of its catalogues and price-lists.
Unless otherwise agreed in writing between the Purchaser and Algo Group, Algo Group shall issue the invoices, based on the price of the Products, upon shipment of the Products and payment by the Purchaser shall be due within thirty (30) days of the invoice date, unless otherwise specified. However, in the event that Algo Group considers that the Purchaser’s financial standing is no longer such as to justify the production or delivery of the Products under the usual payment terms, even if originally established in the Agreement, Algo Group may at any time require advance total or partial payments, advance payment for specific Orders or the application of different payment terms as a condition to deliver the Products, and may suspend, delay or cancel any allowance, delivery or other performance under the Agreement.
All payments shall be made to the address indicated by Algo Group. If deliveries are split, invoices shall be issued separately and payments shall be settled when due. No discount shall be granted for advance payment, unless otherwise agreed in writing between the Purchaser and Algo Group.
In addition to Algo Group’s rights and remedies under the law, as provided for in Article 5 of Italian Legislative Decree no. 231/2002 interests shall accrue and be applied on late payments at the official ECB rate increased by 7 points, to the extent permitted by law, as from the date on which the credit was due until full payment.
In the event of any failure in paying any consideration due for any reason to Algo Group, as well as in the case of any other breach of contract, Algo Group shall be entitled to refuse to perform other services and/or delivery of Products until payments have been made, and may suspend, delay or cancel any allowance, delivery or other service, without prejudice to any other rights and remedies available to Algo Group under the Agreement or the law.
Algo Group reserves the right to assign the receivables arising from individual sales of Products to third parties, including pursuant to and by effect of Italian Law no. 52/91 on factoring and Italian Law no. 130/99 on securitization of receivables.
Unless otherwise agreed in writing between the Parties, the Products shall be delivered to the Purchaser, or to any third party appointed by this latter, on an EXW (EX Works - Incoterms® 2010) basis at the Algo Group premises indicated from time to time. Products shall be deemed as delivered as soon as they are taken over by the carrier for transport to their destination, with the related transfer of the risk of loss of or damage to the Products.
The delivery dates indicated or accepted by Algo Group are an indication only and, therefore, the delivery terms are not essential, unless otherwise agreed in writing between Algo Group and the Purchaser.
Unless otherwise agreed in writing, the Purchaser's right to claim compensation for direct or indirect damages resulting from delays in the delivery of the Products is therefore excluded, provided that they are not attributable to Algo Group’s wilful misconduct or gross negligence .
In any case, Algo Group shall make all commercially reasonable efforts to meet the indicated or accepted delivery date, and to minimise any inconvenience caused by possible delays, provided that the Purchaser promptly provides in advance all the information relating to the order and the delivery in consideration of the expected delivery date.
Title to the Products shall pass to the Purchaser upon delivery.
Upon receipt of the Products, the Purchaser shall, in its own interest, check the quantity and conditions thereof and notify immediately the carrier in writing of any discrepancies and reservations.
Claims relating to the quantity and condition of packaged and delivered Products shall be rejected if not previously and immediately reported in writing to the carrier.
Algo Group shall not be liable for delays in delivery or other breaches of the Agreement to the extent that they are due to force majeure, such as, but not limited to, difficulties in the supply of materials, equipment or energy, irregular supply of raw materials or subcontracting, work interruptions, labour unrest, transport problems, natural disasters, public authority measures or other circumstances occurring after the entering into the Agreement. Force majeure means and includes all those circumstances and events, either foreseeable or unforeseeable when the Agreement was entered into, that are beyond the reasonable control of Algo Group and as a result of which Algo Group cannot reasonably be required to perform its obligations, including cases of force majeure that affect its suppliers. In case of impossibility to perform in the aforementioned cases, the performance of the Agreement shall be suspended for the duration of the cause of impossibility, without Algo Group being liable for any damage caused to the Purchaser. In the event of force majeure lasting more than six (6) consecutive months, both the Purchaser and Algo Group shall have the right to terminate the Agreement, without Algo Group being liable for the delay or for any damage that may be caused to the Purchase.
MANUFACTURER'S WARRANTY AND LIABILITY
The Products shall have the quality technical characteristics necessary for their normal use, as shown in catalogues, assembly instructions, photographs and other existing documentation thereof at the time of sale, as known and accepted by the Purchaser.
Algo Group guarantees that the Products shall be delivered in accordance with Algo Group’s specifications and free from any faults and defects; it further guarantees their proper functioning for a period of twenty-four (24) months as from their sale, in the event of normal use and provided that their instructions for use are duly complied with.
Notwithstanding the foregoing, the warranty of the Products shall be void if the alleged defects or non-conformities have occurred due to assembly errors, improper installation, failure to comply with or incorrect compliance with the technical specifications contained in the Algo Group’s technical documentation and any other documents accompanying the supply, failure to take immediate measures to contain any malfunctions, overloads with respect to the limits set out in the technical instructions, endurance or environmental tests, misuse, use other than that indicated in the instructions, natural wear and tear, or if they result from failures caused by inadequate storage and preservation, incidents, improper transport or handling, inexperience or negligence, lack of or incorrect maintenance, repair, alteration, modification or other unauthorized interventions, tampering carried out or commissioned by the Purchaser or third parties, unforeseeable circumstances or force majeure.
In order for the claim to be admissible, the Purchaser shall have to prove in writing the validity of the warranty, the correct storage and installation of the Product, as well as provide Algo Group with adequate documentation proving the alleged faults and defects.
Any claim for damages shall be reported by the Purchaser to Algo Group within thirty (30) days as from the occurrence of the event giving rise to the claim. The Purchaser shall return the Products under warranty to the premises indicated by Algo Group in accordance with its return procedures as indicated on the material return authorization effective from time to time, including transport arrangements and refund of the relevant costs to the Purchaser.
Algo Group's sole obligation and Purchaser's sole right as to warranty claims, to be reported by the Purchaser within thirty (30) days as from the date of the discovery thereof, shall be limited to the replacement of any Product found to be defective or non-conforming or to the refund of the price for the purchase of another Product, at Algo Group's sole discretion. Algo Group shall replace or refund defective or non-conforming Products within a reasonable period of time. Defective or non-conforming Products shall become the property of Algo Group as soon as they are replaced or refunded.
The express warranty provided above shall apply exclusively to the Purchaser, with the exclusion of any further liability of Algo Group, either in its quality as seller of the Products or as their manufacturer, which is not required by mandatory statutory provisions.
Unless otherwise agreed, Algo Group shall therefore not be liable for any direct or indirect damage arising to the Purchaser as a result of the supply or failure to supply of the Products, except in cases of wilful misconduct or gross negligence.
A clause limiting the liability of Algo Group as a manufacturer, substantially identical to that provided for herein, shall be included in all contractual relationships relating to the Products by the Purchaser, which shall assume full and exclusive responsibility for the further circulation of the Products supplied by Algo Group.
Algo Group shall not be liable for the functionality of Products made to the Purchaser's samples and/or specifications or drawings, or for any other defects, if they are attributable to faults in the samples or drawings supplied or in the instructions given by the Purchaser. For these specific products the Purchaser shall be liable in case the manufacture and supply thereof infringe any third-party rights and/or patents.
SOFTWARE, TECHNICAL-COMMERCIAL DOCUMENTATION AND INTELLECTUAL PROPERTY RIGHTS
If software and/or technical-commercial documentation of exclusive intellectual property of Algo Group are included in or delivered with a Product, the sale of the Product shall not entail the transfer to the Purchaser of any rights or title to the software and/or documentation, but, under the conditions contained herein, it shall only imply a non-exclusive and non-transferable license granted to the Purchaser and/or the end user of the Product to use the intellectual property rights of Algo Group being part of said software and/or documentation, in relation to and as included or delivered with the Products supplied by Algo Group.
The Purchaser shall not:
The Purchaser acknowledges that all technical, commercial and financial data provided to the Purchaser by Algo Group are strictly reserved and confidential. The Purchaser shall not disclose such confidential information to any third parties, nor shall it use such confidential information for purposes other than the entering into and performance of the Agreement. Algo Group therefore reserves the right to prosecute, even judicially, any violation of this obligation of confidentiality.
EXPORT AND IMPORT CONTROLS
If the delivery of the Products under the Agreement is subject to a licence to be obtained from a government or other governmental authorities for the export or import under applicable laws or regulations, Algo Group may suspend performance of its obligations and the corresponding Purchaser’s right shall be suspended until such licence is granted or for as long as the restriction and/or prohibition applies, and Algo Group may terminate the Agreement without being liable to the Purchaser. In addition, if a declaration by an end user is required, the Purchaser shall immediately inform Algo Group and provide it with such document upon written request; if an import licence is required, the Purchaser shall immediately inform Algo Group and provide it with such document as soon as possible. By accepting an offer from Algo Group, entering into an Agreement and/or accepting the Products, the Purchaser agrees not to treat the Products and/or related documentation in breach of any applicable export or import control laws or regulations.
NON-COMPLIANCE AND TERMINATION
Without prejudice to any rights or remedies available to Algo Group under the Agreement or the law and without prejudice to compensation for damages, which shall not give rise to liability of any kind on the part of Algo Group, Algo Group shall be entitled to terminate the Agreement or any part thereof with immediate effect pursuant to and by effect of Art. 1456 of Italian Civil Code, upon prior written notice to the Purchaser, in the event that:
In the event of one of the aforementioned events, any and all payments still to be settled by the Purchaser under the Agreement shall become payable.
In the event of termination of the Agreement, these General Terms and Conditions intended to have further effects shall continue to be effective.
In performing the services covered by the Agreement, Algo Group shall process the Purchaser's personal data in compliance with EU Regulation no. 679/2016 and Italian Legislative Decree no. 196 of 30 June 2003 (Personal Data Protection Code), as subsequently amended and supplemented, for the purposes connected with the performance of the Agreement and for the fulfilment of any legal, tax, accounting or anti-money laundering obligations. The privacy notice is available at www.algogroup.net.
In particular, the data collected are those identifying the Purchaser, as well as other information such as payment standing orders, bank account details and commercial information, collected from the Data Subject or from public registers, lists, deeds or documents available to anyone. The provision of such data is necessary for the performance of the Agreement.
The aforementioned data shall be collected, recorded, reordered, stored and managed by Algo Group through appropriate manual and computer processing operations suitable for the exercise of rights and the fulfilment of obligations under the Agreement. In any case, data shall be processed using appropriate tools so as to ensure security and confidentiality, through manual, computer and digital means in a manner strictly related to the purposes of the processing as indicated above. Data may be disclosed to persons in charge of making collections and payments, banks, credit transferors, public authorities or administrations for compliance with the law, group companies, sales and assistance networks, legal and technical consultants, and companies trading computer hardware and software. Algo Group shall adopt all the organisational, physical and logical measures necessary to reduce as much as possible the risks of destruction or loss, even accidental, unauthorised access, processing that is not authorised or does not comply with the purposes of data collection, based on the knowledge acquired and on technical progress. Furthermore, Algo Group shall comply with the minimum security measures provided for by EU Regulation no. 679/2016 and Italian Legislative Decree no. 196/2003, as subsequently amended and supplemented.
As to the aforementioned processing, the Purchaser is entitled to:
a) obtain confirmation of the existence of its data, even if not yet recorded;
b) obtain the communication in intelligible form of the data and their origin, as well as the logic and purpose which the processing is based on;
c) obtain the cancellation, transformation into anonymous form or blocking of data processed unlawfully and the updating, rectification or integration of data;
d) oppose, in whole or in part, to the data processing for legitimate reasons;
e) obtain data portability;
f) revoke consent to the personal data processing;
g) in case of breach of the regulations on privacy, lodge a complaint to the Supervisory Authority for the protection of personal data.
CODE OF ETHICS
The Purchaser declares that it is aware that Algo Group has adopted its own Code of Ethics containing the principles of business ethics and that it shall adhere and, pursuant to Art. 1381 of the Italian Civil Code, cause also its consultants, co-operators, employees and suppliers to adhere, to the ethical-behavioural principles that Algo Group has set out in its own Code of Ethics, which has been duly read by the Purchaser, as it declares.
APPLICABLE LAW AND JURISDICTION
Any and all offers, confirmations and Agreements shall be governed by Italian law.
The Purchaser and Algo Group shall attempt to settle any disputes arising out of or in connection with the Agreement through negotiations in good faith and in a spirit of mutual cooperation. Where it cannot be settled amicably, any dispute arising between the Parties shall be referred to the exclusive jurisdiction of the Court of Milan, Italy, without prejudice to Algo Group’s right to bring actions or proceedings against the Purchaser in the place where the latter has its domicile or residence.
The application of the Vienna Convention on Contracts for the International Sale of Goods of 11 April 1980 to the Agreement and related offers, Orders and Order confirmations is expressly excluded.
No provision contained in the Agreement or these General Terms and Conditions of Sale shall be construed as a limitation of Algo Group’s or the Purchaser’s right to seek remedies under the applicable law.
If these General Terms and Conditions are drawn up in more than one language, the Italian text shall prevail.
Pursuant to and by effect of Art. 1341, paragraph II, of Italian Civil Code, the Purchaser declares that it is aware of and expressly accepts the provisions contained in these General Terms and Conditions relating to:
1) Price and payment terms;
2) Delivery terms;
3) Force majeure;
4) Manufacturer's warranty and liability;
5) Software, technical-commercial documentation and intellectual property rights;
6) Export and import controls;
7) Non-compliance and termination;
8) Code of ethics;
9) Applicable law and jurisdiction.