1. CONTRACTING PARTIES AND AGREEMENTS
AxxonOil SRL, a company incorporated and registered in Italy, is the Seller. The Seller provides petroleum chemicals (such as lubricants and greases) as well as other related products (the “Products”). The catalogue of Products offered by the Seller and detailed pricing are available on request.
When the Buyer sends the Seller a purchase order, the Seller issues a Proforma Invoice (PR) or an Order Confirmation (OC). When the Buyer accepts the Proforma Invoice or the Order Confirmation issued by the Seller, both enter into a Sale Agreement (the “Sale Agreement”) which is governed by these General Terms and Conditions of Sale (the “GTC”).
These GTC, completed by the Proforma Invoice or the Order Confirmation constitute the complete and exclusive agreement between the parties and supersede any prior agreements relating to the Products sold hereunder.
No terms, conditions, prior course of dealings, course of performance, usage of trade, understandings, purchase order or agreements purporting to amend, vary, waive, supplement or explain any provision of these GTC shall be effective unless otherwise specifically agreed to in writing by the parties.
2. ORDERS AND CONCLUSION OF THE SALE AGREEMENT
2.1 The Seller shall send a Proforma Invoice or an Order Confirmation to the Buyer showing the Products types or names, quantities and prices, as well as terms of delivery or shipment. The Sale agreement is deemed to have been concluded upon the Buyer sending the confirmation of the Proforma Invoice or Order Confirmation to the Seller by e-mail or by phone.
It is also agreed and accepted that Products that have been delivered will not be taken back, refunded, or exchanged (no returns) except in the event of non-compliance of the Product with its specific use. In such event, the Buyer may introduce a claim to the Seller based on the Certificate of Analysis (COA) that is issued within 10 (ten) working days of the receipt of the Products by the Buyer. The Seller releases the COA to the Buyer at his request.
The Parties may agree on a refund or an exchange of Products.
The Seller shall issue the Invoice upon shipment date.
2.2 The Seller may supply an excess or deficiency of the Products of up to 5% of the weight or volume ordered. If the Products are sold in bulk, the Buyer shall pay for the actual quantity supplied. Only differences in net weight or volume in excess of 5% may be subject to quantity claims.
The Seller shall not be responsible for measuring, sampling and/or testing the Products. Quantity and quality of the Products are based on the Transport documents and on COA issued at the loading location. The results of such measurement, sampling and testing shall be treated, in the absence of fraud or obvious mistake, as conclusive and binding as to the quantity and quality of the Products loaded. Claims as to shortage in quantity or defects in quality shall be made by written notice from Buyer to Seller within ten (10) business days after the delivery of the Products or shall be deemed to have been waived. Buyer shall attach to its claim adequate supporting evidence.
2.3 Any sales agreement shall not be assigned in whole or in part by either party without the written consent of the other party, except that Seller may, upon written notice to the Buyer, assign its obligation hereto to any subsidiary of or affiliate of the Seller.
2.4 No amendment to any sales agreement shall be of any force or effect unless agreed in writing and signed by the parties.
The Price of the Products (the “Price” or “Sale Price”) shall be the price on the Proforma Invoice or Order Confirmation sent to the Buyer. The Seller has the right to adjust such prices at any time pursuant to the variation of shipment costs and or variation of Taxes applicable to any sale of the Products. In the event of a variation of price by the Seller, the Buyer shall have the right to the cancel the order or to reduce the quantity ordered prior to shipment.
Any tax, excise or governmental charge imposed upon the value added to the production, sale, storage, use or transportation of any Product sold hereunder, shall be paid by the Buyer to the Seller in addition to the Price. The Buyer shall provide the Seller, on request, with properly completed exemption certificates for any tax from which Buyer claims exemption.
Terms of payment are defined in the Proforma Invoice or Order Confirmation issued by the Seller.
Unless otherwise agreed in writing, payments by the Buyer shall be made in advance, on the acceptance date of the Proforma Invoice or Order Confirmation by the Buyer.
All bank charges or expenses related to the payment of the invoice shall be for the Buyer’s account.
The Seller reserves the right to withhold the shipment in case of Buyer’s (a) late payment; (b) non-payment; or (c) failure to provide reasonable assurance of payment upon Seller’s request.
Any invoice that is not paid in accordance with the payment terms shall be accrued of a penalty of 5% per annum of the outstanding balance of the invoice calculated on a daily basis until full settlement.
In addition, the Buyer shall be responsible for any costs supported by the Seller to collect the unpaid amount due, equal to a lump sum of 10% of the outstanding amount inclusive of accrued interest. In the event the Buyer fails to make timely payments of any monies due and owed to the Seller, the Seller may set off, withhold or recoup any payments due to the Buyer under this Sales Agreement or any other agreement between the parties, without any prior notification to the Buyer.
6. TITLE AND RISK OF LOSS
Unless otherwise specifically agreed in writing by the parties, title and risk of loss shall pass to the Buyer upon delivery to the carrier at the Seller’s plant or warehouse. Products shall be shipped as agreed between the Seller and the Buyer. Export/import freight terms shall be governed by International Chamber of Commerce Incoterms 2010.
7. LIMITED WARRANTY
7.1 There is no warranty, representation or condition of any kind, express or implied (including no warranty of fitness for a particular use with respect to the Products, whether used singly or in combination with other substances or in any process), except that the material shall be of the quality specified on the Proforma Invoice or the Order Confirmation, and no warranty shall be implied by law. Except as otherwise provided hereto, quality shall mean that the Products are in accordance with Seller’s specifications in force at the time of acceptance of the Proforma Invoice or the Order Confirmation by the Buyer or such other specifications expressly made as part of these GTC.
Final determination of the suitability of the Products for the use contemplated by the Buyer is the sole responsibility of the Buyer, and the Seller shall not have any responsibility in connection with such suitability. No suggestion for use is intended as, and nothing herein shall be construed as a recommendation to infringe any existing patent or to violate any federal, state or local law or regulation.
7.2 Notwithstanding the above, the Seller’s total liability to the Buyer for any and all claims, losses or damages arising out of any cause whatsoever, whether based in contract, negligence or other tort, strict liability, patent infringement, breach of warranty or otherwise, shall in no event exceed the Sale Price of the Products from which such cause arose. In no event shall the Seller be liable for special, incidental, punitive, consequential or exemplary damages, including, without limitation, loss of revenue or profit. Neither the Seller nor any of its affiliates shall be liable to the Buyer, by way of contribution, indemnity or otherwise, for any part of any loss, damage, or injury to persons or property resulting from Buyer’s handling, storage, transportation, resale, use or disposal of Products, except to the extent that such loss, damage or injury is caused by the Seller’s breach of its warranty as specified in Section 5 above and is within the limit on damages as set forth in this Section 7.
7.3 The Seller shall not be liable to the Buyer for any delay or failure to perform their obligations hereto caused by events beyond the Seller’s or its affiliates’ reasonable control, including without limitation, acts of God, war, pandemic crisis, vandalism, sabotage, accidents, explosions, tires, floods, strikes, labour disputes, mechanical breakdown, embargoes or other import or export restrictions, shortage of or inability to obtain energy, shortage of suitable parts, material, equipment, labour or transportation, acts of subcontractors, interruption of utility services or acts of any unit of government or governmental agency.
7.4 In the event either Party suspends or ceases the operation of any producing or consuming facility because the operation and/or the Products fail to comply with, or become uneconomical by virtue of compliance with, any applicable governmental law, regulation, ordinance, standard, order or decree relating to pollution, ecology, environment, health or safety, either party shall have the right, in the case of suspension, to suspend, or, in the case of cessation, to terminate this Sale Agreement without any liability upon fifteen (15) days’ prior written notice to the other party.
8.1 The Buyer warrants that it will not resell the Products or any technical information to any third party individual or legal entity, or to any country subject to sanctions and/or blockades of the United States and/or the European Union.
8.2 Any sales agreement shall be construed and enforced under the laws of Italy. Any dispute resulting from any sales agreements shall be brought exclusively before the Courts of Rome (Italy), to the exclusion of any other jurisdiction.
8.3 If the financial condition of the Buyer becomes impaired or unsatisfactory to the Seller, advance payment shall be given by the Buyer upon demand of the Seller and shipments may be withheld until such payment is received. The Buyer agrees to pay collection costs incurred by the Seller including attorney’s Fees.
8.4 Any decision by the Seller to continue performance of this Sale Agreement despite any breach or default by the Buyer shall not constitute or be interpreted as a waiver of such default or breach. No express waiver of any breach of these GTC shall be construed as a waiver of any further breach.
8.5 If any provision in these GTC is cancelled or declared null and void, invalid, or ineffective by any judicial authority, said cancellation and the status of being null and void, invalid, or ineffective shall not affect the other provisions in these GTC, which remain in force to the fullest extent possible.
9. TIME OF APPLICATION AND CHANGES TO GTC
The GTC applicable to any sale are those prevailing at the time of the Proforma Invoice or the Order Confirmation. The Seller reserves the right to change these GTC at any time, without prior notice. These GTC are available at any time on the Seller’s website www.axxonoil.com. It is the responsibility of the Buyer to review the GTC upon each Sale Agreement. Any purchase order issued by the Buyer implies acceptance by the Buyer of these GTC.
Last update: 15/07/2020.