General sales terms and conditions

1 . EFFECTIVENESS AND SCOPE OF APPLICATION.

1. 1. These general conditions of sale govern all sales contracts concerning the supply of machinery for horticulture (hereinafter the “Machine / s”) between the company DA ROS Srl (hereinafter “DA ROS” or ” Seller “) and its buyer (hereinafter the” Buyer “), unless otherwise agreed in writing.

1. 1. The term “Machine (s)” refers to machinery for horticulture, as well as to lines of machines and plants manufactured and / or marketed by the Seller.

1. 1. These general conditions form an integral and substantial part of every offer, order or purchase order confirmation of the Machines, and prevail over any different printed or handwritten clause sent by the Buyer. The general conditions of sale applicable to each sales contract between the Seller and the Buyer (hereinafter the “Contract”) are those in force on the date of the offer and will remain effective until they are expressly revoked by the Seller or replaced by new general conditions.

1. 1. Any conflicting or divergent purchase conditions or other limitations set by the Buyer will not apply, unless, in the particular case, the Seller has expressly accepted them in writing.

2. FORMATION OF THE CONTRACT

2.1 The offers of the Seller are not binding as they are to be understood as mere estimates. It is therefore understood that, after 30 days from the date of the offer without DA ROS having received formal acceptance by the Buyer, the offer automatically ceases, as well as any commitment of the Seller to the Buyer.

2.2 The Contract between the Seller and the Purchaser must be considered perfected when DA ROS sends the Purchaser the order confirmation for the supply.

3. ELEMENTS OF THE SUPPLY – TECHNICAL DOCUMENTATION

3.1 The supply of the specific Machine is understood to include all the elements and parts described in the DA ROS offer. All masonry work, fixing and connection to utilities and services are excluded from the supply – that is the preparation and connection, up to the machine, of the service networks, such as: a) power supply; b) pneumatic network; c) extraction systems; d) the material for starting the machine; e) auxiliary tools such as forklift trucks, platforms for operations at height and, more generally, anything not expressly mentioned or expressly excluded in the offer.

3.2. The weights, dimensions, capacities, prices, yields and other data contained in catalogs, prospectuses, circulars, advertisements, illustrations and price lists are only approximate. These data have no binding value except to the extent that they are expressly referred to or contained in the DA ROS offer.

3.3 All the Machines are made by the Seller in compliance with the relevant essential safety and health protection requirements provided for by the so-called “Machinery Directive” (EC Directive No. 2006/42, as implemented in Italy by Legislative Decree 27 January 2010, No. 17). Consequently, undertaking to comply with the various obligations provided for by the aforementioned Directive, the Seller will draw up the EC declaration of conformity and provide the CE marking, together with the instruction manual for the use and maintenance of the Machines, in Italian and / or English.  Any requests for translations in different languages will be paid by the Buyer.

The electrical equipment is made for standard European networks and specified in the machine catalog. Upon request, adaptations to local needs and regulations will be assessed and agreed in advance between the parties and the higher costs will be charged to the Buyer.

4. DELIVERY – SUSPENSION OF TERMS

4.1 Unless otherwise agreed in writing between the parties, the delivery of the Machines takes place ex factory of DA ROS in Sarmede, Treviso, (Italy) Via Palù 19 / b. term. When the term of return of the Machine is not clear from the Contract or if such term is omitted, reference will be made to the INCOTERMS of the International Chamber of Commerce closest to the return conditions, even summarily agreed, and if there is uncertainty between two or more INCOTERMS, equally compatible with the Contract, the one that involves a smaller extent of risks and costs for the Seller will apply, with any exceptions provided for in writing by the parties.

If, according to the Contract, the transport must be handled by the Purchaser, the latter will ensure that the courier / forwarder in charge of the transport makes available and delivers to the Seller, at the request of the same, all the documentation that may prove necessary for the latter for customs, tax purposes or for payments by documentary credit or against documents.

1. 1. Unless otherwise stated, the delivery terms are expressed in working days and are considered purely indicative and not essential; any delays in delivery will therefore not give the right to indemnity and / or compensation of any kind. The Seller will notify the Buyer of the effective date of commencement of delivery or of goods ready with notice of at least 15 days.

1. 1. The delivery terms will be automatically extended (for a period at least corresponding to the ascertained delay), or will have to be redefined between the parties, after the conclusion of the Contract, in the following cases:

1. delayed payment by the Buyer of the share of the price possibly due as a down payment;
2. events of force majeure, pursuant to clause 10;
3. changes to the supply agreed between the parties after the acceptance of the offer by the Buyer.

1. 1. The delivery and installation terms may also be suspended if it is not possible for the Seller, due to a fact attributable to the Buyer, to initiate any installation activities provided for in the following clause 5) or if the Buyer, after 10 (ten) days from the date of communication of “goods ready notice”, declares himself unable to receive the Machines object of the supply or fails to take them over. The suspension of the terms, if due to a fact attributable to the Buyer, will not however preclude the Seller from issuing the invoice provided for according to the delivery program and demand the relative payment, without resulting in any suspension of the payment terms. DA ROS may also charge the Purchaser for the higher costs incurred for the storage of the Machines, without prejudice to any major damage, it being understood that any risk for loss or damage relating to what is in stock must be understood as immediately transferred to the Purchaser.

5. TESTING – INSTALLATION – COMMISSIONING

5.1 Before delivery, all the Machines will be subjected to testing at the Seller’s premises, unless the Seller prefers to designate another location. The testing at the Seller will concern the verification of the conformity of the Machine with the specifications agreed in the offer signed by the Buyer, and will take place according to the methods eventually established by the parties; failing that, testing will be held according to the methods usually adopted by the Seller. The expected date for testing will be communicated to the Buyer with sufficient notice to allow the Buyer’s staff to be present. The Purchaser may attend the testing at his own expense.

5.2 The test must be considered carried out with a positive outcome: a) if the Purchaser attends the test, in the event of a non-specific written complaint, in the test report, of any conformity defects of the Machine, during or immediately after the conclusion of the test ; or b) if the Purchaser declares that he does not want to attend the test, or in any case does not attend, if any lack of conformity of the Machine does not result from the test report drawn up by the Seller.

When the test has a negative result, the Seller will remedy the conformity defects resulting from the test report. If the changes introduced to make the Machine compliant are relevant, the test may be repeated, if the Seller allows it, and will be held in the same manner and consequences as the first. The delivery terms are understood to be extended by a period equal to that necessary to make the changes, or, in the case of a second test, by a period equal to that between the first and second testing. Any second test will only have as its object the verification of the specific lack of conformity of the Machine resulting from the report of the first test; In any case, the Purchaser will not have the right to contest the existence of defects other than the object of the test, just indicated.

The same rules set out above will be applied to any tests or verifications after the second test, but with the more restricted object that results from the previous test report.

5.3 When this has been expressly agreed in writing between the parties, the Seller will proceed, under its own responsibility, with the installation and commissioning of the Machine at the Buyer’s or customer’s premises. The Purchaser must make known, always prior to the start of the installation activities, the name of a trusted technical contact person who will be asked to be present at all the various stages of installation of the Machine. The Purchaser must provide all the technical specifications, so that the Seller can install the Machine in the point indicated by the Purchaser, providing the appropriate detailed information for connection to the electricity, water, pneumatic and fume extraction mains. The Buyer must also check that the layout drawings of the Machine for its location, as provided by the Seller, are correct and that any civil works necessary for the location of the Machine correspond to the projects.

5.4 The Purchaser is responsible for the correct preparation of the site where the machine will be installed. In particular, the Buyer must guarantee:

• the safety of the places where the installation activities will take place;
• that the lifting and handling means, as well as any additional equipment, as previously requested by the Seller, comply with the provisions in force regarding safety and accident prevention, thus being in the necessary conditions of efficiency, having been subjected to periodic maintenance and review;
• the preparation of rooms equipped with locks for the custody of the tools and clothing of the personnel appointed by the Seller in the immediate vicinity of the installation site.

It is also the Buyer’s responsibility to: (a) carry out all the activities prescribed by the applicable legislation on safety in the workplace and inform the Seller in writing of the relative results, also with regard to identifying the risks associated with any interference between processes, measures to be implemented to eliminate or minimize any such risks, as well as any costs necessary for this purpose, costs that will be paid by the Buyer ; and (b) make available to the Seller any information or document prescribed by the applicable legislation on safety in the workplace . All this, at the latest, at least within 30 (thirty) days before the start of the installation activities.

5.5 The installation activities will not be able to start in cases where the Purchaser: a) has not prepared, in good time and in any case no later than the deadline agreed between the parties, the site in an adequate manner for the purposes of installing the Machine; b) was not in compliance with the authorizations and / or administrative permits necessary for the installation itself; c) is in default of the payment obligations to be honored within the deadline for starting the installation activities; d) is found to be in breach of the obligations placed on him in terms of safety. It is understood that if the installation activities do not start and / or stop and / or continue beyond the agreed terms for reasons attributable to the Buyer, the higher costs incurred by the Seller for labor, travel expenses will be paid by the latter, costs of custody of materials and equipment and any further costs resulting from the delay thus generated. However, the hypothesis envisaged here will not preclude the Seller from issuing the invoice provided for according to the delivery program and from demanding the relative payment.

Without prejudice to its responsibility for carrying out the installation activities, the Seller is immediately authorized to perform them also using third-party companies.

5.6 Upon completion of the installation, the machine will be put into operation, also giving proof of this with a specific report drawn up in writing. The commissioning at the Buyer will concern, in particular:

a) verification of the conformity of the Machine with the offer signed by the Purchaser and with any subsequent agreed changes;

b) technical operating tests designed to verify the declared performances and technical characteristics in the context of real operating conditions;

c) the delivery of the EC declarations of conformity and the instruction manuals for the use and maintenance of the Machine.

5.7 The start-up of the Machine must be considered successful, giving the Seller the consequent right to demand payment of the amount due, in the event of a non-specific written dispute by the Buyer, in the commissioning report, of any conformity defects of the Machine or defects in the execution of the installation, during or immediately after the conclusion of commissioning.

In the event of a negative outcome of the commissioning, the Seller will undertake to make the necessary changes and to plan with the Purchaser a new date of commissioning of the Machine. The terms for carrying out the commissioning of the Machine will be understood as extended by a period equal to that necessary to make the necessary changes without, however, the provision of additional costs to be paid by the Purchaser or the right of the latter to claim indemnity and / or compensation for this extension.

In any case, in the absence of particularly serious defects, or in any case not such as to prevent the Buyer from using the Machine with the agreed quality and productivity, the Seller will also have the right to demand payment of the amount due.

5.8 If the Purchaser does not allow the start-up of the Machine to be carried out, or in any case if these operations do not take place within 30 days of delivery to the Purchaser (or due to the Purchaser’s delay in organizing the commissioning promptly, or because the necessary connections have not been adequately made and anything else necessary for commissioning has been prepared, or for any other reason not attributable to a serious breach by the Seller), the Seller will communicate to the Buyer a reasonable deadline so that it can necessary arrangements for carrying out commissioning; this deadline will have the value of formal notice, therefore exceeding it will result in the Machine being deemed accepted by the Purchaser without reservations as if it had been tested, and the Seller will be freed to all effects from charges, commitments and responsibilities regarding as provided in this clause 5.

5.9 The Purchaser loses all rights, warranties, actions and exceptions relating to defects in conformity and defects of the Machine which, according to diligence, could have been found with the acceptance tests or with its commissioning, unless they have been specifically contested in writing in the test report or in other communication no later than 15 (fifteen) calendar days from testing or commissioning.

6. PRICES AND TERMS OF PAYMENT

6.1 The prices of the supply and the terms of payment are those established in the offer accepted by the Buyer. The prices indicated are ex works and net of VAT. They therefore do not include the transport, unpacking, positioning and storage of materials in the eventual waiting for commissioning (if any).

6.2 In case of late payment with respect to the single agreed term, the Buyer will be required to pay the Seller an interest on arrears equal to that indicated by Legislative Decree 9 October 2002 n. 231 (i.e. the interest rate applied by the European Central Bank to its main refinancing operations, increased by eight percentage points). The delay in payments will also give the Seller the right to suspend any subsequent supplies (or any other services also referable to further contractual agreements) and / or suspend their execution until adequate payment guarantees are obtained.

6.3 It is understood that any complaints or disputes, even in court, will not entitle the Purchaser to suspend or in any case delay the payments relating to the disputed Machine, nor of any other supplies. More generally, no action or exception may be carried out or opposed by the Purchaser unless after the full payment of the price of the Machine for which this objection or exception is intended to be carried out. Furthermore, the Purchaser will not be authorized to make any deductions from the agreed price (e.g. in the case of alleged defects of the Machine), unless previously established in writing with the Seller.

6.4 Finally, without prejudice to the foregoing in clause 4, in the event of ascertained difficulty in payments by the Buyer or if the guarantees of solvency or, more generally, its economic capacity are lacking or decreasing, DA ROS will be entitled suspend or terminate the Agreement, including assistance activities, or to subordinate the delivery of the Machine to the provision of adequate payment guarantees.

7. TRANSFER AND RESERVE OF OWNERSHIP

1. 1. Ownership of the Machine passes to the Buyer with its delivery.

1. 1. In the case of sale in installments and / or with deferred payments, the same must be considered carried out with reservation of ownership in favor of the Seller pursuant to Article 1523 of the Italian Civil Code, up to the full payment of the agreed price, in addition to ancillary charges, without also excluding the right of privilege pursuant to Article 2762 of the Italian Civil Code. The Seller is also authorized to carry out, at the Buyer’s expense, any formalities necessary to make the retention of title enforceable against third parties. From the delivery of the Machine, the Purchaser is responsible for all risks, dangers and consequences deriving from any damage, theft, fire, fortuitous events or force majeure and the Purchaser, despite their occurrence, must comply with all obligations and agreed payment methods. It will be up to the Purchaser to give adequate information to the Seller about any eventual fact, either his own or that of third parties, which may result in the loss or damage of the Machine.

1. 1. As long as the ownership has not passed, the Purchaser may not transfer and / or modify, even in part, the Machine, or move it to another place of installation and use, except with the express written consent of the Seller. It will also be the Buyer’s responsibility to guarantee the perfect state of maintenance of the Machine, assuming the costs of ordinary and extraordinary maintenance; the Buyer acknowledges the Seller the right to check the state of conservation and maintenance of the Machine until full payment.

1. 1. Furthermore, it is understood that, in the event that the Machine is subject to precautionary or executive measures to the actions of the Buyer’s creditors, it remains his obligation to have the proceeding judicial authorities ascertain, by showing the Contract and all the documentation to it concerning, that the ownership of the Machine belongs to the Seller and, at the same time, to notify the latter so that it can take the most appropriate initiatives. Failure to pay even a single installment within the agreed terms, the amount of which exceeds the eighth part of the sale price, will entitle the Seller to consider the Contract terminated and to withhold , as a penalty pursuant to Article 1382 of the Italian Civil Code and always subject to compensation for greater damage, installments already collected; If the Seller does not wish to make use of the express termination clause, the Buyer may forfeit the benefit of the term, with the latter’s obligation to pay the full agreed price.

8. WARRANTY

1. 1. The machines supplied are guaranteed for a duration of 12 (twelve) months with effect from the start-up at the Buyer’s or at the latter’s customer, or, when this is not agreed between the parties, from the date of delivery of the Machine to the Buyer.

1. 1. This warranty covers only machine defects resulting from design errors, material or production defects attributable to the Seller.

1. 1. Without prejudice to the provisions of clause 5.9, defects must be reported specifying their nature in detail in writing within the period of 8 days from their discovery, under penalty of forfeiture. The warranty will involve the repair or replacement, at the Seller’s discretion, of the parts that may prove to be defective following a preliminary check to the intervention of the Seller’s appointee. Furthermore, it is up to the Seller to decide at its discretion whether the intervention is carried out ex works of the Seller or directly at the Buyer’s.

1. 1. The warranty will not apply if the flaws or defects are a consequence of inexperience, negligence and / or improper or abnormal use of the Machine, in particular if due to failure to comply with the provisions concerning the correct use and maintenance of the same, as resulting from the specific manual delivered by the Seller; bad maintenance and / or maintenance performed by unauthorized personnel; tampering or modifications not expressly authorized by the Seller; normal wear or consumption of materials or components; causes of force majeure. If the defect results from one of the cases provided for above, the Seller will not be required to carry out any intervention to eliminate the defect itself except following a specific assignment by the Buyer, who will in any case be responsible for all related costs.

1. 1. Furthermore, the guarantee will not be effective if the Purchaser is in default with respect to the payment of the supply or the payment of other ancillary services performed by the Seller or by third-party companies authorized by the latter.

1. 1. The Seller declines all responsibility for any damage that may, directly or indirectly, derive to people or things as a result of failure to comply with all the provisions indicated in the specific manual and concerning in particular the warnings on use and maintenance.

1. 1. This warranty absorbs and replaces the legal warranties for defects and faults, and excludes any other liability of the Seller in any case originating from the Machine supplied. In particular, the operation of this guarantee will not entitle the Purchaser to claim from the Seller any compensation and / or compensation for damages, direct or indirect, of any nature deriving from the lack of or limited use of the Machines, the system and / or of the individual machinery of which it was composed.

9. INTELLECTUAL PROPERTY

9.1 Any drawing, document, technical information or software relating to the Machine, or parts thereof, and acquired by the Purchaser before or after the conclusion of the Contract, remains the exclusive property of the Seller, also as regards its intellectual property rights, and the Buyer will not be able to claim any rights over them. Therefore, such drawings, documents, technical information or software, as they could also contain, pursuant to and for the purposes of Article 98 of Legislative Decree 10 February 2005, n.30, trade secrets referable to the Seller, cannot be used by the Purchaser for extra-contractual purposes, and in any case, they cannot be copied, reproduced, transmitted or communicated to third parties, except as a result of express written consent of the Seller.

9.2 The Purchaser is also required not to carry out any so-called activity on the Machine, directly or indirectly through third parties. Reverse engineering, being in this sense expressly forbidden to the Purchaser any unauthorized tampering with the Machine or any other activity aimed at acquiring technical information relating to it that is not already contained in the maintenance and use manuals supplied with the Machine. The Seller must always be put in a position by the Purchaser to ascertain that the latter has complied with the commitment set out herein, even with inspections by its representatives in the plant where the Machine is put into operation or with remote access to the IT system of the same and aimed at ascertaining any tampering.

10. FORCE MAJEURE

10.1 Without any prejudice to the Purchaser’s payment obligations, which must in any case be performed at the contractually established deadlines, no fact constituting a breach of these general conditions and / or individual Contracts will give rise to contractual liability or compensation for any damages if it depends on the occurrence of force majeure or fortuitous events (such as, but not limited to, generalized social conflicts, in particular boycott, strike and lockout, white strike, occupation of factories and buildings, natural disasters or extreme natural events, epidemic , pandemics, embargoes, restrictive export measures, armed conflicts, wars [declared or not], state measures, or any other national or supranational authority, interference by military and civil authorities, terrorist acts, riots and civil unrest, sabotage, acts of piracy, including IT [computer-cyber-attack], fires even if malicious, destruction of equipment, prolonged suspension of transport, telecommunications or energy and in any other case of force majeure or unforeseeable circumstances provided for by legal regulations in force), whose action is carried out in such a way as to go beyond the limits of predictability and control reasonably attributable to the parties, and without the culpable conduct of the party unable to perform. In any case, any delay or non-fulfillment due to delays in deliveries from suppliers and / or difficulties in procuring raw materials and / or components is not considered to be attributable to the Seller.

10.2 The party unable to fulfill due to force majeure or a fortuitous event must notify the other party within 3 (three) days from the occurrence of the event that prevents the fulfillment of these general conditions and / or the individual Contracts.

10.3 In the event that a force majeure or unforeseeable event persists for more than 60 (sixty) days that prevents the fulfillment of these general conditions and / or individual Contracts, each party will have the right to withdraw from the existing contractual relationship, by sending to the other party a specific communication for this purpose by registered letter with acknowledgment of receipt or PEC or international courier.

11. PROCESSING OF PERSONAL DATA

1. 1. In the execution of the contractual relationship, personal and contact data (personal data, company e-mails, company phones, smartphones for work use, etc.) of administrators, employees and collaborators may be mutually communicated, or in any case made available to the respective contacts who, according to the tasks and assignments conferred, manage the Contract and / or execute it.

Therefore, both parties will process such personal data to the extent that they are strictly necessary for the execution of all aspects of the Agreement.

The personal data will be kept until the completion of the reciprocal services covered by the Contract and subsequently due to the statute of limitations envisaged for the deeds and documents to which the entrepreneur is subject.

The individual employee or collaborator can exercise all the rights listed in articles 15 to 21 of EU Regulation 2016/679, without prejudice, however, to the limits deriving from the legitimate interest of the employer.

12. APPLICABLE LAW AND SETTLEMENT OF DISPUTES

1. 1. The interpretation, validity and execution of these general conditions of sale, of the supply offer and / or of the Contract, are governed exclusively by Italian law.
   2. For any dispute deriving from these general conditions and / or from the Contract or connected to it, the court of Treviso (Italy) will be exclusively competent; however, notwithstanding the above, the Seller will always have the right to appeal to the Buyer’s court.
   3. If the Seller prevails in any legal action, before any court or arbitration court, or other proceeding relating to these general conditions and / or the Contract, the Buyer will reimburse the Seller for the reasonable legal fees incurred by the latter, the legal costs, litigation costs and any other costs incurred by the Seller in relation to this proceeding.

13. EXPORT REGULATIONS AND RESTRICTIVE MEASURES

13.1 These general conditions, any offer, and / or any Contract are subject and subject to the fact that the Seller is able to supply and deliver the Machines in compliance with all applicable laws, including, by way of example, Italian, United States of America, the European Union, as well as any specific local regulations of each Member State of the European Union relating to the import and export of goods (so-called “Export Control Laws”).

13.2 The export and / or re-export of Machines and related technical information under an offer and / or Agreement may be subject to Export Control Laws and may require an export license or authorization. The Seller does not guarantee the issue of such licenses / authorizations or their continuation in force once they have been issued. Furthermore, in the event that the sale, resale or shipment of the Machine requires the approval or license of the country from which the Machine is shipped, the execution of an offer and / or the Contract by the Seller is subject to the granting such approvals and / or licenses.

13.3 Without incurring any liability, the Seller may a) terminate any Agreement if such authorization, approval and / or license is refused or if it is excessively burdensome to obtain such authorization, approval and / or license; or b) delay or suspend the shipment until such authorization, approval and / or license is granted, by giving written notice to the Buyer.

13.4 The Buyer agrees to cooperate with the Seller in obtaining and maintaining any license and to comply with all conditions which may be contained in any license.

1. 1. Following the Seller’s request, the Buyer must promptly provide the Seller with all the particular information regarding the final customer, the destination and the declared use of the Machines, as well as any existing restrictions on Export Control Laws.

1. 1. The Buyer declares that it will not export or re-export, directly or indirectly, any Machine (including related documentation) supplied by the Seller to any destination and / or any legal entity or person if such export or re -export violates the Export Control Laws.

1. 1. The Buyer undertakes the obligation to indemnify and hold the Seller harmless from any claim, complaint, proceeding, action, penalty, loss, cost or damage deriving from or related to any violation of the Export Control Laws by the Buyer, it being understood that the Buyer must compensate the Seller for all losses and costs incurred as a result of this.

14. FINAL PROVISIONS

14.1 The circumstance that the Seller does not assert the rights provided by the general conditions or by the individual sales contracts cannot be considered as acquiescence or renunciation of asserting the violated right or provision, nor will it preclude the possibility of subsequently asserting said rights or faculties, or any other right or faculty provided in your favor in these general conditions and / or in the Contract.

14.2 The parties expressly acknowledge that for no reason, not even for conclusive facts, the continuous and repeated sales of the Machines by the Seller to the Buyer will be able to confer an exclusivity on the Buyer or give rise to a relationship of concession of sale, distribution, agency or collaboration in any other capacity.

14.3 These general conditions are written in original in Italian and translated into English; in case of discrepancies, the authentic text is the one in Italian.

14.4 If, at any time, one or more contractual provisions provided for in these general conditions are invalid or null, this circumstance will not affect the validity of the other provisions which will remain valid and effective.