- CONTRACT: these general terms and conditions apply to the contract of sale between MAKO SHARK SRL (hereinafter “MAKO SHARK”) and your company (hereinafter “Customer”) formed by the offer, from the order and the order confirmation with any special conditions and having as object the products indicated in the order confirmation (hereinafter “Products”). The general conditions are to be considered as exclusive discipline of the conditions of supply, unless otherwise specified in the order confirmation and in its particular conditions.
- SUPPLY: The supply is understood to include all the elements and parts of the Products as described in the order confirmation. Please note that MAKO SHARK will manufacture the Products on the basis of the requirements and/or technical specifications communicated by the Customer. In fact, the exclusive competence of the Customer is the analysis and validation of the production process, the definition of various production parameters, criteria and production specifications.
- TERMS OF DELIVERY: Any reference to commercial terms (Franco Fabbrica, FOB, CIF, and others) contained in the order confirmation, refers to the INCOTERMS of the International Chamber of Commerce, in the text in force at the time of conclusion of the contract, except where otherwise agreed in writing between the parties in the order confirmation. The transport to the destination, at the place indicated by the Customer, and the transport insurance are charged to the Customer, unless otherwise specified in the order confirmation. Unless otherwise indicated in the order confirmation, the delivery of the Products is subject to the fulfillment by the Customer of the following obligations:
– payment of any amount due by the Customer as a down payment;
– opening by the Customer of the documentary credit eventually agreed, within the terms referred to in the order confirmation;
– in case of changes in the supply agreed between the parties after the date of conclusion of the contract, pursuant to art. 4 MAKO SHARK may defer and/or extend the delivery periods provided for in the order confirmation, by simple fax or e-communicationmail, if delays by the Customer to the fulfillment of the aforementioned obligations or causes of force majeure as indicated in art. 10. 10.
In the event that the Customer does not comply with the obligation to take delivery of the products subject to the order confirmation within the agreed time limit, MAKO SHARK, upon written notice to the Customer and after 15 days from receipt of the same without the Customer has complied with said withdrawal, has the right to withdraw from the contract withholding: i) the sum paid as a deposit; or, ii) the sum paid as an interim payment in compensation. - CHANGES TO THE SUPPLY – ADDITIONS AND VARIATIONS SUBSEQUENT TO THE SUBSCRIPTION OF THE ORDER CONFIRMATION: Should the Buyer request modifications and/or additions to the order confirmation, MAKO SHARK reserves the right to accept or not such variants, which must therefore be agreed. For any modification or variation requested that is accepted by MAKO SHARK, the latter will inform the Customer of the new timing and additional costs necessary to perform the requested changes. Consequently, the delivery times of the Products will also be modified in this regard, with the fixing, by MAKO SHARK, of the new delivery terms. The price differences, the related new payment methods, any new contractual delivery terms, the new features and any new guarantees, must be agreed between the parties in writing before the additions and/or variants are made.
- INSTALLATION: If provided in the order confirmation, MAKO SHARK will install the Products according to the terms and conditions set out in the order confirmation. The installation activity of the Products will be carried out within the deadline specified in the order confirmation. If the installation is not carried out within this period for reasons not attributable to MAKO SHARK, the warranty period will start from the last day of the said period. The Customer must provide all the technical specifications, so that MAKO SHARK can perform the installation of the Products in the place agreed with the Customer and then provide the appropriate information. The Customer must also guarantee the technical assistance by one of its operators throughout the installation phase. In case of interruption of the installation operations due to error, failure, or incorrect supply of the specifications provided by the Customer or for reasons not attributable to the seller, MAKO SHARK will have the right to request the extension of the contractual terms. The installation is completed with the signature of the relative report by the Customer with the consequent effect of the warranty period referred to in art. 9. 9.
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 Customer, the latter will bear the higher costs incurred by MAKO SHARK for labor, travel expenses, costs of keeping materials and equipment and any additional costs resulting from the delay thus generated. Without prejudice to its full responsibility for the performance of the installation activities, MAKO SHARK SRL is immediately authorized to carry them out using third parties. - TERMS AND CONDITIONS OF PAYMENT – DELAYS: the prices of the supply and the payment conditions are those set out in the order confirmation. The prices shown are exclusive of VAT. In the event of late payment of the due dates, interest will be charged to the extent of the rate referred to in Legislative Decree No. 231/2002 and s.m.i. In the event of late payments, MAKO SHARK reserves the right to suspend the execution of the supply and/or to interrupt any type of intervention or assistance on the Products supplied, without the Customer being able to claim any damage for failure or delayed production. In the event that the Customer has chosen the method of payment of the balance by lease, the relevant contract must be sent to MAKO SHARK for approval and subscription no later than 30 days from the date of receipt of the order confirmation. In the event of non-compliance with this mandatory deadline, any obligation relating to the sale of the Products subject to the order confirmation shall remain at the sole expense of the Customer, including the obligation to pay in full the balance of the price, with consequent retention of the deposit as a down payment on the price. MAKO SHARK also reserves the right to terminate the contract with simple communication by fax and to withhold any deposit paid.
It is also understood that any complaints or disputes, even in court, will not entitle the Customer to suspend or otherwise delay payments related to the Products. More generally, no action or exception may be carried out or opposed by the Customer except after the full payment of the price of the Products for which such dispute or exception is intended to take place. The Customer will also not be entitled to make any deduction from the agreed price (e.g. in case of alleged defects), unless previously established in writing with MAKO SHARK. - TRANSFER AND RESERVATION OF PROPERTY’: the Products pass ownership upon delivery to the buyer. . In case of delayed payments, if provided in the order confirmation, the delivered Products remain the property of MAKO SHARK until the full payment of the price. MAKO SHARK is authorized to carry out, at the expense of the buyer, any formality necessary to make the reservation of property opposable to any third party.
- TESTING: the testing, if agreed between the parties, will concern the verification of the conformity of the Products to what is indicated in the order confirmation and to any subsequent changes agreed upon. In particular, technical testing will be carried out to verify the subsistence of the technical characteristics stated in the order confirmation. The testing will be carried out in accordance with the procedures established by MAKO SHARK and will take place at the MAKO SHARK plant, unless otherwise agreed. The scheduled testing date will be communicated to the Customer with sufficient notice to allow the Customer’s personnel to be present. The test must be considered carried out with a positive result and with consequent acceptance of the Products: a) if the Customer attends the test, in case of subscription of the test report; the Customer forfeits all right, warranty, action and exception relating to defects in conformity and defects of the Products, which he could have found by due diligence with the testing tests, if you do not detect these problems in the test report; b) if the Customer declares that he does not want to attend the test, or otherwise does not attend, with the communication sent by MAKO SHARK to the Customer of the test.
Once the test has been carried out successfully, or after the aforementioned period has elapsed without the Customer having requested the test, the supply will be deemed accepted by the Customer, with the consequent obligation to pay the agreed upon in the order confirmation. - WARRANTY: The warranty for defects, defects, non-conformity, lack of quality has a duration of twelve months from the date of delivery if the Customer, that is – if provided in the order confirmation – from the date of installation at the Customer of the Products as defined in art. 5, and shall be effective, in that period, provided that the Customer is in compliance with all his payment obligations.
During the warranty period, MAKO SHARK, at its discretion and after having ascertained the existence of the defect and/or non-conformity and/or lack of quality, undertakes: a) to repair free of charge at its factory in Dolzago (LC) the components of the machinery that have been found to be defective, or to proceed with such activities, also using third parties appointed by MAKO SHARK directly from the Customer; b) to proceed to their free replacement, with the supply of the components that will take place ex factory of MAKO SHARK and with the express commitment of the Customer to deliver the defective components. In any case, warranty interventions must be carried out exclusively by qualified personnel provided by MAKO SHARK.
Excluded from the warranty are all parts subject to wear, those of ordinary consumption and parts damaged as a result of improper use of the plant by the customer.
Repairs and/or replacements made during the warranty period do not extend the warranty period, so the new warranty period will only cover the replacement part. MAKO SHARK shall not be liable for any lack of conformity and defects caused by failure to comply with the rules set out in the instruction manual, misuse or treatment of the Products or defects resulting from modifications or repairs carried out by the Customer, without the prior written consent of MAKO SHARK. The Customer, under penalty of forfeiture, must report the lack of conformity or defect of the Products to MAKO SHARK specifying in detail in writing the nature, within fifteen days from the date of delivery and/ or the date of installation (if applicable) or, for so-called “occult” defects, from the date of discovery. The Customer forfeits the warranty, if he does not allow MAKO SHARK to carry out the necessary checks or if, having MAKO SHARK made a request for the return of the defective piece at his own expense, he fails to return this piece within the deadline of the request. - UNFORESEEN CIRCUMSTANCES AND FORCE MAJEURE: will not be liable for default of any contractual obligation or for delays in performance caused or resulting from: pandemic and/or epidemic event, earthquake, fire, flood, invasion, insurrection, revolt, order of civil or military authorities, state of alarm, mobilization, blockade, war (also in States indirectly interested in the Supply), strike, labor unrest, occupation of establishments, lock down, embargo, interruption of all kinds of freight transport, and in any case any circumstance that is outside the control of MAKO SHARK, even if not expressly listed here. The delivery period remains suspended for the entire period of time in which one of the above causes delays the performance of the Contract.
MAKO SHARK has the right to terminate the contractual relationship with the Customer in case of duration, for more than 30 days, from the event of force majeure/ accident. - CONFIDENTIALITY AND INTELLECTUAL PROPERTY: The Customer undertakes to maintain and protect the confidentiality of the Confidential Information of MAKO SHARK of which he has knowledge: by way of example, technical data, processes, formulas, know-how (defined as the set of technical and commercial information of MAKO SHARK), research and development of MAKO SHARK products, business activities, drawings, technical specifications, software and their improvements. In addition, the Customer may not modify the MAKO SHARK trademark, the labels and logos found on the Products or reproduce, use, exploit in any way the MAKO SHARK trademark and/or any other intellectual property rights of MAKO SHARK on the Products and their components and/or accessories, including the software supplied with the Products and its source code.
- APPLICABLE LAW AND SETTLEMENT OF DISPUTES: the interpretation, validity and execution of these General Conditions, the Special Conditions referred to in the Order Confirmation, and the entire contractual relationship between MAKO SHARK and the Customer are governed, exclusively, by Italian law. For any dispute arising from the contract or related to it, the court of Lecco will be exclusively competent.
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