1.        GENERAL

1.1.       These General Terms and Conditions of Sale (hereinafter “GTC”) shall apply to all offers issued by FRAP (hereinafter “Offer/s”) and contracts or purchase orders accepted in writing by FRAP (hereinafter collectively “Contract/s”) for the sale or supply of products (hereinafter jointly referred as “Product/s) by the FRAP company specified in the Offer or in the Contract (hereinafter and above “FRAP”) to a customer (hereinafter “Purchaser”).

1.2.       These GTC are an integral and essential part of the Offer and the Contracts.

1.3.       Notwithstanding  anything  to  the  contrary  contained in documents issued by the Purchaser (such as, but not limited to, request for quotations, bidding documents, purchase orders etc.) these GTC shall apply and have priority in case of conflict with any other terms and conditions unless expressly modified in writing and commonly agreed by FRAP and the Purchaser (hereinafter collectively the “Parties”).

2.        OFFER AND CHANGES

• Prices quoted are valid for the period stated in the Offer. If no period is stated prices will be valid for 30 (thirty) days from the date of the Offer.
• Any modification required by the Purchaser after the date of the Contract will be subject to written agreement between the Parties and will cause a price and scheduling adjustment.
• If, after the effective date of the Contract, changes to the Products become necessary due to new laws or regulations, the Parties will agree an equitable adjustment of the price.

3.        PRICE, ORDER AND PAYMENT

• Order is formally accepted by FRAP only by sending the Order Acceptance document. FRAP rejects any clause inserted in the order through which the order is automatically accepted by FRAP because of the silent consent or no reply after a certain number of days.
• Price for the Products (hereinafter the “Price”) is detailed in the Offer and/or in the Contract.
• FRAP may adjust the price stated to take account of any changes, including but not limited to: (i) any changes in the Product specification made at the request of the Customer and agreed by the Company; (ii) any delay caused by the Customer; (iii) any increase in raw materials or economic costs; (iv) any changes in volumes; or (v) any other changes in assumptions from the quoted levels.
• Price is not inclusive of any taxes and levies whatsoever, including withholding tax, which shall be paid, if any, by Purchaser in addition to the Price.
• Unless otherwise expressly agreed in writing between the Parties, the Price is quoted according to delivery Ex Works FRAP plant detailed in the Offer (INCOTERMS ® 2010) and is not inclusive of transport, special packaging, insurance, assembly and other possible additional costs.
• The Purchaser is responsible for assuring that the Carrier chosen for the collection of the Products will provide FRAP with the adequate proof of delivery (being EX1 for deliveries to Non-European Purchaser, as a proof of the exit of the Products from the territory of the European Union, and CMR for deliveries to European Purchaser, as a proof of the exit of the Products from the Italian territory and the final delivery to another Country within the European Union)
• Unless otherwise expressly agreed in writing between the Parties in the Contract, Purchaser shall pay the Price to FRAP within 30 days from communication of products readiness to be picked up.
• The payment shall be made in full, without set-off, counterclaim or withholding of any kind. In case of  late  payment  FRAP  shall be entitled to:
• obtain interest and bank expenses from  the  day  on  which payment was due. Interests shall be calculated according to applicable law without prejudice to FRAP right  to claim damages for any greater loss due to the delay in payment; and/or
• suspend, after having notified the Purchaser in writing, the delivery of the Products or the other activities under the Contract, if any, until he receives payment; and/or
• terminate the Contract by notice in writing to the Purchaser and claim compensation for the losses incurred.
• Require payment in advance for delivery
  • FRAP shall be entitled to assign to any third party the right to claim for any and all of the amounts due by Purchaser to FRAP under the Contract.
  • Single Order or Multiple Orders (according to shared planning) must be compliant with the Minimum Order Quantity (MOQ) defined in the Offer. FRAP will retain the right not to accept the order with a requested quantity which is lower than MOQ or to offer the product with higher price to compensate the difference.

4.        ACCEPTANCE TEST

• Acceptance test are not included in the offer . If required, Purchaser together with FRAP must define Test Specifications and relative planning, in order to be quoted by FRAP.
• If the Parties agree that the acceptance test will be carried out at the Purchaser premises, the Purchaser will ensure to FRAP personnel access to its premises.

5.        DELIVERY  AND CUSTOMER PLANNING CHANGES

• Delivery of the Products, including delivery of repaired Products, if any, will be Ex Works FRAP plant specified in the Offer and/or in the Contract (INCOTERMS ® 2010).
• Delivery dates are detailed in the Offer. Changes must be agreed in writing between the Parties.
• FRAP shall inform the Purchaser about the date when the Products will be ready for delivery. If the Purchaser fails to collect the Products within 7 (seven) days from such date, FRAP shall have the right to provide for the storage of the Products in its own or other warehouses, without any previous communication and without prejudice to FRAP right to claim compensation for any cost and loss borne by FRAP. If the Purchaser fails to take delivery of the Products within 30 (thirty) days from the date notified by FRAP, FRAP shall have the right to terminate the Contract and to recover all the losses and damages.
• In case of a delay attributable exclusively to FRAP in meeting the agreed delivery date, following a 30 (thirty) days grace period the Purchaser shall be entitled to liquidate damages in the amount of 0,2% (zero-point-two per cent) of the Price of the delayed portion of the Products per each full week of delay, not exceeding in total 5% (five per cent) of the Price. For the sake of clarity, no charges shall apply to delays caused, in all or in part, by force majeure or by Purchaser’s default or by Purchaser request(s) for changes.
• Liquidated damages under the above clause 5.4 are the exclusive remedies available to the Purchaser in case of delay by FRAP. All other claims against FRAP based on such delay shall be expressly excluded.
• The Purchaser has the obligation to check the completeness of the delivered material within 30 (thirty) days from material receipt. After this time frame FRAP will decline any claim related to:
• Packaging quality
• Missing parts/components
  • Where delivery schedule is based on a planning shared by the Purchaser, any change in that planning will be verified and accepted if FRAP is able to program its production accordingly.
  • Phase out product must be communicated by the Purchaser at least one year in advance, in order to allow FRAP to manage its stock and upcoming raw material purchase.
  • In any case, at the end of the serial production the Purchaser will buy finished/semi-finished/raw material that will remain in FRAP stock.

6.        RETENTION OF TITLE

• The Products shall remain the property of FRAP until full payment of the Price by the Purchaser to the extent that such retention of title is valid under the applicable law. The Purchaser shall at the request of FRAP assist FRAP in taking any necessary measures to protect FRAP title to the Product in Italy or in the Country where the Products will be stored or assembled.
• The Purchaser undertakes to inform FRAP about the place where the Products will be stored or assembled, as well as of any possible transfer of the Products taking place before the Purchaser has paid in full the Price.

7.        TECHNICAL DOCUMENTATION 

• FRAP Products will be supplied with standard technical documentation in Italian and/or English.
• Projects, drawings and, in general, any technical documentation concerning the Products shall remain the sole property of FRAP. Therefore the Purchaser shall be excluded either from using such documentation for any purpose other than as set forth above or from copying, transmitting or communicating it to any third party, without a prior written authorization by FRAP.

8.        INTELLECTUAL PROPERTY RIGHTS 

• All intellectual property rights and design rights held by FRAP shall remain the exclusive property of FRAP and all drawings, designs, parts and spare parts related to the Products or any part thereof shall not be reproduced or disclosed or allowed to be reproduced or disclosed by the Purchaser without FRAP prior written authorization.
• In case of further resale of the Products by the Purchaser, the Purchaser shall duly inform the purchasers about FRAP rights.

9.        WARRANTIES

• FRAP warrants good quality and proper operation of the Products for 24 months from the delivery date according to art. 5.1, provided that the Purchaser, in case of defects, sends written notice to FRAP describing the discovered defects within the mandatory term of 5 (five) days from the occurrence of the defect.
• FRAP warranty will consist in the repair or, according to FRAP sole discretion, the replacement of the defective Products or parts, at its own costs and expenses during the warranty period except as specified in art. 9.6.
• Warranty stated in this article 9 refers to defects resulting from events occurred before the delivery of the Products (i.e. faulty fabrication, use of defective components, etc.)..

Warranty shall not be applied in case of:

• non-compliance with FRAP operational and/or maintenance instructions;
• normal wear and tear;
• repair or modification to the Products not carried out by FRAP or carried out without FRAP prior consent;
• use of non-authorized spare or replacement components;
• improper use or use of the Products outside their scope as described in the technical specifications;
• non-compliance with FRAP storage, installation, operation or environmental requirements.
  • For repaired or replaced parts the warranty period will be 12 (twelve) months from the date of the repair or replacement. Such extension of warranty period shall be limited to the repaired or replaced part and not extended to the whole Products.
  • Once the defect has been notified, FRAP shall intervene directly or by mean of any third parties charged for that purpose and operate for the necessary repairs, replacements or modifications within a reasonable term. Any intervention by the Purchaser without previous written agreement with FRAP, will imply the automatic expiration of the warranty.
  • Whenever the notified defects are verified by FRAP, FRAP shall bear all costs and expenses deriving from the executed repair or replacement except for:
• costs of shipping of defective parts to FRAP (Turin) plant
• manpower for dismounting and reinstallation
• recall campaign costs

In case the Products are not located in the place notified according to article  6.2, increased costs and expenses, if any, shall be borne by the Purchaser.

• All other warranties not expressly included in these GTC are excluded to the fullest extent permitted by applicable law. FRAP specifically disclaims the implied  warranties  of merchantability and fitness for a particular purpose.
• For the sake of clarity, unless otherwise expressly agreed in writing between the Parties, FRAP is not aware of the use or application of the Products. Choice of the Products, configuration, assembly and development of the related application for which the Products are to be used are at the Purchaser’s exclusive economic and technical charge and at its exclusive liability. FRAP liability shall be excluded in case of problems arising from the applications mentioned above and/or in the environment where the Products are used.
• The warranty contained in this Section 9 shall not apply in respect of any Products: (i) supplied by FRAP as samples or prototypes for test or evaluation purposes (and in these circumstances FRAP’s only obligation shall be to endeavor to supply such Products in accordance with any specification, performance criteria or drawings agreed with the Customer); (ii) where any information, drawing, design, specification or instruction provided by the Customer is inaccurate or incorrect; (iii) where all or part of the Products are supplied to FRAP by a third party nominated by the Customer; or (iv) that have been subject to any unauthorized repair or replacement, modification or alteration.

10.     LIMITATION OF LIABILITY

• FRAP shall be liable for direct damages suffered by the Purchaser insofar they are proved to be attributable exclusively and directly to the non-performance or improper performance of FRAP obligations under the Contract provided that the total liability of FRAP under the Contract whether in tort or in contract shall not exceed 50% (fifty per cent) of the Price of the involved portion of the Contract.
• Any sort of liability for indirect, consequential or incidental damages, including but not limited to loss of production, loss of property or profit and cost of product recall, are expressly excluded and specifically disclaimed.

11.     CONFIDENTIALITY

• “Confidential Information” shall mean any know-how and other technical, business and other information, which either Party will disclose or have disclosed to the other Party.
• The Parties shall maintain in strict confidence all Confidential Information received from the other Party and shall keep secret and not disclose such Confidential Information, directly or indirectly, to any third party and shall itself use the Confidential Information solely for the purposes permitted by the Offer or the Contract.
• In maintaining the confidentiality of Confidential Information, the Parties shall exercise the same degree of care that it exercises with its own Confidential Information, and in no event less than a reasonable degree of care. The confidentiality obligations of the Parties shall be effective for 10 (ten) years from the date of the Offer or the Contract, whichever comes later.

12.     FORCE MAJEURE

• If any Party is prevented from performing any of its obligations under the Contract due to an event of force majeure, such Party’s contractual obligations affected by such an event under the Contract shall be suspended during the period of delay caused by the force majeure and shall be automatically extended, without penalty or liability, for a period equal to such suspension. All other obligations under the Contract and the time for performance thereof shall remain unaffected. Force majeure events mean any and all events which are beyond the control of the Parties, and which are unforeseen, unavoidable or insurmountable, and which prevent total or partial performance by either of the Parties. Such events shall include, for example, wars, riots, epidemic diseases, prolonged blackout, civil commotion, fire, earthquake, storm, typhoons, flood, failure of public utilities or common carriers, general strikes, lock-outs affecting the affected Party or its suppliers, or any other circumstances whatsoever whether of the kind herein enumerated or otherwise which cannot be foreseen, prevented or controlled.
• The prevented Party shall use reasonable endeavors to mitigate and circumvent the force majeure.
• Should the delay caused by any event of force majeure continue for more than 3 (three) months, the other Party may choose to either continue to perform its obligations under the Contract or to terminate this Contract.

13.     COMPLIANCE WITH EXPORT CONTROL REGULATIONS    

• Purchaser acknowledges that the Products could be subject to national and/or foreign statutory provisions and regulations for export controls, and may not be sold, transferred or used for purposes other than those agreed between the Parties. Purchaser declares it shall adhere to such provisions and regulations.
• The Purchaser declares that:
• Products may not in any way whatsoever directly or indirectly be used in connection with the design, production, storage or use of chemical, biological or nuclear weapons;
• Products may not in any way whatsoever directly or indirectly be used for military or nuclear applications;
• shall provide to FRAP an “End User Statement” in case FRAP has to require an export license.
  • Purchaser shall indemnify and hold harmless FRAP from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any noncompliance with export control regulations by the Purchaser, and the Purchaser shall compensate FRAP for all losses and expenses resulting thereof.
  • FRAP shall not be obligated to fulfill a Contract if such fulfillment is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions.

14       APPLICABLE LAW AND JURISDICTION

• These GTC and the Contract shall be governed by and construed under the laws of country where FRAP has its registered address.
• In the event of any dispute, controversy or claim arising out of or relating to the GTC or the Contract, or the breach, termination or invalidity hereof (hereinafter referred to as the “Dispute”), the Parties shall attempt in the first instance to resolve such Dispute through friendly consultations.
• If the settlement as per article 14.2 cannot be reached within a period of 30 (thirty) days, the Dispute shall be referred to the court of city where FRAP has its registered address.
• The “United Nations Convention on Contracts for the International Sale of Goods (CISG)” shall not apply and is expressly excluded.

15       SEVERABILITY

• If one or more provisions of the Contract should be or become invalid or unenforceable, the balance of the Contract shall remain in full force and In this event, the parties shall substitute the invalid or unenforceable provision by a valid one which as closely as possible achieves the economic purpose of the invalid or unenforceable provision.

16       GENERAL

• FRAP and the Customer are contracting solely on the basis of orders expressly agreed by FRAP, including the Contract Terms, which contain the entire understanding of the parties and is intended as a final expression of the Contract and a complete statement of the terms thereof, and may not be amended, modified or otherwise supplemented unless such amendments, modifications or supplements are in writing and signed by an authorized representative of FRAP.