DOLPHIN PACK S.R.L., a company incorporated under Italian law, with its registered office at Via Volta 13, 37010 – Affi (VR), Italy, registered in the Verona Business Register under R.E.A. No.: VR 231630, Tax ID and VAT No. 02332040233, is a company specializing in the manufacture of packaging machines, particularly in the “foam technology” sector, including packaging machines.
These General Terms and Conditions of Sale (hereinafter “GTC”) are intended to uniformly govern the contractual relationships with third parties to whom DOLPHIN sells products and/or services (hereinafter “Purchaser(s)”).
These General Terms and Conditions of Sale apply in full to every order and to all of our sales, unless otherwise expressly agreed in writing by our Company. The submission or delivery of any purchase order by the Customer to our Company implies the Customer’s full and unconditional acceptance of our Company’s general terms and conditions of sale, even if the Customer has not signed them. These General Terms and Conditions are posted on our website (www.dolphinpack.it), and each Order Confirmation form includes instructions on how to download them. They are therefore deemed to be known to all Customers.
1.1. These General Terms and Conditions supersede any other commitment, contract, or agreement, whether written or oral, previously entered into between DOLPHIN and the Purchaser. Under no circumstances shall any general terms and conditions of any kind attached to orders and/or other documents sent by the Supplier or third parties be deemed applicable, unless expressly accepted in writing by DOLPHIN.
1.2. The General Terms and Conditions consist of the following attachments, in the order listed below:
i. The Order Confirmation (hereinafter: “Order Confirmation”)
ii. Pre-shipment Acceptance and Inspection Report (hereinafter: “Acceptance Report”);
iii. Rates for technical support and service calls from the Dolphin Pack Technical Service;
1.3. The Preamble constitutes an integral part of this Agreement and is inseparably linked to it.
2.1. The Seller agrees to design, engineer, manufacture, assemble, commission, and deliver the Machinery to the Buyer, on a turnkey basis, with the production capacity and the functional and technical characteristics described in the Technical Specifications, and to provide a list of recommended spare parts with their corresponding prices; if not specified in the Technical Specifications, these must be agreed upon with the Buyer in a separate agreement.
2.2. In connection with the sale of the Machinery, the Buyer agrees to pay the Offer Price as confirmed in the Order Confirmation (hereinafter: “Price”) as specified in Article 10 below.
3.1. The tests pertain to:
1. Functional testing of the equipment as required by the Contract prior to shipment = FAT (Factory Acceptance Test)
2. Functional testing of the equipment covered by the Contract at the customer’s facility = SAT (Site Acceptance Test).
3. Conducting tests on the machinery specified in the Contract at the customer’s facility in accordance with the production methods and quantities specifically requested by the customer = SPT (Site Performance Test).
Unless otherwise agreed, the FAT must be performed at the production site during normal working hours.
Unless otherwise agreed, the SAT must be performed at the location chosen by the Customer during normal business hours.
3.2. DOLPHIN shall notify the Buyer in writing of the FAT test in a timely manner to allow the Buyer to be represented at the tests. 15 days prior to the date set for the FAT, the Buyer must ship the samples (raw material, product, and plastic film) at its own expense to enable the Seller to perform the FAT. The FAT will be conducted in accordance with the FAT document to be agreed upon at the time of layout confirmation and based on the machine’s capacity as described in Annex 1. Upon completion of the tests, a FAT Acceptance Report will be prepared and signed by the Parties. If the Buyer decides not to participate, the FAT Acceptance Report will be sent to the Buyer for review and comments. If the Buyer does not provide any comments within 7 days of receiving the FAT Acceptance Report, the report will be deemed accurate.
If testing shows that the Machinery does not comply with the technical specifications agreed upon by the Parties, DOLPHIN will promptly remedy all deficiencies to ensure that the Machinery complies with the Contract and confirm the compliance previously agreed upon with the Buyer. At the Purchaser’s request, new tests will then be conducted, unless the deficiency is insignificant.
3.3. The SAT must be agreed upon by the Parties in a timely manner to allow DOLPHIN to organize the personnel and activities necessary for the intervention. In any case, unless an event or circumstance of “Force Majeure” occurs, the SAT must be completed no later than 10 days after the installation of the Machinery is completed at the location chosen by the Customer. If the Buyer is not available for the SAT within the 10-day period, the SAT shall be deemed to have been performed, with all the contractual consequences provided for in the contract. Commissioning of the machine is strictly contingent upon the signing of the operator training certificate and the commissioning report; without these, the machine cannot be put into production.
Following the tests, the parties will sign a specific report, the SAT Acceptance Report. If DOLPHIN is not represented, the SAT Acceptance Report will be sent to DOLPHIN for review and comments. If DOLPHIN does not provide any comments within 7 days of receiving the SAT Acceptance Report, it will be deemed accurate.
It is agreed that, for safety and liability reasons, the Machinery may not be put into production or used by the Purchaser without the SAT Report duly signed by the Parties.
3.4 DOLPHIN will cover all FAT costs. However, the Buyer shall bear the costs of the raw materials required for the tests and, if applicable, the related shipping costs, as well as all travel and accommodation expenses for its representatives in connection with such tests. The Buyer shall bear all costs for the SAT; DOLPHIN will specify in advance in the Offer the costs that the Buyer must bear based on the Dolphin Pack service rates.
3.5 Dolphin will be available to provide assistance during the testing process, either remotely or at the Purchaser’s premises, for as long as necessary. Upon request, DOLPHIN will specify, in the Offer or at a later date, the costs that the Purchaser will be required to pay based on the Dolphin Pack service rates.
3.6 In the event that the tests (FAT or SAT) cannot be performed due to “force majeure,” such tests will be conducted remotely using means that facilitate real-time communication.
4.1 DOLPHIN will provide, in a timely manner, the general layouts of the Machine required for installation, weights and dimensions, along with all the information necessary for setting up the construction site, for access to the site by the Machine and any necessary equipment, and for making all the connections required for the work.
4.2. The Buyer must undertake the preparatory work in a timely manner to ensure the conditions necessary for the installation of the Machine and for the proper operation of the works.
4.3. The Buyer must ensure that:
a) DOLPHIN’s personnel are able to begin work according to the agreed-upon schedule and to work during normal business hours. Provided that the Purchaser has been notified in writing within a reasonable time, the work may be performed outside normal working hours to the extent deemed necessary by DOLPHIN;
b) has informed the Supplier in writing, well in advance of the start of installation, of all relevant safety regulations in effect at the Site. Installation must not be carried out in unhealthy or hazardous environments. All necessary safety and precautionary measures must have been taken before the start of installation and must be maintained.
(c) DOLPHIN’s personnel are able to obtain adequate and affordable room and board in the vicinity of the Site and have access to sanitation facilities and medical services that meet international standards;
d) the Buyer has made available to DOLPHIN, free of charge and at the appropriate time, all cranes, lifting equipment, and other equipment necessary for transport to the Site, as well as auxiliary tools, machinery, materials, and supplies (including fuel, oils, greases, and other materials, gas, water, electricity, steam, compressed air, heating, lighting, etc. DOLPHIN shall specify in writing its requirements regarding such cranes, lifting equipment, measuring and testing instruments, and equipment for transport to the Site no later than two weeks prior to the agreed-upon date for the commencement of installation work;
e) has provided DOLPHIN, free of charge, with a sufficient number of offices at the Site, equipped with telephones and Internet access;
f) has made available to DOLPHIN, free of charge, the necessary storage facilities to protect the machinery, tools, and equipment required for installation from theft and damage.
(g) the access routes to the site are suitable for the necessary transport of the DOLPHIN plant and equipment.
4.6 The Purchaser shall provide all necessary assistance to ensure that DOLPHIN’s personnel obtain, in a timely manner, visas and all official entry, exit, or work permits, as well as (if necessary) the tax certificates required in the Purchaser’s country, and access to the site. Such assistance shall be provided free of charge.
4.7 In the event that installation cannot be performed due to “Force Majeure,” DOLPHIN will make every reasonable effort to install the Machinery no later than 30 (thirty) business days from the deadline agreed upon in the Contract. If it is still not possible to meet this new deadline, the Purchaser’s personnel will carry out the installation; DOLPHIN will provide the Purchaser with assistance through dedicated tutorials, technical manuals, photos, and real-time audiovisual support.
5.1. The production deadlines up to the date of the FAT are specified in the Order Confirmation (Attachment 1) and begin on the date DOLPHIN receives the first down payment from the Buyer. The Machinery is deemed delivered FCA, Via Volta 11/13, 37010 Affi, Verona (Incoterms® 2020) at DOLPHIN’s headquarters. The Delivery Date is the sum of the production time, the FAT time, and the lead time for the availability of the Goods to be shipped. When the Contract provides for the installation of the Machinery, the Delivery Dates are subject to the accessibility conditions of the installation site. DOLPHIN shall not be liable for delays in delivery caused by carriers. Under no circumstances shall any delays on the part of DOLPHIN in the delivery of the Machinery—provided such delays are less than or equal to 30 (thirty) business days compared to the agreed-upon Delivery Date, shall entitle the Purchaser to claim damages or a price reduction, nor shall they confer any right to termination and/or cancellation and/or modification. If DOLPHIN’s delay in delivering the Machinery exceeds 30 (thirty) business days beyond the agreed-upon or postponed Delivery Date, the Buyer shall be entitled to receive a weekly penalty of €50.00 (Euros) for each day of delay, up to a maximum of 3% of the total value of the Machinery. 3% of the total value of the Machinery, starting from the thirty-first day and continuing until the date of actual delivery, regardless of whether DOLPHIN is at fault. The Buyer expressly waives the right to claim additional damages, as well as any right to a price reduction and any right to termination and/or cancellation and/or modification.
5.2. In the event of delays in the delivery of the Machinery caused by unforeseeable circumstances, “Force Majeure,” and/or other causes not attributable to willful misconduct and/or gross negligence on the part of DOLPHIN, DOLPHIN shall use all reasonable efforts to deliver the Machinery within 60 (sixty) business days following the Delivery Dates set forth in the Contract, without prejudice to the provisions of Article 3.1 above. In such cases, and only if DOLPHIN makes delivery within this grace period, the Buyer shall not be entitled to any indemnification and/or compensation for damages, nor shall it have any right to terminate, modify, or cancel the Contract, nor shall it have any right to request a price reduction with respect to the Machinery.
5.3. If, in the performance of its obligations, DOLPHIN requests that the Purchaser provide specific data and information, any delay exceeding 10 business days in the transmission of such information, or any delay in the Buyer’s submission of layout confirmation (the “Layout Approval”), shall result in a proportional extension of the Delivery Terms. In any case, unless otherwise expressly agreed in writing, if, during the performance of the Contract, the Buyer requests in writing any technical modification to the Machinery, subject to DOLPHIN’s approval, the relevant Delivery Date shall be automatically extended for the period reasonably necessary to implement the requested modifications, even if such modifications do not result in a change in price.
5.4. It is understood that any request for a technical modification involving a change to the layout or to the machine’s operating cycle, as agreed upon in the Order Confirmation, must first be evaluated by DOLPHIN and, if feasible, will be quoted. Requests for changes made after layout approval or during the installation phase will be billed on a cost-plus basis.
6.1. The Machinery is delivered FCA (Incoterms® 2020) – DOLPHIN’s registered office – after DOLPHIN issues a notice that the goods are ready for delivery. Unless otherwise agreed in writing, the Buyer agrees to pick up the Product no later than the agreed-upon deadline. In the event of a delay in picking up the Machinery, the agreed-upon payment terms will not be extended, and the Buyer shall bear all costs related to storage at DOLPHIN’s warehouses and/or those of third parties, as well as the safekeeping of the Machinery. It is understood that the Buyer shall bear the risk of damage, deterioration, loss, and/or theft of the Machinery itself as of the initially agreed-upon pickup date. The Buyer declares and acknowledges that the storage and/or safekeeping of the Machinery at DOLPHIN’s warehouses takes place in locations and/or under conditions suitable for the proper preservation of the Machinery itself, but that prolonged storage could nevertheless damage the Machinery due to its internal nature; The Buyer therefore waives the right to raise any claim, demand, or counterclaim in this regard.
6.2. If the Buyer fails to pick up the Machinery, the Buyer shall pay DOLPHIN the excess amount, as a penalty, to bring the total payment up to 100% (one hundred percent) of the price of the relevant Machinery, as well as any additional damages; In any case, DOLPHIN reserves the right to initiate legal proceedings to enforce its contractual rights.
6.3. The Buyer agrees to be present during the unloading of the delivered Machinery and to sign the shipping documents. If the documents are not signed at the time of delivery, DOLPHIN will send the shipping documents to the Buyer via fax and/or email as soon as possible; in which case, the contents thereof shall be deemed fully accepted by the Buyer in the absence of any written objections from the Buyer no later than 24 (twenty-four) hours after receipt of the documents.
7.1. Unless otherwise agreed in writing, the following items are excluded from the product supply:
a) Foundations, if required; modifications; permits; and any structural and/or civil engineering work on the buyer’s building, including compliance with applicable safety regulations;
b) Lighting, services, and/or ground-based or equipotential systems;
c) Supply, installation, and connection of compressed air systems, including temporary ones;
d) Power supply, installation, and connection of fire protection systems;
e) Equipment for lifting, transporting, unloading, and opening packages from trucks, as well as all other tools and equipment necessary for assembly;
f) Disposal of packaging and/or waste in general;
g) Raw materials and energy required for functional and acceptance testing (if included in the contract);
h) Specialized and non-specialized personnel to assist DOLPHIN technicians during testing, including a translator if necessary; all equipment for monitoring, verifying, and managing technical parameters;
i) Local permits and authorizations, certifications, and compliance with the environment in which DOLPHIN machines are installed, as well as the classification and adaptation of the system in accordance with local regulations where the product will be used;
j) Additional measures to prevent explosions or other hazards, based on local conditions or the operator’s specific needs;
k) Other benefits or services not specified in the contract.
8.1 If the Buyer’s claims regarding defects in the Machinery are valid and accepted by DOLPHIN during the warranty period, DOLPHIN will replace the defective part free of charge and/or, at its sole discretion, repair it within a reasonable time frame, delivering it to the Buyer under the same Incoterm agreed upon for the Machinery.
8.2. The warranty is limited to the value of the Machinery and covers only the work involved in repairing or replacing defective parts, as well as the supply, packaging, and the labor required for its disassembly and reassembly; however, any additional or indirect damages are excluded, such as, but not limited to, actual damages and lost profits, machine downtime and production stoppages, damage to reputation, loss of opportunity, etc.
8.3. Travel, food, and lodging expenses for personnel sent by the Seller to repair or replace defective components are expressly excluded from the warranty.
8.4. To avoid forfeiture of the warranty, the Purchaser must report any defects found in the Machinery in writing by sending DOLPHIN a detailed letter via certified mail with return receipt requested (with advance notice via fax) and attaching appropriate photographic documentation, no later than 8 (eight) days from the date of Delivery of the Machinery. In any case, under penalty of forfeiture of the warranty, the Purchaser agrees to file a complaint—regarding quantity discrepancies or damage to the Machinery—at the time of delivery, to note these complaints on the shipping document, and to confirm them no later than 8 (eight) days after delivery. In the event of latent defects in the Machinery that cannot be detected through the aforementioned inspection, the Buyer must notify DOLPHIN in writing, by sending a detailed letter via certified mail with return receipt requested (with advance notification via fax) and attaching adequate photographic documentation, of the defects found no later than 8 (eight) days from their discovery. In any case, the burden of proof regarding the date of actual receipt, the date of the inspection, the date of discovery of the defects, as well as the burden of proof regarding the hidden nature of the defects themselves, shall rest exclusively with the Buyer. Unless otherwise agreed in writing by the parties, all other expenses incidental to replacement and/or repair work shall be borne by and at the risk of the Buyer.
8.5. The warranty is void if the defects reported by the Purchaser are attributable to one or more of the following causes: (i) errors in the information and/or technical data provided to DOLPHIN by the Purchaser; (ii) alterations and/or modifications to the Machinery not authorized in writing by DOLPHIN; (iii) storage and/or safekeeping of the Machinery in locations and/or under conditions unsuitable for its proper preservation; (iv) improper use of the Machinery by the Purchaser or third parties; (v) any other cause not directly attributable to DOLPHIN. Upon the proper and timely performance of the warranty service, the Purchaser waives any further claims and/or rights to compensation against DOLPHIN.
8.6 The Buyer represents and acknowledges that the information and/or data and/or images and/or descriptions of the Machinery, as set forth in DOLPHIN’s Price List(s) and/or on DOLPHIN’s website and/or in other technical, commercial, and/or promotional materials, are provided for informational purposes only. DOLPHIN expressly reserves the right to modify, at any time and without prior notice, the specifications, models, materials, colors, accessories, finishes, and, in general, any characteristic of the Machinery indicated in the Price List(s) and/or on the aforementioned websites and/or in other technical, commercial, and/or promotional materials.
8.7. The Seller guarantees that the performance objectives set forth in the Technical Specifications will be met, provided that the Buyer strictly follows the instructions and specifications for use and maintenance.
9.1. DOLPHIN represents and warrants that the Machinery complies with the regulations as clearly specified in the directive adopted under 2006/42/EC. If the Machinery is installed outside of Italy, compliance with the specific regulations in force in that country shall be the sole responsibility of the Purchaser.
9.2. All necessary shipping permits, licenses, and administrative authorizations shall in any case be the sole responsibility of the Buyer, as shall compliance with requirements related to the installation and operation of the Machinery. No obligation arises under the Contract with DOLPHIN regarding the Purchaser’s obtaining of permits, licenses, approvals, or any other title or authority required by any entity.
9.3. During the machinery design phase, DOLPHIN will rely on the data and information provided by the purchaser. If the actual conditions differ from those indicated by the purchaser, and this could compromise the suitability of the machinery manufactured based on that information, DOLPHIN will promptly notify the purchaser of the need for modifications and the resulting adjustments to delivery terms and costs.
10.1. The price of the machinery is specified in the Quote and confirmed in the Order Confirmation.
10.2. If agreed upon, the price for installation is specified in the Quote and confirmed in the Order Confirmation.
10.3. Prices are quoted in euros, excluding VAT. Unless otherwise agreed, prices do not include transportation, airfare, or room and board for Dolphin Pack technicians.
10.4. In the event that, after the signing of the Contract, an extraordinary or unforeseeable event occurs that would render DOLPHIN’s performance excessively onerous pursuant to Article 1467 of the Italian Civil Code, the Purchaser and DOLPHIN shall renegotiate the terms and conditions of the Contract in good faith, without prejudice to DOLPHIN’s right to request termination of the Contract pursuant to Article 1467, paragraph 1, of the Italian Civil Code.
11.1. Payment of the Price will be made as agreed in the Order Confirmation.
11.2 Unless otherwise agreed, payment for the installation will be made upon completion of the installation.
11.3. The Buyer represents and warrants to DOLPHIN that it is fully solvent and that it has and will maintain adequate capital and financial resources to pay the Contract price without delay.
11.4. In the event of failure to pay the price in full or in part, or even if payment is merely delayed by more than 15 (fifteen) days, DOLPHIN shall have the right to suspend performance of the Contract until full payment of the amounts due or the provision of adequate guarantees, or to terminate the Contract with all legal consequences. DOLPHIN shall also have the right to suspend performance of the Contract or to terminate it if the Buyer’s financial and/or corporate conditions—even if they have arisen subsequently—are such as to jeopardize the relevant payment, or when the Buyer has failed to make timely and full payment for the Machinery previously delivered by DOLPHIN, including under other contractual relationships.
11.5. In the event of a delay in payment, even partial, DOLPHIN shall be entitled to interest on late payments as provided by applicable law (Legislative Decree No. 231/2002, as amended), which in any case shall automatically accrue from the due date without the need for a formal notice of default. In such cases, DOLPHIN reserves the right to modify, at its discretion, the payment terms and conditions specified in the Contract. In the event that the amount due is paid in installments, failure to pay even a single installment will result in the forfeiture of the benefit of the payment terms and DOLPHIN’s right to demand immediate payment of the full amount, without any discounts applied to the price list, which will automatically lapse. In any case, in the circumstances described above, DOLPHIN shall have the right to retain the amounts received. This is without prejudice to DOLPHIN’s right to take legal action to seek compensation for any additional damages suffered.
11.6 Under no circumstances shall any defects and/or faults in the Machinery, nor any delays with respect to the agreed Delivery Terms, nor any dispute regarding the performance of the contractual relationship, entitle the Purchaser to suspend or delay the related payments, and/or any other payment due to DOLPHIN under the Contract or other contractual relationships (“solve et repete” clause pursuant to Article 1462 of the Italian Civil Code). The Buyer may assert any action, defense, or claim—including legal action—only after having paid the full Contract price.
12.1. Any taxes, duties, fees, licenses, authorizations, permits, and/or other charges of a fiscal, customs, and/or administrative nature, however named, required by the laws of the country into which the Machinery covered by the Contract is imported (hereinafter, “Charges”), shall be fully and exclusively borne by the Buyer.
12.2. Under no circumstances shall any delays in fulfilling the Obligations entitle the Buyer to terminate the Contract and/or to claim damages. The Buyer expressly waives the right to raise any objection, claim, defense, and/or counterclaim in this regard.
13.1. Ownership of the goods remains with DOLPHIN and will not pass to the Buyer until the total purchase price has been paid by the Buyer and received by DOLPHIN.
13.2. Until ownership of the goods is transferred, should the Buyer fail to comply with the payment terms set forth in this contract: a) DOLPHIN reserves the right to repossess, sell, enter into negotiations regarding, and/or dispose of all or part of the goods; c) the Buyer must store the goods and mark them in such a way that DOLPHIN’s ownership of the goods is clearly recognized; and d) the Buyer must insure the goods for their full replacement value and name DOLPHIN as the beneficiary in the insurance policy.
Notwithstanding the retention of title as defined above, the risk associated with the goods covered by this contract passes to the Buyer upon delivery, as defined in Article 6 above.
14.1. The intellectual property rights to which each party is entitled prior to the Agreement shall continue to be owned by that party.
14.2. Any technology, intellectual or industrial property rights, documentation, or information developed as a result of the performance of the Contract shall be the property of DOLPHIN, unless otherwise agreed. Models, trademarks, patents, prototypes, plans, drawings, designs, documentation, instructions, or technical, technological, operational, or organizational know-how, methods, and systems, and, in general, any material that may constitute intellectual or industrial property owned by DOLPHIN and provided to the purchaser as a result of the performance of the Contract shall be the exclusive property of DOLPHIN.
14.3. The use of names, trademarks, symbols, logos, or other distinctive signs or identifiers owned by any party, or used to identify any party, shall in no event be construed as a license or transfer of use or the grant of any rights to the other parties with respect to such assets.
14.4. Any breach by the Purchaser of this intellectual property clause shall entitle DOLPHIN to terminate the Agreement, as well as to claim damages and compensation for losses incurred, and to take any legal action it deems appropriate.
15.1 During the pre-contractual phase and/or in the performance of its obligations, DOLPHIN may provide the Purchaser with certain strictly confidential information or data regarding the Product(s), including, but not limited to, preliminary designs, software, calculations, methods, processes, and related drawings, inventions, instruction manuals, related techniques and technologies, business plans, and price lists (hereinafter, “Confidential Information”).
15.2. The Buyer agrees, during the term of the Agreement and for the three (3) years following its termination for any reason, to receive and maintain the Confidential Information under a duty of confidentiality, and undertakes not to reproduce, disclose, or otherwise use in any manner, directly or indirectly, for its own purposes or those of third parties, and in any case other than for the performance of the Agreement, the Confidential Information.
15.3. The confidentiality obligations set forth in this article are assumed by the Purchaser also on behalf of all its partners, employees, executives, directors, consultants, agents, or other persons employed by and/or affiliated with it—even on an occasional basis—to whom the Confidential Information is disclosed. The Purchaser agrees to return the Confidential Information to DOLPHIN as soon as it no longer needs to use it or, in any case, upon simple written request from DOLPHIN.
15.4. The Purchaser further agrees not to make any copies, including electronic copies, of all or part of the Confidential Information. The Purchaser expressly acknowledges the importance of the Confidential Information to DOLPHIN’s business and therefore acknowledges that any and all breaches of the confidentiality obligations set forth in this article constitute not only a breach of contract but an act of unfair competition for all legal purposes. No provision of these general terms and conditions is intended, either explicitly or implicitly, to confer upon the Purchaser any right, title, or interest in the Confidential Information.
15.5. The Purchaser agrees not to file any patent application for an invention and/or utility model developed using the Confidential Information. In the event of any breach of the confidentiality obligations set forth in this article, the Purchaser shall be liable to compensate DOLPHIN for any damages suffered as a result of such breach.
16.1. Force Majeure refers to the occurrence of an event or circumstance that hinders or prevents a party from fulfilling one or more of its contractual obligations under the contract, if and to the extent that such party demonstrates: [a] that such hindrance is beyond its reasonable control or independent of its will; and [b] that it could not reasonably have been foreseen at the time the contract was concluded; and [c] that the effects of the hindrance could not reasonably have been avoided or overcome by a specialized party.
16.2. In the absence of evidence to the contrary, a party shall be presumed to be a victim of the events referred to in subparagraphs (a) and (b) of Article 16.1 above when: (i) war (whether declared or not), hostilities, invasion, acts of foreign enemies, or large-scale military mobilization;(ii) civil war, revolt, rebellion, and revolution; usurped or military power; insurrection; acts of terrorism, sabotage, or piracy; (iii) currency and trade restrictions, embargoes, and sanctions; (iv) acts of public authorities, whether lawful or unlawful, compliance with any law or government order, expropriation, seizure of property, requisition, or nationalization; (v) plague, epidemic, pandemic, natural disaster, or extreme natural event; (vi) explosion, destruction of equipment, prolonged disruption of transportation, telecommunications, information systems, or energy supplies; (vii) general labor unrest, such as boycotts, strikes, and lockouts, intentional slowdowns in production, and the occupation of factories and premises.
16.3. A party that properly invokes this clause is relieved of the obligation to perform its obligations under the contract and of any liability for damages or any other contractual remedy for breach of contract, effective from the time the impediment results in the inability to perform, provided that notice is given without delay. If notice is not given without delay, the exemption shall take effect from the time the notice is received by the other party. If the effect of the impediment or event invoked is temporary, the consequences set forth in paragraph 5 above shall apply only for as long as the impediment invoked prevents the affected Party from fulfilling its contractual obligations. The affected Party must inform the other Party as soon as the impediment ceases to prevent the fulfillment of its contractual obligations.
If the duration of the claimed impediment has had the effect of substantially depriving the contracting parties of what they could reasonably expect from the contract, each party has the right to terminate the contract by notifying the other party within a reasonable period of time. Unless otherwise agreed, the parties expressly agree that the contract may be terminated by either party if the duration of the impediment exceeds 120 days.
16.4. Hardship—Where a Party demonstrates that: (a) the continued performance of its contractual obligations has become unduly onerous due to an event beyond its reasonable control that could not reasonably have been foreseen at the time the contract was entered into; and that b) it could not reasonably have avoided or overcome the event or its consequences, then the Parties are obligated, within a reasonable time after invoking this Hardship Clause, to negotiate alternative contractual terms that reasonably allow for overcoming the consequences of the event. If the parties are unable to agree on alternative contractual terms as provided for in the preceding paragraph, the party invoking this Hardship Clause has the right to terminate the contract, but may not seek an adjustment by a court or arbitrator without the consent of the other party. In this case, no refunds or penalties shall be due, nor may any guarantees be enforced.
17.1. This Agreement shall take effect as of the date of its signing, provided that the agreed-upon advance payment has been made.
17.2. The Buyer has the right to terminate this contract at any time, with immediate effect, without prior court approval and without compensation in lieu of termination, except for equipment and/or services provided in accordance with the agreement up to the date of termination, by written notice to the Seller, if:
i. the Seller has committed an act of dishonesty, disloyalty, corruption, or fraud against the Buyer or its business.
ii. the Seller is in material breach of any of its obligations under this Agreement, including through systematic unsatisfactory or improper performance, and has not remedied such breach within thirty (30) days after receiving notice thereof from the Buyer;
iii. the Seller ceases or transfers its business or threatens to do so, is declared bankrupt or insolvent, takes any action regarding liquidation or dissolution, or is placed under court receivership.
17.3. The Purchaser, at its sole discretion, shall have the right to receive partial or full delivery of the equipment and/or services or to opt for a full refund of all payments already made by the Purchaser in connection with such equipment and/or services.
17.4. Upon termination of this Contract for any reason, the Seller shall immediately return to the Buyer—or destroy and provide proof of such destruction to the Buyer—all documents, equipment, correspondence, etc., entrusted to it pursuant to Article 15 of this Contract.
18.1. These General Terms and Conditions of Sale are written in Italian, which shall be considered the sole authoritative text. In the event of translations into other languages, such translations shall be considered courtesy copies.
19.1. The parties shall submit any disputes arising from this Agreement to the conciliation procedure provided for by the Conciliation Service of the Milan Chamber of Arbitration. Should such conciliation fail, disputes concerning the conclusion, application, interpretation, validity, effectiveness, performance, and/or termination of the Agreement—including those of a non-contractual nature—shall be resolved by arbitration in accordance with the Rules of the Milan Chamber of Arbitration, by a sole arbitrator appointed in accordance with such Rules, which are deemed incorporated by reference into this clause.
The official language of the arbitration proceedings shall be Italian.
20.1. The law applicable to the Contract is Italian law, and the application of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of April 11, 1980) to the Contract is expressly excluded in all cases.
21.1. The fact that DOLPHIN does not, at any time, exercise the rights granted to it under one or more provisions of the Contract shall not be construed as a general waiver of such rights, nor shall it prevent DOLPHIN from subsequently demanding their strict and timely compliance.
21.2. The section headings in this Agreement are for reference purposes only and do not limit the provisions set forth herein.
21.3. The potential nullity or ineffectiveness of any provision of these General Terms and Conditions of Sale, for whatever reason, shall not render the Contract invalid in its entirety, nor shall it affect any of the other contractual provisions not directly related to and/or dependent on the clause deemed null and void and/or ineffective.
