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BORGHI ASSALI S.R.L. – GENERAL CONDITIONS OF SALE 

1. Definitions

1.1 Under the terms of these general conditions of sale (hereinafter “Conditions of Sale”), the following definitions are given: 

• Borghi Assali: Borghi Assali S.r.l., having Headquarters in via Caduti di Navicello n. 1, Villavara di Bomporto (MO);
• Customer: the purchaser of the Borghi Assali Products; 
• Products: the goods produced and assembled by Borghi Assali; 
• Order(s): every proposal for purchase of the Products forwarded by Customers to Borghi Assali by fax or e-mail; 
• Order Confirmation: every written confirmation that Borghi Assali sends to the Customer in acceptance of the Order; 
• Sale(s): every sale contract concluded between Borghi Assali and the Customer following receipt by the Customer of the written acceptance of the Order by Borghi Assali. 

2. Subject 

2.1. All the Sales are governed exclusively by these Conditions of Sale. Any other terms and/or conditions other than those indicated in the Conditions of Sale are deemed to be valid only where accepted in writing by Borghi Assali. 

2.2. Borghi Assali reserves the right to alter the Conditions of Sale, it being understood that such modifications shall apply to all Sales concluded from the 30th day following the notification to the Customer of the new conditions. 

3. Orders and Conclusion of the Contract 

3.1 The Customer shall send Borghi Assali specific Orders containing the description of the Products, the required quantity, the price and the requested delivery terms. 

3.2 The Sale shall be deemed concluded: (i) at the time the Customer receives from Borghi Assali the Order Confirmation consistent with the terms and conditions of the Order; or (ii) where the Customer receives from Borghi Assali an Order Confirmation containing terms differing from those set out in the Order, upon the lapse of five (5) working days from the date of receipt of such Order Confirmation, provided that no written and reasoned objection has been received by Borghi Assali within such period. The Order Confirmation shall be deemed duly received if sent by means capable of proving receipt (including, by way of example, certified email (PEC) or ordinary email). In such case, the Contract shall be deemed concluded on the terms set forth in the Order Confirmation.

3.3 At the bottom of the Order Confirmation there is a reference to Borghi Assali’s corporate website where the Customer can view and download a copy of these Conditions of Sale, which shall be deemed to be fully accepted by the Customer if within 2 days following sending the Order Confirmation, Borghi Assali does not receive a contrary written communication. 

3.4 Orders duly accepted by Borghi Assali may not be cancelled by the Customer without the written consent of Borghi Assali. In the event that Borghi Assali accepts the cancellation of the Order, Borghi Assali reserves the right to invoice the Customer the costs and any expenses incurred as a result of the cancellation. 

3.5 Orders received through agents, collaborators or business agents or similar shall always be deemed to be “on approval of Borghi Assali”. 

4. Modifications to Products 

4.1. Borghi Assali reserves the right to modify the Products at any time, provided that such modifications do not prejudice the initial functions or use. 

5. Prices and Payments 

5.1 Unless otherwise agreed, the prices applied are those of the price list in force at the date of Order Confirmation. 

5.2 Unless otherwise agreed, the prices are deemed to be ex-works, exclusive of VAT and any discounts. The prices do not include the costs of packaging, shipment and transportation from the Borghi Assali premises to those of the Customer. These costs shall be borne separately by the Customer. 

5.3 Should, after receipt of the Order Confirmation and prior to delivery of the Products, significant and documented increases occur in the costs of raw materials, energy, transportation or other relevant production factors, which are not attributable to the will of Borghi Assali and are objectively verifiable on the basis of market parameters, Borghi Assali shall be entitled to adjust the prices proportionally to such increases. Where the price adjustment results in an increase exceeding 20% of the originally agreed price, the Customer shall be entitled to withdraw from the Contract with respect to the Products not yet delivered, by written notice to be sent within five (5) days from receipt of the price adjustment communication.

5.4 Unless otherwise agreed in writing between the parties, Borghi Assali, at its sole discretion, shall issue invoices at the time of Order acceptance or Product delivery. 

5.5 Payments shall be deemed to be made only when made at the conditions and in the terms indicated in the Order Confirmation and the invoice. 

5.6 In the event of non-payment within the agreed deadline, Borghi Assali reserves the right to apply interest charges as laid down in Italian Legislative Decree 231/02. 

5.7 In the event of installments, if even one installment of the payment is not paid at the due time, Borghi Assali may immediately demand payment of the whole price (independently of the conditions laid down in art. 1186 of the Italian Civil Code) and may consider the contract to be terminated due to breach of contract; in such case, Borghi Assali may withhold any amounts received for compensation for damages and may demand the return of any goods delivered at the expense of the Customer. 

5.8 Under no circumstances may payments be suspended or delayed. 

5.9 The ownership of the Products will remain with Borghi Assali until the full payment of the price. The Customer shall perform all local statutory requirements in order to ensure that the ownership reserve be valid and executable before third parties, also through the registration with specific registers, where so required locally. 

5.10 The payment of the price may be accepted by Borghi Assali by assignment of credit with recourse, without novation and without prejudice to the reserved ownership. 

6. Delivery terms 

6.1 Unless otherwise agreed, the Products are sold: 

• ex-factory (EXW) at the premises of Borghi Assali, if the final destination is Italy; 
• free carrier (FCA) Villavara di Bomporto (MO), if the final destination is a foreign country. 

Goods travel at the expense and risk of the Customer. 

If required, Borghi Assali will manage the transportation of the Products using the most appropriate means where not specified by the Customer; however, also in this case the costs and risks shall be borne by the Customer. 

6.2 The delivery terms laid down in the Order Confirmation are indicative and not essential pursuant to art. 1457 of the Italian Civil Code and, in any case, do not include transportation times. In any case, Borghi Assali shall make all reasonable efforts to comply with such terms. 

6.3 Without prejudice to the provisions of the preceding Clause 6.2, Borghi Assali shall not be held liable for delays in delivery or failure to deliver resulting from circumstances beyond its control or events otherwise not attributable to its will, without prejudice to cases of willful misconduct or gross negligence on the part of Borghi Assali, including, by way of example and without limitation:

1. i) delays or inaccuracies by the Customer in providing Borghi Assali with the data necessary for the supply;
2. ii) difficulties in procuring raw materials arising from extraordinary and unforeseeable events or from disruptions of supply chains not attributable to Borghi Assali;

iii) issues related to production or order planning resulting from external, extraordinary events or events otherwise not attributable to Borghi Assali;

1. iv) force majeure events, including, by way of example, strikes, power outages, natural disasters, measures imposed by public authorities, transport disruptions, civil unrest, terrorist attacks, epidemics, and wars;
2. v) delays attributable to the carrier.

Upon the occurrence of the aforementioned circumstances, the Customer shall not be entitled to claim contractual penalties or any other rights related to delay.

6.4 The delivery of the Products may be suspended should Borghi Assali consider that the equity situation of the Customer and/or the amount of its debt are such that they constitute an evident hazard for the payment of the price. 

6.5. The Customer in any case accepts partial deliveries. 

7. Non conformities 

7.1 Any difference in the Products delivered to the Customer in terms of the type and quantity indicated in the Order must be notified to Borghi Assali in writing within 5 days of the date of delivery. Should no reports be received within such term, the Products delivered shall be deemed to comply with the Customer Order. 

8. Warranty and repair of the Products 

8.1 Unless otherwise agreed in writing, Borghi Assali guarantees that the Products are free from defects affecting the materials, processing or assembly, for a period of 12 months (or 2.500 working hours)  from the date of delivery to the Customer. In the case of the sale of single components of the Products intended to be assembled by the Customer, the warranty is extended exclusively to those components and not also to the products that derive from such assembly. 

8.2 The warranty does not cover: 

1. i) Products which have reached the end of their life cycle; 
2. ii) parts of the Products which are subject to normal wear and deterioration following the use of the Product; 

iii) damage to the Product deriving from (a) accidents, abuse, improper use, natural or personal disasters, (b) disassembly, (c) non-compliance with the installation instructions laid down in the specific use and maintenance manual supplied with the Product, (d) negligence and lack of appropriate or reasonable maintenance by the Customer, (e) corrosion by aggressive fluids or frost, (f) unsuitable repairs or improperly installed components, (g) use of non-genuine spare parts or accessories that do not comply with the specifications issued by Borghi Assali, (h) use of components not supplied or manufactured by Borghi Assali; 

1. iv) any visual imperfections in the surfaces/finishing/painting or visible Product defects that were evident or present at the time of delivery. 

8.3 The Customer shall notify Borghi Assali or an authorized dealer in writing of the presence of any faults or defects within 8 (eight) days following their discovery. 

On condition that the Customer claim is covered by the warranty and notified in the terms indicated in this article, Borghi Assali undertakes, at its sole discretion, to replace/repair each Product or its parts which present faults or defects or to reimburse the relative amount in the invoice, following authorization from the Customer pursuant to art. 8.9. 

8.4 The return of any Product must be agreed in advance with Borghi Assali through the issue of an authorization number – RMA (Return Material Authorization) – which must be clearly marked on the outside of the Product packaging. The procedure laid down in this art. 8.4 and art. 8.9 below shall be followed in the event of return of Products for any reason whatsoever, also after the warranty period. 

The issue of an authorization number does not in any case constitute the acceptance of the claim, which shall in any case be subject to assessment by authorized Borghi Assali staff. The Products shipped must be delivered to the headquarters of Borghi Assali, or any other place which may be indicated on a case-by-case basis, at the expense of the Customer; shipments made at the consignee’s expense will not be accepted. The Product must be packaged in a safe manner to avoid any damage during shipment and must be accompanied by a letter which specifies and includes the following: (a) serial number or code of the Product and/or component, (b) detailed description of the problem, including a chronological description of the interventions, (c) layout of the system and construction and/or size details of the related components, (d) indications of the work type and cycle, (e) estimated hours of use of the Product, (f) name, address of the sender and written authorization to resend the repaired or replaced product. 

8.5 The warranty provided under this clause shall not apply where the Customer is in serious and uncontested default of its payment obligations relating to the Products covered by the same supply for which the warranty is invoked. It is understood that defaults relating to separate and independent supplies shall not, in themselves, result in the forfeiture of the warranty for Products that have been duly paid for.

8.6 Under no circumstances shall Borghi Assali be held liable for indirect or consequential damages, including, by way of example, loss of production, loss of profit, loss of contracts or loss of business opportunities. Any limitation of liability shall in any event be excluded in cases of willful misconduct or gross negligence on the part of Borghi Assali, pursuant to Article 1229 of the Italian Civil Code.

8.7 This warranty is valid only for the original purchaser of the Product and such rights shall not be transferred to third parties, unless otherwise agreed with Borghi Assali. 

8.8 The aforementioned warranty is the sole and exclusive reference for the Customer concerning the Products, and therefore all other forms of guarantee of any nature whatsoever, whether explicit or implicit, deriving from commercial customs, laws or other shall be excluded. 

8.9 The Products returned to Borghi Assali by Customers, branches or dealers – according to the manner laid down in art. 8.4 – for repairs or assessments shall be subject to the appropriate checks in order to ascertain the steps to be taken, including the preparation of any relative cost estimates. The results of such checks, together with the cost estimate, shall be notified in writing, by fax or e-mail, to the Customer, branch or dealer, in order to obtain an authorization to proceed; however, if within 30 (thirty) days following the sending of the notice Borghi Assali receives no written answer from the recipient, the Products – in the same condition in which they were found when they were returned – shall be resent freight collect to the Customer, branch or dealer. 

9. Patents 

9.1 Borghi Assali shall not be liable for any costs or damages suffered by the Customer as a result of legal actions or proceedings taken towards the Customer based on claims due to the fact that (i) the use of a product, or part thereof, supplied at these conditions, in combination with products not supplied by Borghi Assali or (ii) a manufacturing process or other process in which a product or part thereof was used, supplied at these conditions, constitute a direct or indirect breach of any patent or trade mark. 

10. The trademark. 

10.1 The Customer shall hold Borghi Assali harmless of all expenses or losses caused by the breach of registered trademarks or patents deriving from the fact that Borghi Assali has adapted its design to Customer specifications or instructions. 

11. Confidentiality – Industrial Property 

11.1 The Parties are required to comply with the utmost confidentiality and not to disclose to third parties any information of a confidential nature received, in whatever form, or otherwise learned in and for the execution of the Contract, including, but not limited to, technical, commercial or business information, drawings, documentation, models, correspondence, secrets. Disclosure to third parties may be made only with the written consent of the other Party. 

11.2 The Parties undertake to maintain the strictest secrecy on Confidential Information taking all responsibility also with regard to compliance with this obligation on the part of their employees and collaborators, and they undertake as of now to return to the other Party, at the end of the Contract, even without express request and without retaining any copy, all documents of any kind that have been qualified as “confidential” at the time of delivery. 

11.3 It is understood that Borghi Assali retains all industrial and intellectual property rights to the Products forming part of the supply, including engineering and know-how, and that their use is permitted to the Purchaser only within the framework of the execution of the Contract. 

11.4 The Parties expressly agree that the obligations under this Article 11 shall remain valid and binding between the Parties even after the termination of the Contract for any reason. 

12 Trade compliance 

12.1 The Customer represents that it complies with all commercial laws and regulations applicable to the Products supplied by Borghi Assali, including supranational laws and regulations. 

12.2 The Customer acknowledges that some Borghi Assali Products may be subject to export or import control restrictions and guarantees that it will not export, re-export or transfer Borghi Assali products, which are subject to export or import control restrictions, without the necessary license or other authorization. Borghi Assali shall not be liable for failure to deliver a product in the event of inability to obtain or maintain any required export or import license or authorization. 

12.3 The Customer declares and guarantees that it will not sell, export, re-export or use any Borghi Assali products directly or indirectly, in breach of economic sanctions or commercial embargoes. 

12.4 The Customer represents and guarantees that it is not a Restricted Party (defined as any party listed on the U.S. Consolidated Screening List, the European Union Consolidated List of Persons, Groups and Entities subject to EU financial sanctions, the U.K. Sanctions List, or any other list of parties with applicable restrictions) and that it is not owned or controlled by one or more parties included in the above lists. 

12.5 The Customer guarantees that it will not directly or indirectly engage in any transaction involving Borghi Assali Products in breach of the restrictions on persons and entities on any of the above lists or any other applicable list of restricted parties. 

12.6 The Customer guarantees that, with respect to the supply of Borghi Assali Products, it will not engage in financial transactions directly or indirectly in breach of restrictions on sanctioned lending institutions. 

12.7 The Customer agrees that all provisions of this Trade Compliance clause are essential and that breach of any representation or guarantee entitles Borghi Assali to immediate termination of any business relationship between the Parties. 

12.8 In the event of any breach of Articles 12.1 to 12.7 and of the applicable Export Control regulations by the Purchaser and/or its assignees, it is understood that Borghi Assali, its parent company Reggiana Riduttori and the  Interpump Group S.p.A. shall be held harmless from any and all liability and that the Purchaser shall hold Borghi Assali, its parent company Reggiana Riduttori and the Interpump Group S.p.A. harmless from any and all prejudicial consequences that it may suffer.

12.9 The re-export to Russia and the use in Russia of goods and technologies listed in Annexes XI, XX, XXXV, XL and XLVIII of EU Reg. 833/2014 is prohibited. This restriction applies in case of sale, supply, transfer or export to third countries, excluding the partner countries listed in Annex VIII.

12.10 The re-export to Belarus and the use in Belarus of goods and technologies listed in Annexes XVI, XVII, XXVIII, XXX and XXXI of EU Reg. 765/2006 is prohibited. This restriction applies in case of sale, supply, transfer or export to third countries, excluding the partner countries listed in Annex V ter bis.

12.11 The Customer undertakes not to market, whether directly or indirectly, the Products covered by the Orders through online sales channels, unless prior written authorization has been granted by Borghi Assali. Such prohibition shall extend to any third party, including the Customer’s customers, resellers and distributors, who shall be bound by an equivalent contractual provision to be included in their respective agreements. In the event of any breach of the online sales prohibition, the Customer shall promptly notify Borghi Assali thereof and shall, without delay, take all measures necessary to cause the unlawful conduct to cease. Any breach of this clause shall constitute a material contractual breach and shall entitle Borghi Assali to terminate the relevant Order, without prejudice to Borghi Assali’s right to claim compensation for all damages suffered, whether direct or indirect, pecuniary or non‑pecuniary. The Customer further undertakes to indemnify and hold harmless Borghi Assali from and against any claim, damage, penalty or adverse consequence arising from unauthorized online sales of the products, whether carried out by the Customer itself or by any party attributable to it.

13. Dual Use and Miscellaneous Uses 

13.1 The Parties agree that where in relation to certain specific job orders or customers, one or more Products are to be qualified as “dual use” goods pursuant to the national and/or Community regulations in force from time to time, the Customer shall be required to promptly notify Borghi Assali in writing of any details relating to such job order and end customer and that, in such case, each of the Parties undertakes to put in place the fulfillments provided for at its own charge by the reference regulations (by way of example but not limited to: requesting and obtaining permits, informing the competent authorities, preparing documentation and keeping records, etc.). 

13.2 In the case of military applications, it remains the obligation of the Customer to promptly communicate in writing to Borghi Assali any details of job orders and customers to enable Borghi Assali to verify compatibility with the provisions of the Code of Ethics and to put in place any consequent fulfillments. 

13.3 It is understood that Borghi Assali, its parent company Reggiana Riduttori and the Interpump Group S.p.A., shall be exonerated from any and all liability in the event of breach by the Customer and/or its assignees of the provisions of Articles 13.1 and 13.2 above and of the laws in force on the subject of “dual use”, with the obligation of the Customer, in the event of default, to hold Borghi Assali, its parent company Reggiana Riduttori and  the Interpump Group S.p.A. harmless and indemnified against any prejudicial consequences they may suffer. 

14. Model pursuant to Legislative Decree 231/2001 and Code of Ethics

14.1 The Customer declares that it has reviewed and undertakes to comply with the principles set forth in the Organization, Management and Control Model pursuant to Legislative Decree No. 231/2001 and in the Code of Ethics adopted by Borghi Assali, both available on the Company’s website in the “Download” area under the “Corporate Documents” section.

14.2 Any serious or repeated breach of the aforementioned principles, such as to expose Borghi Assali to liability pursuant to Legislative Decree No. 231/2001, shall constitute a material breach and shall entitle Borghi Assali to terminate the Contract pursuant to Article 1456 of the Italian Civil Code, without prejudice to its right to claim damages. Where the breach is not of a particularly serious nature, Borghi Assali reserves the right to grant the Customer an appropriate term to remedy such breach.

15. Termination clause in express form 

15.1 Borghi Assali shall have the faculty, pursuant to and by effect of art. 1456 of the Italian Civil Code, at any time by written notice to the Customer, to terminate any individual Sale in the case of breach of the obligations laid down in art. 5 (Prices and Payments) and in cases of violation of the Model pursuant to Legislative Decree 231/2001 and of the Code of Ethics (art. 14 – Model pursuant to Legislative Decree 231/2001 and Code of Ethics). 

16. Jurisdiction 

16.1 This contract is drawn up under Italian law; any disputes shall be subject to Italian law also in derogation of any international conventions. 

16.2 Any disputes arising from the execution and interpretation of these Conditions of Sale shall be referred exclusively to the courts of Modena. 

17. Text and form 

17.1 This English version is provided for convenience only. In the event of any discrepancy or inconsistency between the English and the Italian versions, the Italian version shall prevail.

17.2 The Customer has provided its tax and personal information having received full information on the nature of its processing, and authorizes the processing of its data under the terms of Italian Legislative Decree (D.lgs.) 196/2003.