Terms and conditions
GENERAL TERMS AND CONDITIONS OF SALE
Art. 1. - Scope of application. Conclusion of the Contract.
1.1. Unless otherwise expressly indicated by SCM Group Australia Pty Limited (the “Seller”), the present general conditions of sale (the “Conditions”) shall form an integral part of each contract for the supply of machinery and relating goods and accessory services agreed between the parties (the “Contract”), stipulated with the purchaser which is indicated in the document of which the Conditions are part or to which the Conditions are attached (the “Purchaser”). The conclusion of the Contract on the part of the Seller shall be deemed to be made in accordance with the present Conditions, it being understood that any possible different or additional terms proposed by the Purchaser shall not apply, unless expressly accepted in writing by the Seller by way of derogation from or integration to the present Conditions.
1.2. Any contractual document accepted by the Purchaser must be followed by the approval of the Seller’s General Management, within 90 days from the date of said acceptance, failing which the contractual document shall have no effect. The order
confirmation written by the Seller shall be deemed to have the same effect of the approval provided above, and shall provide the final description of the supply on the part of the Seller with regard to the technical performance, technical specifications and/or commercial terms. In case the above condition is not fulfilled, each party shall be free from its undertakings, without any charges. This is without prejudice to Article 2 below. In case the Seller’s order confirmation is not objected in writing by the Purchaser, within 10 days from the date of its receipt, then the order confirmation shall be deemed in any event accepted.
1.3. The Seller shall be entitled, at any time – also in case of approval of the Contract on the part of the Seller’s General Management – to consider itself free from any contractual obligations vis-à-vis the Purchaser, in case the latter has not returned the present Conditions stamped and signed.
Art. 2. - Definition of the supply
2.1. In the event of a dispute in respect of the definition of the supply, the Seller shall be entitled, on behalf of both parties, to request the Chair of Resolution Institute to nominate an arbitrator, in order to confirm the congruity of the definition of the supply provided by the Seller or indicate the optimal definition, taking into account the price agreed between the parties for the supply. It is understood that the expert’s decision shall be binding for both parties, having the same effect of the parties’ expression of their contractual intention. In case of confirmation of the definition made by the Seller, then the costs for the expert opinion will be borne by the Purchaser whilst in any other case said costs will be borne by the parties in equal parts.
Art. 3. - Subject matter
3.1. The subject matter of the Contract shall consist exclusively in the supply, by the Seller to the Purchaser, of the machinery and its relating user manuals (instructions), spare parts, equipment, Engineering, Know-how and services relating to the assembly, start-up and acceptance test which are expressly and respectively indicated in the Enclosures to the Contract. The term “Engineering” shall mean the drawings and plans relating to the installation of the machinery, possibly supplied by the Seller to the Purchaser, as described in the technical Enclosures to the Contract. All drawings and plans relating to civil works and the general systems and plants shall not however be included in the Engineering. The term “Know-how” shall mean the technical knowledge, the formulae, the procedures, the instructions and the indications which may be used in relation to the type of production provided in the technical Enclosures of the Contract, possibly supplied by the Seller to the Purchaser in accordance with the terms of said Enclosures.
3.2. The Purchaser shall co-operate for the purposes of defining the supply and shall be liable for the accuracy of the information/indications/instructions provided to the Seller during the conclusion of the Contract, as well as regards the suitability of the machinery under the Contract, in respect of the regular conditions of use of the same on the part of the Purchaser, as well as with regard to specific conditions which may affect the safety or performance of the machinery in question.
3.3. Measures, weights and technical data as described in the Seller’s statements or catalogues shall be deemed to be indicative and non-binding in the specifications/details. Any possible modification of the machinery and other elements of the supply which the Seller deems necessary, during the performance of the Contract, due to local conditions, change of laws, technical and/or technological improvements occurred in the meantime, or in any event necessary for the optimal functioning of the machinery, may be carried out by the Seller, subject to the prior notice to the Purchaser. The Purchaser shall be entitled to raise objections in respect of said modifications only in case they compromise the normal use of the machinery, as provided in the contractual documents, provided that the Purchaser requests the Chair of Resolution Institute to nominate an arbitrator to ascertain whether or not the modifications agreed by the Seller compromise the Purchaser. It is understood that the expert’s decision shall be binding for both parties, having the same effect of the parties’ expression of their contractual intention. The carrying out of any possible modifications requested by the Purchaser, even if subsequent to the signing of the Contract, is subject to the prior written agreement with the Seller, also in respect of the consequent adjustment of price and modalities for the performance of the supply.
Art. 4. - Prices. Payments. Claims
4.1. The prices agreed between the Seller and the Purchaser will be FCA delivery at Seller’s premises (Incoterms 2010) unless otherwise provided in writing by the Seller, as well as fixed and unchangeable.
4.2. The payments due from the Purchaser shall only be deemed to have been made at such time as the relevant funds have been credited to the Seller's current account at the bank indicated by the Seller, in the currency indicated in the Contract.
4.3. In the event of any unjustified delay in payment by the Purchaser, the Seller shall be entitled – at its sole discretion and without prejudice to any and all of the Seller’s rights arising out of the Purchaser's failure to pay the price on the relevant due date/s – to charge interest on late payments at a rate equal to the most recent General Interest Charge (GIC) published by Australian Tax Office.
4.4. Any possible claim concerning the performance and the carrying out of the Contract shall not entitle the Purchaser to suspend or delay payments.
4.5. The Seller shall be entitled to suspend and/or terminate the Contract with immediate effect and by sending a mere notice to the Purchaser: (a) in the event that the Purchaser fails to duly fulfil its obligations to pay the price (including the obligation to make the advance payment) as well as its obligations to open documentary credits, to provide and/or create guarantees, to send credit instruments, inter alia, to be held on fiduciary deposit or to comply with other payment terms, in relation to the supply provided under the Contract or other supplies; as well as (b) in the event that the Purchaser becomes subjected to any form of insolvency proceedings, or in the event that its assets change substantially so as to clearly endanger its ability to carry out its obligations hereunder. In relation to possible delays exceeding 45 (forty-five) days in the contractual payments to be paid by the Purchaser following a notice that the goods are ready, the Seller shall be entitled – by way of alternative to the termination of the Contract – to resell to third parties the goods ready for shipment (and to make any possible modifications to said goods for such purpose) and to re-determine the time schedules for delivery/shipment of said goods and possibly the entire supply pursuant to the Contract. Said new time schedules for delivery/shipment (and new time schedules for the fulfilment of the Seller’s other obligations in accordance with the terms hereof) shall run from the date of communication to the Purchaser of the Seller’s decision to avail itself of the above right and shall not be longer than the time periods originally agreed, without prejudice to the right to compensation for any possible damages suffered by the Seller. The Purchaser shall be obliged to comply with the new time schedules determined by the Seller pursuant to the above provisions and communicated in writing to the Purchaser by the Seller.
4.6. In the event of any material breach by the Purchaser of its obligations under the Contract, then, in addition to any rights that the Seller may have under the Contract, the Seller shall be entitled to retain, by way of liquidated damages, the advance payment made by the Purchaser, without prejudice to the Seller’s right to claim compensation for any further damages suffered.
4.7. By means of the Contract the Seller grants the Purchaser a licence to use the application software for the functioning of machinery, subject to the prior and regular payment of the contract price on the part of the Purchaser. The Seller shall be entitled to provide free up-dating of this application software, on condition that the Purchaser makes payments on the due dates provided in the Contract, also in case of purchase by means of leasing transaction. In any event, in case the Purchaser fails to pay the contract price on the due dates, then the functioning of the application software will be automatically deactivated. Following the payment of the contract price on the part of the Purchaser, according to the terms of the Contract, the Seller shall immediately provide back the functioning of the machinery. The Seller grants the Buyer a license also to use the PLC software for the automation of the machinery, exclusively with the configuration set by the Seller, at the same conditions provided above.
4.8. In the event that the parties agree that the Purchaser shall be entitled to pay the price for the supply by means of a leasing transaction, (a) the Purchaser shall carry out and issue, within the scope of its relationship with the leasing company which shall purchase the goods and services which are the subject matter of the Contract, all acts and declarations/documentation in compliance with the provisions of these Conditions (by way of example, but not by way of limitation, with regard to the issuing of the acceptance test report), regardless of the contents of the purchase conditions stipulated between the Seller and the leasing company (“Purchase Conditions of Leasing”), (b) the Purchaser guarantees that, during the performance of the sale relationship with the Seller, the above leasing company shall carry out acts in full compliance with these Conditions and the Contract, as if the Purchase Conditions of Leasing applied only to the extent that they are not incompatible with these Conditions and therefore the Seller shall be entitled to enforce its rights provided by these Conditions and the Contract vis-à-vis the Purchaser, and (c) the Purchaser undertakes to indemnify and hold the Seller harmless from and against any and all damages which may arise out of the application of the Purchase Conditions of Leasing instead of these Conditions, even where the Purchase Conditions of Leasing include terms purporting to prevail over any other agreement stipulated by the Seller.
Art. 5. - Retention of title
5.1. In the event that payment, be it in whole or in part, is to be made after delivery, the Seller shall retain title thereto until full payment of the price.
5.2. Should the Purchaser fail to pay even one instalment, which is greater than an amount equal to one eighth of the total purchase price of the goods or should the Purchaser fail to pay two instalments, in accordance with the terms hereof, then the Seller shall be entitled either to terminate the Contract with effect as of such time as notice has been given to the Purchaser or to declare that the Purchaser has lost its right to pay on an instalment basis and demand the immediate payment of all or part of the amounts outstanding. In the case of termination of the Contract for reasons attributable to the Purchaser, the Seller shall be entitled to obtain the immediate return of the machinery sold and shall also be entitled to retain any instalments received from the Purchaser by way of compensation for the use of the machinery, without prejudice to the Seller’s rights to claim compensation for any further damages suffered.
5.3. The Purchaser hereby undertakes to take all steps necessary in order to either (i) create a valid retention of title in said country in favour of the Seller, which retention of title is in the widest form permitted under the laws of said country and is duly enforceable, inter alia, as against third parties or (ii) create a guarantee in favour of the Seller which has the same legal value and effect as such a retention of title.
5.4. The Purchaser undertakes (i) not to sell or assign the machinery to, or allow use of the machinery by, third parties, as well as (ii) not to remove the machinery without the Seller’s written consent, and (iii) to stipulate an all risks insurance policy over the machinery, for an amount equal to the contract price of the machinery, indicating the Seller as the insured party, and provide the Seller with a copy of said insurance policy before the delivery of the machinery.
Art. 6. – Acceptance test prior to Delivery
Delivery. 6.1. The parties may agree to carry out an acceptance test of the machinery, at the Seller, prior to delivery, Terms and conditions of carrying out any such test must be defined in the Contract. Upon completion of this test, the Seller and the Purchaser will sign a pre-delivery acceptance test report.
6.2. The delivery of the machinery and of the other elements of the supply shall be carried out in accordance with the shipment schedule specifically agreed between the parties and duly set forth in the Contract. The delivery dates must be considered indicative only and not binding on the Seller, resulting in the exclusion of liability for any possible damages, and the running of the delivery dates will remain suspended up to the definition of the supply pursuant to the preceding articles 1 and 2.
6.3. Any delay by the Purchaser in providing any information or carrying out any tasks which are necessary in order for the Contract to be performed, or equally any delay by the Purchaser in fulfilling its obligations under the Contract (in particular, the obligations provided under Article 4.5 par. a) shall entitle the Seller to postpone the delivery dates for a period corresponding to the length of the delay on the part of the Purchaser, without prejudice to any other right of the Seller provided under these Conditions.
6.4. Without prejudice to the terms of Art. 6.3 above, in the event that it is not possible to deliver the machinery which are ready for shipment for reasons beyond the Seller’s control, then once 15 days have passed from the Seller having advised the Purchaser in writing that the goods are ready, then the Seller shall be entitled (without prejudice to any other rights) to request the Purchaser liquidated damages of 0,5% of the contract price for each week of delay, up to a maximum amount of 6% of the contract price, without prejudice to the Seller’s right to terminate the Contract after 3 months of delay (retaining the amounts already received by the Purchaser under to the Contract by way of compensation), and without prejudice, in any event, to the Seller’s rights to claim compensation for any further damages. Subject to any possible written agreement between the parties with regard to the storage of the goods for a fixed period of time, the Seller shall be entitled at any time to effect delivery or in any event demand that the Purchaser takes delivery of the goods upon the Seller’s first request and enforce any of its rights arising at law or under the Contract.
Art. 7. - Packaging and Delivery
7.1. The packaging provided by the Seller consists of wooden pallets and shrink-wrap nylon. Any different packaging may be provided upon the Purchaser’s request and at the latter expenses.
7.2. In any event, prior to the installation / use of the goods, the Purchaser shall store the goods in a temperate and dry place, suitable to protect them.
7.3. Any trans-shipment of the goods that the Purchaser may decide to carry out during the transport of the goods to the place of final destination shall be previously agreed by the Seller and carried out at the Purchaser’s expenses and risk.
7.4. Unless otherwise contractually agreed between the parties, the goods are delivered FCA the Seller’s premises (Incoterms 2010). Without prejudice to the terms of Article 7.3 above, it is understood that any risk shall pass to the Purchaser pursuant to the agreed delivery term (Incoterms 2010).
Art. 8. - Storage of the goods
Assembly. 8.1. The goods which are shipped shall be stored by the Purchaser at the place of destination, in premises which are suitable for the purposes of protecting the goods from any type of damage or deterioration, and insured, at the Purchaser’s expense, by means of an all-risks insurance policy. Upon the Seller’s request, the Purchaser shall ensure that the goods delivered by the Seller, being complete and in a perfect condition for the installation thereof, shall be duly placed on the site designated for assembly.
8.2. In order to carry out, if provided, the assembly and start up of the supply, the Purchaser undertakes to: a) position the machinery in its final position, according to the technical specification provided by the Seller unless otherwise agreed between the parties; b) supply the equipment, the lifting gear and means of transport, the power supply and everything else required by the technicians appointed by the Seller as technically necessary in order to carry out the assembly including any possible labour, the management and supervision of which shall at all times remain the responsibility of the Purchaser. Any machines and tools which the Purchaser may allow the technicians appointed by the Seller to use shall be equipped with the accident prevention devices provided under the regulations in force in Australia; c) not to engage the technicians appointed by the Seller in any activities other than those which fall within their sphere of competence and are specifically authorised by the Seller himself; d) be responsible for, indemnify and hold the Seller harmless, in respect of any obligation relating to local health and safety at work regulations; e) adopt all the necessary safety measures and precautions to prevent accidents and safeguard the assembly and acceptance test workers against physical injury, in compliance with all regulations imposed by law.
8.3. In the event that the assembly is not included in the price agreed in Art. 4, but is still requested by the Purchaser, the costs will be charged to the Purchaser according to the tariffs in force of the Seller. In this case the Purchaser also undertakes to: a) sign the attendance sheet that the technicians appointed by the Seller are provided with in order to ascertain the hours worked by the personnel; it being understood that, otherwise, the hours indicated by the Seller in the relevant invoice shall be considered as valid and correct; b) reimburse the Seller in respect of any travel expenses (return ticket), in travelling from the Seller’s place of business to the Purchaser’s premises, incurred by the Seller for its own appointed technicians; c) reimburse the Seller expenses incurred by the stay of appointed personnel (travel, board and lodging etc.), who shall be accommodated in a hotel of a standard not less than a second class hotel or otherwise in accommodation of the same standard; ensure that the technicians appointed by the Seller have a means of transport to and from their hotel/lodgings and the work site;
8.4. In the event that, for reasons not attributable to the Seller, assembly takes longer than the time scheduled by the Seller, then the period originally scheduled shall be extended accordingly; in such case, the fees relating to the services provided hereunder shall be those of the Seller in force at the time said services are effectively carried out. All risks relating to the use of the machinery shall pass to the Purchaser upon completion of the assembly of the machinery.
8.5. Upon completion of the assembly, the Purchaser and the Seller will sign a certification of completed assembly and will carry out the loadless functional test of every machine or lines of machinery supplied.
8.6. The Purchaser undertakes to provide the Seller with qualified personnel for the purposes of training and maintenance in the use and maintenance of the machinery as specified by the Seller.
8.7. In case the delivery of the Goods is delayed for more than two weeks compared with expected delivery time at the time of the order confirmation, for reasons not caused by the Seller, the Purchaser agrees to pay storage fees equal to $250 per week per pallet.
Art. 9. - Acceptance test
9.1. Upon completion of the activities referred to in Art.8, the Seller and the Purchaser shall carry out an acceptance test, if so specifically provided by the Contract; otherwise the supply shall be deemed as successfully tested and finally accepted.
9.2. In case during the testing of the functioning of the machinery, the machinery does not show any serious problems which may prevent the Purchaser from using the machinery as contractually agreed, or in case said problems are rectified by the Seller, then the Purchaser shall be obliged to sign the acceptance test report of the supply, without prejudice to the Seller’s obligation to provide technical assistance under warranty, pursuant to Article 10 below, in order to rectify any possible defects or non-compliance of the supply. This is without prejudice, in any event, to the subsequent measurement of the performances during the testing of the machinery when it is “up and running”, if contractually provided. If the Purchaser fails to sign the acceptance test report confirming the positive result of the acceptance test, then the Purchaser shall not be entitled to use the machinery, unless otherwise expressly agreed in writing by the Seller.
9.3. Should the technical assistance carried out by the Seller, for one or more time as the case may be, not rectify the defect or non-compliance of the goods supplied, which prevents the achievement of the production performances possibly provided by the Contract, then the parties shall verify whether such defect/non-compliance determines a substantial decrease of the value of the goods. In the latter case the Purchaser shall be entitled to obtain a reduction of the price of said goods, up to maximum amount of 5% of the contract price, it being excluded the right to terminate the contract. This article shall not apply in case the Contract provides specific conditions relating to the performances during the acceptance test or the testing of the machinery when it is “up and running”.
9.4. If, for reasons not attributable to the Seller, it is not possible to carry out the acceptance test within 30 days from the assembly, or in case the machinery have been in any event used by the Purchaser for manufacture purposes, then the acceptance test shall nevertheless be deemed to be carried out with positive result and the machinery shall be deemed to be finally accepted by the Purchaser without any reserve (without prejudice to the Seller’s obligations provided under Article 10 below).
9.5. Any possible periods of inactivity/waiting of the Seller’s personnel (prior to or during the acceptance test) which are not the normal consequence of the acceptance test and not attributable to the Seller, shall be charged to the Purchaser according to the Seller’s rates.
9.6. The issuance of the acceptance test report provided above shall amount to final acceptance of the supply on the part of the Purchaser as the latter thereby indubitably acknowledges that the goods supplied by the Seller, when connected to each other, assembled and started up, and using suitable raw materials under the Purchaser’s responsibility, indeed enable the Purchaser to achieve the use contractually agreed and in any event comply with the Contract (in case of virtual acceptance test pursuant to art. 9.4 above). Without prejudice to the Seller’s obligations pursuant to Article 10 of these Conditions, any future variations in the functioning/production capacity of the supply shall not in any event be covered by the warranty granted by the Seller, without prejudice to the possible testing of the machinery when it is “up and running”.
9.7. It is agreed that, in the event of any possible breach of these Conditions and/or Contract on the part of the Seller, any possible remedies not expressly provided by these Conditions are hereby expressly excluded and, in any event, any possible liability on the part of the Seller for damages in respect of the lack of or a reduction in production, in addition to any indirect or consequential damages, is hereby excluded.
9.8. The provisions of this Article 9 may be integrated with specific provisions provided in the Enclosures to the Contract. In case of objections/claims in respect of the carrying out and/or result of the acceptance test, then the Seller shall be entitled to request to the Chair of Resolution Institute to nominate an arbitrator, in order to ascertain, on behalf of both parties, whether or not the machinery can be deemed tested in accordance with the terms of the Contract. It is understood that the expert’s decision shall be binding for both parties, having the same effect of the parties’ expression of their contractual intention. Should the expert ascertain the existence of the conditions for a successful testing of the machinery in accordance with the terms of the Contract, then the costs for the expert opinion shall be borne by the Purchaser, whilst in any other case said costs shall be borne by both parties in equal parts.
Art. 10. - Warranty period
10.1. With regard to any possible defectiveness in the supply hereunder, a warranty in respect of manufacturing defects in the machinery and other components shall apply and shall run for a period of 12 months as of the date of delivery of each machinery to the Purchaser/User, and the period of the warranty may not in any event extend beyond a period of 2,500 (two thousand five hundred) working hours of the machinery, unless otherwise expressly agreed in writing by the parties.
10.2. The warranty consists in either the repair or replacement, at the Seller’s sole discretion and at its expense, of the structural parts and other components of the machinery which may prove to be broken or defective due to manufacturing defects. The parts which are to be replaced as per above shall be delivered EXW Ex Works (Incoterms 2010). With regard to the carrying out of repairs or assembly which, on the basis of the Seller’s reasonable opinion, are of moderate difficulty from a technical point of view, then the Purchaser – following the Seller’s instructions from afar - shall carry them out using its own personnel and at its expense; with regard on the other hand to the carrying out of repairs or assembly which are of notable difficulty from a technical point of view, the Seller shall send a specialised technician to the Purchaser’s premises. The technical assistance shall always be subject to the acceptance by the Purchaser of the Technical Assistance Offer of the Seller which shall identify the applicable conditions for any activities which are not under warranty. The Purchaser undertakes to allow the Seller to establish a remote connection with the operating/control system of the machinery, at any time.
10.3. The Seller shall have the right to request the Purchaser to return the defective components which have been replaced for their inspection and approval of the warranty.
10.4. The warranty shall cover all the individual structural parts and other components of the machinery, but it shall not cover the parts which are subject to wear and tear. Further, the Seller shall not be liable for any damages or deteriorations of whatever nature caused by use which is different from the use provided in the Use and Maintenance Manual, by the failure to suspend the use of the machinery in the case of functioning problems, or in any event due to any other reason not attributable to the Seller.
10.5. The warranty shall in any event lose any and all effect should any equipment or spare parts not supplied by the Seller be installed in the machines, and in any case, should any modifications have been made without the Seller’s written consent or in case of services carried out on the part of the unauthorized personnel.
10.6. Under no circumstances shall the Seller be liable for any damages of whatever nature arising out of the improper use, poor maintenance and/or generally any acts which are not in line with the maintenance and user instructions. The Purchaser shall be solely responsible for ensuring that the products manufactured using the machinery supplied by the Seller are in compliance with the safety regulations in force and the Purchaser shall in any event be liable for any claims made by any party which may have possibly suffered damages and it shall duly hold the Seller harmless from and against any such claims.
10.7. The warranty shall be subject to the Purchaser duly informing the Seller in writing, within 8 days following the discovery thereof of the particular defect or lack of quality (failing which the Purchaser shall lose its rights under the warranty in respect thereof) and shall also be subject to the Purchaser making an express request to the Seller in writing, to provide assistance under the warranty.
10.8. Any other damages, including any possible damages resulting from the lack of or a reduction in production, in addition to any indirect or consequential damages, and the right to terminate the Contract, are expressly excluded from the warranty.
Art. 11. - Confidentiality obligations. Intellectual and industrial property rights
11.1. The Purchaser shall keep strictly confidential and will not disclose any technical information (such as, but not limited to, drawings, schedules, documentation, formulae and correspondence) received from the Seller or in any way learnt during the course of the Contract. Any such information may only be disclosed to third parties with the Seller’s prior authorisation in writing.
11.2. It is understood that the Seller shall (i) at all times remain the owner of any and all intellectual/industrial property rights over the machinery and other elements of the supply, including the Engineering and Know-how, and that (ii) the use of the Engineering and Know-how in addition to the use of the material supports delivered by the Seller relating to said items, is granted to the Purchaser only for the purposes of the Contract.
11.3. Each party will be entitled to use, by way of commercial references, the other party’s name and the Contract.
Art. 12. Force majeure
12.1. Force majeure shall mean any act or event which is unforeseeable, beyond the parties’ will or control and in respect of which a remedy may not be found in a timely manner (such as, for example, acts of war, even if undeclared, embargo, riot, insurrection, fire, sabotage, natural disaster, epidemic - including but not limited to coronavirus covid-19 -, acts or provisions of government authorities, inability to procure raw materials, equipment, fuel, energy, components, labour or transport).
12.2. Upon the occurrence of any event of force majeure which is such as to prevent either party hereto from fulfilling its obligations hereunder, then the time for the party so affected to fulfil its obligations shall be automatically extended for a period corresponding to the duration of the event of force majeure, without any damages (including liquidated damages) being payable by said party, save for the Purchaser’s obligation to pay the amounts due by way of the price, in respect of which the contractually agreed due dates shall remain in full force and effect. It is further understood that in the event that the above payment is to be effected, in whole or in part, by means of a documentary credit, then upon the occurrence of an event of force majeure and upon the Seller’s request, the Purchaser shall be obliged to extend the term of said documentary credit, failing which, by way of exception to all the above terms, the Seller shall be entitled to effect delivery of the goods, inter alia, to the general warehouses and cash in said documentary credit.
12.3. In any event, the parties shall take all measures within their power to ensure the reinstatement, within the shortest possible time, of the performance of the obligations which have been delayed as a result of the event of force majeure. The parties hereto are also obliged to give each other notice, within no more than 15 days, of the beginning of and of the end of any event of force majeure. If this obligation is not met, then the party in default shall lose its right to rely upon the event of force majeure.
12.4. Should the parties hereto be unable to carry out their obligations in accordance with the time schedule provided hereunder for a period of 6 months or more as a result of an event of force majeure, then the parties shall meet as soon as possible in order to examine the impact of such events on the terms of the Contract, in particular, on the prices and on the delivery schedule, and they shall come to an agreement as regards the terms and conditions for the continuance of their respective obligations. In the event of a possible disagreement between the parties or equally in the event that either party refuses to take part in such meeting, then the matter may be submitted solely to arbitration pursuant to Art. 14 below.
12.5 With specific regard to the Covid-19 coronavirus epidemic, if the Contract is signed when such epidemic is already causing delays in one of the parties' business activities and/or a suspension in whole or in part of such activities (or it is foreseeable that it will cause them), the provisions of the above articles 12.2, 12.3 and 12.4 will still apply, it being hereby agreed to deem the above-mentioned situation in any event as force majeure, although not unforeseeable at – and not supervening in respect of – the time when the Contract was signed.
Art. 13. No assignment of the Contract. Assignment of credits. Written form.
13.1. party hereto may assign the Contract without the prior written consent of the other party hereto.
13.2. However, the Seller shall be entitled to assign, in whole or in part, to third parties its credit relating to the payment of the sums due from the Purchaser under the Contract. The Seller shall not be obliged to obtain the Purchaser’s consent to any such assignment of credit and it is understood that, with regard to providing notice of any such assignment, to the extent necessary so as to ensure a valid and effective assignment of the credit, a simple written notice thereof to the Purchaser shall suffice. It is understood that in the event of assignment of the above credit, then the Seller shall also be entitled to assign, in whole or in part, to the assignee of the credit the rights provided under Art. 5 above. Should the above rights fail to be assigned to the assignee of the credit, then said rights may continue to be exercised by the Seller, directly or through a representative, in the event of non-performance or breach on the part of the Purchaser of its payment obligations under these Conditions and/or the Contract.
13.3. The Contract supersedes any and all prior agreements between the parties, be they oral or in writing. All notices provided by the Contract must be given in writing.
Art.14. Arbitration clause and Governing law.
14.1. Any and all disputes between the parties which may arise out of these Conditions and/or the Contract shall be settled in an amicable manner by means of negotiations between the parties held in good faith. In the event that it is not possible to reach an amicable settlement within a reasonable period of time, then any such dispute shall be submitted to arbitration in accordance with, and subject to, the Resolution Institute Arbitration Rules. Unless the parties agree upon an arbitrator, either party may request a nomination from the Chair of Resolution Institute. The arbitration proceedings shall be held in the language of these Conditions.
14.2. By way of partial exception to the foregoing, the Seller shall be entitled to initiate legal proceedings before the courts of the location of the Seller’s registered offices or before the courts of the location of the Purchaser’s registered offices or any other courts which have jurisdiction vis-à-vis the Purchaser, both for urgent and/or precautionary injunction or relief (including, by way of example and not by way of limitation, proceedings for the enforcement of guarantees relating to the Contract, including proceedings for the return to the Seller of goods sold with retention of title), and for trial/ordinary judgment, upon the condition however that, in the latter case, the Purchaser has not previously initiated arbitration proceedings. The possible invalidity of this article 14.2. shall in no way affect the validity of article 14.1 above.
14.3. The Contract shall be governed by Australian Law (with the result that, the provisions of the United Nations convention on contracts for the international sale of goods signed in Vienna on 11th April 1980 shall apply, save to the extent that they are not varied, even by way of de facto derogation, by the terms of the Contract).