GENERAL TERMS AND CONDITIONS OF SALE

1. SCOPE

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1.1 The sale of products (hereinafter the “Products”) by Energy S.r.l., with registered office in Montebello Vicentino (VI), Via del Progresso no. 35 (hereinafter the “Seller”), shall be governed exclusively by these “General Terms and Conditions of Sale”, which are also available and may be freely printed or downloaded in a durable format from the Seller’s website (insert link), as well as by any special terms and conditions agreed from time to time with the Buyer and specified in the Seller’s “Quotations” or “Order Confirmations”, including, by way of example, price, delivery terms and conditions, and payment terms. In the event of any conflict between these General Terms and Conditions of Sale and the terms contained in the Seller’s Quotations or in the Seller’s Order Confirmations signed by the Buyer, the latter shall prevail.

1.2 The Buyer’s signature of the Seller’s Quotation or Order Confirmation shall constitute full and unconditional acceptance of all these attached General Terms and Conditions of Sale, which, unless expressly waived or amended, shall always be deemed incorporated by reference and binding.

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2. ORDERS AND CONCLUSION OF SALES CONTRACTS

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2.1 Each order for Products placed by the Buyer shall be made in writing. The Seller shall always reserve the right to accept or reject such order.

2.2 Each order shall specify precisely the types, models, quantities, technical characteristics and any customisations of the Products ordered, as well as any other information required by the order proposal forms prepared by the Seller or by its appointed agent, if any. The Buyer shall bear full responsibility for any inaccurate or incomplete information provided in the orders submitted by the Buyer.

2.3 Upon receipt of the Buyer’s order, the Seller, which shall not be bound by such order, reserves the right to send the Buyer a written Order Confirmation containing these General Terms and Conditions of Sale. In any event, the Seller reserves the right to amend the specific terms and conditions of the Buyer’s order. Any special terms and conditions agreed verbally or by telephone between the parties shall have no validity unless expressly stated in writing in the Order Confirmation.

2.4 The contract for the sale of the Products shall become effective when the Seller receives the Order Confirmation or the Quotation signed by the Buyer for acceptance. In any event, the Seller’s Order Confirmation, together with these General Terms and Conditions of Sale, shall be deemed accepted by the Buyer if, within 7 (seven) calendar days of its transmission, the Seller has not received formal written acceptance or any written complaints from the Buyer; or, unless otherwise specified, upon Delivery.

2.5 Once the sales contract has been concluded, the Buyer may neither modify its subject matter nor withdraw from the contract. However, upon a written request from the Buyer received in any event before shipment of the Products, the Seller may, at its sole discretion, agree to terminate the contract in whole or in part, provided that the Buyer shall be required to pay a penalty equal to 20% of the sale price relating to the portion of the sale being terminated. Such amount shall be retained by the Seller as compensation for damages, without prejudice to any higher amount that may be notified by the Seller in consideration of the costs incurred in connection with any work performed or components purchased up to the date on which the Buyer’s termination request is received (including any commitments towards third parties, reasonable profits and overhead costs), upon presentation of an invoice by the Seller. In any event, the Buyer shall remain liable to pay the Seller all amounts due in respect of the portion of the sale that has not been terminated. The Seller’s right to claim compensation for any greater damages in the event of termination not mutually agreed between the parties shall remain unaffected.

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3. DELIVERY

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3.1 Unless otherwise agreed in writing between the parties, all sales of the Seller’s Products shall be EXW loaded Montebello Vicentino (Incoterms® 2020 ICC, Paris), at the Seller’s registered office or from its warehouses or branches, irrespective of the carrier selected by the Buyer. Transport costs and any insurance costs shall always be borne by the Buyer, including where the Products are transported using the Seller’s vehicles or entrusted to carriers or freight forwarders other than those designated by the Buyer. The Products shall always travel at the Buyer’s risk.

3.2 Delivery dates and times shall always be indicative and shall not be binding upon the Seller. Deliveries shall be made in accordance with the Seller’s production and delivery requirements. The Seller reserves the right to divide the Products covered by a single contract into several deliveries or to combine into a single delivery Products specified in different contracts entered into with the same Buyer.

3.3 The order shall be deemed fully fulfilled by the Seller when the Buyer is notified that the Products are available for shipment. From that moment, the Seller shall no longer be liable in any way for any damage, loss, destruction or deterioration of the Products, even if the Products remain physically in the Seller’s possession.

3.4 The Seller shall not be liable for failure to deliver or delays in delivery of the Products attributable to force majeure, unforeseeable circumstances or events including, by way of example, strikes, riots, civil unrest, acts of war, workplace disturbances, shortages of raw materials, power shortages, fires, earthquakes, natural disasters in general or any other cause beyond the Seller’s control. In all cases of delayed delivery of the Products, the Buyer shall not be entitled to terminate the contract or claim compensation for damages.

3.5 The Seller reserves the right to suspend delivery of the Products sold in the event of irregular payment for previous supplies.

3.6 The Products shall be packed using standard export packaging suitable for loading onto ordinary means of transport and unloading by means of suitable and approved forklifts or cranes. The Seller shall not be liable for any damage caused to the Products during unloading as a result of improper handling.

3.7 Unless otherwise agreed in writing between the parties, assembly and installation of the Products sold shall always be the responsibility of the Buyer. Should the Buyer wish the Products sold to be tested at the Seller’s premises by the Seller’s technicians, the Buyer shall notify the Seller in writing in the order. The Seller shall notify the Buyer of the additional costs for such tests, which, unless otherwise agreed in writing between the Parties, shall be borne by the Buyer. The Buyer shall also specify the technical requirements applicable to such testing and provide all information concerning the location, environment and climatic conditions of the place where the Products will be installed, so as to enable the Seller to assess the suitability of the requested testing and of the Products and to adopt all appropriate measures for testing the Products ordered. Upon completion of the test, the Seller shall, if requested, provide the Buyer with confirmation of the successful outcome. The test results shall be deemed satisfactory and no complaint may be made by the Buyer where the results of the requested tests comply with the technical data and requirements specified by the Buyer.

3.8 Following the successful completion of testing, the Products shall be delivered in accordance with the terms specified in the Order Confirmation, provided that, where the scheduled delivery is delayed as a result of testing requested by the Buyer, the scheduled delivery date shall be postponed accordingly. The Buyer shall arrange to take delivery of the Products at the location specified in the Order Confirmation. Where the Buyer requests final testing of the Products at their installation site, the Buyer shall bear the travel, board and accommodation expenses of the Seller’s technicians sent to perform such testing. Following successful completion of the final test, the Buyer shall sign the successful test report, thereby fully accepting the Products.

3.9 If the Buyer delays taking delivery of the Products for more than 15 (fifteen) working days from the Seller’s notice that the goods are ready for delivery, the Buyer shall automatically be charged storage costs incurred by the Seller in an amount equal to 0.2% of the price of the Products sold for each calendar day of delay. It is understood that, from the date on which the Buyer is notified that the goods are ready for delivery, the risk of loss or destruction of the Products shall pass to the Buyer.

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4. PRICES

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4.1 The prices indicated in the Seller’s price list in force from time to time are exclusive of any taxes, duties, packaging, transport or insurance costs. Prices may be varied or amended by the Seller, at its sole discretion and without prior notice, in the event of changes in the tax regime or sudden and unexpected increases in labour or raw material costs.

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5. PAYMENTS

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5.1 Incomplete payment or failure to make payment within the agreed terms shall constitute a material breach by the Buyer, and the Seller shall be entitled to terminate the contract pursuant to Article 1456 of the Italian Civil Code by means of a simple written declaration stating its intention to rely on this clause, sent to the Buyer by registered letter with acknowledgement of receipt, without the need for any prior notice of default, without prejudice to the obligation to pay the price and to the Seller’s right to claim compensation for any greater damages.

5.2 In the event of an instalment sale, the Products sold shall remain the exclusive property of the Seller until full payment has been made by the Buyer. Failure to pay even a single instalment shall entitle the Seller, at its sole discretion, to declare the Buyer immediately deprived of the benefit of the payment term and demand immediate payment of the outstanding balance, or to terminate the sales contract immediately, retaining the instalments already paid by the Buyer as compensation for damages, as well as claiming the fair compensation provided for under Article 1526 of the Italian Civil Code, in addition to compensation for any greater damages.

Payment by cheque shall not invalidate the retention of title, since such payment shall be deemed made and accepted subject to collection. The granting of any moratorium or extension of payment terms through the issue of new instruments or any other form of deferred payment shall under no circumstances constitute a novation of the contractual relationship; consequently, the retention of title and all other Terms and Conditions of Sale agreed herein shall remain fully effective.

5.3 Payments made by the Buyer after the agreed due dates shall be subject to default interest at the rate established by Italian Legislative Decree No. 231/2002. Such interest shall automatically become due to the Seller without the need for any formal notice of default to the Buyer, without prejudice to the Seller’s right to claim compensation for any greater damages pursuant to Article 1224 of the Italian Civil Code.

5.4 Should any dispute arise between the parties, the Buyer may not suspend or delay its payment obligations pursuant to Article 1462 of the Italian Civil Code.

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6. TECHNICAL AND DESIGN MODIFICATIONS

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6.1 The Seller shall not be required to modify Products already in production in order to implement technical modifications requested by the Buyer after conclusion of the contract pursuant to paragraph 2.4 above.

6.2 Any modification resulting from any of the following circumstances shall be subject to equitable adjustments to the price, delivery time and any other terms and conditions:

a) modifications requested by the Buyer;

b) any delay caused by the Buyer or by its employees, subcontractors or any other party that may reasonably be considered to be under the Buyer’s control;

c) any emergency presenting risks to persons or property. In such circumstances, the Seller may act at its discretion to prevent any damage, injury or economic loss.

6.3 All modifications following conclusion of the contract, with the exception of actions made necessary by emergencies as referred to in point (c) of Article 6.2 above, shall be implemented by means of a specific modification request submitted in writing and signed, or otherwise approved in advance by both parties. The Seller shall not commence any modification until it has received appropriate authorisation for such modification. All modification requests shall be submitted within a reasonable period of time from the occurrence of the circumstances giving rise to the need for such request.

6.4 In any event, without prejudice to the essential characteristics of the Products, the Seller reserves the right, even after conclusion of the contract pursuant to paragraph 2.4, to replace certain components and/or construction and/or technical details of its Products without any obligation to notify the Buyer thereof, and to make any replacements deemed necessary using the latest versions of equivalent Products that have superseded the previous versions and have a form and functions comparable to those being replaced. Such replacements shall not be considered modifications and shall therefore not be subject to the provisions of this Article 6.

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7. WARRANTY

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7.1 The Seller grants the Buyer a warranty covering the mechanical parts of the Products for a period of 12 (twelve) months from the date of delivery of the Products referred to in paragraph 3.3 above. The Seller warrants that, during such period, the Products shall be free from defects in materials and workmanship, provided, however, that: (1) such Products are operated and maintained under normal conditions and in accordance with the standards set out in the specifications provided by the Seller; and (2) installation, configuration, adjustment and commissioning have been carried out correctly and in accordance with the specifications made available by the Seller.

7.2 The warranty, which does not cover parts subject to normal wear and tear or damage caused during transport, is the sole and exclusive warranty provided by the Seller in respect of the Products, to the exclusion of any other warranty, whether express or implied. At the Seller’s discretion, the warranty shall consist of the free repair or replacement of the Products or any part thereof which, in the Seller’s sole judgement, is deemed defective, or alternatively the issuance of a credit note for an amount equal to the purchase price of the Products concerned, solely upon return of such Products in accordance with the instructions provided by the Seller. Products repaired or replaced under warranty shall be warranted for whichever is the longer of the following periods: six months from the date on which they are supplied or the remaining warranty period applicable to the original component.

The warranty shall be conditional upon defects being promptly reported to the Seller within 8 days of delivery in the case of immediately visible defects and within 8 days of discovery in the case of hidden defects. In the event of uncertainty regarding the delivery date, the production date shown on the Product identification plate shall prevail. To be valid, any claim must be submitted exclusively to the Seller’s registered office by means of an official written communication.

7.3 Any delay in payment or partial or total default by the Buyer shall automatically result in the Buyer forfeiting its rights under this warranty.

7.4 Warranty repairs shall be carried out at the Seller’s premises or, at the Seller’s sole discretion, at a service centre appointed by the Seller. In order to benefit from the warranty, the Products shall be delivered, at the Buyer’s expense, to the Seller’s premises or to the service centre previously indicated by the Seller. If the Product is deemed defective, the parties shall agree on the most cost-effective and efficient method of remedying such defects.

7.5 In addition to the circumstances referred to in paragraph 7.3 above, this warranty shall automatically become void in the following cases:

- the Products have undergone technical intervention, disassembly or repair by persons not authorised by the Seller;

- the Product failure is due to incorrect installation and/or electrical connection, tampering, improper use, use contrary to the instructions or use exceeding the operating limits specified in the operating instructions;

- fuels or lubricants unsuitable or not compliant with the written requirements contained in the Seller’s and/or engine manufacturer’s operation and maintenance manuals have been used;

- the Product has been subjected to an overload exceeding the specified limits;

- the reported damage is due to normal wear and tear resulting from deterioration of major components, such as, by way of example, rotating engine parts, piston seals, valves or any component normally subject to natural wear;

- maintenance has been omitted or has been insufficient, or the defect results from installation that does not comply with applicable regulations and/or good practice.

The warranty shall apply exclusively on condition that the Seller’s inspection of the Product establishes that the alleged defect was not caused by improper use, negligence, incorrect installation, operation, maintenance, repairs, modifications or alterations performed by anyone other than the Seller, nor by an accident, deterioration of the Products or their components caused by electrical or electromagnetic disturbances, or by any of the events referred to in this paragraph 7.5.

7.6 By express derogation from Article 1494 of the Italian Civil Code, the Seller shall under no circumstances be liable for damage caused by defective Products or by delays in warranty service. In particular, by way of example and without limitation, under no circumstances shall the Seller be liable for interruption of operations, loss of profits, costs incurred, loss of data or similar damages (whether direct or indirect), or for any other type of incidental, indirect or consequential damage of any kind. The maximum aggregate liability in respect of any claim shall never exceed the sale price. Any legal action must be brought within 18 months from the date on which the right of action arises.

7.7 Unless otherwise specified in the Order Confirmation, the Seller does not warrant and shall not be liable for: (i) designs, materials or construction criteria provided or specified by the Buyer; (ii) products manufactured or supplied by other manufacturers or suppliers specified by the Buyer; (iii) commercially available mechanical components, electrical components, hardware and software incorporated into the Products supplied. Any warranty or indemnity applicable to such items shall be limited solely to the warranty, if any, provided by the original manufacturer or supplier.

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8. EXPORT CONTROL COMPLIANCE

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8.1 The Buyer acknowledges and agrees that the export, sale or transfer of the Products to certain persons and/or entities or to certain destinations/end uses may be subject to restrictive measures or prohibitions under United Nations (UN), European Union (EU), United States of America (USA) or United Kingdom (UK) export control legislation and/or international economic sanctions.

8.2 The Buyer undertakes not to export, resell or transfer, directly or indirectly, the Products to any natural or legal person, entity or body subject to restrictive measures, including those listed on the United Nations Security Council Consolidated Sanctions List, the European Union list of persons, groups and entities subject to EU financial sanctions, the Office of Foreign Assets Control (OFAC) Specially Designated Nationals and Blocked Persons List and/or the UK Consolidated List of Financial Sanctions Targets, and/or to entities owned or controlled by persons or entities included on such lists, or for uses prohibited by EU, United Nations, United States or United Kingdom export control legislation and/or international economic sanctions.

8.3 The Buyer shall not sell the Products to any person or entity whom the Buyer has reason to believe may be involved in the manufacture or use of military or nuclear explosive applications, in civil nuclear facilities not covered by IAEA (International Atomic Energy Agency) safeguards, or in applications relating to the development and/or manufacture of chemical weapons, weapons of mass destruction or missiles capable of being used as delivery systems for such weapons.

8.4 The Buyer represents that the Products shall be exported, re-exported or transferred to third parties only on condition that such third parties agree to be bound by the same obligations set forth in this provision and provided that such third parties are known to be reliable and trustworthy in complying with such obligations.

8.5 The Buyer shall indemnify and hold harmless Energy S.r.l. from and against any and all direct and indirect damages arising from any breach of United Nations, European Union, Italian, United States or United Kingdom export control regulations and international economic sanctions in connection with the Products and any sale or transfer thereof to sub-purchasers or end users.

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9. DOCUMENTATION AND LICENCES

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9.1 Illustrative or descriptive documentation relating to the Products, drawings, weight, capacity, dimensions and similar information is provided for indicative and informational purposes only; therefore, the Seller shall not be liable for any inaccurate or incomplete information contained therein.

9.2 The Products supplied may include software licences, subject to the Buyer’s acceptance of additional terms and conditions set forth in separate licence agreements entered into with the Seller or in third-party licence agreements. Such terms and conditions shall constitute the sole agreements and provisions applicable to the software included in the Products.

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10. GOVERNING LAW AND JURISDICTION

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10.1 Each contract for the sale of Products shall be governed exclusively by Italian law, with the express exclusion, in the case of international sales, of the 1980 Vienna Convention on Contracts for the International Sale of Goods.

10.2 Any dispute relating to or arising out of the interpretation, performance or termination of contracts for the sale of the Products shall be subject to the exclusive jurisdiction of the Court of Vicenza, without prejudice to the Seller’s right to bring proceedings before the competent courts of the place where the Buyer has its registered office, offices or warehouses.

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The Buyer

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Pursuant to Articles 1341 and 1342 of the Italian Civil Code, the Buyer declares that it has read, understood and specifically accepts the following clauses of these General Terms and Conditions of Sale: 1.2 (applicability of these General Terms and Conditions of Sale); 2.5 (penalty in the event of agreed termination of the contract); 3.3 (time at which the order is deemed fully fulfilled); 3.9 (storage charges for goods not collected); 5.1, 5.3 and 5.4 (termination for failure to make full and timely payment, interest, limitation on the right to raise objections); 6.2, 6.3 and 6.4 (technical and design modifications and replacements by the Seller); 7.2, 7.3, 7.5c, 7.6 and 7.7 (Warranty, limitations and grounds for forfeiture); 8 (export control compliance); 9 (documentation and licences); 10.1 and 10.2 (governing law and jurisdiction).