Tecniche di redazione del contratto internazionale

Tecniche di redazione del contratto internazionale

Xxxxxxxx ricorrenti nei principali contratti

Scelta xxxxx xxxxx applicabile e dei sistemi di risoluzione del contenzioso

Clausole penali

Clausole di risoluzione del contratto Clausole di forza maggiore

Digital Distribution Agreement

This Agreement made this 1 day of October, 2005 describes the legal relationship between ………. (hereinafter referred to as “Label”) and (collectively with our licensees and assignees referred to in this Agreement as ………”)

1.Definitions.

The following terms shall have the following meanings for purposes of this Agreement:

“Territory” means the Universe.

GOVERNING LAW

This Contract and any disputes arising out of, or relating to, this Contract shall be governed by the laws of the State of Delaware without regard to the conflict of law rules thereof. This Contract excludes the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods.

Lodo camera arbitrale di Milano

Il contratto è regolato dalle leggi dell’Europa Unita. Foro xxxxxxxxxx xxxx xxxxxx xxxxx Camera di Commercio di Milano per arbitraggio in conformità alle sue norme ed alle sue procedure in vigore al momento dell’applicazione dell’arbitraggio.

LAW AND INTERPRETATION

This Agreement is governed by, and shall be construed, applied and interpreted in accordance with the generally recognized and established principles of International Law, in particular the Unidroit Principles of International Commercial Contracts 2010.

Xxxxxxxx compromissoria contratto con compratore egiziano ARBITRATION

Any dispute, difference arising from this contract shall be referred to and decided by

the Cairo Regional Arbitration Center. The Court of Arbitration shall be composed of three arbitrators. One to be appointed by the buyer and one by the Supplier and upon this nomination a third by the two parties jointly. In case no agreement between them could be reached within sixty (60) days after the appointment of the two arbitrators the third shall be appointed by the Cairo Regional Arbitration Center.

The third arbitrator shall be neither of A.R.E. nationality nor of the supplier’s nationality.

Acquirente cinese

16. ARBITRATION

All disputes among the Seller and the Buyer in connection with this Contract or the execution thereof shall be settled friendly through negotiations. In case no settlement can be reached, the case may then be submitted for arbitration to China International Economic and Trade Arbitration Commission in accordance with its Rules of Arbitration promulgated by the said Arbitration Commission. The arbitration shall take place in Beijing and the decision of the Arbitration Commission shall be final and binding upon the Seller and the Buyer; neither party shall seek recourse to a law court nor other authorities to appeal for revision of the decision. Arbitration fee shall be borne by the losing party. In the course of arbitration, all the parties shall continue to execute the present Contract except those under arbitration. The Contract shall be interpreted in accordance with the laws of People’s Republic of China.

Controparte russa

11.1. All disputes and differences between parties, which may arise out of the present Contract or in connection with its fulfillment, shall be finally settled by Arbitration Institute of the International Chamber of Commerce in Stockholm (Sweden) under its Rules, by three (3) arbitrators appointed in accordance with its Rules

11.3. For this Contract the substantive law of Sweden shall be applied. Conflict rules and jurisdiction to courts of the general jurisdiction are excluded. The place of arbitration shall be Stockholm. The language to be used in arbitral proceedings shall be English. The arbitration award shall be final and binding for both parties.

DISPUTES/JURY WAIVER

a) All disputes arising from or related to this Contract, which are not disposed of by mutual agreement may be decided by recourse to an action at law or in equity in accordance with subparagraph (b) of this provision. Until final resolution of any dispute hereunder, SELLER shall diligently proceed with the performance of this Contract as directed by the XXX Procurement Representative.

b) TO THE EXTENT PERMITTED BY APPLICABLE LAWS, XXX AND SELLER EACH WAIVE ANY RIGHTS WHICH EITHER MAY HAVE TO TRIAL BEFORE A JURY OF ANY DISPUTE ARISING FROM, OR RELATED TO, THIS CONTRACT AND FURTHER STIPULATE AND CONSENT THAT ANY SUCH LITIGATION BEFORE A COURT OF COMPETENT JURISDICTION SHALL BE NON-JURY.

Clausole di vendita con riserva della proprietà

Articoli 1523, 1524, 1525 c.c.

“High time/effort, security only with registration”

Retention of title clause (ROT) - Xxxxxxx Xxxxxx

Attribuisce al venditore la riserva della proprietà con pattuzione opponibile ai creditori del compratore, ma con diverse formalità a seconda dei vari ordinamenti.

Convenzione di Vienna, articolo 4.

La presente Convenzione disciplina esclusivamente la formazione del contratto di compravendita e i diritti e gli obblighi che un tale xxxxxxxxx xx sorgere tra il venditore e il compratore. In particolare, salvo disposizione contraria esplicita della presente Convenzione, questa non concerne: a) la validità del contratto o di singole disposizioni del contratto o la validità degli usi; b) gli effetti che il contratto può avere sulla proprietà delle merci vendute.

La clausola può avere diverse formulazioni e gradi di intensità:

a) Il venditore mantiene la proprietà della xxxxx xxxx al momento in cui non riceve integralmente il pagamento del prezzo della fornitura, oppure (cd. ALL MONIES CLAUSE) in relazione ad ogni eventuale credito esistente in relazione a tutti i rapporti in essere (anche diversi da quello cui fa riferimento la clausola:

The items delivered ("Secured Goods") shall remain our property until each and every claim against the Customer to which we are entitled under this business relationship has been duly satisfied. If the value of all our security interests against the Customer exceeds the value of all our secured claims by more than 20%, we shall release a corresponding part of the security rights at the Customer's request.

B) previsioni che contemplano il diritto del venditore di avere accesso ai locali del compratore al fine di riprendere possesso xxxxx xxxxx, l’obbligo del compratore di depositare e custodire la merce tenendola distinta e separata da altri beni o beni di proprietà xx xxxxx, contrassegnando la stessa in modo da renderla agevolmente individuabile (cd. trust/tracing clause)

For the duration of the retention of title, the Customer is prohibited from giving the Secured Goods in pledge or as security. In case of a seizure of the Secured Goods or other acts or interventions by third parties relating to the Secured Goods, we shall be immediately informed thereof in writing by the Customer.

The re-sale of the Secured Goods by the Customer in the ordinary course of business shall only be permissible to clients on condition that the Customer receives payment from his client or retains title so that the property in the Secured Goods is transferred to his client only after fulfilment of the client's obligation to pay.

C) elenco di eventi che fanno sorgere il diritto a far valere la clausola

1. XXXX Machinery reserves title to the delivery item until receipt of all payments from the contract. In the case of a breach of contract by the purchaser, in particular in the event of default in payment and in the case where a petition is filed for the commencement of insolvency proceedings, XXXX Machinery is entitled to take back the delivery item following demand for payment the purchaser shall be obligated to release said item. In case of attachments or other interference by third parties, the purchaser shall immediately notify XXXX Machinery in writing.

Inconvenienti xx xxxxxxxx per l’esercizio del patto xx xxxxxxxxx dominio

- Se il compratore è fallisce/è soggetto ad una procedura concorsuale: ogni azione va adottata con il consenso del curatore/sulla base di una autorizzazione/ordine giudiziale. In Italia: opponibilità del patto xx xxxxxxxxx dominio che risulti da atto scritto di data certa antecedente al fallimento.

- La clausola deve essere adeguatamente “incorporated”, con formulazione chiara e richiamo adeguato alle condizioni generali.

- Xxxxxxx efficacia qualora si tratti di beni deperibili, o soggetti a rapida obsolescenza, o quando la merce è destinata a fare corpo unico con altre strutture (come nel caso di impianti e macchinari).

Contrasto con xx xxxxx del luogo dove deve essere xxxxx xxxxxx

10. Retention of Title

10.2 If the retention of title is not effective under the laws of the country in which the product is located, a respective security shall be deemed agreed upon which is as far as possible equivalent to the retention of title. If the cooperation of the customer is required for the enforcement of such rights and/or for the retention of title, the customer shall take all measures necessary for the enforcement and preservation of such rights and for the retention of title.

10.3 Insofar as it is enforceable under the laws of the country in which territory the products are located to agree upon a further-reaching retention of title (e.g. the assignment in advance of claims of the customer arising from the sale of the products delivered by us), the customer shall, upon our request, agree upon such a further-reaching retention of title with us.

Retention of Title, Collateral Security

2. XXX Machinery is entitled to insure the delivery item at the purchaser's cost against theft, breakage, fire, water and other damage, if the purchaser has demonstrably failed to take out insurance themselves.

3. The purchaser is entitled to resell the delivery item in the ordinary course of business. However, the purchaser herewith assigns to XXX Machinery all claims accruing to them from the buyer or from third parties by reason of the resale, irrespective of whether the goods subject to retention of title are being resold in unprocessed or processed form. The purchaser is also authorized to collect these claims even after assignment.

By accepting this Purchase Order, Seller warrants that the goods and services furnished will be free from defects in materials and workmanship, merchantable and in full conformity with Buyer’s specifications, drawings, and data and Seller’s descriptions, promises, or samples, and that such goods will be fit for the Buyer’s intended use, provided Seller has reason to know of such use, and that Seller will convey good title to the goods, free and clear from all liens, claims, and encumbrances. Upon Xxxxx’s request, Seller shall furnish Buyer with a formal waiver or release of all liens by Xxxxx and/or Buyer’s suppliers.

Consegna, Incoterms e trasferimento del rischio

4. Transfer of Risk

4.1 Delivery is effected FCA dispatch place at the delivering plant (Incoterms® 2010) except as expressly otherwise agreed.

4.2 At the customer’s request and cost we shall insure shipments against customary transport risks.

3. DELIVERY, TITLE AND RISK OF LOSS:

Unless expressly stated otherwise on the face of Seller's Invoice or in Seller's written Quotation applicable hereto, all shipments are FOB factory, Pacoima, California, except for exports; export shipments are, at Seller’s discretion, EXW or FCA (per INCOTERMS 1990) Seller's U.S. factory or U.S. port of export or Seller's branch office or other location designated by Seller. Risk of loss or damage to Goods shall pass to Buyer upon delivery to the carrier.

TITLE; RISK OF LOSS.

TITLE SHALL PASS TO BUYER UPON BUYER’S RECEIPT OF GOODS AT DESTINATION. RISK OF LOSS OF ALL GOODS SHALL REMAIN IN SELLER UNTIL RECEIPT BY BUYER AT DESTINATION, UNLESS OTHERWISE SPECIFIED IN THIS PURCHASE ORDER, EXCEPT FOR LOSS OCCASIONED BY GROSS NEGLIGENCE OR WILLFUL NEGLECT OF BUYER OR ITS CUSTOMER. ALL GOODS SHALL BE SHIPPED PREPAID, INSURED FOR THE BUYER’S FULL PRICE AND F.O.B TO THE BUYER’S MAIN ADDRESS OR OTHER ADDRESS PROVIDED TO THE SELLER.

Uso incorretto degli Incoterms

⮚All shipment are FOB destination unless seller specifies otherwise in writing

⮚All products purchased by customers pursuant to these terms and conditions will be shipped FOB sellers manufacturing facility.

⮚Ex-works your warehouse as per Incoterm 2010

TIMELY PERFORMANCE

(a) SELLER's timely performance is a critical element of this Contract.

…..

(d) In the event of a termination for convenience or change, no claim will be allowed for any manufacture or procurement in advance of SELLER's normal flow time unless there has been prior written consent by XXXXX .

EXCLUSIVITY

Seller will sell and supply the Products exclusively to the Purchaser for the sale in the Territory during the duration of the Agreement, subject to the terms and conditions of this Agreement.

The Purchaser will sell the Products only and exclusively inside the Territory and will take any step and measure in order to avoid that the Products are re-sold or in any case circulated outside the Territory.

TRADEMARKS, COPYRIGHT AND PROPRIETARY RIGHTS

The Purchaser hereby unconditionally acknowledges that Seller is the sole owner of all the trademarks and/or trademark applications (and any registration issuing therefrom), as well as of the corresponding trade names, distinctive signs and features and of the goodwill appertaining thereto.

The Purchaser agrees neither to register nor to have registered in the past, any trademarks, trade names or symbols of Seller, nor any trademarks, trade names or symbols that may be confused with the Seller ones, in the Territory or elsewhere.

The Purchaser may from time to time include Seller’s trademarks and symbols in its letterhead, stationery, fiscal documents, business cards, upon condition that any such use is given prior written approval by Seller as per the indications provided by the purchaser regarding said use.

Nothing in this Agreement may be construed as a concession or a deemed or implied concession to the Purchaser (i) the license, right or privilege to manufacture (or permit to be manufactured) the Products and/or Products associated with the Trademark.

No right, title or interest in any patents, trademarks, trade names or trade secrets, or in any pattern or design of any such Product, shall pass to the Purchaser under this Agreement. Nothing in this Agreement or the commercial relationship of the Parties shall be construed as granting either Party rights in the intellectual property of the other.

INDEPENDENT CONTRACTORS

In performing their respective duties under this Agreement, each of the Parties will operate as an independent contractor. Nothing contained herein will in any way constitute any association, partnership, or joint venture between the parties hereto, or be construed to highlight the intention of the parties to establish any such relationship.

Neither Party will have the power to bind the other Party or incur obligations on the other Party's behalf without the other Party's prior written consent.

NO RIGHT OF INDEMNITY OR COMPENSATION

Given the non-agency nature of this Agreement, the termination by notice or by cause of the Agreement does not entitle the Purchaser to any compensation or indemnity whatsoever in favour of commercial agents arising out of the termination of the Agreement.

SELLER EXCLUSION OF LIABILITY

In no event shall the Seller be liable to the Purchaser for any incidental, consequential, special or punitive damages of any kind or nature arising out of this agreement or the sale of Products, whether such liability is asserted on the basis of contract, tort (including the possibility of negligence or strict liability), or otherwise.

MINIMUM NET PURCHASE

The Purchaser undertakes to ensure a minimum net purchase of Products during the period of the Agreement: the minimum net purchase per each single store will be fixed by a further following agreement. If the minimum mentioned above is not attained, the Seller shall be entitled, after evaluating the relevant reasons, at his discretion:

a) to terminate this Agreement, or

b) to cancel the exclusivity.

NON WAIVER

The failure of either party hereto at any time to require performance by the other of any provision thereof shall in no way affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof constitute a waiver of any succeeding breach of the same or any other provision hereof, or constitute a waiver of the provision itself.

MINIMUM TURNOVER CLAUSE

The Distributor undertakes to purchase each year, Products amounting to at least the minimum yearly turnover indicated in Annex    .

If the Distributor fails to attain before the end of any year the minimum purchase in force for such year, the Supplier shall be entitled, by notice given in writing by means of communication ensuring evidence and date of receipt, at his choice, to terminate this Agreement, to cancel the Distributor’s exclusivity or to reduce the extent of the Territory.

It is expressly agreed that any decision by the Supplier not to make use of the above rights in case of non-attainment of the minimum turnover by the Distributor, even if repeated for several years, will not be considered as a waiver of its right to invoke the same clause in the future.

7. CANCELLATION FOR DEFAULT

a. Buyer may, by written notice to Seller, cancel all or part of this Contract: (i) if Seller fails to deliver the Goods within the time specified by this Contract or any written extension; (ii) if Seller fails to perform any other provision of this Contract or fails to make progress, so as to endanger performance of this Contract, and, in either of these two circumstances, within ten (10) days after receipt of notice from Buyer specifying the failure, does not cure the failure or provide Buyer with a written detailed plan adequate to cure the failure if such failure reasonably cannot be cured within such ten (10) days and such plan is acceptable to Buyer’s Authorized Procurement Representative; or (iii) in the event of Seller's bankruptcy, suspension of business, insolvency, appointment of a receiver for Seller's property or business, or any assignment, reorganization or arrangement by Seller for the benefit of its creditors.

b. Seller shall continue all work not canceled.

…..

e. If, after cancellation, it is determined that Seller was not in default, the rights and remedies of the Parties shall be as if the Contract had been terminated according to the "Termination for Convenience" Article of this Contract.

DEFAULT

(a) XXXXX , by written notice, may terminate this Contract for default, in whole or in part, if SELLER

(i) fails to comply with any of the terms of this Contract;

(ii) fails to make progress so as to endanger performance of this Contract;

(iii) fails to provide adequate assurance of future performance;

(iv) files or has filed against it a petition in bankruptcy; or

(v) becomes insolvent or suffers a material adverse change in financial condition

SELLER shall have ten (10) days (or such longer period as XXXXX may authorize in writing) to cure any such failure after receipt of notice from

XXXXX. Default involving delivery schedule delays, bankruptcy or adverse change in financial condition shall not be subject to the cure provision.

TERMINATION FOR CONVENIENCE

(a) XXXXX reserves the right to terminate this Contract, or any part hereof, for its convenience. In the event of such termination, XXXXX shall terminate by delivering to SELLER a Notice of Termination specifying the extent of termination and the effective date. SELLER shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this Contract, SELLER shall be paid a percentage of the Contract price reflecting the percentage of the Work performed prior to the notice of termination, plus reasonable charges SELLER can demonstrate to the satisfaction of XXXXX using its standard record keeping system have resulted from the termination. SELLER shall not be paid for any Work performed or costs incurred which reasonably could have been avoided.

(b) In no event shall XXXXX be liable for lost or anticipated profits, or unabsorbed indirect costs or overhead, or for any sum in excess of the total Contract price. SELLER's termination claim shall be submitted within ninety (90) days from the effective date of the termination.

The provisions of this Article shall not limit or affect the right of Buyer to cancel this Contract for default.

EXCUSABLE DELAY

6.1 The scheduled acceptance and delivery date provided at Article 4.1 above represents the best estimate and is based on: (1) timely receipt by SELLER of all information necessary to permit SELLER to proceed with work without delay and without interruption, (2) BUYER’s compliance with the payment terms.

6.2 Whilst SELLER shall exercise its reasonable effort to achieve the scheduled acceptance and delivery date, SELLER shall not be liable or responsible for delays or non-compliance resulting from any event beyond the reasonable control of SELLER, including, but not limited to compliance with any applicable regulation of civil or military authority, acts of any Government or on behalf of them, war declared or undeclared, insurrection, riot or other acts of civil disobedience, embargo or trade restriction, delays or shortages in transportation, fuel, vendors' and/or subcontractors' delays, strikes, lockouts, slowdowns, labour disputes, fire, accident, explosion, epidemic, unusually severe weather, flood, earthquake, delay to certification, failure in performance of a subcontractor or other acts of God.

SELLER shall give written notice to BUYER of the events causing the excusable delay. Any such event shall extend the delivery date to the extent of the delay so incurred.

14. FORCE MAJEURE 不可抗力:

The Seller shall not be held responsible for the delay in shipment or non-delivery of the goods due to Force Majeure, such as war, serious fire, flood, typhoon and earthquake, or other events agreed upon between both parties, which might occur during the process of manufacturing or in the course of loading or transit. The Seller shall advise the Buyer immediately of the occurrence mentioned above and within fourteen days thereafter, the Seller shall send by airmail to the Buyer for their acceptance a certificate of the accident issued by the competent government authorities where the accident occurs as evidence thereof.

Under such circumstances the Seller, however, is still under the obligation to take all necessary measures to hasten the delivery of the goods. In case the accident lasts for more than 10 weeks, the Buyer shall have the right to cancel the Contract.

The Buyer shall not be held responsible for failure or delay to perform all or any part of this Contract due to Force Majeure.

Forza maggiore xx xxxxxxxxx proposto da compratore xxxxx

9.1. None of the Parties is responsible for full or partial non-fulfilment of any of its obligation as per present Contract if such non-fulfilment is a consequence of circumstances out of the control of the Party.

9.2 Force majeure mean any cause, which is beyond Party's reasonable control, including but not limited to flood, storm, fire, earth-quake and other natural calamities (“acts of God”), as well as lock-out, strikes (national or international), interruptions of/or delay in transport, power or energy failures, embargo, governmental prohibition of trade, interference by civil or military authorities, acts (including delay or failure to acts), regulations or orders of governmental authority, acts of war (declared or undeclared), national emergency, (such as blockade, limitations on export/import) arising after signing the Contract and/or influencing Contract fulfilment.

9.3 The Party unable to fulfil its obligations shall inform within 3 calendar days the other Party in written form of the start, expected time of remaining in force (expected time before cessation) of the said circumstances. Force-majeure circumstances shall be supported by written documents and, as far as practical, evidenced by the Chamber of Commerce of either the Seller’s or Buyer’s Country.

XII. Liability

Except in so far as expressly provided for in the Contract, if any, and in clauses VII, X and XI of these General Terms and Conditions for the Sale and Delivery of machinery, the SELLER does not make or undertake any representations, warranties, responsibilities, or liabilities under the Contract, in tort or in contract, for reasons, whatsoever. Particularly, the SELLER does not assume any liability for any of the following categories of damage, costs, losses or expenses and BUYER shall release the SELLER from any liability therefore:

(a) loss of profit, anticipated profit, loss of production, loss of use or business interruption and the costs of obtaining or maintaining finance (in all cases whether direct or indirect); and

(b) unless not covered by (a), indirect or consequential damages, costs, losses or expenses.

Warranty Period

The Seller warrants that for a period of … (….) months from delivery of the System or portion thereof (Warranty Period) to the Delivery Point, the System will substantially conform to Seller’s specifications and be free from defects in material.

Any Warranty claim shall be sent by the Buyer, in writing, to the Seller, within 30 (thirty) calendar days from detection of the defect, as per Annex …. and, in any event, within the Warranty Period.

The Seller, at its sole option, shall either repair or replace non-conforming items and shall provide the Buyer with a technical report regarding the defects and the relevant corrective action undertaken. The Seller shall inform the Buyer that the claim is being processed and shall inform Xxxxx on the modalities for the replacement/repair of the item.

The Seller warrants spares and repairs or replacement parts for six (6) months after returning the parts to the Buyer, or the remainder of the Warranty Period, whichever is longer.

Warranty Exclusion

The Warranty excludes non-conformities resulting from:

• fair wear and tear;

• failure to properly store, install, operate, or maintain the System, as per the Seller’s technical and operative manuals;

• the personnel carrying out installation, commissioning, operational and maintenance activities on the System, neither received training qualified by the Seller, nor received similar training by personnel qualified by the Seller;

• wilful damage, negligence, abnormal working conditions.

The remedies under this Article … are Xxxxx’s sole remedies for all claims of non- conformities or defects under this Contract.

The Seller disclaims any and all other warranties, express, implied, and statutory, with respect to System, including but not limited to implied warranties of merchantability, fitness for a particular purpose and title.

In case of disagreement on a warranty claim the Buyer and the Seller will nominate a technical team composed by 2 (two) representatives of each Party.

In the event that the technical team is not able to find an agreement on the warranty claim a meeting will be arranged at management level in order to solve the problem.

The Warranty and remedy provided in article (..Warranty) and the liquidated damages provided for in article (… delay and compensation) are exclusive and constitute the sole remedies of XXX and are in substitution for, and XXX hereby waives irrevocably, releases and disclaims any expectation of or reliance on, any representations or other warranties, express or implied (including but not limited to any implied warranty or satisfactory quality, fitness for use or for a particular purpose or merchantability, dealing or usage of trade) and any obligation or liability however arising whether in contract, tort (including but not limited negligence), strict liability or otherwise and all such liabilities are hereby excluded. Furthermore in no circumstances shall XXXX be liable for any loss of profit (actual or anticipated), loss of revenue or opportunity, loss or damage to reputation or goodwill, loss of anticipated saving or for any indirect or consequential loss or damage.

INDEMNIFICATION

SELLER SHALL INDEMNIFY, HOLD HARMLESS AND, AT XXX ELECTION, DEFEND XXX, ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM AND AGAINST ALL LOSSES, COSTS, CLAIMS, PENALTIES, CAUSES OF ACTION, DAMAGES, LIABILITIES, FEES, AND EXPENSES, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEY FEES, ALL EXPENSES OF LITIGATION AND/OR SETTLEMENT, AND COURT COSTS, ARISING FROM OR RELATED TO ANY ACT OR OMISSION OF SELLER, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, OR SUBCONTRACTORS AT ANY TIER, RELATED TO OR AS PART OF THE EXECUTION OF WORK TO BE PERFORMED OR OTHERWISE IN THE PERFORMANCE OF ANY OF ITS OBLIGATIONS UNDER THIS CONTRACT.

The warranties and liabilities of XXXX set forth in Articles …. are expressly in lieu of, and XXXXXXXX hereby waives and releases XXX from any and all other warranties, agreement guarantees conditions, duties, obligations, remedies, any direct, indirect or incidental or consequential damages whether in contract or in tort, loss such as but not limited to loss of operation, of profit or of use, or liabilities, whether express or implied, arising by law, custom or otherwise as to the title, airworthiness, value, quality, durability, description, condition, design, operation or merchantability, or the absence of any infringement of any patent, copyright, design, or other proprietary right, or fitness for use for a particular purpose, or as to the quality of the material or workmanship, the absence there from of latent discoverable, or as to any other representation or warranty whatsoever, express or implied (including any implied warranty arising from a course of performance or dealing or usage of trade) with respect to the Services. No agreement or understanding altering or extending XXXX liability will be binding on XXX except if in writing and signed by duly authorized XXX Representatives.

The Parties agree that this Article has been the subject of discussion and negotiation and is fully understood by the Parties and that the terms and conditions of this Agreement were arrived at in consideration of the provisions of this Article specifically including the limitations set forth in Article XVI.

Contratto soggetto a xxxxx xxxxxxxx

1. Nothing in this Agreement shall in any way exclude or limit either Party’s liability for:

a. fraud (including fraudulent misrepresentation); or

b. any liability that cannot be limited by law.

Penali

Late delivery and Liquidated Damages

For delays beyond the Grace Period, attributable to the Seller, the Seller shall inform the Buyer justifying the reasons for such delay and the Buyer shall have the right to the following:

• recovering liquidated damages at the rate of ….% (…. per cent) of the value of the delayed System per week excluding the Grace Period, provided that the total liquidated damages imposed on the Seller will not exceed …% (…. Per cent) of the total value of the delayed System; and

• after the maximum amount of liquidated damages has been recovered by the Buyer, terminate the Contract in accordance with the terms and procedures of Article … hereof.

Payment of liquidated damages by the Seller shall be in full and final satisfaction of all Buyer’s rights, claims and remedies arising out of late deliveries under this Contract.

Any delays in deliveries or service performance under this Contract which are attributable to the Buyer or to a Force majeure event will result in a proportional extension of the delivery dates under this Contract at no liability for the Seller.

In the event that the Supplier fails to deliver any Equipment, milestone and/or any other item strictly in accordance with the delivery dates set out or referred to in the Contract other than as a result of a cause embraced by the provisions of Sub-Clause …. below (Force Majeure) the Supplier shall pay to the Buyer, or the Buyer shall at its option deduct from any sums payable by the Buyer to the Supplier, liquidated damages in accordance with the following formula:

P = 0.75% (V x R)

Where:

P = Liquidated damages payable

V = Value of Equipment which has not been delivered on the correct date plus the value of any other Equipment delivered to the Company by the Supplier which cannot be used by the Company for the purpose for which it was purchased as result of this delay.

R = Number of weeks late in delivery up to a maximum of 20 weeks.

A grace period of three (3) weeks shall apply.

Payment by Supplier to Buyer under the requirements of this Clause does not relieve and/or shall not be construed to relieve Supplier from its obligations to complete the delivery of the delayed item(s) and from any of its other obligations under the Contract.

The payment of liquidated damages does not relieve the Supplier of its obligation of repairing or

49

replacing the item.

LIQUIDATED DAMAGES

7.1 In case of a delay to the scheduled acceptance and delivery date due to SELLER's failure, and where such delay shall exceed 90 (ninety) working days beyond the scheduled acceptance and delivery date for the Machinery concerned, BUYER shall have the right to claim , as liquidated damages as its sole remedy, an amount of 0.15% (zero point fifteen percent) of the price of each delayed Machinery for each complete week following the said 90 (ninety) working day period for a maximum period of 20 (twenty) weeks.

7.2 In respect of any liability arising out or in connection with this CONTRACT, including the case of delivery delays, the maximum cumulative amount for all costs, expenses and damages due from SELLER shall not exceed 3% (three percent) of the undelivered portion of the CONTRACT. Such amount excludes, if due to the Buyer in accordance with Article 10.1 of the General Terms, the return to BUYER of the Deposits received by SELLER, on the undelivered portion of the CONTRACT and shall be BUYER’s sole remedy under this Contract in lieu of any other rights and will fully indemnify BUYER for any damages suffered.

7.3 In no event, except for SELLER’s wilful misconduct or gross negligence and without prejudice to BUYER’s right under Article 9 below (Warranty), SELLER shall be liable for loss of profit or revenues, loss of use of the Machinery or any associated equipment, cost of capital, cost of substitute equipment, facilities, services claims of BUYER’s customers for such damages, or for any any indirect, special, incidental or punitive damages or exemplary damages where applica50ble.

In the event of a Turn Time delay as specified in Attachment B, or other mutually agreed, and such delay is not an “Excusable Delay” as defined in Article 7 or other cause to be considered as per Article 6 provisions and the cause of the delay is attributable solely to XXX’s fault, then XXX shall be charged a Liquidated Damage of ….. for each such day of delay, commencing on the first (1st) such day of turn time delay to final test, to a maximum of ….. Payments hereunder shall be made in the form of a credit applied toward the Final Invoice price.

LD Clause nelle GTC di venditore italiano

14.3 the amount of the liquidated damages provided by article 14.2 may not exceed a maximum aggregate amount equal to 5% off the price of the machinery spare parts and equioment and shall only be due if it has been proved that the non performance of the contractual obligations is attributable to the seller and such non performance has actually caused damage to the buyer.

Notevole differenza tra la disciplina vigente negli ordinamenti di civil law e quella sviluppatasi nei sistemi di common law.

Nei primi (come in Italia, dove la “clausola penale” è prevista e disciplinata dagli articoli 1382 e ss.c.c.) viene di regola ammessa la facoltà delle parti di prevedere penali, e viene lasciata eventualmente xx xxxxxxx la possibilità di rivederle e modificarle allorquando queste xxxxx eccessive o sproporzionate; in common law tali clausole vengono invece tradizionalmente distinte in liquidated damages clauses e penalty clauses, e si ritengono di regola (ma a certe condizioni) ammissibili le prime, e prive di effetto invece le seconde.

Si riconosce validità solo alle clausole con cui le parti hanno in sostanza determinato in via anticipata i danni nascenti dall’inadempimento, e l’abbiano fatto in modo equilibrato e ragionevole, ossia attraverso una stima dei danni che possono concretamente e ragionevolmente derivare da una violazione (la giurisprudenza inglese sottolinea che “the essence of liquidated damages is a genuine pre-estimate of damage…”), e la clausola non abbia dunque finalità “punitive”. Tale impostazione è presente in tutti i sistemi di common law, e simili clausole sono comunemente adottate ed applicate in ordinamenti nei quali xx xxxxx locale è ricalcata su quella inglese, come ad esempio Singapore o Hong Kong.

Non è sempre facile distinguere tra penale “pura” e liquidated damages clause.

Va fatta particolare attenzione alla corretta formulazione della clausola, non impiegando termini quali “penalty” o “by way of penalty”, ricorrendo invece a formulazioni ormai diffuse nella prassi del tipo “the parties agree that this clause provides a realistic pre-estimate of the loss and is not intended to be a penalty”.

MA la terminologia usata dalle parti non xxxxx xx xxxxxx da una eventuale censura qualora la clausola sia formalmente definita di liquidated damages ma abbia invece natura e sostanza di penalità.

Xxxxxx XxXxxxxx Capital Projects Ltd v Tilebox [2005] EWHC 281 (TCC)

"there must be a substantial discrepancy between the level of damages stipulated in the contract and the level of damages which is likely to be suffered before it can be said that the agreed pre- estimate is unreasonable“.

Graduazione della LD Clause a seconda della gravità dell’inadempimento.

Giurisprudenza xxxxxxx xx americana

”Genuine preestimate of future loss”: xx xxxxx non deve essere necessariamente esatta, ed il danno in concreto può essere anche significativamente maggiore o minore, ma deve tuttavia essere attendibile e “it must not be unreasonably extravagant or simply arbitrary”.

Il beneficio di una liquidated damages clause adeguatamente calibrata è xxx xxxx esonera la parte che la invoca dall’onere di provare i danni subiti (i liquidated damages sono anzi dovuti anche qualora in realtà non vi xxxxx stati danni).

Il ricorso a simili clausole risponde ad esigenze di entrambe le parti: la parte inadempiente infatti può avere un preciso vantaggio nel concordare una liquidated damages clause, poiché in tal modo determina in via preventiva l’ammontare massimo dei danni risarcibili, evitando il rischio di richieste di risarcimento per importi estremamente elevati, e garantendosi una xxxxxxxx programmazione anche sotto il profilo assicurativo.

Orgalime S 2012

Confermata l’impostazione che prevede l’applicazione di LD in percentuale rispetto al prezzo: la penale è pari allo 0,5% del prezzo, ed è dovuta per ogni settimana di ritardo; la novità è xxx xxxxx S 2012 essa scatta all’inizio di ogni settimana, con la conseguenza che è dovuta anche qualora la consegna venga eseguita entro la settimana.

Confermata l’impostazione che fissa un limite massimo dei danni da ritardo pari al 7,5% del prezzo, mentre il risarcimento complessivo dovuto al compratore per l’eventualità in cui il venditore non sia in grado di eseguire la consegna entro il termine massimo, ed il contratto venga risolto, è pari al 15%.

Differenza tra la penale prevista per il ritardo nella consegna, ed i danni dovuti qualora il contratto sia risolto

Nel xxxxx xxxx (clausola 14): “the purchaser shall be entitled to liquidated damages from the date on which delivery should have taken place”.

Per i danni derivanti invece dalla risoluzione del contratto (clausola 15): “if the purchaser terminates the contract he shall be entitled to compensation for the loss he suffers as a result of the supplier’s delay, including any consequential and indirect loss”.

L’ammontare complessivo dei danni è pari al 15% del prezzo d’acquisto, ma in xxx xxxx il meccanismo non è più quello dei liquidated damages, xxxxx xxxxx compensation, che presuppone dunque che l’acquirente dia la prova delle conseguenze dannose derivate dalla risoluzione.

Bluewater Energy Services BV v Mercon Steel Structures BV and others [2014] EWHC 2132 (TCC) relativo ad un contratto di costruzione di un impianto xxxx’oil field di Xxxx Xxxxxxxxx in Russia.

Il contratto conteneva una clausola denominata “Key Personnel” con l’elenco del personale xxx Xxxxxx destinava al progetto e la previsione che ogni eventuale sostituzione avrebbe dato luogo all’applicazione di liquidated damages per importi che variavano da 20.000 a 50.000 euro.

A seguito di una serie di sostituzioni Bluewater aveva richiesto l’applicazione dei liquidated damages, Xxxxxx aveva obiettato che la clausola era di fatto una penalty, ed era dunque “non enforceable”, poiché Bluewater non aveva subito alcun danno e l’importo di € 50.000 era stato chiaramente previsto come sanzione e deterrente alla sostituzione di personale.

La Corte ha rilevato che sebbene non fosse possibile individuare un ammontare preciso di danni conseguenti alle sostituzioni l’importo era stato determinato da soggetti esperti del settore, e tenuto xxxxx xxxxx rilevanza del progetto un importo pari a € 50.000 non era “unconsciounably extravagant”.

Unaoil Ltd v Leighton Offshore Offshore Pte Ltd [2014] EWHC 2965 (Comm)

Nullità della clausola in caso di modifiche del rapporto contrattuale Memorandum of Agreement con il xxxxx Xxxxxxxx

a) si impegna a nominare Unaoil xxxxx sub-contractor qualora sia nominata main contractor da South Oil Company nel progetto Iraq Crude Oil Expansion Project.

b) xxxxxxx xx xxxxxx liquidated damages in caso di violazione dell’obbligo.

Xxxxxxxx si aggiudica il tender ma rifiuta di nominare Unaoil sostenendo che quest’ultima non ha più l’approvazione da parte di SOC.

Articolo 8 del MOA: liquidated damages pari a 40 milioni di dollari, la clausola recita: “After careful consideration by the Parties, the Parties agree such amount is proportionate in all respects and is a genuine pre-estimate of the loss that UNAOIL would incur as a result of LEIGHTON OFFSHORE’s failure to honour the terms of the MOA.”

Corrispettivo originario del xxxxxxxxx xxxx a $75 milioni, poi ridotti a $55 milioni. Nessuna modifica della LD clause.

La corte ritiene che nel contesto originario del contratto la LD clause fosse una genuine pre-estimate of loss; a seguito della riduzione del valore del contratto a 55 milioni di dollari, la previsione di una LD a $ 40 milioni tuttavia “could no longer be a genuine pre-estimate of likely loss by a very significant margin.” “where … the contract is amended in a relevant respect, the relevant date [for determining whether the clause is a penalty] is … the date of such amended contract”.

La clausola dunque era “on any objective view, extravagant and unconscionable with a predominant function of deterrence without any other commercial justification for the clause.”

The Seller will be entitled to obtain an injunction of payment immediately enforceable from the Court of       and/or the Court of the Territory in respect of the above penalty and liquidated damages.

The expiry or termination of this Agreement shall be of no prejudice to any cause of action or claim vesting in the Parties as at the date thereof, nor to the rights which have already accrued to a Party pursuant to this Agreement.