Conditions of Sale
1.1 These General Terms and Conditions ("GTC") will apply to all supplies of products from our catalogs (hereinafter "Products") that will be carried out to any customer (hereinafter "Customer") by Besenzoni (hereinafter "Seller " or "Besenzoni")
1.2 Agreements notwithstanding these GTC will be effective towards the Customer only if contained: (i) in the supply contract (hereinafter "Supply Agreement"), as defined in paragraph 3.2 below, (ii) in documents subsequent to the conclusion of the Supply Agreement and the content of which has been accepted in writing by the Seller. Even in the case of exceptions agreed upon in writing, the following conditions will continue to apply unless expressly stated otherwise.
1.3 Under no circumstances shall the Seller be bound by any general contract conditions of the Customer, even if they are referred to or reported in the orders or in any other documentation sent to the Seller by the Customer. No behavior of the Seller may - in this context - be interpreted or used in order to express tacit acceptance by the Seller with respect to the general terms and conditions of the Customer.
1.4 In the event that the Customer is a consumer, the provisions of these GTC will not affect the rights due to the same based on the legal provisions relating to sales made to consumers
2. Products - Changes
2.1 The representations and/or images regarding the Products shown on the Seller's websites, brochures, catalogs, price lists or similar documents are purely indicative and illustrative. The technical and physical characteristics as well as the quality of the Products are reported only in the Seller's technical manuals. Any other document showing the technical and physical characteristics as well as the quality of the Products is therefore purely indicative and will not be binding for the Seller.
2.2 Under penalty of ineffectiveness of the guarantee referred to in Article 8 and any other conventional and/or legal guarantee, each Product must be used and applied in accordance with the Seller's directions for use referring to the Products and reported in the catalogs and/or in the Seller's technical manuals or otherwise communicated or made accessible by the Seller to the Customer and, in any case, in compliance with the diligence required by the nature of the Products.
2.3 It is the Customer's responsibility, before concluding the Supply Contract, to ensure that the Products are suitable for the specific purpose and/or use for which he intends to purchase them and, furthermore, to ensure that the Products comply with the applicable legislation of wherever the Customer intends to import, distribute, sell or make any use of them.
2.4 The Customer will be required to present to the buyers of the Products and to third parties the characteristics of the Products as well as the guidelines for use and application. In any case, the Customer will be exclusively responsible for the declarations made towards third parties in relation to the Products, their characteristics and their use and/or application and must hold the Seller harmless and indemnified from any damage suffered in relation to such statements, should they be false, incomplete and/or inaccurate.
3. Estimates - Conclusion of the Sales Agreement - Tolerances
3.1 The Seller's estimates, either verbal or written, do not constitute contractual proposals.
3.2 The Sales Agreement will be finalized through:a) the submission of the offer by the Seller and the written acceptance by the Customer without any modification to the offer and to these GTC; orb) the placement of the order by the Customer and the written acceptance by the Seller.It is understood that the Customer undertakes to provide all the data or documents necessary for the complete definition of the order and that orders relating to Products that will require particular and/or total or partial customizations that are not part of Besenzoni's standard production, will be considered accepted only after the Customer's approval and signed return of the technical drawings expressly prepared.
4. Prices and payment
4.1 The Products will be supplied at the prices agreed between the parties in the Sales Agreement or, if the Supply Agreement does not mention any price, at the prices listed in the Seller's price list in force at the time of the conclusion of the Sale Agreement, which is implicitly accepted by the Customer. The prices shown on the order confirmation do not include packaging, transport, taxes and other costs. The cost for Products with non-standard customizations will be defined in the final balance on the basis of the provisions of the order / order confirmation.
4.2 The payment of the Products shall be issued by the Customer as indicated in the Supply Agreement or otherwise agreed in writing between the parties. Payments will be considered issued by the Customer only when the relative amount has been credited to the Seller's current account.
4.3 In the event that payments are overdue, the Seller will be entitled to:a) be paid the statutory interest on arrears, in accordance with the applicable law;b) interrupt deliveries to be made, upon written notice to the Customer, until the amounts due and the related default interest have been fully paid.
4.4 If these amounts and interest are still not paid 15 (fifteen) days later from the agreed payment date, the Seller may also, at his discretion, alternatively or cumulatively, and in addition to any other right or remedy according to the law or these GTC:a) demand immediate payment of any residual debt, even if an installment payment or deferred payment has been agreed;b) terminate the Supply Agreement and definitively withhold any sums already received in relation to this Contract and/or other Supply Agreements, making an offsetting between the Customer's debt and all payments received;c) revoke discounts and bonuses that have been agreed between the parties.
4.5 The rights referred to in paragraphs 4.3 and 4.4 above may be exercised at any time by the Seller even in the event that the Customer is in a state of financial difficulty - causing prejudice to the timely fulfillment of their payment obligations - resulting, by way of example and not limited to, from the raising of protests, from the reduction of guarantees granted and/or from the failure to provide promised guarantees, as well as from the occurrence of any unpaid, even if such circumstances have occurred in the context of the relationships between the Customer and its other suppliers.
4.6 The Customer will not be able to assert any default by the Seller nor will he be able to initiate any legal action against until any amount due has been paid, pursuant to paragraphs 4.3 and 4.4.
5. Retention of Title
5.1 The Seller will retain ownership of the Products sold until they are fully paid up for by the Customer.
5.2 In the event of non-fulfillment or delay in fulfilling the obligation to pay the price of the Products, without prejudice to the provisions of paragraphs 4.4, 4.5 and 4.6 above, the Seller will have the right to access the premises where the Products are located, to possess them again and definitively forfeit, as a penalty, any sums paid by the Customer for the Products in question.
5.3 If the Buyer requests to hold the shipment of the completed material, and if this request is accepted by the Seller, the Customer will be charged for all the higher costs deriving from this suspension, such as: storage fees, legal interest on arrears, in accordance with applicable law and so on as quantified by the Supplier, with no exceptions by the Customer.
6. Delivery terms
6.1 The Seller undertakes to comply with the delivery and shipping terms, except in the events of force majeure or in any case circumstances not attributable to him.
6.2 The Seller will not be liable in any way for the failure or delayed fulfillment of any obligation relating to the supply of the Products if such failure or delayed fulfillment is due to a cause the Seller cannot reasonably resolve through ordinary diligence.
6.3 In such event, the term for the execution of the supply will be extended for the entire duration of the event, it being understood that, should this event prevent the execution of the supply for more than 6 (six) months, the Seller may exercise the right to withdraw from the Sales Agreement without penalty
6.4 The estimations for delivery are made on the assumption that the Customer provides all the necessary details for the processing of the order and that no irregularities occur in the supplies of the necessary materials, delays or difficulties in transport, failure to comply with the payment conditions also if related to previous supplies, plant breakdowns, accidents caused by natural forces, strikes, or any other obstacle to manufacture and delivery, with no difference whether such events affect the Seller or its suppliers.
6.5 The delivery term is in any case not essential or peremptory. Except in cases of willful misconduct or gross negligence, in no case the Seller will be liable for compensation for direct or indirect damages of any nature deriving from the delayed deliveries. In no case of delayed delivery, the Customer will have the right to terminate the Sales Agreement.
7. Delivery of the goods
7.1 It is up to the Customer and/or the recipient to make the necessary reservations, complaints or actions against the carrier, since the Seller is in no case responsible for any failures or losses or damage occurred with the carrier.
7.2 The deliveries are all carried out with freight collect, even if using Besenzoni's means of transport, except for special agreements defined each time.
7.3 The Products will be packed and ready for shipment according to the protection systems generally adopted by the Seller. The necessary packaging, for deliveries by scheduled carriers, will be invoiced. If the Customer deems the use of special packaging or additional protections necessary, he must make an express request to the Seller, it being understood that, in this case, all related costs will be borne by the Customer.
CLAIM AND WARRANTY
8.1 Besenzoni undertakes to remedy any defects and/or anomalies of the Products being sold as consequence of a design and/or material defect for a period of 12 (twelve) months from the date of delivery, and more precisely from the date of the sales document, but in any case, the ancillary costs are not recognized, such as, by way of example and not limited to, the costs for hauling, launching and brushing as well as travel and transfer costs which will always be borne by the Customer.
8.2 The possible existence of faults and/or defects will give the right to obtain, at Besenzoni's unquestionable choice, the repair or replacement of the defective product, it being understood that any problems deriving from regular deterioration of the products or deriving from lack of ordinary maintenance are excluded from the warranty. For the guarantee to be activated, the Customer is required to report in writing any defects of the products within 8 (eight) days of delivery, by registered mail or certified mail and the term is understood to be from the date of collection at the Besenzoni headquarters or from the date of receipt of the goods. Following this report within the terms indicated above, Besenzoni will be provide a return authorization number which needs to be indicated on the transport document coming with the product, carriage paid, to the headquarters in Paratico (BS) via Foppe 13 or other location communicated by the Seller together with the indication of the sales document or Besenzoni sales invoice. The contested products must be returned complete in all their parts, in their original packaging and in perfect condition; failing that, any lack or damage cannot be charged to Besenzoni and the restoration will be charged to the customer. In any case, the right to the guarantee will lapse if the products are used for an improper use, other than what they are intended for, if the storage and/or assembly instructions are not observed or if they are modified without the prior and explicit authorization from Besenzoni.
8.3 The authorization to return the allegedly non-conforming or defective Products will in no case constitute recognition of the non-conformities or defects by the Seller.
8.4 The rights and remedies described in the previous paragraphs constitute the only rights and remedies under warranty granted to the Customer. To the maximum extent permitted by law, further liability or obligations of the Seller in relation to the supply of non-conforming or defective Products are excluded, including, but not limited to, liability and obligations for any direct, indirect or consequential damages, loss of profit, etc. to which this responsibility can be connected.
8.5 This warranty replaces and excludes any other warranty, express or implied, provided for by law or otherwise.
Applicable Law - Dispute Resolution
9. Invalidity of individual contractual clauses
9.1 The invalidity of a provision of these GTC will not compromise the validity of the remaining provisions which will remain fully valid and effective.
10.1 The Customer undertakes to: (i) process as confidential all information/data/drawings/know-how/documentation transmitted to him by the Seller or which he has become aware of in the execution of the individual Sales Agreements, regardless of whether or not such information is marked or identified as confidential ("Confidential Information"); (ii) not to disclose and not communicate to third parties, either in whole or in part, the Confidential Information without the prior written consent of the Seller; (iii) limit the use of such Confidential Information and its access for purposes relating to the execution of individual Sales Agreements; (iv) take all necessary measures to ensure that its employees and collaborators avoid disclosing the Confidential Information to third parties or using it improperly. The Confidential Information may not be reproduced without the prior written consent of the Seller, and all copies thereof will be immediately returned upon request by the Seller.
10.2 The above provisions do not apply to information that: (i) is public or becomes public not for disclosure by the Customer, its employees or collaborators, or (ii) was in the possession of the Customer before he received it from the Seller or (iii) has been disclosed by sources that are not subject to the restrictions to which the Customer is subjected in relation to their use, or (iv) may be disclosed to third parties on the basis of a written authorization from the Seller.
11. Applicable Law - Dispute Resolution
11.1 These GTC and all Sales Agreements that the parties will enter into on the basis of these GC will be governed by Italian law.
11.2 Any dispute relating to these GTC and/or to the Supply Contracts that will intervene will be subject exclusively to Italian jurisdiction and, in relation to it, the Court of Bergamo or in case of a Specialized Section, the Court of Brescia will be exclusively competent.
11.3 However, the unconditional right to act, as plaintiff, under the Customer's jurisdiction before the competent court is granted solely in favor of the Seller.
12. Language of the GTC
12.1 The text of these GTC is written in both Italian and English.
12.2 In case of discrepancy, the text in Italian will prevail over the English
Pursuant to articles 1341 and 1342 CC, the clauses specifically approved are:
2. Products - Changes
4. Prices and payment
5. Retention of Title
6. Delivery terms
7. Delivery of the goods
11. Applicable Law - Dispute Resolution