GENERAL CONDITIONS OF SALE
1 – Definitions
For the purposes of this contract, the terms listed below shall have the following meaning:
Buyer: any natural or legal person or other entity that holds, as buyer, a sale contract with the Seller, ZAITEX S.p.A. a sole-shareholder company, VAT Number 02034790242, with registered office in Italy, 36031 Dueville (VI), Via Artigianato 15.
Product: any good that is the object of a sale contract between ZAITEX S.p.A. and a Buyer.
Manager of ZAITEX S.p.A.: director or officer of ZAITEX S.p.A. validly authorized to represent ZAITEX S.p.A. with reference to the matters indicated from time to time in the contract.
Trademarks: all the trademarks of which ZAITEX S.p.A. is owner or licensee.
2 – Purpose
These Terms and Conditions of Sale shall apply to all Sales of products between ZAITEX S.p.A. and any Buyer, including future sales between the same parties. In the event of any conflict between the terms and conditions set forth in these Terms and Conditions of Sale and the terms and conditions agreed to in the individual sale, the latter shall prevail. ZAITEX S.p.A. shall not be bound by any of the Buyer’s general terms and conditions of purchase, not even if reference is made to them or if they are contained in the Buyer’s orders or any other documentation from the Buyer, without the prior written consent of ZAITEX S.p.A.
The Buyer reserves the right to add, modify or delete any provision of these Terms and Conditions of Sale, it being understood that such additions, modifications or deletions shall apply to all sales completed on or after the thirtieth day following notification to the Buyer of the new Terms and Conditions of Sale. Any agreement deviating from these General Conditions of Sale shall be effective only if expressly accepted by ZAITEX S.p.A. in writing.
3 – Conclusion of the contract
The offers of the Seller are not binding: each order received by ZAITEX S.p.A. from a potential Buyer represents an invitation to ZAITEX S.p.A. to formulate a sale offer corresponding to the order received. The contract of sale shall be executed upon receipt by e-mail or through the my.zaitex.com portal of the order confirmation or pro-forma invoice countersigned by the Buyer and returned to the Seller by e-mail, together with the general conditions of sale. Acceptance, in order to take effect, must be made by signing the original or a copy of the proposal and of the general conditions of sale, together with the sending of the same to ZAITEX S.p.A.
In case of orders placed through the portal my.ZAITEX.com, the sending of the order is subject to the acceptance of all the general conditions of sale of the Seller. Should the Buyer receive from ZAITEX S.p.A. a written confirmation containing terms different from those contained in the offer, the sale shall in any case be considered concluded if within 2 working days from the date of receipt of the confirmation ZAITEX S.p.A. does not receive any written objection from the Buyer.
All data contained in catalogs, price lists, advertisements, communications and other similar documents produced by ZAITEX S.p.A. are only indicative, may be modified at any time without the need for special forms and do not bind ZAITEX S.p.A. in any way.
4 – Consideration
Subject to verification of the Seller’s availability, the prices of the products shall be those indicated in the price list of ZAITEX S.p.A. in force at the time of the forwarding of the order by the Buyer or, if the Product is not included in the price list or the price list is not available, those indicated in the order and confirmed by ZAITEX S.p.A.
4.1 Unless otherwise agreed in writing by the parties, the aforementioned prices applied by ZAITEX S.p.A. are always understood to be exclusive of taxes, duties, burdens in general, accessory expenses and costs for the stipulation of insurance policies.
4.2 In the event that, prior to delivery of the Products, taxes, levies and other tax burdens payable by ZAITEX S.p.A. which affect the final price of the goods produced by ZAITEX S.p.A. are increased due to changes in the legislation in force (or due to other administrative or judicial measures), the Buyer agrees to proportionally increase the price.
The Buyer undertakes the same with regard to changes in exchange rates which may affect the production and/or distribution costs. Unless otherwise indicated by ZAITEX S.p.A., the supplement to be paid by the Buyer pursuant to the foregoing clauses shall be the difference between the prices last applied by ZAITEX S.p.A. for products of the same or similar type as those sold to the Buyer and the price paid or agreed upon with the Buyer.
5 – Delivery
5.1 The delivery terms must be considered indicative even if ZAITEX S.p.A. undertakes to carry out the deliveries within the times requested and indicated in the sale offer and in any case depend on the production possibilities and warehouse availability. The delivery can be carried out by ZAITEX S.p.A. even after the expiry of the period indicated by ZAITEX S.p.A. for the delivery, whereas the Buyer shall not be entitled to request the setting of a deadline before the expiry of such period, it being understood that nothing shall be due by ZAITEX S.p.A. in case of delay.
In the event the delay in delivery is due to force majeure or other reasons which, in whole or in part, are not attributable to ZAITEX S.p.A., the delivery term shall be automatically extended by a period equivalent to that attributable to the above-mentioned reasons.
Such reasons include, but are not limited to, delays of suppliers, carriers, administrative difficulties, strikes at suppliers or carriers of the same, natural events, pandemics, wars, strikes, lockouts, lack of raw materials and energy, obstacles in transportation and breakdown of production facilities, fires, explosions, bureaucratic measures, such as to reduce the availability of the goods from the facility from which the Seller receives the goods so that the Seller cannot fulfill its contractual obligations; the Seller (i) shall be relieved of its obligations under this contract to the extent of the impediment to performance of such obligations and (ii) shall have no obligation to procure the goods from other sources. The first step shall also apply to the extent that such incident or circumstances make the performance of the contract commercially unviable for the Seller for an extended period of time or for the Seller’s suppliers.
Should the aforementioned events continue for a period of more than 3 months, the Seller shall be entitled to withdraw from the contract and the Buyer will not be entitled to any compensation.
5.2 In any case, ZAITEX S.p.A. shall have the right to proceed with the delivery in advance of the deadline, with a 15 days notice.
5.3 The Buyer cannot refuse to accept a partial or split delivery.
5.4 Unless otherwise agreed upon in writing, delivery is always to be understood as CTP Incoterms 2010. Different conditions of delivery shall be agreed upon before the order confirmation and/or pro-forma invoice countersigned by the Buyer and sent back to the Seller by certified e-mail.
5.5 In no case and for no reason whatsoever, the Buyer has the right to postpone the delivery date of the goods; however, upon written request of the Buyer, ZAITEX S.p.A. may set in writing a new delivery date and in this case shall have the right to a deposit fee as well as the reimbursement of the administrative expenses and financial costs incurred.
5.6 In any case, the delivery terms start from the complete and punctual fulfilment of the obligations provided for by this contract.
5.7 Claims relating to transport damages must be immediately and promptly reported by the Buyer to the transport company and to the Seller, forwarding a copy of the documentation by certified e-mail or registered letter with return receipt. In any case, responsibility for transport damage is attributable to the delivery conditions agreed upon in the order confirmation and/or pro-forma invoice countersigned by the Buyer and forwarded to the Seller by e-mail.
5.8 Unless otherwise agreed, the transfer of goods by the Seller includes the packaging (“non-returnable” packaging clause). Any “returnable” packaging clause must always be indicated and reported in the sale contract and accepted by the Seller through order confirmation and/or pro-forma invoice countersigned by the Buyer and returned to the Seller by e-mail.
The Buyer undertakes to return the returned packages to the Seller intact and clean, bearing all risks deriving from the use of the delivered packages.
5.9 Unless otherwise specifically agreed, the Buyer is responsible for all rules and regulations relating to the importation, transport, storage and use of the goods. The Buyer shall be jointly and severally liable for any failure to comply with the civil, fiscal and legal regulations of the authorities of the country where he transports, imports and transfers the goods to his customers.
6 – Retention of title – Assumption of risks until transfer of ownership
6.1 Unless otherwise agreed upon in writing by ZAITEX S.p.A., ZAITEX S.p.A. reserves the right of ownership of the delivered products until the price, interest, expenses and all accessory costs which are to be borne by the Buyer according to the present agreement have been paid in full and the Buyer has diligently fulfilled all his obligations to the satisfaction of ZAITEX S.p.A.
6.2 Until the time limit indicated in paragraph (6.1) ZAITEX S.p.A. has the right to prohibit the Buyer from using the products or from transferring to third parties, for any reason whatsoever, any rights over the products if a fact occurs which could negatively influence the financial situation of the Buyer, in particular in the event of the commencement of bankruptcy proceedings.
6.3 As indicated above, the risk that involves the Products shall be borne by the Buyer from the time established for delivery and for the entire period during which ZAITEX S.p.A. has reserved ownership of the Products. For the above mentioned period, the Buyer undertakes to take care of the Products with the utmost diligence, adopting all the necessary measures to keep them in perfect condition, as well as to take out insurance policies against the risks deriving from the custody or use of such products during this period.
The Buyer undertakes not to perform any act incompatible with the ownership of the Industrial Property Rights. Buyer declares that: ZAITEX S.p.A. is the exclusive owner of the Trademarks; shall refrain from using and registering Trademarks similar to and/or confusable with the Trademarks of Zaitex S.p.A.; shall use the Trademarks solely in accordance with ZAITEX S.p.A.’s instructions and solely for the purposes set forth in these Conditions of Sale.
7 – Payment
7.1 Independently of the place of delivery of the goods or documents, the place of fulfilment of the Buyer’s payment obligation is the registered office of ZAITEX S.p.A. All payments shall be made at sight of the invoice to the bank account indicated by the Seller at the moment of acceptance of the order. The payment of the Buyer to a bank account that differs from that communicated by the Seller through the order confirmation and/or the pro-forma invoice constitutes a substantial breach of the contractual obligations and does not release the Buyer from the obligation to pay the price.
The Seller, in case of change of its bank details, undertakes to promptly notify the Buyer exclusively by certified electronic mail or registered letter with return receipt. Any other form of request/communication sent in other ways than those listed above will not be considered valid and therefore non-existent/null and void.
Conditions of payment that differ from those indicated above, must be agreed in advance with the order confirmation and / or proforma invoice countersigned. Unless otherwise agreed, all prices shall be understood to be expressed and due in Euro, even when the Buyer’s nationality is not Italian, or the Products themselves are intended for export. The Buyer shall not, for any reason and under any circumstances, delay payment of any portion of the amount due. Unless otherwise agreed with the Buyer in a specific case, each payment shall be charged according to the criteria set forth in the second paragraph of art. 1193 of the Italian Civil Code. If the price or a fraction thereof has not been paid within the established terms, the amount still due will bear daily interest at a rate, on a yearly basis, equal to the one-month EURIBOR rate (rate 365) in force at the expiry of the terms increased by ten points.
Failure to pay even a fraction of the sale price by the due date shall also have the consequence of making all other amounts due to ZAITEX S.p.A. from the Buyer immediately collectable in their total amount and of giving ZAITEX S.p.A. the right to suspend, if it deems it appropriate, any delivery of Products to be made to the Buyer until the Buyer has paid all amounts due to ZAITEX S.p.A.
Prior to the conclusion of the contract, or thereafter, until the full payment of the amounts due by the Buyer, ZAITEX S.p.A. may at its discretion and at its sole discretion require the Buyer, at any time, to provide guarantees in its favor, consisting of bank guarantees or other similar guarantees. If the Buyer does not provide the requested guarantees within the term set by ZAITEX S.p.A. for this purpose, the latter may terminate the contract with immediate effect.
7.2 Failure to pay the purchase price to the bank account indicated by the Seller at the moment of acceptance of the order, within and not later than 10 days from the contractually agreed due date or foreseen by the general conditions of sale, constitutes a substantial breach of the contractual obligations.
7.3 Failure to pay the purchase price to the bank account indicated by the Seller at the time of order acceptance within and no later than 10 days from the agreed due date, will authorize the Seller, at its discretion, to block all orders placed by the Buyer and confirmed by the Seller until the balance is paid.
7.4 In case of non-payment by the Buyer, the Seller shall be entitled to charge interests on delayed payments at the rate provided for by Legislative Decree no. 231/2002, in force at the time the payment was due.
7.5 In case of justified doubts on the solvency of the Buyer, in particular on the delay in payment, the Seller, subject to further claims, may revoke the payment terms previously granted and make further deliveries dependent on advance payments or the granting of other guarantees.
8 – Liability
8.1 The Buyer declares that he is in possession of all the authorisations which may be required and of all the technical knowledge and expertise necessary in order to be able to regularly use the Products within the scope of his own professional activity and relieves ZAITEX S.p.A. from any responsibility which he may incur in this regard. The Buyer further declares that the Products have been supplied in accordance with the Buyer’s requirements and characteristics as determined by the Buyer or as perfectly known by the Buyer. In this regard the Buyer declares to have carefully examined the safety information of the products supplied by ZAITEX S.p.A., also included in the my.zaitex.com website.
8.2 In view of the above circumstances, the Buyer accepts responsibility for the compensation of any damage which may be caused directly or indirectly by a non-defective Product to the Buyer himself, to his employees or to third parties, holding ZAITEX S.p.A. harmless from any consequent claim. The Buyer shall indemnify ZAITEX S.p.A. from any liability connected with the use of the products purchased.
It is understood that the descriptive sheet of a product may not be perfectly representative of its characteristics: all the technical specifications refer only and exclusively to the information published by the distributors or manufacturers and therefore ZAITEX S.p.A. cannot be held responsible in any way for the incorrect content of this information.
ZAITEX S.p.A. does not provide any guarantee on the information published on the web site and does not assume any responsibility for damages deriving from the use of the same; in this regard no guarantee or declaration is made in relation to the accuracy of the information and any responsibility for errors or omissions in the content is declined.
8.3 The Buyer declares and guarantees to have taken out the insurance policies necessary to cover the risks of damage to himself, his employees or third parties, resulting from improper, careless or imprudent use of the products as well as resulting from product defects or characteristics of the same attributable to what is indicated in paragraph 8.2 above. The Buyer undertakes that, should a third party make claims against ZAITEX S.p.A. for damages caused by the products, it shall be liable for any sum which ZAITEX S.p.A. may be called upon to pay, also by way of expenses, charges of any kind or fees.
The Buyer shall be solely responsible for the use and misuse of the purchased products, as well as for the use of the same without complying with the technical indications provided by ZAITEX S.p.A. and/or further laboratory studies.
8.4 The Seller shall not be held responsible towards the Buyer in case of impossibility or delay in the fulfilment of its supply obligations, if the impossibility or the delay derive from the correct observance of regulatory regulations or legal obligations connected with the European Chemical Regulation REACH to which the Buyer is bound.
9 – Warranty
9.1 The Buyer has the obligation to check the goods immediately after their arrival, even when they are delivered to a third party designated by the Buyer. Any warranty on the goods shall be considered forfeited if, after delivery, they undergo any processing and/or use, even in the production process.
ZAITEX S.p.A. warrants for one year from the date of delivery the withdrawal or replacement of products or parts of products manufactured and marketed by ZAITEX S.p.A., which are found to have manufacturing or material defects, without any other expenses to be borne by the Buyer, except for transportation expenses and expenses due to taxes, duties, customs duties and other similar expenses incurred by ZAITEX S.p.A. in connection with the shipment of products or parts of products.
ZAITEX S.p.A. may, at its option, carry out repairs and/or replacements, or have them carried out by third parties, or take back the products. This warranty is provided on condition that the Buyer informs ZAITEX S.p.A. of the presence of the above defects within 8 days from delivery (and in any case the action cannot be exercised after the expiry of the one-year period indicated above) and furthermore keeps the products until they are checked by the persons in charge of ZAITEX S.p.A. or the latter gives instructions for the shipment of the products; in any event the Buyer shall not return the products to ZAITEX S.p.A. without prior authorization from ZAITEX S.p.A..
The complaint for product defects cannot be used as justification for non-payment of the supply. Therefore, the Buyer, in accordance with the solve et repete clause, shall pay the agreed price within the terms agreed upon, even in the event the warranty for defects is invoked. All products sent to ZAITEX S.p.A. and which ZAITEX S.p.A., following its own examination, will recognize as being free from manufacturing or material defects complained of by the Buyer, shall be kept by ZAITEX S.p.A. at the Buyer’s disposal: the Buyer shall be entitled to collect them after having paid the transport costs, taxes, duties, customs duties and any other expense already sustained or to be sustained by ZAITEX S.p.A. following its own intervention.
In any case the withdrawal and/or replacement of any Product or part of the Product shall be at the Buyer’s expense should it have been made necessary by a use different from that indicated by ZAITEX S.p.A.
9.2 By accepting this guarantee, the Buyer waives any claim for damages against ZAITEX S.p.A.
9.3 ZAITEX S.p.A. does not undertake to establish whether or not a product is suitable for a certain use. The Buyer is the only person responsible for the choice of the same, as well as for the testing concerning their quality and use.
9.4 Any responsibility of ZAITEX S.p.A. in relation to defects or difficulties of use, even partial, deriving from improper, imprudent, negligent use, or lack of due skill, on the part of the Buyer, his employees, or other persons authorized by the Buyer, is therefore excluded. The liability of ZAITEX S.p.A. shall always be excluded if the Buyer seeks to obtain from such Products performances which are different or greater or different from those specified in the technical data sheets, safety data sheets and any other written documentation provided by ZAITEX S.p.A.
9.5 The expenses incurred by ZAITEX S.p.A. in order to verify the quality and characteristics of the Products delivered shall be borne by the Buyer if the defects in the Products or the difficulties in using them are not attributable to an error on the part of ZAITEX S.p.A.
The Buyer undertakes to cooperate in all the activities necessary to carry out the aforementioned verification.
10 – Intellectual Property Rights and Protection of Industrial Secrets
10.1 All documents, projects, indications of use and utilisation, drawings, functional diagrams and anything else, as well as all patents, trademarks, models, know-how and anything else addressed or in any case communicated to the Buyer before, at the same time and after the conclusion of the contract are and remain the exclusive property of ZAITEX S.p.A.; the Buyer may not in any way reproduce their content or make it known to third parties, and furthermore undertakes to maintain secrecy regarding the aforementioned acts, documents and rights.
10.2 Anyone who has come into possession, by any means, of ZAITEX S.p.A. information material, such as drawings, projects or anything else, is not authorised to use or reproduce it and/or to authorise third parties to use or reproduce it. The breach of this obligation shall involve the payment of a penalty of Euro 20.000,00#, without prejudice to all the rights of ZAITEX S.p.A. to compensation for further damages.
10.3 The Buyer undertakes to promptly inform ZAITEX S.p.A. in relation to all the reasons and claims made by anyone regarding the presumed infringement of intellectual property rights of the ZAITEX S.p.A. products purchased by him.
11 – Prohibition of transfer of the sale contract
Unless expressly authorized in writing in advance by ZAITEX S.p.A., the Buyer may not under any circumstances transfer (directly or indirectly) the sales contract concluded with ZAITEX S.p.A., either in whole or in part, for a consideration or free of charge.
12 – Transfer of the claim arising
ZAITEX S.p.A. may, at its sole discretion, without prior consultation with the Buyer, transfer to third parties the credit arising against the latter.
13 – Termination of the contract
13.1 Total or partial non-fulfilment by the Buyer of even only one of the obligations deriving from the contract shall entitle ZAITEX S.p.A. to terminate the present contract and all the contracts to which ZAITEX S.p.A. and the Buyer are parties, unless the Buyer fulfils within 15 days from receipt of a written warning by ZAITEX S.p.A. ZAITEX S.p.A. shall, however, retain its rights regarding the payment of interest, expenses and compensation for damages and shall not, under any circumstances, return any downpayments, deposits or other amounts already paid by the Buyer in connection with the terminated contracts.
13.2 The present contract is essentially of a personal nature for ZAITEX S.p.A.; due to this nature ZAITEX S.p.A. shall have the right to terminate the contract with immediate effect should there be any changes in the financial, technical or legal situation of the Buyer, of which ZAITEX S.p.A. was aware at the time of the conclusion of the contract. In view of the nature of the contract, the particular characteristics of the products sold, a penalty in favor of ZAITEX S.p.A. in the amount of 40% of the price indicated in the sales contract shall be agreed upon as partial compensation for damages suffered, should the Buyer unilaterally terminate the contract.
Any delay in the payment of such penalty shall give rise to default interests. ZAITEX S.p.A. also reserves the right to act for further damages it may suffer due to such termination and/or non-fulfillment. Furthermore, the Seller reserves the right to terminate this contract at any time in the event of the occurrence of any of the following conditions: in the event of non-payment or delayed payment of the sale price; in the event of tampering with the Products sold; in the event of unauthorized transfer of the contract; in the event of the Buyer’s bankruptcy or being subjected to other insolvency proceedings; significant changes in the Buyer’s economic conditions and solvency; substantial changes in the Buyer’s corporate structure (e.g. transfer of the company or of one of its subsidiaries, demerger, spin-off from the reference group, change of shareholders, etc.).
In such cases the termination shall take place following written notice to be sent by registered letter with return receipt and ZAITEX S.p.A., in addition to the return of the machine supplied, shall have the right to claim further damages.
14 – Acquiescence
The fact that ZAITEX S.p.A., in one or more circumstances, does not invoke against the Buyer the content of one or more clauses of the contract (whether such clauses are specific to a certain contract or general conditions referred to or reproduced therein) does not imply in any case the implied waiver to invoke such clauses or acquiescence to the behaviour of the Buyer which may violate such clauses.
15 – Integration of this contract
This contract is composed of the special conditions proposed by the Buyer, shown overleaf, and of these general conditions of supply. In case of disagreement, the particular conditions prevail on the general supply conditions. The agreements contained in the present writing constitute the entirety of all the agreements and stipulations made between the Buyer and ZAITEX S.p.A. with reference to the sale in question and entirely replace any possible agreement or oral or written stipulation made previously.
16 – Interpretation of the sales terms
All sales terms contained in this contract shall be interpreted, in case of doubt, according to the current INCOTERMS terminology. The clauses of this contract which prove to be null and void will be replaced, in the presence of the necessary requisites of form and substance, by other clauses capable of producing the same economic effects.
Any partial invalidity of a clause shall not automatically entail the invalidity of the whole clause.
The invalidity and/or nullity of individual clauses will never, however, lead to the invalidity of the entire contract.
17 – Correspondence between the parties
Any news or other communication to be received by one of the parties will become effective only when it reaches the other party in writing. Notifications and acts interrupting prescription or other communications with legal effects shall be sent to the registered office of the addressee party by registered letter with return receipt or e-mail.
18 – Applicable Law – Competent Court
The parties agree that the law governing every aspect of the supply agreement and of these General Conditions of Sale is the Italian law, with express exclusion of the rules of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG). The agreed place for the performance of the services, for the payment of the price and for the fulfilment of all obligations deriving from the legal relationship between ZAITEX S.p.A. and the Buyer is Dueville (VI) – Italy.
The Court of Vicenza shall have exclusive jurisdiction over any and all disputes, without exception, arising out of the application, interpretation, validity, effectiveness, execution and termination of this contract.
The Italian text of these general conditions of sale, even if drawn up in other languages, shall be considered the only authentic text for the purposes of their interpretation. Should these general conditions of sale be made known to the Buyer also in a different language, in addition to the one chosen for the drafting of the sales contract, this will be done exclusively for the benefit of the Buyer. In case of differences in interpretation, the version drawn up in Italian shall be binding.
The Customer declares to have read this contract in its entirety and signs it for acceptance.
Pursuant to and for the purposes of Articles 1341 and 1342 of the Italian Civil Code, the undersigned specifically approves the clauses referred to in paragraphs:
- 3 – Conclusion of Contract
- 5 – Delivery
- 6 – Retention of title – Assumption of risks until transfer of ownership
- 7 – Payment
- 8 – Liability
- 9 – Warranty
- 10 – Intellectual property rights and protection of industrial secrets
- 11 – Prohibition of assignment of the sales contract
- 12 – Transfer of the credit arising
- 13 – Termination of the contract
- 14 – Acquiescence
- 15 – Integration of this contract
- 18 – Applicable law – Competent court