These General Terms and Conditions of Sale (“GCS”) shall apply to any sale relationship between ICRO COATINGS S.p.A.. (hereinafter referred to as “Seller”) and the person who has submitted to the Seller a Purchase Order (“Buyer”), regulating such relationship exclusively and forming an integral part thereof.
A “Purchase Order” (hereinafter referred to as “Order”) is any request for supply, relating to existing or future Products, communicated in writing to the Seller and containing at least one of the following elements, relating to the Products to be purchased: type, quantity or delivery request date.
The GTC in their latest version as updated and available on the website www.icro.it supersede any previous oral or written agreement concerning the sale of goods between the Seller and the Buyer, including the same earlier versions of the GTC – unless the Contract has already been concluded in accordance with Section 5 below.
The Seller has the right to update or amend the GTC without any obligation to inform the Buyer – unless the Contract has already been concluded in accordance with Art. 5 below.
Any deviation from the GTC shall not be valid unless agreed in writing with the Seller.
CONCLUSION OF THE CONTRACT
The Contract is considered to be finalized when the Buyer’s Order is accepted by the Seller. The cancellation or modification by the Buyer of the Order accepted by the Seller will be valid only if submitted in writing to the Seller within 48 hours after the acceptance of the Order by the Seller.
SALE SPECIFICATIONS AND THEIR MODIFICATION
The price, quantity and other characteristics of the Products are those confirmed by the Seller at the time of acceptance of the Order, directly or indirectly, by e-mail, fax. Any subsequent modification must be agreed in writing with the Seller.
It is specified that delivery dates are always indicative and as such may be subject to change. All prices, unless otherwise indicated, are expressed in Euro and are net of present and future taxes that may be charged on the Products. The relative rates applied will be those in force at the time of shipment.
The place of payment of the price, regardless of the place of delivery of the Products and documents, will be the administrative headquarters of the Seller located in Chignolo d’Isola (Bergamo) – Italy – Via Bedeschi, 25.
TERMS OF PAYMENT AND NON BALANCE
The payment term is the one indicated on the relevant invoice. In case of late payment, even if only partial, the Seller shall be entitled to:
- request interest and recovery costs, also legal, until the balance, pursuant to Legislative Decree 231/02 (Directive 2000/35/EC) and subsequent updates (e.g. Dir. 2011/7/EC), if favourable to the Seller;
- suspend any delivery to the Buyer;
- request the return of Products already delivered and not yet paid (see art. 11);
- consider the relationship terminated, for fact and fault of the Purchaser himself, also with reference to other Sales Contracts then existing between the Parties;
- declare the Purchaser immediately forfeited the benefit of the term (art. 1186 of the Italian Civil Code), also with reference to other Sales Contracts then existing between the Parties.
Any claims relating to the sums indicated on the invoice must be notified by the Buyer within 8 (eight) calendar days from the date of receipt of the same, failing which the invoice will be considered definitively accepted.
The claims referred to in the previous paragraph and the others provided for herein (see articles 17, 18 and 22 below), even if accepted, do not give the Purchaser any right to delay, suspend or avoid payment of the invoices relating to the disputed Products: on the other hand, depending on the outcome of the claim, it will be the Seller who will return any excess payment.
In no case may the Purchaser set off claims of any kind, including those relating to claims for damages, except in the case of express acceptance of the set-off, in writing, by the Seller’s representative with appropriate powers – powers that the Purchaser must verify under penalty of unenforceability of the set-off against the Seller.
RETURN OF THE PRODUCTS
The delivery terms applicable to the individual shipment are those indicated on the transport document, for the interpretation of which reference will be made to the INCOTERMS in force at the time of the conclusion of the Contract itself. The delivery date will be agreed from time to time with the Buyer.
LOSS OF DELIVERY
If the Purchaser fails to collect the Products within the agreed terms, the Seller may, at its option, either terminate the relevant Contract in whole or in part due to the Purchaser’s fault, or issue an invoice and request payment for the Products. In any case, the Seller shall be entitled to charge the Purchaser a fee for the storage of the material (at the Seller, the Purchaser or third parties) equal to at least the cost of storage, plus any damages and/or expenses. This, however, will not imply to the Seller, in any case, any assumption of responsibility (civil or criminal) for theft, loss or damage of the Products – or for any other reason related to their storage, as attributable solely to the failure of the Purchaser to collect them.
OWNERSHIP AND RISK OF LOSS OF PRODUCTS
The Products remain the property of the Seller until the price of the entire Order has been fully and promptly paid by the Buyer, including any additional charges (e.g.: legal fees and/or interest on arrears). Until such time, the Purchaser shall diligently store the Products, storing them separately from other goods and providing them with insurance coverage against all risks. Without prejudice to the foregoing, the Purchaser hereby assigns to the Seller, as security for payment of the consideration, all its claims resulting from the use, processing or resale of the Products. Any risk (by way of example, but not limited to: costs, damages, charges, expenses, including direct and indirect damages, loss of profit, damage to image, interest, legal expenses) connected to the loss or damage of the Products is transferred to the Purchaser at the time of delivery according to the relevant agreed terms (see also, art. 10).
The Parties shall not be mutually liable for any delay in shipment or delivery, for any direct or indirect damage, as well as for any deterioration, total or partial, of the Products and in general for any breach where caused, directly or indirectly, by any event (natural or otherwise) that is beyond the Parties’ reasonable control or otherwise unavoidable, such as, by way of example and without limitation:
- wars, strikes, lockouts, lack of raw materials and/or energy, floods, earthquakes, lightning and other natural events, fires, explosions, accidents. In particular, in addition, the Seller shall not be obliged to procure otherwise the Products covered by the Contract and, unless otherwise agreed in writing between the parties
Parties, may immediately terminate the contract in whole or in part, suspend or postpone its execution, without any sum being due to the Buyer for any reason.
OTHER CASES OF WITHDRAWAL
In addition to cases of force majeure and in other cases provided for by law or by the Contract or by these GTC, the Seller has the right to withdraw in whole or in part from the Contract of Sale concluded, as well as from those in the process of being defined, when facts or circumstances occur, wherever they occur, which significantly alter (in the Seller’s opinion, based on market changes over the last 12 months) the cost of raw materials, the state of the markets, the value of the currency and the conditions of the industry.
In such cases, and in general in all cases of termination or withdrawal due to an impediment that is not due to Seller’s fault or fault, Buyer shall not be entitled to any indemnity, compensation or refund and shall, if requested, pay the price of the Products (already prepared or in progress) that Seller claims to be able to deliver.
PRODUCT QUALITY, SAMPLES AND WARRANTIES
The quality of the Products is exclusively determined by the specifications of Products prepared by the Seller (and related test methods), known by the Purchaser and in force at the time the Contract is executed (see articles 5 and 6). Any request for modification to any of these specifications must be communicated to the Seller before the Order is accepted by the latter, without prejudice to the Seller’s right to accept, at its sole discretion, requests for modification made after this deadline.
All information, advice, advice or documentation provided by the Seller regarding the characteristics of the Products, their use, information and/or technical data sheets etc., are the result of the Seller’s best knowledge and accuracy, which offers them to the Buyer in good faith in the execution of the contract, but they can never and in no way constitute a form of guarantee, explicit or implicit.
By way of example and without limitation, the Seller makes no warranty of any kind of information or advice on the use of the Products, on their suitability for a specific use or processing, or on examples of finished Product formulation and on the marketability of the Products themselves.
On the contrary, the checks relating to these and other technical aspects (e.g.: the control and examination of the Products before use) are exclusively the responsibility and sphere of the Buyer, from which the Seller remains extraneous.
COMPLIANCE WITH REGULATIONS
The Buyer is also solely responsible for compliance with all the regulations in force applicable to the Products delivered (even if not collected, see art. 10) and, in particular, its use, storage, transport and import.
TERMS AND CONDITIONS OF COMPLAINT
Any claims for goods not corresponding to what is contained in the acceptance of the Order must necessarily reach the Seller in writing, under penalty of forfeiture, within 8 (eight) days from the delivery of the single shipment.
In case of hidden defects, the complaint must necessarily reach the Seller in writing, under penalty of forfeiture, within 8 (eight) days from the discovery of the defect.
In any case, no complaints will be taken into consideration once 2 (two) months have elapsed from the delivery of the single shipment. It will be the Buyer’s responsibility to prove beyond any doubt both the date of discovery of the defect and that it was hidden.
It remains in any case understood that:
- any use of the Products by the Purchaser – except only and exclusively that made, in the appropriate and reduced quantities, for quality analysis on delivery – including processing, cutting, treatment, sale and storage (in tanks or other containers or in any case not in the original sales packaging) imply irrevocable acceptance of the Products and therefore, in relation to the same, the Purchaser will lose the right to make any kind of claim (except only those for hidden defects);
- the Purchaser shall forfeit any right of complaint if it does not immediately suspend the processing or use of the batch of goods subject to the complaint.
- Under no circumstances may the Products be returned to the Seller without the prior written authorization of the same.
The report of defects must include all the details of the batch of goods concerned, a detailed description of the event and the defect and must be accompanied by a sample of goods and (documents/packaging) as well as a technical report containing the evidence supporting the complaint.
Complaints will not be taken into consideration if they do not contain all the above mentioned elements and, above all, if they do not allow to identify in a certain way the Products object of the complaint and the defect.
ACCEPTANCE OF THE COMPLAINT
In the event that the claim, made in accordance with the above, is accepted by the Seller, the Seller may, at its own choice and in total silence of any claim, intervene to eliminate the defect where possible, or where this is not possible, replace the defective Products (subsequent fulfilment) in the same place and with the same delivery methods as the initial supply, after returning it. The Seller shall have the right to make two attempts at subsequent performance: if both show the same defects as the initial supply, the Purchaser shall only have the right, as an alternative, to ask for a reasonable reduction in the relative purchase price, or to withdraw from the individual Contract.
Therefore, any right on the part of the Purchaser to request the termination of the contract and, in any case, compensation for damages and reimbursement of expenses incurred for any reason whatsoever is excluded.
The Seller’s liability to the Purchaser in relation to a claim shall in no case exceed the price of the single supply(s) in relation to which the claim has been sent and excludes any direct or indirect damage (e.g. loss of profit) of any kind, including those that may result to the Purchaser or third parties from the incorrect use or misuse of the Products complained of.
Any action by the Purchaser against the Seller shall in any case be time-barred within one year from the effective date of delivery of the Products (without prejudice to the terms of claim set out in these GTC).
ASSIGNMENT OF THE CONTRACT
The Contract and/or the rights and obligations arising therefrom may not be transferred by the Buyer to any third party unless prior written consent is given by the Seller.
Any temporary tolerance demonstrated by the Seller in the face of the Buyer’s breach of one or more obligations arising out of the Contract, as well as the Seller’s failure or delay in using any of its rights or faculties arising out of the Contract, can never be considered a definitive waiver of the corresponding right.
Claims relating to transport damage (e.g.: relating to the condition of the container, packaging, pallets…) which, according to the terms of delivery, are the responsibility of the Seller, must be absolutely and immediately reported by the Buyer or by the person appointed by the Buyer to collect the Products, placing the appropriate reservation on the delivery note, complete with stamp, signature and date. Within 3 (three) days from the affixing of the reservation, the complaint must be forwarded: to the forwarding agent, to the transport company, to the insurance company (indicated in the insurance certificate that the Seller sends in advance to the Purchaser and already in possession of the same) and to the Seller itself.
A copy of the complete documentation must finally be sent by e-mail to: email@example.com or by fax to: +39-035-999712.
If this procedure is not followed exactly, the claim will not be taken into consideration and the Seller will not be liable for any damages of any kind.
INTELLECTUAL PROPERTY RIGHTS
Buyer acknowledges that the names and trademarks used in connection with the Products are the exclusive property of Seller, therefore Buyer shall refrain from using or disposing of the same in any way, and in no way constitutes the Contract any license or authorization.
CONFIDENTIALITY AND CONFIDENTIALITY
The Buyer acknowledges that, as a result of the relationship with the Seller, it may become aware of elements, news, information and, more generally, of confidential data or data subject to industrial property rights (“Data”); the Buyer therefore undertakes, for itself and its employees and collaborators, to maintain the strictest confidentiality on such Data for the duration of the relationship with the Seller and for the following 5 years.
PROTECTION OF PRIVACY
In accordance with D. Lgs. 196/03 on the protection of personal data, the Seller informs the Buyer that the data provided will be treated in full compliance with the above legislation and used to allow the timely execution of agreements; the Buyer may exercise the rights under Art. 7 of D. Lgs. 196/03 (including, for example, request the updating, correction or deletion of the data).
- For the purposes of the contract and these GTC, all communications to the Seller shall be made unless expressly provided otherwise:
- e-mail: firstname.lastname@example.org
- fax number: +39 035-999712
APPLICABLE LAW AND PLACE OF JURISDICTION
These CGV and the Contract are governed by Italian law and the CISG (United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980) are expressly excluded. For any controversy that may arise in relation to the Contract, the exclusive and imperative jurisdiction shall be the Court of Bergamo.