General conditions of Sale
ARTICLE 1 – CONTRACTUAL REGULATIONS
1.1 These general conditions, except for any departures specifically agreed in writing, regulate all current and future sales contracts between the parties. Any general conditions of the buyer shall not be applied to relations between the parties, also in the future, unless expressly accepted in writing; in this case, such relations must be coordinated with these general conditions of sale, the validity of which shall not be excluded, except in the event of a written departure. In the event of contrast between the different clauses, those of the seller shall be applied.
1.2 Reference to any commercial terms (Ex Works, FOB, CIF, etc.) shall be considered as made to the lncoterms of the International Chamber of Commerce, in the text in force upon the conclusion of the contract.
1.3 For products intended for the foreign market, all the sales contracts between the parties, as well as these general conditions, shall be regulated by Italian law in force upon the conclusion of the contract and, only secondarily with regards to what is not provided for by Italian law, shall be regulated by the provisions of the Rome Convention of 1980 (Rome I), as amended and approved by EC Regulation no. 593/2008 of the EU Parliament and Council of 17/06/2008; any departures from, or references to, specific articles of Italian law made by the parties do not imply exclusion from the uniform application of the aforementioned laws, as far as compatible with contractual regulations.
1.4 Acceptance of these general conditions, as well as all subsequent contracts and conduct of the parties regulated by them, subject to different written express agreement, do not imply assignment to the buyer of any exclusive rights, nor the establishment of concession, commission or agency relationships, with or without representation, and similarly, do not assign to the buyer the right to use the seller’s brands or distinctive signs in any form.
ARTICLE 2 – FORMATION AND SUBJECT MATTER OF THE CONTRACT
2.1 The offers made by agents, sales representatives and assistants of the seller are not binding on the latter until they have been confirmed in writing by the seller itself.
2.2 The forwarding of these general conditions does not imply acceptance of any offers, as part of negotiations in progress; they shall, however, replace and cancel those previously proposed by one of the parties.
2.3 The forwarding, on the part of the seller, of price lists or of material describing the products not expressly bearing the word “offer”, or another equivalent phrase, may not be considered as a proposal. The phrases “without commitment”, “subject to availability” and other analogous phrases affixed by the seller to an offer do not bind the seller to the terms of the offer, also in the event of acceptance of the offer by the buyer, without subsequent written confirmation or conforming execution on the part of the seller. The seller’s offer is considered as firm or irrevocable only if is defined by the latter as such in writing and a term of validity of the clause is specified.
2.4 Acceptance of a seller’s offer, the forwarding of an order, or the entering into a contract by the buyer in any form and also by conduct, implies acceptance of these general conditions. In the event that the seller issues an order confirmation, also subsequent to the conclusion of the contract, it is presumed that the terms of the contract correspond to those of the order confirmation, except in the event that the buyer indicates differences between them in writing, immediately and, in any case, within the mandatory and essential term of 8 days starting from receipt of the order confirmation.
2.5 Acceptance without express reserve on the part of the buyer of products not conforming by type or quantity, that is, in conditions different from those contained in the buyer’s request, implies acceptance, on the part of the latter, of the supply and of the conditions proposed by the seller. The aforementioned reserves (also if formulated in the form of clarifications or adjustments to the supply conditions) shall not be valid unless formulated by the buyer in writing, immediately or, in any case, within the mandatory and essential term of 8 days from receipt of the goods.
2.6 All registrations or transcriptions required to make the contracts regulated by these general conditions valid, or of one of its clauses, shall be carried out by the buyer at its own care and expense, whether required by Italian law, by the contracting party’s state or by the country of destination of the goods.
ARTICLE 3 – SAMPLES
3.1 The weights, sizes, capacities, prices, performances, colours and other information featuring in the catalogues, brochures, circulars, advertising announcements, illustrations, price lists, or other illustrative documents of the seller, as well the characteristics of the latter’s samples and models sent by the latter to the buyer, are merely approximate and/or general indications. Such data do not have a binding value unless to the extent they have been expressly mentioned as such in the offer or in the seller’s written acceptance.
3.2 In the event that the buyer’s offer or acceptance make reference to a sample offered by the seller, the latter shall be considered, except in the event of a different written express agreement, in its supply as bound to the characteristics of the sample only within the limits indicated under point 3.1.
3.3 In the event that the seller refers its supply to a sample supplied by the buyer, the seller shall be liable, except in the event of a different written express agreement, for conformity in its performance (within the limits as above, or point 3.1) with the sole apparent characteristics of the sample.
ARTICLE 4 – WARRANTY
4.1 The warranty for flaws is always limited to only defects of the products resulting from defects of the raw materials used or production materials attributable to the seller and does not apply in the case in which the buyer fails to prove to have carried a correct use, maintenance and conservation of the products and not to have modified, transformed or repaired them without the seller’s express consent.
4.2 The warranty has a limited duration of twelve months, starting from delivery, and is subject to regular reporting by the buyer in accordance with the following articles, as well as express request written to the seller to take action under the warranty. By virtue of the aforementioned request, the seller is obliged (at its choice), within a reasonable term, taking account of the nature and entity of the complaint, alternatively to: a) provide the buyer for free, Ex Works, with products of the same type and quantity as those found to be defective or non-conforming to what was agreed; the seller may, in this case, require the return of the defective products, at the buyer’s expense, which will become the property of the seller; b) repair or modify the defective product not conforming to what was agreed at its own expense, carrying out the aforementioned operations, at its own discretion, on site or at its own premises; in these cases, all the costs relating to the transport of the products must be borne by the buyer; c) reimburse the buyer the damages, crediting them a sum equal to the cost of repair or modification of the product at its own premises; d) declare in writing the termination of the contract, offering the restitution of the price against the return of the supplied products. Except in the event of the seller’s criminal intent, any compensation for damages to the buyer may not, in any event, exceed the invoice price for the contested products.
4.3 The warranty referred to in this article absorbs and replaces the legal warranties for flaws and conformity and excludes any other possible liability of the seller in any way originating from the supplied products; in particular, the buyer may not make other demands for compensation for damage, a reduction in price or the termination of the contract. No claim may be made against the seller once the warranty period has elapsed.
ARTICLE 5 – COMPLAINTS
5.1 Complaints relating to quantity, weight, total tare weight, colour, or to flaws and quality defects or non-conformities that the buyer discovers upon receiving the goods, must be made by the buyer, under penalty of forfeiture, no later than the mandatory and essential term in the interest of the seller of 8 days for products intended or the national market and 15 days for products intended for the foreign market. The buyer, by express contractual agreement, has the obligation to check the goods upon their receipt, also if the goods are packed in boxes and/or closed containers. Hidden flaws, defects or non-conformities (that is, those not detectable on the basis of the check imposed on the buyer by the law and by the previous point) must be reported, under penalty of forfeiture, no later than the mandatory and essential term in the interest of the seller of 8 days for products intended or the national market and 15 days for products intended for the foreign market, starting from the date of discovery. In all events, the warranty for flaws and defects must be exercised by the buyer, under penalty of forfeiture, within and not later than 12 months from the date of delivery of the goods to the carrier, as shown by the transportation document; expiry of this term implies that the action is no longer valid. All complaints must be made, according to the above described terms, before the material is installed, under penalty of forfeiture of all the buyer’s rights under warranty.
5.2 Under penalty of nullity, complaints must be made by means of a registered letter or certified e-mail addressed to the seller and must give details of the flaws or the non-conformities contested.
5.3 In the event that a complaint turns out to be unfounded, the buyer shall be obliged to reimburse the seller all costs incurred by the latter for verification and the management of the complaint (travel, expert report’s, etc.); a similar obligation shall be attributed to the buyer if the complaint is only partially founded, to the extent of 30 percent compared to the complaints originally made.
5.4 Complaints relating to defects discovered in the pieces of a supply do not affect the validity of the supply, but are limited to the pieces found to be defective.
5.5 Pieces recognised as not corresponding to the conditions of supply are accepted to be returned and replaced with the same number of regular pieces. The seller’s obligations conclude with such replacement. It shall not be liable for other costs, not being obliged to compensate either direct or indirect damages of any nature caused to the buyer upon the use and/or failed use of the defective material 5.6 Complaints about 2nd choice materials and lots for reasons of calibre, colour shade differences and slight surface defects are not accepted.
ARTICLE 6 – SELLER’S RESPONSABILITY and INDEMNIFICATION OF THE BUYER.
6.1 Given that, as regards the characteristics of the products, the seller complies with the legislation and technical standards in force in Italy, the buyer fully assumes the risk of any dissimilarity between Italian regulations and those of the country of destination of the products, holding the seller harmless.
6.2 The seller is liable for damages to persons or property originating from the products sold, only in the event of its proven serious negligence in the manufacture of the products; in no event may it be held liable for indirect or consequential damages, production losses and lost profits.
6.3 Without prejudice to the above, the buyer shall indemnify the seller for all actions of third parties based on liability originating from the products sold to them and shall compensate for damages deriving from the claims in question; the seller may involve the buyer – which for its part must take all measures necessary to take part in the relative proceedings brought by third parties.
ARTICLE 7 – DELIVERY
7.1 Except in the event of a different written agreement, the sale shall be considered as made Ex Works: that is, also if it is agreed that shipment (or part of it) is in the care of the seller, in which case the latter shall act as the agent of the buyer, it being understood that the transport shall be carried out at the expense and risk of the latter.
7.2 In the event that the time of delivery has not been expressly agreed between the parties, the seller must supply the products within 180 days from the conclusion of the contract and, in any case, not before 15 days from receiving any processing instructions, communications of technical data necessary for preparation of the products, as well as any advance payments or letters of credit agreed to.
7.3 In the event of delay in delivery, the buyer may cancel the non-delivered part of the order only after informing the seller, by means of a registered letter with acknowledgement of receipt or certified e-mail, of its intention and after agreeing 15 working days starting from receipt this communication, within which time the seller may deliver all the products specified in the reminder and not yet delivered. Any liability for damages deriving from delay or failed delivery, total or partial, is, in all events, excluded.
7.4 Unless otherwise agreed, the delivery Ex Works of the products occurs by means of the forwarding of written communication (also by electronic mail or fax) to the buyer that the products are at their disposal and the terms of payment start from that moment; the buyer shall have 15 days from the forwarding of this communication to arrange for collection: the seller is owed the price agreed for the supply in all events, and regardless of the collection of the goods.
7.5 In the event that the buyer fails to collect the products according to the terms set out in the previous paragraph, they shall reimburse the seller storage costs, at a flat-rate of 0.50 percent of the amount of the invoice relating to the products for each week of delay; once 30 days have elapsed, the seller may, moreover, sell the products on behalf of the buyer, withholding the amount received as a total or partial deduction of the price due (whatever the agreed payment terms) as well as the costs incurred, without prejudice to demanding greater sums due.
7.6 The delivery terms, if expressed in a number of days, are considered as referring to working days. The delivery terms run from the day on which the order is formally accepted by the seller.
7.7. The consignee of the goods undertakes to communicate to Laminam Spa in writing the failed delivery of the goods at the place of destination indicated in the transportation document within 3 days after the date planned for delivery, by forwarding, by mail, fax, e-mail or by any other means, a suitable declaration and copy of the undersigned transportation document. After receipt of the aforementioned documentation, Laminam Spa shall arrange for the adjustment of the invoices issued and with the application of VAT as per Presidential Decree no. 600/1973. It is understood that the consignee of the goods undertakes to hold Laminam Spa harmless for taxes, surcharges, interests and sanctions of any kind, besides legal costs, in the event of charges imposed on it by the Tax Authorities deriving from failed written communication. The consignee of the goods, acknowledging the communication that Laminam Spa shall request the carrier to undersign, undertakes to communicate to the carrier every change of modification of the destination of the goods. Default of the above obligation shall imply the charging on the part of Laminam Spa to the consignee of the goods of any taxes, surcharges, interest and sanctions of any kind, as well as costs of a legal nature, in the event of assessments by the Tax Authorities as a result of the lack of such communication.
7.8 Orders relating to 2nd choice products are considered as accepted within the limit of effective availability in the warehouse, or within the limit of company productivity.
ARTICLE 8 – PAYMENT
8.1 Payment must be made, except in the event of a different written agreement, upon delivery at the offices of the seller or at the banking institute indicated by the seller: the issue of drafts or the acceptance of bills payable at other places of issue do not imply a departure from this clause. In the event of payment by means of a letter of credit, it must be opened shortly after the conclusion of the contract in the simplest possible form and complying with the provisions of the contract; it must be irrevocable and confirmed by a leading credit institute. Any payments made to the seller’s agents, sales representatives or sales assistants, if authorised in writing by the seller, shall discharge the buyer’s obligation to pay only upon the effective receipt of these sums on the part of Laminam S.p.A.
8.2 Any delay or irregularity in payment gives the seller the right to suspend supplies and to terminate the contracts in force, also if not relating to the payments in question, as well as the right to compensation for any damages. In all events, the seller has the right – upon the expiry of the payment due date, without the need for notice of default – to interest in arrears corresponding to the rate provided for by Italian Leg. Dec. 231/2002 and the full reimbursement of legal and assistance costs, both in or out of court.
8.3 In the event of delay in payment, whether total or partial, of an invoice, the Seller, without prejudice to its other rights, shall have the right to suspend further deliveries, also if they relate to other contracts, to draw bills of exchange for the amount of outstanding invoices, and also to make further shipments and/or supplies dependent upon the immediate and full payment of all the material ordered, or the issue of appropriate guarantees.
8.4 The buyer is obliged to full payment also in the event of complaint or dispute and may not, in any event, suspend and delay payments at the agreed due dates, request discounts, reductions, raise objections regarding non-performance, request the termination of the contract, reimbursements and compensation for damages, before having fulfilled their own obligations, in accordance with and by the effects of art. 1462 of the Italian Civil Code. The offsetting with any receivables, however arising, with respect to the seller, is not admitted.
ARTICLE 9 – RETENTION OF TITLE
9.1 Products destined for the domestic market. In the event that payment has to be made in whole or in part after delivery, the products delivered remain the property of the seller unto full payment of the price.
9.2 Products destined for the foreign market. In the event that payment has to be made in whole or in part after delivery, the products delivered remain the property of the seller unto full payment of the price to the extent permitted by the law of the country where the products are situated and, for this purpose, the buyer undertakes to do all that is necessary to establish a valid retention of title in the widest form permitted, or to set up an analogous form of guarantee in favour of the seller.
ARTICLE 10 – FORCE MAJEURE AND EXCESSIVE ONEROUSNESS
10.1 In the event of fires, collapses, floods, lack of supplies, transport problems, strikes, lock-outs, or other events due to cases of force majeure that prevent or significantly reduce production in the seller’s factories or block transport between the seller’s factory and the place of destination of the products, the contracting party impacted has the right to an extension of up to 45 days (extendable to 90 in the most serious cases) of the terms of delivery or collection of the products, provided that they inform the counterparty in good time in writing of the occurrence of the case of force majeure.
10.2 Once the above term has elapsed and the situation of force majeure persists, the other party may terminate the contract, forwarding written communication with a registered letter with acknowledgement of receipt or certified e-mail to the non-performing party. In this case, the latter shall not have any obligation for compensation for damage.
10.3 If, for any other unforeseen motive upon the undersigning of the contract for a businessman in the sector with normal experience and diligence, the execution of the seller’s obligations has become – before their execution – excessively burdensome in relation to the originally agreed performance of the other party, such as to modify the contractual relationship by more than 20 percent, the seller may request a revision of the contractual conditions and, in the event of failed acceptance, declare the contract as terminated, with written communication to the counterparty. In the latter case, however, the buyer must be compensated only for out-of-pocket expenses incurred by it upon the termination of the contract.
ARTICLE 11 – PARTICULAR CONDITIONS OF SALE OF PACKAGED PRODUCTS
The customer declares to be aware of the fact that the number of boxes for each package or pallet or tray or stand is indicative and is subject to slight variations, up or down, with respect to stocking requirements. The customer is, therefore, prohibited from making complaints regarding the effective quantities of boxes or of the product contained in the packages or in the pallets/trays/stands ordered. Pallets/trays/stands and packages are charged to the customer at market value, in addition to the supply price.
All the quantities not assigned to complete pallets/trays/stands by product may be subject to a specific price increase compared to the list price.
ARTICLE 12 – TECHNICAL CHARACTERISTICS OF THE PRODUCTS
12.1 The buyer acknowledges that, for identifying the characteristics or the product, declared by Laminam SpA, and which may legitimately be expected by the buyer, reference must be made exclusively to the indications contained in the “product data sheets” attached to the series catalogues and consultable on the www.laminam.it website, and therefore with exclusive reference to the tables published in the series catalogues. In this regard, no significance can be attributed to advertising material.
12.2 Any calibre difference compared to the nominal size indicated on the packaging, if within a variation of ± 2%, with a maximum of 5 mm, comes under the normal tolerance limit. Similarly, differences in colour shade, the colours of samples being considered as purely indicative, as well as slight differences in colour shade between the elements of a single lot do not imply flaws and/or product defects, provided that they do not radically alter the general aspect of the tiled surface.
12.3 Information regarding the adoption of qualities and sizes, considerations of a technical nature regarding the installation of the materials and the working of systems where the products are used, is always provided without any relevant liability.
12.4 Technical data are approximate, but reliable, averages, subject to the usual tolerances provided for by international regulations.
ARTICLE 13 – CONVENTIONAL WARRANTY FOR LAMINAM SHEETS USED IN THE FURNISHING SECTOR, OBLIGATIONS AND LIABILITY
13.1 In addition to the warranties provided for by law, Laminam Spa, with exclusive reference to the surfaces of its Product used in the furnishing sector for the manufacture of furniture and furnishing accessories, guarantees the resistance characteristics of these products according to the tables set out in the “CERTIFICATE OF CONVENTIONAL WARRANTY FOR LAMINAM SLABS USED IN THE FURNISHING SECTOR” for a term of 25 years starting from the date of purchase, within the limits and according to the conditions therein set out, distinguishing between Products destined for the Italian market and products destined for the foreign market. For Products destined for the Italian market, the professional customer, whether distributor, transformer and/or wholesale or retail reseller, undertakes , for themselves and for their assignees, with respect to Laminam Spa and also in the interest of the final buyer of the product, to: (i) deliver to the final customer of the product a copy of the certificate of warranty together with the accompanying documents showing the series and the finishing of the Laminam product; (ii) forward by mail to Laminam Spa to the address firstname.lastname@example.org, within the mandatory and essential term of three working days starting from the day after receipt, any reports of flaws or defects that they receive from the final buyer; (iii) carry out an inspection within the mandatory and essential term of five working days starting from the day after receipt of the complaint and to verify the effective existence of the flaws and/or defects reported, as well as their possible attribution to the quality of the product and to its production cycle, referring the outcome to Laminam Spa within the mandatory and essential term of two working days starting from the date of the inspection; (iv) in the event that Laminam Spa acknowledges the application of the warranty, to arrange, by themselves or through their assignees, for the disposal of the defective product and the delivery of what will be freely supplied by Laminam Spa in replacement, fully sustaining every charge, cost and expense, and indemnifying and holding Laminam Spa harmless.
13.3 In the event of the default of one or more of the above-indicated obligations on the part of the professional customer (distributor, transformer and/or wholesale or retail reseller) or their assignees, Laminam Spa may charge the latter the costs, all expenses, as well as every indemnity and/or compensation for damages that it may be obliged to pay by virtue of such default, issuing a tax invoice that the professional customer must settle with direct remittance, excluding every exception.
ARTICLE 14 – TERMINATION OF THE CONTRACT
The buyer may not transfer the contract or the single obligatory relationships deriving from the contract without the seller’s written acceptance: also in this case the buyer remains, in any case, jointly liable with the transferee for the obligations transferred.
ARTICLE 15 INTERPRETATION; AMENDMENTS; INVALID CLAUSES
15.1 For the interpretation of these general conditions, reference must be made exclusively to the Italian version.
15.2 Any attachments or preambles are considered as an integral part of the contracts to which they refer. Any reference to price lists, general conditions or other materials of the seller are considered as referring to the documents in force at the time such reference is made, except where not otherwise specified; corresponding texts previously in force between the parties must be considered as annulled.
15.3 Declarations made or the conduct of the parties during negotiations or during the execution of the contract may contribute to interpretation of only the contract to which they refer and only to the extent that they do not contrast with these general conditions or with the written agreements entered into by the parties upon the conclusion of the contract in question.
15.4 Except for what is provided for in arts. 2.4 and 2.5, any amendment or integration made between the parties to the contracts to which these general conditions apply must be made in writing, under penalty of invalidity. The departure from one or more provisions of these general conditions must not be interpreted extensively or by analogy and does not imply the wish to waive the general conditions as a whole.
15.5 Any variations in the contractual conditions agreed between the parties do not constitute a novation of the contract, unless an express contrary intention is indicated in writing.
15.6 In the event of invalid or ineffective contractual provisions, the contract as a whole shall be integrated in order to obtain, in compliance with the law, the essential purpose pursued by the agreement containing the clauses in question.
ARTICLE 16 – COURT OF JURISDICTION
This contract is regulated by the Italian law, also procedural. For any dispute relating to or, in any case, connected with the contracts to which these general conditions apply, jurisdiction is attributed exclusively to Italian Justice and the court of the seller shall have exclusive jurisdiction, also in the case of recourse under warranty or connection, with the exclusion of any other court and/or jurisdiction.
ARTICLE 17 – REFERENCE
Only with regards to what is not expressly regulated by these contractual conditions, the regulations of sale as per arts. 1470 and following of the Italian Civil Code shall apply.
The buyer, in accordance with and by the effects of arts. 1341 and 1342 of the Italian Civil Code declares, where applicable, to accept and expressly approve the provisions contained in the following articles: 1 (contractual regulations), 2 (formation and subject matter of the contract; presumption of conformity of the order confirmation to the contract concluded with the buyer), 4 (warranty), 5 (complaints), 6 (seller’s liability and indemnification of the buyer), 7 (delivery; right to cancel an order in the event of delay and the obligation of preventive notice of default; buyer’s waiver of damages and indemnities for delays in delivery; failed collection, charging storage costs and right to resell uncollected goods), 8 (payment, right of suspension of the supply, solve et repete clause), 9 (retention of title), 13 (obligations, liabilities and charges attributed to the professional customer of the product destined for the furnishing sector), 16 (applicable law, jurisdiction and competent court).