Terms and Conditions

Art. 1. SCOPE OF APPLICATION

1.1 These general terms and conditions of sale apply to all quotations and all sales contracts (hereinafter, the “Contracts”) entered into, including electronically, between the seller Fluida Europe S.r.l., with registered office in Milan, Via Imbonati 18 (hereinafter “Fluida” or the “Seller”) and the purchasing company/professional customers (hereinafter the “Customer”), concerning the sale and related delivery of products by Fluida to the Customer (hereinafter, jointly, the “Products”).
1.2 These general conditions shall prevail over any differing clause included in forms, templates or other documents prepared by the Customer, even if their applicability has not been expressly challenged by the Seller. Any derogations from these general conditions shall bind the Seller only if accepted by it in writing.
1.3 Should, during performance of a Contract, one or more of these general conditions become, for any reason, invalid or ineffective, the other conditions shall remain in force.
1.4 If a Contract governed by these general conditions has already been entered into between the Seller and the Customer, it is hereby understood that the same general conditions set out herein, unless expressly excluded, shall also apply to any subsequent sale entered into between the Seller and the Customer, even if such conditions are not expressly referred to or accepted in relation to such subsequent sales.

Art. 2. CONCLUSION OF THE CONTRACT

2.1 The Contract shall be deemed concluded and therefore binding on Fluida only after Fluida has acknowledged the Customer’s acceptance of these general conditions through the IT system available on the order management website.
2.2 Until the Contract is concluded, Fluida may always revoke the offer at any time, even where it contains a deadline for acceptance by the Customer, unless such offer has been expressly stated to be irrevocable pursuant to Art. 1329 of the Italian Civil Code.
2.3 Any offer made by the Seller, whether orally or in writing, shall be deemed automatically expired in the absence of express acceptance by the Customer within 10 (ten) working days, unless Fluida indicates otherwise.
2.4 Unless otherwise expressly agreed in writing and without prejudice to applicable law, the Seller gives no warranty as to the accuracy and completeness of all technical information (including designs, images, drawings, calculations, dimensions, capacity, weight, performance and models) provided by the Seller in its catalogues, brochures, advertising, or on its website.

Art. 3. PRICES

3.1 Prices are stated in the Seller’s offer and are net of any charges, duties or taxes, any customs duties, insurance costs and/or special packaging costs, which shall be borne exclusively by the Customer. Unless otherwise agreed in writing between the parties, prices stated in a Seller’s offer shall not be binding for subsequent offers.
3.2 The Seller may revise the price also where, at the Customer’s request, the Product must be delivered within a shorter term than originally agreed or extended, or where processing of the Product must be carried out during overtime, at night and/or on public holidays.

Art. 4. DELIVERY

4.1 Unless otherwise agreed in writing between the parties, delivery of the Products and related transport shall always be deemed carried out by the Seller at the Customer’s premises or at another place agreed by the parties.
4.2 Delivery times, unless otherwise expressly agreed in writing, are to be considered merely indicative.
4.3 Therefore, any delays in delivery, including those not due to force majeure, shall not entitle the Customer to terminate the Contract or claim compensation for damages, whether direct or indirect, but shall only entitle the Customer to send Fluida a written reminder containing a reasonable deadline for delivery of the Products, provided that such deadline may in no case be less than 10 (ten) working days.
4.4 Delivery times run from the date of conclusion of the Contract pursuant to Art. 2 above. Where payment on order or issuance of a bank guarantee is required, delivery times shall run from receipt of the required payment or guarantee. Any Product changes agreed with the Customer shall cause a new delivery term to run.
4.5 If the Seller is prevented from meeting delivery times due to:
• delays, slowdowns, suspensions and interruptions in processing not attributable to the Seller;
• strikes, lockouts, industrial action, fires, floods, earthquakes, adverse weather conditions, measures of public authorities, power outages, missed or delayed supplier deliveries, interruption or suspension of transport or energy, unavailability or shortage of raw materials, machine stoppages or breakdowns, as well as any other event of fortuity or force majeure beyond the Seller’s reasonable control, the running of delivery times shall remain suspended from the day the impediment is notified to the Customer until further notice from the Seller.
4.6 Unless otherwise agreed in writing between the parties, delivery shall be deemed completed when the transport company delivers the Product at the delivery location indicated in Art. 4.1 above. Delivery must take place in the presence of the Customer (or its representative), who must be present for unloading operations and must sign the delivery note as a sign of full acceptance of the apparent completeness and good condition of the Product.
4.7 In the event of absence of the Customer (or its representative) upon delivery of the Product, or where agreed delivery locations are in inaccessible areas, the transport company’s statement certifying that the Products were delivered in good condition shall be considered proof of delivery and acceptance of the goods’ good delivery condition.
4.8 From the moment delivery is completed as set out above, the Seller is released from all liability and risk relating to the Products. All risks are therefore transferred to the Customer.
4.9 Where, even by way of derogation from the above, a sale with transport arranged by the Customer is agreed between the parties:
a) a date from which the Customer may collect the relevant Product and the days and times for such collection shall also be agreed and indicated. In such case, the Customer must notify the Seller, at least 15 days before collection, of the designated carrier;
b) delivery shall always be deemed made EX WORKS (Incoterms 2010) at the Seller’s premises or other agreed collection point; the Products therefore always travel at the Customer’s risk;
c) if the Customer fails to collect the Products in time, the Seller shall be entitled, at its choice, to:
• invoice the goods, which shall be stored in its warehouses in the name and on behalf of the Customer; in such case, the Customer, who shall bear all risks relating to stored Products, shall be obliged to pay the Seller, as a contribution to storage costs and until actual collection, an additional amount equal to 1.5% (one point five per cent) of the Products’ sale price for each month of storage; or
• terminate the Contract with immediate effect;
• without prejudice in both cases to application of the penalty under Art. 8 below, in addition to compensation for any greater damage.
4.10 As from completion of delivery or collection as regulated above, the Seller shall not make refunds in favour of the Customer nor accept returns by the Customer of Products already delivered, unless otherwise agreed in writing between the parties and provided that the return occurs in compliance with conditions established from time to time by Fluida. If the Customer decides, even without an express written agreement, to return Products already delivered to the Seller, all transport or storage costs at Fluida’s warehouses shall be borne by the Customer.

Art. 5. PACKAGING AND TRANSPORT

5.1 The Seller uses only standard packaging for its Products. Any special packaging requested by the Customer shall be charged to the same.
5.2 If the Seller has assumed transport costs, increases in transport costs occurring after the date of conclusion of the Contract and any costs and taxes relating to and resulting from transport shall be borne by the Customer.

Art. 6. PAYMENTS

6.1 Unless specific terms are provided in the Contract, the Customer must pay the price within 30 (thirty) days from the invoice date and in the currency indicated therein.
6.2 The parties expressly agree that, unless otherwise agreed in writing, invoices shall be sent by the Seller to the Customer exclusively in electronic format or by e-mail.
6.3 The place of payment shall for all purposes be the Seller’s registered office, whatever payment method is agreed, including payment by drafts, bills of exchange, bank drafts or similar instruments.
6.4 In case of total or partial late payment, the Customer shall pay default interest on the outstanding amount at the rate provided by Legislative Decree 231/02, as subsequently amended.
6.5 In the case of agreed instalment payments, failure to pay even one instalment shall cause the Customer to lose the benefit of term pursuant to Art. 1186 of the Italian Civil Code and the Seller’s entire credit shall become immediately due and payable, without prejudice to the Seller’s further rights.
6.6 Failure or delay in payment of any amount due by the Customer, even if relating to different commercial relationships with the same Seller, authorises the Seller to:
• suspend supply of the Products as well as preparation and delivery of Products subject to other Customer orders;
• amend payment terms, including the possibility of requesting specific guarantees;
• declare the Contract terminated for Customer breach pursuant to Art. 1456 of the Italian Civil Code;
• claim compensation for damages suffered due to failure or delay in payment and related effects;
• collect Products already delivered and not fully paid by the Customer;
• retain, as indemnity, any amounts already collected, without prejudice in any case to compensation for any greater damage.
6.7 Costs incurred by the Seller to recover sums due from the Customer shall be borne exclusively by the Customer.
6.8 The right to suspend preparation and delivery of Products is also granted to the Seller where, in its own discretionary assessment, it has reason to believe the Customer may fail to duly perform its obligations.
6.9 Any dispute concerning breach and/or non-conformity of Products delivered by the Seller shall not entitle the Customer to suspend payment of disputed Products and/or any other Products delivered by the Seller.
6.10 Without prejudice to any right acquired by the Seller under these general terms and conditions of sale, the Customer undertakes to provide, upon first request by the Seller, suitable security attesting to its financial capacity to meet the commitments undertaken in the Contract. Failure or delay by the Customer in providing the guarantee requested as above entitles the Seller to terminate the contract for breach pursuant to Art. 1456 of the Italian Civil Code.

Art. 7. PRODUCT INSPECTION, COMPLAINTS AND WARRANTY

7.1 The Seller warrants, including pursuant to Art. 1490 of the Italian Civil Code, that delivered Products are free from defects rendering them unsuitable for their intended use or significantly reducing their value.
7.2 The Customer is required, including pursuant to Art. 1495 of the Italian Civil Code, within the peremptory period of 1 (one) day from delivery of the Products, to verify the grammage, dimensions and quantity declared by the Seller as well as their operation; any apparent defects must be reported, under penalty of forfeiture, to the Seller within 8 (eight) days following expiry of said period. Without prejudice to the above, any other latent defect in the Products must be reported, under penalty of forfeiture, no later than 8 (eight) days from discovery. In any event, warranty action pursuant to Art. 1495 of the Italian Civil Code is time-barred one year from delivery.
7.3 In cases of Contracts concluded through an agent, including by derogation from Art. 1745, first paragraph, of the Italian Civil Code, Customer complaints must be made in writing exclusively to the Seller, by certified e-mail (PEC) to fluidaeurope@legalmail.it or by registered letter with return receipt.
7.4 Unless otherwise agreed in writing, the Seller does not in any way warrant that the Products are designed for a specific use and therefore the Customer assumes all risk and liability for events occurring as a result of use of the Products, whether individually or in combination with other materials. The warranty does not apply to Products tampered with or modified without the Seller’s prior consent or used in a manner not compliant with the technical specifications provided by the Seller. The Seller’s warranty does not include alterations that the Products undergo in each part (metal, paper, colour, printing, etc.) due to substances with which they come into contact, nor any damage, defects or alterations caused by defective storage of delivered Products.
7.5 If the Customer receives complaints from its customers due to latent defects in the Products, it must refrain from making any acknowledgment, offer or payment and must immediately send the Seller a strictly confidential report containing a detailed description of the detected defects and all data necessary to identify the relevant batch, delivery date and place.
7.6 Products disputed by the Customer must be kept at the Seller’s disposal for any checks, without prejudice to the Customer’s burden of strictly proving its claims. Disputed Products may not be returned to the Seller without its authorisation. Within 60 (sixty) days after receipt of the report, the Seller shall notify the Customer in writing of instructions to settle the dispute.

Art. 8. PENALTY

8.1 In the event of failure by the Customer to collect the Products or other breach of the Contract by the Customer, the latter shall be required to pay a penalty equal to 30% (thirty per cent) of the value of the Products, without prejudice to the Seller’s right to demand payment of the price or to terminate the Contract and without prejudice to the right to compensation for greater damage. The same penalty shall also apply to the Customer if the latter requests early termination of the Contract and this is accepted by the Seller.

Art. 9. RETENTION OF TITLE

9.1 Pursuant to and for the purposes of Art. 1523 of the Italian Civil Code, the Products shall remain the Seller’s property until full payment and, in the case of cheques or negotiable instruments, until they are cleared, even if documents are delivered in advance.
It is understood that, regardless of the date ownership is transferred, risks are nevertheless transferred to the Customer from the date of delivery of the goods (in the manner provided above) pursuant to Art. 1523 of the Italian Civil Code.
9.2 In case of termination of the contract due to Purchaser breach, price instalments paid shall be acquired by the Seller pursuant to Art. 1526 of the Italian Civil Code, without prejudice to compensation for further damages.
9.3 The Customer is required to keep products supplied by the Seller and subject to retention of title under this article with due care, ensuring they are identifiable as the property of “Fluida” and kept in a place separate from other products.
9.4 The Seller has full right to recover Products already delivered to and stored by the Customer, as they are subject to retention of title, in all cases where the Customer is in breach of its payment obligations pursuant to Art. 6 above. For this purpose, the Customer must allow the Seller free access at any time to its premises or any place where it stores the Products.

Art. 10. INTELLECTUAL PROPERTY

10.1 Unless otherwise agreed in writing, the Seller remains owner of copyright and all industrial property rights, including technical, commercial or industrial information of which it may become aware by reason of the Contract(s).
10.2 The intellectual property rights provided above in Art. 10.1 shall always remain the Seller’s exclusive property and therefore may not be reproduced, used or made available to third parties without the Seller’s prior explicit written consent.

Art. 11. NO EXCLUSIVITY

11.1 The Seller grants no exclusivity rights for sale of the Products indicated in offers and its Products in general. Therefore, even in the context of an ongoing commercial relationship, any circumstances that in fact result in an exclusive situation shall not give rise to rights or expectations on the part of the Customer.

Art. 12. FORCE MAJEURE

12.1 The Seller shall not be liable to the Customer for losses, damages or delays caused by strikes, lockouts, industrial action, fires, floods, earthquakes, adverse weather conditions, measures of public authorities, power outages, missed or delayed supplier deliveries, interruption or suspension of transport or energy, unavailability or shortage of raw materials, machine stoppages or breakdowns, as well as any other event of fortuity or force majeure beyond its reasonable control.
12.2 The Seller shall promptly notify the Customer of the force majeure event it intends to invoke, identifying details of the event invoked, related consequences and its foreseeable duration. The Customer shall be entitled to withdraw from the Contract(s) entered into with the Seller if the impediment lasts for more than 6 (six) months.
12.3 Where the force majeure event is invoked by the Customer, the Seller shall have the right to withdraw from the Contract(s) entered into with the Customer or to suspend supply of the Products if the impediment lasts for more than 60 (sixty) consecutive days.

Art. 13. SUPERVENING IMPOSSIBILITY AND SUBSTITUTE PERFORMANCE

13.1 If, during performance of the Contract, production of a specific raw material ceases or use of a specific technical process ceases, such that the Seller is in absolute impossibility to deliver the agreed Product, the Seller has the right to examine with the Buyer the possibilities of delivering a similar product, the price of which, where no mutual determination is reached, shall be set by a third party appointed by the parties or, in case of disagreement, to cancel the sale.

Art. 14. GOVERNING LAW OF THE CONTRACT - JURISDICTION AND VENUE

14.1 These general conditions and the Contracts are governed by Italian law.
14.2 Any dispute between the Seller and the Customer in relation to these general conditions and/or the Contracts shall be subject to the exclusive jurisdiction of the Court of Milan.
14.3 By partial derogation from the preceding paragraph, the Seller shall have the right, at its discretion, to bring proceedings before the court of the place where the Customer has its registered office.
14.4 The United Nations Convention on Contracts for the International Sale of Goods signed in Vienna in 1980 shall not apply to these Conditions.