Art. 1. AREA OF APPLICATION
1.1 These general terms and conditions of sale apply to all estimates and all sales contracts (hereinafter referred to as the "Contracts") concluded, also electronically, between the seller Fluida Europe S.r.l., with a registered office in Milan, Via Farini 5 (hereinafter "Fluida" or the "Seller") and the Buyer/Professional Customers (hereinafter the "Customer"), having as object the sale and the relative delivery of products by Fluida to the Customer (hereinafter, jointly, the "Products").
1.2 These General Terms and Conditions shall prevail over any differing clause included in forms or other documents prepared by the Customer, even if their applicability has not been expressly contested by the Seller. Exceptions to these general conditions bind the Seller only if they have been accepted by the latter in writing.
1.3 If, during the performance of a Contract, one or more of these General Terms and Conditions become, for any reason, invalid or ineffective, the other terms and conditions shall continue to apply.
1.4 If there is already a Contract between the Seller and the Customer governed by these general conditions, it is understood that the same general conditions herein governed, unless they are expressly excluded, shall also apply to any subsequent sale concluded between the Seller and the Customer, even if of such subsequent sales the aforementioned conditions have not been expressly invoked or accepted.
Art. 2. TERMINATION OF THE CONTRACT
2.1 The Contract is intended to be terminated and, therefore, binding for Fluida only after Fluida has read these general conditions by the Customer through the IT system available on the order manager website.
2.2 Fluida, until the conclusion of the Contract, may always revoke the offer at any time, even if it contains a deadline for acceptance by the Customer, unless such an offer has not been expressly qualified as irrevocable pursuant to art. 1329 of the Civil Code.
2.3 Any oral or written offer made by the Seller, shall be deemed automatically to have expired in the absence of express acceptance by the Customer within the period of 10 (ten) working days, unless Fluida indicates otherwise.
2.4 Except as otherwise expressly agreed in writing and without prejudice to the provisions of applicable law, the Seller makes no warranty as to the accuracy and completeness of all technical information (including the designs, images, drawings, calculations, dimensions, capacity, weight, performance and models) provided by the same Seller in its catalogues, brochures, as well as through its own advertising or on its own website.
Art. 3. PRICING
3.1 Prices are indicated in the Seller’s offer and are net of any charge, tax or tax, any customs duties, insurance and/or special packaging costs, which are the exclusive responsibility of the Customer. Unless otherwise agreed in writing by the parties, prices indicated in an offer of the Seller shall not be binding on subsequent offers.
3.2 The Seller may also review the price if, at the request of the Customer, the Product must be delivered in a shorter period than the one initially agreed or extended or the processing of the Product itself must be carried out in extraordinary hours, night and/or holidays.
Art. 4. DELIVERY
4.1 Unless otherwise agreed in writing between the parties, delivery of the Products and the related transport shall always be deemed to have been carried out by the Seller at the Customer’s office or at another place agreed between the parties.
4.2 Unless otherwise expressly agreed in writing, the delivery terms are purely indicative.
4.3 Therefore, any delays in delivery, even not due to force majeure event will not entitle the Customer to terminate the Contract or claim compensation for damages, both direct and indirect, but will legitimize exclusively the Customer to send to Fluida a written reminder containing a reasonable deadline for delivery of the Products, it being understood that this deadline may in no case be less than 10 (ten) working days.
4.4 The delivery terms start from the day of the conclusion of the Contract pursuant to art. 2. Where a payment is made to the order or a bank guarantee is issued, the delivery period shall begin on receipt of the intended payment or guarantee. Any changes to the Products agreed with the Customer will start a new delivery period.
4.5 If the Seller is prevented from complying with the delivery deadlines due to:
4.6 Unless otherwise agreed in writing between the parties, a delivery is considered completed when the transport company delivers the Product at the place of delivery indicated in art. 4.1. Delivery must take place in the presence of the Customer (or his representative) who must be present at the unloading of the goods 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 case of absence, at the time of delivery of the Product, of the Customer (or of its representative), or in the event that the agreed places of delivery should be in non-accessible areas, the declaration of the transport company, which certifies that the Products have been delivered in good condition, is considered proof of delivery and acceptance of the good condition of delivery of the goods.
4.8 From the time of completion of the regulated delivery as above, the Seller is free from any liability and risk inherent in the Products. All risks are therefore transferred to the Customer.
4.9 Where, even in derogation from the foregoing, a sale with delivery is agreed between the parties by the Customer:
a) it will also be agreed and indicated a term from which the Customer can provide for the withdrawal of the relevant Product and the days and times for the same withdrawal. In this case, the Customer must inform the Seller, at least 15 days before collection, the designated freight forwarder;
b) A delivery is always to be considered EX WORKS (Incoterms 2010) to the Seller’s registered office or other agreed place of collection; Therefore, Products travel always at the risk of the Customer;
c) if the Customer does not collect the Products in time, the Seller will have the right, at its choice, to:
4.10 As from the completion of the delivery or collection as previously regulated, the Seller does not make refunds in favour of the Customer nor does it accept the return by the same Customer of Products already delivered, unless otherwise agreed in writing between the parties and provided that the return takes place in accordance with the conditions that will be established from time to time by Fluida. If the Customer decides to return the Products already delivered to the Seller, even in the absence of an explicitly written agreement, any transport or storage costs at the warehouses of Fluida will be borne by the Customer.
Art. 5. PACKAGING AND TRANSPORT
5.1 The Seller shall only use common packaging for its Products. Any special packaging requested by the customer will be charged.
5.2 If the Seller has assumed the costs of the carriage, the increases in costs of the carriage occurring after the day of the conclusion of the Contract and any costs and taxes inherent and consequent to the carriage shall be borne by the Customer.
Art. 6. PAYMENTS
6.1 Unless specific terms are provided for inside the Contract, the Customer must pay the price within 30 (thirty) days from the date of the invoice and in the currency indicated therein.
6.2 The parties expressly agree that, unless otherwise agreed in writing, the invoices will be sent by the Seller to the Customer exclusively in electronic form or by e-mail.
6.3 The place of payment is actually the registered office of the Seller, whatever the method of payment agreed is, and therefore also in case of payment by means of drafts, bills of exchange, bank draft or similar title.
6.4 In case of late payment in full or in part, the Customer must pay, on the pending amount, a default interest at the rate provided for by D. Lgs. 231/02 and subsequent amendments.
6.5 In case of a payment by installment, the non-payment of even a single installment will cause the Customer to forfeit the benefit of the term pursuant to art. 1186 of the Civil Code and the Seller’s entire claim will become immediately due, without prejudice to the Seller’s additional rights.
6.6 Failure or delayed payment of any amount due by the Customer, even if related to different business relationships with the same Seller, authorizes the same Seller to:
6.7 The expenses incurred by the Seller to recover the amount due to the same by the Customer are the sole responsibility of the Customer.
6.8 The right to suspend the preparation and delivery of the Products is granted to the Seller even if the latter, according to its own discretion, has reason to believe that the Customer may not exactly fulfill its obligations.
6.9 Any claim of default and/or non-conformity of the Products delivered by the Seller shall not entitle the Customer to suspend payment of the disputed Products and/or any other Products delivered by the Seller.
6.10 Without prejudice to any right assumed by the Seller in these General Terms and Conditions of Sale, the Customer undertakes to provide, at the first request of the Seller, a suitable guarantee attesting to its financial capacity to meet the commitments made in the Contract. Failure or delay in the submission of the guarantee by the Customer requested pursuant to the above, entitles the Seller to terminate the contract for breach pursuant to art. 1456 of the Civil Code.
Art. 7. PRODUCT VERIFICATION, COMPLAINTS AND WARRANTY
7.1 The Seller guarantees, also pursuant to art. 1490 of the Italian Civil Code, that the Products delivered are free from defects that render them unfit for the use for which they are intended or appreciably diminish their value.
7.2 The Customer is bound, also pursuant to art. 1495 of the Italian Civil Code, within the mandatory deadline of 1 (one) day from the delivery of the Products, to verify the weight, size and quantity declared by the Seller and its operation; any apparent defects must be reported, under penalty of forfeiture, to the Seller within 8 (eight) days after the expiry of the given term. Without prejudice to the above established, any other hidden defect or defect of the Products must be reported, under penalty of forfeiture, no later than 8 (eight) days after its discovery. In any case, the warranty action pursuant to art. 1495 of the Civil Code is prescribed in one year from delivery.
7.3 In the case of contracts concluded through the agency of the agent, even in derogation of art. 1745, first paragraph, of the Civil Code, the Customer’s complaints must be made in writing exclusively to the Seller, through PEC at firstname.lastname@example.org or by registered letter A/R.
7.4 Unless otherwise agreed in writing, the Seller does not guarantee in any way that the Products are designed for a specific use and therefore the Customer assumes all risks and responsibilities for any event that occurred as a result of the use of the Products, either individually or in combination with other materials. The warranty does not operate for Products that are tampered with or modified without the prior consent of the Seller or used in a manner that does not comply with the technical specifications provided by the latter. The Seller’s warranty does not include any alterations that, due to the substances with which the Products come into contact, they undergo in every single part (metal, paper, color, printing, etc.) as well as any damages, defects or alterations caused by a defective storage of the delivered Products.
7.5 If the Customer should receive complaints from his customers due to hidden defects in the Products, he must refrain from making any acknowledgement, offer or payment and must immediately transmit to the Seller a strictly confidential report containing a detailed description of the defects found and all the data necessary to identify the relevant consignment, the date and the place of delivery.
7.6 The Products contested by the Customer must be kept at the disposal of the Seller for any verification, without prejudice to the Customer’s obligation to rigorously prove its objections. The disputed Products cannot be returned to the Seller without his permission. The Seller shall, within 60 (sixty) days following receipt of the report, inform the Customer in writing of the instructions for settling the dispute.
Art. 8. PENALTY
8.1 In the event of failure by the Customer to withdraw the Products or other breaches of the Contract by the Customer, the Customer shall be required to pay a penalty equal to 30% (thirty percent) 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 the greater damage. The same penalty shall be deemed applicable to the Customer even if the latter should request early termination of the Contract and it 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, Products will remain the property of the Seller until their full payment and, in case of cheques or bills of exchange, until their collection, even if the documents are delivered in advance.
It is understood that, regardless of the date of transfer of ownership, risks are in any case transferred to the Customer from the date of delivery of the goods (in the manner provided for above) pursuant to art. 1523 of the Civil Code.
9.2 In the event of termination of the contract for non-compliance of the Buyer, the price instalments paid will be acquired by the Seller pursuant to art. 1526 Italian Civil Code, without prejudice to the right to compensation for further damages.
9.3 The Customer shall keep the products supplied by the Seller subject to retention of title pursuant to this Article with the necessary care, ensuring that they are identifiable as belonging to "Fluida" and are stored in a place separate from other products.
9.4 The Seller has the full right to recover the Products already delivered to the Customer and held by the same Customer as subject to retention of title in all cases in which the Customer is in breach of its payment obligations, pursuant to art. 6 above. To this end, the Customer must allow free access to the Seller at any time at its headquarters or in any place where it holds the Products.
Art. 10. INTELLECTUAL PROPERTY
10.1 Unless otherwise agreed in writing, the Seller shall remain the holder of the copyright and all industrial property rights, including information of a technical, commercial or industrial nature, of which he may become aware under Agreement/s.
10.2 The intellectual property rights above provided for in art. 10.1 always remain the exclusive property of the Seller and therefore may not be reproduced, used or made available to third parties without the prior express written consent of the Seller.
Art. 11. LACK OF EXCLUSIVITY
11.1 The Seller does not grant any exclusive rights to the sale of the Products indicated in the offers and its Products in general. Therefore, even in the context of an ongoing business relationship, any circumstances that in fact involve an exclusive situation will not determine the rise of rights or expectations in the Customer.
Art. 12. FORCE MAJEURE
12.1 The Seller shall not be responsible to the Customer for loss, damage or delay caused by strikes, lockouts, trade union disturbances, fires, floods, earthquakes, adverse weather conditions, public authority actions, power outages, missed or delayed deliveries of suppliers, interruption or suspension of transport or energy, unavailability or scarcity of raw materials, stoppages or machine failures as well as any other unforeseeable or force majeure event beyond its reasonable control.
12.2 The Seller shall promptly inform the Customer of the cause of force majeure that it intends to invoke, identifying the details of the event invoked, the consequences related to the same and its foreseeable duration. The Customer shall have the right to withdraw from/i the Contract/s concluded/s with the Seller should the duration of the impediment be longer than 6 (six) months.
12.3 Should the event of force majeure be invoked by the Customer, the Seller shall have the right to withdraw from the Contract/s agreed with the Customer or to suspend the supply of the Products should the duration of the impediment be longer than 60 (sixty) consecutive days.
Art. 13. UNEXPECTED IMPOSSIBILITY AND DIFFERENT PERFORMANCE
13.1 In the event that, during the execution of the Contract, the production of a specific raw material or the use of a specific technical procedure ceases, so that the Seller is in the absolute impossibility of delivering the agreed Product, the Seller has the right to examine with the Buyer the possibility of delivering a similar product, the price of which, in the absence of a consensual determination, is determined by a third party designated by the parties or, in the event of their disagreement, to cancel the sale.
Art. 14. CONTRACT REGULATORY LAW – JURISDICTION AND VENUE
14.1 These general conditions and Contracts are governed by the 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 With partial derogation from the provisions of the preceding paragraph, the Seller shall have the right to refer, at its discretion, to the Court of the place where the Customer is established.
14.4 The United Nations Convention on International Sales Contracts signed in Vienna in 1980 does not apply to these Conditions.