Art. 1. SCOPE OF APPLICATION
1.1 These general sales conditions are to be understood as and are an integral part of all order proposals, estimates and all sales contracts (hereinafter, the "Contract(s)") concluded between the seller F.S.A. S.r.l. (VAT No.: IT 03554300966), with registered office in Milan, Via F. Petrarca, 4 and head office in Busnago (MB), 20874, Via Del Lavoro n. 56, in the person of its legal representative pro tempore (hereinafter "FSA" or the "Seller") and the purchasing company/professional customers (hereinafter the "Customer"), the subject matter of which is the sale and related delivery of products by FSA to the Customer (hereinafter jointly the "Products").
1.2 These general sales conditions shall prevail over any deviating clauses included in forms or other documents prepared by the Customer, even if the Seller has not expressly objected to their applicability. Waivers of these general conditions shall only be binding on the Seller 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 conditions become, for whatever reason, invalid or ineffective, the other conditions shall continue to apply.
1.4 These general sales conditions of FSA are binding for all Customers:
from the moment of their receipt and therefore even if not specifically signed in writing;
also for orders placed before the date of dispatch of the same;
also in revisions that may be communicated in the future;
also for past or future Contracts that do not expressly refer to these General Sales Conditions.
Art. 2. CONCLUSION OF THE CONTRACT
2.1 The conclusion of the individual sales contract with the Seller is characterised by three stages and, only upon completion of the third stage, the agreement is concluded and binding:
STAGE 1: the Customer sends an enquiry, also by email, to FSA indicating the products he would like to purchase;
STAGE 2: FSA sends the Customer an order proposal ("FSA Order Proposal") containing a list of the goods to be supplied, the expected delivery date, and the price of the goods;
STAGE 3: the Customer accepts the FSA Order Proposal (without modification), which then becomes a Contract, either by a simple confirmation by email from the Customer, even if drafted by a person without authority to represent the Customer (the text of the email may for example be: "we approve the order proposal you have sent us") or by the return of the signed FSA Order Proposal. Upon completion (date of receipt of email confirmation, or signed FSA Order Proposal) of this Stage 3, the FSA Order Proposal becomes the "Customer’s Order Confirmation".
The Contract shall therefore be deemed concluded on the date of receipt of the communication from the Customer who, by sending his acceptance, also accepts these general sales conditions.
If the Customer communicates that he accepts only part of an FSA Order Proposal or returns it signed with total or partial changes, this communication will not constitute a Customer’s Order Confirmation, and therefore no Contract will be concluded, but will start a new STAGE 1 i.e. a new initial proposal by the Customer which will have to generate a new FSA Order Proposal.
2.2 FSA, before concluding the Contract, can always revoke or modify the Order Proposal and in any case is not bound to it until it receives the Customer's Order Confirmation.
2.3 Any FSA Order Proposal shall be deemed automatically expired if it is not expressly accepted by the Customer (reception) within a period of 10 (ten) working days from the date of receipt by the Customer of the FSA Order Proposal, unless FSA indicates otherwise.
Customer’s Order Confirmations received by FSA later than 10 working days after the Customer's receipt of FSA Order Proposal have no effect for FSA, unless otherwise agreed in writing. This clause is for the exclusive benefit of FSA, which alone (and therefore not the Customer) may object to the invalidity of the conclusion of a Contract on the grounds that the Order confirmation was received more than 10 days after the date of delivery of the FSA Order Proposal.
Art. 3. PRICES
3.1 The prices are indicated in the FSA Order Proposal and in the corresponding Customer’s Order Confirmation. Prices are exclusive of any charges, taxes or duties. Any customs duties, insurance and/or special packaging costs shall be borne exclusively by the Customer. Unless otherwise agreed upon in writing between the parties, prices quoted in a Seller's offer shall not be binding for subsequent offers.
3.2 Price Reviews. FSA may also review the price if:
a. if the Customer so requests, the Product is to be delivered within a shorter period than originally agreed or extended; or
b. if the expected delivery date of the Products indicated in the FSA Order Proposal applies a price list that differs from the price list in force on the date on which the FSA Order Proposal, which is the subject of the Customer’s Order Confirmation, is sent. In the event that delivery is scheduled for a date several months after the date of the Customer’s Order Confirmation, it is possible that the cost of raw materials and/or the cost of transporting the products will change in excess. This happens due to fluctuations in the value of the currency, or due to scarcity of raw materials, or shortages in transport. The Customer is aware of this risk of upward price fluctuation and therefore accepts the variation in the price of the goods.
The point in time at which the change in the list price should be assessed is the date of actual delivery of the goods.
3.3 Price variations of less than 25%. In the event of a variation in the price of the Customer's Order Confirmation of up to 25% more than the price indicated in the Customer's Order Confirmation, the Customer hereby agrees to undertake to pay such price and thus to accept the sale of the Products at the increased price.
3.4 Price changes of more than 25%. If the price changes by more than 25% compared to the price in the Customer’s Order Confirmation, the Customer may withdraw from the agreement by means of a communication to be sent within 5 working days from the reception of the price increase communication by FSA.
3.5 FSA Price List. The FSA price list in force in the month of expected delivery indicated in the Customer's Order Confirmation or in the month of actual delivery, if later than that indicated in the Customer's Order Confirmation, is the authentic document for the identification of the final price due by the Customer for the purchase of the Products covered by the Customer's Order Confirmation.
FSA will communicate its current price list to the Customer promptly each year.
Art. 4. DELIVERY
4.1 Delivery location. Unless otherwise agreed in writing between the parties, the delivery of the Products and the relative transport are always understood to be carried out by FSA at the Client's place or at another place agreed between the parties, also indicated in the Customer’s Order Confirmation.
4.2 Delivery terms. Unless otherwise expressly agreed in writing, the delivery terms indicated in the FSA Order Proposal are to be considered as merely indicative. This is because the Customer is aware and accepts the fact that there is often greater demand than supply of the Products, that there is a crisis of raw materials and transport. Therefore, even if a delivery date is indicated in the FSA Order Proposal, the same is to be considered as merely indicative and not exhaustive and may also be derogated unilaterally by FSA due to market requirements.
4.3 Absence of warranty by FSA for delivery delays. Any delay in delivery with respect to the deadline indicated in the Customer's Order Confirmation, even if not due to force majeure, shall not entitle the Customer to terminate the Contract or claim compensation for damages, whether direct or indirect, nor shall it entitle the Customer to discounts.
4.4 Delivery terms shall commence on the day of conclusion of the Contract in accordance with the above-mentioned Article 2. If payment is to be made upon ordering (i.e. a bank guarantee is to be provided), the delivery terms shall start upon receipt of the payment or the guarantee. Any changes to the Products agreed with the Customer will trigger a new delivery term.
4.5 If the Seller is prevented from complying with the delivery terms due to:
a. delays, slowdowns, suspensions and interruptions of work not attributable to the Seller itself;
b. pandemics, strikes, lock-outs, labour unrest, fires, floods, earthquakes, adverse weather conditions, measures taken by public authorities, power cuts, non-delivery or delayed delivery by suppliers, interruption or suspension of transport or energy, unavailability or scarcity of raw materials, machine stoppages or breakdowns as well as any other event of fortuitous circumstances or force majeure beyond the reasonable control of the Seller,
the commencement of the delivery terms shall be suspended from the day the Customer is notified of the impediment and until further notice given by the Seller.
4.6 Unless otherwise agreed in writing between the parties, the delivery shall be deemed completed when the transport company delivers the Product to the delivery location indicated in the above-mentioned Article 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 If the Customer (or his representative) is absent when the Product is delivered, or if the agreed delivery location is in an inaccessible area, the transport company's declaration that the Products have been delivered in good condition shall be considered proof of delivery and acceptance of the good condition of the goods.
4.8 As soon as the delivery governed by the foregoing is completed, the Seller is released from all liability and risk in respect of the Products. All risks are therefore transferred to the Customer.
4.9 If, notwithstanding the above, a sale with transport by the Customer is agreed between the parties:
a. will also be agreed and indicated a deadline after which the Customer may collect the relevant Product and the days and times for such collection. In this case, the Customer shall inform the Seller, at least 15 days before collection, of the designated shipping agent;
b. delivery is always intended to be made EX WORKS (Incoterms 2010) at the Seller's premises or other agreed place of collection; 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 discretion, to:
i. invoice the goods, which will be stored in their warehouses in the name and on behalf of the Customer. In this case, the Customer, who shall bear all risks relating to the Products in storage, shall pay to the Seller, by way of contribution to storage costs and until actual collection, an additional amount corresponding to 1% (one percent) of the sale price of the Products for each month of storage; or
ii. terminate or withdraw from the Contract with immediate effect;
iii. without prejudice, in both cases, to the application of the penalties referred to in Article 8 below in addition to any compensation for greater damages.
4.10 From the date of the completion of the delivery or collection as regulated above, the Seller shall not make any refunds to the Customer or accept the return by the same Customer of Products already delivered, unless otherwise agreed in writing between the parties and provided that the return is made in accordance with the conditions to be established from time to time by FSA.. If the Customer decides, even in the absence of an express written agreement, to return the Products already delivered to the Seller, all transport or storage costs at FSA's warehouses will be borne by the Customer.
4.11 FSA is entitled not to deliver the Products in the event that the Customer has not paid in full the price established for the goods to be delivered or is in arrears with the payment of other supplies under contracts, even if different from the one relating to the goods to be delivered, and/or there are factual elements capable of proving the Customer's possible insolvency. The Customer acknowledges, accepts and renounces to claim any contractual or pre-contractual damage in the event that FSA does not deliver the Products as a consequence of the non-payment, even partial, of the price.
Art. 5. PACKAGING AND TRANSPORT
5.1 The Seller uses only standard packaging for its Products. Any special packaging requested by the Customer will be charged to the Customer.
5.2 If the Seller has assumed the costs of transport, any increase in the costs of transport occurring after the day of conclusion of the Contract and any costs and taxes inherent in and consequent upon the transport shall be borne by the Customer, who, as of now, agrees to pay, even in advance of delivery of the Products, such higher costs.
Art. 6. PAYMENTS
6.1 Payment term: the term indicated in the FSA Order Proposal.
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 form or by e-mail.
6.3 The place of payment shall, in all respects, be the registered office of the Seller, irrespective of the agreed mode of payment, and thus also in the case of payment by draft, bill of exchange, banker's order or similar instrument.
6.4 In the event of total or partial delay in payment, the Customer shall pay interest on the outstanding amount at the rate set out in Legislative Decree 231/02 and subsequent amendments.
6.5 In the case of agreed payment by instalments, failure to pay even a single instalment shall cause the Customer to forfeit the benefit of the term pursuant to Article 1186 of the Italian Civil Code and the Seller's entire claim shall become immediately due and payable, without prejudice to the Seller's other rights.
6.6 Non-payment or delayed payment of any sum due by the Customer, even if relating to different business relationships with the same Seller, entitles the Seller to:
suspend the supply of Products as well as the preparation and delivery of Products covered by other orders of the Customer;
modify the terms of payment, including the possibility of requiring special warranties;
declare the Contract terminated for breach of contract by the Customer pursuant to Article 1456 of the Civil Code;
claim compensation for damage suffered as a result of non-payment or delayed payment and the effects thereof;
take back Products already delivered and not fully paid for by the Customer;
retain, by way of indemnity, any sums already received, without prejudice, in any event, to compensation for any greater damages.
6.7 Expenses (taxes and professional fees) incurred by the Seller in recovering sums owed by the Customer shall be borne exclusively by the Customer.
6.8 The Seller is also entitled to suspend the preparation and delivery of the Products if the Seller, at its own discretion, has reason to believe that the Customer may not fulfil its obligations properly.
6.9 Any claim of non-compliance and/or non-conformity of the Products delivered by the Seller shall not entitle the Customer to suspend payment for 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 sales conditions, the Customer undertakes to provide, at the first request of the Seller, a suitable guarantee attesting to its financial capacity to support the commitments assumed in the Contract. Failure or delay on the part of the Customer to provide the guarantee required pursuant to the foregoing shall entitle the Seller to terminate the Contract for non-compliance pursuant to Article 1456 of the Civil Code.
Art. 7. PRODUCT VERIFICATION, COMPLAINTS AND WARRANTY
7.1 The Seller warrants, also pursuant to Article 1490 of the Civil Code, that the Products delivered are free from defects that make them unsuitable for their intended use or appreciably reduce their value.
7.2 The Customer is obliged, also pursuant to art. 1495 of the Civil Code, within the mandatory term of 1 (one) day from delivery of the Products, to check the weight, dimensions and quantity declared by the Seller as well as the relative functioning. Any apparent defects must be reported to the Seller within 8 (eight) days of the expiry of such period, on penalty of forfeiture. Without prejudice to the foregoing, any other defects or hidden faults in the Products must be reported, under penalty of forfeiture, within and no later than 8 (eight) days of their discovery. In any case, the guarantee action pursuant to Article 1495 of the Civil Code shall be time-barred within one year from delivery.
7.3 In the case of Contracts concluded through intermediaries (such as agents or distributors), also in derogation of Article 1745, first paragraph, of the Civil Code, the Customer's complaints must be made in writing exclusively to the Seller, by means of Certified E-mail at firstname.lastname@example.org or by registered letter with return receipt.
7.4 Unless otherwise agreed in writing, the Seller does not warrant in any way 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 the use of the Products, either alone or in combination with other products. The warranty does not apply to Products that have been 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 Seller. The Seller's warranty does not cover any alterations that may occur to any part of the Products as a result of the substances with which they come into contact, or any damage, defects or alterations caused by defective storage of the Products delivered. The Customer is aware that the Products supplied by the Seller may be composed of delicate materials such as carbon; consequently, the Seller's warranty shall not apply to Products which after delivery have been subject to impact, even of a minor nature, by the Customer or the Customer's customers, either because they have been dropped on the ground or because they have been used by the end user in such a way that they impact other goods in the course of their use.
7.5 If the Customer receives complaints from its customers about hidden defects in the Products, it shall refrain from making any acknowledgement, offer or payment and shall immediately send the Seller a strictly confidential report containing a detailed description of the defects found and all data necessary to identify the relevant batch, date and place of delivery. It shall also ascertain whether the goods have been subjected to impacts in such a way that the Seller's warranty does not apply.
7.6 The Products contested by the Customer shall be kept at the Seller's disposal for possible investigations, without prejudice to the Customer's burden of rigorously proving his claims. The disputed Products may not be returned to the Seller without its authorisation. The Seller shall, within 60 (sixty) days following receipt of the report, inform the Customer in writing of the instructions for settling the dispute.
7.7 Unless otherwise expressly agreed in writing and subject to applicable law, Seller makes no warranty as to the accuracy and completeness of any 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. 7-bis PROHIBITION OF SALE
7-bis.1 The Customer with headquarters or offices in a country member of the European Union undertakes not to sell the Products to customers located outside the territories of the member states of the European Union.
7-bis.2 The Customer with headquarters or offices outside the European Union undertakes not to sell the Products to customers located within the European Union.
7-bis.3 Breach of the obligations set out in this Article shall entitle the Seller to claim damages and to terminate the existing Contracts for gross breach and may prevent new sales.
Art. 8. PENALTIES
8.1 If the Customer fails to collect the Products or otherwise defaults on the Contract, the Customer shall be liable to pay a penalty equal to 30% (thirty percent) of the value of the Products, without prejudice to the Seller's right to claim payment of the price or to terminate the Contract and without prejudice to the right to claim damages. The same penalty shall apply to the Customer even if the latter requests early termination of the Contract and the Seller accepts it.
Art. 9. RETENTION OF TITLE
9.1 Pursuant to and for the purposes of Article 1523 of the Civil Code, the Products shall remain the property of the Seller until they are fully paid for and, in the case of cheques or bills of exchange, until they are cashed, even if the documents are delivered in advance.
It is understood that, regardless of the date of transfer of ownership, the risks are in any case transferred to the Customer from the date of delivery of the goods (in the manner specified above) pursuant to Article 1523 of the Civil Code.
9.2 In the event of termination of the contract for breach of contract by the Buyer, the price instalments paid shall be acquired by the Seller pursuant to Article 1526 of the 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 under this article with the necessary care, ensuring that they are identifiable as the property of "FSA" and are stored in a separate place from other products.
9.4 The Seller is fully entitled to recover the Products already delivered to the Customer and stored at the Customer's premises as subject to retention of title in all cases where the Customer is in default of its payment obligations, pursuant to Article 6 above. To this end, the Customer shall allow the Seller free access at all times to its premises or to any place where it stores the Products.
Art. 10. INTELLECTUAL PROPERTY
10.1 Unless otherwise agreed in writing, the Seller retains title to copyright and all industrial property rights, including information of a technical, commercial or industrial nature, of which it may become aware by reason of the Contract(s).
10.2 The intellectual property rights provided for in Article 10.1 above shall 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. ABSENCE OF EXCLUSIVITY
11.1 The Seller does not grant any exclusive right for the sale of the Products indicated in the offers and its Products in general. Therefore, even in the context of an ongoing commercial relationship, any circumstances that in fact entail a situation of exclusivity shall not give rise to any 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 any loss, damage or delay caused by pandemics, strikes, lock-outs, labour unrest, fires, floods, earthquakes, adverse weather conditions, measures taken by public authorities, power cuts, non-delivery or delayed delivery by suppliers, interruption or suspension of transport or energy, unavailability or scarcity of raw materials, machine stoppages or breakdowns as well as any other event of fortuitous circumstances or force majeure beyond the reasonable control of the Seller.
12.2 The Seller shall promptly notify the Customer of the force majeure he intends to invoke, identifying the details of the event invoked, its consequences and its foreseeable duration. The Customer shall be entitled to withdraw from the Contract(s) concluded with the Seller if the duration of the impediment extends beyond 6 (six) months.
12.3 In the case that the event of force majeure is invoked by the Customer, the Seller shall be entitled to withdraw from the Contract(s) concluded with the Customer or to suspend the supply of the Products if the duration of the impediment exceeds 60 (sixty) consecutive days.
Art. 13. SUPERVENING IMPOSSIBILITY AND DIFFERENT PERFORMANCE
13.1 If, during the performance of the Contract, the production of a specific raw material or the use of a specific technical process ceases, so that the Seller is absolutely unable to deliver the agreed Product, the Seller shall be entitled to examine with the Buyer the possibility of delivering a similar product, the price of which shall be determined by the FSA price list in force at the time, or, in the event of disagreement, to cancel the sale.
Art. 14. LAW GOVERNING THE CONTRACT - JURISDICTION AND COMPETENCE
14.1 These general conditions and the Contracts are governed by Italian law.
14.2 Any dispute between the Seller and the Customer in connection with these general conditions and/or the Contracts shall be submitted to the exclusive jurisdiction of the Court of Milan.
14.3 Notwithstanding the provisions of the preceding paragraph, the Seller shall be entitled, at its own 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.
Pursuant to Article 1341 of the Civil Code, the Customer, by receiving this document, declares that he specifically approves the following clauses:
Price variation clause:
from 3.3. to 3.5
Limitation of liability clauses:
4.8 (transfer of liability for the Products to the Customer from the moment of delivery);
7.4 (liability for use of products by the customer)
12.1 (absence of FSA liability due to force majeure)
Right of withdrawal:
4.9.c.ii (FSA's right of withdrawal for failure to collect the goods)
Right/prohibition of suspension:
6.6 (FSA's right to suspend supply in the event of non-payment)
6.8 (FSA's right to suspend supply in the event of the Customer's feared insolvency or instability)
6.9 (prohibition of suspension of payments by customer)
14.2 e 14.3