1.1 These General Terms and Conditions of Sale (“Conditions”) govern the offering, sale and supply of all goods and/or services (goods and services herein both severally and jointly referred to as “Goods”) by P.M.T. S.r.l. (“Seller”) to its purchaser/customer (“Customer”) and are applied to all similar relationships between the Seller and the Customer. P.M.T. sells the products exclusively to professional customers: the Customer declares that the purchase of Goods will be for professional purposes only, meaning related to its work activity.
1.2 These Conditions supersede any and all prior oral or written quotations, communications, agreements or arrangements between the parties concerning the sale and supply of Goods and shall take precedence and supersede any clause or condition pertaining to orders placed by the Customer and any other general terms and conditions submitted by the Customer. The failure of the Seller to reject the general terms and conditions set by the Customer can under no circumstances be construed as acceptance of the same. Neither shall the fact that the Seller has begun or has completed delivery constitute acceptance of the general terms and conditions of contract of the Customer. In the event of a discrepancy between these Conditions and the terms and conditions of the Customer, these Conditions and any subsequent communication or document drawn up by the Seller or in the name of the Seller, including, without limitation, the confirmation of an order and the supply of Goods, shall constitute a counter-offer and not acceptance of such terms and conditions submitted by the Customer. Any communication or document from the Customer that confirms an agreement for the supply of Goods from the Seller, as well as acceptance by the Customer of any delivery of Goods supplied by the Seller shall constitute unreserved acceptance by the Customer of these Conditions.
1.3 These Conditions may be subject to amendment or waiver only in the presence of a specific written agreement between the Seller and the Customer.
1.4 The Customer concluding a contract governed by these Conditions accepts that the same Conditions apply to future business relations as described in article 1.1, even when not expressly agreed. The Seller may update and/or amend these Conditions regularly and, from the date of notification of such update and/or amendment, or after sending the updated or amended Conditions to the Customer, the revised Conditions shall govern business relations between the Seller and the Customer.
1.5 The Seller and the Customer agree that valid, enforceable, and binding obligations may result from electronic means of communication. Any electronic communication between the Seller and the Customer shall be considered to be a “writing” and/or “in writing”.
2. Quotations, offers, orders and confirmations – prices
2.1 The quotations/offers, prepared by the Seller in whatever form, are not binding upon the Seller and merely constitute an invitation to the Customer to place an order. All quotations/offers issued by the Seller are revocable and subject to change without notice. Orders are not binding until accepted by the Seller in writing (the Order Confirmation, hereinafter also referred to as “Confirmation”). The Seller is always entitled to refuse an order without providing a reason.
2.2 The prices quoted on the basis of estimated or projected quantities are subject to increase whenever the actual quantities purchased during the specified period are lower than those estimated or projected.
2.3 Each delivery shall be deemed to be a separate transaction and a failure to supply shall have no consequences on other deliveries.
3. Delivery, transport and transfer of risk
3.1 Unless declared otherwise in the Seller’s Confirmation, the Goods will always be supplied to:
– Customers with registered office/operational headquarters in Italy, Ex Works, at the production works of the Seller (24051 – Antegnate)
– Customers with registered office in the European Union: CPT (Carriage Paid To) agreed place of delivery.
– all other Customers: FCA (Free Carrier) warehouse of P.M.T. carrier.
P.M.T. will charge the Customer all costs incurred for delivery of the goods returns according to Incoterms CPT agreed place of delivery and FCA warehouse of P.M.T. carrier; the aforementioned acronyms will have the meaning assigned to them in the most recent version of INCOTERMS published by the International Chamber of Commerce of Paris at the time of Order Confirmation.
3.2 Unless expressly declared otherwise in the Seller’s Confirmation, the times and dates of delivery stated by the Seller are indicative and not essential to fulfilment. The Seller may supply the Goods stated in the Seller’s Confirmation in several partial deliveries, invoiced separately. With the exception of serious negligence or fraud, the Seller shall in no way be liable for damages (direct and/or indirect) caused by a delay in deliveries; the delay in delivery of the Goods does not relieve the Customer of its obligation to accept delivery. Any discrepancies between the quantities of Goods delivered and that stated on the Seller’s Confirmation shall not give the Customer the right not to accept the Goods, and the Customer shall be required to pay, for the quantities delivered, the amounts indicated in the Seller’s Confirmation.
3.3 If the delivery of Goods is postponed at the request of a Customer resident in Italy or in the European Union or due to circumstances attributable to the latter or however falling under the sphere of control of the Customer, the latter shall indemnify the Seller for the costs of storage incurred and financial charges accrued on the capital invested in the goods delayed. In the event of storage at the Seller’s premises, the payment due shall be equal to at least 0.5% of the amount of the relative invoice for each month of delay, beginning from the month following notification of the availability of the delivery, without prejudice to the possibility to claim for greater damages.
3.4 If the delivery of goods is postponed on the request of a Customer resident outside Italy or the European Union or due to circumstances attributable to the latter or however falling under the sphere of control of the Customer, the latter shall indemnify the Seller for the costs of storage incurred and financial charges accrued on the capital invested in the goods delayed. In the event of storage at the warehouse of the Seller’s carrier, the payment due shall be equal to at least €25.00 per pallet and €15.00 per box, for each week of delay, beginning from the week following notification of the availability of the delivery. If the goods are not collected within 6 months, the Seller shall charge the Customer, in addition to the costs stated above, the cost for EX1 closing procedure, as stated in the relevant Customs invoice, without prejudice to the possibility to claim for greater damages.
4. Transfer of risk
4.1 Unless otherwise established by Incoterms, the risk of the Goods shall pass to the Customer at the time of delivery.
4.2 Goods for which delivery has been suspended due to pending payments by the Customer, as well as Goods for which delivery has been rejected or not accepted by the Customer without just cause, shall be held by the Seller at the risk and expense of the Customer.
5. Force majeure
5.1 As a limit of liability of the Seller for failure to fulfil or a delay in fulfilling its obligations in accordance with art. 1218 of the Italian Civil Code, “non-attributable cause” shall be any event outside the control of the same that makes it impossible to fulfil the service and therefore, as an example, but not limited to, the following circumstances: (a) the obligation to comply with any order, request or regulation of the central or local public authority and/or any person representing such authority; (b) wars, hostility, uprisings, sabotage; (c) strikes, lockouts, labour disturbances or other problems of a labour nature; (d) fires, accidents, damage or other natural causes; (e) events attributable to third parties or fortuitous causes that
are solved by stopping the supply or however in a lack of availability of the raw materials and other means necessary for the production, manufacture, storage, transport, distribution or delivery of the products supplied by the Seller and necessary for performance of the contract.
5.2 In the event a similar event occurs, the party affected shall immediately inform the other party in writing, describing accurately the cause of the event and the manner in which it will affect the fulfilment of the obligations arising from the Seller’s Confirmation. In the event of delay, the obligation to deliver will be suspended for a period equal to the loss of time due to “non-attributable cause”. If, however, the event continues or is expected to continue for more than two (2) months after the agreed delivery date, either Party may cancel the part of the Seller’s Confirmation concerning the event without any liability to the other party.
5.3 In the event any situation occurs as stated in the previous point 5.1, the Seller may divide among its customers, in the most reasonable manner according to its needs, the quantity of products available at its premises.
6.1 The delivery is carried out based on the prices given in the price list/offer in force on the date of order confirmation. Unless otherwise agreed, all prices are applied ex-works/place of shipment and all prices are in Euros and are net, if applicable, of transport costs, insurance, any certifications and obligations, as well as Value Added Tax, each in the amount actually due.
6.2 The Seller reserves the right to:
– increase the prices by a reasonable amount in cases in which, after conclusion of the contract, there are increases in costs due in particular to tariff agreements, general increases in market prices;
– charge order handling costs, which will be communicated in the offer/order confirmation;
– for Customers resident outside Italy and the European Union, charge €150.00 for each shipment as a contribution for documentation expressly requested by the Customer to complete the customs formalities necessary for importing the goods and for their transport to any country other than Italy.
7. Payments and extensions
7.1 Unless agreed otherwise between the parties, the payment must be made to the Seller within the date stated on the Seller’s invoice concerning the Goods, by bank transfer to the bank account stated on the same invoice. All payments shall be made without any deduction due to expenses, taxes and without any offsetting or counterclaim.
7.2 Punctuality is an essential aspect for fulfilling the obligation to pay for the price of the Goods. In the event of a delay with respect to the deadline for payment agreed and stated on the Seller’s invoice, the Seller can, without prejudice to any other rights of the Seller, charge interest in an amount equal to three-month Euribor rate increased by 3% on an annual basis. The interest shall automatically accrue from the date on which the payment became due until payment is received in full, without the need for prior notice of default or declaration on non-compliance. All expenses incurred by the Seller for collection of the payments due (including, without limitation, legal expenses under Italian Legislative Decree no. 55/2014, expert’s fees, costs for court fees/registrar charges and other expenses incurred for the dispute) will be charged to the Customer, which will make the payment.
7.3 Every payment of the Customer will be set in first place against court and out-of-court expenses, in second place against interest owed by him and in third place against the oldest outstanding claim.
7.4 Should, following conclusion of the contract or delivery of the goods, circumstances occur such as, for example, the subjection of the Customer to seizures, attachments or other enforcement proceedings, or there is a deterioration in its financial position, evidence of which might be a request for postponement from the same Customer, to the extent that there is a risk that the amounts owed to the Seller might not
be paid, the Seller may declare that the acceleration clause has come into effect with regard to the Customer and all amounts owing shall immediately come due and payable; in the event of this situation and where invoices issued have not been fully settled, the Seller may make it a condition that payment is made in advance for each subsequent delivery, or suitable guarantees must be provided by the Customer. Should the Customer not satisfy this request, the Seller shall have the right to withdraw from the contract and the Customer shall pay all damages incurred by the Seller, including for loss of earnings.
7.5 Under penalty of invalidation, any claim regarding the invoices must be made to the Seller within eight (8) days from receipt of the invoice. Once this date has expired, the invoice shall be deemed to have been accepted by the Customer.
8. Retention of title
8.1 The title of the product shall not pass to the Customer and the full ownership and effective title of the Goods shall remain with the Seller unless and until the Seller has received full payment for the Goods, including the repayment of all ancillary costs, such as, for example, interest, charges, costs, etc.
8.2 In the event the contract is terminated due to a breach by the Customer, the Seller, without prejudice to its other rights, has the right to request immediate return of the Goods on which it may claim retention of title.
8.3 Until the ownership of the Goods remains with the Seller in accordance with this article 8, the Customer has the right to use the Goods only when required for the ordinary activity of its company and, where possible:
– shall keep the Goods in a separate place, so that they are recognizable;
– shall immediately inform the Seller of any claim from third parties that might affect the Goods;
– shall provide suitable insurance cover of the Goods.
– the Customer gives its consent henceforth so that the people appointed by the Seller to recover the goods subject to retention of title may access the buildings and properties where said goods are located to collect the same.
9. Checking and compliance to the order – disputes or complaints
9.1 On delivery and during handling, use, processing, transport, storage and sale of the Goods (“Use”), the Customer shall inspect the Goods and check that the quantity supplied corresponds to the quantity agreed.
9.2 All complaints regarding the Goods shall be made in writing and must, on penalty of invalidation, reach the Seller within eight (8) days from the date of delivery in the event they concern defects, shortages or failures encountered during normal inspection of the delivery, and no later than eight (8) days from the date on which other types of defects were or should have been encountered, but in any case no later than twelve (12) months from the date of delivery of the Goods. The use or processing of the Goods unreservedly constitutes acceptance of the Goods and a waiver of all claims regarding the same.
The Seller provides a general warranty of 12 months from the date of delivery for all its products, for defects of materials and/or of manufacture. Without prejudice to the aforementioned period, for the warranty to be valid it is indispensable that all the following conditions are present:
– the product is used in compliance with information or instructions from the Seller;
– no work (technical or otherwise), repairs or alterations have been made to the product by the Customer or by third parties;
– the product was sent to the Seller intact, complete of all its parts and not otherwise tampered with;
– the defect was not due to it being dropped, to tampering, improper use, intentional misconduct and/or negligent conduct of the Customer, vandalism, violent impacts, incorrect storage, weather events and/or natural calamities;
– authorization from P.M.T. to return the goods referred to in the form “RMA Return Merchandising Authorization” to be requested from the same.
9.3 In order to benefit from the warranty, after verifying that all of the aforementioned conditions, none excluded, are present, the Customer must comply with the terms and conditions for goods returns stated in subsequent article 10.2.
9.4 The Seller may choose to repair the goods or send the same item previously repaired (or new) as a replacement, without prejudice to the commencement of warranty from the original delivery date. The Goods and replaced parts will become the property of P.M.T..
9.5 Should the Seller be unable to repair the goods, and the defect is such that the goods cannot be used, the Seller may return to the Customer the amount effectively paid, minus a sum proportional to the period of use by the Customer; should the goods be however usable, the Seller may choose to make an appropriate reduction in the price.
In any case, the Customer must cooperate with the Seller to the fullest extent to ensure that the repair/replacement is carried out, and a failure to do so shall mean that the Seller is released from every obligation regarding the warranty.
9.6 The Seller warrants only that, at the date of delivery, the Goods correspond to the specifications on the order confirmation; the aforementioned warranty is exclusive and supersedes all other warranties, declarations, conditions or other provisions, whether explicit, implicit, contractual or otherwise, including, without limitation, any warranties of merchantability, suitability or fitness for any purpose or otherwise, infringement of intellectual property rights concerning the Goods.
9.7 If the defects concern a part of the Goods listed in the Seller’s Confirmation, the Customer shall not be entitled to reject the entire delivery of Goods. Any claims made shall not affect the Customer’s obligation to pay the price of the Goods. Once notification of a defect has been received, the Seller may suspend all further supplies until it has been established that the claim is unfounded and/or refuted or until the defect has been remedied.
10. Merchandise returns (return of the Goods)
10.1 Each time goods are returned, a written communication must be sent to the Seller in which the Customer states its detailed reasons for sending back the material.
P.M.T. will send the Customer the form “RMA Return Merchandising Authorization”, and within 7 (seven) days from receiving the form, may authorize the return.
P.M.T. reserves the right to assess and accept the return of goods purchased by the Customer provided that:
– the Goods are not damaged;
– the packaging and labels are intact and are in the same condition as when supplied;
– the Goods were not purchased through a promotion, even in the case of a full return;
– a reasonable amount of time has passed from the date that the goods were received by the Customer.
In cases in which, by specific written agreement, P.M.T. accepts, in exceptional circumstances, the return of goods delivered, a manufacturing fee will be charged, which will be equal to 25% of the net value of the returned goods plus Value Added Tax.
The product returns will only be accepted provided that the procedure at the following point 10.2 is observed.
10.2 Once authorization from P.M.T. to return the goods has been received, as stated in the form “RMA Return Merchandising Authorization”, the Customer must comply with the following essential conditions:
a) clean the Goods, removing any residual products used during the Customer’s manufacturing cycle;
b) draw up a returns transport document, stating the number of the transport document and/or P.M.T.’s invoice of reference.
c) the Goods shall be returned CPT to P.M.T. – 24051 Antegnate (BG) – Italy, in the case of customers based in the European Union, or DDP to P.M.T. – 24051 Antegnate (BG) – Italy, in the case of customers with headquarters outside Italy and the European Union.
11. Liability for damage
11.1 Besides the case of liability towards consumers under Italian Legislative Decree no. 206 dated 06/09/05, in the event of claims regarding use, resale or distribution of the Goods sold or delivered, singly or in combination with other products, components or packaging, or any other claim regarding the sales contract, the Seller’s liability shall under no circumstances exceed the value of the Goods at the time of sale, unless in the case of intentional or negligent acts. In every case of liability, the Customer shall indemnify the Seller for the sums paid by the same for compensation for damages.
11.2 The Customer, with reference to that established in the previous paragraph, is also required not to use the Goods purchased from the Seller for purposes and/or with methods other than those specified in the instructions/technical data sheet, as the Seller will not be liable for any improper use.
12. Modifications and information, Customer’s guarantee
12.1 The Seller reserves the right to replace or modify, at any moment, the construction and/or manufacture of the Goods, as well as replace the materials used in the production and/or manufacture of the Goods, without changing the characteristics and performance. The Customer acknowledges that the information contained in the Seller’s catalogues, technical data sheets and in other descriptive publications distributed by the Seller or published on its website may also be amended at any moment without notice. Declarations, suggestions, opinions, advice, samples or other information from the Seller concerning the Specifications, the Goods and their Use are supplied exclusively to help the Customer.
12.2 In relation to the Goods and the use made thereof, including the way in which – specifically and to pursue particular objectives – the information from the Seller is used, the Customer must rely solely on and use only its own expertise, know-how and judgement. The advice supplied by the Seller shall not give rise to additional obligations. Information provided with regard to the suitability and Use of the Goods shall not be binding and Seller does not assume any liability based on such advice. The Customer shall indemnify and hold the Seller harmless from and against any and all damage, losses, costs, expenses, claims, judicial requests and liabilities arising out of or in connection with the Goods, Customer’s Use thereof and/or Customer’s use or application of any information disclosed or provided by or on behalf of Seller.
13 Compliance to laws and regulations
13.1 Seller makes no commitment or guarantees that the Goods shall conform to any law, order, regulation, code or regulation (“Laws and regulations”) unless expressly stated in Seller’s Confirmation or in the Specifications. The Customer acknowledges that the Use of the Goods may be subject to requirements or limitations under Laws and regulations. The Customer shall be exclusively responsible for (i) ensuring compliance with all Laws and regulations associated with its intended Use of the Goods; and (ii) obtaining all necessary approvals, permits or authorizations for such Use.
Even in the event the goods delivered are exported abroad, the Customer is solely responsible for complying with applicable legal provisions for exporting and for the sale/use of the Goods in the country concerned.
14. Termination of the sales contract
14.1 If (a) the Customer is in default of performance of its obligations towards the Seller, or (b) if the Seller has reasonable doubts that the Customer will fulfil its obligations to the Seller and the Customer fails to provide to Seller adequate assurance that such obligation will be fulfilled, before the date of scheduled delivery and in any case within thirty (30) days of the Seller’s request for such assurance; or (c) if the Customer becomes insolvent or unable to regularly fulfil its obligations when due, or (d) goes into liquidation or is admitted to insolvency proceedings, then, without prejudice to any other rights of the Seller, the Seller may, providing notice in writing:
(i) declare the contract terminated and request the return and take repossession of all delivered Goods which have not been paid for; for this purpose the Customer grants the Seller the right and irrevocable authorization to access any or all the properties where the Goods are or may be stored and all costs relating to the recovery of the Goods shall be charged to the Customer; and/or
(ii) suspend the performance of its services unless a suitable guarantee is provided.
14.2 In all cases in which the circumstances (i) and/or (ii) occur, all amounts owed to the Seller will fall due even if they have not matured.
15.1 No party may transfer the rights or obligations arising from the contracts concluded without the written consent of the counterparty; it should be understood, however, that the Seller may transfer such rights and obligations, in whole or in part, to one of its parent companies, subsidiaries or affiliates, or to a third party that acquires all the assets or company of the Seller or, in the event of a partial buyout, whenever the part transferred concerns the Goods.
16. Applicable law and jurisdiction
16.1 The contracts of sale and these General Conditions of sale shall be governed, interpreted and enforced according to Italian law, excluding the principles of conflict of laws. In particular the United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on 11th April 1980 and ratified in Italy with Law no. 765 dated 11th December 1985 shall not be applicable.
16.2 All disputes regarding the sales contracts shall fall under Italian jurisdiction and shall be deferred to the exclusive jurisdiction of the Judicial Authority of Milan, exception being made for the Seller to take legal proceedings against the Customer, in accordance with articles 18 and 19 of the Italian Code of Civil Procedure, before the judge of the place in which it is resident or domiciled.
17. Conduct, verbal agreements, partial invalidity
17.1 Any agreement reached between the Seller and the Customer concerning matters in this agreement is specified in writing in the same. No other verbal agreements exist.
Any indulgent conduct of the Seller shall not grant rights to the Customer, change its obligations or be interpreted as a waiver of the Seller’s right in relation to breaches by the Customer.
18. Intellectual property
18.1 The Seller has not verified the possible existence of third party intellectual property rights which might be infringed as a consequence of the sale and/or supply of the Goods, and the Seller cannot be held liable for any loss or damages in that respect.
18.2 The sale of products shall not, by implication or otherwise, convey any licence to use any patent or industrial property right relating to the products sold, possessed, controlled or given under licence to the Seller.