a) CLIENT is undergoing winding-up, bankruptcy, debt
restructuring or enforcement proceedings;
b) the insurance company of SELLER refuses insurance
coverage for SELLER’s credits toward CLIENT;
c) CLIENT is undergoing financial difficulties able to
hinder the regular execution of its payment obligations
resulting from, by way of example only, missed payment
of bills of exchange, promissory notes, cheques or other
payment documents, reduction of granted guarantees
and/or missed granting of promised guarantees, as well
as from any amount resulting unpaid, even though such
circumstances have occurred with other suppliers of
CLIENT.
5.6 CLIENT cannot claim any breach of contract by
SELLER, nor can CLIENT start any lawsuit or action
against SELLER, until any amount resulting due to SELLER
under paragraphs 5.3 and 5.4 above has been paid in full
by CLIENT.
6) Retention of Title
6.1 SELLER will maintain exclusive ownership over the
Products sold until their price has been entirely paid by
CLIENT.
Without prejudice to the above the risks of loss of the
Products shall be regulated by the Incoterms® rule agreed
between the parties for the delivery of the Products.
6.2 In case of non-fulfilment or late fulfilment of the
obligation to pay the price of the Products, without
prejudice to the rights under paragraphs 5.4, 5.5 and 5.6,
SELLER shall be entitled to enter the premises where the
Products are held, re-possess the Products and withhold,
as liquidated damages, any amount already paid by
CLIENT with reference to such Products.
7) Warranty
7.1 Without prejudice to the provisions of paragraphs
2.1, 2.2, 2.4 and 3.6 with reference to the modifications
to the Products and tolerances, SELLER warrants that
the Products will conform to the Sale Contract, to
the classification indicated in the technical manuals,
catalogues and/or price lists of SELLER and that they will
be free from manufacturing defects.
The warranty period is 12 (twelve) months from the date
of collection of the Products from the premises of SELLER,
regardless of the agreed Incoterms® rule for delivery.
7.2 The following are expressly excluded from warranty:
a) chromatic alterations and tone differences of the
Products;
b) the Products identified in the Sale Contract as Products
of quality lower than first-quality Products or as close-out
sale Products or as special batches;
c) the Products applied and/or set up not in compliance
with the industry standards applicable to the same;
d) the Products used or applied on surfaces and/or in
spaces or environments different from those indicated by
SELLER;
e) the Products used not in compliance with the
instructions and/or indications provided by SELLER
included in the catalogues and price lists of SELLER or in
other way communicated to CLIENT by SELLER, included
the instructions under paragraph 2.2;
f) the Products used not in compliance to the standard
diligence and/or to the technics required by the nature of
the Products;
g) frost resistance of the Products, unless such
characteristic of the Products has been declared by SELLER
in the technical manual of the Products;
h) characteristics of the Products as resulting from the
classification of the pottery (i) executed by control and/
or certification authorities other than authorities of the
European Union Member States, and/or (ii) executed on
the basis of criteria other than those used by SELLER.
7.3 Without prejudice to the provisions of paragraph
4.4 above, CLIENT shall inspect the Products as soon as
possible and shall notify SELLER in writing of possible
non-conformities or defects, by fax or email, within and
no later than the following terms; failing to do so will
result in the lapse of the warranty and the unenforceability
of the warranty rights:
a) differences in type or quantity with respect to type or
quantity agreed as well as other patent non-conformities
or defects of the Products: 8 (eight) days from the delivery
of the Products at the premises of CLIENT and, in any case,
before application of the Products;
b) hidden non-conformities or defects of the Products:
8 (eight) days from the discovery of the same and, for
avoidance of doubt, within the warranty period.
7.4 SELLER will have the right to examine the Products, or
samples of the Products, which CLIENT claims to be non-
conforming or defective, in order to verify the instructions
relating to the set up and/or application of the Products
and/or the use of the Products in accordance with the
provisions of these General Conditions. In this respect,
CLIENT shall be entitled to return to SELLER the Products
that CLIENT considers to be non-conforming or defective
only upon SELLER’s written authorization and only on
the condition that CLIENT bears all costs and risks for the
shipment of the Products. The authorization to return the
Products or samples of the purportedly non-conforming
or defective Products shall never be interpreted as an
acknowledgment of the claimed non-conformities or
defects on the part of SELLER.
7.5 In case the Products are ascertained by SELLER as
actually non-conforming or defective, CLIENT will be
entitled only to obtain, at the SELLER’s option:
a) replacement of the non-conforming or defective
Products; or
b) partial or full exemption from payment of their price,
depending on the seriousness of the non-conformities or
of the defects.
7.6 For the purpose of paragraph 7.5 letter (a), the
Products to be delivered in replacement of non-
conforming or defective Products shall be delivered to
CLIENT in accordance with the Incoterms® 2010 ICC
rule DDP - premises of CLIENT. The Products that have
been replaced shall be, at SELLER’s discretion, destroyed
or disposed of by CLIENT, at its own costs, or returned to
SELLER, at costs of SELLER. In case the Products are to be
destroyed or disposed of by CLIENT, CLIENT undertakes to
send to SELLER the proof of destruction or of disposal of
the Products, along with the documents proving the costs
borne by CLIENT for the destruction or the disposal of the
same.
7.7 The rights and remedies described in paragraphs 7.5
and 7.6 above are the sole warranty rights and remedies
granted to CLIENT. To the maximum extent permitted by
the applicable law, any other liability and obligation of
SELLER, which may in any way arise from or in relation
to the supply of non-conforming or defective Products -
including, but not limited to, compensation for direct or
indirect or consequential damages, loss of profits, etc.
connected to such liability - is expressly excluded.
7.8 The present warranty is in substitution for, and
excludes, any other warranty, express or implied, set forth
by the law or otherwise.
8) Force Majeure
8.1 SELLER shall not be liable or responsible for failure
or delay in performing or fulfilling any obligations
undertaken in reference to the supply of Products when
such failure or delay is due to the occurrence of an
event of force majeure such as wars, fires, earthquakes,
floods, tsunami, strikes, labor or employment difficulties,
shortage or procurement difficulties of raw materials,
restriction on the use of power, suspension or difficulties
in the transports, breakdown of the plants, acts of public
authorities or any other event or cause whatsoever,
similar or dissimilar, which cannot reasonably be forecast
or provided against and which cannot be overcome by
SELLER with reasonable diligence.
8.2 In such event, the time for fulfilment of the obligation
shall be extended for the period of continuance of such
force majeure event.
In the event any of such force majeure event continue for
a period longer than 6 (six) months, CLIENT shall have
the right to terminate the underlying Sale Contract, by
giving written notice to SELLER by registered letter with
return receipt or courier, and SELLER shall not incur any
responsibility or liability whatsoever.
9) Severability
The invalidity or unenforceability of any provision, or
portion thereof, of this General Conditions shall not affect
the validity or enforceability of any other provision.
10) Confidentiality
10.1 CLIENT undertakes: (i) to treat with the utmost
confidentiality all the information/data/designs/know-
how/documentation transmitted by SELLER or that it
may come to know in connection with the execution of
any Sale Contract, even if they is not marked or identified
as secret or confidential (“Confidential Information”);
(ii) not to, wholly or partially, disclose to or inform third
parties of the Confidential Information, without the
SELLER’s prior written consent; (iii) to limit the use of the
Confidential Information and the access to the same for
purposes relating to the execution of the sale Contracts;
(iv) to adopt any and all measures required in order for
its employees and collaborators do not disclose the
Confidential Information to third parties or use it in an
inappropriate way.
The Confidential Information shall not be copied or
reproduced in any way, unless with the prior written
consent of SELLER, and all the copies of the Confidential
Information shall be immediately returned to SELLER
upon simple written request of the same.
10.2 The provisions above shall not apply to information
which (i) are public or publicly available not due to
a disclosure of CLIENT or of CLIENT’s employees or
collaborators; or (ii) were already available to CLIENT
before it had received them by SELLER; or (iii) are
disclosed from third parties that have no obligation of
confidentiality or restrictions of use on the same; (iv)
can be disclosed according to a written authorization of
SELLER.
11) Applicable Law – Dispute Resolution
11.1 These General Conditions and all the Sale Contracts
that will occur on the basis on the same will be governed
by the United Nations Convention on Contracts for
the International Sale of Goods (Vienna Convention of
1980) and, with respect to matters not covered by such
Convention, by Italian laws.
11.2 Any dispute arising out of or in connection with these
General Conditions or in connection with a Sale Contract
occurred on the basis on the same shall be settled in
accordance with the following provisions:
a) In case CLIENT has its registered office within the
European Union, in Switzerland, in Norway or in Iceland,
the dispute shall be subjected to the jurisdiction of the
Italian courts and shall be exclusively referred for its
resolution to the Court of Modena (Italy).
b) In any other case, the dispute shall be exclusively
referred to and finally resolved by arbitration, by a sole
arbitrator, in accordance with the Rules of the Milan
Chamber of Arbitration (the Rules).
The seat of arbitration shall be, and the award shall be
delivered in, Milan (Italy).
The language to be used in the arbitral proceedings shall
be English.
11.3 Irrespective of the provisions above, it is hereby
granted exclusively to SELLER the right to initiate legal
proceedings under the jurisdiction of CLIENT before the
competent court.
12) Language of these General Conditions
12.1 The text of these General Conditions is executed in
both in Italian and in English language.
In case of any discrepancy, the text in Italian shall prevail
over the text in English language.
13) Administrative liability of companies (D.Lgs. n.
231/2001)
13.1 CLIENT represents, warrants and covenants that
CLIENT and its affiliates, owners, officers, directors,
employees,
agents,
subcontractors,
consultants,
and
representatives
(collectively
referred
to
as
“Representatives”) will perform all of CLIENT’s obligations
under this General Conditions in compliance with all
local, state, national, and international statutes, rulings,
regulations, ordinances, and governmental directives,
including, without limitation, those pertaining to anti-
bribery, money laundering, competition, regulation of
trade, environment, transportation, safety, health, and
employment, including, for example, the US Foreign
Corrupt Practices Act and the UK Bribery Act and any
other EU, OECD and European Council legislation on the
fight against corruption (collectively referred to as "Laws")
that apply to SELLER, CLIENT, either party’s business, and
the SELLER products and/or services hereto.
13.2 CLIENT further represents and warrants that neither
it nor its Representatives will take any action that might
cause SELLER to violate any Law. The CLIENT will advise
SELLER immediately if it learns, or has any reason to
know, of: (i) any violation of any Law by CLIENT or its
Representatives that occurred or may have occurred in
performing CLIENT’s obligations under this General
Conditions or (ii) any failure of CLIENT or any of its
Representatives to comply with CLIENT’s obligations
under this paragraph 13.
13.3 CLIENT represents that, also on behalf of its affiliated
or subsidiary companies, if any, it has been made aware
of the fact that in conducting its business, SELLER operates
in accordance with Legislative Decree n. 231/2001 as
amended (“Decree”) and has adopted an Organization,
Management and Control Model pursuant to Decree
(“Model”) published on the web link www.panariagroup.
it/il-gruppo/governance/ that the CLIENT declares to
have read and to know.
These general terms and conditions of sale are
published and downloadable on the website www.
panariagroup.it
1) Scope Of Application
1.1 These General Terms and Conditions of Sale (“General
Conditions”) shall apply to any and all supply of ceramic
tilers or other ceramic products (“Products) that will be
executed to any client (“CLIENT”) from any company or
division of the Group Panariagroup Industrie Ceramiche
S.p.A. (“SELLER”), even if these General Conditions are not
expressly referred to, mentioned or expressly accepted by
the CLIENT from time to time.
1.2 No provisions deviating from these General Conditions
shall be binding on SELLER unless (i) included in the ”Sale
Contract”, as defined under paragraph 3.2 below, (ii)
included in documents following the Sale Contract and
the content of the same has been accepted in writing
by SELLER. In any case, even if deviating provisions are
agreed upon, these General Conditions shall apply for the
parts not expressly disregarded.
1.3 In no case shall any general conditions of contract
of CLIENT be binding on SELLER, even if mentioned or
included in orders or in any other documents transmitted
by CLIENT to SELLER. No conduct of SELLER shall be
interpreted or used in order to express tacit acceptance of
SELLER to the general conditions of contract of CLIENT.
1.4 In no case SELLER shall be bound by acts and/or
conducts of its agents, being the latter in lack of any power
to bind SELLER.
1.5 In case CLIENT is a consumer, the provisions of
these General Conditions shall not prejudice the rights
of CLIENT provided for by the law applicable to sales
executed toward consumers.
2) Products – Modifications
2.1 Any representation and/or image relating to the
Products included in websites, brochures, catalogues, price
lists or other similar documents of SELLER is approximate
and purely illustrative. Likewise, the samples and models
are to be considered as only an indication of the Products
characteristics in terms of weight, size, aesthetic and
technical yield and characteristics and colour and are only
an approximate and/or general indication and have no
binding value for the SELLER except to the extent that they
are expressly mentioned as such in the written acceptance
of the offer by the SELLER and do not represent the final
aesthetic result of the Products.
Technical and physical characteristics of the Products as
well as qualities of the same are described in the technical
manuals of SELLER only. Any other document including
technical and physical characteristics and qualities of the
Products are purely indicative and shall not bind SELLER.
2.2 SELLER declares that the Products are compliant with
the applicable Italian and European industry standards.
Any Products shall be used and applied in accordance with
the instructions of use of SELLER included in catalogues
and/or technical manuals of SELLER with reference to
the Products in question or with the instructions in other
way communicated and/or made available by SELLER to
CLIENT and, in any case, in accordance with the diligence
required by the nature of the Products. Failing to do so,
CLIENT will result in the lapse of the warranty and in the
in unenforceability of the warranty rights under article 7
below or of any other legal or agreed warranty.
2.3 It is the responsibility of CLIENT, before executing
of the Sale Contract, to make sure that the Products are
suitable for their specific purpose and/or intended use
and, in addition, that they also comply with the laws and
regulations applicable in the place where CLIENT will
import, distribute, sell or use them in any way.
2.4 SELLER may make any changes to the Products
which, without altering their essential features, it deems
necessary or convenient, even after execution of the Sale
Contract. In case SELLER executes substantial modification
to Products (e.g. modifications that will alter: the way of
installation, characteristic of interchangeability of the
Products, etc.) which are the object of an executed Sale
Contract (as defined in paragraph 3.2 below), SELLER shall
communicate in writing such modification to CLIENT.
2.5 CLIENT shall inform the purchasers of the Products
and third parties of the characteristics of the Products
and of the instructions of use and of application of the
same in accordance with the indication provided by
SELLER. Without prejudice to the above, CLIENT shall be
the sole responsible and liable for the declarations it will
make toward third parties with reference to the Products,
their characteristics and their use or application and
shall indemnify and hold SELLER harmless and from any
damage possibly suffered by SELLER with reference to or
in connection to such declarations of CLIENT, in case they
result false, incomplete or inaccurate.
3) Quotations – Execution of Sale Contract –
Tolerances
3.1 Written or verbal quotations issued by SELLER are not
to be taken as valid contractual proposals.
3.2 The sale contract (“Sale Contract”) is executed as
follows:
a) an offer is sent by SELLER to CLIENT and CLIENT then
sends its written acceptance of such offer to SELLER,
without any modification to the offer itself; or
b) a purchase order is sent by CLIENT and SELLER then
sends its written acceptance of such order to CLIENT.
3.3 For the purposes of paragraph 3.2 letter a) above,
the following facts or actions shall constitute the written
acceptance of an offer of SELLER by CLIENT:
a) the receipt by SELLER of a letter of credit sent by CLIENT;
b) the receipt by SELLER of all or part of the relevant
purchase price;
c) the receipt by SELLER of a purchase order of CLIENT.
Should this be the case, any order of CLIENT that differs
from the provisions of the offer of SELLER shall be binding
on SELLER only if and to the extent that SELLER had
expressly accepted it in writing.
3.4 In addition, for the purposes of paragraph 3.2 letter
b) above, in case the acceptance of SELLER includes terms
and condition different from those of the order of CLIENT,
the Sale Contract shall be deemed to be concluded at the
conditions included in the acceptance of SELLER, unless
CLIENT notifies SELLER, in writing, not to accept the terms
and conditions of the acceptance of SELLER within 1 (one)
working day from the receipt of such acceptance.
3.5 All supplies of Products will only include what is
expressly indicated in Sale Contract.
3.6 CLIENT recognizes to SELLER quantity and quality
tolerances as resulting from the Sale Contract or from the
usage and practices of the sector of the Products.
4) Packing – Delivery term – Delivery time
4.1 The Products will be packaged and readied to ship
in compliance with the standard protection methods
generally adopted by SELLER for the Products in question,
in consideration of the agreed mode of transport.
CLIENT shall expressly request to SELLER any special
packaging or supplementary protection it deems
necessary, and in such event CLIENT will bear all related
costs thereof.
4.2 Unless otherwise provided for in the Sale Contract, the
Products shall be delivered to CLIENT in accordance with
the Incoterms® ICC rule, latest version, Ex-Works (EXW) –
premises of SELLER indicated in the Sale Contract.
CLIENT authorizes SELLER to undersign, in the name and
on behalf of CLIENT, any and all transport documents
which shall be signed at the time of collection of the
Products at the premises of SELLER, such as the CMR.
In the event that the ICC Incoterms® rule agreed between
the parties provides that CLIENT shall take care of the
transportation of the Products outside the territory of Italy:
a) in case of an Intra-EU supply, within 45 (forty-five)
days from the receipt of the Products at its premises,
CLIENT shall send SELLER an original or a copy of the
international transportation document CMR or of another
transportation document, undersigned at destination
by CLIENT or, in the absence of the international
transportation document CMR, a declaration of receipt of
the Products issued on the basis of the form as Annex -1-
available for download at www.panariagroup.it;
b) in case of an Extra-EU supply, CLIENT shall:
i) submit the custom export declaration (SAD-EX + EAD)
and execute the validation of the MRN (Movement
Reference Number) at the customs of the UE territory of
exit of the Products, within 90 (ninety) days from the date
of delivery of the same in Italy;
ii) send SELLER, within 90 (ninety) days from the date
of delivery, documents proving the exportation of the
Products (custom export declaration SAD-EX + EAD +
certification of exit);
iii) notify SELLER, in writing, as soon as such submission
is accomplished and provide SELLER with any other
document proving the execution of such formalities as
well as the exit of the Products from the UE Territory.
In case CLIENT is in breach of its obligations under this
paragraph 4.2, SELLER shall be entitled to immediately
charge CLIENT the amount of the Value Added Tax
applicable to the supply and connected to the lack of proof
of the transportation of the Products in a another Member
State of the EU or to the lack of execution of custom
clearance formalities. In any case, CLIENT shall indemnify
and hold SELLER harmless with reference to any payment
due to tax offices for fines, interests or on any other basis,
in connection with the supply and with the lack of the
proof of the transportation of the Products in a another
Member State of the EU or with the lack of execution of
custom clearance formalities.
In this respect, SELLER shall be entitled to: (i) offset any
amount due by CLIENT on the basis of this paragraph
4.2 against any amount due, for whatever reason, from
SELLER to CLIENT; or (ii) definitively withhold any amount
received in regard to Sale Contracts, offsetting the
CLIENT’s debt under this paragraph 4.2 against any and
all sums already paid by CLIENT.
4.3 SELLER shall deliver the Products within the delivery
date provided for in the Sale Contract, in a single delivery
or in partial deliveries. The delivery date shall always be
considered neither of the essence nor peremptory.
Except in case of wilful wrongdoing or gross negligence,
SELLER will not reimburse possible damages, either direct
or indirect, suffered by CLIENT as a result of delay in the
delivery of the Products.
In no case of delay in the delivery of the Products shall
CLIENT be entitled to terminate the Sale Contract.
4.4 Upon receipt of the Products, CLIENT must report
possible damages occurred to the packaging and/or
shortages or anomalies of the Products occurred during
the transport, by notifying details of such events on the
transportation document, and must also:
a) have such notification countersigned by the carrier;
and
b) immediately inform SELLER thereof, in writing, and
send SELLER a copy of the countersigned document by
and no later than 8 (eight) day(s) from the date of receipt
of the Products.
Should this not be the case, SELLER shall not be
responsible for possible damages losses or theft of the
Products occurred during the transport, even if transport
risks were, in whole or in part, upon SELLER.
5) Prices – Payment – Late Payment
5.1 The Products shall be supplied at the prices agreed
between the parties in the Sale Contract or, should no
prices be mentioned in the Sale Contract, at the prices
resulting from the price list of SELLER in force when
the Sale Contract has been executed. Unless otherwise
stated in writing, the prices of the Products included in
SELLER’s price lists, quotations and/or offers are in Euro,
net of VAT and for delivery according to the Incoterms®
ICC rule, latest version, Ex-Works (EXW) - premises of
SELLER indicated in the Sale Contract. Therefore, should
a different Incoterms® rule be agreed upon between the
parties for the delivery of the Products, the invoiced
amount shall be modified accordingly, including in the
sale invoice transportation expenses and any other costs
connected with the Incoterms® rule agreed between for
delivery.
5.2 CLIENT shall pay for the Products in accordance with
the payments methods and terms provided for in the Sale
Contract or otherwise agreed upon in writing between the
parties. No payment shall be considered as being made
by CLIENT until the relative amount has been credited to
the bank account of SELLER.
Payment shall be executed by CLIENT in Euro or in the
currency of the place where CLIENT has its registered
office, at SELLER’s discretion, in accordance with the
currency indicated by SELLER in the related sale invoice.
5.3 If CLIENT is delinquent in its payment obligation,
SELLER may:
a) obtain payment of late payment interest in accordance
with the applicable law; and
b) withhold ongoing and future deliveries, upon written
notice to CLIENT, until all delinquent amounts and late
payment interest are fully paid.
5.4 If delinquent amounts and late payment interest
remain unpaid 30 (thirty) days after the agreed deadline
for payment, then SELLER may also, at its option,
alternatively or cumulatively, and in addition to any other
right or remedy available at law or pursuant to these
General Conditions:
a) request accelerated payment of any and all remaining
payments and declare due the total outstanding balance,
even if payment by instalment or deferred payment has
been agreed upon and/or bills of exchange, promissory
notes, cheques or other payment documents have been
issued and are falling due;
b) terminate the Sale Contract in question and definitively
withhold any amount received in regard to such Sale
Contract or to other Sale Contracts, offsetting the
CLIENT’s outstanding debt against any and all sums
already paid by CLIENT;
c) carry out future deliveries of Products on a pre-payment
basis only, also with reference to supplies still to be
executed;
d) cancel discounts and bonuses that may have been
agreed between the parties also with reference to Sale
Contracts already regularly executed.
5.5 SELLER shall be entitled to exercise the rights
mentioned in paragraphs 5.3 and 5.4 above also in case:
GENERAL TERMS AND CONDITIONS OF SALE
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