in case:
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 resul-
ting 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 enti-
rely paid by CLIENT.
Without prejudice to the above the risks of loss
of the Products shall be regulated by the Inco-
terms® 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-pos-
sess the Products and withhold, as liquidated da-
mages, any amount already paid by CLIENT with
reference to such Products.
7) Warranty
7.1 Without prejudice to the provisions of para-
graphs 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 indica-
ted 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 In-
coterms® rule for delivery.
7.2 The following are expressly excluded from war-
ranty:
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 Pro-
ducts or as close-out sale Products or as special
batches;
c) the Products applied and/or set up not in com-
pliance 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 SEL-
LER included in the catalogues and price lists of
SELLER or in other way communicated to CLIENT
by SELLER, included the instructions under pa-
ragraph 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 Pro-
ducts;
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 para-
graph 4.4 above, CLIENT shall inspect the Pro-
ducts 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 fol-
lowing terms; failing to do so will result in the lap-
se 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 Pro-
ducts: 8 (eight) days from the discovery of the
same and, for avoidance of doubt, within the war-
ranty period.
7.4 SELLER will have the right to examine the Pro-
ducts, or samples of the Products, which CLIENT
claims to be non-conforming or defective, in or-
der 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 provi-
sions of these General Conditions. In this respect,
CLIENT shall be entitled to return to SELLER the
Products that CLIENT considers to be non-con-
forming or defective only upon SELLER’s writ-
ten 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-con-
forming or defective Products shall never be in-
terpreted as an acknowledgment of the claimed
non-conformities or defects on the part of SEL-
LER.
7.5 In case the Products are ascertained by SEL-
LER as actually non-conforming or defective,
CLIENT will be entitled only to obtain, at the SEL-
LER’s option:
a) replacement of the non-conforming or defecti-
ve 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 Inco-
terms® 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 de-
struction 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 para-
graphs 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, whi-
ch 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 obli-
gations 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 pro-
curement 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 cau-
se whatsoever, similar or dissimilar, which cannot
reasonably be forecast or provided against and
which cannot be overcome by SELLER with rea-
sonable diligence.
8.2 In such event, the time for fulfilment of the
obligation shall be extended for the period of con-
tinuance 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 un-
derlying Sale Contract, by giving written notice to
SELLER by registered letter with return receipt or
courier, and SELLER shall not incur any responsi-
bility 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 ut-
most confidentiality all the information/data/
designs/know-how/documentation
transmitted
by SELLER or that it may come to know in con-
nection 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 employe-
es and collaborators do not disclose the Confi-
dential 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 in-
formation 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 restri-
ctions 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 Conven-
tion on Contracts for the International Sale of
Goods (Vienna Convention of 1980) and, with re-
spect 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 fol-
lowing 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 ju-
risdiction of the Italian courts and shall be exclu-
sively referred for its resolution to the Court of
Modena (Italy).
b) In any other case, the dispute shall be exclusi-
vely 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 proceedin-
gs shall be English.
11.3 Irrespective of the provisions above, it is he-
reby 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 exe-
cuted 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, na-
tional, and international statutes, rulings, regula-
tions, 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 ex-
ample, 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 ac-
tion 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 viola-
tion of any Law by CLIENT or its Representatives
that occurred or may have occurred in performing
CLIENT’s obligations under this General Condi-
tions or (ii) any failure of CLIENT or any of its Rep-
resentatives 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, Man-
agement and Control Model pursuant to Decree
(“Model”) published on the web link www.panaria-
group.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 con-
tract 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 appli-
cable 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 con-
sidered as only an indication of the Products cha-
racteristics 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 ae-
sthetic result of the Products.
Technical and physical characteristics of the Pro-
ducts as well as qualities of the same are descri-
bed 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 com-
pliant 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 accor-
dance 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 unenforce-
ability 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 exe-
cuting 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 appli-
cable in the place where CLIENT will import, distri-
bute, sell or use them in any way.
2.4 SELLER may make any changes to the Pro-
ducts which, without altering their essential featu-
res, 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 in-
stallation, characteristic of interchangeability of
the Products, etc.) which are the object of an exe-
cuted 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 Pro-
ducts 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 decla-
rations of CLIENT, in case they result false, incom-
plete 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 SEL-
LER 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 consti-
tute 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 rele-
vant 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 of-
fer 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 inclu-
ded in the acceptance of SELLER, unless CLIENT
notifies SELLER, in writing, not to accept the ter-
ms 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 Con-
tract or from the usage and practices of the sec-
tor 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 Con-
tract, 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 tran-
sport 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-fi-
ve) days from the receipt of the Products at its
premises, CLIENT shall send SELLER an original
or a copy of the international transportation do-
cument CMR or of another transportation docu-
ment, 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 exporta-
tion 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 un-
der this paragraph 4.2, SELLER shall be entitled
to immediately charge CLIENT the amount of the
Value Added Tax applicable to the supply and con-
nected 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 clearan-
ce 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 transporta-
tion 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) of-
fset 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 re-
gard 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 de-
livery date shall always be considered neither of
the essence nor peremptory.
Except in case of wilful wrongdoing or gross negli-
gence, SELLER will not reimburse possible dama-
ges, 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 packa-
ging and/or shortages or anomalies of the Pro-
ducts occurred during the transport, by notifying
details of such events on the transportation do-
cument, 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 Con-
tract, 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) - premi-
ses 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 con-
nected with the Incoterms® rule agreed between
for delivery.
5.2 CLIENT shall pay for the Products in accor-
dance with the payments methods and terms pro-
vided 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 ac-
cordance with the currency indicated by SELLER
in the related sale invoice.
5.3 If CLIENT is delinquent in its payment obliga-
tion, SELLER may:
a) obtain payment of late payment interest in ac-
cordance 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 inte-
rest remain unpaid 30 (thirty) days after the agre-
ed 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 re-
maining payments and declare due the total out-
standing 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 de-
finitively 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 refe-
rence to Sale Contracts already regularly execu-
ted.
5.5 SELLER shall be entitled to exercise the rights
mentioned in paragraphs 5.3 and 5.4 above also
GENERAL TERMS AND CONDITIONS OF SALE
234
235
