General Sales Conditions

 

1) Definitions

1.1 It is specified that for the purposes of the present sales conditions (hereinafter “Sales Conditions“), when denoted by the capital letter, the following terms will take on the following meanings:

Products: the goods produced, assembled and/or sold by Maccagnola;

Maccagnola: Maccagnola Srl;

Customer: any subject who purchases the Products directly from Maccagnola;

Party(ies): Maccagnola and the Customer;

Order(s): each purchase proposal of the Products sent by the Customer to Maccagnola;

in Writing: any agreement signed between the Parties and/or any communication sent by fax, email and/or by means of another agreed telematic system;

Telematic system: online telematic system or platform that manages orders and operations between the Parties;

Intellectual Property Rights: all the intellectual and industrial property rights of Maccagnola, including, and without any limitation, the rights relative to: patents for registered or non-registered inventions, drawings or models, utility models, registered and non-registered trademarks, know-how, copyright on images, pictures, data sheets and technical data, and any application relative to such rights.

2) Effectiveness

2.1 The present Sales Conditions are applicable to all Products sold directly by Maccagnola to the Customer and constitute an integral and substantial part of each sales contract. In the event of conflicts between the terms and conditions set forth in the present Sales Conditions and the terms and conditions agreed to with the Customer in Writing in specific contracts, the latter shall prevail.

2.2 Unless otherwise agreed to in Writing, Maccagnola shall not be bound to Customer’s general sales conditions, not even in the hypothesis they should be referred to or contained in the Orders or in other documents sent by the Customer or published on its website; in particular, the approval of an Order and/or the conclusion of a sale by Maccagnola shall not imply the approval of the Customer’s general sales conditions, not even by way of tacit assent.

2.3 Maccagnola reserves the right to modify the Sales Conditions, subject to the fact that any change shall be applied to all Orders and/or all sales concluded fifteen days after having notified them to the Customer in Writing or following its publication on Maccagnola’s website.

3) Products price List

3.1 The prices of the Products are those listed in Maccagnola’s effective price list at the time the Order is sent by the Customer or the specific ones agreed to in Writing between the Parties, and the same shall always be reported in the Order.

3.2 Maccagnola reserves the right to modify the prices reported in the price list. The Customer shall be notified of any price change in Writing and the same shall be applied to all Orders received by Maccagnola fifteen days after having notified the Customer in Writing of the changes or following their publication on Maccagnola’s website.

3.3 Unless otherwise agreed to in Writing between the Parties, the aforesaid prices shall be calculated “ex-factory,” net of VAT, duties, customs duties, import and/or export taxes or fees and discounts. Such prices do not include the packaging, shipping and transport fees from Maccagnola’s premises to those reported by the Customer in the order. Unless otherwise agreed to in writing, such fees shall be borne separately by the Customer.

3.4 The Products shall remain the property of Maccagnola until they have been fully paid up.

3.5 Any additional costs, due to changes to the Orders and/or to shipping conditions made by the Customer following the approval, shall be borne by the Customer.

4) Orders and delivery terms

4.1 The customer shall send specific Orders containing the Product description, type, code/identification reference, requested quantity, price, place and terms of delivery in Writing to Maccagnola. The sale shall be considered concluded from the moment the Customer receives a confirmation notice in Writing from Maccagnola and has approved the terms and conditions of the Order, or, in the absence of confirmation, from the moment the Products are delivered to the Customer.

4.2 Whenever Maccagnola should approve the Order under different terms than those described therein, Maccagnola shall immediately inform the Customer in Writing, by highlighting the differences, and the sale shall be considered concluded after 5 (five) business days from the receipt date of said communication containing different terms whenever the Customer does not send different indications or instructions to Maccagnola in Writing within that term.

4.3 Unless otherwise agreed to in Writing, the orders regularly approved by Maccagnola shall neither be canceled nor modified by the Customer without Maccagnola’s Written approval.

4.4 Partial or staggered product supplies by Maccagnola may be agreed to between the parties. In the event of continuous supply contracts, each partial supply is considered a unique deal.

4.5 Unless otherwise agreed to in Writing between the Parties, Maccagnola shall deliver the Products ex-factory at its plants. If required, Maccagnola shall handle the transport of the Products at the Customer’s own risk, costs and expenses.

4.6 The delivery shall occur within the term stated in Maccagnola’s Order confirmation. If the term is not reported in the Order, the delivery shall occur within a reasonable time lapse and, in any case, within 90 (ninety) days from the specific subsequent Customer request. The delivery terms reported in the Orders are indicative, cannot be considered essential terms, pursuant to article 1457 of the Civil Code, and do not include the transport times. In the event of delivery delay of 30 (thirty) days with respect to the expected delivery date, the Customer may only cancel the part of the Order relative to the undelivered Products.

4.7 Maccagnola shall not be liable for Product delays or non-deliveries due to circumstances outside of its control, such as by pure way of example: I) strikes, power failures, natural disasters, measures imposed by public authorities, disorders, terrorist attacks and all other causes of force majeure in general; II) inaccuracies with respect to the orders or whenever the Customer fails to send technical data or information required for the production and shipping of the Products to Maccagnola; III) proven difficulties in obtaining supplies of raw materials; IV) delays due to the carriers and shippers. Whenever some of the aforesaid events should occur, the Customer shall neither be entitled to request compensation for any damage nor any reimbursement whatsoever. Whenever the reasons for the failed deliveries should persist for a period exceeding six months, each Party shall be entitled to terminate the contract by sending a notice in Writing to the other Party.

4.8 Whenever the delivery of the Products should not be made possible for reasons or causes attributable to the Customer, the same shall be considered as having been carried out for all effects, including the issuance of the invoice and the effective date of payment, by sending a simple notice confirming the availability of the goods in Writing to the Customer. After 15 days from such communication, Maccagnola shall be exonerated from any liability with regards to the loss, damage or decrease in value of the Products and may debit the Customer for storage expenses.

5) Payments

5.1 Unless otherwise agreed to in writing between the Parties, Maccagnola, at its discretion, shall issue the invoices at the time of the Order approval or upon the delivery of the Products.

5.2 Unless otherwise agreed to in writing between the Parties, the payments shall be made within 30 days from the last day of the month in which the invoice was issued, unless otherwise agreed to in writing between the parties.

5.3 Failure to make payment within the agreed term of 15 (fifteen) days from the deadline shall entitle Maccagnola to require the Customer to pay for the interests accrued according to the rate established by articles n. 4 and 5 of the Legislative Decree n. 192/2012 on delayed payments.

5.4 Failure to make payment or payment delays exceeding 30 (thirty) days shall entitle Maccagnola to suspend the delivery of the Products and to terminate any signed sales request. A product delivery suspension or the termination of the sales shall not entitle the Customer to require any compensation for damages.

5.5 Each complaint relative to the Products and/or delivery of the same shall not in any way justify a payment suspension or delay.

5.6 In no case shall the Customer be exonerated form his obligation to pay for the price of the Products in the event any product should be lost or damaged following the delivery of the Products to the carrier or Customer.

6) Non-conformity

6.1 Any non-conformity of the Products delivered to the Customer with respect to the type and quantities stated in the Order shall be notified in Writing to Maccagnola within 8 (eight) days from the delivery date via registered letter, i.e. Certified Electronic Mail, to maccagnolasrl@legalmail.it. Whenever the notice should not be sent within the aforesaid term, the delivered Products shall be considered numerically and qualitatively compliant with those ordered by the Customer.

7) Warranties

7.1 Maccagnola guarantees that the Products are devoid of structural vices and defects for a period of 1 (one) year from the date they were delivered to the Customer. The warranty is valid within the limits of article 1495 of the Civil Code and subject to the further limitations set forth herein. Maccagnola does not recognize any warranty linked to the conformity of the Products with the norms and standards of Countries outside of the European Union.

7.2 If the Customer’s complaint is covered by the warranty and notified within the terms referred to in the following article, Maccagnola undertakes, at its discretion, to replace or repair each Product with vices or defects, or parts thereof. The replacement of the parts under warranty shall neither prolong nor renew the deadline of the original warranty period nor the payment terms agreed to.

7.3 The warranty shall not cover those Products with defects due to (i) damages caused during transport; ii) damages caused by events of force majeure; (iii) damages caused by assembly errors; (iv) lack of compliance with the instructions relative to the operations and maintenance of the Products; (v) repairs carried out independently by the Customer; vi) the Customer or end customer’s negligent or improper use of the Products. Moreover, the warranty shall not cover Product damages and/or defects resulting from modifications carried out on the same by the Customer or end customer, such as for example the assembly, removal or replacement of components. It is the Customer’s responsibility to make sure that the Products are always compliant with the design conditions.

7.4 The Customer shall notify and document Maccagnola in writing as to the presence of vices or defects within 8 (eight) days from the delivery of the Products in the event of obvious vices or defects, or within 8 (eight) days from discovering hidden vices or defects or which cannot be detected by an individual of average diligence.

7.5 The Products object of complaint shall immediately be sent to Maccagnola’s plant at Maccagnola’s cost and expenses or made available to Maccagnola on site, in order to allow Maccagnola to carry out the necessary verifications.

7.6 Whenever the presence of structural Product vices or defects should be ascertained, even in contradiction with the Customer, Maccagnola shall replace or repair each Product with vices or defects, and parts thereof. If the Customer has notified the defects within the terms provided but, following a check, the raised complaints were ascertained to be unfounded, Maccagnola shall be entitled to compensation for the expenses incurred following the notification of the defects. Any possible cost related to the repair or replacement of the Product shall be borne by the Customer, who shall also be liable for the reimbursement of the shipping fees referred to under article 7.5. In the event the Parties do not agree on the nature of the vice or defect, the evaluation shall be entrusted in a friendly manner to a third party technician assigned by mutual agreement.

7.7 Whenever a defective Product or component should be replaced, the property of the Product or component replaced shall be transferred from the Customer to Maccagnola, thus in no case shall the Customer dispose of or destroy the Product retained defective without Maccagnola’s Written approval.

7.8 The Customer shall not be entitled to warranty rights with respect to Maccagnola with regards to the Products for which the agreed price has not been paid.

7.9 Except in the event of fraud or gross negligence, Maccagnola shall not be liable for any damage resulting from and/or connected to the structural Product vices and/or defects suffered by the Customer and/or end customer. In any case, Maccagnola shall not be liable for indirect or consequent damages of any kind, such as, by way of example, losses deriving from the Customer’s inactivity or from the lack of profits or from damages to the image.

7.10 If an identical Product defect should occur repeatably and is attributable to the same reason during the period 12-month period following the delivery of the Products to the end customer and, in any case, not exceeding 24 months from the delivery to the Customer, Maccagnola shall reimburse, within the limits of the subsequent article 7.11, all direct damages sustained by the Customer and properly documented in connection to a campaign to withdraw the defective Products from the market, and any other additional cost related to the Product repair and replacement, as long as the Customer was reasonably committed to limit the losses that Maccagnola could have suffered. The Customer shall follow the instructions provided by Maccagnola with regard to the withdrawal of the Products from the market.

7.11 In any case, the Customer’s right to compensation for direct and indirect damages shall be limited to a maximum amount equal to the value of the Products with defects or vices.

8) Intellectual Property Rights

8.1 The Intellectual Property Rights of the Products belong to Maccagnola and their disclosure or use in the context or for the purpose of selling the Products does not entitle the Customer to any rights or claims thereto. The Customer undertakes to respect the Intellectual Property Rights of the Products and not to take any action against them.

8.2 All technical documents remain the intellectual property of Maccagnola. The Customer is prohibited from any misuse, unauthorized copying or disclosing of technical documents provided by Maccagnola for the execution of the sales contract.

9) Express termination clause

9.1 Pursuant to and for the effects of article 1456 of the Civil Code, Maccagnola shall be entitled to rescind, without prior notice by means of written communication sent to the Customer, any sale and/or sales contract in the event of non-fulfillment of the obligations provided in the articles: 3 (Products Price List), 5 (Payments) and 8 (Intellectual Property Rights).

9.2 Maccagnola shall be entitled to suspend the fulfillment of the obligations deriving from the sales of Products, according to article 1461 of the Italian Civil Code, if the Customer’s financial conditions should constitute a serious risk to the implementation of his consideration, as well as if the Customer should request or should be involved in insolvency proceedings.

9.3 Any partial or total annulment of one or more of the clauses of the present General Sales Conditions shall not impact the validity of the remaining clauses.

10) Applicable law and jurisdiction

10.1 The Sales Conditions and each individual sale shall be governed and interpreted in compliance with the Italian Law. Any dispute deriving from or linked to the present Sales Conditions and/or to each Sale shall be subjected to the exclusive jurisdiction of the Court of Brescia.