GENERAL TERMS AND CONDITIONS OF SALE OF CREAZIONI ANTONELLA SRL
1) Scope Of Application
1.1 These General Terms and Conditions of Sale (“General Conditions”) shall apply to any and all supply of products that will be executed from CREAZIONI ANTONELLA SRL (“Supplier”), with registered office in Italy, 61122 Pesaro, Via Brigata Garibaldi n. 28, to any purchaser of the products (“Buyer”), even if they are not expressly referred to or mentioned from time to time.
1.2 No provisions deviating from these General Conditions shall be binding on Supplier unless included in a Sale Contract (as defined in paragraph 2.9 below) executed between the parties according to paragraph 2.5 below or according to paragraphs 2.6, 2.7 and 2.8 below.
1.3 In no case shall any general conditions of contract of Buyer be binding on Supplier.
2) Products – Orders – Tolerances
2.1 Any information, pictures, descriptions and specifications relating to the products, even if included in websites, brochures, catalogues, price lists or other documents of Supplier, as well as any model or sample of the products possibly presented to, or viewed by, Buyer is purely informational.
2.2 Before transmitting the order to Supplier (“Order”), it is the responsibility of Buyer to make sure that the products are in compliance with the laws and regulations applicable in the place where Buyer will import, distribute or use them in any way.
2.3 Buyer shall deliver to Supplier the purchase Order of the products, either by hand at the Supplier’s Showroom during the presentation of the collections or by sending it via fax or email to Supplier. The Order shall include all the information relating to the products being ordered (product code, description, quantity, delivery term and requested date of delivery, etc.), the detailed description of possible modifications and/or variations to be executed on the ordered products with respect to the related samples, as well as the fiscal data of Buyer to be included in the relative sale invoice.
2.4 Within 10 (ten) days from the delivery of the Order to Supplier, Buyer may modify the Order, giving written communication to Supplier to this effect.
2.5 Supplier will accept the Order of Buyer:
a) at the moment of its receipt, in case the Order does not contain any request of modification of the ordered products with respect to the related samples;
b) upon expiry of the term of 10 (ten) days from the delivery of the Order, in case Buyer modifies the Order and gives communication to Supplier to this effect, in accordance with paragraph 2.4 above.
2.6 In case Buyer has requested modification to the products in the Order or in case it has requested modification to the Order in accordance with the provisions of paragraph 2.4 above, Supplier shall send to Buyer a supply proposal, which shall indicate the updated description of the products, including any and all modification requested by Buyer, and the updated price of the products, redefined in light of the modifications requested by Buyer (“Supply Proposal”).
2.7 Supplier shall send to Buyer the Supply Proposal within 2 (two) working days from the expiry of the term of 10 (ten) days under paragraph 2.4 above. The delivery of the Supply Proposal shall be executed, via email, to the email address of Buyer or to the email address of the intermediary that has handled the delivery of the Order on behalf of Buyer or to the email address of another appointee of the Buyer.
2.8 Buyer shall communicate in writing the acceptance of the Supply Proposal within 3 (three) working days from the date of receipt of the same by Buyer, or by its intermediary or appointee, at one of the email addresses under paragraph 2.7 above.
2.9 For the purpose of these General Conditions, the Order accepted by Supplier pursuant to paragraph 2.5 above and/or the Supply Proposal accepted by Buyer pursuant to paragraph 2.8 above shall be, respectively, hereinafter referred to as “Sale Contract”.
2.10 Buyer shall execute in favour of Supplier a down payment on the price of the ordered products, as determined under paragraph 4.2, letter a) below or as otherwise determined within the Sale Contract. Buyer shall execute such down payment within 5 (five) days from the date of acceptance of the Order by Supplier or from the date of acceptance of the Supply Proposal by Buyer, depending on whether the Sale Contract is executed between the parties according to paragraph 2.5 above or according to paragraphs 2.6, 2.7 and 2.8 above.
3) Packing – Delivery term – Delivery date
3.1 The products will be packaged and readied to ship in compliance with the standard protection methods generally adopted by Supplier for the products in question, in consideration of the agreed mode of transport.
3.2 Unless otherwise agreed in writing, the products shall be delivered according to the delivery term Ex Works, Supplier’s premises, Via Brigata Garibaldi n. 28, 61122 Pesaro (PU) – Incoterms® 2010 ICC.
3.3 Supplier shall deliver the products within the delivery date agreed between the parties within the Sale Contract, also by means of partial delivery.
3.4 The delivery date shall always be considered approximate and not of the essence. Except in case of wilful wrongdoing or gross negligence, Supplier shall not reimburse possible damages, either direct or indirect, suffered by Buyer as a result of delay in the delivery of the products. In no case of delay in the delivery of the products Buyer shall be entitled to terminate the related Sale Contract.
3.5 Buyer must collect the ordered products which are stocked at Supplier’s premises by and no later than the month of July, for the products of the Spring/Summer collection, and the month of January, for the products of the Autumn/Winter collection. Should this not be the case, Supplier shall be entitled:
a) to terminate the Sale Contract with reference to the products not yet collected;
b) to definitively retain the amounts already paid by Buyer for the products not collected, as reimbursement of the damage suffered;
c) not to deliver to the Buyer the products not yet collected by the same and sell them to third parties ;
d) to request and obtain reimbursement of any greater damage suffered.
4) Prices – Payment – Late Payment
4.1 The products shall be supplied at the prices agreed upon between the parties. Such prices shall be in Euro, net of VAT, and for deliveries in accordance with delivery term Ex Works, Supplier’s premises, Via Brigata Garibaldi n. 28, 61122 Pesaro (PU) – Incoterms® 2010 ICC, and thus net of any customs charges, duties or taxes of any kind and net of any additional charges such as packing, transportation, insurance, etc.
In cases where a different delivery term is agreed upon, the prices set out in the invoice shall be adjusted accordingly.
4.2 Buyer shall pay for the products in accordance with the payments methods and terms agreed in writing between the parties. In the event no payment methods and terms are agreed upon between the parties, Supplier shall pay for the products, by bank transfer, as follows:
a) 30% of the total amount of the Sale Contract, by and no later than 5 (five) days from the date of acceptance of the Order or of the Supply Proposal, depending on whether the Sale Contract is executed between the parties according to paragraph 2.5 above or according to paragraphs 2.6, 2.7 and 2.8 above;
b) 70 % of the total amount of the Sale Contract, at least 7 (seven) days before the date of delivery of the products as agreed, in writing, between the parties.
No payment shall be considered as being made by Buyer until the relative amount has been credited to the bank account of Supplier.
4.3 Buyer acknowledges and accepts that Supplier will execute the delivery of the products according to a priority order based on the date of execution of the down payment. Therefore, no delay in the delivery of the products with respect to the agreed delivery date shall be attributable to Supplier, where such delay is caused by a delay of the Buyer in the execution of the down payment, with respect to the date of execution of the down payment under paragraph 4.2, letter (a) above.
4.4 In case Buyer is delinquent in any of its payment obligation, Supplier may withhold ongoing and future deliveries until all delinquent amounts and late payment interest are paid.
If delinquent amounts and late payment interest remain unpaid 15 (fifteen) working days after the date on which one of the payments under paragraph 4.2 above should have been executed, then Supplier may also, at its option, in addition to any other right or remedy available at law or pursuant to this General Conditions:
a) request accelerated payment of any and all payments due by Buyer, also pursuant to other sale contracts, and 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 – or, alternatively, terminate the Sale Contract in question and definitively withhold any amount already received;
b) setoff Buyer’s outstanding debt against the sums already paid by Buyer in relation to other sale contracts;
c) revoke discount and bonuses agreed between the parties.
4.5 Supplier shall be entitled to exercise the rights mentioned under paragraph 4.4 above of the General Conditions also in case Buyer:
a) is undergoing winding-up, bankruptcy, debt restructuring or enforcement proceedings;
b) loses, totally or partially, its insurance creditworthiness;
c) is undergoing financial difficulties able to hinder the regular execution of its activity 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 Buyer.
4.6 Buyer cannot claim any breach of contract by Supplier nor can Buyer start any lawsuit or action against Supplier, unless and until any amounts resulting due to Supplier under paragraph 4.4 above of the General Conditions have been paid in full.
5.1 Supplier warrants Buyer that the products will be compliant with the Sale Contract and free from manufacturing and material defects.
The warranty period is 6 (six) months from the date of delivery of the products.
5.2 Buyer shall inspect the products as soon as possible and shall notify Supplier of possible non-conformities or defects in writing, 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 and/or quantity of the products with respect to type and/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 Buyer;
b) hidden non-conformities or defects of the products: 8 (eight) days from the discovery of the same and, however, within the warranty period.
5.3 Upon notification by Buyer of non-conformities or defect of the products, Supplier shall have the right to examine or to have examined the products, or samples of the products, which Buyer claims to be non-conforming or defective. In this respect, Buyer shall be entitled to return to Supplier the products that Buyer considers to be non-conforming or defective only upon Supplier’s written authorization.
The authorization to return the products allegedly non-conforming or defective, or the samples thereof, shall never be interpreted as an acknowledgment of the claimed non-conformities or defects by Supplier.
5.4 In case the products are ascertained by Supplier as actually non-conforming or defective, Buyer will be entitled only to obtain, at Supplier’s option:
a) the free reparation of the defective products; or
b) the partial or full exemption from payment of their price, depending on the seriousness of the non-conformities or of the defects; should this be the case Supplier shall issue a credit note in favour of Buyer the amount of which can be setoff with the amounts to be paid by Buyer to Supplier in relation to future purchases of the products.
5.5 For the purpose of paragraph 5.4 letter (a) above, Buyer shall deliver to Supplier the products to be repaired at the Supplier’s premises, Via Brigata Garibaldi n. 28, 61122 Pesaro (PU), Italy.
5.6 The remedies described in the above paragraph 5.4 are the sole warranty rights and remedies granted to Buyer. Except in case of willful wrongdoing or gross negligence by Supplier, any other liability of Supplier, 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., is expressly excluded.
5.7 The present warranty is in substitution for, and excludes, any other warranty, express or implied, set forth by the law or otherwise.
6) Force Majeure
6.1 “Force Majeure” means the occurrence of an event or circumstance (“Force Majeure Event”) that prevents Supplier from performing one or more of its contractual obligations if, and to the extent that, Supplier proves: (a) that such impediment is beyond its reasonable control; and (b) that the Force Majeure Event could not reasonably have been foreseen at the time of the conclusion of the contract; and (c) that the effects of the impediment could not reasonably have been avoided or overcome by Supplier.
6.2 In the absence of proof to the contrary, the following events affecting Supplier shall be presumed to fulfill conditions (a) and (b) under paragraph 6.1 above: (i) war (whether declared or not), hostilities, invasion, act of foreign enemies, extensive military mobilization; (ii) civil war, riot, rebellion, revolution, military or usurped power, insurrection, acts of terrorism, sabotage or piracy; (iii) currency or trade restrictions, embargo, sanctions; (iv) acts of authority whether lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalization; (v) plague, epidemic, pandemic, ascertained health emergencies, natural disaster or extreme natural events; (vi) explosion, fire, destruction of equipment, prolonged break-down of transport, telecommunications information system or energy; (vii) general labor disturbance such as boycott, strike, and lock-out, go-slow, occupation of factories and premises.
6.3 Conditions (a) and (b) of paragraph 1 of this Article 6 shall not be deemed applicable with respect to the following events: (i) Covid-19 outbreak; (ii) difficulties in obtaining raw materials and components; (iii) conflict between Russia and Ukraine that began in February 2022.
6.4 Supplier, upon timely notice to Buyer, is relieved from its duty to perform its contractual obligations, from any liability for damages or other contractual remedies for non-performance, from the time at which the Force Majeure Event causes inability to perform. If notice thereof is not timely given, the relief is effective from the time at which notice thereof reaches the Buyer. Buyer may suspend the performance of its obligations, if any, from the date of the notice. Where the effect of the impediment or Force Majeure Event invoked is temporary, the above consequences shall apply only as long as the impediment invoked impedes performance by the Supplier. Supplier shall inform the Buyer as soon as the impediment ceases to prevent the fulfillment of its contractual obligations. Where the duration of the Force Majeure Event invoked has the effect of substantially depriving the contracting parties of what they were reasonably entitled to expect under the Sale Contract, either party has the right to terminate the contract by notification within a reasonable period to the other party. If the duration of the Force Majeure Event exceeds 3 (three) months Buyer shall have the right to terminate the Sale Contract in question, by giving written notice to Supplier by registered letter with return receipt or courier, and Supplier shall not incur any responsibility or liability whatsoever.
7) Hardship clause
7.1 If an event beyond the reasonable control of either party – including, but not limited to, a material increase in the cost of raw materials, components, labour, electricity or other production costs – substantially alters the balance of risks and benefits originally estimated by the parties, thereby placing an undue burden on either party, then such an event shall be deemed to be an event that unfairly causes undue hardship (“Hardship”) and the party suffering from it may proceed as provided below.
7.2 The party affected by the Hardship may request the other party for an equitable review of the terms and conditions of the Sale Contract within a reasonable time after it becomes aware of the event causing it and its effect on the performance of the Sale Contract. The request must state the grounds on which it is based.
7.3 If no agreement on the review of the Sale Contract is reached within __ (____) calendar days from the date of the request for review, either party may terminate the Sale Contract. Regardless of which party terminates the Sale Contract, the party suffering the Hardship shall be relieved of any liability for damages and any other contractual remedies for breach of Sale Contract, whether set forth in the Sale Contract or in the law applicable to it.
8) Export Controls Laws
8.1 The parties acknowledge that they, as well as the products of the Contract of Sale, may be subject to laws, regulations and orders of the European Union, the United States and other supranational or national entities providing for export controls, embargoes and sanctions (“Export Control Laws”).
8.2 Buyer acknowledges and agrees that compliance with the Export Control Laws is an essential element of the Sale Contract and that any breach thereof shall result in its immediate termination as well as in the obligation to pay compensation for all damages caused. Therefore, Buyer, under its sole liability, represents and warrants that it:
a) will comply with all applicable Export Control Laws with respect to the products and the countries to which they will be transported, exported, imported, resold or used;
b) will not resell, directly or indirectly, such products to persons or entities sanctioned by the Export Control Laws and/or in countries sanctioned by the Export Control Laws;
c) will only resell such products to third parties who expressly undertake not to resell them to persons or entities sanctioned by the Export Control Laws and/or not to re-export them to countries sanctioned by the Export Control Laws.
The provisions of this Article 8 are in addition to any other provisions of the Sales Contract concerning compliance with any law or regulation. If the provisions set forth in this Article is inconsistent with any other provision agreed between the parties in the Sales Contract, the provisions of this Article 8 shall supersede any provision inconsistent therewith.
9) Applicable Law – Disputes Resolution
9.1 These General Conditions and all the Sale Contracts that the parties will execute on the basis of 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.
9.2 Any dispute arising out of or in connection with these General Conditions and/or with the Sale Contracts occurred on the basis of the same shall be settled in accordance with the following provisions:
a) in case Buyer has its registered office within European Union, Switzerland, Norway or Iceland, any dispute between the parties shall be subjected to the jurisdiction of the Italian courts and shall be exclusively referred for its resolution to the court of Pesaro (Italy).
b) in any other case, any dispute between the parties shall be exclusively referred to and finally resolved by arbitration, by a sole arbitrator, in accordance with the Rules of Procedure of the Arbitration Chamber “Leone Levi” of the Chamber of Commerce of Ancona. The seat of arbitration shall be, and the award shall be delivered in, Ancona (Italy). The language to be used in the arbitral proceedings shall be English.
9.3 Irrespective of the above, Supplier reserves itself the unconditional right to initiate legal proceedings under the jurisdiction of Buyer, before the competent court.
Version _ June 2022