These Standard Terms and Conditions of Sale (the “STCS”) are applicable to any order placed with and accepted by Marbo Italia Spa, having its registered office in Milan – Italy, Viale Bianca Maria 24 (VAT No. 02825620152) (referred to herein as “Supplier”):
Upon acceptance by the buyer of an order issued by the Supplier, the contract between the Supplier and the buyer shall be deemed final and binding for both parties and it automatically entails the full, irrevocable and unconditional acceptance by the buyer of the STCS as well as buyer’s complete waiver of its eventual terms and conditions of purchase or of its standard purchasing contract forms, if any (the “Contract”). Notwithstanding anything of the above, if the buyer is delivered with the relevant invoice prior to the formal acceptance of the order by the Buyer, the Contract shall be deemed irrevocably entered into and binding for the buyer. Any provision, arrangement and or agreement of whatsoever nature diverging from the STCS shall be valid only if accepted in writing by the Supplier.
2. Delivery terms
Delivery terms shall always be deemed as purely indicative and never mandatory for the Supplier. In any case, they shall not be binding for the Supplier that shall therefore never be considered liable for any direct and/or indirect damages to the buyer due to delays in the deliveries.
3. Shipping terms
Except as otherwise agreed in writing by the parties, the goods are always shipped to the full and exclusive risk (total loss, damages, etc.) of the buyer till the final place of destination. The Supplier, upon explicit request of the buyer and at its full cost, shall insure the goods against those risks including transportation risk as per buyer’s request. Except as otherwise agreed in writing by the parties, the Supplier shall ship the goods to the final destination using the most suitable carrier. The buyer shall be charged with the cost of any specific delivering/shipping way eventually requested.
4. Claim or rejection of goods
Any and all quality claim by the buyer for damages to the goods and/or to the packaging, as well as any and all quantity claim has to be mandatorily notified to the Supplier in writing within the first working day after the delivery of the goods. Weight indicated by the Supplier at the loading place shall be considered final and binding except for gross mismatch. In the event of rejection of the goods delivered to the buyer pursuant to the terms indicated by the Supplier, the latter is entitled, at its own full discretion, to transport and store such goods in any suitable place at full and exclusive cost and under responsibility of the buyer. The provisions set forth in the clause shall not amend or considered to amend any of the payment obligations of the buyer under the Contract and shall not be considered and/or construed to novate the sale set forth in the Contract.
5. Price of sale
The sale price is indicated by the Supplier in the Contract, respectively in the purchase offer or in the order confirmation and shall be accepted by the buyer (the “Sale Price”).
6. Payment terms
The payment of the Sale Price shall be effected at Supplier’s place within the terms indicated in the Contract. In the event of delayed payment, the buyer, without prejudice to the possibility for the Supplier to request the termination of the Contract and the compensation for damages, shall be charged and liable for interests as indicated in D. Lgs. 231/2002 as amended by D. Lgs. 192/2012. In the event the buyer does not abide by the payment terms indicated in the Contract, the Supplier, at its own discretion, shall be entitled to: (i) immediately request the payment of any and all overdue payments; (ii) cancel any and all outstanding orders or (iii) hold the performance of any and all Contracts/orders until and unless the Buyer performs the payment of any outstanding and overdue amounts to the Supplier.
In the event the buyer does not fulfill its payment obligation of the Sale Price, the supplier shall be entitled to terminate the Contract, without prejudice to the possibility to seek damage compensation. Ownership title on the goods shall pass to the buyer only upon the full payment of the Sale Price. The buyer undertakes to keep the goods free and clear from any lien and/or encumbrances until and unless the Sale Price has been paid in full and to use the goods exclusively for the scope of its own activity. In the event of lack of payment, the buyer undertakes to grant the Supplier or any of its nominees the access to the warehouse to ascertain the residual quantity of the goods and to organize the move out of the same.
The buyer shall not be entitled to compensate/offset its payment obligation of the Sale Price under the Contract with any request for damage compensation until and unless finally awarded by a competent court/arbitration or previously accepted in writing by the Supplier.
7. Warranty of the supplier
The Supplier warrants to the buyer that the goods delivered fully comply with the specifications set forth in the Contract. Any and all technical information provided by the Supplier in relation to the use of the goods are free of charge and the Supplier shall not be liable for any information provided and/or result reached. Such information are provided and accepted to the full and exclusive risk of the buyer.
In the event the sale will be a so called “sample sale”, the regulation set forth by art. 1522 of the Italian Civile Code will apply should both parties have tested and maintained one sample each duly sealed and in a quantity suitable for further testing.
Any warranty of the goods shall be deemed limited to the technical specifications indicated in the technical data sheet and shall not be extended for whatsoever reason to the behavior of the goods eventually built-in any mix or preparation made by the end user. The Supplier explicitly provides no warrants with respect to any ability of the goods to any specific application even in the event the buyer disclosed such specific application in the Contract.
The warrant to the buyer is, in any case, limited to the free reconditioning or replacement (at Supplier’s full discretion) of the defective goods. It is explicitly excluded any compensation for any indirect and/or consequential damages or for any costs of whatsoever nature.
Any claimed goods shall not be shipped back to the Supplier or otherwise disposed, treated or relocated without the prior written consent of the Supplier. Supplier’s liability in the event of delivery of defective goods shall not in any case exceed the amount of the Sale Price under the Contract.
The buyer shall not be entitled to any claim of whatsoever nature, nor as a cause of action neither as a counterclaim, until and unless the full settlement of any and all amounts invoiced by the Supplier. The buyer has the obligation to check/test the compliance of the goods upon delivery and, in any case, before using them. Such pre-checking activity is required as a buyer’s diligent obligation failing which, pursuant to art. 1227 of the Italian Civil Code, no compensation shall be due by the Supplier.
The buyer shall not be entitled to any warranty until and unless notifies the Supplier with a claim in writing within 8 (eight) calendar days from the delivery of the goods or from the date it became detectible in the event of a hidden defect. Purported goods’ quality and/or quantity defects must be notified in writing to the Suppier before unloading or confusing them with any other products at buyer’s warehouse.
In the event of multiple deliveries, purported claims, even timely submitted, do not authorize the buyer to reject the goods and refuse the full settlement of the Sale Price.
9. Force majeure
Subject to the provisions set forth under art. 2 above, the Supplier shall be not be liable for any failure to perform or delay in performing the Contact to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption, cyber or hostile network attacks, fire, inability to obtain raw or finished materials, inability to secure transport, or any cause beyond Supplier’s control. In such cases, the buyer shall not be entitled to cancel and/or terminate the Contract except for the consequences on the time extension of the payment obligation. The Supplier reserves any and all rights to cancel and/or terminate the Contract.
10. Intellectual property
Any drawings, schemes, specifications, technical and commercials designation, documents, samples, catalogues, opuscules, patents and models, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by the Supplier that are made available or communicated to the buyer shall be and remain the sole and exclusive property of the Supplier and/or of its Licensee that can at any time request to the buyer to return them.
The buyer undertakes not to divulge or copy as well as to disclose the content, partially or in full, to any third party without the prior written consent of the Supplier. Furthermore, the buyer undertakes to immediately inform the Supplier of any intellectual property violation of Supplier’s rights, directly owned or eventually licensed to him, as soon as he becomes aware or any such violation. The buyer shall provide, upon request of the Supplier, any and all support and cooperation needed by the Supplier to protect its rights.
The Buyer shall not be entitled to transfer and/or assign, partially or in full, any Contract without the prior written consent of the Supplier.
12. Governing law and dispute resolution
Without limiting the generality of the foregoing and to the extent that the STCS do not specifically differently provide, any Contact shall be governed by the Laws of Italy and any and all disputes related thereto shall be submitted to exclusive competence of the Courts of Milan, Italy.
13. Data protection and privacy
The Supplier and the buyer hereby acknowledge to have mutually accepted and exchanged the information set forth art. 13 of D.L. 30 June 2003, n. 196 (Personal Data Protection Law) as amended by GDPR UE 2016/679.