General conditions of supply
1. Applicability of these General Conditions
1.1 Except as otherwise expressly agreed in writing by Berardi Bullonerie S.r.l. (“Berardi”), these general conditions (the “General Conditions”) shall constitute an integral part of all contracts of sale of products (the “Products”) by Berardi to purchasers (the “Purchaser/s”), in Italy and/or abroad. All offers, order confirmations and deliveries by, and all invoices of, Berardi shall be deemed to have been made on the basis of these General Conditions, except as otherwise agreed in writing by Berardi.
1.2 These General Conditions shall be deemed to have been accepted by the Purchaser even if they differ from any general or special conditions of purchase of the Purchaser. The latter shall not be binding on Berardi in any way unless Berardi expressly accepts them in writing.
2. Contract Formation – Acceptance of Orders
2.1 Each contract of sale shall be deemed to have been concluded at the time the Purchaser receives from Berardi written confirmation of the order placed by the Purchaser, which order Berardi reserves the right to accept or reject. However, if the Purchaser receives from Berardi a written order confirmation containing terms and conditions different from those in the order, the contract will be deemed concluded 3 (three) working days following the Purchaser’s receipt of said order confirmation, if the Purchaser has made no written objection thereto to Berardi. In the absence of written confirmation of the order by Berardi, the contract shall be deemed concluded, in any case, at the time the Products are delivered to the Purchaser, in accordance with the agreed commercial term, at the latest.
2.2 The offers made by Berardi to the Purchaser, if any, shall remain in force only for the period of time indicated therein and, when that period has elapsed, the offer shall expire without any need for revocation thereof. If not otherwise expressly indicated, the offer shall be deemed to remain in force for 15 (fifteen) days from the date on which the offer is issued. The delivery times (or dates) indicated by Berardi in the offer are for reference purposes only and are not binding on Berardi.
2.3 Any change to or cancellation of the order by the Purchaser shall be ineffective unless previously authorized, or subsequently accepted, in writing by Berardi. If the supply of Products to be realized on the basis of specifications provided by the Purchaser ceases, the Purchaser shall purchase all of the Products expressly procured by Berardi in order to fill individual orders of the Purchaser or to cover any ongoing supply obligations agreed upon with the Purchaser.
2.4 Intermediaries and commercial agents have no power to bind Berardi as against the Purchaser or to enter into contracts in the name and/or on behalf of Berardi. Offers presented by intermediaries and commercial agents shall be deemed subject to Berardi’s written approval and confirmation.
3. Product Prices
3.1 Except as otherwise agreed by the parties in writing, the following prices shall apply to every purchase order: the prices indicated by Berardi in the relevant offer or, in the absence of a Berardi offer, the prices set forth in the price lists provided by Berardi to the Purchaser and in force at the time the contract of sale is entered into pursuant to article 2.1 above.
3.2 Except as otherwise agreed by the parties in writing, the prices of Berardi products shall be deemed to be EXW – Ex Works Castel Guelfo (Bologna), ICC Incoterms® 2010, and to exclude packaging and transport costs as well as value added tax and other taxes. Packaging costs shall be charged to the Purchaser in Berardi’s invoices, based on the Berardi packaging price list in force from time to time. It is understood that Berardi shall pack the Products using the type of packaging that Berardi, in its discretion, deems most appropriate for the type of transportation agreed upon with the Purchaser from time to time. Any particular packaging must be requested by the Purchaser at or before the time the order is sent, shall be quoted by Berardi separately and shall be agreed upon by Berardi and the Purchaser expressly in writing.
4. Delivery – Risk of Loss - Transfer of Title
4.1 Except as otherwise agreed by the parties in writing, the Products shall be delivered to the Purchaser EXW - Ex Works Castel Guelfo (Bologna), ICC Incoterms® 2010, with the sole exception that Berardi shall load the Products onto the collecting vehicle at Berardi’s cost but at the Purchaser’s risk (“EXW loaded”). Said commercial term, as well as any other commercial term that may be agreed upon by the parties in writing, shall have the meaning given to it in the then current edition of the International Chamber of Commerce’s Incoterms®.
4.2 In the event of delivery EXW - Ex Works Castel Guelfo (Bologna), ICC Incoterms® 2010, Berardi shall not enter into any shipment or transportation contract with respect to the Products unless expressly requested to do so by the Purchaser in writing and at the Purchaser’s risk and expense, and the cost of shipment or transportation borne by Berardi will be charged to the Purchaser in Berardi’s invoice, in addition to the agreed prices. If the parties have agreed that the Products are to be delivered at Berardi’s warehouses, Berardi shall inform the Purchaser of the availability of the Products at Berardi’s warehouses and shall subsequently issue the relevant invoice. If the Purchaser fails to collect the Products within 5 (five) working days following the date on which the Purchaser becomes aware that said Products are available at Berardi’s warehouses, Berardi reserves the right to charge the Purchaser for the cost of conserving and storing the Products from the end of said 5 (five) working day period until the date on which the Products are actually collected. The payment deadlines applicable pursuant to article 6 below shall remain binding for the Purchaser even if the latter fails timely to collect the Products. If payment following delivery is contemplated, in all cases the payment deadline shall be calculated starting from the date of Berardi’s notice that the Products are available for collection or, only in the absence of said notice, starting from the agreed delivery date.
4.3 Title to the Products shall pass to the Purchaser at the time of delivery thereof, in accordance with the agreed ICC Incoterms®.
5. Time of Delivery – Acceptance of Delivery
5.1 The Products shall be delivered within the delivery time-frames (or by the delivery dates) indicated by Berardi in the order confirmation. In the event of contrast between (i) the delivery time-frames (or dates) requested by the Purchaser and copied in the order confirmation for reference purposes only and (ii) the delivery time- frames (or dates) provided for by Berardi, the latter shall prevail. If the parties have agreed on an advance payment to be made by the Purchaser at the time the order confirmation is received, the delivery date shall be calculated from the date on which Berardi receives said advance payment. In the case of Products to be realized on the basis of technical specifications provided by the Purchaser, the delivery date shall be calculated starting from the date on which Berardi has received all of the final technical specifications, drawings and technical data requested by Berardi and/or necessary and to be supplied by the Purchaser, for the manufacture and supply of the Products in question. In no event shall the delivery time-frames/dates be deemed to be of the essence for the Purchaser for purposes of article 1457 of the Italian Civil Code.
5.2 Berardi reserves the right to fill the order by means of partial deliveries and to issue partial invoices based on the deliveries made. If the Purchaser does not intend to accept partial deliveries of the goods, the Purchaser must so inform Berardi in advance and in writing. In all cases, a quantitative tolerance, as set forth in the then current version of UNI (Ente Nazionale Italiano di Unificazione) regulation 3740, part 9, shall be allowed.
6.1 The Purchaser shall effect payment for the Products in the manner indicated from time to time by Berardi in the offer, the order confirmation and/or the invoice sent by Berardi to the Purchaser.
6.2 Upon (i) failure to pay any Berardi invoice or debit note by the payment deadline, or late or partial payment thereof; (ii) the occurrence of events negatively affecting the Purchaser’s assets or economic situation or (iii) any other breach by the Purchaser, the sums owed by the Purchaser to Berardi for the Products shall become immediately due and payable. Therefore, Berardi shall be entitled, at any time and without having to give notice and/or carry out any other formality, to take immediate action to recover the sums owed to it, even if the amount of Berardi’s credit is not yet determined or if the payment deadline has not yet expired. Any claim by the Purchaser that the Products are defective shall not entitle the Purchaser to suspend or delay payment in any event.
6.3 In the cases referred to in article 6.2 above, Berardi shall also be entitled, in its sole discretion and without incurring any liability for damages, (i) not to fill the order, (ii) to suspend delivery and/or refuse to deliver Products which have been ordered but not yet delivered (even if they are not the same Products for which payment was not made or was late), until such time as all sums owed by the Purchaser have been paid in full, (iii) to revoke or reduce the amount of any line of credit offered to the Purchaser and/or (iv) to require the Purchaser to provide payment guarantees and/or change the payment terms or the manner of payment, both for supplies in progress and for subsequent supplies.
7.1 Except as otherwise agreed by Berardi in writing, Berardi warrants that, within the limits of the Acceptable Quality Levels (AQL) set forth in the acceptance procedures of the then current version of regulation UNI EN ISO 3269, the Products shall be free from defects in materials or workmanship and shall comply with the technical specifications and any samples supplied by Berardi and/or expressly approved by Berardi, which have been expressly agreed upon by the parties in writing. It is understood that, if the Product in question is not contemplated by regulation UNI EN ISO 3269, the Acceptable Quality Level shall be deemed to be AQL 2.5, pursuant to regulation UNI EN ISO 3269, for each characteristic of said Product. This warranty is given for a period of 12 (twelve) months following the date of delivery of the Products to the Purchaser.
7.2 Any claim concerning defects in the Products must be received by Berardi no later than 15 (fifteen) days from the date of delivery of the Products to the Purchaser or, in the case of latent defects which cannot be identified in the exercise of ordinary diligence, within 15 (fifteen) days of the discovery thereof and, in any case, no later than 12 (twelve) months following the delivery of the Products to the Purchaser, in accordance with the agreed ICC Incoterms®.
7.3 Berardi reserves the right first to examine the Products to determine whether there is in fact a defect and whether Berardi is responsible for the defect; in that case Berardi shall, in its sole discretion, repair or replace the Products that Berardi acknowledges to be defective or, where that is not possible, return all or part of the price that has already been paid by the Purchaser, without giving rise to any liability of Berardi for direct, indirect or consequential damages of any sort, loss of profits or losses deriving from and/or relating to the Product defects.
7.4 If the Products are repaired or replaced, the Purchaser shall receive the repaired or replacement Product at Berardi’s cost (including the cost of transportation). In any case, the Purchaser shall only be entitled to return Products after having obtained Berardi’s written authorization of the return in question.
7.5 This warranty is exclusive and in lieu of any other warranty, whether written, oral or implied and, by accepting these General Conditions, the Purchaser expressly waives any such additional warranty (as well as any right of redress deriving from any installation of the Products in consumer goods).
7.6 Berardi shall not be liable for any defects or quality shortcomings in the Products deriving from: i) shortcomings or defects in the raw materials, components or other materials supplied by the Purchaser and/or procured by Berardi in accordance with the Purchaser’s instructions, ii) improper assembly or installation of the Products, iii) improper use of the Products by the Purchaser; iv) repairs, tampering or changes to the Products, without Berardi’s prior written consent; v) negligence or incompetence of the Purchaser and/or of the Purchaser’s customers; or vi) normal wear and tear, poor or inadequate conservation or maintenance of the Products, the use of aggressive agents.
8. Earlier Termination
Without prejudice to any other remedy it may have, Berardi shall be entitled to terminate, with immediate effect, each contract of sale entered into on the basis of these General Conditions, by sending the Purchaser notice of termination, by registered post, return receipt requested, in the event of breach by the Purchaser of any of the Purchaser’s obligations under these General Conditions, which breach is not cured by the Purchaser, to Berardi’s satisfaction, within 15 (fifteen) days following Berardi’s written demand to cure.
9. Know How and Confidential Information
Berardi’s know-how and other confidential information belong exclusively to Berardi and are made available to the Purchaser in absolute confidence, solely for purposes of the contract of sale concluded on the basis of these General Conditions. Therefore, the Purchaser agrees to use Berardi’s confidential information solely to the extent strictly necessary for the performance of each contract of sale and for the use of the relating Products. The Purchaser further agrees not to disclose said confidential information to third parties, except as authorized by Berardi in writing.
10. Trademarks and Other Intellectual Property Rights
10.1 The Purchaser shall not register or cause third parties to register, the trademark, trade name or expression used by Berardi in the sale of the Products (of which trademark, trade name and expression Berardi is and shall remain the sole owner), or terms or expressions similar to or susceptible of being confused with them.
10.2 In no event shall Berardi be liable for any direct or indirect problem, loss, damage or cost of any sort incurred by the Purchaser as a result of Berardi’s infringement of third party intellectual property rights, unless it is proven that Berardi knew that the goods in question were manufactured or distributed in violation of a third party’s preexisting intellectual property right.
10.3 If the Products are manufactured by Berardi in accordance with the directions of the Purchaser or if Berardi applies to the Products any sort of procedure based on the Purchaser’s instructions, the Purchaser shall compensate Berardi for all losses, damages, costs and expenses incurred or suffered by Berardi in connection with the Products or paid by Berardi by way of settlement of any action brought against Berardi for infringement of industrial designs, patents, copyright, trademarks or other intellectual property rights.
11. Force Majeure and Limitation of Liability
11.1 In no event shall Berardi be liable to the Purchaser for any breach which is caused by events beyond Berardi’s reasonable control, such as, for example, but not limited to, strikes or other union actions, difficulties in transportation, events occurring from natural causes, wars, demonstrations, seizures, embargoes, laws or regulations of any agency or authority, failure to deliver or delay in delivery of production materials by suppliers due to events beyond the reasonable control of said suppliers.
11.2 The warranties and responsibilities of Berardi, deriving from and relating to the contracts entered into on the basis of these General Conditions, are limited to those expressly provided for herein. Therefore, Berardi shall have no additional responsibility in connection with the Products and in no event shall be liable for direct, indirect or consequential damages, loss of profits, direct or indirect losses of any sort (including injury to persons and property damage) deriving from the purchase of the Products, except in cases of Berardi’s intentional wrongdoing or gross negligence. The Purchaser acknowledges that Berardi’s aggregate liability arising from and/or relating to the contracts entered into on the basis of these General Conditions shall, in all cases, be limited to the price paid by the Purchaser for the Products in question, in addition to the proceeds, if any, of Berardi’s insurance policies.
12. Personal Data Processing
The Purchaser acknowledges that, pursuant to and for the purposes contemplated by art. 13 of Legislative Decree 196/03, the “personal data” provided to and/or exchanged with Berardi, even in the phase preceding the actual conclusion of a contract, shall be processed by Berardi; it is also understood that the Purchaser expressly consents to the processing of its “personal data,” availing itself of its rights pursuant to art. 7 of Legislative Decree 196/03.
13. Applicable Law – Competent Court - Language
13.1 These General Conditions and the contracts of sale to which Berardi is a party shall be governed in all respects by Italian law and, in particular, in the case of contracts for the international sale of goods as defined in article 1 of the Vienna Convention of 1980, by said Convention, to the extent that said Convention has not been derogated from by the parties in writing.
13.2 All controversies arising from and/or relating to these General Conditions and sales of Products by Berardi shall be resolved exclusively by the competent courts for the place in which Berardi’s registered office is located. Without prejudice to the foregoing, Berardi shall be entitled to bring actions against the Purchaser before any court having jurisdiction over the Purchaser.
13.3 These General Conditions of Supply are drafted in the Italian, English, French, Spanish, German and Polish languages. In the event of doubts as to the interpretation hereof, the Italian language version shall prevail.