General terms and conditions of supply

1. Applicability of these general terms and conditions

These general terms and conditions (hereinafter the “General Terms and Conditions”) form an integral part of all contracts for the sale, in Italy and/or abroad, by i) Arcas Industrie s.r.l.) any other company controlled by it, directly or indirectly, having its registered office in Italy or abroad, which does not have its own general terms and conditions of supply (hereinafter referred to without distinction as the “Supplier”), of products (hereinafter the “Products”) to purchasing companies (hereinafter “Buyer(s)”). All offers, order confirmations, deliveries and invoices of the Supplier are understood to be made on the basis of these General Terms and Conditions, unless otherwise agreed in writing by the Supplier.

These General Terms and Conditions are understood to be accepted by the Buyer, even if they differ from any general or special purchase conditions prepared by the Buyer. The latter will not bind the Supplier in any way unless expressly accepted in writing by the Supplier. In the event that one or more provisions of these General Terms and Conditions is/are deemed invalid and/or inapplicable, this will not affect the validity and/or applicability of the remaining provisions of these General Terms and Conditions; any provision deemed invalid or inapplicable may be replaced with new valid and applicable agreements, having content, as far as possible, equivalent to that of the provisions deemed invalid or inapplicable.

2. Formation of the contract – Acceptance of orders

Each sales contract shall be deemed concluded when the Buyer receives, from the Supplier, the written confirmation of the order issued by the Buyer, an order that the Supplier reserves the right to accept or reject. In the event that, however, the Buyer receives from the Supplier a written confirmation of the order containing terms and conditions different from the order itself, the contract will be considered concluded, after 3 (three) working days from the receipt of such order confirmation by the Buyer, without the latter having formulated any written objection to the Supplier. In the absence of written confirmation of the order by the Supplier, the contract shall, in any case, be deemed to have been concluded, at the latest, at the time of delivery of the Products to the Buyer, in accordance with the agreed delivery period.

Any offers made by the Supplier to the Buyer will remain valid only for the period indicated therein and, after this period, will lapse without the need for revocation. Unless otherwise expressly stated, the offer will be considered valid for 15 (fifteen) days from the date of issue. The delivery terms (or dates) indicated by the Supplier in the offer are to be considered by the Supplier as merely indicative and not binding.

Any cancellation or modification of the order by the Buyer shall not take effect unless previously authorised, or subsequently accepted, in writing by the Supplier. In the event of termination of the supply of Products to be made to the Buyer’s specifications, the Buyer undertakes to purchase all the Products expressly supplied by the Supplier to ensure the fulfilment of individual orders of the Buyer or to meet any ongoing supply obligations agreed with the Buyer.

Intermediaries and agents do not have the power to bind the Supplier to the Buyer, nor to enter into contracts in the name and/or on behalf of the Supplier. Offers submitted by intermediaries and agents are to be understood as subject to the approval and written confirmation of the Supplier.

In the event of total or partial non-collection of the supply by the Customer within the term agreed in this contract, for reasons not attributable to the Seller, the entire amount paid as a deposit, if any, shall be retained by the Seller as a penalty, without prejudice to compensation for greater damages pursuant to Article 1382 of the Italian Civil Code. It is understood that the deposit thus retained may not under any circumstances be returned, nor charged to another supply or service.

3. Product prices

Unless otherwise agreed in writing between the parties, the prices indicated by the Supplier in the relevant offer or, failing that, the prices shown in the price lists and relative discount scale provided by the Supplier to the Buyer and in force at the time of completion of the sales contract pursuant to Article 2.1 above shall apply to each purchase order.

Unless otherwise agreed in writing between the parties, the prices of the Supplier’s products are “EXW – Ex Works” Vercelli (Vc), Incoterms® 2010 CCI, packaging and transport costs, VAT and taxes excluded. The packaging costs will be charged to the Buyer on the invoice based on the Supplier’s price list relating to the packaging in force from time to time. It is understood that the Supplier shall pack the Products using the type of packaging it deems, at its discretion, most appropriate to the type of transport agreed with the Buyer from time to time. Any special packaging, to be requested by the Buyer no later than the transmission of the order, will be quoted separately by the Supplier and will be the subject of an express written agreement between the Supplier and the Buyer.

The Supplier reserves the right to change prices in the event of changes in the costs of raw materials, transport and other market conditions.

4. Delivery – Risk of loss – Transfer of ownership

Unless otherwise agreed in writing between the parties, the delivery of the Products to the Buyer will be carried out according to the “EXW – Ex Works” Vercelli Incoterms® 2010 CCI formula, with the sole exception that the Supplier will load the Products on the collection vehicle at the Supplier’s expense but at the Buyer’s risk (“EXW loaded”). This formula, as well as all other terms of delivery that were agreed in writing between the parties, refers to the current pro tempore edition of the Incoterms® of the International Chamber of Commerce.

In the event of delivery “EXW – Ex Works” Vercelli Incoterms® 2010 CCI, the Supplier will not enter into any shipping or transport contract with regard to the Products being delivered, unless upon express written request of the Buyer and at the risk and expense of the latter, and the shipping or transport costs incurred by the Supplier will be charged to the Buyer in addition to the agreed prices. If, according to the agreements between the parties, the Products are to be delivered to the warehouses of the Supplier or another Arcas Group Company (hereinafter defined in Article 11.2), the Supplier shall inform the Buyer of the availability of the Products for collection and, subsequently, issue the relevant invoice. If the Buyer does not collect the Products within and no later than 5 (five) working days from the date on which it became aware of their availability, the Supplier reserves the right to charge the Buyer the custody and warehouse costs incurred by the Supplier from said period of 5 (five) working days and up to the day of actual collection. The payment terms applicable on the basis of the following Article 6 will in any case remain binding for the Buyer, even if the latter does not provide for the timely collection of the Products. If payment is deferred with respect to delivery, the payment terms shall in any case commence from the date of notification of ready goods or, only in the absence thereof, from the agreed delivery date.

Ownership of the Products shall pass to the Buyer upon delivery, in accordance with the agreed Incoterms® CCI delivery period.

The Parties agree that the Seller may, at its sole discretion, avail itself of the option provided for in Article 1523 of the Italian Civil Code, and therefore reserve ownership of the goods covered by this contract until full payment of the price by the Buyer.

The Seller’s intention to avail itself of the retention of title must be expressly declared by written communication to be sent to the Buyer, by registered letter with return receipt or certified email, no later than the date of delivery of the goods.

In this case, until the full payment of the price, the Buyer will assume the risks relating to the loss or deterioration of the goods, in accordance with the provisions of Article 1523 of the Italian Civil Code, and will not be able to dispose of the goods themselves, nor establish rights in favour of third parties, without the prior written consent of the Seller.

5. Delivery times – Acceptance of delivery

The delivery of the Products will take place within the delivery terms (or dates) expressed by the Supplier in the order confirmation. In the event of a discrepancy between the delivery terms (or dates) requested by the Buyer, and reported in the order confirmation as a mere reference, and the delivery terms (or dates) provided by the Supplier, the latter will prevail. The delivery period shall in any case commence upon receipt by the Supplier of any advance payments to be made by the Buyer upon receipt of the order confirmation or, in the case of Products to be manufactured to the Buyer’s technical specifications, upon receipt by the Supplier of all the final technical specifications, drawings and technical data required by the Supplier and/or necessary to be supplied by the Buyer, for the relative production and supply of the Products. The delivery terms cannot however be considered as essential terms for the Buyer for the purposes of Article 1457 of the Italian Civil Code.

The Supplier reserves the right to process the order also through partial deliveries and to issue partial invoices according to the deliveries made. If the Buyer does not intend to accept partial deliveries of the goods, it must declare this to the Supplier in advance and in writing. In any case, a quantitative tolerance is allowed as provided for by the current pro tempore edition of the UNI 3740 standard, part 9. The delivery terms indicated are to be considered indicative and not essential, unless otherwise agreed in writing.

6. Payment

Payments shall be made by the Buyer in the manner indicated by the Supplier in the offer, order confirmation and/or invoice, from time to time, sent by the Supplier to the Buyer.

Failure to pay, or delayed or partial payment, on the due date, of an invoice or debit note from the Supplier, the occurrence of events that adversely affect the Buyer’s financial or economic situation and any other fact constituting non-fulfilment of the Buyer, will result in the forfeiture of the Buyer from the terms agreed for the payment of the Products. The Supplier shall therefore have the right to act immediately for the recovery of existing debts, even if they are not liquid and payable, and this at any time, without any obligation of notice and/or formality. Any dispute or complaint by the Buyer for faults or defects in the Products shall not, under any circumstances, entitle the Buyer to suspend or delay payments.

In the cases referred to in Article 6.2 above, the Supplier shall also be entitled, at its sole discretion, without thereby incurring any liability for damages, to:

1. not proceed with the execution of the order,
2. suspend and/or refuse delivery of Products ordered and not yet delivered, even in the case of Products not related to the non-payment or delayed payment in question, until full payment of the amount due by the Buyer,
3. revoke or decrease the value of any credit line offered to the Buyer and/or
4. request from the Buyer guarantees of payment and/or different terms or methods of payment, both for supplies still in progress and for subsequent ones.

7. Contractual warranty

The Supplier guarantees the absence of faults and defects in relation to the materials or manufacture of the Products as well as the compliance of the Products with the technical specifications and any samples supplied by the Supplier and/or expressly approved by the Supplier that have been expressly agreed in writing, all (unless otherwise agreed in writing by the Supplier) within the limits of the Acceptable Quality Levels (“AQL”) established by the acceptance procedures of the edition of the UNI EN ISO 3269 standard in force pro tempore at the time. It is understood that, if the Product in question is not covered by this standard, the Acceptable Quality Level is understood to be established as AQL 2.5 pursuant to the aforementioned UNI EN ISO 3269 standard for each characteristic of the Product itself. This warranty is provided for a period of 12 (twelve) months from the date of delivery of the Products to the Buyer.

Any complaint relating to defects or faults in the Products must be received by the Supplier, no later than 15 (fifteen) days from the date of delivery of the Products to the Buyer, or, in the event of non-apparent defects that cannot be ascertained with ordinary diligence, no later than 15 (fifteen) days from their discovery and, in any case, no later than 12 (twelve) months from the delivery of the Products to the Buyer, according to the agreed Incoterms® CCI delivery period.

The Supplier reserves the right to examine the Products in advance to verify that the defect exists and is attributable to its own responsibility; in this case, the Supplier undertakes, at its sole discretion, to repair or replace the Products that the Supplier recognises as defective or, in the event that this is not possible, to return, in whole or in part, the price that has already been paid by the Buyer.

In the event of repair or replacement of the Products, the Buyer will receive the repaired or replaced Product at the Supplier’s expense (including transport costs). Any return of the Products by the Buyer must, in any case, be previously authorised in writing by the Supplier.

This warranty is exclusive and in place of any other written, oral or implied warranty to which, by accepting these General Terms and Conditions, the Buyer expressly waives (including any right of recourse arising from the possible installation of the Products in consumer goods).

The Supplier shall not be liable for faults, defects or lack of quality of the Products resulting from:

1. faults and defects or deficiencies in the raw materials and materials or components supplied by the Buyer and/or procured by the Supplier on the latter’s instructions,
2. incorrect assembly or installation of the Products,
3. improper use of the Products by the Buyer,
4. repairs, tampering or modifications made to the Products, without the prior written consent of the Supplier,
5. negligence or incompetence of the Buyer and/or the Buyer’s customers or
6. normal wear and tear, poor or insufficient storage or maintenance of the Products, the use of aggressive agents.

8. Early termination

Without prejudice to any other remedy available to it, the Supplier shall have the right to terminate in advance, with immediate effect, each sales contract concluded on the basis of these General Terms and Conditions, by registered letter with acknowledgement of receipt or by certified post, addressed to the Buyer, in the event of a breach by the Buyer of any obligation arising from these General Terms and Conditions, if such breach is not remedied by the Buyer, to the Supplier’s satisfaction, no later than 15 (fifteen) days after the Supplier’s written notice to comply.

9. Know-how and confidential information

The know-how and other confidential information of the Supplier belong to the Supplier exclusively (even if the Supplier has it because it is provided by third parties) and are made available to the Buyer in a strictly confidential manner for the sole purpose of the sales contract concluded on the basis of these General Terms and Conditions. The Buyer therefore undertakes to use the Supplier’s confidential information only to the extent that it is strictly necessary for the execution of each sales contract and the use of the relevant Products and not to disclose such confidential information to third parties, unless authorised to do so in writing by the Supplier.

10. Trademarks and other intellectual property rights

The Buyer may not register or allow others to register the trademark, trade name or expression used by the Supplier in connection with the sale of the Products (which are and shall remain the exclusive property of the Supplier and/or other Arcas Group Company, hereinafter defined in Article 11.2), or similar or confusing terms or expressions.

The Supplier shall not be liable for any inconvenience, loss, damage or other expense of any nature, direct or indirect, that the Buyer may suffer as a result of the Supplier’s infringement of third party intellectual property rights, except in cases where it is proven that the Supplier was aware that the goods in question had been manufactured, produced or distributed in violation of the pre-existing intellectual property right belonging to a third party.

If Products are manufactured by the Supplier in accordance with the indications provided by the Buyer, or if any procedure is applied by the Supplier to the Products on the Buyer’s instructions, the latter will be required to compensate the Supplier for any loss, damage, cost and expense that the latter is required to suffer or incur in relation to the Products, or that it has had to pay in the transaction for any action suffered in violation of models, patents, copyrights, trademarks or other industrial or intellectual property rights.

11. Force majeure and limitation of liability

The Supplier shall not be liable to the Buyer for any non-performance caused by events beyond the reasonable control of the Supplier such as, but not limited to, trade union actions, strikes, transport difficulties, natural events, wars, street riots, administrative measures of seizure, embargo, laws or regulations of any territorial body or administrative authority, failure or delayed delivery of processing materials by suppliers due to events beyond the reasonable control of the same suppliers.

The Seller assumes no liability for indirect, consequential, incidental or otherwise non-immediate damages deriving from the use, malfunction or unsuitability of the goods supplied, including – by way of example only and not limited to – damage from machine downtime, loss of production, loss of profits, damage to property or persons, or damage to the Buyer’s business.

In any case, the Seller’s liability shall be limited, at its sole discretion, to the repair or replacement of the defective part supplied, to the exclusion of any further obligation to pay compensation. Any other warranty, express or implied, is to be understood as expressly excluded, to the extent permitted by law.

The Buyer acknowledges that the overall liability of Arcas Industrie S.r.l. and its directly or indirectly controlled companies (the “Arcas Group Company(ies)”), arising from and/or relating to the contracts concluded on the basis of these General Terms and Conditions shall, in any case, be limited to the price paid by the Buyer in relation to the relevant Products, in addition to any amount paid by the insurance company(ies) on the basis of the insurance policies taken out by the Arcas Group Company(ies).

12. Processing of personal data

If the Supplier has its registered office in a country of the European Union, the provisions of the law on the protection of personal data shall apply. To this end, the Buyer acknowledges that it has been informed, pursuant to, for the effects and with the purposes set forth in Article 13 and Article 14 of Regulation (EU) 2016/679 (“GDPR”), after having examined the information published for this purpose by the Supplier on its website, that the “personal data” communicated and/or exchanged with the Supplier, also during the pre-contractual information phase, will be processed by the Supplier; furthermore, it is understood that the Buyer expressly consents to the processing of “personal data” by making use of its rights as set forth in Article 7 GDPR.

13. Applicable law – Jurisdiction – Language

These General Terms and Conditions and the sales contracts to which the Supplier is a party are in all their parts governed by Italian law and, in particular, in the case of contracts for the international sale of movable goods as defined by Article 1 of the 1980 Vienna Convention, by said Convention, unless otherwise agreed in writing by the parties.

The exclusive place of jurisdiction for all disputes arising from and/or relating to these General Terms and Conditions and the sale of Products by the Supplier shall be the Court of Vercelli, Italy. Notwithstanding the foregoing, the Supplier may, however, summon the Buyer before any Court having jurisdiction over the Buyer.

These General Terms and Conditions of Supply are written in Italian and English. In the event that doubts arise relating to the interpretation of these conditions, the Italian version shall prevail.