General conditions of supply
1. Applicability of these general conditions
These general conditions (hereinafter the “ General Conditions ”) constitute an integral part of all contracts for the sale, in Italy and/or abroad, by i) Berardi Bullonerie Srl or ii) any other company controlled by the same, directly or indirectly, having its headquarters in Italy or abroad, which does not have its own general supply conditions (hereinafter referred to without distinction as the “ Supplier ”), of products (hereinafter the “ Products ”) to purchasing companies (hereinafter the “ Buyer(s) ”). All offers, order confirmations, deliveries and invoices of the Supplier are deemed to be made on the basis of these General Conditions, unless otherwise specified in writing by the Supplier.
These General Conditions are deemed to be accepted by the Buyer, even if they differ from any general or specific purchase conditions prepared by the Buyer. The latter will not bind the Supplier in any way unless expressly accepted in writing by the Supplier itself.
In the event that one or more provisions of these General Conditions are held to be invalid or inapplicable, this shall not affect the validity and/or applicability of the remaining provisions of these General Conditions; any provision held to be invalid or inapplicable may be replaced with new valid and applicable provisions, having content, as far as possible, equivalent to that of the provisions held to be invalid or inapplicable.
2. Formation of the contract – Acceptance of orders
Each sales contract shall be deemed to have been concluded when the Buyer receives, from the Supplier, written confirmation of the order issued by the Buyer, an order that the Supplier reserves the right to accept or refuse. However, in the event that the Buyer receives from the Supplier a written confirmation of the order containing terms and conditions that differ from the order itself, the contract shall be deemed to have been concluded after 3 (three) working days from 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 perfected, at the latest, upon delivery of the Products to the Buyer, according to the agreed delivery term.
Any offers made by the Supplier to the Buyer will remain valid exclusively for the period indicated therein and, after such period, will lapse without the need for revocation. In the absence of any express indication to the contrary, 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 cancellations or changes to the order by the Buyer will not be effective unless previously authorized, or subsequently accepted, in writing by the Supplier. In the event of cessation of the supply of Products to be made to the Buyer's specifications, the Buyer undertakes to purchase all Products expressly procured by the Supplier to ensure the fulfillment of individual orders by the Buyer or to meet ongoing supply obligations that may be agreed with the Buyer.
Intermediaries and agents do not have the power to bind the Supplier towards 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 considered subject to written approval and confirmation by the Supplier.
3. Product prices
Unless otherwise agreed in writing between the parties, the prices indicated by the Supplier in the relevant offer or, in their absence, the prices shown in the price lists provided by the Supplier to the Buyer and in force at the time of completion of the sales contract pursuant to the previous article 2.1 will apply to each purchase order.
Unless otherwise agreed in writing between the parties, the prices of the Supplier's products are intended as "EXW - Ex Works" Castel Guelfo (BO), Incoterms® 2010 CCI, packaging and transport costs, VAT and taxes excluded. Packaging costs will be charged to the Buyer in the invoice based on the Supplier's price list relating to packaging in force from time to time. It is understood that the Supplier will provide for the packaging of the Products using the type of packaging that it deems, at its discretion, most suitable for the type of transport agreed from time to time with the Buyer. 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 constitute the subject of an express written agreement between the Supplier and the Buyer.
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 made according to the formula “EXW – Ex Works” Castel Guelfo (BO) Incoterms® 2010 ICC, with the sole exception that the Supplier will load the Products onto the collection vehicle at the Supplier’s expense but at the Buyer’s risk (“ EXW loaded ”). This formula, as well as all other delivery terms that may be agreed in writing between the parties, refers to the pro tempore current edition of the Incoterms® of the International Chamber of Commerce.
In case of delivery “EXW – Ex Works” Castel Guelfo (BO) Incoterms® 2010 CCI, the Supplier will not stipulate any shipping or transport contract with respect to the Products to be delivered, unless expressly requested in writing by the Buyer and at the Buyer’s risk and expense, and the shipping or transport costs incurred by the Supplier will be charged to the Buyer in the invoice in addition to the agreed prices. If, according to the agreements between the parties, the Products must be delivered to the warehouses of the Supplier or another Berardi Group Company (hereinafter defined in Article 11.2), the Supplier will inform the Buyer of the availability of the Products for collection and, subsequently, issue the relevant invoice. If the Buyer fails to collect the Products within and no later than 5 (five) working days from the date on which he became aware of their availability, the Supplier reserves the right to charge the Buyer for the storage and warehouse costs incurred by the Supplier starting from said term of 5 (five) working days and up to the day of actual collection. The payment terms applicable under the following article 6 will remain binding for the Buyer even if the latter fails to collect the Products in a timely manner. Where payment is expected to be deferred with respect to delivery, the payment terms will in any case start to run from the date of notification that the goods are ready or, only in the absence of this, from the agreed delivery date.
Ownership of the Products will pass to the Buyer upon delivery, in accordance with the agreed IncotermsÒ ICC delivery term.
5. Delivery times - Acceptance of delivery
The Products will be delivered 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 term will in any case start to run from the 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 made to the Buyer's technical specifications, from the receipt by the Supplier of all the definitive technical specifications, drawings and technical data requested by the Supplier and/or necessary to be provided by the Buyer, for the relative production and supply of the Products. The delivery terms may not in any case 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, he must declare this to the Supplier in advance and in writing. In any case, a quantitative tolerance is permitted as provided for by the currently valid edition of the UNI 3740 standard, part 9.
6. Payments
Payments must be made by the Buyer according to the methods indicated by the Supplier in the offer, in the order confirmation and/or in the invoice, from time to time, sent by the Supplier to the Buyer.
Failure, delay or partial payment, upon maturity, of an invoice or debit note of the Supplier, the occurrence of events that negatively impact the financial or economic situation of the Buyer and any other fact constituting a breach by the Buyer, will result in the Buyer losing the terms agreed for the payment of the Products. The Supplier will therefore have the right to act immediately for the recovery of existing credits, even if they are not liquid and collectible, and this at any time, without any obligation to give notice and/or formality. Any dispute or complaint by the Buyer for defects or faults in the Products may not, in any case, give the Buyer the right to suspend or delay payments.
In the cases referred to in the previous article 6.2, the Supplier shall also have the right, at its sole discretion, without thereby incurring any liability for damages, to i) not proceed with the execution of the order, ii) suspend and/or refuse delivery of Products ordered and not yet delivered, even if they concern Products not related to the missed or delayed payment in question, until full payment of the amount due by the Buyer, iii) revoke or reduce the value of any credit line offered to the Buyer and/or iv) request payment guarantees and/or different terms or methods of payment from the Buyer, both for supplies still in progress and for subsequent ones.
7. Contractual guarantee
The Supplier guarantees the absence of faults and defects in relation to the materials or manufacturing of the Products as well as the conformity of the Products to 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 at the time . It is understood that, where the Product in question is not covered by this standard, the Acceptable Quality Level is intended to be established at AQL 2.5 pursuant to said UNI EN ISO 3269 standard for each characteristic of the Product itself. This guarantee 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 delivery of the Products to the Buyer, according to the agreed IncotermsÒ ICC delivery term.
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 recognizes 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, without this entailing any liability on the part of the Supplier for direct, indirect or consequential damages of any kind, loss of profit or losses deriving from and/or connected to the defects or faults of the Products.
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 replaces any other written, oral or implicit warranty which, by accepting these General Conditions, the Buyer declares to expressly waive (including any right of recourse deriving from the possible installation of the Products in consumer goods).
The Supplier shall not be liable for any faults, defects or lack of quality of the Products resulting from i) faults and defects or shortages of raw materials and materials or components supplied by the Buyer and/or procured by the Supplier on the instructions of the latter, ii) incorrect assembly or installation of the Products, iii) improper use of the Products by the Buyer, iv) repairs, tampering or modifications made to the Products without the prior written consent of the Supplier, v) negligence or incompetence of the Buyer and/or of the Buyer's customers or vi) normal wear and tear, poor or insufficient conservation 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 early, with immediate effect, each sales contract concluded on the basis of these General Conditions, by registered letter with acknowledgement of receipt, addressed to the Buyer, in the event of a breach by the Buyer of any obligation arising from these General Conditions, where such breach is not remedied or remedied by the Buyer, to the satisfaction of the Supplier, within and no later than 15 (fifteen) days following the Supplier's written formal notice to comply.
9. Know-how and confidential information
The Supplier's know-how and other confidential information belong exclusively to the Supplier (even if the Supplier has access to them because they were provided to it by third parties) and are made available to the Buyer on a strictly confidential basis for the sole purpose of the sales contract concluded in accordance with these General Conditions. The Buyer therefore assumes the obligation to use the Supplier's confidential information only to the extent strictly necessary for the execution of each sales contract and the use of the related Products and not to disclose said 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 the sale of the Products (which are and will remain the exclusive property of the Supplier and/or another Company of the Berardi Group, hereinafter defined in Article 11.2), or similar or confusingly similar terms or expressions.
The Supplier shall not be liable for any inconvenience, loss, damage or other expense of any nature whatsoever, whether direct or indirect, which the Buyer may suffer as a result of the Supplier's infringement of third party intellectual property rights, except where it is demonstrated that the Supplier was aware that the goods in question had been manufactured, produced or distributed in violation of a pre-existing third party intellectual property right.
If the Supplier manufactures Products in accordance with the instructions provided by the Buyer, or if the Supplier applies any procedure to the Products on the instructions of the Buyer, the Buyer shall be required to compensate the Supplier for any loss, damage, cost and expense that the latter is required to suffer or sustain 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 failure to perform caused by events beyond the reasonable control of the Supplier such as, by way of example and not limited to, industrial action, strikes, difficulties in transport, natural events, wars, public disturbances, administrative measures of seizure, embargo, laws or regulations of any territorial body or administrative authority, failure or delay in delivery of processing materials by suppliers due to events beyond the reasonable control of the suppliers themselves.
The Supplier's warranties and responsibilities, arising from and in relation to the contracts concluded on the basis of these General Conditions, are limited to those expressly provided for herein. Except in cases of willful misconduct and gross negligence of the Supplier, the latter shall therefore have no other liability in relation to the Products and in no event shall it be liable for direct, indirect or consequential damages, loss of profit, direct or indirect losses of any kind (including personal injury and damage to property) arising from the purchase of the Products. The Buyer acknowledges that the overall liability of Berardi Bullonerie Srl and of the companies controlled by it, directly or indirectly (the " Berardi Group Companies "), arising from and/or relating to the contracts concluded on the basis of these General 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 stipulated by the Berardi Group Companies.
12. Processing of Personal Data
Where the Supplier has its registered office in a European Union country, the provisions of the law on the protection of personal data will apply. To this end, the Buyer acknowledges that he is informed, pursuant to, for the purposes and for the purposes of art. 13 and art. 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, including during pre-contractual information, will be processed by the Supplier; furthermore, it is understood that the Buyer expressly consents to the processing of “personal data” by availing himself of his rights as expressed in art. 7 GDPR
13. Applicable law - Competent court - Language
These General Conditions and the sales contracts to which the Supplier is a party are governed in all their parts by Italian law and, in particular, where they concern contracts for the international sale of movable goods as defined by art. 1 of the Vienna Convention of 1980, by said Convention, unless derogated in writing by the parties.
The Court of Bologna, Italy, shall have exclusive jurisdiction over all disputes arising from and/or relating to these General Conditions and the sales of Products by the Supplier. Without prejudice to the foregoing, the Supplier may, however, sue the Buyer before any Court having jurisdiction over the Buyer.
These General Conditions of Supply are drawn up in Italian, English, French, Spanish, German and Polish. In the event of doubts of interpretation, the Italian version shall prevail.