1. SCOPE OF APPLICATION
1.1. These General Conditions of Sale (hereinafter, the «Conditions») apply between ITALMADE S.R.L. and all commercial operators, including those not expressly referred to by the Parties.
1.2. Any exceptions will only be valid if countersigned by the Parties.
1.3. The following Conditions are an integral part of contracts for the sale of products entered into by ITALMADE S.R.L., even when the related orders are taken by telephone, verbally, fax, e-mail or the Internet.
2.1. In the context of this agreement, the following terms have the meanings defined below:
- commercial operator: natural or legal persons that, with regard to the contracts or proposed contracts governed by these Conditions, act in the context of their own commercial or professional business, or in the name and on behalf of another commercial operator;
- Seller: ITALMADE S.R.L.;
- Purchaser: any commercial operator that purchases products commercialised by ITALMADE S.R.L.;
- Sale: contract for the transfer of ownership of an item in exchange for the payment of a price;
- Products: goods addressed by the contract and/or sale negotiations that are commercialised at the time of receiving the order;
- B2B: acronym for Business to Business;
- Parties: the Seller and the Purchaser, taken together
3. CONTRACTING PROCESS
3.1. The Purchaser may submit purchasing requests directly to the Seller or via representatives of the latter. The sale is only completed upon issue of the Order Confirmation or Tax Invoice by the Seller. The Purchaser is in all cases bound by the order submitted to the Seller, which therefore becomes irrevocable when sent.
3.2. The Seller expressly reserves the right to evaluate the purchasing requests (or Orders) received from the Purchaser, without any duty to accept them, and to confirm the proposals, or otherwise, within 20 days of their receipt.
3.3. Acceptance of the order by ITALMADE S.R.L. subject to conditions or reservations does not represent confirmation of the order.
3.4. An offer made by ITALMADE S.R.L. is only firm and irrevocable if confirmed as such in writing by the Seller, specifying a time limit for the validity of the clause.
3.5. The contract is completed upon receipt by the Purchaser of the Order Confirmation signed by the Seller, or on issue by the latter of a proper Tax Invoice.
3.6. Even in the case of electronic contracts, the location of contract completion is always the registered office of the Seller.
3.7. Acceptance of the offer by the Purchaser, or confirmation of the order by ITALMADE S.R.L., in whatsoever manner, results in the application of these Conditions to the sales contract, even when acceptance is confirmed simply by executing the contract.
4. DELIVERY TERMS
4.1. ITALMADE S.R.L. delivers the Products on an ex works basis. Upon request, ITALMADE S.R.L. can arrange for Products to be transported at the exclusive risk, cost and expense of the Purchaser.
4.2. Collection must be made by the deadline indicated in the Order, as accepted in the Order Confirmation and expressed in working days, or, if no deadline is indicated in the Order, within 60 days of the first working day subsequent to confirmation of the individual Order concerned. The delivery terms are merely indicative and are not essential, as defined in art. 1457 of the Italian Civil Code, and never include transportation times.
4.3. If the Order must be accompanied by an advance payment, the delivery terms will commence from the moment that advance is collected.
4.4. ITALMADE S.R.L. is not responsible for any delays or delivery failures due to circumstances beyond its control, such as but without limitation: a) inadequate technical data or imprecisions or delays by the Purchaser in providing ITALMADE S.R.L. with the information or data needed for shipment of the Products; b) problems linked to the production or scheduling of the orders; c) total or partial strikes, electricity cuts, natural disasters, measures imposed by the public authorities, transportation difficulties, force majeure events, disorder, terrorist attacks and all other expressions of force majeure; d) delays attributable to the shipping agent.
4.5. Should any of the above events occur, the Purchaser shall not be entitled to compensation for any losses or to indemnities of any kind, except in the case of wilful misconduct or gross negligence by the Seller.
4.6. Within a maximum of 10 days of receiving notification that the goods are ready, the Purchaser must collect the Products ordered or, in the case of delivery to a specified destination, must request their shipment. Failing this, the Products may be stored in the open, with ITALMADE S.R.L. exonerated from any and all liabilities, the lapsing of all warranties and the recharge to the Purchaser of the handling and storage costs incurred by ITALMADE S.R.L. ITALMADE S.R.L. also reserves the right to store the Products at the expense of the Purchaser. Any and all stoppage, storage and waiting expenses will be borne by the Purchaser, even if the Products are sold on a delivered basis and transportation is carried out or arranged by ITALMADE S.R.L.
4.7. On notification that the goods are ready, a proper invoice will always be issued and the payment terms will start to apply.
5. DELIVERY AND SHIPMENT - COMPLAINTS
5.1. Unless agreed otherwise, goods are supplied ex works ITALMADE S.R.L., even when it is agreed that the Seller will make all or part of the shipment arrangements.
5.2. In any case, regardless of the delivery terms agreed between the Parties, all risks are transferred to the Purchaser upon handover to the first carrier, at the latest.
5.3. Any complaints about the condition of the packaging, or the quantity, number and external characteristics of the Products (obvious defects), must be sent to the Seller by registered letter with proof of delivery within 8 days of receiving the Products, otherwise any such complaints will be disregarded.
5.4. Complaints about defects not identifiable by diligent inspection at the time of receipt (hidden defects) must be notified to the Seller within 8 days of their discovery and, in any case, within twelve months of delivery, otherwise any such complaints will be disregarded. This notification must be made in writing, detailing with precision the defective Product, the product code and serial number, the batch number, the delivery date and the nature of the defect.
5.5. In addition, if the goods or their packaging are damaged, or there is a short delivery, the Purchaser must express the necessary reservations to the carrier, in a manner appropriate to the method of transportation utilised.
5.6. The Seller is entitled to examine or cause to be examined the Products for which the Purchaser has identified defects or non-conformities. In that case, the defective Products must be returned to ITALMADE S.R.L., carriage paid, at the Centergross operations centre in Bologna.
5.7. Whether or not reservations have been expressed, the Purchaser must check each garment received within 15 days of delivery, in order to confirm the absence of defects.
Complaints about any defects identified must be notified within 8 days of their discovery and, in any case, within 22 days of delivery, otherwise any such complaints will be disregarded. This notification must be made in writing, detailing with precision the defective Product, the product code and serial number, the batch number, the delivery date and the nature of the defect.
Garments that have been washed or, in any case, worn cannot be returned.
5.8. The Purchaser may not return Products considered faulty and/or defective without prior written authorisation from ITALMADE S.R.L.
5.9. Should ITALMADE S.R.L. determine that the Products actually have defects or non-conformities, the Purchaser shall be entitled without cost, at the sole discretion of ITALMADE S.R.L., to the repair or, alternatively, the replacement of the Products or the components of the Products with defects or non-conformities.
5.10. The agents, customers or intermediaries of ITALMADE S.R.L. are not, under any circumstances, authorised to represent the last mentioned in dealings with the Purchaser or other third parties. Accordingly, any and all communications about faulty or defective Products shall be invalid and ineffective if made to agents, customers or intermediaries of ITALMADE S.R.L.
6.1. The prices of the Products are those stated in the price list of ITALMADE S.R.L. in force when the Order is submitted by the Purchaser or, if the Product is not included in price list, or the price list is unavailable, those stated in the Order and confirmed in writing by ITALMADE S.R.L. upon acceptance of the Order.
6.2. The above-mentioned prices are stated ex works ITALMADE S.R.L., net of VAT and discounts, and include the cost of standard packaging suitable for overland transportation. These prices do not include the costs of special packaging, shipping or transportation from the premises of ITALMADE S.R.L., which are borne solely by the Purchaser. The Purchaser is also responsible for all expenses, levies or taxes relating to the sale of the Products, including the cost of all customs formalities (such as duties, taxes and other official charges payable on the export of the Products from Italy and/or their importation into the country of the Purchaser).
6.3. ITALMADE S.R.L. reserves the right to change unilaterally, without notice and with immediate effect, the prices stated on the price list if the adjustment is caused by circumstances beyond the control of ITALMADE S.R.L. (such as, but without limitation: increase in the price of raw materials and labour, or changes in exchange rates). In all other cases, the changes will be communicated to the Purchaser and will take effect for all Orders received by ITALMADE S.R.L. after thirty days have elapsed from the date the changes were communicated to the Purchaser.
7. PAYMENT TERMS
7.1. Unless otherwise agreed between the Parties, the payment terms specified below in art. 7.2 are applicable.
7.2. If the Parties have agreed deferred terms, payment must be made by bank credit transfer within 30 days of the invoice date, unless specified otherwise. Payment is deemed made when the amount becomes available to the Seller at its bank in Italy. If a payment on deferred terms must be backed by a bank guarantee, at least 30 days prior to the delivery date the Purchaser must make available a demand guarantee, issued in accordance with the ICC Uniform Rules for Demand Guarantees by a leading Italian bank, and payable upon simple confirmation from the Seller that payment was not received by the agreed deadline.
7.3. If the Parties have agreed payment in advance, this presumed to refer to the entire price unless stated otherwise. Unless agreed otherwise, the advance payment must be credited to the account of the Seller upon signature of the Order. The advance will not earn interest and will be returned promptly to the Purchaser if the Order concerned is not confirmed by ITALMADE S.R.L. by the deadline specified in art. 3 above.
7.4. If the Parties have agreed on direct settlement, this must be made by credit transfer - with fixed value date in favour of the beneficiary equal to the due date of payment - to the bank indicated by ITALMADE S.R.L.
7.5. Should payment be delayed with respect to the agreed due date, the Purchaser will be charged late payment interest, commencing from the due date stated on the invoice, at the rate applied by the European Central Bank to its most recent principal refinancing operations, uplifted by eight percentage points. ITALMADE S.R.L. must also be reimbursed for the costs incurred to recover amounts not collected on a timely basis, plus a flat charge of 40 euro as compensation for damages, without prejudice to the recovery of any greater losses that can be demonstrated.
7.6. The Purchaser is not authorised to make any deductions from the agreed price (e.g. in the case of alleged Product defects), without prior written agreement from the Seller.
8. WARRANTY FOR DEFECTS
8.1. The Seller warrants that the Products are in conformity with the quantities and description stated on the Order Confirmation, and are free from manufacturing defects.
8.2. The Seller agrees to remedy any Product non-conformities (faults) attributable to it within twelve months of delivery of the Products to the Purchaser, on condition that those non-conformities were communicated to it on a timely basis, as described in art. 5.
8.3. The Seller is entitled to examine or cause to be examined the Products for which the Purchaser has identified defects or non-conformities. Should the Seller determine that the Products actually have defects or non-conformities, the Purchaser shall be entitled without cost, at the sole discretion of Seller, to either the repair or the replacement of the Products or the components of the Products with defects or non-conformities.
8.4 Except in the case of wilful misconduct or gross negligence by the Seller, the Seller is expressly exonerated from any and all additional contractual or extra-contractual liabilities that may arise from, or in relation to, the supply of Products with defects or non-conformities, including without limitation: liability for direct, indirect or consequential losses, loss of profits, cost of recall campaigns etc.
9. RESERVATION OF TITLE
1. ITALMADE S.R.L. remains the owner of the Products until their price has been paid in full. The Purchaser must carry out all the procedures required by local laws so that this reservation of title clause is valid and enforceable in dealings with all third parties, including by keeping a specific register if required by local legislation.
2. If the price agreed is not paid, in whole or in part, by the established deadline for whatsoever reason, ITALMADE S.R.L. is entitled, without any formalities, to retake physical possession of the Products at the sole expense, risk and hazard of the Purchaser. In that case, the Purchaser agrees, in particular, to participate actively in taking a physical inventory of the Products concerned.
3. The Purchaser agrees to inform its partners about this reservation of title clause.
4. ITALMADE S.R.L. may retake physical possession of any unpaid products held by third-party purchasers, or demand direct payment of the price from the latter. If the products have been sold to third parties in good faith, the right of recourse of ITALMADE S.R.L. will be exercised primarily with reference to the price collected by the Purchaser. If the Products are incorporated into other products, the rights of ITALMADE S.R.L. will be exercised in relation to both the Purchaser and any third-party purchasers in proportion to the value that the Products contribute to such other products.
5. In all cases, the Products may be not seized or pledged, and their ownership may not be transferred to third parties for guarantee purposes.
6. The above provisions do not prevent the transfer of all risks to the Purchaser upon delivery of the Products.
7. The Purchaser agrees to take all necessary steps to look after and store the Products and, in particular, to arrange adequate insurance cover without, however, this limiting its liability in any way.
8. In the case of international sales, the Purchaser must, where necessary, complete at its sole expense all the formalities required in the destination country for the application of this reservation of title clause to the Products concerned.
10. INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS
10.1 The Purchaser must not register or sell the trademark of ITALMADE S.R.L., or any of the distinctive signs of ITALMADE S.R.L., or use the trademark or other distinctive signs of ITALMADE S.R.L., or other trademarks, names or similar expressions, in order to register Internet domain names and/or create websites or home pages, not even for the purpose of promoting and reselling the Products.
10.2 The Purchaser recognises the ownership rights of ITALMADE S.R.L., whether or not registered or patented, or protected pursuant to art. 2598 of the Italian Civil Code, and must keep secret and confidential all information about the latter and the know-how and show-how used by ITALMADE S.R.L. or by the brands it represents: consequently, the Purchaser may not file or register as its own or for third parties, any industrial and intellectual property rights, tangible and/or intangible assets, inventions or technical solutions developed by ITALMADE S.R.L.
11. NO RESALE TO OTHER COMMERCIAL OPERATORS
11.1. The Purchaser may only sell the Products acquired from ITALMADE S.R.L. to end consumers.
11.2. Without prior written authorisation from ITALMADE S.R.L., the Purchaser may not sell the products acquired from ITALMADE S.R.L. via its own Internet channels, but only through the sales outlet in which its activities are based, as indicated on the Tax Invoice.
11.3. The Purchaser waives its right to resell the Products acquired from ITALMADE S.R.L. to other commercial operators.
11.2. At the end of each season, the Purchaser is entitled to sell the Products still held in inventory as “prior-season stock” to other commercial operators.
12. PENALTY CLAUSE
12.1. If a firm order and/or a confirmed order is cancelled and/or the Products are not collected, the Purchaser must pay a penalty of 20% (twenty percent) of the contractual price of the Products cancelled and/or not collected, without prejudice to the right of ITALMADE S.R.L. to claim compensation for any additional losses and/or seek a cease-and-desist order.
13. EXPRESS TERMINATION CLAUSE
13.1. Pursuant and consequent to art. 1456 of the Italian Civil Code, ITALMADE S.R.L. is entitled to terminate the contract for each individual sale by sending a simple written communication to the Purchaser should the latter fail to satisfy any of its obligations, as set out above.
14.1 Unless expressly agreed in writing, it is not possible to offset any amounts receivable by the Purchaser from ITALMADE S.R.L. against the amounts payable to the latter by the Purchaser for whatsoever reason deriving from and/or related and/or consequent to the sales contract.
15. CHANGES IN THE FINANCIAL STATUS OF THE PURCHASER
15.1 Pursuant to art. 1461 of the Italian Civil Code, ITALMADE S.R.L. is entitled to suspend the fulfilment of its obligations deriving from the sale of the Products should changes in the financial status of the Purchaser give rise to a serious risk that the related consideration might not be collected, unless adequate guarantees have been given.
16. APPLICABLE LAW AND JURISDICTION
16.1. These Conditions and the individual sales contracts between ITALMADE S.R.L. and the Purchaser are governed by Italian law, with the exclusion of the 1980 Vienna Convention on Contracts for the International Sale of Goods.
16.2. All disputes regarding the interpretation, execution, breach or termination of these Conditions, or that are linked to them in any way, are subject to the sole jurisdiction Italian Court, even when different actions are consolidated.
17. FINAL CLAUSES
17.1. These Conditions represent the sole agreement between the Parties regarding the sale of the Products and may not be amended or supplemented without their written consent.
17.2. Should certain clauses contained in these Conditions be void, in whole or in part, the related effects will not extend to any other contractual clauses; the Parties will arrange to replace, if and to the extent possible, the void clauses with other valid agreements of an equivalent or similar nature.
17.3. Should ITALMADE S.R.L. omit to take legal action or to exercise a right arising pursuant to these Conditions, such consenting conduct shall not be interpreted as a definitive waiver of the right to take that legal action or exercise that right in future.
17.4. The sale of Products by ITALMADE S.R.L. to the Purchaser does not grant the latter any exclusive territorial rights or enable it to become a distributor or dealer of ITALMADE S.R.L.
17.5. All communications from the Purchaser to ITALMADE S.R.L. regarding these Conditions must be made to the following certified e-mail address. email@example.com The above communications will take effect upon receipt by their recipients.