General sales terms and conditions of Chimiver Panseri S.p.A.

Application

These Terms and Conditions (“T&C”) apply to all the sales between CHIMIVER PANSERI S.p.A. (“Seller”) and whomever submits the Seller a Purchase Order (“Customer”). These T&C shall be the sole and only to govern the sale agreement and shall form its integral part thereof. Under these T&C a “Purchase Order” (“PO”) is any request to supply Products (either existing or yet to be produced) submitted, in whichever form (also indirectly), to the Seller so long as it contains at least one of the following Product specs: type, quantity or requested delivery date.

Efficacy

The latest version of the T&C as updated and available on www.chimiver.com supersede any and all prior oral or written agreement or understanding over sales between Seller and Customer, including all prior versions of the T&C, except in the case where a Contract has been already concluded as per art. 5 below.

Updates

Seller has the right to update/amend the T&C with no obligation to inform Customer thereof, except in the case where a Contract has been already concluded as per art. 5 below.

Variation

Any amendments or variations to the T&C shall have no validity unless previously agreed in writings with the Seller.

Formation of the contract

The Contract shall be considered as concluded when a PO is accepted by Seller. Cancellation or amendment by Customer of any PO accepted by Seller shall only be valid if submitted by Customer within 48 hours of such acceptance.

Sale terms and amendment there of

Prices, quantity and other Product characteristics are those confirmed by Seller upon acceptance, as communicated directly or indirectly, by e-mail, fax or post. Any subsequent amendment shall be agreed in writing with Seller. It is specified that delivery dates are always indicatives and thus subject to modifications. All prices, unless otherwise specified, are in Euros and do not include any present and future duties or taxes which could possibly be levied on Products. Relevant applicable tax rates shall be those in force at the time of shipment. The place of payment, independently from the delivery place of Products and documents, shall be Seller’s administrative offices in Pontida (BG) – Via Bergamo 1401.

Payment terms and non payment

Payment terms are indicated on invoices. In any case of late payment, even if partial, Seller shall be entitled to: A.Charge interests and debt collection expenses, including legal/judicial expenses, up to the settlement as per D. Lgs. 231/02 (Dir. 2000/3/CE) as amended and revised from time to time, solong as the amendment/revision is in favour of Seller (e.g. Dir. 2011/7/CE); B. Suspend any delivery to Customer; C. Demand the return of any and all Products already delivered and not paid (see art. 11); D. Terminate the Contract – as well as any other Contract existing between the Parties – by Customer’s default or cause; E. Call into effect the acceleration clause (art. 1186 c.c.), with respect, also, to any other Contract existing between the Parties. Any claim regarding invoice amounts shall be notified by Customer within 8 (eight) days from invoice receipt, otherwise such an invoice shall be considered as definitely accepted. The above mentioned claims as well as the others provided for herein (see art. 17, 18 and 22 below), even when accepted, shall not grant Customer any right to delay, suspend or avoid payment of invoices, not even the ones regarding the Products in dispute: on the contrary instead, Seller shall return what has been paid in excess – in case.

Set Off

In no case Customer shall be allowed to set off any credit whatsoever, including those depending from damage recovery claims, unless the set off has been agreed upon in writings by Seller representative, vested with the necessary powers, powers which the Customer shall previously verify, under penalty of set off nullity.

Products delivery

Delivery terms of each shipment are those indicated on the shipment documents, which shall be interpreted according to the INCOTERMS in force at the time of conclusion of the Contract. Delivery dates shall be from time to time agreed upon with Customer.

Non-collection

Failing the collection of Products by Customer within the agreed terms, Seller shall be allowed to chose whether to consider the Contract as fully/partially terminated, or to invoice and ask for Products payment. In addition, the Seller shall be entitled to invoice the Customer the deposit cost for non-collected Products (at Seller’s, Customer’s or third parties’ premises) plus
any damages and/or expenses. This shall not imply or create any liability (either civil or criminal) for the Seller in relation to Products theft, loss or damage – or any other reason connected with their deposit, as this is solely due to their non collection by the Customer.

Title and products risk of loss

Seller shall retaing ownership of the Products until price (as well as any additional sum due, as the case may be – e.g. interests, legal expenses) has been fully and timely paid by Customer. Until then, Customer shall carefully preserve the Products storing them away from other goods and providing them with insurance coverage against all risks. Without prejudice to the above, Customer since now assigns to the Seller, to guarantee full payment, any credits resulting from use, processing or resale of the Products. Without prejudice to art. 10, any risks (including but not limited to: costs, damages, burdens, expenses, including direct and indirect damages, loss of profit, reputation damages, interests, legal expenses) connected to loss or damage of Products is transferred to Customer upon delivery according to the relevant agreed terms.

Force majeure

Parties shall not be reciprocally liable for shipping/delivery delays, direct/indirect damage, as well as for any total/partial deterioration of Products and in general for any non performance which is caused, directly or indirectly, by any circumstance (either natural and not) beyond Parties’ reasonable control or otherwise unavoidable, including but not limited to: wars, strikes, lockouts, lack of raw materials and/or energy, floods, earthquakes, lightning and other natural circumstances, fire, explosions, accidents. Also, in these cases, Seller shall have no obligation to obtain the Products otherwise, and unless it is differently agreed between the Parties, shall be allowed to terminate immediately, fully or partially, the Contract, or to suspend or to delay the performance thereof, and no compensation whatsoever will be due to Customer, for any reason.

Other termination causes

In addition to Force Majeure and other cases provided for by laws or Contract or these T&C, Seller shall be entitled to terminate, fully or partially, a Contract (concluded or not), should a fact or circumstance occur, which – independently from the place where it occurs – modifies considerably – in Seller’s opinion, as based on market variations of the latest 12 months before the event – the cost of raw materials, the market conditions, the currency value and the industry conditions. In such cases, as well as in all cases of termination or cancellation not depending on Seller’s conduct or fault, Customer shall not be entitled to any indemnity, compensation or refund, and shall, upon request, have to pay for the Products (already manufactured or that are being manufactured) which Seller will indicate as available.

Products quality, samples and warranties

Products quality is solely determined by the Product specifications prepared by Seller (and relevant test methods) acknowledged by Customer and in force at the time of conclusion of the Contract (see art. 5 and 6). Any request to amend any such specification shall be communicated to Seller prior to Seller’s acceptance of PO: notwithstanding the above, the Seller may, at his own sole discretion, accept a request communicated after PO acceptance.

Informations

All information, advices, consulting or documents supplied by Seller and concerning Products characteristics, use, information leaflets and technical dossier et cetera, are the result of the Seller’s best knowledge and accuracy; Seller supplies such information to Customer in good faith for the best performance of Contract, but such information shall never be construed as aguarantee either express or implied. By way of example, without limitations, it shall not be construed as a guarantee by Seller: any kind of information or advice on the directions for use of Products, on fitness for a specific purpose or manufacturing or on examples of finished Product formulation as well as on merchantability of the same. On the contrary, testing on these as well as on other technical aspects (e.g. control and check of Products before their use) are under Customer’s exclusive responsibility, so that Seller may not be liable in any respect.

Compliance with laws

Customer also has the entire responsibility for complying with all enforceable laws applicable to the Products delivered (even when not collected, art. 10) and, especially, those applicable to use, storage, transport and import.

Claims terms and procedures

Claims for Products not corresponding to the Contract terms, shall be notified in writings to Seller within 8 (eight) days from the delivery date of each shipment, under penalty of invalidation. In case of hidden defects, claims shall be notified, in writings to Seller within 8 (eight) days from defect discovery, under penalty of invalidation. In any case, all claims notified after 2 (two) months from delivery of each shipment will not be accepted by default. Customer shall entirely bear the burden of proving, beyond any doubt, both the date of defect discovery and that the defect was hidden. It is in any case understood that:

1. Any use of Products by Customer – with the sole exception of use, in the small, appropriate quantity, for quality analysis upon delivery – thus including manufacturing, cut, treatment, sale and storage (in tanks or other container or in any case not in the original sale packaging) shall mean and be construed as definitive acceptance of the Products, therefore Customer shall no longer be entitled to file any kind of claims in respect of such Products (with the only exception of those for hidden defects).
2. Customer shall lose any right to claims, if it doesn’t immediately cease the manufacturing or use of those Products for which he notified a claim.
3. In no case Customer shall be entitled to return Products to Seller, unless specific prior written authorization to do so has been given by Seller.

Claim notice shall contain all references of the production batch of Products involved, a detailed description of the fact and defect and shall be sent along with a sample of Product and the (documents/packaging) as well with a technical report with the relevant evidence. Claims not containing all the elements described above, and specifically claims that do not allow an exact identification of the Products and the defect, will not be taken into consideration.

Claim acceptance

When a claim, which has been filed in compliance to the rules described above, is accepted by Seller, he may chose, at its own discretion and in full settlement of the matter, to remove the defect when possible or, if not possible, to replace defective Products (supplementary performance) to the same delivery point and according to the same terms of the initial supply, being understood that Customer must return defective Products first. Seller shall be entitled to make 2 (two) supplementary performance attempts: should both the performances show the same defects of the initial supply, Customer shall be only entitled, as an alternative, to ask for a suitable price reduction or to withdraw from that single Contract. It is therefore excluded any right for the Customer to ask for Contract termination and, in any case, damage indemnification and refund of any expenses occurred.

Seller’s liability

With reference to a claim, Seller’s liability towards Customer shall in no case exceed the price of the supply /supplies subject of the claim, with the exclusion of any direct or indirect damage (e.g. loss of profit) whatsoever, including those occurred to Customer or third parties and deriving from a wrongful use of Products subject of the claim. Without prejudice to other clauses in these T&C, any and all Customer rights towards Seller shall lapse after one year from the delivery of Products.

Assignment of contract

The Contract and/or the rights and obligations thereof shall not be assigned by the Customer to third parties unless a prior written consent is given by the Seller.

Acquiescence

Any possible and temporary tolerance of Seller as far as concerns the Customer’s failure to perform one or more obligations under the Contract, as well as a delay or a failure to enforce a right or faculty under the Contract, shall never be construed as a definitive waiver of the corresponding right.

Transport damages

Claims concerning transport damages (e.g. concerning the status of a container, packaging, pallets …) which according to delivery terms are pertaining to Seller, shall be strictly and immediately notified by Customer or by the subject appointed by Customer for the Products collection, by inserting the specific comment on the consignment note, with stamp, signature and date. Within 3 (three) days from insertion of the comment, the claim shall be forwarded to: forwarding agent, shipment company, insurance company (whose name is specified on the insurance certificate that Seller sends to Customer in advance, and which is already at the Customer’s disposal) and to Seller itself. Finally, a complete copy of all papers shall be sent by e-mail to: sales@chimiver.com or by fax to: (+39) 035 795556. Should this procedure not be exactly followed, the claim will not be taken into consideration and Seller will not be liable for any possible damage whatsoever.

Intellectual property rights

Customer acknowledges that names and marks used in connection with the Products are the exclusive property of Seller therefore Customer shall refrain from using or disposing of them in any way, since the Contract is not to be construed as granting any license or authorization.

Confidentiality and secrecy

Customer acknowledges that, due to the relationship with Seller, it could become aware of elements, information, and more in general of any confidential information (“Data”); therefore Customer (including its employees and partners, for whom he shall be hold directly liable) shall treat such Datas as highly confidential as long as the relationship with Seller is in force and for the subsequent 5 (five) years.

Privacy

According to the provisions of D. Lgs. 196/03 on personal data protection Seller hereby informs Customer that any data supplied shall be treated in full compliance with such law and used to perform the Contract; Customer has the rights set forth in art. 7 of D. Lgs. 196/03 (including, for instance, request for updates, amendment or cancellation of data).

Notices

Any notice to Seller under a Contract and these T&C shall be sent, unless where expressly requested differently, to the following:

1. if by email to the address: sales@chimiver.com
2. if by fax to the number: (+39) 035 795556
3. if by post to the address: CHIMIVER PANSERI S.p.A. – Via Bergamo, 1401 – 24030 Pontida (BG)

Applicable law and jurisdiction

These T&C and the Contract are governed by the laws of Italy: especially it is excluded the applicability, to them, of the CISG (United Nations Convention on international sales of goods dated April 11, 1980). For any dispute arising in connection with the Contract, the Courts of Bergamo shall be exclusively and solely competent.

Online selling

For online selling on E-Commerce platforms such as Amazon, Ebay, Alibaba etc. and on the Online Stores owned by the Buyer, the resale of the Seller’s Products will not be permitted unless there are previous written agreements (see also Article 6). Should the Seller find a violation of the aforementioned conditions by the Buyer, he will have the right to request the immediate removal of the Product in question.