General conditions of sale
This confirmation of order is subject to the conditions of the contract with the CUSTOMER. Alternatively, or if there is no contract that covers this order confirmation, the following CONDITIONS shall apply:
These general conditions apply to all offers, sales, deliveries, contracts and all related services provided by GUZMAN POLYMERS SRL, referred to hereinafter as the SELLER, conducted and / or concluded with the other part, hereinafter called the BUYER. These general conditions also apply to all (legal) acts described above when the SELLER calls upon a subsidiary, a company that is part of the group or a third party; in this case the subsidiary, the company that is part of the group or the third party involved for the purposes of the application of these general conditions will also be considered as “SELLER”, and the subsidiary, the company that is part of the group or the third party involved may directly assert its status as SELLER to the BUYER.
2. OFFER and ACCEPTANCE
2.1 Information about prices, quantities available or delivery times that the SELLER sends shall be treated as a mere invitation to the BUYER to place orders and, consequently, offers are subject to acceptance by the SELLER. Orders in response to the sending of such information or the acceptance thereof shall not give rise to a contract, which means that this will only be considered as such when any of the following circumstances occurs:
a) Acceptance by the SELLER (order confirmation),
b) Start of the production of Goods, where this are being manufactured specially for said order.
c) Issuance of the Goods.
2.2 These Conditions are the only ones under which the SELLER contracts and will be incorporated in the Contract with the exclusion of any other term or condition, including those set forth or referred to in the order of the BUYER and other Contract Documents.
2.3 These Conditions may be amended only with the consent of the SELLER in the form of a signed document that will be forwarded to the BUYER.
2.4 In addition to these Conditions, the technical specifications and relative internal commercial terms of the SELLER shall apply, when referring to, amongst others, transport, minimum orders or packaging, and that the BUYER may request at any time from the SELLER. Therefore, these terms and specifications are part of these Conditions.
3.1 Prices exclude any tax or duty relative to the sale of the Goods. These taxes and duties will be added to the price and will be paid by the BUYER.
3.2 Prices indicated in the quotations, estimates, or other documents issued by the SELLER prior to acceptance of the order are not binding for the SELLER. The final price will be that applicable on the date of order acceptance.
3.3 The price calculation will be based on prices which are applicable on the date of delivery. If the price varies due to changes in supply conditions, additional costs relating to the goods or variations in international prices of raw materials, the BUYER may terminate the contract of sale within the 5 days following the written notice of this change in price. This right of withdrawal does not apply when the price increases are due to an increase in tax on sales volume, transportation rates and tariffs.
3.4 To calculate the price of goods charged by weight or volume, it will apply to the weight or volume at the time of shipment.
4.1 The SELLER shall provide, whenever possible, the total quantity agreed on the order. The BUYER declares its acceptance on receiving partial deliveries.
4.2 The SELLER commits to make an effort to comply with the agreed delivery deadlines that were set verbally or in writing. Failure by the SELLER to meet delivery deadlines only entitles the BUYER to terminate the contract in the case that the delivery has not been made within a reasonable time extension. The delivery terms indicated in the Order are not substantial terms under art. 1457 of the Italian civil code, but mere estimations of the SELLER based upon the Products’ and vessels’ availability on quotation date and exclude the customs time-consumption.
4.3 BUYER’s rights on compensation for damages are excluded. The SELLER is not obliged to maintain the delivery deadlines when the BUYER is late in fulfilling its contractual obligations or when he subsequently makes changes with respect to the initial order.
4.4 Force Majeure: In all force majeure cases, in particular if there are unforeseen events in the manufacturing or distribution as a result of delayed supplies, boycott, lock-out or strike, either in the factory or in supply or transportation companies, as well as in cases of war or mobilization, the SELLER shall be relieved of the delivery obligations without the BUYER having the right to terminate the contract and without being able to demand compensation.
5. TRANSFER OF RISK
5.1 The transfer of the risk of damage or loss of goods to the BUYER will occur in accordance with the INCOTERMS specified in the Contract/Order, and in its absence, in accordance with the clause EXW – EX WORKS (INCOTERMS 2010).
6.1 Payments should be made according to the conditions that the SELLER stipulates in the order confirmation.
6.2 Expenses related to payments, such as bank fees on the payment of invoices or expenses incurred by the submission of shipping documents, will be payable by BUYER.
6.3 When payment is carried out via documentary credit, this is governed by the Uniform Customs and Practices for Documentary Credits in force in the International Chamber of Commerce.
6.4 The payment will not be considered paid until the corresponding amount is paid into the SELLER’S bank account. Payment of the price will be paid in full, partial payments will not be admitted except with express prior consent of SELLER.
6.5 All deliveries are subject to approval by the SELLER’s Risk Department.
6.6 The BUYER may only make an offset of expenses when the SELLER acknowledges the credit held by the BUYER against that or when the origin of said credit can be easily recognized.
6.7 The SELLER shall be entitled to opt for forced fulfillment of the Contract, or its termination if the BUYER is in any of the following situations:
a) Failure in its payment obligations or any other obligation under the Contract, or in any other contract held with SELLER.
b) It is in bankruptcy, liquidation or other insolvency.
c) Has no ability to pay its debts.
d) There is a writ of execution, enforcement or seizure of their property.
7. LATE PAYMENT
7.1 In case of non-compliance with the payment term, the BUYER will be automatically in default and the SELLER may require the BUYER to pay interest as established by the Italian D.lgs 231/2002.
7.2 In the event of late payment, the SELLER is entitled to demand payment in advance on future orders, or delivery of a bank or other guarantee, for the same amount that is acceptable to him or opening a letter of confirmed and irrevocable credit, as well as to withhold supplies not yet sent.
7.3 The SELLER has the right to terminate or suspend the Agreement and/or request further guarantees should any event or circumstance occur that reasonably lead to believe that the ability of the BUYER to execute the payment and the obligations undertaken with the Agreement is compromised.
8. RESERVE OF PROPERTY RIGHT
8.1 Without prejudice to delivery and the transfer of risks to the BUYER, supplies remain the property of the SELLER until payment is made at the purchase price and all accessory claims, including the withdrawal of bills of exchange and cashing of cheques accepted as payment. If the possibility of retention of ownership does not exist in the country of the BUYER, the SELLER is entitled to enforce all other possible rights on their products.
8.2 Pending the transfer of ownership to the BUYER:
a) The SELLER may require the BUYER to return the goods and thus recovers possession and can resell them.
b) The products cannot be pawned, assigned as guarantee, or charged in any way with the rights of third parties, but can only be sold in the ordinary course of business.
c) The maintenance costs of the products delivered should be paid by the BUYER and the products should also be insured sufficiently against loss by theft, fire, water, etc. and evidence provided of such insurance if the SELLER requests it.
d) The BUYER cedes to the SELLER all claims against the insurer.
9. WARRANTIES AND LIABILITY
9.1 The SELLER shall deliver goods in the quantity and quality complying with the order confirmation, and packaging should also be in accordance.
9.2 The SELLER warrants that the Goods:
a) Are suitable to be marketed.
b) Are free of charges and rights of third parties.
9.3 The BUYER shall inspect the Goods immediately upon arrival at the agreed destination, in order to determine:
a) If they have been damaged in transit.
b) If they are of the quality, quantity and weight specified in the delivery note.
9.4 The damage to the Goods in transit must be recorded in the carrier’s delivery note.
9.5 If a defect is found, the Goods will not be processed, and the BUYER will store the Goods in their original packaging, making them available for reviewal by the SELLER. Otherwise, the BUYER loses his right to claim for the defect.
9.6 The BUYER must submit a written claim for any defects in the goods within 7 (seven) days of delivery, indicating the type of imperfection.
9.7 Upon receipt of the notification referred to in the previous condition, the SELLER may either:
a) Repair the defect.
b) Provide replacement product.
c) Reduce the cost in proportion to the defect of the Goods.
In any of the above assumptions, the SELLER shall bear the cost of transporting the Goods or replacement product but no other expense, such as removal, installation or processing.
9.8 The complaint for defects of the Products shall follow art. 1495 of the Italian Civil Code; the BUYER’s guarantee right will be extinguished also if the complaint is not delivered by means of registered letter with return receipt and does not provide the products identification numbers, the packaging numbers and the photographic evidence of the defective Products. The term for the notification of the visible defects runs from the day on which the Products have been delivered according to the Order.
9.9 Any Products turned-in without previous written authorization of the SELLER will not be accepted.
9.10 Notwithstanding the foregoing, SELLER shall have the right to investigate the claim, and demand from the BUYER any evidence that it considers necessary. If as a result of the investigation if can be established that the notified defect does not exist or that it is not the responsibility of the SELLER, the latter shall be entitled to be reimbursed by the BUYER for the costs incurred for the claim.
10. LIMITATION OF LIABILITY
10.1 The SELLER’s liability arising from the sales contract, including liability for non-¬ delivery or late delivery or defects in the goods supplied, shall be limited to the net invoice value of the goods concerned. If the SELLER was insured for the responsibility in question, the SELLER’s liability is also limited to the amount paid by the insurer. The SELLER is not liable for damages in respect to which the BUYER is insured.
10.2 The SELLER is not liable for damages that the BUYER may suffer as a result of the acts and omissions of the BUYER, its employees and representatives regarding the Contract or the Goods.
10.3 The SELLER is not liable for indirect damages of any kind or lost profits that the BUYER may suffer as a result of the acts and omissions of the latter, its employees and representatives regarding the Contract or the Goods.
The rights of SELLER in connection with the Contract shall not be deemed waived by the granting of deferrals or by the failure to exercise the shares derived from them.
If any Condition of this document results as being null or void in whole or part, by virtue of the law as applicable, it will be omitted without affecting the validity of the rest of the document.
Notices that must be made to the SELLER shall be made to the address which appears in the Acceptance of the order, or at that which is later indicated to the BUYER. Notices to be made to the BUYER, will be in its last known address. Notices can be sent by post, fax or e-mail.
14. DISTINCTIVE SIGNS
The brands and distinctive signs of the SELLER, can only be used by the BUYER in the separate terms agreed.
15. DATA PROTECTION
In accordance with the General Data Protection Regulation (GDPR) (EU) 2016/679 and the Italian regulation on personal data privacy, GUZMAN POLYMERS SRL will manage the information provided by the BUYER in the context of the commercial relation and for the contract execution. The personal data provided by the BUYER will be retained during the years that the commercial relation exists, or the necessary retention periods required by any fiscal or legal applicable regulation. The referred data will not be transferred to third parties except for any required legal obligation. The owner of the data provided by the BUYER will be entitled to obtain a confirmation from GUZMAN POLYMERS SRL on the data usage, will have the right to access said data, to request rectifications of any inaccuracy and the right of erasure of the data when no longer necessary for the legitimate interest that was stored. The referred rights can be requested in writing to the postal address of GUZMAN POLYMERS SRL – Via Francia, 6 – 31033 CASTELFRANCO VENETO (TV) – ITALY.
16. JURISDICTION AND APPLICABLE LAW
16.1 These conditions are governed by Italian Law.
16.2 Any dispute arising out between the Parties relating to the validity, enforceability, construction, execution or termination of these conditions, or to any extent connected to them, shall be submitted to the exclusive jurisdiction of the competent Court in Treviso.
16.3 The United Nations Convention on Contracts for the International Sale of Goods, signed in Vienna on 11 April,1980, will not apply nor will not apply any other which substitutes it.
17. OTHER PROVISIONS
The SELLER does not recognize other commercial conditions. BUYER expressly disclaims the enforcement of its own commercial conditions.