1.1 In addition to the terms and expressions defined elsewhere in these General Terms of Sale, the terms and expressions listed below – starting with a capital letter – shall have the meaning conventionally ascribed to them or specified in this art. 1.1:
– “Buyer”: refers to the natural or legal person from which the Seller receives the order;
– “Contract”: refers to the Buyer’s purchase order accepted by the Seller, comprehensive of the General Terms of Sale;
– “EXW”: (also known as Ex Works – Franco Fabbrica) refers to the relevant rights and obligations of Buyer and Seller provided for in the Incoterms® 2020 of the International Chamber of Commerce of Paris;
– “Parties”: refers to the Buyer and the Seller jointly;
– “Products”: refers to the products of the Seller resulting from the price list and sales catalogues year by year in force;
– “Seller”: refers to GRAFOS STEEL S.r.l., con sede legale in 41043 Formigine (MO) Via Treves 19/21, Italy.
1.2 The terms and conditions set out below (the “General Terms of Sale”) shall form part of all the agreements entered into between the Seller and the Buyer for the sale of the Products, and they shall prevail over every general term of the Buyer, unless expressly accepted upon in writing by the Seller.
1.3 The Seller shall reserve the right to modify, supplement or amend the General Terms of Sale, by indication of such variations in the offers or any other written communication to the Buyer. If the Buyer does not accept the modifications, supplements, or amendments of the General Terms of Sale within 15 days from the date of communication, the previous General Terms of Sale shall apply, without prejudice to the Seller’s right to terminate the Contract entered into with the Buyer, if any, within 30 days thereafter.
2 – Offers and Orders
2.1 The offer to the Buyer made and/or the order to the Seller sent by agents, brokers or other intermediaries shall not be binding upon the Seller until the order of the Buyer is accepted by the Seller according to art. 2.2 of the General Terms of Sale.
2.2 No order submitted by the Buyer shall be deemed to be accepted unless and until confirmed in writing by the Seller. If an order is not confirmed in writing by the Seller, the issuance by the Seller of the relevant invoice or the performance by the Seller shall be deemed to be an acceptance of the order.
2.3 These general conditions are set out on the website www.grafossteel.it and are an integral part of any order confirmation, in which they are expressly referred to. The order processed in compliance with the confirmation sent to the Buyer by the Seller presupposes, even in the absence of subscription, knowledge, and acceptance of these general conditions.
3 – Terms of Delivery
3.1 The delivery of the Products shall be EXW, unless otherwise agreed between the parties. The Seller shall deliver the Products by making them available to the Buyer according to the terms and at the place as specified in the Contract (the “Delivery”). Upon Delivery, the Seller shall only assume the obligation to load the Products on the load vehicle, any other obligation being excluded.
In case of any written agreement of essential time for delivery, Grafos Steel S.r.l. shall not be held responsible for any delays resulting from force majeure or unforeseen and extraordinary events (i.e., casualties, strikes, natural disasters, interruption of transport, difficulties in finding raw materials, objective impossibility of production facilities, etc.) Unless otherwise agreed by the parties, the transport of the goods is always at the expense of the customer, regardless of the mode of transport and payment. Even if the Seller provides, as a courtesy, to organize the transport directly on behalf of the customer, the risk will be borne by the latter, with express discharge of all liability for Grafos Steel S.r.l., unless otherwise agreed in writing.
3.2 The Seller shall not be liable for any loss or damage to the Products after Delivery to the Buyer; under no circumstances shall the Buyer be released from its obligation to pay the price of the Products upon the Delivery.
3.3 Without prejudice to the remedies set forth under art. 9, if the Buyer does not fulfil the obligation to pay the price of the Products, the Seller shall be entitled to suspend the Delivery.
3.4 All the deadlines in connection with Products’ delivery and return – although defined as imperative – shall be considered as merely indicative, and binding on the Seller within the normal tolerance range. The Delivery terms – even though indicative – are only, and exclusively, those specified in the order confirmation of the Seller.
3.5 The Buyer may cancel/modify/complete his order within a maximum period of 7 days from receipt of the order confirmation by the Seller; the corresponding notice must be sent by PEC.
3.6 The Buyer may not cancel its order, nor withdraw from the Contract, in case of delayed Delivery dependent on force majeure events, pursuant to art. 6, if the delay in Delivery does not exceed 180 days.
3.7 The Seller may withdraw from the Contract by written communication to the Buyer in the case of force majeure events referred to in art. 6.
3.8 In case the Delivery does not take place for any reason related to the Buyer, upon simple communication to the Buyer that the Products are at its disposal, the Delivery is considered performed for all purposes (including to the effect of the terms of payment and the issuance of the invoice). After 15 days from the communication warehouse, expenses are applied, and the Seller is relieved from any responsibility for destruction, damage, or loss of value of the Products.
3.9 In case of non-delivery of the Products at the place of destination indicated in the transport document, or in case the Products are delivered in a place other than that indicated in the transport document, the Buyer undertakes to inform the Seller within 120 hours after the scheduled date for delivery at the place of destination through registered letter with return receipt also containing the copy of the signed transport document. Following the receipt of the communication including the documentation, the Seller provides to the regularization of invoices issued charging VAT according to Italian Presidential Decree no. 600/1973. The Buyer shall indemnify the Seller for any taxes, surcharges, interest, and penalties of any kind – as well as legal expenses – should any amounts be charged by tax authorities because of failure to provide such notification in writing or, however, the delivery of Products at the place of destination other than that indicated in the transport document. The Buyer, having acknowledged the notice that the Seller requires the carrier to sign, undertakes to communicate to the carrier any change or modification of the destination of the Products. In case the Buyer fails to comply with the aforementioned obligation, the Seller shall charge the Buyer for any taxes, surcharges, interest and penalties of any kind – as well as legal expenses – should any amounts be charged by tax authorities as a result of said failure.
3.10 Except in cases of willful misconduct or gross negligence, the Seller shall not be liable in any way for damages arising from late Delivery or non-Delivery (total or partial) of Products.
3.11 Unless otherwise agreed, the products will be delivered properly packaged according to the provisions of the law; it is the responsibility of the Buyer to request different packaging in accordance with specific regulations, the costs and charges relating to changes in packaging are entirely borne by the buyer.
In the case of shipments to Germany by the Seller, the Buyer declares that he has registered with the Lucid system on …. (Protocol No. …. …; disposal contract No. …) and, about all orders in progress with Grafos Steel and future orders, declares that it undertakes to carry out all formalities and communications required by the Verpackungsgesetz (Packaging Act), obliging itself hold the Seller harmless and indemnify the Seller from any liability that may result for omission or incorrect declaration and/or communication.
4 – Prices and Terms of Payment
4.1 The prices of the Products indicated in the price list year by year are EXW; therefore, any other charges or expenses related to shipping, delivery and / or transport of the Products are the sole responsibility of the Buyer. The Seller is entitled to amend the price list at the time of sending the order confirmation, or during the procurement of raw materials, giving written notice to the buyer. The funding necessary to deal with any Buyer’s charges and expenses is anticipated by the latter to the Seller; by way of example only, such expenses and charges comprise costs of additional packaging, shipping cost, accessories, tax charges, stamp duties, customs fees, and any additional charges not including the prices. The prices of the Products may be subject to corrections due to printing errors.
4.2 Prices of the Products are exclusive of VAT at the rate applicable by law, to be paid in accordance with the invoice.
4.3 Should an increase in the cost of raw materials, energy, labour, fuel, production costs, transport costs, etc. occur between the date of the order and the date of delivery, the Seller would be entitled to increase the agreed price by notifying the Buyer in writing, also by e-mail. However, if such price exceeds more than 20% the price agreed upon at the time of the order, the Buyer may withdraw from the contract with a notice to the Seller by registered letter within 10 days from receipt of the notice of the price increase. Failing this, the new price shall be deemed accepted.
4.4 In addition to other remedies provided by law and / or the Contract, the Seller shall apply default interest on late payments in accordance with the provisions of Legislative Decree n. 231 of 2002.
5 – Terms of Warranty
5.1 The Seller warrants that the Products are free from defects and flaws for a period of 12 months from Delivery, provided that they have been notified to him in a timely manner in accordance with art. 5.2 below.
Any claim shall not entitle the Buyer to suspend or delay, in whole or in part, payment under the terms of the Contract.
The warranty operates within the limits of art. 1495 of the Italian Civil Code, subject to the additional restrictions provided for in this article and the normal tolerances. Any indications of weights, measures, dimensions, colours, shades and other data contained in catalogues, brochures, folders, of the Seller are merely indicative and not binding.
The buyer will proceed with the repair/ replacement of the defective Products. Products repaired/replaced under warranty will be subject to the same warranty for a period of six months from the date of replacement.
5.2 Nothing will be recognized by Grafos Steel for any direct damage to the plants or the finished product of the buyer. This guarantee operates only on condition that: 1) the customer shall notify in writing and within the mandatory period of 8 days from delivery the defects and/or defects of the products if evident and/or evident; 2) the customer must report in writing within the mandatory period of 30 days from the discovery of the defects and/or defects of the products that are hidden or otherwise obvious after their use and in any case not later than one year from delivery; 3) the customer has provided suitable and sufficient “technical specifications” with respect to which the product does not conform, to nothing by noting the final application of the product; 4) the customer has used the product according to the correct indications and technical procedures.
5.3 With the warranty obligation the Seller undertakes to replace/repair the defective and/or defective product within the limits of the Contract and in any case without any additional obligation to compensate for direct and/or indirect and/or consequential damage arising to the Buyer and/or third parties from defects in the Products, subject to mandatory legal provisions. In any event, the Parties acknowledge that the Seller’s overall liability to the Buyer is limited to the price paid by the Buyer for the Products that have given rise to any liability of the Seller.
5.4 It is understood that the aforementioned warranty is absorbing and substitutes for the guarantees or liabilities provided by law and excludes any other liability of the Seller (both contractual and non-contractual) however originating from the Products supplied (e.g., damages, loss of earnings, withdrawal campaigns, etc.).
The Seller is in any case not responsible for any defects and defects of the products sold; in particular: 1) in using quality raw materials, the Seller cannot be held responsible for any defects or defects in the raw material used for its products; 2) the Seller assumes no responsibility for the last destination of the product, for which the customer acts and chooses in full autonomy and awareness, or is not responsible for the suitability or not of the product with respect to the c.d. “operating conditions”, for which the customer is solely responsible; 3) The Seller is not responsible for any defects and/or defects in the product resulting from abnormal deterioration, negligence in custody by the customer, incorrect application and/or installation operations, replacements and/or maintenance carried out by third parties, for physical and/or chemical and/or mechanical and/or electrical reasons unrelated to the product as sold.
6.1 Seller shall not be liable for any damages resulting from the breach of any provision of this Agreement, or from delay or failure to perform, in whole or in part, the obligations under this Agreement, where and to the extent that such delay or failure is attributable to circumstances beyond the reasonable control of the Party. Such events include – without limitation – natural disasters, public authority measures, fires, earthquakes, floods or other natural disasters, epidemics, pandemics, embargoes, insurrections, riots and other civil unrest, wars, legal or governmental provisions, strikes, scarcity of necessary supplies and/or lack of availability of means of transport or other contingencies, scarcity and/or difficulties in the supply of raw materials.
6.2 The force majeure event will result in the suspension of the execution of the contract for the period in which the effects of the force majeure event remain, resulting in an automatic extension of the terms for the fulfilment of the obligations.
The Seller shall make every effort to minimise the consequences of such delay in accordance with the principles of good faith and contractual correctness.
6.3 Upon the occurrence of the force majeure event, the Seller shall immediately inform in writing, in any case not later than 30 (thirty) days after its commencement. The communication shall contain a precise description of the force majeure event and the reasons for the delay or inability to perform the contractual obligations.
6.4 If a force majeure event lasts for more than 6 (six) months, the Seller may terminate this Agreement by giving at least 30 (thirty) days’ notice by registered letter with acknowledgement of receipt.
In such a case, the consequences thereof and the appropriate return of the respective contractual services shall be negotiated, in good faith, considering the stage reached in the implementation of this Agreement at the time of its termination.
7 – Personal Data Protection
7.1 For the purpose of executing the Contract, the Parties undertake to comply with all the obligations set out in the General Data Protection Regulation (UE) 2016/679 on “the protection of natural persons with regard to the processing of personal data and on the free movement of such data” (hereinafter “GDPR”), as well as, within the limits of its applicability, Italian Legislative Decree 196/2003 (“Privacy Code”), as most recently amended by Italian Legislative Decree 101/2018 and in the provisions of the Italian Data Protection Authority.
7.2 By signing this Contract, the Parties, each to the extent of its respective competence, acknowledge that their own personal data and/or of their employees and/or collaborators involved in the activities referred to the Contract, will be communicated to the other Party and processed by the latter as an autonomous Data Controller for purposes strictly functional to the setting up and execution of the Contract.
7.3 In particular, the Buyer acknowledges that the Seller will process his personal data and/or of its employees and/ or collaborators, involved in the activities referred to the Contract, as autonomous Data Controller for the purposes and in accordance with the modalities specified in the information notice provided pursuant to Articles 13 and 14 of the GDPR available on the website www.grafossteel.it, which the Buyer undertakes to bring to its employees’ and/or collaborators’ knowledge.
8 – Termination of the Contract
8.1 The Seller has the right to terminate any Contract with the Buyer, with immediate effect, in accordance with art. 1456 of the Italian Civil Code, by notice sent through registered letter or e-mail PEC in the following cases:
a) if the Buyer fails to fulfil its obligations under articles 3.9, 4 of these General Terms of Sale;
b) if the Buyer is in material breach of the Contract.
8.2 The Seller has the right to withdraw with immediate effect by each Contract by notice sent through registered letter or e-mail PEC to the Buyer in the following cases:
a) the Buyer fails to fulfil its obligations under articles 1.3, 3.7, 6.1;
b) the Buyer is subject to enforcement, insolvency or liquidation proceedings;
c) the Buyer’s economic and financial situation can be reasonably considered a situation of crisis;
d) shares and / or quotas representing the majority or the Buyer’s control of share capital – in case of corporate – are directly or indirectly sold, disposed of, or restricted in guarantee.
9 – Retention of Title
The Seller shall retain title in the Products sold until it has received full payment of the agreed price from the Buyer. Consequently, the Buyer undertakes i) to make good use of them, according to their intended use; ii) not to transfer their title to third parties, unless expressly and previously authorized by the Seller. If the Buyer fails to pay all or part of the Products by the due date, the Seller may retake possession of the Products delivered, at its simple request. Notwithstanding the above, the Buyer shall be liable for any damage and loss occurring to the Products after Delivery, even if caused by force majeure or other events not attributable to the Buyer.
10 – Applicable Law – Competent Jurisdiction
10.1 These General Terms of Sale and each Contract entered in to by the Buyer with the Seller shall be governed by Italian law.
10.2 Any dispute arising between the Parties concerning the interpretation, validity or enforcement of these General Terms of Sale and any Contract shall be referred to the exclusive jurisdiction of the Court of Modena.
10.3 Only the Seller, at its discretion, has the right to waive the exclusive jurisdiction of the Court referred to in previous art. 11.2 to take legal action against the Buyer at his residence and at the Court therein competent.
10.4 In order to interpret the terms of return of the Products and other commercial terms used by the Parties, reference is made to the Incoterms® 2020 of the Chamber of Commerce of Paris.
11 – Seller’s trademarks and distinctive signs
11.1 The Buyer is obliged to use the Seller’s trademarks, names and other distinctive signs, but only for the purpose to identifying and advertising the Products, it being understood that such use is of the exclusive interest of the Principal. In all events, any use of the Seller’s trademarks, names, or other distinctive signs on the Buyer’s headed paper, on advertising material or on any other material however intended for third parties, must be agreed to beforehand in writing with the Seller.
11.2 The Buyer undertakes not to insert the Seller’s trademarks, names and distinctive signs in their firm or company name as well as web sites. The Buyer shall not register the Seller’s trademarks and/or distinctive signs, including web domain names.
11.3 The Buyer’s right to use the Seller’s trademarks, names, or other distinctive signs, as provided for in article 12.1 above, shall immediately terminate with the expiry or termination, for whatever reason, of this General Terms of Sale or any Contracts entered in to between the seller and the Buyer.
11.4 The Buyer shall inform the Seller of any violation of its trademarks, names, or other distinctive signs of which they become aware.
11.5 Any document provided by the Seller to the Buyer about the Products may contain know-how and other confidential information such as, but not limited to, information relating to the design, manufacture and development of the Products, information necessary for the assembly, use, understanding of the operation and exploitation of the possibilities and potentials of the Products.
The know-how and other confidential information belong exclusively to Grafos Steel S.r.l. and are made available to the Purchaser strictly confidential for the sole purposes of the contract concluded based on these General Conditions.
The Buyer therefore assumes the obligation to use the Seller’s know-how and confidential information only to the extent strictly necessary for the execution of each sales contract and the use of the relevant Products.
The Buyer also undertakes not to disclose such confidential information to third parties, unless otherwise authorized in writing by the Seller, and to ensure that its employees, agents, and representatives comply with the confidentiality obligations described above.
Any use or disclosure of confidential information and know-how in violation of the provisions described herein may also result in violation of the Seller’s trade secrets in accordance with the applicable legal provisions.
12 – Final Provisions
12.1 The invalidity in whole or in part of any provision of these General Terms of Sale shall not affect the validity of the remaining provisions.
12.2 These General Terms of Sale may be amended, supplemented, varied, only in writing by the Seller.