GENERAL TERMS AND CONDITIONS OF SALE
OF OFFICINA FITOBIOLOGICA S.R.L.
1) Scope of Application
1.1 These General Terms and Conditions of Sale (“GTC”) in the respective valid version at the time of the order shall apply to all supplies of products (“Products”) which OFFICINA FITOBIOLOGICA S.R.L. (“OFFICINA FITOBIOLOGICA”), with registered address at 20161 Milano (MI), Via Salis Ulisse,28, Italy, makes to any client (“CLIENT”), even if no specific reference is made to them.
2) Products - Amendments
2.1 All information and data regarding the Products including information and data appearing on the website, catalogues, brochures, price lists or similar documents of OFFICINA FITOBIOLOGICA or Product samples is merely indicative and not binding on OFFICINA FITOBIOLOGICA, except where expressly stated in these GTC or in the Sale Contract, as hereinafter defined.
2.2 It is the responsibility of the CLIENT to ensure, prior to placing an order, that the Products comply with the laws and regulations applicable in the place where CLIENT will import, distribute, sell or make other use of the Products. In this respect, OFFICINA FITOBIOLOGICA will provide all necessary information regarding the Products as requested by CLIENT.
3) Offers – Orders – Order Acceptance
3.1 The presentation, promotion, offer, cost estimate relating to the Products whether online or on catalogues merely represents a non-binding invitation to make an offer to conclude a contract.
3.2 CLIENT must send any request of supply of Products to OFFICINA FITOBIOLOGICA by email, through sales representatives of OFFICINA FITOBIOLOGICA, verbally and/or through software and/or online platforms indicated by OFFICINA FITOBIOLOGICA. Such request which shall be referred to as “Order Proposal” will be binding on the CLIENT upon receipt by OFFICINA FITOBIOLOGICA.
The Order Proposal must include all necessary details on the Products ordered including Product Code, description, colour ref., quantity, unit price, date of requested delivery and any other information which OFFICINA FITOBIOLOGICA may require. The Order Proposal must also include the CLIENT’s invoicing details.
3.3 OFFICINA FITOBIOLOGICA may reject the Order Proposal, propose modifications thereto including modifications to the quantity, price and terms and conditions of payment and/or other conditions of sale, or accept it.
3.4 The Order Proposal will become binding on OFFICINA FITOBIOLOGICA if and when:
OFFICINA FITOBIOLOGICA expressly accepts the Order Proposal, by accepting it in writing or by sending its order confirmation without proposing any changes thereto;
OFFICINA FITOBIOLOGICA proposes modifications to the Order Proposal by sending the relevant amended order confirmation, and the CLIENT accepts such modifications expressly in writing or by tacit confirmation, that is if it does not refuse the order confirmation within 2 (two) days and/or if it affects payment, in whole or in part, of any amount which OFFICINA FITOBIOLOGICA may request the CLIENT to pay before production or delivery of the Products (hereinafter referred to as “Advance Payment/s”).
Upon fulfilment of points (a) or (b) above, the Order Proposal, or the amended Order Proposal, will become binding on both OFFICINA FITOBIOLOGICA and the CLIENT and will for all intents and purposes at law be considered to constitute a binding contract of sale, hereinafter referred to as “Confirmed Order” or “Sale Contract”.
Therefore, any request by the CLIENT to make additions or modifications to the Confirmed Order, even if made through agents or sales representatives of OFFICINA FITOBIOLOGICA, will not be binding on OFFICINA FITOBIOLOGICA.
3.5 OFFICINA FITOBIOLOGICA will not process or commence manufacture of any Order Proposal, howsoever received, until the same becomes a Confirmed Order as defined above. If an Advance Payment is requested, OFFICINA FITOBIOLOGICA reserves the right to commence implementation of the Sale Contract and thus manufacture of the Products only after receipt in full of the Advance Payment requested. Without prejudice to any other provision in these GTC, in case the CLIENT is in breach or in delay, in whole or in part, of its obligations relating to the Advance Payment, OFFICINA FITOBIOLOGICA shall have the right to modify delivery terms particularly the final date of delivery.
3.6 Without prejudice to any other rights to damages suffered, in the event CLIENT cancels the Sale Contract, this shall be considered as a breach of contract. Therefore, article 5.4 below shall apply. OFFICINA FITOBIOLOGICA shall in such case reserve the right to apply a penalty equivalent to 30% of the value of the Sale Contract in question, without prejudice to OFFICINA FITOBIOLOGICA’s right to claim any further damages suffered as well as to the rights pursuant also to article 5.4 below.
3.7 OFFICINA FITOBIOLOGICA reserves the right to refuse Order Proposals from the CLIENT and/or to request Advance Payment, in whole or in part, for any reason whatsoever, particularly in the event of a prior breach, delay in any payment and/or of claims or disputes with OFFICINA FITOBIOLOGICA and/or if the CLIENT is in liquidation, undergoing arrangement with creditors proceedings, insolvency, bankruptcy or enforcement proceedings.
4) Packaging – Delivery Terms – Delivery Times
4.1 Products will be packaged using packaging systems normally used by OFFICINA FITOBIOLOGICA for the same Products, bearing in mind the means of transportation agreed and the destination of the Products. Special packaging or additional protection must be expressly requested by the CLIENT which will bear the necessary costs.
4.2 Unless otherwise established in the Sale Contract, Products will be delivered to the CLIENT pursuant to the rule Incoterms® 2010 ICC DAP – Address of the CLIENT indicated in the Sale Contract. The CLIENT shall perform any activity to be undertaken by it in accordance with the Incoterms® rule agreed for delivery (collection at the agreed place, contract the carrier, identification of the vessel, etc.), by not later than 15 (fifteen) days from the delivery of the Products by OFFICINA FITOBIOLOGICA in accordance with the agreed Incoterms® rule.
If the CLIENT fails to perform any such activity, it shall indemnify OFFICINA FITOBIOLOGICA and hold it harmless for any costs, damage, fines and interests borne or paid by the latter in connection with the aforesaid violation.
4.3 Should any other delivery term be agreed in the Sale Contract, CLIENT authorizes OFFICINA FITOBIOLOGICA to sign on its name and/or behalf, any and all transport documents required at the time of collection of the Products at the premises of SELLER, such as the CMR.
4.4 In the event that the delivery terms are agreed between the parties wherein the CLIENT is to handle the transportation of the Products outside Italy, CLIENT undertakes within 60 (sixty) days from delivery:
to provide OFFICINA FITOBIOLOGICA with a copy of the transport document attesting the delivery of the Products outside Italy or the CLIENT’s declaration to this effect; and where applicable
to submit in Italy, to the competent authorities, the documents proving the exportation of the Products (SAD-EX) as well as to notify SELLER as soon as such submission is accomplished.
Should this not be the case, CLIENT shall indemnify OFFICINA FITOBIOLOGICA and hold it harmless for any damage, fine and interests paid by the latter in connection with the aforesaid violation.
4.5 Without prejudice to any provision to the contrary herein provided and subject to timely payment by the CLIENT, OFFICINA FITOBIOLOGICA shall deliver the Products within the terms agreed with the Sale Contract even by making partial deliveries. Except for cases of gross negligence or wilful misconduct, OFFICINA FITOBIOLOGICA will not be bound to compensate CLIENT for any direct or indirect damages suffered as a result of a delay in delivery.
4.6 Without prejudice to the provisions of article 10.1 hereunder, CLIENT shall have the right to request termination of the Sales Contract should delivery be unreasonably and unjustifiably delayed by more than 30 (thirty) days from the date of delivery stipulated in the Sale Contract or any other delivery date agreed in correspondence sent to the CLIENT by OFFICINA FITOBIOLOGICA and explicitly or tacitly accepted by the CLIENT.
4.7 Upon receipt of the Products, CLIENT must report any discrepancy with respect to the transportation documents or damage to packaging occurring during transport by inserting the relative contestation in the transport document and shall:
Request the carrier to attest by signing the contestation; and
Immediately inform OFFICINA FITOBIOLOGICA in writing sending a copy of said document by and not later than 5 (five) days from the date of receipt of the Products.
In any other event, OFFICINA FITOBIOLOGICA will not be held responsible for loss, theft or damage occurring to the Products during transportation even if OFFICINA FITOBIOLOGICA assumes the risk of such transportation wholly or partly.
5) Prices – Payment – Late payment
5.1 Products will be supplied at the prices agreed by the parties in the Sale Contract.
5.2 Product prices shall be in Euro, net of VAT and for deliveries under EXW rule Incoterms® 2010 ICC and thus will not include any additional expense and tariffs or taxes of any kind (such as delivery expenses) which will be borne by the CLIENT and invoiced by OFFICINA FITOBIOLOGICA.
5.3 CLIENT is to make all payments, including Advance Payments, according to the terms indicated in the Sale Contract, or as separately requested by OFFICINA FITOBIOLOGICA and expressly or tacitly accepted by the CLIENT. Unless otherwise expressly or tacitly agreed between the Parties, payment for Products must be made by, at the latest, by bank transfer by not later than 120 (one hundred and twenty) days from the date of delivery of the Products by OFFICINA FITOBIOLOGICA. Payments will be deemed to have been made by the CLIENT only when the relative amount has been received in OFFICINA FITOBIOLOGICA’s bank account.
5.4 In the event that the CLIENT fails to make timely payment of Advance Payments or of other payments as agreed in the Confirmed Order and/or fails to accept and/or collect the Products and/or is in any other way in breach of the Sale Contract, OFFICINA FITOBIOLOGICA may, subject to a simple written notice given to the CLIENT, suspend production and/or delivery also relating to other Sale Contracts, as the case may be, until such time as the amounts due and the relative interests have been settled.
Without prejudice to the above, in the event, that due amounts and the relative late payment interest payable remain outstanding 15 (fifteen) working days following the relative payment request notice, OFFICINA FITOBIOLOGICA may at its discretion and without prejudice to its rights pursuant to law or these GTC and without prejudice to any rights to greater damages suffered:
request immediate and full settlement of all amounts due, notwithstanding any agreement for payment to be made by instalments; and/or
immediately terminate the relative Sale Contract and/or any other Sale Contracts; and/or
apply a penalty equivalent to 30% of the value of the Sale Contract; and/or
retain any Advance Payment and/or other sums received, even if relating to other Sale Contracts, by way of partial compensation for damages together with applicable penalties and further damages arising from the breach; and/or
refuse or impose stricter conditions with respect to future Order Proposals by the CLIENT.
Moreover, in the event that the Products have been manufactured, they shall remain the property of OFFICINA FITOBIOLOGICA which shall be entitled to dispose of them as deemed fit.
5.5 The rights pursuant to the preceding article 5.4 may be exercised by OFFICINA FITOBIOLOGICA even in the event that the CLIENT:
Is in liquidation, undergoing arrangement with creditors proceedings, insolvency, bankruptcy or enforcement proceedings; or
Is undergoing financial difficulties which could prejudice the proper fulfilment of payment obligations which result from, by way of example but not exclusively, the client not being in a position to be insured, a significant number of claims are raised against it or if CLIENT is in breach of its payment obligations towards its suppliers.
5.6 The CLIENT will not be able to claim possible breach by OFFICINA FITOBIOLOGICA not may it take legal action against the latter until such time as full payment is made to OFFICINA FITOBIOLOGICA for all amounts payable to it.
6) Retention of title
6.1 The Products remain the property of OFFICINA FITOBIOLOGICA until all claims arising out of Sale Contract have been paid in full.
The CLIENT undertakes, as long as title to the Products has not yet been transferred to it, to treat the Products subject to retention of title with care and to insure them at its own expense against fire, water and theft damage sufficiently at replacement value.
The CLIENT is not entitled to pledge the Products subject to retention of title to third parties or to assign them by way of security. However, the CLIENT is entitled to use the Products subject to retention of title and to resell them in the ordinary course of business, as long as it is not in default with any and all payment obligations vis-à-vis OFFICINA FITOBIOLOGICA. By way of security, the CLIENT assigns to OFFICINA FITOBIOLOGICA its own claims arising from the sale of the Products to the CLIENT’s clients. OFFICINA FITOBIOLOGICA accepts the assignment.
6.4 OFFICINA FITOBIOLOGICA revocably authorises CLIENT to collect, on OFFICINA FITOBIOLOGICA's account and in its own name, the credits assigned to OFFICINA FITOBIOLOGICA, without prejudice to OFFICINA FITOBIOLOGICA’s right to collect the receivables itself with the understanding that OFFICINA FITOBIOLOGICA will not raise claims of itself and will not curtail the CLIENT’s right to directly collect receivables as long as the CLIENT duly fulfils its payment obligations vis-à-vis OFFICINA FITOBIOLOGICA.
6.5 In case of a breach of contract by the CLIENT vis-à-vis OFFICINA FITOBIOLOGICA, in particular if the CLIENT defaults on its payment obligations, OFFICINA FITOBIOLOGICA can demand that the CLIENT disclose the assigned credits and receivables and the respective debtors, inform the respective debtors of the assignment and hand over to the OFFICINA FITOBIOLOGICA all documents and information required by OFFICINA FITOBIOLOGICA to assert its claims.
If the Products subject to retention of title are seized or are subject to other interventions by third parties, the CLIENT is obliged, provided that ownership has not yet been transferred to it, to inform the third party of OFFICINA FITOBIOLOGICA's ownership rights and to notify OFFICINA FITOBIOLOGICA immediately in writing so that OFFICINA FITOBIOLOGICA can enforce its ownership rights. The CLIENT shall indemnify OFFICINA FITOBIOLOGICA from any judicial or extrajudicial costs incurred by OFFICINA FITOBIOLOGICA in this respect, if the third party is not able to reimburse OFFICINA FITOBIOLOGICA for these costs.
OFFICINA FITOBIOLOGICA undertakes to release the securities to which it is entitled at the request of the CLIENT to the extent that the realisable value exceeds the value of the outstanding claims against the CLIENT by 10%.
7.1 OFFICINA FITOBIOLOGICA guarantees to CLIENT that all Products will be in line with the Sale Contract and free from manufacturing defects.
Imperfection of Products or materials conducible to the fact that the Products are hand-crafted such as, but not limited to variation in colour shades effecting the homogeneity of the Products shall be excluded from the guarantee.
This guarantee shall be valid for a period of 12 (twelve) months from date of delivery of the Products.
7.2 CLIENT must examine the Products as quickly as possible and on pain of forfeiting such right, must report in writing to OFFICINA FITOBIOLOGICA, by email:
Any discrepancy in the type and/or the quantity of the Products received as well as apparent defects of the Products: by and not later than 7 (seven) days following delivery to the CLIENT;
Latent defects of the Products: by and not later than 7 (seven) days from discovering them and in any case within the guarantee period.
7.3 OFFICINA FITOBIOLOGICA shall have to right to check the Products or samples of the Products which the CLIENT holds to be non-compliant or defective. In this respect, CLIENT may return to OFFICINA FITOBIOLOGICA Products which it holds to be non-compliant or defective only upon written approval by OFFICINA FITOBIOLOGICA and on conditions that the CLIENT bears all delivery costs. Approval to return the Products and the samples claimed to be faulty or defective shall not be deemed to constitute acknowledgment by OFFICINA FITOBIOLOGICA of the defect or fault. Should OFFICINA FITOBIOLOGICA hold that the Products are effectively defective on the basis of information provided by the CLIENT, it may agree to bear the expenses for collection of the defective Products at the CLIENT.
7.4 In the event that OFFICINA FITOBIOLOGICA acknowledges that the Products are non-compliant or defective, CLIENT may at OFFICINA FITOBIOLOGICA’s option, have the right to:
Partial or total exemption from payment of the price depending on the seriousness of the defect; or
Gratuitous repair or substitution of the defective or non-compliant Products.
In this latter case, the Products which have been repaired at the OFFICINA FITOBIOLOGICA premises and/or those which must be delivered in substitution will be delivered to the CLIENT pursuant to the delivery term DAP, Incoterms® ICC 2010 at place agreed in the Sale Contract.
7.5 Rights and remedies described in this article 7 constitute the only rights and remedies in terms of the guarantee given to the CLIENT. OFFICINA FITOBIOLOGICA shall not incur any other liabilities and or obligations with respect to Products which may be non-compliant and/or defective including by way of example but not exclusively liability and obligations for direct, indirect or consequential damages, loss of profit etc. This guarantee substitutes and excludes any other guarantee whether express or implied pursuant to law or otherwise.
8) Trademarks – Resale of Product
8.1 The CLIENT declares and acknowledges that the trademark «Officina Fitobiologica®» and the trade names or other distinguishing marks shown in the brochure, the website and other documents and materials pertaining to OFFICINA FITOBIOLOGICA which refer or are referable to OFFICINA FITOBIOLOGICA or its Products are exclusively owned by or exclusively licensed to OFFICINA FITOBIOLOGICA.
The CLIENT declares and acknowledges also that the above referred to trademarks and distinctive marks are linked to OFFICINA FITOBIOLOGICA’s, market placement and distinguish the brand as a luxury brand signifying quality and Italian handcraft, a market placement which OFFICINA FITOBIOLOGICA intends to preserve.
8.2 The CLIENT may not register or allow registration of the trademarks, brand names or other distinguishing marks belonging or licensed to OFFICINA FITOBIOLOGICA, nor other trademarks, names and distinguishing marks which are similar and which may be confused with those of or used by OFFICINA FITOBIOLOGICA and may not use the marks and/or distinguishing signs which refer to OFFICINA FITOBIOLOGICA and/or to its Products or images and/or intellectual property rights of OFFICINA FITOBIOLOGICA, to register domain names or undertake any activity if not expressly authorised in writing by OFFICINA FITOBIOLOGICA, on social media or any other social network, by way of example but not exhaustively, Facebook, Instagram, Twitter, Google+, LinkedIn, YouTube and similar. If the CLIENT needs to use such instruments, then such use will be made as indicated by OFFICINA FITOBIOLOGICA and without negatively effecting the brand prestige.
8.3 The CLIENT undertakes to sell the Products exclusively to end users and only at its point of sales situated at the address indicated in the Order Proposal, or to authorised resellers as indicated on OFFICINA FITOBIOLOGICA’s website.
CLIENT may also resell the Products online on its website on condition that such site is in line with the brand image, the image of the Products and that of OFFICINA FITOBIOLOGICA and on condition that the website in question and the sale thereon is expressly approved in writing by OFFICINA FITOBIOLOGICA. Client may not resell the Products on marketplaces and/or third-party websites, unless expressly and prior authorized in writing by OFFICINA FITOBIOLOGICA, which would be provided only after having ascertained its coherence with the brand image, the image of the Products and that of OFFICINA FITOBIOLOGICA. In case OFFICINA FITOBIOLOGICA provides such authorization, it will have a six-month duration and will be automatically renewed for 6-months periods, unless withdrawn by OFFICINA FITOBIOLOGICA with 2 (two) days written notice. At all events, such authorization shall be withdrawn by OFFICINA FITOBIOLOGICA, at any time, with immediate effect, in case OFFICINA FITOBIOLOGICA ascertains that the CLIENT executed activities or selling policies which hindered or are capable of hindering the brand image, the image of the Products and that of OFFICINA FITOBIOLOGICA.
9) Applicable Law – Dispute resolution
9.1 Questions relating to this contract that are not settled by the provisions contained in the contract itself shall be governed by the United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales
Convention of 1980, hereafter referred to as CISG) in the Italian version and in so far as they are not incompatible with Italian Law in force. Questions not covered by the CISG shall be governed by the applicable national law of Italy.
9.2 Any dispute, controversy or claim arising out of or relating to these GTC or the Sale Contracts execute hereunder, including their conclusion, interpretation, performance, breach, termination or invalidity, shall be finally settled as follows:
by the Courts having jurisdiction at the place of business of OFFICINA FITOBIOLOGICA, if the CLIENT’s place of business is in the European Union, Switzerland, Norway and Iceland; and
in any other case, by arbitration, in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers' Arbitration Institution in force on the date on which the Notice of Arbitration is submitted in accordance with these Rules. The seat of arbitration shall be, and the award shall be delivered in, Milan (Italy). The language to be used in the arbitral proceedings shall be English.
9.3 Notwithstanding the provisions of article 9.2 above, the Court of jurisdiction of the place where the CLIENT has its place of business shall have jurisdiction to settle disputes and/or petitions for enforcement proceedings which OFFICINA FITOBIOLOGICA may opt to bring before such Court with respect to matters involving recovery of debts, fulfilment of payment obligations and application of penalties or claims for damages arising as a result of breach of contract by CLIENT. In such case, the Parties agree that the Court where the dispute or enforcement proceedings are filed shall be deemed to have exclusive jurisdiction.
10.1 OFFICINA FITOBIOLOGICA will not be liable for failed or delayed compliance with the obligations to supply the Products if such delay or compliance is due to a force majeure event such as war, fire, earthquakes, floods, strikes, and labour issues, scarcity of raw materials, restriction of use of energy, public authority deeds or for reasons outside the control of OFFICINA FITOBIOLOGICA or which OFFICINA FITOBIOLOGICA cannot remedy in spite of its best efforts. In such case the delivery term for the supply will be extended by the period during which the force majeure event shall continue. CLIENT will have the right to terminate the sales agreement by sending a registered letter or by certified email to OFFICINA FITOBIOLOGICA, with no liability or consequence on OFFICINA FITOBIOLOGICA, if the event shall continue for a period exceeding 6 (six) months.
10.2 Once the CLIENT accepts these GTC then the CLIENT shall be deemed to have accepted the provisions thereof even with respect to any and all future order proposals and orders made with OFFICINA FITOBIOLOGICA.
10.3 Any agreement which runs counter to the provisions of these GTC shall be effective against OFFICINA FITOBIOLOGICA only if they are included in the Sale Contract. Agreements which are in conflict with the individual Sale Contracts will be valid only if agreed in writing. In no event will OFFICINA FITOBIOLOGICA be bound by the general conditions of contract of the CLIENT.