Framework agreement relative to the sale of merchandise
Scope of application of the framework agreement and duration.
This framework agreement applies to all the individual sales contracts concluded between Seller and Buyer starting from the time it is signed and for the following 5 years, unless provided otherwise in the individual sales contracts. At its expiry, the duration of the framework agreement is renewed for another 5 years except for written cancellation to be sent at least 3 months before. The application of the framework agreement results in the inapplicability of possible general terms and conditions of the Buyer. For anything not covered, the United Nations Agreement on the international sale of movable property (Vienna, 1980) (hereinafter, the “Agreement”) and, failing that, Italian law will apply in that order. Any references to commercial terms are to be interpreted as referring to the Incoterms of the International Chamber of Commerce in the current text at the time the Contract is drafted.
Creation of the individual sales contract.
The Buyer’s purchase order must specify the item, the quantity and/or the weight, the delivery times, the prices and payment terms. However, incomplete purchase orders will also be binding on the Buyer if the missing elements are included in the correspondence or can be supplemented by this framework agreement. An order sent from the company purchasing offices will bind the Buyer even if not signed by the legal representative. The Seller reserves the right, in its indisputable opinion, to not accept purchase orders. The sales contract will be finalized when the Buyer receives the Seller’s order confirmation or when the Seller ships the merchandise ordered.
Implementation of the sales contract.
Unless specifically provided otherwise and as an exception to the Agreement, the Seller may deliver smaller or larger quantities than those listed in the purchase order within a tolerance threshold of 10%. Payment will only be due for the quantities actually delivered.
The Seller will take care of the packaging as is custom and will be exempt from liability in case of loss or damage which are not the result of his willful misconduct or gross negligence or are not the direct result of his work. Particular types of packaging requested by the Buyer will be charged at the amounts listed in the order confirmation.
The possible commissioning of the merchandise must be specifically requested by the Buyer in the purchase order and expressly accepted by the Seller in the order confirmation. The commissioning will take place at the Seller’s locations before the delivery/shipment and will be carried out “at random”. Positive commissioning will entail the Buyer’s acknowledgement that the merchandise has the qualities agreed on and is suitable for the use for which it is intended. If the Buyer waives the commissioning, reductions will not be granted on the price agreed. If the outcome of the commissioning is negative, it will exclusively entail the Seller’s obligation to replace the merchandise as quickly as possible but not the commitment to immediately manufacture and/or deliver it. Under no circumstance can the Buyer claim compensation for the damage or the reimbursement of costs incurred for any reason whatsoever. Should the Buyer want the commissioning to be suspended, the higher costs resulting from the suspension will be debited.
Unless specifically provided otherwise, delivery will take place at the location of the company, Tresoldi Metalli s.r.l. in Pozzonovo (PD), via Fanzaghe no. 108 (EXW) at the terms agreed by the parties. The risks will be transferred to the Buyer at the time of delivery. The Seller will not be responsible for the damage or loss of the merchandise after the transfer of the risk and the Buyer will not be released from the obligation of paying its price. In any case, the Seller will not be responsible for delays in delivery provided it falls within 7 days of the scheduled deadline. In case of delay attributable to the Seller, the Buyer must declare the Seller in default in writing and may request compensation for the damages due to the delay, limited however to within 5% of the price of the merchandise. The Buyer must arrange payment by the agreed due dates even if he will not collect the merchandise in the location and by the deadline anticipated. In case of failure to collect, the Seller will arrange to store the merchandise at the Buyer’s risk, with right to the reimbursement of the costs incurred and except for any proceeding because of the non-collection. All the documents relative to the delivery, marking, packaging, identification, collection, shipment, transport and return of the merchandise will be prepared by the Seller according to his own logistics procedures. The Seller may also use electronic shipping notices based on his own operating standards.
The merchandise will be sold at the price listed in the order confirmation. Without written confirmation, reference should be made to the price listed in the purchase order. The Seller may change the price due to unforeseeable increases in the quotations of the raw materials, notifying the Buyer before delivery. The change will be considered accepted if the Buyer does not cancel the order within 5 days following the communication of the change.
The price must be paid by bank transfer upon receipt of invoice unless agreed otherwise in the order confirmation. Payment will be considered on time if the money is available to the Seller by the anticipated due date. If payment prior to delivery was established, it is assumed that it refers to the entire price. In case of delay in the payment, the Seller will be entitled to default interest in amount equal to the interest rate of the principal refinancing instrument of the Central European Bank applied to its most recent principal refinancing operation carried out on the first calendar day of the six-month period in question, increased by seven percentage points. The rate of reference in effect on the first business day of the European Central Bank of the six-month period in question applies to the following six months. The delay will entail the forfeiture of the benefit of the term for the payments with subsequent expiry and will allow the Seller to interrupt the implementation of possible other sales contracts with the Buyer, who may not file any claim. The Buyer will forfeit the benefit of the term even when his solvency is affected by financial problems such as, for example, being subjected to insolvency proceedings or distraint, the general termination of the payments, the revocation of loans, protested checks or bills of exchange. The Buyer may not raise objections in order to avoid or delay the payment due and may compensate his debts with credits to the Seller only by written authorization of the Seller.
Inspections and Storage.
Upon receipt of the merchandise, the Buyer will be required to examine the packaging in order to check for possible damage or tampering. Should he find some, he must immediately notify the carrier and indicate it on the delivery slip, providing an accurate description of the damage and indicating how many packages are damaged. In addition, the Buyer must check the transport documents and notify the Seller of any losses or errors on them. The Buyer is required to store the merchandise protected from the elements (rain, humidity, direct sunlight, etc.) and in any case in a suitable place to preserve it, under penalty of losing the warranty issued by the Seller pursuant to Point 10.
The Seller will guarantee that the merchandise complies with the technical characteristics specified in the contract and is exempt from defects which could make it unsuitable for the use for which it is intended or appreciably reduce its value. The Seller will not guarantee the compliance of the merchandise with technical characteristics not specifically indicated in the contract nor the suitability for particular uses by the Buyer, unless explicitly mentioned in the contract. The tolerances provided by the European Legislation of reference will be accepted to verify the compliance of the merchandise with the contract. The warranty will not apply to defects caused by events which occurred after the delivery, including the negligent storage of the merchandise pursuant to the preceding Point 9. As an exception to the Agreement, the Buyer must report to the Seller the non-compliance of the merchandise to the contract within 8 days of receipt. Within that same timeframe of 8 days of receipt, the Buyer must report to the Seller the existence of apparent defects, detectable according to ordinary diligence. In case of hidden defects, the Buyer must report their existence to the Seller within 8 days of their discovery. In particular, in case of the sale of coils and sheets with PVC, the Buyer will be required to remove the PVC within 30 days of receipt of the merchandise and must report any defects in the paint within 8 days of the discovery, under penalty of the warranty lapsing. The warranty will only be valid if the Buyer’s complaint is sent by the deadlines indicated above. After the report, under penalty of forfeiting the warranty, the Buyer must immediately suspend the use or the transformation of the merchandise and make it available to the Seller, who reserves the right to inspect and check to determine the validity of the complaint. As an exception to the Agreement, the Seller however will have the right to offer a replacement of the merchandise to the Buyer, within 30 days of the complaint. The delivery of the replacement merchandise will take place within 30 days following the Seller’s offer, against restitution by the Buyer of the defective merchandise. If the Seller offers to replace the merchandise, the Buyer may not request the termination of the contract or a reduction in the price. The Buyer may not request the cancellation of the contract even when the merchandise has been irreversibly transformed or when it is no longer available for return to the Seller. In any case, possible complaints by the Buyer do not legitimize the suspension, even partial, of the payment of the cost of the merchandise being disputed, or the suspension of the collection and/or payment of other deliveries. Any action by the Buyer shall lapse however within 12 months of the receipt of the merchandise.
The Seller will be liable towards the Buyer for the damages suffered or caused by the non-compliance of the merchandise with the technical characteristics specified in the contract or by the defects in the merchandise, unless he can provide proof that he was not aware of them. The request for damages must be received within the forfeiture and limitation periods provided in the preceding Point 10. The Buyer will however be required to take all the measures necessary to reduce or eliminate damaging consequences, under penalty of losing the right to compensation. The Buyer will be required to provide all the documents necessary in order to trace the defective merchandise. Except for the cases listed above and as exception to the Agreement, the Seller will not assume any liability for the damages caused by the use, application or transformation of the merchandise by the Buyer or third parties after delivery.
The Seller can suspend the implementation of the contract when it has become impossible or excessively expensive due to an unforeseeable impediment beyond his control such as for example strike, lock-out, boycott, fire, natural disasters of any kind, delay in the delivery of raw material by his suppliers. In that case, the Seller will notify the Buyer in writing of the start and end of the circumstances which legitimize the suspension of the implementation of the contract. If the event continues for more than 6 weeks, each party may withdraw from the contract, notifying the other party in writing, without this entailing compensatory obligations or indemnities.
The contract will be terminated de jure if the Buyer does not pay the price or refuses or fails to collect the merchandise by the agreed deadlines. The termination will take place when the Seller notifies the Buyer in writing of his desire to terminate the contract. In case of termination, the merchandise – if already collected – must be returned to the Seller within the following 7 days, at the Buyer’s expense. The delay in the return of the merchandise will entail the Buyer’s obligation to pay a penalty equal to 1% of the price of the merchandise for every day of delay. In the event of termination of the contract, the Buyer will be required to pay a penalty equal to 50% of the price of the merchandise, in addition to returning it, barring the right to greater damages, which can be cumulated with the possible penalty for delayed return. The Buyer must however compensate the Seller for any cost resulting from the termination and return.
Suspension of the Implementation of the Contract and Withdrawal.
The Seller may suspend the implementation of the contract if the Buyer is subjected to insolvency proceedings, is placed in liquidation (voluntary or otherwise), is involved in operations of corporate transformation or merger, when his company is sold or leased to third parties or when the Buyer is reported as at risk of insolvency and his loans are revoked by financial and insurance organizations. The Seller will notify the suspension in writing and this will entail a deferment of 30 days in the contractual terms of delivery. Within the same 30 days deadline, the Seller may notify the withdrawal from the contract indicating as just cause one of the events described above. The Buyer will not be entitled to any compensation, indemnity or expense reimbursement in the event of withdrawal.
For any dispute resulting from the interpretation, application and implementation of the sales contract, the Court of Padua will have exclusive jurisdiction.