1. SCOPE OF APPLICATION: 1.1 These general conditions of sale shall apply to the supplies performed by MEINARDI ALESSANDRO di Meinardi Tommaso & C. s.a.s. (hereinafter referred to as the “SELLER”) and shall govern each and all sales and shipments of the products sold, retailed or howsoever supplied by SELLER (hereinafter referred to as the “PRODUCTS”).
2. ORDERS AND DELIVERY OF THE PRODUCTS: 2.1 The purchase orders of the PRODUCTS shall need to be placed in writing in either of the following ways: a) order forms: BUYER shall place the purchase orders through the dedicated forms provided by SELLER. Such forms shall be properly filled in and signed by BUYER or by the person(s) having legal capacity to commit BUYER. SELLER’s acceptance shall be effective only if given in writing. No purchase orders shall become binding upon SELLER unless BUYER first has accepted in writing these terms and conditions of supply; b) E-SHOP: SELLER operates an e-commerce website at the address www.ma-shop.it (hereinafter referred to as the “E-SHOP”) for the clients to place orders for the PRODUCTS, make and receive communications connected with such orders, view and download documents connected with the same orders and the PRODUCTS (hereinafter jointly the “Services”). In order to place orders through the E-SHOP and use the Services it, BUYER shall be required to first obtain access credentials (used ID and password), which SELLER reserves to provide at the request of BUYER. In order to obtain the credentials, BUYER undertakes to fill in correctly all necessary data and details required, as per the relevant one-time registration procedure on the E-SHOP. BUYER acknowledges that no formal requirement, other than BUYER’s flagging a specific checkbox or otherwise marking his acceptance through the E-SHOP of the terms and conditions of sale of the PRODUCTS and supply of the Services, shall need to be fulfilled; accordingly, neither BUYER’s authentic signature on any documents, nor other comparable formalities shall be necessary. Once the registration is completed, the access credentials shall be personal and exclusive for BUYER, and BUYER shall not disclose them to SELLER, nor to third parties; therefore, BUYER alone shall be responsible for storing and using them correctly, and any use of BUYER’s credentials shall be deemed legitimately made by BUYER. Accordingly, BUYER accepts that the use of the credentials on the E-SHOP shall be legally binding on BUYER and that all orders placed (or modified and cancelled, where applicable), as well as all communications made, as a logged user of the E-SHOP shall be legally binding on BUYER. BUYER’s acceptance thereof.
2.2 Irrespective of how the orders are placed: a) SELLER’s display of the PRODUCTS and quotation of prices shall be deemed an invitation to offer, and each purchase order placed by BUYER shall be deemed an offer. SELLER shall have the right to reject any order at its sole discretion, and no order shall be binding on SELLER unless and until specially accepted by SELLER; b) it shall be BUYER’s responsibility to properly fill in all required data, specifications, details and quantities of the ordered PRODUCTS. BUYER shall be under no responsibility for verifying that the ordered PRODUCTS are fit for any particular purpose, nor comply with any plans nor projects; c) SELLER shall, upon accepting an order, report in writing to BUYER all the relevant details (hereinafter the “REPORT”), and BUYER shall be required to notify SELLER of any inconsistency or discrepancy with the purchase order in writing within two (2) business days of the REPORT, or, failing that, the latter shall be final and prevail on the original order. In the event any order should be rejected in part, the relevant REPORT shall show the PRODUCTS available for supply; in such event, BUYER shall be entitled to cancel the order within two (2) business days of the REPORT, or, failing that, the latter shall be final and prevail on the original purchase order; d) SELLER shall indicate in the REPORT the expected time of delivery of the PRODUCTS. The relevant term shall not be binding upon SELLER unless otherwise specially agreed by the Parties. BUYER accepts and agrees that SELLER may need to order or re-order the PRODUCTS from third parties specifically to fill BUYER’s order, and that the delivery of the PRODUCTS to BUYER might be put off or be otherwise affected; e) unless otherwise accepted in writing, full or partial payment of the PRODUCTS shall be made before delivery thereof, as per BUYER’s instructions. BUYER shall be under no obligation to fill BUYER’s purchase order, nor to order or re-order the PRODUCTS, unless and until the payment schedule has been complied with by BUYER. SELLER’s delivery of the PRODUCTS, or parts thereof, to BUYER may be withheld, delayed or cancelled as a result of BUYER’s failure to meet the payment schedule. In the event an order should be cancelled by SELLER for any reason other than BUYER’s breach of contract, any refundable payments made by BUYER shall be repaid by SELLER; f) unless otherwise specially agreed, the PRODUCTS shall be delivered Ex Works (EXW) SELLER’s premises, and SELLER shall not be liable for any loss or damage to the PRODUCTS after delivery thereof. The term of delivery and the quoted prices shall refer to EXW delivery and any additional services, including transportation or handling of the PRODUCTS, shall be charged separately; the relevant rates shall be quoted by SELLER upon offering or accepting to perform the concerned service(s); g) SELLER shall notify BUYER the final date of delivery as soon as the PRODUCTS are available therefor. SELLER shall not be liable to BUYER in the event of delay in the delivery of the PRODUCTS, irrespective of the reasons for the delay. In the event the ordered PRODUCTS, or part thereof, should be or become unavailable to SELLER after the order has been accepted, SELLER shall update the REPORT accordingly and the order may be performed or cancelled as per § 2.2 c) above. Partial or batch deliveries of the PRODUCTS shall be admitted; h)BUYER shall take delivery of the PRODUCTS within five (5) business days of the date of delivery confirmed by SELLER. If BUYER delays collection of the PRODUCTS, then without prejudice to any right or remedy SELLER shall be entitled to: (i) store the PRODUCTS and charge BUYER for all incurred costs; and (ii) if BUYER’s delay exceeds ten (10) business days, sell the PRODUCTS to third parties at the price readily obtainable. In this case, if a refund is payable to BUYER out of any advance payments made by BUYER, SELLER prior to transferring the refund to BUYER, shall be entitled to offset from the proceeds of the sale to third parties all incurred storage and handling costs, plus 15% handling indemnity on the remaining balance.
3. CHARACTERISTICS OF THE PRODUCTS: 3.1 Unless otherwise agreed in writing, the PRODUCTS shall be the standard production of the respective manufacturers, with no customizations nor adaptations, and shall not need to conform to any special requirements or specifications. The same shall apply to labels, packing and packaging materials and any ancillary items. Under no circumstances shall implied or unstated specifications, nor requirements be binding on SUPPLIER.
3.2 Any information, data, specifications or descriptions of the PRODUCTS, as may be available or linked on the E-SHOP, or otherwise made available by SELLER, shall be deemed a non-binding description of the same PRODUCTS. No specifications, data or characteristics shall be binding upon SELLER unless specially confirmed by SELLER upon accepting a purchase order. In the event the Parties should have agreed in writing on any samples prior to the delivery of the PRODUCTS, the PRODUCTS shall comply with such samples, save for tolerable differences or discrepancies. By way of example only, BUYER accepts and agrees that PRODUCTS made of or from hardwood or natural stone, as well as the color of ceramic tiles from different production batches, may differ from any given specimen.
3.3 BUYER accepts that certain characteristics of the PRODUCTS, such as color, texture, fibre, and the like, may differ from any illustration, catalogue, or sample, and shall not be considered non-compliant unless BUYER first proves that the relevant difference is a defect in the materials or manufacture of the PRODUCTS.
3.4 Unless otherwise specially agreed, SELLER shall only be required to deliver the PRODUCTS with no additional or supplementary items, services, information, nor documents, including by way of example only installation or finishing materials, installation schemes or plans, data sheets, compatibility lists, and so on. If applicable, SELLER shall only be required to provide mandatory certificates or comparable documents; it shall be BUYER’s responsibility to require SELLER upon placing an order to provide any mandatory documents.
3.5 It shall be BUYER’s responsibility to comply with legal or other requirements concerning the PRODUCTS applicable in connection with the use, installation or processing the PRODUCTS (including import, health and safety requirements).
4. PRICES AND PAYMENT: 4.1 Unless otherwise agreed, the prices of the PRODUCTS shall be those quoted in SELLER’s order confirmation and shall be considered Ex Works prices. Any additional, packing or other costs shall be separately charged to BUYER.
4.2 BUYER shall pay SELLER for the PRODUCTS as per the payment schedule provided by SELLER upon accepting the purchase order. Upon issuing the payment schedule, SELLER shall be entitled to require non-refundable downpayments, which shall be liable to be withheld by SELLER in the event the order should be cancelled for BUYER’s failure to pay further installments or otherwise breaching the terms of contract agreed with SELLER. Withholding any non-refundable downpayments shall not limit the remedies available to SELLER, and SELLER shall be entitled to seek full compensation for all suffered losses or damages. In the event the PRODUCTS should not be delivered or the supply should be terminated or not performed for any reasons, under no circumstances shall SELLER’s obligation to refund exceed the amount originally paid by BUYER.
4.3In the event the price of the PRODUCTS, or part thereof, should be due after delivery of the PRODUCTS, at SELLER’s demand BUYER shall be required to provide an irrevocable, first demand bank guarantee. The guarantee shall need to be: a) in a form acceptable to SELLER. SELLER shall be entitled to require that the guarantee complies with, and is subject to, the relevant ICC publications (including UCP600, ISP98, URDG758, whichever selected by SELLER upon approving the draft guarantee); b) confirmed by SELLER’s bank. A guarantee previously accepted by SELLER but not confirmed by its bank shall need to be re-issued or replaced.
4.4 In case of BUYER’s delay in any payment: (i)interests shall accrue at the rate provided under Italian law in the matter of commercial transactions; and (ii) SELLER shall not be required to perform any of its obligations until full payment is collected.
5. RETENTION OF TITLE : 5.1 SELLER retains title on the PRODUCTS delivered to BUYER until full payment of the price thereof is collected by SELLER.
5.2 BUYER shall refrain from affecting or impairing SELLER’s title on the unpaid PRODUCTS. By way of example only, BUYER shall not resell or transfer the PRODUCTS, nor use them as a collateral.
5.3 In case of any breach of BUYER’ s obligations provided herein, SELLER shall be entitled to cancel forthwith any pending supply of the PRODUCTS.
6. WARRANTY: 6.1 The PRODUCTS are guaranteed by the respective manufacturers to be free from defects in materials and workmanship and are covered by the warranty conditions of the respective manufacturers. SELLER shall if applicable pass on to BUYER the rights arising out of the manufacturers’ conditions of warranty, and no other warranty nor liability shall be undertaken by SELLER. It shall be the responsibility of BUYER to enquire with the relevant manufacturers or to retrieve the warranty conditions e.g. on their respective data sheets, websites, catalogues and the like. At the request of BUYER, SELLER shall: (i) pass on or extend to BUYER all the information available on the manufacturers’ warranty terms and conditions; (ii) forward to the relevant manufacturers any claims from BUYER, it being understood that SELLER undertakes no representation nor obligation in connection therewith.
6.2 In the event the PRODUCTS should not be covered by the warranty conditions of the respective manufacturers, or these should not be liable to be passed on to BUYER, SELLER shall guarantee that the PRODUCTS are free from defects in materials and workmanship. SELLER undertakes no other warranty whatsoever (by way of example only, fitness for a particular use or merchantability). The applicable terms and conditions shall be as follows: a) the warranty shall expire no later than 24 months from shipment to BUYER, provided however that the installation, modification or assembly of the PRODUCTS (including by way of example only ceramic tiles or hardwood planks) shall immediately cause any warranty rights to be null and voided; b) no warranty shall be given when the claimed defects of the PRODUCTS are not the result of a fault of SELLER and/or the relevant manufacturers, including by way of example only in case of: (i) the PRODUCTS having been tampered with, modified or altered by BUYER or third parties; (ii) any damage or defect of the PRODUCTS deriving from any mistreat, misuse, mishandle, negligence, whether by BUYER or third parties; (iii) any other cause or event beyond the control of SELLER or of the relevant manufacturer , such as, by way of example only, the PRODUCTS having been damaged after the transfer of the risk on the PRODUCTS to BUYER. c) any warranty rights or claims of BUYER shall be finally waived, forfeited and void unless: (i) BUYER notifies SELLER of any defects of the PRODUCTS within 5 (five) business days from delivery thereof, or from the discovery of the defects when BUYER first proves that the alleged defects may not be discovered upon delivery; it shall be SELLER’s responsibility to inspect the PRODUCTS upon delivery; (ii) BUYER refrains from reselling, using, installing or disposing of the PRODUCTS claimed to be defective and complies with the instructions of SELLER concerning the warranty claim; (iii) at SELLER’s demand, BUYER returns the PRODUCTS claimed to be defective, or samples thereof, to SELLER at SELLER’s plant; d) satisfaction of the warranty given by SELLER shall be limited to the replacement of, or the issuance of a credit for, the PRODUCTS involved, without any other liability or obligation of SELLER, nor claim of BUYER. SELLER’s obligation to replace or issue a credit shall only arise after BUYER’s having returned the defective PRODUCTS, and shall only extend to the PRODUCTS actually returned to SELLER, unless SELLER has waived in writing the right to receive the concerned PRODUCTS. All related costs and expenses, including transportation, shall be for the account of BUYER; e) in the event it should be determined after BUYER’s returning to SELLER the PRODUCTS claimed to be defective that these are free from defects covered by the warranty, SELLER shall only be required to make the same PRODUCTS available for BUYER’s collection thereof. The provisions set forth hereunder for the original delivery of the PRODUCTS shall apply.
6.3 In the event the PRODUCTS should be recalled or withdrawn them from market by the relevant manufacturers: a) all pending purchase orders, accepted or not by SELLER, for the concerned PRODUCTS shall be held or cancelled, and SELLER shall promptly extend any relevant information to BUYER; b) BUYER shall not use, install, nor resell nor market the concerned PRODUCTS, if these have been delivered prior to the recall; c) SELLER shall forward to BUYER any information or directions from the relevant manufacturers, and BUYER shall co-operate under SELLER’s or the manufacturer’s direction and shall not charge any amount nor fee; d) the recall shall not affect the warranty provisions and shall not imply that the PRODUCTS are defective.
6.4 In the event of any occurrence or claim out of product liability or any litigation or demand out of damages or injuries suffered by third parties: a) BUYER shall immediately and fully inform SELLER in writing of the concerned claim or demand and provide all documents and information relating thereto; b) BUYER shall co-operate with the relevant manufacturer or SELLER; c) BUYER shall not release any statements or admissions, enter into any compromise or settlement, disclose any information nor, generally, take any step whatsoever which may cause, determine or imply SELLER’s or the manufacturer’s liability or prejudice; d) any indemnification or damages shall be payable by SELLER to BUYER only subject to BUYER having first fully complied with the provisions of these general conditions of sale.
6.5 In the event BUYER should qualify as a consumer under the relevant applicable statutes, the applicable statutory warranties shall apply for a term of 24 (twenty-four) months from the purchase of the PRODUCTS. BUYER shall be responsible for repairing or replacing at its cost the non-conforming PRODUCTS in favor of consumers, and SELLER shall supply BUYER with the necessary PRODUCTS or parts at no charge for BUYER. BUYER shall check the claims of the consumers to determine whether they fall within the statutory warranty, and shall provide SELLER with evidence thereof if so required by SELLER.
6.6 Except in the event of SELLER’s fraud or gross negligence, the sole rights, remedies and/or actions of BUYER with respect to the supplies, delivery or transportation of the PRODUCTS, as well as those connected with the Services, shall be those expressly provided herein, and SELLER’s liability to BUYER for any loss or damage shall not exceed the invoiced amount of the PRODUCTS connected with, or giving rise to, the claim.
6.7 In no event shall SELLER be liable for consequential, incidental, special, punitive or exemplary damages, including but not limited to, loss of profits or revenues.
7. TRADEMARKS: 7.1 The PRODUCTS are supplied by SELLER under their respective trademarks or tradenames, if any. The sale and supply of the PRODUCTS shall not imply nor establish any license nor any other right on the trademarks, nor on any other intellectual property rights of SELLER, nor of third parties.
7.2 SELLER undertakes no warranties, representations, nor liabilities whatsoever in connection with the intellectual property rights borne by, or howsoever connected with, the PRODUCTS.
8. FORCE MAJEURE: 8.1 Each Party shall be entitled to hold or cancel the performance of its obligations, if as a consequence of any event whatsoever beyond its control, or resulting from such things as, by way of example only, strike, boycott, lockout, fire, war or civil war, riot, embargo, inability to obtain fuel, power, raw materials. The concerned Party shall, if possible, promptly notify the other Party of the occurrence of the force majeure event and advise on the expected consequences.
8.2 In the event of a force majeure event SELLER shall be entitled to allocate at its discretion the available supplies of the PRODUCTS among all of its clients.
9. APPLICABLE LAW – COMPETENT JURISDICTION: 9.1 These general conditions of sale and the supplies of the PRODUCTS shall be governed by the Italian law. The United Nations Convention on contracts for International sale of goods shall be applied only to the extent its provisions do not conflict with these general conditions of sale.
9.2 The terms of delivery and all other trade terms provided herein shall refer to to the relevant publication of the International Chamber of Commerce of Paris in force at the time of each supply of the PRODUCTS.
9.3 Unless BUYER qualifies as a consumer under the applicable statutes, the Court of Ravenna (Italy) shall have exclusive jurisdiction over any dispute arising out of or in connection with the validity, interpretation and performance of these general conditions of sale and of each supply of the PRODUCTS.
9.4 Notwithstanding the provision above, SELLER shall be entitled to bring any action against BUYER, including actions to obtain seizures and interim measures, before the competent Court of the place where the BUYER has its registered office.
10. LEGAL NOTES: 10.1 These general conditions of sale are the only agreement between the Parties for the sale of the PRODUCTS and may be amended exclusively by the written agreement of the Parties. Any services performed by SELLER, e.g. in the matter of selecting, measuring, advising on the installation of the PRODUCTS, shall not affect the agreement between the Parties, which will only concern the supply of the PRODUCTS.
10.2 Should any provisions herein be or become invalid or unenforceable in whole or in part, the remaining provisions shall remain in full force and effect and the Parties shall in good faith negotiate and agree on an amendment, which secures that the legal and economic effects of the invalid or unenforceable provision are preserved to the farthest extent possible. Should BUYER qualify as a consumer under the relevant statutes, all the relevant mandatory provisions shall apply and the terms and conditions provided herein shall survive to the widest extent applicable in compliance with such statutory provisions. 10.3 The Italian text of these general conditions of sale, regardless of any translation in any other language, shall be the only authentic text for the purpose of the interpretation thereof.
10.4 SELLER shall at its discretion be entitled to reprint these general conditions of sale on the invoices, bills of lading or other documents relating to the supply of the PRODUCTS.
10.5 Should the SELLER fail to enforce any right hereunder, such right nor any other right or privilege of SELLER shall be waived nor voided.
10.6 Only the communications exchanged in writing between the Parties, which shall be made so as to e, shall qualify as proof in the matter of the relationship between the Parties. Should BUYER have obtained access credentials for the E-SHOP, all communications between the Parties shall be made electronically through the E-SHOP and the Parties mutually accept that all orders, contracts, communications, notifications exchanged electronically and stored within the IT systems of the E-SHOP shall qualify as written proof irrespective of either Party’s having received or read the concerned documents or communications. Accordingly, each Party shall be responsible for accessing the E-SHOP in order to retrieve and read any document or communication howsoever relevant to or connected with the supplies of the PRODUCTS or with the Services.
10.7 The tones of the materials are purely indicative; Natural products can not maintain uniform tonality even in the same production batch.
10.8 Measurement developments must be closely monitored at the time of order: no measurement errors are accepted
10.9 Extual material completions will be increased by the expenses claimed by conveyors and the supplier company
10.10 In accordance with the type of material purchased, carry out cleaning with the appropriate product, following the instructions on the packaging carefully.