These general terms of sales (hereinafter referred to “GTS”) shall apply to all service and purchase agreements and related purchase order/s, between Columbia S.r.l. and the counterparty, within the main agreement of which they constitute an integral and substantial part. Conditions differing from those contained herein shall be effective only subject to written acceptance by both Parties.
These GTS contain the terms and conditions, which have been individually negotiated and agreed on between the Parties, embody the entire understanding between the Parties and supersede all other prior understandings and agreements, oral or in writing, between the Parties with respect to the subject of the main agreement and/or purchase order. Nothing contained in the GTS shall be considered as constituting a relationship of principal and agent, or of partnership, or of joint venture between the Parties and their respective affiliates and/or subsidiaries.
The GTS govern all service and goods purchases/supplies agreed and executed between Columbia S.r.l. and the counterparty, under terms and requirements identified in the main agreement and/or in each individual purchase order. Columbia S.r.l. declares to have the resources and the organization required to produce and make available the goods and/or to render the services covered by the main agreement and/or purchase order, therefore assuming the management at its own risk and with full autonomy. Columbia S.r.l. reserves the right to sub-contract, at its own discretion, in whole or in part, the fulfillment of the main agreement and/or purchase order, remaining liable for its sub-contractors.
3. SERVICES / PRODUCTS SUPPLY
The services will be rendered by Columbia S.r.l. in accordance with the main agreement and/or with the requirements/specifications set forth in the purchase order or order confirmation. The goods will be made available by Columbia S.r.l., ex works at the Columbia S.r.l. warehouse in Monselice (PD), Italy.
Should the purchase order or order confirmation provide different terms from the main agreement for making goods available to the counterparty or for its pick-up, the provisions set forth in the purchase order or order confirmation shall prevail.
4. SERVICES AND GOODS SUPPLY TERMS – PENALTIES
The terms agreed between the Parties for rendering services and/or for making goods available by Columbia S.r.l. and/or for its picking-up by the counterparty, both final and intermediate, are not binding unless otherwise expressly agreed in writing between Parties.
Columbia S.r.l. will promptly inform the counterparty about the fulfillment of its services and provide prompt due notice to the counterparty as soon as the goods are available to be picked-up by the counterparty. If the counterparty refuses the services rendered by Columbia S.r.l., or fails to pick-up the goods within the next 10 (ten) days from the date on which they were made available by Columbia S.r.l., such goods will be considered as regularly supplied and therefore will be invoiced to the counterparty.
For each month of delay in picking-up the goods made available by Columbia S.r.l., the counterparty shall pay to Columbia S.r.l. a monthly storage fee equal to 2% (two) of the total value of goods in storage. After the first 12 (twelve) months of storage, the foresaid monthly fee will be increased to 4% (four) and starting from the 24th (twenty fourth) month of storage, such monthly fee will be equal to 10% (ten) of the total value of goods in storage.
Columbia S.r.l. shall give immediate notice to the counterparty, where Columbia S.r.l. expects difficulties that may impede to render services timely and/or to make the goods timely available, or not guarantee the required goods quality. Columbia S.r.l. remains liable for the late supply of services/goods, except in case of force majeure and/or in all cases where such delay is attributable to due fact or fault of the counterparty, or due to unforeseen facts and/or circumstances beyond the control of Columbia S.r.l. and there was no reasonable cause to take action for preventing or mitigating the damage (i.e. fire, damages or natural calamities, decisions by public and/or government Bodies, strikes, accidents, loss of material, delays or defaults by the sub-suppliers, etc.).
5. CHARACTERISTICS OF SERVICES AND GOODS
The counterparty will be entitled to necessary changes of services and/or goods described in the main agreement, or in the purchase order, or in the order confirmation only upon prior written agreement with Columbia S.r.l. In such a case, the Parties will evaluate together and agree on the impact of such changes on supply of services/goods, chrono-program and fees.
As an exception to what just stated, Columbia S.r.l. reserves the right to bring about the changes in the services/goods that it considers necessary to their improvement and greater advantage, at any time. In this case, no contention or claim can be laid by the counterparty.
Columbia S.r.l. guarantees:
• compliance of services with requirements and specifications set out in the main agreement, or in the purchase order, or in the order confirmation;
• proper functioning of goods;
• compliance of goods´ quality, technicality and functionality with specifications set out in the main agreement, purchase order, or in the order confirmation;
• lack of flaws and vices;
• compliance of goods manufactured, supplied and put on the market with current applicable laws and regulations.
The services and goods supplied by Columbia S.r.l. according to the main agreement, or purchase order, or order confirmation are subject to the guarantee provided by applicable law. The guarantee regards the construction flaws and vices and covers all component parts of goods except the electric and electronic parts, glasses, crystals and the parts exposed to natural usury.
The failure or late payment of the fees due to Columbia S.r.l. under the main agreement and/or purchase order, even partial, makes automatically decay the guarantee. The component parts of goods damaged because of transport, bad or wrong installation and/or maintenance, carelessness or use incapacity, tampering of staff who is not authorized by Columbia S.r.l. and, however, causes independent from the Columbia S.r.l. are not covered from guarantee.
It is expressly excluded the goods substitution and/or prolongation of guarantee term subsequently to a happened breakdown.
Columbia S.r.l. reserves the right to call back the alleged defective goods complained by the counterparty, with freight cost borne by the counterparty. Should the alleged flaws/vices, after a technical expertise, be confirmed by Columbia S.r.l.:
• in case of flaws/vices not imputable to Columbia, the defective goods may be replaced upon request and at expensive of the counterparty (transport included) and the replaced goods shall be invoiced and paid according to the provisions set forth in the main agreement or in the purchase order;
• in case goods result to be spoiled in origin (i.e. construction flaws/vices), the decision to repair and/or replace the defective goods is at exclusively discretion of Columbia S.r.l. Unless further new requests than those set forth in the main agreement, or in the purchase order, or in the order confirmation, reparation and/or replacement of defective goods will be at no-cost for the counterparty. Freight cost will be also borne by Columbia S.r.l.
Any claim and/or contention regarding services and goods provided according to the main agreement, the purchase order, or the order confirmation shall reach Columbia S.r.l. by e-mail within and not later 10 (ten) days from the moment on which the counterparty has the availability of goods. After such term, the goods will be considered as regularly accepted and no claim of any kind can be made.
The counterparty shall pay Columbia S.r.l. the fee as set out in the main agreement, or in the purchase order, or in the order confirmation and in accordance with the payment terms provided therein. In addition to the fee, the counterparty shall pay Columbia S.r.l. VAT, if applicable, at the prevailing rate.
Should the counterparty fail to comply with its payment obligation under the main agreement, or the purchase order, or the order confirmation, Columbia S.r.l. reserves the right to suspend at its discretion, in whole or in part, supply of services/goods as well as to early terminate the main agreement and the purchase order.
In case of delayed payment, the counterparty is obliged to pay default interests from the day of getting into delay. The rate of the default interests is the interest rate defined by the applicable law. Columbia S.r.l. retains ownership of the picked-up / delivered goods until the payment of the last invoice regarding these goods.
The counterparty is not entitled to sell, pawn, transfer the ownership or pledge of the unpaid picked-up / delivered goods as security to any third party. In case of seizure, confiscation or other dispositions by third parties, Columbia S.r.l. must be notified without any delay. The application to open insolvency, bankruptcy, dissolution or involuntary cancellation proceedings, entitles Columbia S.r.l. to rescind the main agreement and the purchase order, and to demand the immediate return of picked-up / delivered goods.
In case of fluctuations in the rising cost of raw materials used by Columbia S.r.l. for goods supply (i.e. steel) greater than 10% (ten) compared to the original cost, Columbia S.r.l. shall be authorized to carry out an adjustment of the previously agreed prices in proportion to amounts on its target market. It is understood that in such circumstance the new unit price list of the individual product will be agreed between the Parties and thus will replace the one indicated in the main agreement, in the purchase order, or in the order confirmation.
9. FORCE MAJEURE
No Party shall be liable to the other for failures or delays in the execution of any obligation arising from the main agreement, or the purchase order, or the order confirmation for the period and to the extent that such failure or delay is caused by force majeure. For the purposes of this clause, force majeure means any and every event that comes out of the control of the Parties, preventing the fulfillment of contractual obligations of these, such as, but not limited to riots, insurrections, wars, laws, orders or regulations, actions of the government or any of its organs, storms and floods, fires, sabotage, unannounced interruptions to supply electric power or even strikes and/or service interruption which are unplanned and unforeseeable by Columbia S.r.l. and, however, which cannot be attributed to Columbia S.r.l.
The Party intending to make use of this provision shall inform the other in writing of the event of force majeure; such notice, where possible, should be accompanied by documents proving the existence of the event of force majeure.
10. INTELLECTUAL PROPERTY RIGHTS
Columbia S.r.l. is the sole and exclusive owner of all intellectual and industrial property rights belonging to and/or arising from the services and goods provided under the main agreement, the purchase order and the order confirmation, unless otherwise agreed in writing between the parties.
Columbia S.r.l. guarantees to the counterparty that the goods supplied under the main agreement and the purchase order are not produced in violation of third party´s intellectual and industrial property rights of any kind.
The counterparty will be held harmless from Columbia S.r.l. from any loss or damage that may be obtained or requested by any third party relating, directly or indirectly, to the violation of this provision by Columbia S.r.l. and/or arising from images, designs or sketches provided to Columbia S.r.l. by the counterparty.
Each Party undertakes to keep strictly confidential and not to reveal any news, information and messages contained in the paper, electronic or any other form regarding the main agreement and its annexes as well as the execution thereof, unless one of the Parties must comply with legal obligations or requests by public authorities to which they cannot plead a legitimate refusal. The information that has become part of the public domain is excluded from the confidentiality obligations set forth in this article. The obligations under this article shall also persist for 3 (three) years following the expiration of the main agreement or its termination for any reason, or the fulfillment of the purchase order or order confirmation. In case the confidentiality clause is breached, the non-breaching Party shall have the right to take legal action to protect its rights.
In addition to the cases expressly provided for in the main agreement, without prejudice to the provisions of the applicable law regarding the termination and damage compensation, Columbia S.r.l. may early terminate with immediate effect the main agreement and the purchase order where the counterparty fails to respect the payment terms set forth in the main agreement, or in the purchase order, or in the order confirmation.
Should the main agreement, or the purchase order, or the order confirmation be early terminated due to the fact or fault of the counterparty, Columbia S.r.l. will be entitled to be paid for all services rendered and for all the goods produced so far, for the goods still in production and for the expenditure commitments, related to the main agreement, the purchase order, or the order confirmation assumed up to at that time against third parties.
Columbia S.r.l. reserves the right to assign, in whole or in part, the main agreement, the purchase order, or the order confirmation in favor of subsidiary and/or affiliate companies of the Schweitzer Group.
Any communication between Columbia S.r.l. and the counterparty shall be deemed validly and effectively performed in receipt of the same, if made by registered mail with return receipt, fax, or ordinary e-mail. The Parties have responsibility to inform each other of any change of their legal address; in the absence of this requirement, the notices shall be deemed duly submitted once arrived to the aforementioned.
14. COMPETENT COURT
The main agreement, the purchase order, the order confirmation and these GTS shall be interpreted and governed exclusively in accordance with Italian law. All disputes arising from the validity, efficiency, execution, termination and interpretation of the main agreement, purchase order, the order confirmation and GTS shall be under the exclusive jurisdiction and competency of Italian Courts according to the registered seat of Columbia S.r.l.
15. FINAL CLAUSES
All changes to these GTS, as well as to the main agreement, purchase order and the order confirmation must be made in writing and be signed by the duly authorized representatives of both Parties.
In the event that one or more of the provisions governed by the main agreement, purchase order, order confirmation and GTS are invalid, in whole or in part, such provision shall not invalidate the other provisions which shall be interpreted as if such invalid or unenforceable provision had not been included herein.
The Parties declare that there is no dissolution procedure, bankruptcy, liquidation or winding-up process in progress related to them, based on their knowledge no one filed such an application against them and they have not launched such proceedings against themselves either, further there are no pending judicial or administrative proceedings against them, which would eliminate to pursue their business activities or the fulfillment of the main agreement or the purchase order, or even which may end with a decision that may result in this.
The Parties undertake that, if such proceedings are initiated against them or they launch such against themselves, then they announce it to each other, not later than 3 (three) days from learning.
The main agreement, the purchase order, the order confirmation and the GTS are to be considered as mutually connected. In the case of non-compliance or divergence between such documents, and unless otherwise expressly provided, the content of each has the value prevailing over the next one, in the order shown below:
1. main agreement;
2. purchase order;
3. order confirmation;