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General Terms and Conditions of Sale (rev. February 2018)

1 Definitions. General provisions.

For these General Terms and Conditions of Sale, the following definitions shall apply:

  • Supplier or Tierre Group: Tierre Group S.p.A., with its registered office in Cormano (MI), Via Dell'Industria 18;
  • Customer or Purchaser: the party that orders and purchases Products from the Supplier;
  • Party: the Supplier or the Customer;
  • Products: any and all products sold by Tierre Group from time to time;
  • General Conditions: these General Terms and Conditions of Sale.

1.2 These General Conditions shall apply to any sale of Products by Supplier. Any terms and conditions provided by Customer ‐ which are different than or additional to these General Conditions ‐ are not binding unless expressly accepted by Supplier in writing. In the event of any conflict or inconsistency between the terms and conditions provided by Customer ‐ if applicable ‐ and the General Conditions herein, these General Conditions shall prevail.

2 Orders and conclusion of the Contract

2.1 All orders placed by Customer, by telephone and in writing, shall be deemed binding offers to enter a contract. Such orders shall be deemed accepted only if Supplier has expressly confirmed them in writing, by sending the relevant order confirmations. In any case, the contract shall be deemed concluded only after the order confirmation is sent by Supplier, or the latter starts performing the order, according to Art. 1327 Italian Civil Code. It is understood that Tierre Group will remain free to wholly or partly accept the orders by Purchaser. If Supplier’s order confirmation is different from the order, for example in quantities, this confirmation shall be deemed as a Tierre Group’s offer that Customer must accept or reject in writing within three days from its receipt. In case of failure to send such communication, Tierre Group offer shall be deemed accepted by Customer.

2.2 Amendments, modifications or any other agreements, reached verbally or by telephone, are only legally binding if confirmed in writing by Supplier. This also applies to the waiver of this written form requirement.

2.3 Once Tierre Group approves the orders, they cannot be cancelled or changed by Customer without Tierre Group’s written consent. In this case, the terms of any new order must be reagreed between the Parties.

2.4 Partial deliveries are allowed.

2.5 Tierre Group will only evaluate orders of not less than 100 Euro excluding VAT (if applicable).

3 Supply of Products

3.1 Unless otherwise specified by Supplier in the written order confirmation, all catalogue descriptions, illustrations and drawings of the Products, and all other characteristics specified by Supplier are purely indicative and not binding.

3.2 Technical data and characteristics of Products shown in brochures or catalogues only provide a description of the Products; they do not include any legal or contractual warranty for Product characteristics, whether express or implied. Consequently, Purchaser is not relieved of verifying that the purchased Products are suitable for the intended use.

3.3 Tierre Group assumes no responsibility for the compliance of delivered Products with the Customer's needs, only ensuring their compliance with the information contained in the order.

3.4 Tierre Group is constantly engaged in Product research and development and reserves the right to modify its Products at any time, to maintain high quality standards. Supplier may change, correct or integrate the illustrative catalogues at any time and without prior notification.

3.5 Purchaser expressly undertakes not to use information or technical and commercial information, drawings or projects relating to the supply (except for reasons relating to the use of the Products supplied), which remain Tierre Group’s exclusive property. Products supplied, technical, commercial information, drawings and projects related to the supply cannot be delivered or transferred to third parties, nor can they be reproduced by Customer, even partially, without Tierre Group’s written authorisation.

3.6 The minimum order quantity varies depending on the product type and consists of the minimum standard package or 10‐piece bag.

4 Delivery, Transport and Shipping

4.1 Transport costs are borne by Purchaser or will be advanced by Tierre Group and charged on the invoice.

4.2 Unless otherwise agreed in writing, Products are supplied Exworks EXW (Incoterms 2010 ICC). Therefore, goods are considered delivered to Purchaser – and Supplier is simultaneously relieved of its obligation in this respect ‐ when the ordered Products have been delivered to the carrier for shipping, or when written notice is given to Customer that Products are ready for shipment.

4.3 Products always travel at the sole risk of Purchaser, which is obliged to collect them from carrier or directly from Tierre Group. The risk passes to Customer upon delivery of the goods, as defined in Art. 4.2 above. This applies even if the Parties have agreed on partial delivery, other services, or additional obligations by Supplier such as transport or payment of shipping costs. If goods are lost or damaged during transport or there are delivery delays attributable to the shipper and/or carrier, Purchaser can only claim against the appointed shipper and/or carrier, it being expressly excluded any Supplier’s liability in this respect. These provisions shall also apply when the delivery of goods is organised and carried out by Supplier.

4.4 If the delivery of goods is delayed due to circumstances for which Customer is responsible, the risk passes to Customer on the day on which the relevant goods are ready for shipment.

4.5 If Purchaser does not collect the goods, it will be charged for all damages and any consequent losses. If Customer does not collect or accept the ordered goods within 15 days from the date of the written notice that Products are ready for shipment, Tierre Group will be entitled to:

  1. invoice the storage costs incurred due to delay in collection/acceptance;
  2. establish an appropriate deadline by which Customer is required to accept the goods. After this additional period has elapsed, the goods shall be considered abandoned, and the Supplier shall be entitled to dispose of them, without prejudice to the Purchaser's obligation to pay the full price.

4.6 Without prejudice to Tierre Group willingness to comply with the delivery dates indicated in the order confirmation, the delivery terms must always be considered indicative. This means that any delivery delays will not give the Purchaser the right to terminate the contract, refuse the goods, or claim compensation for damages, unless a warning letter to fulfil the obligations is sent to Supplier according to Article 1454 Italian Civil Code.

4.7 If Tierre Group (or any of its suppliers or subcontractors, which are not easily replaceable) suffer unforeseeable events beyond the Supplier's control (Force Majeure) that prevent the latter from fulfilling its obligations hereunder within the agreed terms or from complying with the delivery terms, the said terms shall be deemed extended accordingly during such events. Examples of force majeure include the following: strikes or lockouts, epidemic, wars, measures and prohibitions by public authorities, fire, natural catastrophe, equipment accidents, lack or shortage of raw materials or labour, transport interruption, reduction or delays including those ones customs clearance, loss of a key subcontractor which is not easily replaceable, or any other event that causes a total or partial interruption of Tierre Group or its suppliers’ activity. Tierre Group will inform Purchaser in writing about the beginning and end of these impediments. It is understood that Customer cannot withdraw or terminate the contract because of the Force Majeure, nor request compensation for damages or reimbursement of costs and expenses incurred ‐ whatever its legal basis.

5 Packaging, Prices and Payment Conditions

5.1 The Product prices are based on the price list in force at the time of order confirmation. Orders, even if confirmed, are considered accepted unless there are any price increases of raw materials, imposed by Tierre Group suppliers or deriving from circumstances beyond Supplier’s control, which may occur between the conclusion of the contract and the delivery of Products. In this case, Tierre Group will be entitled to increase the sale prices charged to Customer in proportion to the increase Tierre Group has suffered.

5.2 Unless otherwise agreed, the prices refer to Products packaged according to the sector standards for the agreed means of transport and with Ex Works delivery term. It is understood that any other expenses or charges will be borne by Customer. VAT (if applicable) will be added based on the then applicable rate.

5.3 Payment conditions are binding and are indicated in the order confirmation and shown on the invoice. In case of late payment, Customer will be obliged to pay Tierre Group the default interest at the reference rate indicated by Legislative Decree no. 231/2002. If there is a late payment, Supplier will have the right without the need for prior notice:

  1. to suspend or cancel any further supply to Customer, without prejudice to the right to compensation for damages;
  2. to demand immediate payment of the sums, for any reason due by Purchaser, and which deadline has not yet expired;
  3. under Art. 1456 Italian Civil Code, to consider the contract or contracts that are fully or partly defaulted by the Purchaser legally terminated, without prejudice to the right to compensation for damages.

By express agreement between the Parties, any dispute raised by Purchaser or otherwise arising between the Parties cannot suspend Purchaser's obligation to provide for the full payment of the goods purchased within the agreed term.

6 Retention of title

6.1 Tierre Group shall retain title to all Products delivered until the full payment of the purchase price and all outstanding amounts resulting from the business relationship with Customer.

6.2 Customer cannot pledge or guarantee Products subject to retention of title. If there are any pledges, confiscations or similar actions by third parties made on the Supplier’s Products, Purchaser shall immediately inform Tierre Group and cooperate with it to protect its rights.

6.3 The Customer is only authorised to resell the Products subject to retention of title or to use them in the usual course of business. If the relevant Products are resold, Customer assigns all its claims against the purchaser to the Supplier and, according to Art. 1264 Italian Civil Code, undertakes to promptly notify the purchaser of any assignment of the latter’s debts to the Supplier. If Customer fails to do so, the Supplier shall be entitled to notify the purchaser directly of the transfer of receivables. Supplier accepts such a transfer in its favour. If the Products subject to retention of title are sold together with other products and a separate price has not been agreed for the retained Products, Customer shall assign to the Supplier such fraction of the total sale price as is attributable to the price of the retained goods invoiced by the Supplier.

6.4 If Supplier enforces the retention of title over the Products or pledges them, this shall not be deemed a termination or withdrawal from the contract.

6.5 In the event of default in payment, Customer is obliged to surrender the goods subject to retention of title, even if Supplier does not withdraw or terminate the contract. In this case, Customer irrevocably consents for the Supplier to collect the Products subject to retention of title immediately and allow the Supplier's access to its premises and warehouse for this purpose without obstacles. After taking back the goods under retention of title, the Supplier is entitled to utilize them as it wishes.

7 Product Quality. Warranty. Complaints

7.1 Tierre Group guarantees that Products supplied are free of defects for twelve months starting from the delivery date, as defined in Art. 4.2 above. The warranty for defects is limited only to material or construction defects attributable to Supplier. The warranty does not cover defects due to incorrect use, maintenance and conservation of the Products, nor any modification, transformation or repair of the Products without the express consent of the Supplier. The warranty is conditional on the Customer’s full payment for the goods.

7.2 Any apparent defects or faults, shortages and any other objections must be communicated in writing by Purchaser to Tierre Group no later than eight days from the goods’ receipt, under penalty of forfeiture. Complaints regarding hidden defects must be made within eight days from their discovery. If the Customer does not respect these terms, the Products shall be deemed accepted.

7.3 In case of complaints, Tierre Group reserves the right to examine the concerned goods, and the Purchaser must keep them until they have been inspected or until it receive instructions from Supplier. It is understood that Purchaser loses its warranty if it does not allow Tierre Group to make all reasonable checks on the Products reported as defective.

7.4 If Purchaser has promptly reported the defects and paid the full price of the Products affected by the claim, as provided for in Articles 7.1 and 7.2 above, and the claim is deemed to be founded and relevant by Tierre Group, it will take reasonable steps to replace the defective Products or their parts free of charge. The replaced goods will become the Supplier’s property and must be returned to the latter.

7.5 The warranty referred to in this article excludes any other Tierre Group’s liability arising from the Products supplied to the maximum extent permitted by applicable law. This means that Purchaser cannot make further claims for damages, price reductions or terminate the contract.

7.6 The warranty is conditional on Purchaser preserving the original packaging of the Products.

7.7 No material, which is returned without prior authorisation from Tierre Group, is accepted and, the return must be made free of charge for Supplier, unless otherwise agreed between the Parties.

8 Supplier's Limitation of Liability

8.1 To the maximum extent permitted by applicable law, and except in cases of wilful misconduct or gross negligence, Tierre Group shall not be liable for any damage that the Customer may suffer as a result of the supply of Products or breach of contract.

8.2 All claims by Customer for damages or reimbursement of expenses or other costs that do not strictly relate to the Products supplied by Supplier, to the maximum extent permitted by applicable law and regardless of their legal basis, are excluded. These include damages for loss of production, use, orders, profits and third party claims and indirect or consequential damages. Supplier’s liability for facts or omissions due to its auxiliary personnel is excluded to the maximum extent permitted by law.

8.3 Customer’s rights arising from or connected to the contract, as well as any breach of contract are expressly and exhaustively governed by these General Conditions. Any other additional right is expressly excluded.

9 Final provisions

9.1 Invalidity of one or more provisions of these General Conditions does not affect in any way the validity of the remaining provisions.

9.2 Any tolerance by Tierre Group of any behaviour by Purchaser which is contrary to the law or these General Conditions and/or to any single contract between the Parties does not constitute acquiescence or indicate the dissolution of the contract (s) by mutual consent and/or dissent, with the consequent right for Tierre Group to act to protect its damaged rights or interests.

9.3 Purchaser cannot transfer the contract with the Supplier to third parties or, any rights or obligations deriving from it, without Tierre Group’s prior written acceptance. It is understood that even if the Supplier agrees to the transfer, Purchaser will still be jointly and severally liable with the assignee for the timely and correct fulfilment of the transferred obligations.

10 Applicable law. Court jurisdiction.

10.1 These General Conditions, as well as all contracts between the Parties, are governed exclusively by Italian law with no regard to its conflict‐of‐law rules. The Vienna Convention on the International Sale of Goods of 11 April 1980 (CISG) does not apply.

10.2 All disputes concerning or deriving, directly or indirectly, from these General Conditions, and any contract between the Parties for the supply of Products, will be referred to the exclusive jurisdiction of the Court of Milan. Expressly excepted, however, is Tierre Group right to initiate proceedings against the Purchaser before any legal authority which, in the absence of the present disposition, would ordinarily have jurisdiction on the dispute according to the provisions of the Applicable Law.

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