1) All sales are governed by these sale conditions
All the sales that will be performed by Profilglass S.p.A., Zona Ind. Bellocchi, Via Meda, 28, 61032 Fano (PU), Italy, VAT no. 00706270410, (Profilglass) are regulated by the following sale conditions, even if these are not expressly recalled in the order or confirmation.
In case of products to be delivered in the United States of America or in Canada, the retention of title set forth in article 13 below shall not apply.
Taking delivery of the products always implies the acceptance of the sale conditions without any reservations by the customer.
2) Seller’s literature
ALL DRAWINGS, DESCRIPTIONS, DETAILS ON WEIGHT AND SIZE, AS WELL AS THE ILLUSTRATIONS CONTAINED IN OUR CATALOGUES OR ANY OTHER INFORMATION GIVEN WITH ADVERTISING ARE NOT CONTRACTUALLY BINDING.
3) Products and technical specifications
The products will be manufactured in compliance with the technical specifications provided by the customer.
The customer has the duty and exclusive responsibility to check that the technical specifications are complete, correct and comply with all applicable regulations. Profilglass is not responsible for the fitness of the products to the uses or purposes indicated by the customer.
Profilglass has intellectual/industrial property rights over the tooling, whether or not designed and/or manufactured by Profilglass.
Profilglass has the right to destroy or to send back the tooling at the customer’s expense if, in Profilglass’ opinion, the quantity of the products ordered in the previous two years is not adequate.
The customer shall pay all costs of replacement, repair or refurbishment of the tooling due to wear and tear.
5) Intellectual/industrial property and confidentiality
INTELLECTUAL/INDUSTRIAL PROPERTY RIGHTS INHERENT IN THE DOCUMENTS PROVIDED, MANUFACTURING PROCESSES, METHODS, INVENTIONS, TOOLING, AS WELL AS KNOW-HOW ACQUIRED PRIOR TO OR DURING THE MANUFACTURING PROCESS BY PROFILGLASS SHALL REMAIN THE EXCLUSIVE PROPERTY OF PROFILGLASS. THESE RIGHTS MAY ONLY BE TRANSFERRED TO THE CUSTOMER ON CONDITION THE PARTIES SIGN A WRITTEN AGREEMENT WHICH INCLUDES FINANCIAL CONSIDERATION.
The parties hereby agree on a reciprocal basis to a general obligation of confidentiality covering all items exchanged in connection with the preparation and the execution of the order.
6) Offers – Agents – Brokers
All offers made by Profilglass are subject to these sale conditions.
Agents and brokers cannot bind Profilglass.
Orders must include the complete technical specifications of the products and the data of the customer (full name and address).
Profilglass is free not to process orders that do not include any of the above data.
Profilglass is not obliged to process, accept or confirm the orders.
Orders processed by Profilglass generate a confirmation that is submitted to the customer.
IF THE CONFIRMATION DIFFERS FROM THE ORDER, THE CONFIRMATION WILL PREVAIL OVER THE ORDER AND THE CUSTOMER SHALL BE BOUND BY THE CONFIRMATION UNLESS IT WITHDRAWS FROM THE SALE BY GIVING WRITTEN NOTICE THEREOF TO PROFILGLASS WITHIN 2 (TWO) DAYS AFTER RECEIPT OF THE CONFIRMATION.
A TOLERANCE OF +/- 10% IN THE QUANTITY OF PRODUCTS SUPPLIED IS ALLOWED AND ACCEPTED BY THE CUSTOMER.
9) Delivery, transport, verification and acceptance of delivery of the Products
IN ANY EVENT DELIVERY TIMES AND DATES ARE INDICATIVE ONLY AND ARE NOT BINDING FOR PROFILGLASS.
PROFILGLASS CANNOT BE CONSIDERED IN DEFAULT IF THE DELAY DEPENDS ON CIRCUMSTANCES OF FORCE MAJEURE OR ANYHOW BEYOND PROFILGLASS’ CONTROL.
IN CASE OF DELAY IN DELIVERY THE CUSTOMER SHALL BE ENTITLED TO WITHDRAW FROM THE SALE BY GIVING 15 (FIFTEEN) WORKING DAYS WRITTEN NOTICE THEREOF TO PROFILGLASS BEING EXCLUDED ANY CLAIM FOR DAMAGES OTHER THAN REIMBURSEMENT OF THE DOWN PAYMENT, IF ANY, WITHOUT INTEREST. IT IS EXPRESSLY EXCLUDED THE RIGHT OF WITHDRAWAL IF THE DELAY DEPENDS ON THE FACT OF THE CUSTOMER OR BEYOND PROFILGLASS’ CONTROL. DURING THE PERIOD OF NOTICE OF WITHDRAWAL PROFILGLASS SHALL BE ENTITLED TO DELIVER THE PRODUCTS KEEPING UNALTERED THE VALIDITY OF THE SALE CONTRACT.
PROFILGLASS SHALL NOT BE LIABLE TOWARDS THE CUSTOMER OR THIRD PARTIES FOR DAMAGES CAUSED DIRECTLY OR INDIRECTLY BY DELAYS IN DELIVERY.
10) Events beyond Profilglass’ control
In case of events beyond Profilglass’ control, Profilglass will have the right to suspend, postpone or cancel any offer or confirmation and it will not be responsible of delay or failure to deliver.
11) Price and Payment
Prices are set on a pre-VAT. PROFILGLASS HAS THE RIGHT TO REVISE THE PRICE OF THE PRODUCTS IF CHANGES IN THE PRICES OF RAW MATERIALS OCCUR BETWEEN THE OFFER AND THE DATE OF THE DELIVERY. PRICES SHALL BE INVOICED ACCORDING TO THE CONDITIONS SET IN THE CONFIRMATION.
Payments shall be made in the currency specified on the invoice.
UNLESS OTHERWISE AGREED, PAYMENTS SHALL BE MADE ON THE TERMS SET FORTH IN THE INVOICE. UNLESS OTHERWISE AGREED, THE PAYMENT TERMS AGREED OR USED BY THE PARTIES FOR PREVIOUS SALES SHALL EXTEND TO SUBSEQUENT SALES. UNLESS OTHERWISE AGREED, ADVANCE PAYMENT WILL NOT ENTITLE TO ANY DISCOUNT.
DELAY IN PAYMENT ENTITLES PROFILGLASS TO:
a) SUSPEND THE PRODUCTION AND THE DELIVERY OF THE RELEVANT ORDER AND OF ANY OTHER ORDERS;
b) REQUEST IMMEDIATE PAYMENT FOR ALL THE OUTSTANDING INVOICES AND INSTALMENTS, EVEN IF NOT YET DUE;
c) RECEIVE INTERESTS AT THE INTEREST RATE SET OUT IN DIRECTIVE 2011/7/EU;
d) CANCEL ANY ORDER, EVEN IF CONFIRMED;
e) ENFORCE THE RETENTION OF TITLE RIGHTS.
THE RETURN OF PRODUCTS FURTHER TO THE CUSTOMER PAYMENT’S FAILURE INVOLVES THE PROFILGLASS’ RIGHT TO CLAIM FOR ALL THE COSTS AND CHARGES DUE TO THE IMPOSSIBLE PRODUCTS RESALE OR THEIR DEPRECIATION.
12) Change in the customer’s reliability
IN THE EVENT THE CUSTOMER SELLS, TRANSFERS, PLEDGES OR CONTRIBUTES ITS BUSINESS TO A COMPANY OR A SIGNIFICANT PORTION OF ITS ASSETS OR ITS EQUIPMENT, IN THE EVENT OF A DETERIORATION OF THE CUSTOMER’S FINANCIAL POSITION AND/OR ITS FAILURE TO COMMUNICATE THE YEARLY FINANCIAL STATEMENTS, PROFILGLASS SHALL HAVE THE RIGHT WITHOUT PRIOR, FORMAL NOTICE TO:
– EXERCISE ALL THE RIGHTS PROVIDED FOR IN CASE OF DELAY OF PAYMENT; AND IN ADDITION,
– RETAIN THE AMOUNT OF ALL DOWN PAYMENTS RECEIVED, TOOLING AND PARTS IN ITS POSSESSION UNTIL FULL COMPENSATION.
13) Retention of title (Not applicable in case of products to be delivered in the United States of America or in Canada)
PROFILGLASS HAS THE FOLLOWING SECURITIES UNTIL SATISFACTION OF ALL CLAIMS (INCLUDING ALL BALANCE CLAIMS FROM OPEN ACCOUNTS).
THE PRODUCTS SUPPLIED REMAIN THE PROPERTY OF PROFILGLASS UNTIL EFFECTIVE AND COMPLETE PAYMENT OF THE SAME IS RECEIVED BY PROFILGLASS.
IN THE EVENT OF SEIZURE OF THE RESERVED GOODS BY THIRD PARTIES, THE CUSTOMER SHALL INFORM THE THIRD PARTY OF PROFILGLASS’ OWNERSHIP AND INFORM PROFILGLASS WITHOUT DELAY.
THE RETENTION OF TITLE SHALL, IN ADDITION, INCLUDE THE FOLLOWING:
A) PROFILGLASS SHALL HAVE THE RIGHT TO ACCESS TO THE PREMISES WHERE THE RESERVED GOODS ARE HELD, RE-ENTER INTO POSSESSION OF THE RESERVED GOODS AND WITHHOLD THE INSTALMENTS ALREADY PAID BY THE CUSTOMER.
B) THE EXERCISE BY PROFILGLASS OF ITS RIGHT TO RE-ENTER INTO POSSESSION OF THE RESERVED GOODS SHALL NOT CONSTITUTE, AND MAY NOT BE INTERPRETED AS, EITHER A CANCELLATION OR A TERMINATION OF THE SALES CONTRACT, EXCEPT IN THE CASE WHERE PROFILGLASS EXPRESSLY STATES ITS INTENTION TO CANCEL OR TERMINATE THE SALES CONTRACT.
14) Sales warranty and liability
Profilglass hereby guarantees that the products will be in compliance with the customer’s technical specifications and quality instructions;
Profilglass does not guarantee that the products match a specific application or that are fit for a specific purpose. It is the duty of the customer to test whether the product is fit for any purpose. The customer is responsible for using and implementing the product under normal, expected conditions of use, as well as in line with the trade practices in its sector of business.
THE WARRANTY PERIOD UNDER STANDARD STORAGE CONDITIONS IS 6 (SIX) MONTHS FROM DELIVERY.
The customer shall examine the products and report in writing any patent damage, lack of conformity or defect (hereinafter “defect”) within 10 days from delivery. Hidden defects must be reported in writing within 10 days from discovery and, in any event, within the warranty period. The report must contain a written description of the defect and photographs of the defect.
IN CASE THE CUSTOMER DOES NOT REPORT THE DEFECTS WITHIN TERMS DESCRIBED ABOVE, THE WARRANTY RIGHTS OF THE CUSTOMER SHALL BE TIME BARRED AND ANY AND ALL WARRANTY RIGHTS SHALL BE UNENFORCEABLE.
AT PROFILGLASS’ REQUEST AND EXPENSE, THE CUSTOMER SHALL DELIVER THE DEFECTIVE PRODUCT TO PROFILGLASS. NO RETURNS OF PRODUCTS ARE AUTHORIZED WITHOUT HAVING FIRST OBTAINED THE AUTHORIZATION FROM PROFILGLASS. PROFILGLASS HAS SOLE AUTHORITY TO JUDGE WHETHER OR NOT A PRODUCT CAN BE RETURNED. FAILING PROFILGLASS’S AUTHORIZATION ANY PRODUCTS RETURNED WILL BE SENT BACK TO THE CUSTOMER AT THE CUSTOMER’S OWN EXPENSE.
PROFILGLASS’S WARRANTY IS LIMITED TO:
(A) REPAIR OR REPLACEMENT OF (NOT INCLUDING THE COSTS TO UNINSTALL AND INSTALL) THE DEFECTIVE PRODUCT; OR
(B) REFUND OF THE PURCHASE PRICE OF THE DEFECTIVE PRODUCT.
Administrative expenses related to costs to process compliance failures declared by the customer shall not be borne by Profilglass.
THIS WARRANTY DEFINES ALL WARRANTY RIGHTS OF THE CUSTOMER AND ANY OTHER RIGHT OR REMEDY IS EXPRESSLY EXCLUDED.
THIS WARRANTY IS IN LIEU OF ANY OTHER LEGAL WARRANTY, GUARANTEE OR LIABILITY. THEREFORE ANY OTHER PROFILGLASS’S LIABILITY (WHETHER CONTRACTUAL OR NON-CONTRACTUAL) WHICH MAY IN ANY WAY ARISE FROM OR IN RELATION WITH THE PRODUCTS (E.G. COMPENSATION OF DAMAGES, LOSS OF PROFIT, RECALL CAMPAIGNS, ETC.) IS EXPRESSLY EXCLUDED.
ANY CLAIM OR PROCEEDINGS IN RESPECT OF ANY DEFECTS OR BREACHES OF GUARANTEE MUST BE STARTED WITHIN 3 MONTHS AFTER THE EXPIRY OF WARRANTY PERIOD. AFTER THE AFORESAID PERIOD, THE CUSTOMER SHALL BE DEEMED TO HAVE WAIVED ITS RIGHT TO CLAIM UNDER ANY GUARANTEES OR LIABILITIES.
Profilglass shall in no event be held liable for loss or damage resulting totally or partially from the customer’s negligence or any incorrect intervention/installation, abuse, incorrect use of any product by any person other than Profilglass. The same is true for any problem caused by events beyond Profilglass’ control or by a force majeure event.
Product liability insurance coverage will be effective only and exclusively for products connected to the AUTOMOTIVE sector, duly declared at the agreement of the order.
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT IN CASES OF WILFUL MISCONDUCT, GROSS NEGLIGENCE OR BREACH OF PUBLIC POLICY, PROFILGLASS SPA SHALL NOT BE LIABLE – ARISING OUT OF OR IN CONNECTION WITH ANY BREACH OR VIOLATION OF THIS CONTRACT – FOR ANY DAMAGES, LOSSES, EXPENSES, CLAIMS OR DEMANDS OF THE FOLLOWING NATURE: DAMAGES AND EXPENSES FOR REPAIR/REPLACEMENT OF CUSTOMER’S OR THIRD PARTY’S PROPERTY, LOSS OF USE, LOSS OF PROFITS, LOSS OF REVENUE AND LOSS OF PROFIT, LOSS OF PRODUCTION, LOSS OF BUSINESS OR COMPENSATION, LOSS OF TIME, CUSTOMER COMPLAINTS, OPERATING COSTS, LEGAL OR FINANCIAL COSTS.
BY WAY OF EXAMPLE AND WITHOUT LIMITATION PROFILGLASS SPA SHALL HAVE NO OBLIGATION TO PAY, REIMBURSE, REPAIR, MAKE GOOD OR INDEMNIFY ANY DAMAGES, LOSSES AND EXPENSES THAT CUSTOMER MAY INCUR ON ITS MACHINERY (E.G. PRESSES, ROLLING MILLS, TREATMENT LINES, ETC.) DUE TO DEFECTS OR LACK OF CLEANLINESS OF THE PRODUCTS SOLD BY PROFILGLASS SPA (E.G. LAMINATES) THAT ARE TO BE USED IN SUCH MACHINERY AND/OR IN CUSTOMER’S PRODUCTION CYCLE.
The customer agrees to keep a traceability record for the products delivered by Profilglass used in its production or assembly chains, those of its sub-contractors or its customers.
15) Hygiene, Environment, Safety
Each Party hereby agrees to apply the legal and regulatory provisions in force applicable to health, safety, hygiene and the protection of the environment.
The customer agrees to comply with the provisions contained in Recommendation 182 of the International Labour Organization.
16) Import – Export Regulations
Certain products are subject to foreign, European or national regulations applicable to import and export. Unless otherwise agreed, Profilglass agrees to take the measures necessary to obtain the required export documents. The customer agrees to supply Profilglass with all documents requested by the competent authorities. Profilglass may not be held liable in the event an export license is not granted or is subsequently withdrawn.
The customer agrees not to export the products delivered by Profilglass to a country which is on the list of countries placed under embargo by the American and/or European authorities.
17) Applicable law and Jurisdiction
THESE SALE CONDITIONS AND ALL ORDERS, CONFIRMATIONS AND SALE CONTRACTS ARE GOVERNED BY THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALES OF GOODS (VIENNA CONVENTION 1980) AND, WITH RESPECT TO MATTERS NOT COVERED BY SUCH CONVENTION, BY THE LAWS OF ITALY.
IN CASE OF DISPUTE ABOUT THESE SALE CONDITIONS AND/OR ALL ORDERS, CONFIRMATIONS AND/OR SALE CONTRACTS, PROFILGLASS HAS THE RIGHT TO DECIDE WHETHER TO START ARBITRATION OR TO SUE THE CUSTOMER IN THE COURTS OF ITALY OR IN THE COURTS WHERE THE CUSTOMER HAS ITS DOMICILE OR SEAT.
IN CASE PROFILGLASS DECIDES TO START ARBITRATION, THE DISPUTE SHALL BE RESOLVED BY A SINGLE ARBITRATOR IN ACCORDANCE WITH THE RULES OF THE CHAMBER OF NATIONAL AND INTERNATIONAL ARBITRATION OF MILAN AND THE ITALIAN ARBITRATION LAW. THE SEAT OF ARBITRATION SHALL BE PESARO (ITALY). THE LANGUAGE TO BE USED IN THE ARBITRAL PROCEEDINGS SHALL BE ITALIAN.
ALTERNATIVELY TO ARBITRATION, PROFILGLASS, AT ITS DISCRETION, HAS THE RIGHT TO SUE THE CUSTOMER IN THE COURTS OF ITALY OR IN THE COURTS WHERE THE CUSTOMER HAS ITS DOMICILE OR SEAT.
THE CUSTOMER CAN ONLY SUE PROFILGLASS IN THE COURTS WHERE PROFILGLASS HAS ITS SEAT.
18) Validity of the present general sale conditions
The customer is deemed to be a well-informed business professional who is familiar with these sale conditions. These present sale conditions cancel and substitute any contrary previous documents or conditions.
Unless expressly agreed otherwise, all the sales are exclusively governed by these conditions of sale with express exclusion of customer’s conditions of purchase and, more generally, of all other provisions non compatible, in whole or in part, directly or indirectly, being represented in its own documents however they may be.