1. General provisions
1.1 - Except as otherwise expressly provided for in any special conditions of sale expressly agreed upon in writing between ITLA Bonaiti s r l and its customer (hereinafter this latter the “Buyer” and collectively the “Parties”), the present general conditions of sale (hereinafter referred to the “General Conditions”) shall apply to the sale of materials manufactured/processed by ITLA Bonaiti (hereinafter also referred to as “ITLA Bonaiti” or the “Seller”) (hereinafter the “Materials”).
1.2 - All the contracts for the sale of the Materials (hereinafter referred to as the “Sale”/the “Sales”) executed in Italy and abroad between Seller and any of its customers are governed by the present General Conditions.
1.3 - The General Conditions applying to each Sale are those included in the ITLA Bonaiti Offer. Moreover, the General Conditions are published on Bonaiti website and Itla Website
2. Ancillary documents and execution of the sale contract
2.1 - Any ancillary documents and other items related to the Sale such as, by way of example, photos, designs, are only for reference purposes, unless it is expressly indicated by the Seller that such items are to be considered binding.
2.2 - The Sale contract (the Sale) shall be considered executed when the Buyer receives the Confirmation Order issued by ITLA Bonaiti upon receipt of the Buyer’s Order including the Offer, the details of the Materials ordered, these General Conditions and the special conditions of Sale di cui all’Offerta, if any, duly signed and initialled on each page by the Buyer (hereinafter the Execution of the Sale). In the lack of Confirmation Order the Sale contract shall also be considered executed if and when the Seller, after receipt of the Buyer’s Order complete as above, performs any delivery of Materials ordered.
The Buyer’s Order, complete as above, shall be sent by Buyer to I t l a Bonaiti by email, within and not later than 15 (fifteen) days from the date of issue of ITLA Bonaiti Offer, with the original following by post or courier.
The Seller expressly reserves the right not to accept any Buyer’s Order nor to perform same if same Order does not correspond to the Offer or if the Order is not complete as above, or if such Order and all related documents are not returned to I t l a Bonaiti duly signed or are received by the Seller after the above 15 (fifteen) day term.
In the case of a continuative client, this latter shall send to ITLA Bonaiti these General Conditions of Sale signed with its first Order and same General Conditions shall apply to all subsequent Orders issued by said client in that calendar year.
2.3 – ITLA Bonaiti shall not be bound by any change proposed by the Buyer after Execution of the Sale unless such change is specifically accepted in writing by ITLA Bonaiti.
2.4 - Should a payment be provided upon Execution of the Sale, the contract shall be deemed effective and binding for I t l a Bonaiti only subject to full and timely performance of such a payment.
3.1 - Unless otherwise expressly agreed in writing between the Parties, the delivery of the Materials shall be FCA at Seller's premises, such a term having the meaning given to same by the Incoterms edited by the International Chamber of Commerce of Paris (ICC), in force at the time of Execution of the Sale.
3.2 - Unless otherwise expressly agreed in writing between the Parties the delivery terms of the Sale are indicative but not binding for ITLA Bonaiti; ITLA Bonaiti however shall do its best to meet the delivery terms agreed upon.
3.3 - Without prejudice to the generality of the foregoing, the delivery term shall be deemed fulfilled at the time the Seller notifies the Buyer by email that the concerned Materials are ready for loading at the Seller’s premises. The carrier entrusted by the Buyer shall take the Materials no later than 5 days days after the date of ready for loading notice; any delay in taking the Materials shall make the Buyer liable for any cost and damage caused thereby to the Seller. 3.4 - The delivery terms shall run provided that the Buyer, at its own care and costs, has provided to the Seller all information, items and details necessary to perform the Order, such as technical details, samples and moulds for the manufacturing, testing materials for any special test agreed by the Parties to be performed at ITLA Bonaiti’s premises on the Materials
3.5 - The delivery terms shall run provided that the Buyer has fulfilled its payment obligations to the extent and within the terms agreed upon.
3.6 - The Seller shall do its best to comply with the delivery terms agreed upon; without prejudice to the mandatory limits set forth by the applicable law, any delay in delivery shall not entitle the Buyer to claim termination of the Sale contract or damages of any kind. Any later modification to the agreed upon delivery date requested by the Buyer shall not have any value unless accepted in writing by the Seller.
3.7 - Without prejudice to the provision under Section 3.2, the delivery terms shall be deemed automatically proportionally extended in the following events:
(a) insufficiency, mistake or delays of the Buyer in forwarding any indications necessary for the performance of the Sale, including the testing items necessary to perform tests on the Materials, if any;
(b) force majeure, such as, by way of example, lack or insufficiency of energy, strikes -total or partial-, riots, wars ad any other case not dependent on the Seller, even if occurred at this latter's suppliers, without prejudice to the Seller's right to terminate the contract giving notice thereof to the Buyer;
(c) Buyer's default under the provided payment conditions, without prejudice to the Seller's right to termination pursuant to Section 7.
4. Transfer of title and passing of risk of loss
4.1 - The transfer to Buyer of the property title over the Materials shall occur at the time of passing of risk as provided by the applicable Incoterms, upon the condition that the payments applicable at that time, even relating to different Orders, have been duly performed by the Buyer.
5. Price and payment conditions
5.1 - The purchase price of the Materials (hereinafter the “Price”) shall be deemed net of VAT, FCA Seller's premises, unless otherwise expressly agreed upon in writing between the Parties; the Seller is entitled to revise prices in case the Buyer, after the issue of the Order Confirmation, requests such technical modifications or amendments of the agreed contractual conditions, including a postponement of the delivery.
5.2 - The Price shall be paid by the Buyer in accordance with the Parties’ specific written agreement.
5.3 - Payments may not be withheld by the Buyer for any reason whatsoever, and the latter expressly agrees to be entitled to raise any claim or complaint only after having duly and fully performed its payment obligations.
5.4 - Any delay in payments may cause the charge of interests at the rate provided for by Italian law for commercial debts increased by 2 (two) percentage points; it also will cause the acceleration of Buyer's payments, if any payment in instalments was provided, so that all amounts due by Buyer, even relating to different Orders, shall become fully payable immediately upon Seller's request in writing in that respect. Should the Buyer fail to pay any amount due to the Seller before the date of delivery, the Seller will be entitled to suspend and/or cancel any current supply to the Buyer, regardless that it relates to the same Order or to another order, without prejudice to the other remedies provided for by the contract and the law,
6. Additional costs and duties
6.1 - Unless otherwise provided in these General Conditions or expressly agreed upon in writing between the Parties, any and all taxes, duties, special testing costs, as well as any transport and insurance costs relating to the Materials and, in general, any other cost and duty, present or future, accessory to the Sale, shall be borne by the Buyer.
7. Warranty, liability and limitations
7.1 - The Seller warrants that prior to the delivery the Materials have been tested, quality controlled and measured according to procedures complaint with ISO/TS 16949:2009 and/or UNI EN ISO 9001:2008 standards, adopted by the Seller, as certified by the appropriate authorities, and that the Materials are fit pursuant to such tests. Any additional specific test which the Buyer may request shall need to be expressly agreed upon by the Seller; costs thereby shall be borne by the Buyer, unless otherwise agreed in writing.
7.2 - As to measures of width and thickness, unless specific different allowances (tolerances) are agreed upon between the Parties in the contract of Sale or elsewhere in writing, the UNI-En 10140-2006 CAT. A and CAT. B allowances (tolerances) shall apply between the Parties; as to weight of the Materials, a tolerance of +/-20% of the weight relating to each order position, by order position it being meant each type/measure of Material included in the Order, shall apply.
7.3 - The Sellers’s testing and quality controls on the Materials as per Section 7.1 above in practice c o u l d include the following: - Tensile strenght test (UNI EN ISO 6892-1); - Folding test (180°) (I.LAB.001); - depending on the Buyer’s choice, Vickers Hardness test (UNI EN ISO 6507-1-2-3), Brinell Hardness test (UNI EN ISO 6506-1-2-3), Rockwell Hardness test (UNI EN ISO 6508-1-2-3); - decarburation test (ISO 3887:2006 UNI EN 10132:2002 steel strip EN 10263:2001 wire I.LAB.004); - Inclusion test (UNI 3244/DIN 50602; I.LAB.004); - Test of the metallographic structure (Sep 1520 analysis of the quantity of perlite, metallographic dimension of the carbids, band of carbids I.LAB.004); - Test of the apparent grain size (UNI EN ISO 643:2006/ASTM E 112; I.LAB.004); - Roughness test (I.O. N°41; ISO 1997); - Chemical analysis (I.LAB 005). The Sellers might adopt such new practices of testing and quality control as may be deemed reasonably necessary from time to time, in the interest of continuous improvement and efficiency.
7.4 - The Seller shall keep the traceability of the Materials processed up and sold through: 1) storage of Worksheets for a period of 15 years and 2) storage of the tubes tested for each Worksheet for a period of 1 year, in accordance with applicable standards.
7.5 - The Seller shall take, test (and retain for the period of time provided for by Art. 7.4) samples of the Materials regarding each Worksheet of the Materials manufactured and sold to the Buyer and, provided that the sample testing results are compliant with the applicable UNI EN ISO standard, shall deliver to the Buyer a certification that such lot satisfies the technical specifications agreed upon and it is free from defects.
In case an equipment different from that used for initial sampling is used for actual manufacturing/processing, the Seller declares that it has in any case a process which assures the technical specification agreed upon; in such a case, the need of re-sampling the product is excluded.
7.6 - What certified pursuant to Section 7.5 above shall be the Seller’s warranty and shall last for 12 (twelve) months as of the delivery date.
7.7 - Obvious failures to meet the agreed upon specifications or obvious defects in the Materials (including by way of example any scratches, grazes, scores, oxidations and, generally, any defect of the surface aspect of the Material) or in its packaging shall be notified by Buyer to Seller at the time of unloading and, in any case, no later than 15 (fifteen) calendar days after the date of delivery; hidden failures to meet the agreed upon specifications or hidden defects shall be notified by Buyer to Seller within 150(one hundred and fifty) calendar days after delivery.
7.8 - Any failure by Buyer to notify Seller of any such failure and defect within the applicable terms set forth in Section 7.7 shall be a waiver of all Buyer’s warranty claims with respect to the concerned Materials.
7.9 - After the timely notification of failure or defect pursuant to Section 7.7 the Parties shall consult with each other in order to explain and resolve the discrepancy. The Buyer agrees to cooperate with the Seller to facilitate any activity relating to identification of the defect and its causes.
7.10 - If, after a good faith attempt by the Parties to do so, such consultation does not resolve the discrepancy within 90 (ninety) calendar days from the non-compliance/defect notice, the discrepancy shall be referred to an independent, reputable laboratory designated by Seller and acceptable to Buyer (whose acceptance, however, shall not be unreasonably withheld and which shall be given within the subsequent 10 (ten) calendar days). Buyer’s failure to reply shall be deemed an acceptance of the referral to such laboratory.
7.11 - If Buyer objects to such referral within the stated term and the Parties are unable to agree on a laboratory within subsequent 10 (ten) calendar days, the dispute resolution provisions of Section 9.2 shall apply.
7.12 - The independent laboratory shall examine representative samples of the concerned delivered Materials provided by Buyer as well as the samples retained by Sellers of the lots included in the concerned delivery; the resulting determination of the laboratory shall be binding on the Parties for the purposes hereof. The independent laboratory in its analysis shall apply the same tests as provided in Section 7.1 and shall consider the allowances as provided by Section 7.2.
7.13 - The cost of the independent laboratory shall be borne by (i) Buyer if the Materials are determined to be compliant, or (ii) by Seller, if the Materials are determined not to be compliant.
7.14 - Any Materials alleged by Buyer not to meet the specifications or to be defective shall be held without use pending the outcome of the laboratory’s analysis.
7.15 – The Materials determined to be non compliant or defective, by agreement of the Parties or by laboratory’s determination, shall be returned to the Seller or disposed by Buyer of at the Seller’s costs. The Seller may opt for return or for disposal, at its sole discretion.
7.16 - The Seller shall replace the defective/non compliant Materials with new Materials, at its own costs, as soon as feasible, or at the Seller’s option, the Seller shall refund the price of the Material.
7.17 - The Seller’s warranty does not apply in case of defects due to the Buyer or any third party. In particular, the Seller is not liable for normal wear and tear, improper handling during transportation, improper use, non-compliance with use-processing instructions, wrong installation by the Buyer or third persons, unfit storage; moreover, the Seller’s warranty is conditioned upon the performance of all Buyer’s contractual obligations.
7.18 - The remedy provided for by Section 7.16 is the sole remedy granted by the Seller. It is expressly excluded or waived any different right of the Buyer, including the right to recover any damages (including, without limitation, costs and loss of profit, damages as a consequence of the use or not-use of the Materials, damages claimed by third parties) or to terminate the Sale contract, within the mandatory limits of the applicable law.
7.18 bis - In the event that, as a result of the activity of identification of the defect of the Material and of the relating cause, it appears the absence of the defect or that same is not due to the Seller, all costs incurred by the Seller for the execution of such activities (including costs relating to transport and tests for the identification of defects and causes) will be charged to the Buyer.
7. 19 - The Seller’s warranty in this Section 7 is ITLA Bonaiti’s unique warranty with respect to the Materials and is made expressly in lieu of and exclude any implied warranties of any kind, including any implied warranties of merchantability or fitness for a particular purpose.
7.20 - In no case will ITLA Bonaiti be liable to Buyer other than for ITLA Bonaiti’s gross negligence or intentional acts.
7.21 – Without prejudice to the provisions of
Section 7.8, in no event will ITLA Bonaiti be liable to Buyer for any amount of damages of whatever kind that exceeds in the aggregate the total amount actually paid by Buyer to Seller as price of the Materials subject of the complaint. 7.22 - In no case ITLA Bonaiti shall be held liable in connection with the further processing, application, operation and in general whatsoever use of the Materials supplied to the Buyer, it being this latter’s liability to assure the suitability of the purchased Materials to those further processing, application, operation and in general whatsoever use, holding I t l a Bonaiti harmless from any claim, also of third parties, and damage in that respect.
8. Seller’s right to terminate the contract
8.1 - The Seller is entitled to terminate any Sale forthwith whenever:
i) the Buyer fails to fulfil its payment obligations,
ii) the Buyer’s financial capability is uncertain, iii) the Seller is not in a position to perform delivery for a cause not dependent on same, including, without limitations, governmental orders, strikes, occupation of factories, fires, explosions and/or lack of raw materials and means of transport.
9. Governing law and forum selection
9.1 - These General Conditions and the Sales to which they apply are governed solely by the laws of Italy, without reference to conflict of laws or international conventions.
9.2 - Unless otherwise agreed in writing between the Parties, any dispute arising out of or in connection with these General Conditions and/or the Sales, shall be exclusively examined by the Courts of Milano (Italy), without prejudice to the Seller’s right, at its own discretion, to sue the Buyer for any action whatsoever before the Courts of the place where Buyer is domiciled.