SIMON BUILDING SRL
GENERAL SALES CONDITIONS
The present General Sales Conditions (“Conditions”) shall apply to and be incorporated into any sales agreement entered into between Simon Building S.r.l., via Roma 13, 23845 Costa Masnaga (Lecco), Italy, (“Simon Building”) and the Client (“Client”) regarding the products of Simon Building (“Products”). The Conditions are expressly mentioned in any offer by Simon Building. The acceptance, express or implied by means of performance, of Simon Building’s offers shall imply knowledge and acceptance of the present Conditions, even if they are not specifically signed.
The application of any different term and condition whatsoever, even if applied by the Client pursuant to reference made to its own purchasing or contractual provisions, is expressly excluded. These Conditions shall prevail over and supersede any different term or condition that may be referred to by the Client.
Any modification to the Conditions shall be endorsed by Simon Building in writing and Simon Building is entitled to establish specific different terms in any offer, and such specific terms will prevail over the present Conditions. The Client acknowledges to be aware of the contents of the Conditions, available at www.simonsrl.com, to fully understand their language, wording and legal meaning, and therefore to fully and specifically accept them, also according to artt. 1341 and 1342 of the Italian Civil Code.
2. OFFERS and COMPLETION of the CONTRACT
Simon Building’s offers are to be deemed as revocable contractual proposals; they provide for a specific section for Client’s acceptance. The sales contract shall be settled only when a Simon Building’s offer, duly signed by Client for full acceptance, is received by Simon Building. Client’s acceptance must fully comply with the offer. Any modification by the Client to the offer shall inhibit the completion of the sales contract and will be considered as a new contractual proposal, which Simon Building shall be free to accept or reject.
3. CHARACTERISTICS of the PRODUCTS - MODIFICATIONS
Simon Building is entitled to make any changes to the Products, which – without altering their substantial features – are necessary or suitable at Simon Building’s discretion. Any costs or expenses due to any extra-catalogue change in the Products requested by the Client, and considered feasible by Simon Building, shall be totally borne by the Client. The Client shall bear as well any other modification, integration, service or additional expenses it has requested, regardless if specified or not in the Client’s request for offer.
4. PRICES and PAYMENTS
Unless otherwise expressly indicated, prices are in Euro currency, for each unit of Product, net VAT and net packaging, customs, freight and transportation costs.
Products’ prices are indicated in the official Simon Building’s price lists, as updated from time to time. Together with the submission of the price list or afterwards, the Client may be granted special selling conditions regarding discounts, conditions and terms of payment or Products’ returning; such special conditions shall be indicated in the offer by Simon Building.
Unless otherwise agreed, payments must be made not later than the Products’ delivery. Payment terms are mandatory. The payment, even if made at a bank indicated by Simon Building, shall be always deemed as made at Simon Building’s domicile.
Any default of the agreed payments terms shall trigger the application of interests calculated according to the Italian law pursuant Legislative Decree 192/2012 and following modifications, without need of any default notice. The total payment is due even in case of delay in delivery or in case of damage or loss, partial or total, during transportation of the Products and not due to Simon Building’s responsibility.
Defaulting of even a single payment installment, in case of payment by installments and/or deferred payment, shall result in the Client’s forfeiture of the possibly granted installment and/or deferment benefit, in which case the Client shall be obliged to immediate payment of the full price for orders already fulfilled and in progress as well.
Simon Building shall have the right to suspend his own contractual obligations’ fulfillment, included any possible order in progress, in case of any Client’s delay in payment. Simon Building shall have the right to immediately terminate the sales contract in any case of default in payment.
5. INTELLECTUAL PROPERTY
The Client expressly acknowledges that the trademarks, commercial names, logos and any other distinctive marks on the Products or on packaging are the exclusive property of Simon Building and may not be altered, changed, modified, removed, cancelled or used in any manner without Simon Building’s prior written consent.
Commercial and/or technical documents, drawings, data, which may be delivered or communicated to the Client, shall be and remain the exclusive property of Simon Building. The Client undertakes to treat all the above with the highest confidentiality and undertakes not to re-produce nor to disclose nor to communicate it to any third party; he also undertakes to use any appropriate measure in order to guarantee the protection of it.
6. DELIVERY and TRANSPORT – TRANSFER of RISK – FORCE MAJEURE
Unless otherwise agreed, the Products are sold Ex Works (Incoterms 2010 - Ex Works), Simon Building’s seat, via Roma 13, Costa Masnaga (Lecco) - Italy. All costs related to transportation of the Products shall be borne by the Client, even in case of transport organized by Simon Building on Client’s behalf.
Upon delivery to the Client, to shipper, to carrier or to the person howsoever in charge of the transport and at the latest when the Products leave Simon Building’s factory, the delivery to the Client is considered as fully performed and the liability for the risk of full or partial loss of the Products is transferred to the Client, while Simon Building shall be expressly released from any related liability.
Simon Building undertakes to comply with the terms of delivery indicated in the offer duly accepted, which are however not essential but only approximate, unless otherwise expressly indicated. In case Simon Building is temporarily or permanently unable to deliver the Products because of an event of force majeure and/or Act of God or for other reasons beyond its control (e.g.: earthquakes, strikes, lock-out, lack of means of transportation, natural calamities, authority orders, difficulty in procuring raw materials, break down in productions plants, etc.), Simon Building will promptly inform the Client and shall be excused and released from all delivery and indemnification obligations toward the Client for the entire duration of the period in which the event and its effect will last.
If the Client will not comply with any of the sales terms and conditions, even partially, or if it materially changes its ownership, or in case the Client delays payment, even toward third parties, Simon Building shall be entitled to suspend any delivery and to change the payment terms. Simon Building is in any case entitled to reduce the credit limit, if any, granted to the Client, if the general market conditions will change or new facts and/or circumstances impairing the Simon Building’s ordinary course of business will occur. The Client will be promptly informed of such suspension or reduction.
Simon Building grants a general warranty for manufacturing lacks of conformity of the Products for 12 (twelve) months from the invoice date. The warranty covers, and is limited to, the repairing of defective Products when feasible or the replacing, at Simon Building’s sole discretion. The warranty does not cover, and is not extended to, defects or damages caused by the transport or caused by misuse, negligence or unskillfulness in the use or in the storage of the Products or by direct or indirect manumission by the Client. The warranty shall not be valid if the Client did not comply with instruction for use and installation of the Products, or if the defects are caused by any conduct by the Client, its employees or third parties users.
The Client, subject to forfeiture of the warranty, shall notify Simon Building of any lack of conformity not later than 8 (eight) days after he has discovered it and in any event within 12 (twelve) months from the invoice date.
The Products are in compliance with laws and regulations in force in Italy. Any possible request for specific declarations or certificates of conformity must be expressly submitted in advance in writing by the Client to Simon Building and agreed upon. Any Products’ tolerance or variation, which are within the industry practices and uses and which do not affect the normal use and safety of the Products, are acknowledged and accepted by the Client and Simon Building may not be held liable for them. It is the Client’s obligation to ascertain that the Products comply with any law and regulations in force in the country where the Products are to be used and to promptly notify Simon Building, at the latest at the time of the request for offer, of any possible need for modifications in the Products. In such a case, Simon Building shall be free to reject the Client’s request for offer or to charge it for any costs due to the requested modifications in the Products.
Any re-sale, assignment and/or use of the Products in the United States of America, Mexico and/or Canada are expressly prohibited. Simon Building does not grant any warranty, express or implied, that the Products comply with laws and regulations in force in the above mentioned countries and shall not be liable for any fact or event in any manner related to, or arising out from, the re-sale, assignment or use of the Products in the said countries. The Client undertakes to take any necessary measure to prevent the re-sale, assignment or use of the Products – also by third parties – in the above mentioned countries. The Client shall indemnify and hold harmless Simon Building from and against any and all claims, damages, expenses and costs, included those asserted by third parties, arising out of the violation by the Client of the present prohibition to re-sell, assign or use the Products, also by third parties.
Any damage to the Products or any other personal or property damage, also with regard to third parties, due to any Client’s failure to comply with Simon Building’s use instructions shall be borne exclusively by the Client. The Client shall indemnify and hold harmless Simon Building from and against any and all claims by third parties. In any event, Simon Building shall not be liable for any indirect damages resulting from loss of profits or reduction in the production of the Client or other third parties.
8. PRODUCTS’ RETURN
Unless otherwise agreed in writing by the parties, Simon Building does not accept return of the delivered Products. Before any return procedure, the Client shall give a written claim and the return must be previously authorized in writing by Simon Building. Simon Building is entitled to examine the returned Products in order to verify the warranty applicability and, in case of any lack of conformity attributable to Simon Building, will replace the defective Products or issue a credit note equal to the sales price. If this is not the case, the Products will be sent back to the Client with all transport costs to be borne by the Client itself.
9. CLAIMS and COMPLAINTS
The Client must examine the Products promptly and must give written notice to Simon Building, specifying the nature of the lack of conformity, and must likewise notify any other claim related to the Products. If the Client fails to give such a notice within 8 (eight) days from the date on which the Products were delivered, the Products shall be deemed as finally accepted and in compliance with the sales contract, provided however that the Client may report any hidden defect within 12 (twelve) months from the invoice date; in any event, the notice of defects must be given no later than 8 (eight) days from the date the defects were discovered, and the remedy only available to the Client shall be limited to the warranty as specified in the present Conditions. In the event of a controversy regarding the existence of a lack of conformity – patent or hidden – of the Products reported by the Client, the warranty shall not be valid if the Client has not kept, for at least 90 (ninety) days from the notice, the alleged defective Products for a cross examination between the parties.
It is understood that complaints regarding part of the Products delivered or a single shipment shall have no effect on the remaining order nor on the payment of the Products already delivered and not promptly notified as defective.
Simon Building is entitled to withdraw from the sales contract at any time and to suspend any Products’ delivery, without any penalty or indemnification or rebate of payments already received, in case of any protest, commencement of procedures for payment injunction, judicial procedures or bankruptcy procedures against the Client.
11. RETENTION of TITLE
In case of payment of the Products by installments or deferred payment, Simon Building shall enjoy the retention of title on all the Products up to the full payment pursuant to art. 1523 of the Italian Civil Code. Nevertheless, each and all risks shall be borne by the Client from the time of delivery.
12. GOVERNING LAW - JURISDICTION
The present Conditions and each sales contract shall be governed and construed according to the laws of Italy exclusively.
For each and all disputes arising out of these Conditions and of any sales contract the parties expressly agree and accept that the Tribunal of Lecco (Italy) shall have the exclusive jurisdiction. Simon Building is entitled to refer a claim also to the court where the Client has its own seat as an alternative forum.