GENERAL TERMS AND CONDITIONS OF SALE BEDIMENSIONAL S.P.A.
Article 1 – GENERAL
1.1 Definitions:
Agreement: any agreement and/or legal act between BeDimensional S.p.A. and the Purchaser in connection with the purchase of products of BeDimensional S.p.A.;
BeDimensional S.p.A.: with registered office in Genova, via Lungotorrente Secca, n. 30, VAT and tax code 02389840998 ;
the Purchaser: any legal or natural person that wishes to conclude, concludes or has concluded an Agreement with BeDimensional S.p.A. as well as any legal or natural person to which BeDimensional S.p.A. supplies or has supplied products;
REACH: Regulation (EC) No. 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Regulation, Evaluation, Authorization and Restriction of Chemicals, and latest amendments;
CGVs: these general terms and conditions of sale of BeDimensional S.p.A..
1.2 Unless expressly agreed otherwise in writing, these Terms and Conditions shall apply to all offers and quotes from BeDimensional S.p.A. to the Agreement and to all acts and legal acts between BeDimensional S.p.A. and the Purchaser.
1.3 Exceptions and /or amendments from these CGVs are effective only if expressly agreed in writing.
1.4 The applicability of general terms and conditions used by the Purchaser or any other general terms and conditions other than these CGVs is expressly excluded.
1.5 These CGVs govern the supply relationships from BeDimensional S.p.A. to the Buyer. Any general conditions purchase will not invalidate the application of these General Conditions. Even in case of exceptions agreed in writing, these conditions will continue to apply for the parts not expressly waived. The confirmation of the order by BeDimensional, in any way carried out, entails the application of these General Conditions of Sale. The sales offers made by BeDimensional are valid for 30 days.
1.6 the fundamental and essential obligations undertaken by purchasers in any agreement are to: (i) timely pay the price of the delivered products; (ii) timely collect the products, according to BeDimensional S.p.A. instructions; (iii) meticulously verify and inspect the delivered products and all related documentation (the “Obligations”). These obligations within the exclusion of warranty according to art. 1491 ICC, as hereby provided, have been taken into account for the quotation and pricing of each BeDimensional S.p.A. products.
Article 2 – OFFERS AND AGREEMENTS
2.1 Any offer, quotation and price offered by BeDimensional S.p.A. is not binding and shall be interpreted as an invitation to the Buyer to make an offer for a binding purchase. The Agreement is concluded when Purchaser receives written confirmation by BeDimensional S.p.A. of its initial order (offer) according to art. 1326 Italian Civil Code (“ICC”). In case that BeDimensional’s confirmation differs from the Purchaser’s offer, such acceptance constitutes a new non-binding offer by BeDimensional. Samples and models shown or provided shall serve as indications only, without the products having to comply with those samples and models (art. 1522 ICC expressly excluded). Minor variations, including in stated size, weight, number and color shall not be considered as defects. Normal commercial practice shall determine whether variations shall be considered as minor.
2.2 BeDimensional S.p.A. shall be entitled to require security from the Purchaser for the fulfilment of any of Purchaser’s Obligations under any Agreement either before starting its own performance or, according to art. 1461 ICC, in the event the economic conditions of the Purchaser – in the discretion of BeDimensional S.p.A. – have deteriorated and /or jeopardize the fulfilment of its Obligations and duties. The security shall be provided as requested by BeDimensional. If the Purchaser does not provide security in the manner requested by BeDimensional S.p.A., all amounts owed by the Purchaser to BeDimensional S.p.A. shall be immediately due and payable in full (even before any performance).
Article 3 – DELIVERIES
3.1 Unless expressly agreed otherwise in writing, the delivery of products shall be ex-works at such premises as BeDimensional S.p.A. may designate from time to time (Incoterms EXW).
3.2 Delivery shall take place in accordance with the definitions of the latest version of the Incoterms. In the event of a conflict between these CGVs and the Incoterms, the Incoterms shall prevail.
3.3 The risk attached to the purchased products will pass to the Purchaser at the time of delivery. The time of delivery is the time when BeDimensional S.p.A. notifies the Purchaser that the purchased products are ready for collection, even if the Purchaser does
not accept the delivery.
3.4 The delivery term specified and agreed shall not be a final and essential deadline for BeDimensional S.p.A. and has a descriptive purpose as an indication of readiness only. The mere fact that BeDimensional S.p.A. is in delay and exceeds the agreed delivery period, shall
not constitute a breach of contract and BeDimensional S.p.A. shall not be in default or liable to the Purchaser as a result thereof. The Purchaser shall not be entitled to terminate the Agreement or to any other remedy by law.
3.5 If a delivery period has not been expressly agreed upon, a reasonable delivery period shall apply. The Purchaser declares to know that the delivery deadline depends also on the production and renounces the withdrawal in case of delays not dependent on BeDimensional S.p.A.
3.6 BeDimensional S.p.A. shall have the right at all times to deliver in consignments and shall always be entitled to invoice for such partial performances separately.
3.7 If the Purchaser does not accept delivery, or in the case of ex-works delivery does not timely collect the products delivered (within seven days after delivery and/or in the manner stipulated by BeDimensional S.p.A.), the Purchaser shall be in default without
notice of default being required, and BeDimensional S.p.A. shall in any case be entitled to invoice for the agreed price. BeDimensional S.p.A. shall then also be entitled, without prejudice to its other rights under the law, to store the products at the Purchaser’s expense and
risk, and all costs arising therefrom, including but not limited to supply back and logistic costs, increases in duties, levies, premiums and the suchlike, shall be payable by the Purchaser.
3.8 In addition, if a situation provided for in Article 3.7 arises, and, despite being given a reasonable time by BeDimensional S.p.A. the Purchaser still fails later to take up the products or fails to do so in time and/or properly (which is, in any case, upon the 30th
day after the original delivery date), BeDimensional S.p.A. shall be released from all its obligations and, in addition, is entitled to sell the products to third parties, charging on the Purchaser all costs arising from the delay as well as the constituent sale to a
third party, including but not limited to supply back and logistic costs, storage, increases in duties, levies, premiums, charges and loss of value which the products have sustained since delivery.
3.9 For the avoidance of doubt, in a situation of a constituent sale of the products as provided for in Article 3.8, according to art. 1515 ICC, BeDimensional S.p.A. is also entitled – as liquidated damages and save further damages – either to (i) the difference
between the price that was agreed with the Purchaser and the net proceeds of the constituent sale or (ii) to compensation of the value of the eventual leftover products remaining after the constituent sale.
3.10 The situations provided for in this Article 3.7 to 3.9 do not require a prior notice of default and do not prejudice any other BeDimensional ‘s rights under the law.
Article 4 – PRICES
4.1 All prices are EXW and determined taking into account the Purchaser’s Obligations. All prices are exclusive of VAT, costs of transporting and/or dispatching the products, and/or any other costs incurred in connection with delivery, government
levies and/or taxes payable.
4.2 BeDimensional S.p.A. shall be entitled to charge on the Purchaser an administrative charge in the amount of 30,00 (thirty) Euro (plus VAT if due) in the event that the purchase order will be for an amount not exceeding 1.000 (one thousand) Euro.
Article 5 – TRANSPORT EQUIPMENT AND PACKAGING
5.1 Returnable packaging provided by BeDimensional S.p.A. shall remain in the property of BeDimensional S.p.A. at all times and must be returned to BeDimensional S.p.A. in perfect condition after use. If the returnable packaging is not returned in perfect condition, BeDimensional S.p.A. shall no longer be
obliged to take back the returnable packaging, and any deposit that may have been charged to the Purchaser in respect of such returnable packaging, shall not be returned either. Furthermore, such deposit shall not be returned if the
returnable packaging provided by BeDimensional S.p.A. is returned after it has been used by the Purchaser for more than 2 (two) years. If the returnable packaging consists out of intermediate bulk containers, the Purchaser will be charged a reasonable rent
starting from the 30th days upon the day of the delivery, in addition to the deposit. This rent shall be charged after the intermediate bulk containers have been returned. BeDimensional S.p.A. shall have the right to set off any right for the payment of rent
against a Purchaser’s right for return of the deposit.
5.2 The loading or filling of transport equipment and/or packaging made available by the Purchaser shall take place at the Purchaser’s expense and risk.
5.3 BeDimensional S.p.A. shall have the right to refuse to load Purchaser’s equipment and/or fill packaging if the equipment / packaging provided by the Purchaser does not comply with the safety requirements applied by BeDimensional S.p.A.. In that case, BeDimensional S.p.A. shall not be
liable for any costs arising from any related delay and Article 3.7 shall apply.
Article 6 – RETURNS AND COMPLAINTS
6.1 BeDimensional S.p.A. does not accept returns from the Purchaser, without BeDimensional’s prior written consent. If products are returned without the prior written consent of BeDimensional S.p.A., their transportation, dispatch and storage shall be at the Purchaser’s expense and
risk.
6.2 The risk in returned products shall continue to be borne by the Purchaser until BeDimensional S.p.A. has expressly accepted the returned products in writing, to which acceptance BeDimensional S.p.A. may attach conditions.
6.3 As an essential part of any Agreement and a basic principle of these CGVs, the Purchaser acknowledges and expressly accepts to be obliged to check the conformity of any and all products during their delivery, pointing out any visible nonconformity
– including but not limited to – quantity, quality, documentation and labeling on the delivery note which shall be signed by the carrier. Lacking of such (signed) notice, the products shall be deemed definitively accepted free of such
non-conformity and the Purchaser cannot claim any subsequent non-conformity of the delivered products, that should have been discovered with due care during delivery.
6.4 Moreover the Purchaser acknowledges to have a further essential and material contractual duty to – as soon as possible and in any event prior to any use and/or reselling, and at least not later that 14 (fourteen) days after delivery – test and
effectively evaluate, among others, whether: (i) the products (including samples and models) meet the specifications, as provided by BeDimensional S.p.A.; (ii) the products and/or any related technical support and information, as provided by BeDimensional S.p.A., do not
have any related hidden non-conformity. The Purchaser’s Obligation to inspect, test and evaluate the delivered products as described herein shall, among others, consist out of an application-specific analysis and shall, at least, include testing
to determine compliance from a technical as well as health, safety, and environmental standpoint. The Purchaser in breach of these obligations cannot claim any consequent non-conformity and/or defects, also hidden, of the delivered
products.
6.5 Any notice of complain must be served by the Purchaser in writing within 8 (eight) days from the day of delivery, stating the reasons for the claimed non-conformity with documentary evidence of the fulfillment by the Purchaser of
its Obligations as described in Article 6.4 above. Failing such written communication by the Purchaser, the delivered products shall be deemed to have been definitively accepted, analogously to art. 1665 ICC.
6.6 Submitting a complaint does not release the Purchaser from its payment obligations in accordance with the agreed due dates.
6.7 The Parties confirm and acknowledge that the price of the delivered products has been determined even taking into consideration the specific and essential Purchaser’s Obligations and the terms and conditions as described in this Article 6.
Article 7 – WARRANTY
7.1 Save the limitation provided in these CGVs, BeDimensional S.p.A. only warrants that the delivered products shall, at the time of delivery, comply with the specifications.
7.2 If a complaint is submitted on time and in accordance with these CGVs, and BeDimensional S.p.A. is reasonably of the opinion that the complaint is justified, BeDimensional S.p.A. shall be free to choose either to (a) free of charge for the Purchaser, deliver what is lacking or
to re-deliver the products that was qualified defective, or (b) grant a discount on the price. by performing one of these remedies, BeDimensional S.p.A. shall have discharged its warranty obligation fully and shall not be obliged to pay any further
compensation. Replaced products shall become the property of BeDimensional S.p.A. and are to be returned in accordance with the procedure established in Article 6 herein. The solution described herein also applies in case of an established and
ascertained decision (by the competent Court) of a breach of any warranty since the only remedy for the Purchaser is to claim for (re)performance of the Agreement. Any other remedy and/or damages is hereby expressly excluded. The responsibility of BeDimensional S.p.A. for any damage caused to the Buyer may in no case exceed an amount total equal to the price of the non-compliant supply.
7.3 The Purchaser acknowledges and expressly accepts that BeDimensional S.p.A. warranty on delivered products by third parties shall never exceed or extend beyond the guarantee that is provided to BeDimensional S.p.A. by its supplier of those products. Moreover BeDimensional S.p.A.
does not make any express or implied warranty on the circumstance that the products (purchased from third parties / suppliers) do not violate any intellectual property right.
7.4 The Parties confirm and acknowledge that the price of the delivered products has been determined taking into consideration these terms and conditions and limitation on warranty.
Article 8 – BeDimensional S Obligation
8.1 BeDimensional S.p.A. will not be liable for any damage sustained by the Purchaser, irrespective of whether this damage is the result of failure by BeDimensional to fulfil its obligations under the Agreement and/or these CGVs or of any act and/or omission by BeDimensional S.p.A. itself and/or by others acting on BeDimensional S.p.A.’s instructions, unless the Purchaser proves that the damage is the result of intentional or willful misconduct ascribable exclusively by BeDimensional S.p.A.. the BeDimensional ‘s obligation in any event is limited to the value of the
delivered defective products and consists in their substitution or the grant of a discount to Purchaser. By performing one of these remedies, BeDimensional S.p.A. shall have discharged any related obligation fully and shall not be obliged to pay any further
compensation.
8.2 BeDimensional S.p.A. shall never be liable for indirect loss of any kind (including consequential loss, loss profits and/or non-material loss) suffered by the Purchaser or by a third party as a result of BeDimensional S.p.A. and/or any of its partners failure to perform under
the Agreement.
8.3 BeDimensional S.p.A. shall not be liable for damages, of whatever nature and in whatever form, which arise after the delivered products have been used, treated, processed and/or sold on by Purchaser.
8.4 The Purchaser shall hold BeDimensional S.p.A. harmless from and compensate BeDimensional S.p.A. for all and any third-party claims for whatever reason linked to the delivered products, unless and insofar as the Purchaser proves that such claim falls exclusively within
BeDimensional ‘s area of responsibility. After 8 days from the delivery of the products, the Purchaser will forfeit any claim
Article 9 – COMPLIANCE WITH LAWS
9.1 The Purchaser shall comply with all applicable laws including but not limited to laws and conventions relating to anti-bribery and anti-corruption such as the Italian D.Lgs 231/2001, and laws relating to export control and customs regulations
such as (i) the rules on embargoed countries, (ii) the restrictions on the sale of products to restricted or denied customers, and (iii) the regime for the control of exports, transfer, brokering and transit of dual-use items. The Purchaser shall not
directly or indirectly utilize, sell, ship or otherwise transfer, the products purchased from XYZ to or through any country, entity or individual as prohibited under national and international regulations.
9.2 The Purchaser shall comply with any obligations it may have under REACH and shall promptly, upon first request, provide to BeDimensional S.p.A. such information as may reasonably be required from time to time to ensure BeDimensional ‘s compliance with REACH.
Purchaser shall reimburse all costs and expenses of BeDimensional in connection with BeDimensional ‘s obligations under REACH arising out of the intended use of the products by Purchaser. All information and data provided by BeDimensional about the substances in
the products are a commercial secret and strictly confidential and may only be disclosed by the Purchaser when required under REACH.
9.3 Without prejudice to the other provisions in this Article 9, the Purchaser shall also comply with all applicable laws and regulations in performing its obligations under the Agreement in a manner consistent with the BeDimensional Code of Conduct. The
Purchaser confirms to have read and agrees to BeDimensional’s Code of Ethics which is available at the following website: https://www.bedimensional.com/code-of-ethics.
9.4 The Purchaser shall procure that any third parties to whom the products that it purchased from BeDimensional will be supplied, whether in original form or as intermediate or end-product, are under the same obligations as set out in this Article 9 such
that all third parties down the supply chain, as far as the end-user, are under the same strict compliance.
9.5 The Purchaser agrees to indemnify and hold harmless BeDimensional S.p.A., its officers, employees, agents and/or representatives, from and against all damages, losses, liabilities, penalties, costs and/or expenses, including reasonable attorney fees, as a
result of any claim, suit, action, proceeding, demand, judgment or settlement arising out of Purchaser’s failure to adhere to the provisions of this Article 9.
Article 10 – FORCE MAJEURE (NON-ATTRIBUTABLE NON-PERFORMANCE)
10.1 In the event that, due to force majeure, BeDimensional is prevented from performing the Agreement, or performance becomes more costly, BeDimensional shall have the right to suspend the Agreement in full or in part for the duration of the force majeure
situation, or to terminate the Agreement in full or in part, without judicial intervention and without BeDimensional being obliged to pay any compensation.
10.2 The term “Force Majeure” shall be understood to mean any circumstance, both foreseen and unforeseen, that permanently or temporarily prevents the performance by BeDimensional of the Agreement. Such circumstances shall in any case be
understood to include inability to pay for whatever reason, strikes, excessive staff sickness, interruptions in production, transport problems, fire and other business disruptions, import, export and transportation bans, late or defective delivery
by BeDimensional ‘s suppliers, and other events beyond the control of BeDimensional S.p.A., such as flood, storm, natural and/or nuclear disasters, war and/or threat of war, terrorist attacks, but also changes in legislation and/or government measures. In addition,
BeDimensional may always rely upon force majeure in the case of unsuitability of products and/or persons used by BeDimensional to perform the Agreement.
10.3 If BeDimensional suspends performance of the Agreement in accordance with the provisions of this Article 10, the Purchaser must, at the request of BeDimensional S.p.A., extend any letters of credit prescribed by the Agreement and/or the security required in
accordance with these GCVs up to the new delivery date.
Article 11 – PAYMENT
11.1 Unless agreed otherwise in writing, payment by the Purchaser to BeDimensional S.p.A. must be made within 14 (fourteen) days of the invoice date, without any discount and/or setoff, in the currency specified on the invoice.
11.2 If payment in full has not been made within the stated period, the Purchaser shall be in default by operation of law and shall be liable to pay to BeDimensional S.p.A. interest as provided by Italian D.Lgs 231/2002 plus any judicial and extrajudicial costs,
including legal fees, incurred as a result of Purchaser’s failure to fulfil its obligations under the Agreement.
11.3 Any payments received by BeDimensional S.p.A. shall be deducted firstly from outstanding judicial costs, extrajudicial collection costs and interest payable, and then from the outstanding principal sums, starting with the oldest outstanding principal sums,
regardless of any instructions to the contrary from the Purchaser.
11.4 The Purchaser will be unable to offset any debt owed to BeDimensional S.p.A. against any claim of the Purchaser against BeDimensional S.p.A.
Article 12 – SUSPENSION AND TERMINATION
12.1 Without prejudice to the provisions of Article 10, and without prejudice to the right to claim compensation, BeDimensional S.p.A. may suspend the fulfilment of its obligations under the Agreement either wholly or in part by means of a written notification,
without any obligation to pay compensation, in the event that (there is a reasonable expectation that):
– the Purchaser materially fails to fulfil one of its obligations under the Agreement, such as its obligation to pay on time and in full;
– an attachment is made against the Purchaser;
– the Purchaser is granted a moratorium;
– a petition is filed for the Purchaser’s bankruptcy, or the Purchaser is declared bankrupt;
– the Purchaser makes a payment arrangement with one or more of its creditors;
– the Purchaser dies, is placed under guardianship or put into administration; or
– the Purchaser’s business is sold or dissolved.
12.2 If, in accordance with Article 12.1, BeDimensional S.p.A. suspends performance of the Agreement, the Purchaser must, at the request of BeDimensional S.p.A., extend any letters of credit prescribed by the Agreement and/or security required in accordance with these CGVs
up to the new delivery date.
12.3 If the Purchaser fails to timely fulfil its obligations and particularly timely pay the price, BeDimensional S.p.A. shall have the right to terminate the Agreement in whole or in part without any court order according to art. 1456 ICC and claim back, as its property,
any delivered products not yet paid for in full, offset against any sums already paid, without prejudice to its right to compensation
12.4 According to art. 1186 ICC, if one of the situations described in this Article 12 arises, all amounts owed by the Purchaser to BeDimensional S.p.A. shall be due and payable in full and immediately, without prior notice of default being required.
12.5 The Purchaser may not suspend compliance with its obligations under or in connection with the Agreement or these CGVs on whatever grounds.
Article 13 Transfer of Title on delivered goods
13.1 According to art. 1353 ICC, the delivered products to the Purchaser will remain the property of BeDimensional S.p.A. until full and timely payment of all amounts due by Purchaser to BeDimensional S.p.A., including interest and costs , have taken place, while risk and
responsibility (including custody duties) relating the goods are transferred to the Purchaser upon delivery.
13.2 Before payment has been made in full, the Purchaser shall not have the right to fully or partially pledge the products to third parties.
13.3 The Purchaser shall keep the delivered products until transfer of title with maximum due care and as the recognizable property of BeDimensional S.p.A. and shall insure these products against damage and theft.
13.4 In case of suspension and/or termination of the Agreement according to these CGVs, BeDimensional S.p.A. shall have the right to take back, or have someone else take back, the products which are its property, at the Purchaser’s expense, from the place
where they are located.
13.5 If, before payment has been made in full, the Purchaser forms a new product from, or partly from, the delivered products, BeDimensional S.p.A. shall have co-ownership title and rights on the new product in proportion of the value of the products processed or
mixed in relation to the new product. Furthermore, the Purchaser shall keep (part of) the product for BeDimensional S.p.A., and BeDimensional S.p.A. shall always remain the owner equal to its share of co-ownership until all the payment obligations have been fully fulfilled.
Article 14 – INTELLECTUAL PROPERTY
14.1 Any Agreement and these CGVs do not entail any transfer or licensing of any intellectual property rights to the Purchaser.
14.2 The Purchaser warrants to BeDimensional S.p.A. at all times and shall indemnify BeDimensional S.p.A. in such respect that the use by BeDimensional S.p.A. of data, specifications or material provided by the Purchaser does not breach any statutory regulation or infringe third-party rights. The buyer undertakes to communicate, upon simple request, the names of all the subjects who have had relations with the product.
Article 15 – INVALIDITY AND CONVERSION
15.1 If any provision in the Agreement or these CGVs is held to be or becomes illegal, invalid, not binding or unenforceable (in each case either in its entirety or in part) under any law of any jurisdiction, according to art. 1419 ICC:
- a) that provision shall to the extent of its illegality, invalidity, lack of binding effect or unenforceability be deemed not to form part of this agreement but the legality, validity, binding effect and enforceability of the remainder of the Agreement or
these CGVs shall not be affected; and
- b) a provision will apply between BeDimensional S.p.A. and the Purchaser which is legal, valid, binding and enforceable which is as similar as possible in terms of contents and purpose.
Article 16 – APPLICABLE LAW AND COMPETENT COURT
16.1 Substantive Italian laws (diritto materiale) excluding, therefore, the conflict of laws rules shall apply to all Agreements and to these CGVs, including this Article 15, and to any non-contractual obligation arising out of or in connection with the
Agreement or these CGVs. Applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is explicitly ruled out.
16.2 The Italian Courts shall have the exclusive jurisdiction, and the Court of Milano (Tribunale di Milano) shall have the exclusive competence, to decide any controversy that may arise out, or be connected, to any Agreement and these CGV’s.