GENERAL SALES CONDITIONS
1. General Regulations
1.1 The terms and conditions indicated hereafter (the “General Conditions of Sale”) are an integral part of all contracts (“Contract/s”) concluded between the seller (“Brofer”) and the buyer (“Customer”) for the sale or supply of Brofer’s goods and/or services (the “Products”). These General Conditions of Sale are included on the www.brofer.it and www.vmcbrofer.it websites from where they can be downloaded: they are therefore considered known by all buyers and specifically by the Customer.
1.2 The sending or delivery of any purchase order by the Customer to Brofer implies their full and unconditional acceptance of the General Conditions of Sale of Brofer, even if unsigned and without any need to make reference to them or to a specific agreement to that effect at the conclusion of each individual Contract.
1.3 Any different terms or conditions that are attached, referred to, added, or modified by the Customer will not be even partly applied, unless expressly and specifically approved in writing by Brofer.
2. Offers and Orders
2.1 Brofer offers are not to be considered binding, especially when reference is made to quantity, prices, and delivery terms. All the photographic images and the technical, dimensional, or rendering specifications contained in the catalogues, price lists, technical data sheets, advertising or similar documents must be understood as indicative and not binding. Brofer does not guarantee the accuracy of the details regarding weight, size, capacity and so on. All models, samples or examples shown by Brofer are intended as indicative. The nature of the services provided by Brofer may differ from what appears from the aforementioned documents.
2.2 Brofer cannot be deemed bound by a Contract in all cases in which a printing, writing and /or calculation error is acknowledgeable.
2.3 The Contract shall be deemed concluded, becoming binding on the parties, when the confirmation of Brofer’s order (“Order Confirmation”) reaches the Customer (by e-mail, fax, post, by hand). The Order Confirmation defines and reports all the final and binding conditions and contents of the contract, fully replacing the order sent by the Customer (“Order”). Should the Order Confirmation contain additions, limitations, or other variations with respect to the Order, the Customer’s consent to such variations shall be deemed tacitly given unless a written objection is sent in writing to Brofer within 2 (two) days from its receipt. The Order Confirmation and these General Conditions of Sale shall in any case prevail over any general or special purchasing conditions prepared by the Customer. Any written or verbal conditions sent by collaborators, Brofer employees or sales agents are worthless if not stated in the text of the Order Confirmation or if not confirmed in writing by Brofer.
2.4 Any requests for variations or modifications of the Order by the Customer are subject to Brofer’s approval and must be received in writing within 2 (two) days from the Order Confirmation to allow the implementation of the relative variations and take into consideration Brofer’s organization and production. In this case Brofer reserves the right to delay delivery times and modify the price.
2.5 The Orders and/or Order modifications made verbally or by telephone must be confirmed in writing by the Customer. If this does not occur Brofer assumes no responsibility for any errors or possible misunderstandings.
3. Prices and Payment Terms
3.1 Unless otherwise agreed, Product prices are deemed for Products delivered Ex Works Brofer, packaged according to the customs of the sector concerning the agreed means of transport, it being understood that any other expense or charge (e.g. taxes, duties, shipping, insurance, installation, end-user training, after-sales service) will be borne by the Customer and is not included in the price unless quoted separately. Prices do not include VAT, which must be paid in accordance with the specific provisions contained in the invoice.
3.2 If the parties have agreed on deferred payment, it must be made, unless otherwise specified, within 30 (thirty) days from the invoice date, by bank transfer. Payment is considered made when the sum is available at Brofer’s bank in Italy. If the payment must be accompanied by a bank guarantee, the Customer must provide a first demand bank guarantee at least 30 (thirty) days before the delivery date, issued in compliance with the Uniform Rules for Demand Guarantees of the CCI by a primary Italian bank and payable against a simple declaration by Brofer that it has not received the payment within the agreed terms.
3.3 Should the Customer not make the payment within the terms and according to the methods indicated by Brofer, or in the event that the Customer’s activity is not conducted in accordance with the ordinary course of business (meaning, without any limitation, the issuance of seizure, repossession or protest claims), or when payments are delayed or bankruptcy actions have been requested or promoted, or in cases where crisis or insolvency indices emerge, as provided for by Italian law, at the Customer’s expense, Brofer has the right to suspend or cancel further deliveries, to terminate the relationship without notice and with non-retroactive effect, and to declare any claim arising from the business relationship as immediately due. Furthermore, Brofer may in such cases request advance payments or escrow.
3.4 In addition to other remedies permitted by applicable law or these General Conditions of Sale, Brofer reserves the right to charge interest on late payments from the date on which the right to payment is accrued, calculated at the ECB’s official reference rate plus 7 (seven) points. The Customer has no right to make offsets, deductions, or reductions, unless approved in writing by Brofer.
3.5 Unless otherwise agreed, any bank charges or fees due in relation to the payment shall be borne by the Customer.
4. Product Delivery
4.1 Delivery is always Ex Works Brofer, unless otherwise agreed in writing. All risks relating to the Products are transferred to the Customer at the Brofer plant, before loading operations. Should the Customer not collect the Products, Brofer may store them on behalf of and at the Customer’s risk and, after communicating their availability, invoice them as if they had been delivered. In any case, Brofer has the right to resell them without any prior notice and to act for any damages suffered.
4.2 If agreed upon in writing, Brofer will transport the Products at the Customer’s risk, costs, and expenses. The goods travel at the risk and danger of the Customer who, in their own interest, must verify the integrity of the packages and the quantity of the goods received before collecting them. Any complaints must be made directly to the carrier at the time of delivery.
5. Delivery Terms
5.1 Unless otherwise agreed in writing, the Ex Works delivery term is as specified in the Order Confirmation and is not binding on Brofer.
5.2 Unless otherwise expressly agreed in writing, the fulfilment of the order beyond the Delivery terms will not give the Customer the right to request the termination of the Contract or to claim damages or compensation.
5.3 Brofer reserves the right to make partial deliveries with the consequent issue of invoices to be paid within the terms agreed in the Order Confirmation. The delivery of a smaller quantity of Products than agreed does not release the Customer from the obligation to accept the delivery and to pay for the delivered Products.
5.4 Any liability for delivery deriving from force majeure or other unforeseeable events, or from acts or omissions of the Customer, and in any case not attributable to Brofer (including without limitation, strikes, lockouts, public administration provisions, subsequent blockages of import or export possibilities, epidemics or pandemics, natural disasters or catastrophes, declared or undeclared war, civil uprisings or revolutions, civil war), in consideration of their duration and scope, releases Brofer from the obligation to comply with any agreed delivery term.
5.5 Brofer is not obliged to accept returns of Products unless such obligation has been expressly agreed in writing. Any cost incurred for this purpose shall be borne by the Customer.
6. Duty to Inspect and to Accept Products
6.1 The Customer must check the Products immediately after receiving them. After 8 (eight) days from the arrival at the addressee, the Products are deemed fully accepted by the Customer. Any complaints regarding the quality and quantity of the goods, under penalty of forfeiture, must be sent to Brofer in writing within 8 (eight) days from the date of receipt. Even in this case the Customer shall not have the right to suspend payments in any way and for any reason.
7.1 Brofer assures its products are new and manufactured in compliance with European standards, regulations, and directives, in force at the time of concluding the contract. If after such conclusion of the contract there are any changes or variations to the above mentioned directives, laws, regulations, codes or standards, or new or different interpretations of such directives, laws and regulations are established that require a change in the Products, Brofer shall have the right to make appropriate updates to the price, delivery term, warranties and to other provisions contained in these General Conditions of Sale.
7.2. Unless otherwise provided, the warranty granted by Brofer is 12 (twelve) months from the date of delivery of the Products. Brofer’s obligations arising from the warranty are strictly and exclusively limited, at Brofer’s discretion, to the repair or replacement of the parts defined as defective and covered by Brofer’s warranty, only if previously inspected by personnel authorized by Brofer. The warranty is subject to notification, in the forms provided for in Article 6.1 above, within 8 (eight) days from the date of discovering the defect or mismatch.
7.3 The remedies provided by this article 7 (consisting in the obligation to repair or replace the Products) absorb and replace any other warranty or remedy provided by law, and exclude any other liability of Brofer (both contractual and extra-contractual) however originated from the Products supplied (e.g. compensation for damages, loss of earnings, withdrawal campaigns).
7.4 Should the Products be supplied with application programs (“Software”), the Software is supplied “as it is”, therefore with no warranty, whether it is legal or of another type, with particular reference to the presence of hidden defects or errors, to the correct or continuous functioning of the Software, to its suitability for a specific use or to the violation of third-party rights. Brofer is not liable for damages to the Customer unless it is required by the laws in force or appears in a written agreement. This includes general, special or incidental damages, as well as damages resulting from the use or inability to use the Software; this includes, but is not limited to, loss of data, data corruption, losses incurred by the Customer or third parties and the Software’s inability to operate with other software, even if the owner or other parties have been advised of the possibility of such damages.
7.5 Brofer does not guarantee the compliance of the Products with particular specifications or technical characteristics or their suitability for particular uses unless such characteristics have been expressly agreed in writing in the Contract.
8. Limitation of liability
8.1 With the exception of what is provided for by the warranty indicated in Article 7 or in case of wilful misconduct or gross negligence by Brofer, under no circumstances shall Brofer be liable for any loss of profit, loss of production, of product, of contracts, of opportunity, for damage or loss of raw materials, for damages deriving from costs related to the Customer’s idle expectations or production stops, for any penalties or damages requested by third parties directly or indirectly connected to the contract; for costs and damages deriving from the withdrawal of the product from the market, or for punitive or additional incidental, indirect or consequential losses or damages.
8.2 Under no circumstances may the Customer suspend or delay payment of the price.
9. Industrial and intellectual property
9.1 Unless otherwise agreed and approved in writing by Brofer, the Customer expressly acknowledges that trademarks, trade names or other distinctive signs on the goods are the exclusive property of Brofer and cannot be altered, modified, removed or cancelled in any way. The Customer has the limited right to use trademarks, trade names or other distinctive signs, as well as any other industrial property right or production and commercial know-how incorporated in the goods and which remain the exclusive property of Brofer for the sole and limited purpose of reselling the goods to the public. Any different use of Brofer’s intellectual property by the Customer, unless expressly granted by Brofer in writing, will be considered as a violation by the Customer of Brofer’s aforementioned exclusive rights, also in terms of contractual responsibility and, as such, will be appropriately prosecuted.
9.2 Documents, drawings, data and information (both on paper and on electronic support) that must be delivered to the Customer remain the exclusive property of Brofer and are a support for a better representation of the Product and are indicative of the Product’s performance. The Customer undertakes not to reproduce them, not to disclose them to third parties and to take the necessary precautions towards its personnel to guarantee their protection.
10. Data processing
10.1 The Customer’s personal data will be processed in accordance with the provisions of Italian law on personal data processing (EU Reg. 679/2016, “GDPR”). Brofer informs the Customer that Brofer is the controller of the processing and that the Customer’s personal data is collected and processed exclusively for the execution of the Contract. Pursuant to the GDPR, the Customer has the right to obtain information from Brofer on what data is processed by the data controller (right of information); the right to request and obtain in an intelligible form the data held by the data controller (right of access); the right to revoke consent at any time; exercise the right to oppose processing in whole or in part; the right to oppose automated processing; the right to obtain the deletion of data held by the data controller; the right to obtain the updating or rectification of data provided; the right to request and obtain the transformation into anonymous form of data; the right to request and obtain the blocking or limitation of data processed in violation of the law and that whose retention is no longer necessary for the purposes of processing; the right to data portability.
11. Prohibition to transfer
11.1 The rights deriving from the contract must not be transferred or delegated to third parties by the Customer.
12. Applicable law
12.1 If the Customer is a subject under Italian law, these General Conditions of Sale and all the contracts entered into by the latter with the Seller are governed by Italian law.
12.2 If the Customer is instead a subject of a different nationality to Italian, these General Conditions of Sale and all the contracts entered into by the latter with the Seller are to be governed by the 1980 Vienna Convention relating to the International Sales Contracts of Goods.
13.1 Any dispute arising between the parties as a result of the interpretation, validity or execution of these General Conditions of Sale and the related contracts entered into, will be deferred to the exclusive jurisdiction of the Court of Treviso.
13.2 It is understood by the parties that only Brofer, under its own discretion, will have the right to waiver the jurisdiction of the exclusive Court referred to in paragraph 12.1 above to take legal action against the Customer, at their residence and at the competent Court therein.
14. Final provisions.
14.1 The whole or part invalidity of individual provisions of these General Conditions of Sale does not affect the validity of the remaining provisions.
14.2 These General Conditions of Sale are drawn up in both Italian and English versions. Should any interpretative doubts arise, the Italian version will prevail.
Pursuant to and in accordance with Articles 1341 and 1342 of the Italian Civil Code, the Customer specifically approves the provisions mentioned as follows: Article 1.1 – The applicability of the General Conditions of Sale to all contracts; Article 3.3 – Failure to pay within the terms; Article 3.4 – Prohibition of offsets, deductions or reductions; Article 4 (full) –Delivery; Article 5 (full) -Delivery terms; Article 6 (full) – Duty to inspect and to accept products; Article 7 (full) Warranty; Article 8 (full) – Limitation of liability and solve et repete; Article 12 (full) – Applicable law; Article 13 (full) – Jurisdiction.