Terms and conditions
GENERAL CONDITIONS OF SALES
Susana Traca Distribution Srl terms and conditions of sale:
The term “buyer” means the company, partnership, or other entity identified on the face of the purchase order and signing for acceptance these terms and conditions of sale (“terms”).
Please read this terms very carefully. All sales are subject to, and expressly conditioned upon these terms. No variation of these terms will be binding upon Susana Traca Distribution Srl (“ST”) unless, and to the limited extent, expressly agreed to in writing and signed by an authorized representative of ST, and these terms shall prevail over any terms of business contained in the buyer’s documentation.
1. General Terms
1.1. All sales by ST will be subject to these Terms, which supersede and replace all prior sale conditions or agreements existing between the parties, as well as any representation, oral or written, and/or any communication between ST and Buyer relating to the subject matter hereof.
1.2. Buyer’s Proposal Purchase Order (as defined in article 3.1), solely to the extent accepted by ST pursuant to article 3.3 and subject to these Terms, will constitute Buyer’s contract with ST for the purchase of the Products. Any additional or conflicting agreements, whether oral or in writing, entered into prior to, contemporaneously with or subsequent to the execution of the Proposal Purchase Order, shall not apply unless expressly agreed to in writing between ST and Buyer, in accordance with article 1.3.
1.3. ST reserves the right to amend these Terms at any time, such amendments being binding on Buyer upon its signature. Save where expressly provided herein, none of these Terms may be added to, modified, superseded or otherwise altered except by a written instrument signed by an authorized representative of ST and delivered by ST to the Buyer.
2. Show-room events and Products.
2.1. ST regularly holds seasonal “show-room” events during the calendar year so as to present its Products to prospective buyers (Show-Room Events) and solicit their interest in submitting to ST a Proposal Purchase Order for the purchase of Products. Invitation to attend such events shall be at ST’s unfettered discretion. Invitations to a Show-Room event shall neither impose any obligation on ST to accept any Proposal Purchase Order.
2.2. ST retains all rights to change the Products and/or their range and/or to discontinue the offering for sale of any Product model at its sole discretion. Moreover, ST is free to solicit Proposal Purchase Orders in relation to certain limited lines of Products only.
2.3. Buyer may place orders only if solicited to do so by ST and/or invited to the Show Room Events.
3. Proposal Purchase Order
3.1. For each Proposal purchase of the Products from ST, the Buyer shall complete and submit to ST, ST’s model-form of purchase order (“Model-Form”) which shall be distributed by ST during the Show Room Events (if the Buyer has been invited thereto) and/or at any other time (if the Buyer has been solicited to do so by ST) (“Proposal Purchase Order”).
3.2. Each such Proposed Purchase Order shall identify the quantity requested and all other relevant information specified in the Model-Form. Once submitted to ST, Buyer may modify the Proposed Purchase Order in writing within 7 days of the day of its original submission to ST.
3.3. A Proposal Purchase Order may be accepted by ST, in whole or in part, by means of a written confirmation sent by ST to Buyer (“Confirmation of Acceptance”) at which point a contract (“Contract”) shall be created subject to these Terms. Unless Buyer receives ST’s Confirmation of Acceptance within three months of the date the Proposal Purchase Order was placed with ST, such Proposal Purchase Order shall be presumed NOT to have been accepted by ST and it shall be deemed cancelled by Buyer.
3.4. The submission of a Proposal Purchase Order to ST constitutes Buyer’s offer to purchase the specified Products from ST which, as such, may be accepted or rejected by ST in its absolute discretion, thereby not giving rise to any claim or expectation from Buyer. Likewise, ST’s acceptance of one or more Proposal Purchase Orders shall neither impose any obligation on ST, nor give rise to any claim or expectation from Buyer, in relation to future orders and/or as to the existence of a long term relationship between the parties. IT IS UNDERSTOOD AND EXPRESSLY ACCEPTED BY BUYER THAT, NOTWITHSTANDING PRIOR SALES, ST SHALL REMAIN FREE, AT ANY TIME, NOT TO ACCEPT SUBSEQUENT PROPOSED PURCHASE ORDERS PLACED BY BUYER, AND SHALL HAVE NO OBLIGATION TO SUPPLY PRODUCTS.
4. Manufacturing/Distribution constraints
4.1. If ST is unable, due to the limited quantities of Products manufactured or other manufacturing/distribution constraints, to supply the total demand for Products listed in the Confirmation of Acceptance, it may allocate its available supply among any or all buyers on a pro rata basis, without liability for any failure of performance which may result therefrom.
5. Prices, Payment and Invoices
5.1. Unless otherwise stated by ST, prices of the Products shall be those quoted, in Euros, by ST to Buyer on or prior to the placement of each Proposal Purchase Order. Errors or omissions are subject to correction by ST. Prices are exclusive of VAT and other taxes as well as of shipping and handling charges, unless different delivery conditions are agreed in writing.
5.2. Pending ST’s Confirmation of Acceptance as per article 3.3, prices quoted in the Proposal Purchase Order may be always adjusted to proportionally reflect the adverse cost impact to ST of intervening or subsequently manifested.
5.3. All prices quotations by ST are subject to change or withdrawal by prior notice to Buyer. Without prejudice to article 5.2. above, price changes shall be effective in relation to any Proposal Purchase Order placed thereafter.
5.4. Payments must be made within the agreed and specified in the “Proposal Purchase Order”, or in the sales invoice issued by ST. (Unless agreed otherwise, ST requires pre-payment of the purchase price prior to delivery of the Products. An invoice to that effect will be sent to Buyer together with the Confirmation of Acceptance and the relative purchase price shall be paid within 10 (ten) days of receipt thereof by Buyer).
5.5. In the event payment conditions differ from pre-payment, ST may at any time re-evaluate Buyer’s credit standing. If ST determines in its sole discretion that Buyer fails to qualify for any granted payment condition, then ST is authorized to change the terms of payment in full or in part, in respect of any Proposal Purchase Orders not yet accepted by ST, with notice to Buyer or to withdraw the preceding credit terms including, but not limited to, requiring advance payment, guarantees or other security.
5.6.Payments due to ST shall, if not paid when due under these Terms, bear interest for late payment at a rate of 7% per annum.
5.7. If Buyer is delinquent in its payment obligation to ST, ST may, upon written notice to Buyer, withhold future deliveries until all delinquent amounts and late interest, if any, are paid. If delinquent amounts remain unpaid 15 (fifteen) calendar days after such written notice, then ST may at its option, in addition to any other remedy available at law or pursuant to these Terms:
(a) declare Buyer in breach for the purposes of article 11 and terminate the relevant Contract, selling any undelivered Products on hand for the account of Buyer and apply such proceeds (to the extent actually obtained by ST as a result of the sale of the Products) as a credit against the purchase price. In such an event, Buyer shall take all risks that the sale made by ST will result in a depreciation of the Products and/or that only a few Products will be ultimately sold as a result of market conditions. Moreover, it is understood that Buyer will in any event pay the balance then due to ST on demand, together with all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection reasonably resulting from any default by Buyer in relation to any of these Terms (“Costs”);
(b) withhold performance including, but not limited to, other Contracts until all delinquent amounts and late interest, if any, and Costs are paid;
(c) to the extent Products have been already delivered to Buyer, repossess the Products for which payment has not been made and, for such purpose Buyer hereby authorizes ST and/or its relevant agents or subcontractors to enter into Buyer’s premises at which such Products are, at the relevant time, stored;
(d) deliver future Products on a pre-payment basis only and/or set off Buyer’s outstanding debt with the sums eventually given for any payment of other sales;
(e) charge storage and inventory carrying fees on Products, for an amount of EURO 150 per day, starting 72 hours after the day on which Buyer is informed that he shall take delivery of the Products;
(f) recover all Costs;
(g) if Buyer is delinquent on a payment schedule, accelerate all remaining payments and declare the total outstanding balance then due and owing;
(h) combine any of the above rights and remedies.
6. Retention of Title to Products
6.1. The Property in the Products shall not pass to Buyer until the relevant Products, as well as all other amounts owed by Buyer to ST on any account in connection thereto – shall have been paid for in full. ST reserves the right to require Buyer to return all not fully paid Products at Buyer’s sole cost and expense.
7. Delivery - Risks
7.1. Unless otherwise reasonably stated by ST, delivery date of the Products shall be those indicated by ST to Buyer on or prior to the placement of each Proposal Purchase Order. Such delivery dates represent the best possible estimate based on conditions existing at the time.
7.2. Delivery of the Products to the carrier/representative appointed by Buyer shall constitute delivery to Buyer. ST’s responsibility, risk of loss, damage, injury or destruction to any of the Products shall pass to Buyer upon delivery of the Products or, in any event, three business day after notification that Products are ready for shipment (provided that such date is not earlier than the date indicated under article 7.1). In no event shall any loss, damage, injury or destruction following delivery of the Products operate in any manner to release Buyer from the obligation to make payments as set forth herein.
7.3. If Buyer wrongfully delays, rejects or revokes delivery of the Products, or fails to collect them at the delivery place, ST may proceed as per article 5.7.
7.4. ST shall be allowed not to commence production of ordered Products in relation to which a Confirmation of Acceptance shall have been issued, a therefore to delay at any time the delivery date thereof, if Buyer is in default of any other Contract.
7.5. ST reserves the right to make partial deliveries as they become available, even if earlier than the expected delivery date.
8. Inspections and Limited warranty
8.1. ST warrants that the Products manufactured by it and delivered to Buyer pursuant hereto shall be free of defects in material and workmanship under normal use at the time of delivery by ST to Buyer. ST’s warranty does not cover defects caused by improper use or display of the Products by Buyer.
8.2. With reference to quantity delivered and compliance of the Products received with the specifications as set forth in ST’s Confirmation of Acceptance, Buyer shall verify the Products within five business days from the date of actual delivery to B
8.3. In the event of quality defects that were apparent on reasonable inspection of the Products upon delivery, Buyer shall notify ST in writing in a detailed manner within ten days of receipt. In the event that Buyer does not inspect or notify ST of any defect in the manner described above, the Product shall be considered accepted and Buyer waives all rights that it might otherwise have against ST in respect of such defect.
8.4. In the event of quality defects that were not reasonably apparent upon delivery of the Products, Buyer shall notify ST in writing in a detailed manner within five business days from discovery. The same deadline shall apply in case of return by final consumers of any Product assumed to be defective.
8.5. If the Products are in breach of the warranty hereby granted to Buyer as per article 8.1. and the breach has been properly notified under this article 8, ST will, at its option, either repair, replace or refund the purchase price in respect of the non-conforming Products. The remedy selected by ST shall be Buyer’s exclusive remedy for any reason based on non-conforming Products. All freight costs incurred in shipping Products/part to or from ST are at the expense of ST.
THE LIMITED WARRANTY OF ST IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, STATUTORY OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTIBILITY AND FITNESS FOR A
PARTICULAR PURPOSE, AND OF ALL OTHER LIABILITIES OR OBLIGATIONS ON ST’S PART, INCLUDING LIABILITY FOR INCIDENTAL, SPECIAL AND CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF BUSINESS OR DAMAGE TO REPUTATION WITH RESPECT TO THE SALE OR USE OF THE PRODUCTS, WHETHER OR NOT SUIT OR OTHER PROCEEDINGS BE INSTITUTED, AND ST NEITHER ASSUMES NOR AUTHORIZES ANY REPRESENTATIVE OF ST OR ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITIES IN CONNECTION WITH THE SALE OF THE PRODUCTS.
8.6. Products may not be returned for any reason without prior written authorization and shipping instructions from ST. Products shipped without ST’s authorization shall be returned at Buyer’s expense.
8.7. If Buyer is being requested to indemnify final consumers in relation to latent defects of the Products purchased from ST, it shall notify ST within 5 (five) business days thereof, attaching all relevant documentation. In such event, Buyer shall be indemnified by ST in the form it deems most appropriate, as specified under subsection 8.5. above, irrespective of the indemnification granted by Buyer to the end consumers. For the sole purposes of this subsection 8.7., the warranty shall remain in force for the entire period of time within which, under the applicable law of the country where Buyer operates its point of sale as per Section 9, Buyer may be statutorily subject to indemnity claims vis-à-vis end consumers.
9.1. The Products are sold to Buyer so that the latter may resell them primarily at the agreed retail and/or internet points of sale.
9.2. Buyer is free to set its retail prices. ST may issue unbinding recommended retail price lists in relation to the Products delivered.
9.3. Buyer shall not customize, modify or have customized or modified any Product and may resell such Products only in their original conditions and packaging.
10.1. Resale of the Products on-line shall be governed by a separate agreement negotiated in good faith between the parties so as to protect the high luxury image of the Products. Such an agreement shall contain adequate provisions relating to, inter alia: (a) ST’s right to review and object to the contents and look of the website; (b) ST’s right to request that the images and pictures originate from ST and do not violate any third party’s or ST’s right; (c) use of the ST trademark/logo only in a manner consistent with the need to protect the image of the brand.
11.1. Pursuant to applicable privacy law, the gathering and processing of personal data shall occur, in compliance with the legislation applicable to the subject-matter of these Terms and in fulfilment of all contractual, fiscal and taxation obligations deriving from the sale contracts governed thereby, including via communication to the network of agents and debt recovery companies. By signing these Terms, the Buyer expressly consents to the processing of personal data for the purposes stated herein.
12. Intellectual Property Rights
12.1. Buyer hereby recognizes that ST is the sole authorized licensee of the traded trademark as per article 1.1, and shall have, alone or together with licensor – the right, title and interest in all patents, trademarks, trade names, logos, design and trade dress copyrights and all other intellectual property rights incorporated into or associated with the Products or any other material received from ST, including brochures, display photos, catalogues and the like.
13. Applicable Law – Venue
13.1 These Terms and Conditions of Sale and any sale contracts based thereon shall be governed by Italian law. The application of the United Nation Convention of the International Sale of Goods of April 11, 1980 is hereby expressly excluded. All disputes arising out hereof shall be submitted to the Court of Milano (Italy). ST is also allowed to lodge its claims before the competent courts at Buyer’s domicile.
AS BUYER HAS CAREFULLY READ AND UNDERSTOOD THE PRESENT DOCUMENT, ACCEPTING THE OBLIGATIONS AND CONSEQUENCES, WHETHER DIRECT OR INDIRECT, THAT MAY RESULT AS A RESULT OF EXECUTION HEREOF, BUYER HEREBY UNCONDITIONALLY EXECUTES THE PRESENT DOCUMENT, ACCEPTING ITS CONTENT. A COPY OF THE PRESENT DOCUMENT IS DELIVERED TO BUYER UPON EXECUTION: