FLEXIN GROUP SRL GENERAL SALES TERMS AND CONDITION
1.1) In this document, the words shall have the following meanings:
a) GSTC : these Flexin Group SRL General Sales Terms and Conditions;
b) Client: the company/business entity which intends to purchase or purchases a Flexin Group SRL Product and not having its registered office in Italy;
c) Order Confirmation: the communication by Flexin Group SRL summarizing all the features agreed upon by the Parties with regards to Products specific supply;
d) Contract: the purchase agreement between Flexin Group SRL and a Client for supplying Products;
e) Confidential Information: the information regarding Products and know how, commercial and technical information from Flexin Group SRL;
f) Flexin Group SRL: the company Flexin Group SRL, with its registered office in Via Cartiera, 53 – 40037 Sasso Marconi – Bologna, Italy – VAT IT02818791200;
g) Parties: Flexin Group SRL and a Client;
h) Products: the products sold by Flexin Group SRL.
2) SCOPE OF APPLICATION AND EXECUTION OF THE CONTRACT
2.1) These GSTC apply to any Contract entered into between Flexin Group SRL and a Client, regardless of whether said Contract refers to the GSTC or not;
2.2) A Contract is concluded when the Client receives, by e-mail, the Order Confirmation;
2.3) Should the Contract contain provisions that contrast with these GSTC, the latter shall prevail;
2.4) Any other terms or conditions, included the Client’s general terms and conditions of purchase, at any time referred to or submitted by the Client and which contrast with these GSTC or with the Order Confirmation, shall be deemed void, and not part of the Contract, unless specifically accepted in writing by Flexin Group SRL.
3) PRICES AND PAYMENT TERMS
3.1) Products price shall be the one stated in the Order Confirmation;
3.2) Prices are intended as being net of VAT, if applicable;
3.3) The prices DO NOT include services and charges not expressly mentioned in the Order Confirmation;
3.4) The Client acknowledges that Products’ price is set according to raw materials’ costs in force at the Order Confirmation time, with reference to the London Metal Exchange – LME rate.
3.5) Should, in the period between the Order Confirmation and Flexin Group SRL’s purchase of raw materials, an increase of the raw materials costs higher than 5% (five percent) occur (due either to an increase of raw material quotations or to currencies rate fluctuation), then Flexin Group SRL shall be entitled to increase the prices accordingly. Flexin Group SRL shall inform the Client, by e- mail, about the new price of the Products;
3.6) Should the new price be higher than 25% (twenty-five percent) of the price stated in the Order Confirmation, then the Client shall have the right to withdraw from the Contract, informing Flexin Group SRL, by e-mail, within 5 (five) days from the receiving of the notice described in clause 3.5 above;
3.7) Payments shall be made according to the within the terms stated in the Order Confirmation. Should the Order Confirmation not set out such terms, payment shall be made, in advance with respect to the Products delivery and in any case within and no later than 15 (fifteen) days from the date the Contract is entered into force;
3.8) Payments shall be made in accordance with the methods stated in the Order Confirmation. Should the Order Confirmation not set out such methods, payments shall be made by bank transfer to the bank current account Flexin Group SRL provides the Client with Payment is deemed to be made when the relevant sum is at Flexin Group SRL’s disposal;
3.9) The Client must carry out payments as contractually provided for, even when, for whatever reason, the Client does not provide to collect or take delivery of the Products in the place and at the time agreed;
3.10) In case of delay in payment, without the need for previous levy of execution, Client shall be held to pay Flexin Group SRL interest on arrears, pursuant to Italian Legislative Decree n°. 231/2002 “Bringing into effect directive 2000/35/CE related to the fight against late payments in commercial transactions”. The above-said interest shall be calculated from the due date of the term of each payment and for the entire period of delay;
3.11)Should payment delays exceed 10 (ten) days, Flexin Group SRL, in addition to what is stated in clause 3.10 above, shall have the right to terminate the Contract with immediate effect, withholding any received sum as a compensation as well as to claim for any additional damages suffered.
4) DELIVERY TIME
4.1) The delivery time is the one stated in the Order Confirmation. The delivery time is calculated from the date that the Contract is entered into force, or from the date of receipt of the documentation to be provided by the Client for the carrying out of the Contract itself;
4.2) The delivery time is determined on the basis of the estimated time necessary for completing the supply and may be extended by Flexin Group SRL, if necessary;
4.3) The Client agrees to waive any claims for damages and agrees not to cancel the Contract in the case of delays of less than 30 (thirty) days from the term stated in the Order Confirmation or the one recalculated pursuant to Clause 4.7 below. With regards to Products NOT included in the Flexin Groyp SRL Catalogue (or products manufactured upon specific Client’s request and different to standard Products) the term stated in this clause is increased from 30 (thirty) to 45 (fortyfive) days;
4.4) In case of delay in delivery, for reasons due to Flexin’s responsibility, exceeding the terms stated in previous Clause 4.3, the Client may demand, with previous levy of execution in writing, a compensation for damages suffered, up to the maximum amount of 5% (five percent) of the price of Products delivered late. Except in case of fraud or gross negligence, the payment of the amounts stated in this clause excludes any further responsibility for damages and/or claim in connection with delayed deliveries of the Products;
4.5) Once the Products are ready for collection, Flexin Group SRL shall inform, by e-mail, the Client;
4.6) In case of delayed collection of the Products by the Client, for reasons not attributable to Flexin Group SRL, the delivery shall be deemed to have taken place within 8 (eight) days from the notification as per clause 4.5 above, with the following consequences:
a) Should the terms of payment provide for partial or full payments subsequent to the time of delivery, Flexin Group SRL shall be entitled to request immediate payments of all sums due, with forfeiture of the benefit of the term in favor of the client;
b) Flexin Group SRL shall be entitled to deliver the Products to the Client, on the charge of the latter, and to request compensation for any further damages suffered;
c) In no case Flexin Group SRL shall be considered liable in the event of Product deterioration or in the case of the occurrence of impossibility of performance due to causes not attributable to Flexin Group SRL;
d) Should the Client, during the carrying out of the Contract, request that integrations or modifications be made to the list of the ordered Products, Flexin Group SRL shall have the right to extend the delivery time of the entire supply accordingly.
5) PACKAGING AND TOLERANCE
5.1) The Products shall be packed and made ready for delivery with the ordinary care and techniques required by the nature of such Products, with the protection necessary for normal transport conditions;
5.2) Any special packaging or additional services must be specifically requested by the Client with the costs for the same being exclusively on the charge of the Client.
5.3) For reasons and production requirements of Flexin Group SRL, tolerances of +/- 10% of the confirmed order quantities are always allowed and accepted.
6) DELIVERY TERMS
6.1) The delivery terms are those indicated in the Order Confirmation.
7) RIGHT TO WITHDRAWAL
7.1) The Client may exercise its withdrawal right, communicating such withdrawal within 3 (three) working days from the date of receipt of the Order Confirmation, by means of email to LOGISTICS@FLEXINGROUP.COM
7.2) Should the Client exercise its right of withdraw according to clause 7.1 above, Flexin Group SRL shall be entitled to an indemnification equal to 30% (thirty percent) of the Contract value.
8) RETENTION OF TITLE
8.1) Should the Contract provide for partial or total payments subsequent to the delivery of the Products, Flexin Group SRL shall maintain exclusive ownership of the Products until full payment has been made;
8.2) Therefore, until full payment has been made the Client shall simply be the depositary of the Products, with the resulting obligation to conserve the same in perfect conditions;
8.3) Should the Client transfer ownership or possession of the products to third parties before the full payment of their price has been made, the retention of title shall be transferred to the price earned by the Client from their resale.
9) RIGHT TO SUSPEND PERFORMANCE
9.1) Should the Client fail to make payment within the terms agreed, Flexin Group SRL shall be entitled to refuse to deliver the Products until full payment has been carried out. For the purpose of this Clause 9.1, Products mean even products that can be ascribed to other Contracts between the Parties;
9.2) In addition, Flexin Group SRL shall be entitled to refuse to deliver Products where the Client’s asset-related or financial position poses evident risks in terms of receipt of payment.
10) WARRANTY – REPORTING DEFECTS AND NON- CONFORMITIES
10.1) Flexin Group SRL guarantees its products pursuant to Flexin Group SRL General Warranty Terms and Conditions, enclosed with these GSTC.
11) FORCE MAJEURE
11.1) Flexin Group SRL shall NOT be responsible for failure to comply with any of its obligations should this be due to reasons of force majeure. Examples of events which constitute circumstances of force majeure include wars, earthquakes, civil unrests, fires, floods, power outage, strikes and serious difficulties in obtaining supplies, pandemics.
11.2) If the cause of force majeure persists for a period exceeding 6 (six) months, the Client shall be entitled to terminate the Contract.
12) CONFIDENTIALITY OBLIGATION
12.1) The Client acknowledges the importance and significant industrial and commercial value of Confidential Information which the Client may directly or indirectly learn of, or come into possession of, the Client hereby undertakes, also on behalf of its employees and collaborators, not to divulge or use said information, except as necessary for purposes related to the Contract;
12.2) The Client, even after the termination of the Contract, for any reason whatsoever, undertakes:
a) To conserve the above-mentioned information with extreme care and confidentiality and to return it upon Flexin Group SRL first request;
b) Not to reproduce, copy, transmit or disclose it to third parties, unless expressly authorised to do so in writing by Flexin Group SRL;
c) Not to request any patents by taking advantage of Confidential Information;
d) Not to produce or have produced or supply to third parties, either directly or indirectly, products that make use of the aforesaid Confidential Information;
e) To impose and guarantee that any person that cooperates with the Client itself, in any form, including thus partners, employees, professionals, consultants, sub- contractors and all those who directly or indirectly may learn of the above-mentioned information, shall respect the obligations deriving from this clause.
13) WRITTEN FORM
13.1 Any modification or exception to these GSTC and/or to a Contract must be approved of in writing by the Parties
14) GOVERNING LAW
14.1) These GSTC and each Contract entered between the Parties shall be governed by Italian law and shall be interpreted on the basis of the same. The United Nations Convention 1980 on Contracts for the International Sale of Goods shall not apply to this Agreement.
15) NOTICES AND COMMUNICATIONS
15.1) All notices and/or other communications required or imposed in accordance to these GSTC and/or to a Contract entered between the Parties shall be deemed validly made to the address and contact details set forth in this document and/or by email to LOGISTICS@FLEXINGROUP.COM
16) SETTLEMENT OF DISPUTE
16.1)Any disputes arising from, or in connection with, These General Warranty Terms and Conditions (including those related to its validity, interpretation, carrying out and non-fulfillment) shall be exclusively submitted to the Italian jurisdiction – Bologna Court. According to artt. 1341 and 1342 of the Italian Civil Code the Client declares to have expressly acknowledged and accepted the following clauses:
Art. 2): “Scope of application and execution of the contract” (Clauses 2.1 – 2.2 – 2.3 – 2.4);
Art. 3): “Prices and methods of payment” (Clauses 3.6 – 3.9 – 3.11);
Art.4): “Delivery Time” (Clauses 4.2 – 4.3 – 4.4 – 4.6);
Art. 7): “Right to withdraw” (Clause 7.2);
Art. 8): “Retention of Title” (Clauses 8.1- 8.2 – 8.3);
Art. 9): “Right to Suspend Performance” (Clauses 9.1 – 9.2);
Art. 11): “Force Majeure” (Clauses 11.1 – 11.2);
Art. 14): “Governing Law” (Clauses 14.1);
Art. 16): Settlement of Dispute” (Clauses 16.1).
ANNEX TO FLEXIN GROUP SRL GENERAL SALES TERMS AND CONDITIONS GENERAL WARRANTY TERMS AND CONDITIONS
1) WHO IS ENTITLED TO WARRANTY
1.1) This warranty is in favour of Flexin Group SRL’s Clients only;
1.2) This warranty does NOT create any right in favour of any party other than Flexin Group SRL’s Clients.
2) WARRANTY & CLAIMS
2.1) Flexin Group SRL warrants the Client that the products are free from defects of material and from manufacturing defects for a period of 12 (twelve) months after the shipping from Flexin Group SRL to the Client. In case of claims presented in the correct way and regarded as founded, Flexin Group SRL agrees to replace or repair the defective product when these are returned to its premises.
2.2) This warranty does not cover any faults caused by normal deterioration, accelerated deterioration caused by special physical, chemical or electrochemical conditions, insufficient maintenance or incorrect repair, failure to follow the storage, user and operating instructions, use of unsuitable materials, the effects of a chemical or electrolyte process, assembly operations not carried out using only Flexin Group’s original parts or Flexin Group’s original certified parts, or faults arising as a result of circumstances over which the supplier has no control.
2.3) This warranty does not cover faults caused by modifications made by the Client or a third party, or assembly or installation operations carried out by these latter without observance of the operating and installation conditions and/or the technical specifications of the products or as an absolute solution to a problem.
2.4) In no event Flexin group SRL shall be liable for incidental or consequential damages.
2.5) No product is warranted as being fit for a particular purpose or a specific application.
2.6) The warranties described above apply only if:
(i) the Product has not been misused, tampered or abused in any manner nor have repairs been attempted thereon;
(ii) written notice of failure within the warranty period is forwarded – exclusively by means of the Client Report Form available on the website www.flexingroup.com to be filled in each section – to Flexin Group SRL and Flexin Group’s directions for properly identifying Products returned under warranty are followed;
(iii) with the return, a notice authorizing Flexin Group SRL to examine and disassemble returned Products to the extent Flexin Group SRL deems it necessary to ascertain the cause of failure.
2.7) The warranties set forth herein are exclusive, i.e., they are the only ones issued. There are no other warranties, either expressed or implied, beyond those set forth herein, and Flexin Group SRL does not assume any other obligation or liability in connection with the sale or use of the products.
2.8) the receipt by the Client of any of the products will constitute acceptance of the entire supply, without reservation and with express waiver by the same to all claims under this document (except for defects not discoverable or detectable at the time of receipt or collection of the product or at the time of any control immediately following delivery) within 8 (eight) days from the discovery, and in any event within a period of 12 (twelve) months from shipping from Flexin Group to the Client.
In any case, whenever possible, the Client shall send Flexin Group SRL a sample of the defective product to follow up the claim procedure.
2.9) In case of products delivered late with respect to the delivery date or in case of non-delivery and whether or not this is due to negligence, Flexin shall be liable for any claims only for an amount not exceeding the purchase price of the products whatever the claim made by the Client.
2.10) It is expressly understood that any technical advise provided by Flexin Group SRL with respect to the use of the Products, shall not be deemed to be a representation that the Products may be so used successfully or that such use will offer any specific result, and Flexin Group SRL does not assume any obligation or liability for any advice given or results obtained.
2.11)The Buyer shall indemnify and hold Flexin Group SRL harmless against any and all loss damage, cost, or expense of any kind incurred by reason of any negligence, breach or other fault of the Client for non-compliance with legal requirements or use of the products for applications that do not comply with or are contrary to the specific application characteristics of the Products themselves.Flexin shall in no event be liable for damages to Client’s and/or any third party’s property, personal injury and/or death attributable to the Products sold as a result of their use and/or handling unless gross negligence or infringement by Flexin Group is proved.
3) CONDITIONS FOR REPORTING DEFECTS
3.1)The Client must carefully inspect the products within the shortest possible time, and in any case, the Client must report any lack of conformity to Flexin Group SRL in writing, by email with a subsequent confirmation by registered letter with acknowledge of receipt, by and no later than 8 (eight) days from the receipt of products, or from discovery of defects, in case of hidden flaws;
3.2)The report must always be in writing and must always contain:
a. The product tracking number, the product code, year of manufacture and date of purchase;
b. The period of time the product has been used and the relevant environmental and application conditions in which it has been used (operating pressures and temperatures, GAS and oil used in the circuit, etc.);
c. The type of defect or lack of conformity.
d. Digital photos of the product and of the application of the Product3.3)In the event that defects or lacks of conformity are not reported in compliance with the terms set out in this warranty certificate, the Client shall lose its warranty rights.
3.4)The products shall be deemed non-conform only after Flexin Group SRL has ascertained and confirmed the existence of flaws or lack of conformity.
4) REPLACEMENT AND WARRANTY REPAIRS
4.1)The warranty shall provide for:
a. Repair of products acknowledged as faulty or non-conforming;
b. Replacement of products acknowledged as faulty or non-conforming, should repair not be possible, or for any other reasons Flexin Group SRL does not consider it as appropriate;
4.2)Should the products be sent to the Client for replacement according to clause 4.1 ref. b), the Client is allowed to carry out said replacement through its technicians and this will not constitute a reason for any forfeiture of the warranty;
4.3)Flexin Group SRL shall not be liable for any other charges or services other than the ones set out in the previous clause 4.1;
4.4)The products to be repaired according to clause 4.1 ref. a) shall be shipped to Flexin Group SRL at the Client’s charge; Flexin Group SRL will return the repaired products according to the terms Ex Works – Incoterms 2020 – Zola Predosa, Italy, Flexin Group SRL Premises.
4.5)The Replaced products may be required by Flexin to be returned to Flexin Group SRL, at Client’s charges, within 30 (thirty) days from the request for return. Failing to respect the above said term, Flexin Group SRL shall be entitled to request payment for replaced products;
4.6)This warranty describes any and all remedies and warranty rights of the Client in case of defect or lack of conformity of the product. Unless this is contrary to the Client’s mandatory rights, the Client shall not be entitled to any other repair or warranty rights beyond those provided for by this document.
5) GOVERNING LAW
5.1)These General Warranty Terms and Conditions shall be governed by Italian law and shall be interpreted on the basis of the same.
6)SETTLEMENT OF DISPUTE
6.1)Any disputes arising from, or in connection with, These General Warranty Terms and Conditions (including those related to its validity, interpretation, carrying out and non-fulfillment) shall be exclusively submitted to the Italian jurisdiction – Bologna Court.
According to artt. 1341 and 1342 of the Italian Civil Code the Client declares to have expressly acknowledged and accepted the following clauses:
Art. 2) Warranty and Claims (Clauses 2.1 – 2.2 – 2.3 – 2.4 – 2.5 – 2.6 – 2.7 – 2.8 – 2.9 – 2.10 – 2.11)
Art. 3) Conditions for reporting defects (Clauses 3.1 – 3.2 – 3.3 – 3.4)
Art. 4) Replacement and warranty repairs (Clauses 4.1 – 4.2 – 4.3 – 4.4 – 4.5 – 4.6 )
Art. 5) Governing law
Art. 6) Settlement of dispute