Terms of sales
GENERAL SALES CONDITIONS
1) The consignment of goods will take place at the buyer’s or the seller’s facilities, as per specific agreements. Upon receiving the goods, the buyer undertakes all further risks.
2) If the goods are transported by the seller, any irregularities or shortfalls in the consignment must be reported by the buyer upon receiving the goods and the claim must be included on the copy of the consignment invoice returned to the seller. Claims made at a later time will not be honored.
3) Any claims regarding product quality must be made to the seller in writing within eight days of the date of goods receipt. Claims made beyond this deadline will not be honored.
4) The buyer is fully responsible for taking the necessary measures to ensure that the goods purchased are suitable for his purposes and must take all necessary measures and precautions during processing to prevent any problems. Should the buyer fail to do so, the seller is freed of any and all responsibility for consequences deriving from the inadequacy of the goods for the intended purpose.
5) Any weight discrepancies must be reported to the seller within eight days via registered letter and the goods must be made accessible for any and all checks. In any case, weight discrepancies not exceeding one percent of the weight of the goods are to be considered normal and do not provide a basis for claims or refunds.
6) The buyer commits to the maximum quantities included in the order confirmation. The seller retains the right to increase or decrease by ten percent the minimum or maximum amounts indicated in the order confirmation.
7) The consignment terms listed in the order confirmation, unless otherwise expressly agreed, are never binding; the seller is thus freed of any and all responsibility for delays in consignment. However, such delays do not exempt the buyer from punctually fulfilling all payment commitments.
8) If thirty days have passed since the consignment date indicated on the purchase order without the buyer having urged such consignment, the seller retains the right to consider the order void, entirely or in its unconsigned part, without the seller having any right to claim indemnity or to consider himself freed of his obligations.
9) With the exception of instances of force majeure, in cases of shortages or lack of raw materials, labor strikes, fires or malfunctions of the seller’s plants or equipment, or any other event that impedes or limits normal production, the seller may defer consignments beyond the contract terms or cancel the contract without bearing any responsibility for indemnity or retribution of any type on behalf of the buyer or any of his successors in title.
10) The goods that are the object of this order confirmation remain the property of the seller until payment has been received.
Payments must be made exclusively in accordance with agreements with or conditions specified by the seller.
11) The cost for promissory notes, bills of exchange or any other expense associated with the payment are to be borne by the buyer.
12) In the event of full or partial non-payment by the buyer for the consigned goods, the seller retains the right to suspend all other consignments, even if covered by separate purchase orders, without being required to make any notification to the buyer, and to consider null and void by default of the buyer any and all contractual agreements. No claims or contestations shall give the buyer the right to delay or suspend payment and none shall be honored if not preceded by the payment of all sums owed the seller.
13) With the exception of the conditions specified in Point 12, interest penalties will be applied to late payments in the amount of “the sum of the interest rate applied by the European Central Bank to its most recent main refinancing operation carried out before the first calendar day of the half-year in question, plus at least seven percentage points”, as per Italian Legislative Decree no. 231 of 9 October 2002 (DLgs 231/02), and the buyer shall be held responsible for refunding to the seller all costs sustained in the recovery of any amounts not paid on time, in addition to indemnity for greater damages (as per DLgs 231/02).
14) A copy of the order confirmation, signed by the buyer, must be delivered to the seller within five days of the date of receipt of the goods. Otherwise the seller may consider the order fulfilled (on the basis of these General Sales Conditions) or annulled by providing simple notification to the buyer.
15) Any controversy deriving from the application of this contract shall be resolved exclusively via arbitration at the Camera Arbitrale instituted at the Varese Chamber of Commerce.
NEW LATE PAYMENT PENALTIES
With the enactment of Italian Legislative Decree no. 231 of 9 October 2002 (DLgs 231/02, published in the Official Bulletin no. 249 of 23/10/2002) the European directive 2000/35/CE entered into force in Italy “to combat late payments in commercial transactions” (which seeks to combat late payments within the European Union that constitute an obstacle to the proper operation of internal markets, and to guarantee the application of uniform regulations for both internal and transborder operations).
1) Field of application
DLgs 231/02 applies to “all payments made as remuneration for commercial transactions” (Article 1.1), i.e., to any payment which has as its object a price to be paid within the context of a commercial transaction.
a) debts for which there is more than one claimant (bankruptcy, composition, temporary receivership) engaged in proceedings against the debtor
b) interest of less than € 5.00
c) payments made as restitution for damages (also by insurance companies).
2) Debtor’s responsibilities
The creditor may claim interest penalties in the amount stipulated above, unless the debtor can prove that the delay in payment was due to force majeure (thus, not imputable to him).
3) Beginning of interest period
Interest for late payment shall become automatically payable from the day following the date or the end of the period for payment fixed in the contract.
If no payment term is fixed in the contract, the interest is payable automatically (even if no late payment claim is made) at the end of one of the following terms (by law):
a) 30 days from the date of receipt by the debtor of the payment invoice (or of “a request for payment of equivalent content”);
b) 30 days from the date of receipt of the goods or services when the date of receipt of the invoice (or equivalent payment request) cannot be ascertained;
c) 30 days from the date of receipt of the goods or services, when this date is after the date of receipt of the invoice (or equivalent payment request);
d) 30 days from the date of acceptance of the goods or services or from the verification of conformity of the goods or services to the contract provisions, where specified by law or contract, in cases where the debtor receives the invoice (or equivalent payment request) no later than such date.
4) Interest rate
Unless otherwise agreed by the parties, the level of interest for late payment “shall be the sum of the interest rate applied by the European Central Bank to its most recent main refinancing operation carried out before the first calendar day of the half-year in question, plus at least seven percentage points”. This interest rate shall be held valid for the entire half-year.
In practice, since the [Italian] Ministry of the Economy and Finance publishes the interest rate in the Official Bulletin by the 5th working day of each half-year, the applicable interest rate for each half-year may be obtained from such source (or from information organs).
For the 2nd half-year of 2002 and the 1st half-year of 2003 the Ministry published in the Official Bulletin no. 33 of 10/01/2003 the respective interest rates of 3.35% and 2.85%. Thus the interest penalties are 10.35% (12.35% for perishable food products) for the second half of 2002 and 9.85% (11.85% for perishable food products) for the first half of 2003.
5) Compensation for recovery costs
The creditor shall be entitled to compensation for costs sustained for the recovery of sums paid to him late, in addition to compensation for greater damages (if proof is provided), unless the debtor proves that the delay in payment was not imputable to him.
Any agreement on payment dates and late payment penalties is null and void if – having regard “to proper commercial practice, to the nature of the goods or services object of the contract, to the conditions of the contracting parties and the commercial relations between them, and to any other circumstance” – it is grossly unfair to the creditor.
7) Safeguarding of collective interests
The entrepreneurial associations in the National Council of the Economy and Labor, representing principally small and medium enterprises in all production sectors and the craft sector, may act to safeguard the collective interests of their constituents by asking the judge:
a) to verify the gross unfairness of the general contract conditions concerning the date of payment and the penalties for late payments and prohibit their application;
b) to take suitable measures to correct or eliminate the damaging effects of such ascertained violations;
c) to order the publication of the judgment in one or more national daily newspapers or local newspapers in cases where the publication of the judgment contributes to the correction or elimination of the effects of the ascertained violations.
In cases where the obligations imposed in the judgment are not fulfilled, the judge, who may be solicited by the association that took action, shall order the payment of a sum ranging from 500 to 1,100 euros for each day that payment is late, depending on the seriousness of the given case.
8) Modifications to the civil code
An injunction may also be requested of a debtor headquartered outside of national borders.
Now the injunction must be issued within 30 days from the filing of the petition and, if opposed, the provisory partial payment of the non-contested sums may be ordered (unless the opposition is made on the basis of flawed procedures).
9) Modifications to Italian Law 18.6.1998 no. 192
Italian Law 18.6.1998 no. 192 is the law that regulates subcontracting in productive activities: interest penalties apply here as well – in the event of late payment of the subcontractor by the client – calculated as described above (the ECB interest rate + 7 percentage points), unless a higher rate is stipulated and further damages are proven.
If the delay exceeds 30 days past the agreed date for payment, the client undertakes the additional penalty of 5% of the sum for which the terms were not respected.
10) Transitory regulations
DLgs no. 231/02 does not apply to contracts undersigned prior to 8 August 2002 (which continue to be regulated by the Civil Code and special laws).