PENTALUX S.R.L.

 

GENERAL CONDITIONS OF SALE

 

ARTICLE 1. COMPLIANCE WITH THE CONDITIONS OF SALE

 

1.1 Any sales contract signed between the company Pentalux S.r.l. (hereinafter: “Seller”) for the supply/sale of all products under its own brand (Pentalux, Italpent and/or others) and one or more purchasers and/or customers (hereinafter: “Customer”), which do not fall within the definition of “consumer” set forth in Legislative Decree no. 206/2005, shall be governed by these General Conditions of Sale (hereinafter only: “General Conditions”) which shall prevail in full with respect to any different agreement. The following General Conditions apply exclusively, even if the Seller unconditionally provides a service on the basis of different and/or different general conditions.

1.2 Any agreement signed between the Customer and the Seller that differs from the provisions of these General Conditions shall not be effective unless confirmed in writing by the Seller. 

Should one of the following general conditions be cancelled and/or modified by a written agreement stipulated between the Seller and the Customer, the validity of the remaining clauses shall remain unaffected.

1.3 The General Conditions represent all the agreements between the Customer and the Seller and replace and prevail over any other written or oral communication between the latter prior to the order.

1.4 These General Terms and Conditions and the clauses listed below are understood to be fully accepted regardless of the signature by the Customer, being considered as an essential part of the order and being the same entirely published on the official website of Pentalux S.r.l. www.pentalux.it.

1.5 The Seller reserves the right to modify and/or vary these General Conditions, attaching such modifications and variations to the offers and/or to any written correspondence sent to the Customer as well as publishing the aforementioned variations on the official website of Pentalux S.r.l. www.pentalux.it. Any changes to these General Conditions are deemed to have been accepted by the Customer if there is no specific written complaint within 15 (fifteen) days of their knowledge or in the correspondence immediately following.

1.6 The Customer is expressly forbidden to modify the products covered by the contract, eliminating the distinctive signs of Pentalux and, therefore, to take action aimed at unfair competition or diversion of customers to the detriment of the Seller.

 

ART. 2. OFFER AND ORDERS

 

The offers and/or sales estimates formulated by Pentalux S.r.l. following an express order request formulated in writing by the Customer or through an agent/representative, are valid for 30 days from the formulation of the same and limited to the full supply of what is listed in them. After this period, the offer and/or the sales estimate will no longer be valid, unless otherwise indicated by the estimate or by the offer itself.

 

ART. 3. CONCLUSION OF THE SALE

 

3.1 The sales contract is concluded and perfected with the acceptance, by the Customer, of the order confirmation sent to him by the Seller by e-mail with the indication of the delivery time and the price applied. In the event that the Seller, after sending the Customer the written order confirmation, does not receive the written acceptance of the Customer within the next three days, the order will be deemed accepted by the Customer. 

3.2 The Seller reserves the right to make partial deliveries unless the Customer refuses to do so in writing. Each partial delivery may be invoiced separately.

3.3 The acceptance by the Customer of the order confirmation sent by Pentalux, in whatever way it is carried out, implies the application and observance of these General Conditions of Sale.

 

Art. 4. PRICES

4.1 Unless otherwise agreed in writing between the Seller and the Customer, the price of the products requested by the latter shall be deemed to have been agreed upon to the extent indicated in the last updated price list of Pentalux S.r.l. The prices in the price list are indicative and do not bind the Seller, who reserves the right to change them without any obligation of notice to third parties. 

4.2 The prices of the products are to be understood as referring to “naked goods” and, therefore, do not include the costs of any packaging that will be borne exclusively by the Customer, unless otherwise agreed in writing

4.3 VAT will be calculated separately, taking into account the percentage in force from time to time by law and must be paid in full by the Customer.

4.4 The Seller may charge the Customer for any additional costs arising from any modifications and/or additional services requested by the Customer and approved – in writing – by the Seller.

 

Art. 5. PAYMENTS

 

5.1 Payments must be made in the manner and precisely within the deadlines agreed by the parties. 

5.1 Unless otherwise agreed in writing by the parties, payment of the consideration must be made within 30 (thirty) days of receipt of the invoice. 

5.2 The day of payment is always the day on which the Seller actually has the amount at his disposal.

5.3 In the event of late payment, the Seller is entitled – without the need to send the Customer any written reminder – to suspend the fulfilment of its obligations until payment is actually received and to demand, by written request sent to the Customer, the default interest referred to in Legislative Decree no. 231/2002, plus the additional damage.

5.4 Failure to comply with the terms and conditions of payment exempts the Seller from any obligation to deliver the Product, even in relation to goods other than those to which the aforesaid failure refers, with the right for the Seller to proceed with the advance collection of the entire claim or to terminate the contract.

 

Art. 6. RIGHT OF OWNERSHIP

 

6.1 The Seller reserves the right of ownership of all its Products until receipt of all payments under the contract signed. The Customer is obliged to cooperate in any measure necessary for the protection of the Seller’s property. 

6.2 The Customer shall handle the reserved goods with due care in favour of the Seller. The Customer, upon signing the contract, also undertakes to take all necessary measures so that the claim of ownership of the Seller is not prejudiced and / or canceled. If the Customer has not paid the full price and at the same time is no longer in material possession of the goods (e.g. in the case of resale), the latter must pay Pentalux the economic value of the goods in question.

 

Art. 7. RISK TRANSFER

 

7.1 Unless otherwise agreed in writing, the products being sold are sold “EX WORKS” (“Ex Works”). 

7.2 The Seller is not liable in any way and under any circumstances for defects, loss and/or damage of the products after the transfer of risk to the Customer. The Customer is never released from the obligation to pay the price in cases where the loss and/or damage of the goods occurs after the transfer of risk.

7.3 The risk is also transferred to the Customer when partial deliveries are completed or when the Seller has assumed other services (e.g. assumption of shipping costs, delivery).

 

Art. 8. DELIVERY TIME

 

8.1 The delivery terms resulting from the offer and/or the sales estimate are not binding for the Seller, unless otherwise agreed in writing.

8.2 If the parties have agreed on a delivery date that is expressly binding on the Seller, the Customer shall be obliged to carry out all necessary technical and/or commercial matters and to comply with all his obligations in a timely manner within the stipulated period. In the absence of the prescribed provisions, the delivery times shall automatically be extended without any liability on the part of the Seller.

8.3 The delivery period shall be deemed to have been respected if the object of sale has left the Seller’s factory before its expiry date.

8.4 If the delivery time is delayed at the request of the Customer, the latter undertakes to pay the Seller the costs arising from the storage of the goods in the Seller’s plant. The Seller is entitled to dispose otherwise of the object of sale after having granted the Customer a reasonable extension – the duration of which is subject to the unquestionable judgement of the Seller – which subsequently proved to be unsuccessful.

8.5 If the delay in delivery, more than 60 (sixty) days from the established date, is attributable to the Seller and, as a result of this delay, damages are caused to the Customer, the Seller is obliged to pay, as a penalty clause, and with the express exclusion of the possibility of compensation for further damage, an amount equal to 0.5% of the order price for each week of delay. The above amount may not exceed 5% of the price of the delayed supply.

8.6 The Customer has the right to terminate the contract if the delay in delivery is to be considered serious and attributable, exclusively, to the Seller or in the case of delay of more than 70 (seventy) days from the date of delivery originally scheduled. The Customer who intends to exercise this right must give written notice to the Seller no later than 10 (ten) days from the 71st day of delay in delivery.

8.7 In the event of force majeure such as mobilisation, war, terrorist acts, internal riots, natural disasters, fires or other unforeseeable and unforeseeable circumstances attributable in any way to the Seller as, by way of example, strikes, legitimate lockouts, operating anomalies, lack of means of transport, difficulties in the supply of raw materials or non-deliveries by its suppliers, the delivery terms will be automatically extended based on the duration of the impediment, without any right to compensation or compensation or other in favor of the Customer.

 

ART. 9. NOTIFICATION OF DEFECTS

 

9.1 The Customer undertakes to promptly check the correspondence of all products received with the relevant shipping documents. The Customer must notify the Seller in writing of any recognizable defects within 10 (ten) days of receipt of the goods. The presence of any defects that are not obvious must, however, be reported to the Seller, in the same manner, no later than 7 (seven) days from the time when the defects were detected and in any case no later than one year after delivery. Any costs incurred for checking the correspondence of the products or the existence of any defects are always the sole responsibility of the Customer. Rights for defects communicated beyond the aforementioned peremptory terms are always excluded. 

9.2 The Customer is never authorized to refuse the delivery of the object of the supply for non-substantial defects.

9.3 Complaints regarding an incomplete supply with respect to the order placed, must be notified in writing to the Seller within 7 (seven) days from the date of delivery of the products.

9.4 Within a reasonable period not exceeding 30 (thirty) days from receipt of the notification of defects, the Seller will check the complaints raised and, in case of acceptance of the complaint, will replace at its own expense the defective and/or defective products and, depending on what has been agreed in writing with the Customer, will send any missing goods and/or issue credit notes.

9.5 If, upon written request by the Customer, the Seller entrusts the delivery to a third party as carrier, the Customer undertakes to record and confirm the obvious transport damage in the presence of the carrier. In the event of damage to the goods that is not visible from the outside, the Customer is required to notify the carrier immediately after discovery of the damage, in writing, but no later than 7 (seven) days from receipt of the product supplied. The Customer also undertakes to inform the Seller, in writing, of the transport damage and its notification. In the event of damage to the products attributable to the carrier, the Seller shall not be liable in any way.

 

Art. 10. CUSTOMER’S RIGHTS FOR DEFECTS OF THE THING

 

10.1 Unless otherwise agreed in a different written agreement, the limitation period for claims arising from defects in the object of sale shall be 12 (twelve) months from the date of delivery.

10.2 In the event of the sale of defective items, the defects of which are not substantial, the Seller, having received the report of the defect in writing from the Customer within the terms referred to in art. 9, has the right to fulfil by eliminating the defect (“improvement”) within 30 (thirty) days from the material reception of the defective product by the Customer or to provide a different non-defective item (“subsequent supply”) within the same period. The Customer undertakes to guarantee the Seller free access to the object of sale to carry out the aforesaid operations and to make available to the Seller the tools, devices and personnel necessary for the correct subsequent performance, failing which the Seller is exonerated from any liability. 

10.3 The Customer has no right to defects in the following cases in which the Seller’s liability is excluded: unsuitable and/or inappropriate use, incorrect commissioning by the Customer or third parties appointed by the latter, natural wear and tear of the item, faulty and/or negligent treatment, maintenance not carried out and/or not carried out regularly, unsuitable and potentially damaging company vehicles, defective construction work, inadequate manufacturing area, chemical, electrochemical and/or electrical influences, changes to the object of the supply. The Seller does not guarantee the functioning of the products if there is a different configuration and/or a different use of the same by the Customer compared to the configurations and/or use provided by the Seller or if the Customer wants to obtain a different performance compared to that guaranteed by the Seller.

 

Art. 11. LIMITATION OF LIABILITY

 

11.1 All cases of breach of contract and their legal consequences as well as all claims by the customer are fully regulated by these conditions.

11.2 All claims for damages, reduction, termination or withdrawal not expressly mentioned in these General Terms and Conditions are excluded.

11.3 In no event shall the customer be entitled to claim compensation for damages which have not occurred on the object of sale, in particular with regard to loss of production, loss of use, lost orders, loss of profit and other types of direct or indirect damages. 

11.4 The liability of the Seller is limited, in any case, to the value of the order of the sale in question.

11.5 The parties agree that Pentalux S.r.l. shall not be liable in the event of any defect resulting from normal deterioration and/or wear, intentional damage, negligence, abnormal working conditions, failure to comply with Pentalux’s instructions (whether verbal or written), improper use or alteration, modification, adjustment or repair of the products carried out without the Seller’s approval; if the price of the products has not been paid by the Customer by the due date for payment; if the Customer has made additions or assemblies with additional products not supplied by Pentalux.

 

Art.12.OBLIGATION OF CONFIDENTIALITY  AND INTELLECTUAL PROPERTY

 

12.1 The Customer, unless expressly authorised in writing by the Seller, undertakes not to disclose to third parties, either orally or in writing or by any other possible means of communication, the information learned from the Seller, whether of a commercial or technical nature.

12.2 The Seller undertakes not to disclose to third parties information about orders placed by the Customer, unless expressly authorized to do so by the latter.

12.3 The Customer expressly acknowledges that the trademarks, trade names or other distinguishing marks affixed to the goods are the exclusive property of Pentalux S.r.l. 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 remains the exclusive property of Pentalux S.r.l., for the sole purpose of reselling the goods to the public. Any other use of the intellectual property of Pentalux S.r.l. by the Customer, unless expressly authorised by Pentalux S.r.l. in writing, shall be considered a violation by the Customer of the aforementioned exclusive rights of the Seller, also from the point of view of contractual liability, with the consequent full right of the Seller to act for the termination of the contract as well as for the compensation of all damages suffered and pending.

12.4 The documents, drawings, data and information (both in paper and electronic form) that may be delivered to the Customer, remain the exclusive property of Pentalux S.r.l. and constitute support for a better representation of the Products and are indicative of the performance of the Products themselves.

 

Art. 13. DETERIORATION OF THE CLIENT’S FINANCIAL SITUATION

 

13.1 If, after the conclusion of the contract, the financial situation of the Customer deteriorates to such an extent as to jeopardise the observance of contractual obligations (e.g. cessation of payments, submission to insolvency proceedings, seizure and/or other measures of forced execution, collection of bank protests or cheques and debit refunds, including from third parties), the Seller is entitled not to deliver the goods until the agreed consideration has been paid in advance or to demand a guarantee commensurate with the value of the order. 

13.2 The previous paragraph is also applicable in cases of late payment by the Customer that may give rise to doubts about its creditworthiness and/or creditworthiness.

13.3 In all the cases set forth in art. 13.1, the Seller is also entitled to withdraw, even partially, from the stipulated contract.

 

Art. 14. RESOLUTION

 

14.1 The parties may terminate this contract by written notice with immediate effect if the other party: (a) has entered into a not insignificant and persistent breach of the provisions of this contract and fails to remedy the breach within 30 (thirty) days of receipt of written notice; or (b) becomes insolvent or is unable to pay the debts where due.

14.2 The Seller may terminate the contract with immediate effect, pursuant to and for the purposes of art. 1456 of the Italian Civil Code, without prejudice to the right to compensation for greater damage to the Customer, if the latter does not provide punctually and in accordance with what has been agreed to pay for the order made, as well as in the event of modification of the product by the Customer that involves the elimination, even partial, of the distinctive signs of the Seller as governed by art. 1 of this contract. Furthermore, the Seller may terminate the contract with immediate effect in the cases referred to in art. 12, paragraphs three and four above.

 

Art. 15. COMPLIANCE WITH LEGAL REQUIREMENTS AND EXPORT

 

15.1 The Seller guarantees the conformity of the products offered, which are the subject of the sales contract, with the European Union (EU) and international standards that may apply to them. 

15.2 The Customer shall comply with all legal regulations, administrative requirements and other applicable laws, in particular export regulations and the regulations of the country in which the Customer operates. 

15.3 The Customer is obliged to obtain all required authorizations and licenses, as well as all other necessary permits for the use or export of the object of sale in accordance with all applicable regulations.

15.4 The Seller reserves the right to refuse to provide its services to the Customer, in the event that the latter violates the aforementioned applicable regulations or if all the authorisations required are not available.

15.5 The Seller is not liable, under any circumstances and for any reason, for any violations of applicable regulations put in place by the Customer or for the lack, on the part of the latter, of any necessary authorizations and/or licenses..

 

Art. 16. ASSIGNMENT OF THE CONTRACT

 

16.1 The Customer shall not be entitled to assign, even partially, the rights and/or obligations arising from the contract concluded with the Seller without the Seller’s prior written consent. 

16.2 The Seller is entitled to assign, even partially, the rights and/or obligations arising from the sales, in particular to the companies belonging to the same Group.

 

Art. 17. APPLICABLE LAW AND PLACE OF JURISDICTION

 

17.1 All legal relationships between the Seller and the Customer are governed exclusively by Italian law. In case of differences in interpretation between the Italian version of these general terms and conditions and those possibly translated into other foreign languages, the Italian version shall always prevail.

17.2 For any dispute arising out of or connected with the sales contracts governed by these General Conditions or with the interpretation, validity, execution of the same will apply to the Jurisdiction and Italian law and the exclusive competent court is that of Naples.

17.3 Place of performance for obligations arising from sales of products of the Seller or related to them is to be understood as the establishment of the Seller where the goods are deemed to have been delivered to the customer.