GENERAL TERMS AND CONDITIONS OF SALE
- GENERAL. These terms and conditions of sale (“Terms”) govern the sale of products (“Products”) by Pettenon Cosmetics S.p.A. SB, with registered office in via del Palù, 7/D, San Martino di Lupari (PD-ITALY) (“Seller” or “Pettenon”) to the buyer (“Buyer”) (Pettenon and the Buyer, hereinafter together, also referred as the “Parties”).
The offer and sale of Products, the execution of agreements and any other relationship between Pettenon and the Buyer(s) inherent to the sale of Products are exclusively governed by the Terms. Differing terms proposed in any form or manner by the Buyer shall not have any effect nor shall they be binding on the Parties, except upon Pettenon’s acceptance in writing; likewise, any general/specific terms that the Buyer may have drafted do not apply and, upon signing the present Terms, the Buyer expressly waives such terms.
Notwithstanding anything herein to the contrary, if a written contract with special conditions is signed by both Parties related to the sale of Products, then such contract will prevail to the extent of any inconsistency with the Terms.
The Seller reserves the right to make changes and/or additions to these Terms which will be considered validly notified
The offer and sale of Products, the execution of agreements and any other relationship between Pettenon and the Buyer(s) inherent to the sale of Products are exclusively governed by the Terms. Differing terms proposed in any form or manner by the Buyer shall not have any effect nor shall they be binding on the Parties, except upon Pettenon’s acceptance in writing; likewise, any general/specific terms that the Buyer may have drafted do not apply and, upon signing the present Terms, the Buyer expressly waives such terms. Anything herein to the contrary, if a written contract with special conditions is signed by both Parties related to the sale of Products, then such contract will prevail to the extent of any inconsistency with the Terms The Seller reserves the right to make changes and/or additions to these Terms which will be considered validly notified, acquiring immediate effectiveness, from the day of their publication on the website https://www.pettenon.it/it - Orders and Agreements. The Buyer undertakes to comply with the provisions of these Terms in placing any orders of Products (the “Order”) with Pettenon. Any Order that does not comply with the following provisions, as well as incomplete or inaccurate, shall not be processed by Pettenon. Orders shall be considered valid if sent in writing, via e-mail or through the Seller’s online portal for order management, and if containing at least the following items indicated by Pettenon: Buyer’s identification and billing data, place of delivery and Incoterm applied, type of Products, quantity of Products, price, Product code). Orders cannot be revoked or modified without written consent of Pettenon.nPettenon is not obliged to accept orders from the Buyer, being free to make its own assessment of whether to accept an order or not and, consequently, whether to deliver the Products. When Pettenon accepts an Order it shall send an order confirmation, via e-mail or through the aforementioned online portal to the Buyer the correctness of which must be confirmed by the Buyer (hereinafter the “Order Confirmation” and, together with the “Order”, the “Agreement”). In the absence of written confirmation to the Order Confirmation by the Buyer, the Products will not be shipper. The Agreement shall be considered effective at the moment the Buyer receives the Order Confirmation.
- ORDERS AND AGREEMENTS. The Buyer undertakes to comply with the provisions of these Terms in placing any orders of Products (the “Order”) with Pettenon. Any Order that does not comply with the following provisions, as well as incomplete or inaccurate, shall not be processed by Pettenon. Orders shall be considered valid if sent in writing, via e-mail or through the Seller’s online portal for order management, and if containing at least the following items indicated by Pettenon: Buyer’s identification and billing data, place of delivery and Incoterm applied, type of Products, quantity of Products, price, Product code). Orders cannot be revoked or modified without written consent of Pettenon.
Pettenon is not obliged to accept orders from the Buyer, being free to make its own assessment of whether to accept an order or not and, consequently, whether to deliver the Products.
When Pettenon accepts an Order it shall send an order confirmation, via e-mail or through the aforementioned online portal to the Buyer the correctness of which must be confirmed by the Buyer (hereinafter the “Order Confirmation” and, together with the “Order”, the “Agreement”). In the absence of written confirmation to the Order Confirmation by the Buyer, the Products will not be shipped.
The Agreement shall be considered effective at the moment the Buyer receives the Order Confirmation.
The Order Confirmation may contain elements or values different from those indicated in the Order. In such cases, if the Buyer does not accept the variation from the Order it shall notify, within 3 (three) days from date the Order Confirmation has been sent by the Seller to the Buyer, its disagreement to such variation. Upon expiry of the 3 (three) days period above, without the Buyer having delivered any communication, the Agreement shall be considered concluded and binding on the Parties.
The Terms and the Agreement comprises the entire agreement between the parties regarding the subject matter hereof, and supersedes all prior understandings, agreements, negotiations, representations and warranties.
4. INDEPENDENT PARTIES. The Terms apply exclusively in case the Buyer is a professional and the agreement is executed within the scope of the business activities of the Buyer. The Terms do not apply to any sale to “consumers” pursuant to the definition under Italian and European regulations on that subject.
The Buyer acts as an independent contractor and acceptance of these Terms excludes the existence of a partnership, distribution, agency, consultancy, license relationship, or any other form of commercial relationship between Seller and Buyer unless specifically regulated in writing between the parties.
54. DELIVERY. The delivery date identified in the Order Confirmation is not binding for the Seller. The Buyer accepts that under no circumstance shall the Seller be held responsible for any delay in deliveries loss or damage in transit, not attributable to it and which is determined by (i) events or incidents caused by “force majeure”, (ii) the Buyer's failure to meet or delay in meeting its obligations, (iii) Public Authority acts or delays, including where they are not a consequence of a “force majeure” events; (iv) the Buyers’ acts or delays. In such cases the delivery term shall be extended for a period equal to the duration of the impediment.
Unless otherwise agreed in writing between Parties, the Products will be sold : (i) if the delivery shall take place outside the European Union, FCA Incoterms 2020 and will be delivered at Seller’s warehouse in San Martino di Lupari (PD- ITALY) or at any other place indicated by the Seller in the Order Confirmation (the “Delivery Point”); (ii) if the delivery shall take place in European Union, Ex Works Incoterms 2020 at Seller’s warehouse in San Martino di Lupari (PD-ITALY) or at any other Delivery Point.
For all and any purposes of this Terms, in case of EX Work delivery, “delivery” is considered as executed when the Seller notifies the Buyer that the Products are available at the Seller’s warehouse or at the Delivery Point; while in case of FCA delivery, “delivery”, is considered as executed when the carrier, appointed by the Buyer (or by Seller, if the parties agreed so), takes the Products into his charge at the Seller’s warehouse or at the Delivery Point. Without prejudice to the above, the Parties may agree that the transportation is carried out by a carrier appointed by Pettenon, provided that all costs, expenses and risks shall be borne by the Buyer. Unless otherwise set forth in the Order Confirmation, Seller will deliver Products, packaging them in compliance with its commercial practice.
Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale and Buyer will pay for the units shipped whether the shipment is in whole or partial fulfillment of Buyer’s purchase Order. In the event of unjustified refusal of the Products, the costs of transport there/back and any stops will be borne by the Buyer, who will also be required to compensate for any damages suffered by Seller.
6. RETENTION OF TITLE. Regardless of the terms for delivery and the transfer of risk of the Products and of any other provision under the present Terms, the Products delivered shall remain in Seller's property until complete payment of the Products is received by Seller.
7. INSPECTION. The Buyer shall inspect the Products and shall notify any defect to the Seller, under penalty of forfeiture, within 15(fifteen) days from receipt (“Inspection Period”) for any apparent defects. Any hidden defects (so called “vizi occulti”) shall be notified in writing to the Seller, under penalty of forfeiture, within 15(fifteen) days from the discovery.
Buyer will be deemed to have accepted Products unless it notifies Seller of any damaged, defective or otherwise nonconforming Products during the Inspection Period and furnishes such evidence as reasonably required by Seller.
If Buyer timely notifies Seller of any nonconforming Products, the Seller might, as provided in article 9 below, at its sole discretion: (i) issue a credit or refund to the Buyer equal to the price paid by the Buyer to the Seller for Products that has been ascertained to be defected by the Seller; or (ii) replace the defective Products.
All sales of Products to Buyer are made on a one-way basis and, except as provided in this article and in article 9 below, the Buyer has no other right to return Products purchased under the Agreement to Seller for replacement, credit, refund or otherwise.
8. PRICE. The prices of the Products (“Prices”) shall be those in force on the date of receipt of the Buyer's confirmation at the Order Confirmation, except in the event that the confirmation is sent close to the change of price list at the end of the year, in which case Pettenon may, after informing the Buyer, apply the new price list for the following year. Seller reserves the right to change - at its sole discretion - its price list in accordance with the periodic updates communicated to the Buyers. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer will be responsible for all such charges, costs and taxes, provided that Buyer will not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
9. PAYMENT TERMS. Unless otherwise agreed in writing by the Parties, the payment of the Products will be made the by Buyer, by bank transfer, in advance before delivery of the Products. Unless otherwise agreed by the Parties, all payments hereunder will be in EUR (Euro) and made by bank transfer. Buyer will pay interest on all late payments at the rate under Italian legislative decree 231/2002 (so called “interessi di mora”).
Buyer will reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees. In addition to all other remedies available under this Agreement or at law, Seller will be entitled to suspend the delivery of Products if Buyer fails to pay any amounts when due hereunder. Buyer will not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller.
10. LIMITED WARRANTY. The Seller undertakes to remedy, according to article 10 of these Terms, to any defects of the Products for which it is liable, within 12 months from delivery of the Products, provided such defects are reported immediately as set forth by article 6 of the Terms (“Warranty Period”). The warranties under this Terms do not apply where Products have been subjected to abuse, misuse, neglect, negligence, accident, abnormal physical stress or environmental conditions, use contrary to applicable law or any instructions issued by Seller, or improper storage or handling.
11. WARRANTY CLAIMS. The Buyer will notify Seller of any alleged warranty claim within the terms provided in article 6 above. During the Warranty Period, the Buyer will ship the relevant Products within the terms agreed by Parties, at its expense and risk of loss, to Seller’s facility listed in the Order Confirmation for inspection and testing by Seller; in such case if Seller’s inspection and testing reveals, to Seller’s reasonable satisfaction, that the Products do not conform with the warranty set forth herein, Seller will in its sole discretion, and at its expense (subject to Buyer’s compliance with this article), either (i) credit or refund the Price of the nonconforming Products less any applicable discounts, rebates, or credits; or (ii) replace the nonconforming Products. If Seller exercises its option to replace the nonconforming Products, Seller will, after receiving Buyer’s shipment of the nonconforming Products, ship to Buyer, at Seller’s expense and risk of loss, the replacement Products to the Delivery Point or to the warehouse of the Seller, as indicated in the Order Confirmation, according to article 3 above.
12. COMPLIANCE WITH LAWS. The Products are compliant with applicable European Law and regulations (i.e. European Community Reg. 1223/2009 on cosmetic products) on ingredients/composition and labelling. It is a specific duty of the Buyer to assess the compliance of the Products also with the laws applicable within the territory where the Products shall be commercialized by the Buyer. The Buyer shall indemnify and hold harmless Pettenon from any possible liability, damages, costs, expenses that may arise to Pettenon itself, from any claims of third parties in relation to the sale of the Products. The Buyer shall also apply for and obtain any licenses, permits and approvals, that may be necessary or required for the sale of the Products, holding the Seller harmless from all and any liability that my rise against Pettenon from such activity. Such licenses shall be requested by the Buyer in the name and on behalf of the Seller or of the Buyer as per written agreement between Parties. The Buyer shall furnish to Seller the copies of licenses obtained from local authorities and copies of the invoice (or receipt) concerning the costs incurred in order to obtain the health and sanitary licenses.
The Seller shall make all reasonable effort in order to provide to the Buyer the documentation required by him, in order to obtain by the local authorities the health and sanitary licenses to import and commercialise the Products in the local markets.
13. WARRANTIES DISCLAIMER. Except as set forth in articles 9 and 10, Seller makes no express or implied warranty whatsoever with respect to Products, including any (i) warranty of merchantability or (ii) warranty of fitness for a particular purpose, whether arising by law, course of dealing, course of performance, usage of trade, or otherwise. Buyer acknowledges that it has not relied upon any representation or warranty made by Seller, or any person on Seller’s behalf, except as specifically provided in articles 9 and 10.
14. LIMITATION OF LIABILITY. Save for the case of willful misconduct and gross negligence (dolo e colpa grave), in no event will Seller or any of its representatives will be liable for consequential, indirect, incidental, special, exemplary, punitive or enhanced damages, lost profits or revenues or diminution in value, arising out of or relating to the Agreement, regardless of (i) whether such damages were foreseeable, (ii) whether Seller was advised of the possibility of such damages, and (iii) the legal or equitable theory upon which the claim is based.
Seller’s aggregate liability arising out of or related to the Agreement, whether arising out of or related to breach of contract, tort or otherwise, will not exceed the total of the amounts paid to Seller pursuant to the Agreement.
15. SELLER’S TRADEMARK. The Buyer acknowledges that the trademarks and distinctive signs of Pettenon are the exclusive property of the latter. Consequently, the Buyer may not make any use/act of disposal, in any form or manner - including reproduction on the World Wide Web - of such trademarks and/or distinctive signs, even if combined with each other or with other trademarks and names, for any reason, unless previously approved in writing by Pettenon. The Buyer may not, in particular, request registration in his/her own name of the trademarks or distinctive signs of Pettenon or their variants, nor internet domains containing or that may generate confusion with the trademarks and distinctive signs of Pettenon, adopt a company name, business name or company name that may generate confusion with the trademarks of Pettenon or with its business name.
16. CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of Seller, including, without limitation, specifications, samples, designs, plans, drawings, documents, formulas/compositions/active ingredients of the Products, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with the Agreement is confidential, solely for the use of performing the Agreement and may not be disclosed or copied unless authorized in advance by Seller. Upon Seller’s request, Buyer will promptly return all documents and other materials received from Seller. Seller will be entitled to take all legal actions that it may consider necessary, for any violation of the Buyer of this Section. This Section does not apply to information that is (i) in the public domain, (ii) known to Buyer at the time of disclosure, or (iii) rightfully obtained by Buyer on a non-confidential basis from a third party.
17. FORCE MAJEURE. Neither Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the Agreement or of the Terms, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s reasonable control, including, but not limited to, the following force majeure events: (i) flood, fire, earthquake, explosion or epidemic; (ii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iii) order or action by any governmental authority or requirements of law; (iv) embargoes or blockades in effect on or after the date of this Agreement; (v) national or regional emergency; (vi) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (vii) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials.
18. CODE OF ETHICS AND MODEL OF ORGANIZATION OF PETTENON COSMETICS S.P.A. S.B. The Buyer declares to acknowledge and comply with the Italian Legislative Decree 231/01, to acknowledge and fully agree with the content of Code of Ethics and the Organizational Model of Pettenon Cosmetics S.p.A. SB, published to the website https://www.pettenon.it/en/code-ethics-and-model-organization. Should the Buyer fail to comply with the abovementioned obligations, Pettenon reserves the rights to seek compensation for damages.
19. MISCELLANEOUS.
a. AMENDMENT.
The Agreement may be amended, and the terms hereof may be waived, only by a written instrument signed by both parties or, in the case of a waiver, by the party waiving compliance.
b. BINDING NATURE OF AGREEMENT; ASSIGNMENT. All the terms of the Agreement and the Terms will be binding upon and will inure to the benefit of the parties and their respective successors, permitted assigns, heirs and personal representatives. Buyer may not assign, delegate or transfer to any third-party Buyer’s rights or obligations hereunder without Seller’s prior written consent.
c. WAIVER. No failure or delay by a party in exercising any right, power or privilege hereunder will operate as a waiver of any right, power or privilege hereunder. No waiver of any default on any one occasion will constitute a waiver of any subsequent or other default. No single or partial exercise of any right, power, or privilege will preclude the further or full exercise thereof.
d. GOVERNING LAW; VENUE. The terms and the Agreement and of the Terms will be governed by and will be construed, interpreted and enforced in accordance with the laws of the State of Italy, without reference to principles of conflicts of law. The Parties expressly exclude the applicability of the United Nations convention on contracts for the international sale of Products (signed in Vienna in the 1980) [Convenzione di Vienna sulla vendita internazionale di beni del 1980] to the Agreement and to the Terms. All disputes arising out of or relating to the Agreement or the Terms, or the breach or default of the Agreement or of the Terms, will be determined solely by the Court of Padua.
e. NOTICES. All notices or other communications required or permitted under the Agreement or the Terms must be in writing and will be considered given when delivered (i) in person, (ii) by overnight courier service, upon written confirmation of receipt, (iii) by certified or registered mail, with proof of delivery, or (iv) by email, with confirmation of receipt, using the recipient party’s address or email address set forth in the Order Confirmation. A party may change its address or email address by notice to the other party in accordance with this section.
f. SEVERABILITY. The terms of the Agreement or of the Terms will be considered severable and the invalidity or unenforceability of any one or more of the terms hereof will not affect the validity and enforceability of the other terms hereof.
g. REMEDIES. Except as otherwise provided herein, the rights and remedies of the parties with respect to failure of a party to comply with the terms of the Agreement or the Terms are not exclusive, the exercise thereof will not constitute an election of remedies and the aggrieved party will in all events be entitled to seek whatever additional remedies may be available under the Agreement or the Terms or the law.