GENERAL TERMS AND CONDITIONS OF SALE OF PRODALIM USA INC., a Florida corporation, hereinafter referred to as "Prodalim".
1. GENERAL
1.1 All offers from and all orders to Prodalim and
all agreements, whether orally or in writing, and
including any amendments thereto (collectively
"Agreements") between Prodalim and a customer of
Prodalim (hereinafter: the "Customer") for the sale and
delivery of products are subject to these general terms
and conditions which are an integral part of the
Agreement. Agreements are not binding on Prodalim
until the receipt by the Customer of a confirmation by
Prodalim which is signed by Prodalim.
1.2 The Customer may, in a respective Agreement,
invoke provisions that deviate from these general terms
and conditions herein or that waive or that otherwise
change any of the provisions in these general terms and
conditions only if and to the extent that Prodalim has
accepted such provisions, deviation, waiver, change or
contradiction in writing.
1.3 The Customer who has entered into an
Agreement with Prodalim upon which these general
terms and conditions are applicable, consents to the
applicability of these general terms and conditions to
Agreements concluded with Prodalim hereafter.
1.4 If for any reason any provision in these general
terms and conditions is held to be invalid, illegal or
unenforceable by any reason, the remainder shall remain
in full force and effect; an invalid, illegal or
unenforceable provision shall be deemed to be replaced
by a valid, legal and enforceable provision which most
closely achieves the economic purpose of the invalid,
illegal or unenforceable provision as far as possible.
1.5 Any omission or forbearance by the parties with
the enforcement of the correct and timely compliance
with the, specific or generic, terms and conditions set
forth herein, or with the exercise of any privilege under
these general terms and conditions, shall not be
considered a waiver or a novation, nor shall prevent the
parties from exercising such rights or privileges in the
future.
1.6 These general terms and conditions shall inure
to the benefit of and be binding upon the parties and their
respective successors and authorized assignees at any
title, which shall comply with all terms and conditions
set forth in these general terms and conditions.
2. PRICE
2.1 Unless expressly indicated or agreed otherwise,
the prices quoted or agreed upon by Prodalim shall be net
prices, exclusive of VAT and exclusive of any import or
export duties, costs of insurance, adequate packaging,
unloading, inspections, tests, certifications and the like,
and prices are only valid for delivery Ex Works
Incoterms (2020) as may be amended, at the location of
Prodalim. The prices are subject to adjustment for any
changes to the products or the specifications on which
the parties agreed or which are required by applicable
regulations or standards. Notwithstanding anything to
the contrary herein or in the Agreement, to the extent that
any particular Agreement provides that the prices
thereunder are inclusive of import duties, then (i) the rate
of such import duties shall be deemed to refer to and
reflect the rate of import duties known on the date on
which such particular Agreement is signed by Prodalim
and the respective Customer (hereinafter: the "Known
Import Duties Rate"); and (ii) to the extent that, at any
time after the date on which said particular Agreement is
signed by Prodalim and the respective Customer, the rate
of such import duties is increased above the Known
Import Duties Rate, then the prices under such particular
Agreement shall be adjusted automatically so as to
reflect the updated import duties rate and the payment of
the difference between the Known Import Duties Rate
and the updated import duties rate shall be at the
Customer’s sole expense and responsibility.
3. DELIVERY AND DELIVERY TIME
3.1 Delivery takes place Ex Works Incoterms
(2020) as may be amended, the warehouse indicated by
Prodalim (whether orally or in writing) once Prodalim or
a third party on behalf of Prodalim has the products ready
to be loaded on the vehicle used for transport. According
to Ex Works Incoterms (2020), the costs and the risk of
cargo loading and transport will be paid and borne solely
by the Customer, even in the case Prodalim is the party
that organizes and/or directly performs cargo loading
and/or transport. In case of a difference between these
general terms and conditions and the Incoterms (2020)
as may be amended, these general terms and conditions
shall prevail. Notwithstanding anything to the contrary
herein or in the Agreement, where products are delivered
Delivered Duty Paid (Incoterms (2020) as may be
amended) then (i) any costs of carrier's waiting times
starting immediately upon arrival of the products at their
designated location and up to 2 hours thereafter shall be
at Prodalim’s expense, while any costs, fines, liabilities,
expenses either (x) starting immediately upon the lapse
of the aforementioned 2 hours; and/or (z) related to
carrier’s waiting times being beyond the aforementioned
2 hours, shall be at the Customer’s sole cost and expense;
and (ii) any costs, fines, liabilities, expenses related to
the carrier's cancellation on the designated delivery day
shall be at the Customer’s sole cost and expense.
3.2 A failure to make a timely delivery shall in no
event entitle the Customer to additional or substitute
compensation or to non-compliance with any of its own
obligations arising from the Agreement. However, if the
failure to provide a timely delivery solely results from a
circumstance that can be reasonably attributed to
Prodalim and subsequently, if and insofar as Prodalim
still fails to deliver within a reasonable period of time
after the Customer has informed Prodalim thereof in
writing, the Customer shall be entitled to terminate the
Agreement by means of a written statement.
3.3 Prodalim has the right to make partial
deliveries.
3.4 In the case Prodalim is unable to meet any kind
of agreed delivery deadlines for reasons beyond
Prodalim’s control, Prodalim shall inform the Customer
promptly and establish the expected new delivery
deadline. If Prodalim is unable to perform also within the
new delivery deadline, Prodalim is entitled to rescind the
Agreement in whole or in part; in such case, any
consideration already provided by the Customer in
relation to the undelivered products will be reimbursed.
In particular, a delay in delivery to Prodalim from its
suppliers shall be deemed an inability to perform for the
purposes of this section 3.4.
4. RISK AND TRANSFER OF OWNERSHIP
4.1 After the products have been delivered as per
Article 3.1, the products are for the Customer's sole
expense and risk.
4.2 If the Customer is not able to timely pick-up the
products in accordance with Article 3.1, for whatever
reason, such products are for the Customer'ssole expense
and risk as of the moment that such products were ready
for transport or as of the moment the Customer was
informed that the products were ready to be picked-up,
whichever is earlier. As of that moment, loading,
dispatching or transport, unloading and insuring such
products shall be effected for the sole expense and risk
of the Customer.
4.3 The industrial or intellectual property rights to
or in connection with the delivered products or any
materials delivered in connection therewith, including
without limitation any product specification, formulation
produced or supplied, shall remain at all times
exclusively with Prodalim or with third party title owners
and shall in no event be transferred to the Customer.
5. RETENTION OF TITLE
5.1 All products sold by Prodalim shall remain the
sole and exclusive property of Prodalim until the
Customer has paid in full all prices and other sums that
it owes to Prodalim for the products or otherwise in
connection with the underlying Agreement and/or in
connection with prior or subsequent Agreements of the
same nature, including, without limitation, payment
obligations, damages, costs, charges, expenses and
interest. If applicable laws do not allow the retention of
title, but allow Prodalim to reserve other security rights,
Prodalim may exercise these rights. The Customer has
no right of retention in respect of those products.
5.2 The Customer will store products that have not
yet been fully paid for separately and in such a way that
they are recognizable as Prodalim’s property.
5.3 The Customer grants Prodalim an irrevocable
authority to: (i) take such measures which are necessary
to maintain the property rights to the products by
Prodalim, including, without limitation, to take actions
in the name and on behalf of the Customer, and (ii) to
enter any premises controlled by the Customer to re-take
possession of the products which are still subject to the
retention of title.
6. FORCE MAJEURE
6.1 Prodalim shall be entitled to invoke force
majeure if the implementation of the Agreement is, in
whole or in part, temporarily or not, prevented or
impeded by circumstances reasonably out of its control,
including (but not limited to): (a) acts of war or the
commencement or escalation of hostilities, (b)
pandemics, (c) site or building blockades, (d) fire, (e)
strikes, (f) faults on the part of suppliers, (g) stock
shortages, (h) price increases by suppliers, (i) delayed
delivery of parts, products or services by third parties to
Prodalim, (j) accidents and (k) interruptions of business
operations.
6.2 In the event of force majeure on the part of
Prodalim, its obligations are suspended, and if the force
majeure situation is not lifted within three months after
the occurrence hereof, both parties are entitled to
terminate the part of the Agreement that was not yet
fulfilled or can no longer be fulfilled by means of written
notice to the other party. In such case, neither the
Customer, nor third parties shall have a claim against
Prodalim for any compensation.
7. LIABILITY AND INDEMNIFICATION
7.1 The Customer shall examine the products
immediately on receipt. Any obvious defects to the
delivery shall immediately be reported back to the carrier
in writing on the bill of delivery or notified in writing to
Prodalim itself, as applicable. Any hidden defect shall be
notified within 5 days of receiving the products, by email, fax and/or in writing, giving full details of the
alleged complaint. If the Customer does not fulfil these
obligations, any damages which may result from such
defects shall be borne by the Customer. After said
timeframes, as applicable, any defects may no longer be
asserted. Any notice of defect shall be accompanied by
samples of the contested products.
7.2 The liability of Prodalim in connection with the
products or any defects of the products that it has
delivered is limited to (at Prodalim’s discretion)
replacement of or crediting the defective products.
7.3 Prodalim is not and shall not be liable for any
damages (such as but not limited to substitute, additional,
consequential, direct damages or loss of profits) other
than as set out in Article 7.2.
7.4 The limitation of liability shall not apply if and
insofar as the damage suffered was inflicted intentionally
by or was the result of gross negligence of Prodalim itself
(and not any of its employees except for any directors of
Prodalim).
7.5 In all cases in which Prodalim is obligated to
pay compensation for damage, then the total sum of such
compensation to be paid shall in no event exceed, at
Prodalim's discretion, either the respective invoice value
of the products in connection with which the damage was
caused or, if the damage is covered by an insurance of
Prodalim, the amount which is actually paid in the matter
by the insurer.
7.6 If the products delivered by Prodalim are
trading goods that Prodalim has purchased from a thirdparty supplier or subcontractor and resold to the
Customer, Prodalim has the right to assign to the
Customer any rights based on defects Prodalim itself
may have against the third-party supplier or
subcontractor and to demand the Customer to take action
against the third-party supplier or subcontractor, as the
case may be. In such case, Prodalim is liable for said
defects only if claims against the third-party supplier or
subcontractor cannot be enforced although they have
been promptly and timely asserted, also in court, where
applicable. Conditions that limit, exclude or establish
liability, or that can be invoked against Prodalim by third
party suppliers or subcontractors in connection with the
products delivered, can also be invoked by Prodalim
against the Customer. With respect to the products to be
delivered, the Customer shall strictly observe national
and international governmental export, import and user
restrictions. The Customer shall and will hold Prodalim
harmless with respect to any damage suffered by
Prodalim as a result of any violation of these restrictions.
7.7 Customer shall and will hold Prodalim harmless
against any claims of third parties related to the
performance of the Agreement.
8. PAYMENT AND SECURITY
8.1 Unless expressly agreed otherwise in writing in
the Agreement, payment shall be made in the currency
and within the payment term specified on the respective
invoice. In any case, Prodalim is at any time (an ongoing
business relationship included) entitled to make a
delivery/deliveries in whole or in part subject to
advanced payment or security to be provided by
Customer. Prodalim will provide a written notice of such
reservation, without a special form being required.
8.2 The Customer relinquishes any right to set-off
amounts. Claims do not suspend the obligations of the
Customer (including but not limited to the payment
obligations).
8.3 If Customer fails to pay any amount due
according to the Agreement, in particular if Customer
fails to honor a check, revokes or do not perform a
payment in a schema of distributed payments or
discontinues such payments, or if Prodalim learns of any
other circumstances that raise doubts in relation to the
Customer's credit standing, Prodalim is entitled to
demand immediate payment of the remaining due
amount.
8.4 If the Customer fails to pay any amount due in
a timely manner, the Customer shall be in default without
the need of a prior notice of default by Prodalim. As from
the day following the payment due date, overdue
payment interest at 1% of the outstanding amount per
month shall be due for any part of a month during which
the default continues. Prodalim reserves the right to
assert any claims on grounds of further damage caused
by Customer’s default.
8.5 All judicial and extrajudicial costs incurred by
Prodalim as a result of the Customer being in default,
shall be paid by the Customer.
9. TERMINATION
9.1 In the event the Customer (i) fails to partially or
entirely perform one or more of its obligations, or fails
to do so in a timely or proper manner; or (ii) files for, or
has bankruptcy, receivership, judicial or extrajudicial
recovery filed or declared against it; or (iii) requests a
permanent or temporary suspension of payments; or (iv)
proceeds to liquidate its company (or similar event), as
well as if its assets are seized in part or in their entirety,
then Prodalim shall be entitled to suspend the
implementation of the Agreement or to terminate the
Agreement with immediate effect, in part or in its
entirety, by means of a written statement without the
need of a prior notice of default by Prodalim, at its sole
discretion, and always without prejudice to any other
rights to which it is entitled to compensation of costs,
damages, expenses and interest etc'.
9.2 The Customer shall only be entitled to terminate
the Agreement by means of a written statement in the
events described in Article 3.2 and 6.2 and in any event
only after the full payment to Prodalim of all outstanding
amounts at that time, including, without limitation, any
payment obligations, damages, costs, charges, expenses
and interest, whether or not due.
9.3 Expiration or termination of the Agreement for
whatever reason shall not prejudice the provisions of
these general terms and conditions, which, by their
nature, must be deemed to survive such expiration or
termination, including but not limited to Article 7 and 10.
10. DISPUTES AND APPLICABLE LAW
10.1 All disputes between the parties relating to the
Agreement, further contracts resulting therefrom or in
connection therewith shall be exclusively submitted to a
court of competent jurisdiction in Orange County,
Florida.
10.2 All agreements between Prodalim and the
Customer, including, without limitation, these general
terms and conditions, are subject to the laws of the State
of Florida, without regard to the applicable conflict of
law rules and any international/supranational treaties.
The stipulations specified in the Convention of
International Sale of Goods of 11 April 1980 are not
applicable.
10.3 Prodalim and the Customer hereby waive trial
by jury in any action, proceeding, or counterclaim
involving any matter whatsoever arising out of or in any
way connected with any agreements between Prodalim
and the Customer, including, without limitation, these
general terms and conditions or the right to any statutory
relief or remedy.
