General terms and conditions of sales
Scope of application
1.1 These General Terms and Conditions of Sale (“General Conditions”) shall apply to any and all supply of products that will be executed towards any client (“Client”) from one of the company of the ASA Group (“ASA”) - namely: Asa San Marino S.p.A. (Republic of San Marino), Asa Italia S.p.A. (Italy), Asa UK & Ireland (United Kingdom) and L. Sauter AG (Switzerland) - even if this General Conditions are not expressly referred to or mentioned from time to time.
1.2 No provisions deviating from these General Conditions shall be binding on ASA unless included in the purchase order of the Client (“Order”) accepted in writing by ASA as per article 4.3 below.
1.3 In no case any general conditions of contract of the Client shall be binding on ASA.
2.1 The products are manufactured by ASA, as the case may be, in compliance with the Confirmed Order and/or in compliance with the technical sheets supplied by ASA itself. Before placing the Order, it is the responsibility of the Client to make sure that the products are suitable for their specific purpose and/or intended use.
2.2 ASA, even after acceptance of the Order, may make any changes to the products which, without altering their essential features, it deems necessary or convenient.
2.3 ASA may also sub-contract to third parties, in whole or in part, the manufacture of the products.
3.1 ASA will print on the products the graphics supplied by the Client with its own drawings (“Graphics”).
3.2 The Client warrants ASA that it is authorized to use the distinctive signs – such as trademarks, trade names, logos, etc. – as well as the images and information included in the Graphics supplied to ASA and that, therefore, their use do not constitute a violation of intellectual property rights of third parties.
The Client shall indemnify and hold ASA harmless from any claim of reimbursement of damages that may arise from or be connected to the breach of intellectual property rights of third parties.
3.3 ASA shall be the sole and exclusive owner of the workable files including the Graphics to be printed on the products. At all events, ASA will use such file only for the manufacture of the products in favour of the Client and will deliver a copy of such file to the Client in pdf format, at low resolution.
3.4 It is the responsibility of the Client, before submission of the Order, to ascertain that the Graphics are suitable for the specific purpose and scope for which the Client wants them to be printed on the products and that the products are compliant with the legislation applicable in the place where the Client intends to import, export, distribute them or have any other use of the same.
3.5 In no case ASA shall modify the Graphics without being previously authorized by the Client.
Offers – Orders – Orders Acceptance - Tolerances
4.1 Written or verbal offers or quotations issued by ASA are not to be taken as valid contractual proposals.
4.2 The Client shall place its Order in writing and shall submit it to ASA by fax or email. The Order shall include all the information relating to the products being ordered (product code, description, Graphics to be printed on the products, quantity, price per unit, proposed term and date of delivery, etc.) as well as the fiscal data of the Client to be included in the relative sale invoice.
4.3 The Order shall be binding on the Client from the time it is received by ASA. The Order shall be considered accepted by ASA and binding on it (“Confirmed Order”) if and when (a) ASA expressly accepts it by sending its written order confirmation to the Client or (b) ASA does not expressly refuse it or request modification thereof within 5 (five) working days from receipt of the same or (c) ASA requests modifications to the Order within the above mentioned term and the Client does not object to the request of modification within the following 5 (five) working days.
4.4 For Orders of products the delivery of which can be deferred, in whole or in part, for a period equal to or longer than 3 (three) months from the date on which the Order has been confirmed, ASA reserves the right to modify the price of the products in the event that, in such period, an increase of the costs of production and/or of the raw materials relating to the products in question has occurred.
4.5 All supplies of products will only include what is expressly indicated in the Confirmed Order.
4.6 The Client grants ASA a tolerance of +/- 10% (ten percent) in relation to the quantity of products indicated in the Confirmed Order.
Therefore, the Client accepts that ASA may not deliver products, or deliver products in excess, up to 10% (ten percent) with respect to the quantity of products indicated in the Confirmed Order, consequently adjusting the amount of the related invoice.
Packing - Delivery term – Delivery date
5.1 The products will be packaged and readied to ship in compliance with the standard protection methods generally adopted by ASA for the products in question, in consideration of the agreed mode of transport.
The Client shall expressly request to ASA any special packaging or supplementary protection it deems necessary, and in such event the Client will bear all related costs thereof.
5.2 Unless otherwise agreed in writing, the products shall be delivered to the Clients in accordance with the delivery term Ex-Works, Incoterms® 2010, at the ASA’s premises indicated in the Confirmed Order.
5.3 ASA shall use its best endeavour to deliver the products within the delivery date provided for in the Confirmed Order, in a single delivery or in partial deliveries. The delivery date shall always be considered approximate and neither essential.
Except in case of wilful wrongdoing or gross negligence, ASA will not reimburse possible damages, either direct or indirect, suffered by the Client as a result of delay in the delivery of the products.
5.4 The Client undertakes to collect and pay for all the ordered products kept in stock at ASA premises, at the latest, within and no later than 12 (twelve) months from the date of receipt of the Order by ASA. Should this not be the case, upon expiry of the above- mentioned term, ASA shall be entitled to invoice the Client for all the products still kept in stock at its premises and request immediate collection and payment of the same. The finished products (cans and tops) shall be invoiced for an amount equal to 100% (hundred percent) of the sale price while the semifinished products (stripes) shall be invoiced for an amount equal to 65% (sixty-five percent) of the sale price of the finished products.
If the Client fails to collect and pay for such products within 12 (twelve) months from the date of issue of the above-mentioned invoice, ASA shall be entitled to destroy, at the Client’s costs, the products still kept in stock at its premises.
5.5 Upon receipt of the products, the Client must report possible damages, shortages, anomalies or defects occurred during the transport, by notifying details of such events on the transportation document, and must also:
- have such notification countersigned by the carrier; and
- immediately inform ASA thereof, in writing, and send ASA a copy of the countersigned document by and no later than 2 (two) days from the date of receipt of the products.
Should this not be the case, ASA shall not be responsible for possible losses, theft or damages of the products occurred during the transport, even if transport risks were, in whole or in part, upon ASA.
Prices – Payment – Late Payment
6.1 Unless otherwise stated in writing, the prices of the products included in ASA’s price lists and/or offers are in Euro, net of VAT and for delivery according to the delivery term Ex-Works, Incoterms® 2010, at the ASA’s premises indicated in the Confirmed Order. Therefore, should a different delivery term be agreed upon between the parties, the invoiced amount shall be modified accordingly.
The products shall be supplied at the prices resulting from the price list of ASA in force when the Order is placed or at the different prices agreed in the Confirmed Order.
6.2 The Client shall pay for the products in accordance with the methods and terms of payment provided for in the Confirmed Order or otherwise agreed upon in writing between the parties. In case no payment method and/or term is so agreed, the Client shall pay for the products by bank transfer at least 30 (thirty) days before the agreed delivery date or period. No payment shall be considered as being made by the Client until the relative amount has been credited to the bank account of ASA.
6.3 If the Client is delinquent in its payment obligation, ASA may, upon written notice to the Client, withhold ongoing and future deliveries until all delinquent amounts and late payment interest are paid, even if related to different Orders.
If delinquent amounts and late payment interest remain unpaid 15 (fifteen) calendar days after such written notice, then ASA may also, at its option, in addition to any other right or remedy available at law or pursuant to these General Conditions:
- request accelerated payment of any and all remaining payments and declare due the total outstanding balance, even if payment by instalment or deferred payment has been agreed upon and/or bills of exchange, promissory notes, cheques or other payment documents have been issued and are falling due;
- carry out future deliveries of products on a pre- payment basis only and/or setoff the Client’s outstanding debt against the sums eventually given by the Client for payment of other sales;
- cancel discounts and bonuses that may have been agreed between the parties.
ASA shall be entitled to exercise the rights mentioned in this article 6.3 also in case the Client:
- is undergoing winding-up, bankruptcy, debt restructuring or enforcement proceedings;
- loses, totally or partially, its insurance creditworthiness;
is undergoing financial difficulties which may hinder the regular execution of its activity and which result from, by way of example only, missed payment of bills of exchange, promissory notes, cheques or other payment documents, reduction of granted guarantees and/or missed granting of promised guarantees, as well as from any amount resulting unpaid, even though such circumstances have occurred with other suppliers of the Client.
6.4 The Client cannot claim any breach of contract by ASA nor can the Client start any lawsuit or action against ASA, until any amount resulting due to ASA under article 6.3 above has been fully paid.
7.1 ASA warrants the Client that the products will be free from manufacturing defects and that they will conform to the Confirmed Order.
The warranty period is 15 (fifteen) months, running from the date on which the order of the products has been placed by the Client to ASA or from the expiry of the maximum period of products kept in stock as indicated in the first paragraph of article 5.4, whichever occurs first.
7.2 No warranty shall apply in case of storage and/or utilization of the products not strictly in compliance with:
- the diligence required by their nature and/or their standard use;
- the instructions described in the relative technical sheets or otherwise communicated by ASA.
7.3 The Client shall inspect the products as soon as possible and shall notify ASA of possible defects or non-conformities in writing, by fax or email, within and no later than the following terms; failing to do so will result in the lapse of the warranty and the unenforceability of the warranty rights:
- differences in type or quantity with respect to type or quantity agreed as well as other patent defects or non-conformities: within and no later than 5 (five) days from the delivery of the products at the premises of the Client;
- hidden defects or non-conformities of the products: within and no later than 5 (five) days from the discovery of the same and, for avoidance of doubt, within the warranty period above.
7.4 ASA will have the right to examine, or to have examined by third parties, the products which the Client claims to be defective or non-conforming. In this respect, the Client shall be entitled to return to ASA the products that the Client considers to be non- conforming or defective only upon ASA’s written authorization and only on the condition that the Client bears all costs and risks for the shipment of the products. The authorization to return the products, or the samples of products, allegedly defective or non-conforming shall never be interpreted as an acknowledgment of the claimed defects or non- conformities by ASA.
7.5 In case the products are ascertained by ASA as actually defective or non-conforming, the Client will be entitled only to obtain, at the ASA’s option:
- replacement of the defective or non-conforming products at no costs to the Client; or
- partial or full exemption from payment of their price, depending on the seriousness of the defects or of the non-conformities, by means of issuing a credit note.
7.6 The rights and remedies described in article 7.5 above are the sole warranty rights and remedies granted to the Client. The present warranty is in substitution for, and excludes, any other warranty, express or implied, set forth by the law or otherwise.
7.7 To the fullest extent permitted by law, any other liability of ASA, whether contractual or non- contractual, which may in any way arise from or in relation to the supply of non-conforming or defective products, including, but not limited to, compensation for direct, indirect, consequential damages or for loss of profits, is expressly excluded.
8.1 ASA shall not be liable or responsible for failure or delay in performing or fulfilling any obligations undertaken in reference to the supply of products when such failure or delay is due to the occurrence of an event of force majeure such as wars, fires, earthquakes, floods, tsunami, strikes, labor or employment difficulties, shortage of raw materials, restriction on the use of power, acts of public authorities or any other event or cause whatsoever, similar or dissimilar, which cannot reasonably be forecast or provided against and which cannot be overcome by ASA with reasonable diligence.
8.2 In such event, the time for fulfilment of the obligation shall be extended for the period of continuance of such force majeure event. In the event any of such force majeure event continue for a period longer than six (6) months, the Client shall have the right to terminate the underlying sale agreement, by giving written notice to ASA by registered letter with return receipt or courier, and ASA shall not incur any responsibility or liability whatsoever.
Should any clause in this General Conditions be invalid as it contravenes an applicable legal provision, the parties agree to modify the relevant content to the extent necessary to ensure compliance with such legal provision. Notwithstanding the invalidity of a clause in this General Conditions, all other terms of this General Conditions shall remain in full force and effect.
Applicable Law – Dispute Resolution
10.1 In case the Client has its registered office in Italy, these General Conditions and all the sales that will occur on the basis on the same will be governed by the Italian laws, with the exclusion of the Vienna Convention of 1980. Any dispute between the parties arising out of or in connection with these General Conditions or in connection with a sale occurred on the basis of the same shall be subjected to the exclusive jurisdiction of the Court of Rimini (Italia).
10.2 In case the Client does not have its registered office in Italy, these General Conditions and all the sale that will occur on the basis on the same will be governed by the Vienna Convention of 1980 and, with respect to matters not covered by such Convention, by the laws of the place where the selling company belonging to ASA Group has its registered office. Any dispute between the parties arising out of or in connection with these General Conditions or in connection with a sale occurred on the basis on the same in favour of such Client shall be exclusively referred to and finally resolved by arbitration, by a sole arbitrator, in accordance with the Rules of Procedure of the Arbitration Chamber “Leone Levi” of the Chamber of Commerce of Ancona. The seat of arbitration shall be, and the award shall be delivered in, Ancona (Italy). The language to be used in the arbitral proceedings shall be English.
10.3 Irrespective of article 10.2 above, ASA shall have the exclusive right to initiate legal proceedings under the jurisdiction of the Client, before the competent court.