Art. 1 – Definitions

1.1. For the purposes of these General Terms and Conditions of Supply the following terms shall have the following meaning:

  • General Terms and Conditions: these General Terms and Conditions of Supply;
  • Habitat Italiana S.r.l.: the company Habitat Italiana S.r.l. unipersonale with registered office in 25125 Brescia (BS), Italy, Via Guglielmo Ghislandi n. 20, VAT/Tax Code: 02862070170;
  • Purchaser: the buyer who enters into a supply agreement with Habitat Italiana S.r.l.;
  • Parties: joint indication of Habitat Italiana S.r.l. and the Purchaser;
  • Product(s): the goods supplied by Habitat Italiana S.r.l. to the Purchaser in accordance with the Drawings and/or technical data sheet (scheda tecnica);
  • Drawing(s): the drawings and/or data sheets provided by the Purchaser to Habitat Italiana S.r.l. for the production of the Products or developed by Habitat Italiana S.r.l. itself and expressly approved in writing by the Purchaser.

Article 2 – Scope of application

2.1. These General Terms and Conditions shall govern all present and future supply agreements between the Parties. In the case of exceptions agreed upon in writing, these General Terms and Conditions shall continue to apply to the remaining provisions not waived.

2.2. These General Terms and Conditions supersede and replace any other clauses and/or General Terms and Conditions contained in orders placed by the Purchaser, even after the present.

Art. 3 – Conclusion of the agreement

3.1. The Purchaser’s acceptance of Habitat Italiana S.r.l.’s offer or order confirmation, however made, shall entail the application to the supply agreement of these General Terms and Conditions.

3.2. Habitat Italiana S.r.l.’s offer shall be considered firm and irrevocable only if it is expressly qualified as such in writing and provided that a term of validity has been specified therein. A reply by the Purchaser containing additions or modifications, even if such additions or modifications do not substantially modify the terms of the offer, shall be considered as a counter-offer, despite Habitat Italiana S.r.l.’s silence.

Art. 4 – Drawings – Variations

4.1. Any drawings or technical documents enabling the manufacture or assembly of the Products or parts thereof that are submitted to the Purchaser, either before or after the conclusion of the agreement, shall remain the exclusive property of Habitat Italiana S.r.l.. Such drawings or documents may not be used by the Purchaser or copied, reproduced, transmitted or disclosed to third parties without Habitat Italiana S.r.l.’s consent.

4.2. The Drawings submitted to the Purchaser represent the actual characteristics of the Products as closely as possible. They may, however, be subject to non-substantial variations without the prior authorization of the Purchaser, should such variations be appropriate and/or necessary during execution.

4.3. In case the Products are realized to the Purchaser’s Drawings or to Habitat Italiana S.r.l.’s Drawings previously approved by the Purchaser, Habitat Italiana S.r.l. shall not be held liable if the Products do not meet the Purchaser’s requirements or expectations.

Art. 5 – Delivery

5.1. Unless otherwise agreed, delivery of the Products shall take place Ex Works (Incoterms 2020), Habitat Italiana S.r.l.’s registered office. Risks shall pass on to the Purchaser as set forth in the applicable INCOTERMS. Habitat Italiana S.r.l. shall in no event be liable for any loss of damage to the Products occurring after the transfer of risks and the Purchaser shall in any case be liable for payment of the agreed price.

5.2. Habitat Italiana S.r.l. shall do its best to respect the delivery terms of the Products specified in the offer or in the order confirmation, which, however, unless otherwise agreed upon in writing between the Parties, shall not be considered essential. The delivery terms shall be extended by a period equal to the duration of the impediment in the case the Purchaser fails to supply the Drawings in due time, delays in responding to Habitat Italiana S.r.l.’s requests for approval of the Drawings or requests variations during execution.

5.3. Where the parties have agreed to the payment of a penalty by Habitat Italiana S.r.l. for the delay in the delivery of the Products, the Purchaser shall not be entitled to claim, by way of compensation for the damage (a titolo di risarcimento dei danni) caused by the delay, the payment of any sums in excess of the agreed penalty.

5.4. The Purchaser shall always take delivery of the Products even in case of partial deliveries, early or later than the date agreed upon by the Parties. In no event Habitat Italiana S.r.l. shall be liable for any direct and/or indirect damage resulting from early or late delivery of the Products. In case the Purchaser fails to take delivery of the Products due to causes not attributable to Habitat Italiana S.r.l. or to force majeure (forza maggiore), the Purchaser shall bear all expenses and any amount due, for any reason whatsoever, to Habitat Italiana S.r.l. shall become immediately due and payable. The above shall be without prejudice to any further damages.

Art. 6 – Prices – Payments

6.1. Prices are those indicated in Euro in the offer and/or order confirmation and are to be deemed Ex Works and “special” packaging excluded. “Special” packaging means packaging such as: wooden crates; custom-made pallets, and all packaging that is different from the basic packaging consisting of 1 layer of cardboard with edge protectors and standard pallet (120×80 cm).

6.2. Payments shall be made within the terms and in accordance with the conditions specified in the offer and/or in the order confirmation. In case of delay in payment, the Purchaser shall pay, without the need of a default notice, default interest in the amount determined by Art. 5 of Legislative Decree No. 231 of 9/10/2002. Any delays in payment shall also entitle Habitat Italiana S.r.l. to exclude, for as long as the delay continues, the warranty under Art. 7 below.

6.3. The Purchaser shall be obliged to pay the price in full even in case of dispute or litigation. The offset of any claims, however arising, against Habitat Italiana S.r.l. shall not be allowed.

Article 7 – Warranty

7.1. Habitat Italiana S.r.l. warrants that the Products comply with what was agreed between the Parties and are free from defects that could make them unsuitable for the use for which they are normally intended.

7.2 The warranty for defects shall be limited to defects in the Products resulting from defects in material or manufacturing attributable to Habitat Italiana S.r.l. and shall not apply if: (a) the Purchaser fails to prove proper use, assembly, maintenance and storage of the Products; (b) the Purchaser has made modifications or repairs to the Products without the prior written consent of Habitat Italiana S.r.l.; (c) the defects in the Products are due to normal wear and tear of those parts which, by their nature, are subject to rapid and continuous wear and tear; (d) the defects in the Products are caused by an event subsequent to the transfer of risks to the Purchaser.

7.3 If contractually provided for, the Purchaser’s acceptance of the Products may be subject to the positive outcome of the acceptance tests (prove di collaudo) to be carried out in accordance with the contractual terms. Upon the positive outcome of the testing, a special report shall be drawn up and the Products shall be considered accepted and any defects that could have been detected during the testing may no longer be contested.

7.4. The warranty shall last for a period of 12 (twelve) months from the date of delivery of the Products to the Purchaser and shall be subject to the Purchaser’s regular and timely notification of the defects and discrepancies in accordance with the following paragraph, accompanied by an express written request to Habitat Italiana S.r.l. to carry out a warranty intervention. The warranty for replaced or repaired Products shall commence on the day of replacement or repair.

7.5. Thenotification of defects or non-conformities of the Products shall be made by the Purchaser in writing and shall specify in detail the defects and non-conformities claimed and the date of delivery of the defective Products. The complaint shall be made, under penalty of forfeiture, within and no later than 10 (ten) days from the date of delivery, in the case of obvious defects, or from the date of discovery, provided that it is within the warranty period, in the case of hidden defects, flaws or non-conformities. The Purchaser shall forfeit its warranty rights if it fails to allow any reasonable inspection requested by Habitat Italiana S.r.l. or if, having requested the return of the defective Product at its own expense, the Purchaser fails to return the defective Products within 15 (fifteen) days from the request.

7.6. If the complaint made by the Purchaser proves to be unfounded, the Purchaser shall indemnify Habitat Italiana S.r.l. for all expenses incurred by Habitat Italiana S.r.l. in connection with the assessment. If, on the other hand, the Purchaser’s complaint, made in accordance with the provisions of this article, proves to be well-founded, Habitat Italiana S.r.l. shall – at its sole and exclusive discretion and within a reasonable period of time (having regard to the extent of the claim) – repair or replace free of charge Ex Works-Habitat Italiana S.r.l.’s registered office, the defective or non-compliant Products, carrying out the above-mentioned operations at its own premises. The return of the Products shall be borne by the Purchaser.

7.7. This warranty is in lieu of, and in substitution to, the statutory warranties for defects and conformity and excludes any other possible liability of Habitat Italiana S.r.l. however arising from the Products supplied. In particular, the Purchaser shall not make any other claim for damages, price reduction or termination of the agreement. In no event shall Habitat Italiana S.r.l. be liable for any indirect or consequential damages, loss of production or lost profits derived by the Purchaser or any third party from the defective or defective Products.

7.8. Habitat Italiana S.r.l.’s liability shall be limited to the limitations set forth in this Article and shall relate only to the Products supplied by Habitat Italiana S.r.l..

7.9. After the warranty period has expired, no claims may be asserted against Habitat Italiana S.r.l..

Article 8 – Subcontracting

8.1. Habitat Italiana S.r.l. reserves the right, under its own responsibility, to sub-contract part of the Products or workings ordered by the Purchaser.

Article 9 – Civil Liability

9.1. Compensation for any damage to persons or property resulting from the defectiveness of the Products supplied and directly attributable to Habitat Italiana S.r.l. shall be limited to the maximum amount specified in Habitat Italiana S.r.l.’s liability policy and shall be subject to the terms and conditions of application of the said policy.

Article 10 – Withdrawal

10.1 Habitat Italiana S.r.l. reserves the right to withdraw from the supply agreement and cancel, in whole or in part, the Purchaser’s order in the following cases:

a)                               necessary changes in the Drawings affecting more than 5% of the agreed price;

b)                               variations in the Drawings requested by the Purchaser that affect the agreed price by more than 5%;

c)                               material change in the economic conditions of the Purchaser and its solvency;

d)                               suspension of payments by the Purchaser;

e)                               the Purchaser is subject to bankruptcy or insolvency proceedings, including out-of-court proceedings.

10.2. It is understood that in the cases referred to under the above paragraphs, Habitat Italiana S.r.l. shall have the right to obtain payment for the works carried out up to the time of withdrawal. The payment shall be made within and no later than 30 (thirty) days from the date of the notice of withdrawal.

Art. 11 – Hardship clause

11.1. If, as a result of unforeseeable circumstances, the performance of Habitat Italiana S.r.l.’s obligations becomes excessively onerous in relation to the originally agreed counter-performance, so that the relationship itself is affected by more than five per cent, Habitat Italiana S.r.l. may request an amendment of the contractual terms and conditions and, failing that, declare the agreement terminated.

Article 12 – Force Majeure

If the production and/or delivery of the Products by Habitat Italiana S.r.l. is made impossible, excessively burdensome or delayed due to a Force Majeure Event as defined under Art. 12.2 below, Habitat Italiana S.r.l. may, at its option: (i) suspend the delivery of the Products until the Force Majeure Event has ceased; (ii) withdraw from the agreement, giving timely written notice thereof to the Purchaser. In no event shall Habitat Italiana S.r.l. be liable for any damages, direct and/or indirect, arising vis-à-vis the Purchaser.

“Force Majeure Event” shall mean any event beyond Habitat Italiana S.r.l.’s control that affects the production or delivery capacity of the Products – including, without limitation, strikes, non-delivery (also partial) or delayed delivery of raw materials by Habitat Italiana S.r.l.’s suppliers, partial or total breakdown of machinery and equipment to be used in the manufacture of the Products, fires, floods, riots, governmental decisions, regulatory changes, epidemics, pandemics or other health emergencies.

Article 13 – Applicable Law – Jurisdiction

13.1 All agreements to which these General Terms and Conditions apply shall be governed by Italian law.

13.2 Any dispute relating to or in any way connected with the agreements to which these General Terms and Conditions apply shall be subject to the exclusive jurisdiction of the Court of Brescia (BS) – Italy. However, Habitat Italiana S.r.l. shall have the right to act before the Court of the Purchaser’s registered office.

Pursuant to articles 1341 and 1342 of the Italian Civil Code, the following articles are hereby expressly approved: Art. 4 – Drawings -Variations; Art. 5.4 – Purchaser’s obligation to take delivery of the Products – Limitation of Habitat Italiana S.r.l.’s liability in case of late or early delivery of the Products; Art. 6.3 – Prohibition of Offsetting; Art.7 – Warranty; Art. 8 – Subcontracting; Art. 9 – Civil Liability; Art. 10 – Withdrawal; Art. 13 – Applicable Law – Jurisdiction.