Marangoni Group General Terms and Conditions

I. GENERAL SALES CONDITIONS

1.   Applicability of these General Sales Conditions

1.1 These General Sales Conditions (“GSC”), if not expressly - totally or partially - mutually derogated by the Parties in written form shall govern all sales of tyres new, retreaded tyres, rubber and products used for retreading tyres (“Products”), to be sold within the European market or other markets Marangoni shall deemed suitable for application to, made by Marangoni Group company’s (“Marangoni”) to the Purchaser (“Sales”) and will have precedence over the Purchaser’s general purchase conditions.

2.   Orders

2.1 All orders coming directly from the Purchaser and/or received by Marangoni representatives, will be effective as purchase proposals for the Products and will be irrevocable for a period of 60 (sixty) days from the receipt of such by Marangoni (“Order”).

2.2 Marangoni has the right to accept the order in part or under different conditions from those specified herein (“Acceptance with Modifications”).

The contract of sale for the Products specified on the order is deemed concluded:

(A) when the Purchaser receives written notice – including by fax or electronic mail - of confirmation of the Order by Marangoni; or

(B) even without such confirmation as described in point 2.2(A), when Marangoni has begun fulfilment of the Order, receiving the Purchaser relative  invoice; or

(C) after 5 working days from the date in which the Purchaser receives Marangoni Acceptance with Modifications without the Purchaser had notified to Marangoni his intention to cancel the order due to differences in the conditions;

In all the cases the contract of sale is deemed concluded in the site in which the Marangoni Company which received the order has its registered office.

2.3 The Purchaser loses the right to refuse  Marangoni conditions as contained into Marangoni Acceptance with Modifications 5 working days after the receipt of Marangoni Acceptance with Modifications.

2.4 Marangoni has the right to cancel and/or amend the Sale, even subsequent to confirmation without modifications of the Order, if it is not able to supply, in full or in part, the Products specified on the order, notifying the Purchaser in writing. The Purchaser has the right to cancel the Sale in question within 5 working days from the receipt of such notification, after which time the right is forfeited.

3.   Delivery of the Products

3.1 The Prices are indicated and the Products are sold CPT “Carriage paid to” agreed destination (CPT: INCOTERMS 2010).

3.2 Parties might agree upon different delivery conditions (INCOTERMS 2010) in the Special Sales Conditions (“SSC”).

3.3 The delivery terms notified by Marangoni are approximate. Marangoni is not liable for any direct and/or indirect damage suffered by the Purchaser due to delayed or failed delivery of the Products.

3.4 Failure to collect the Products does not exempt the Purchaser from its obligation to pay the specified Price. In this case, Marangoni has the right to store the Products at the Purchaser’s expense and risk.

4.   Product Warranty – Claims

4.1 The warranty offered by Marangoni on the Products is:

-  5 years from manufacturing, for retreaded tyres;

-  2 years from sale to final consumer;

4.2 Upon delivery the Purchaser must check the conditions of the packaging and the conformity of the Products, and also verify the correspondence with the Order confirmation or the invoice, in case clause 2.2B applies. The Purchaser loses the right to dispute any discrepancies in the number of Products and claim any defective or damaged Products, if it fails to notify to Marangoni any of such issues by registered mail, with return receipt, or by formally communicating the same to Marangoni’s agent or representatives for the area, no more than 8 (eight) days from receipt of the Products, after which time the right is forfeited.

4.3 In case of hidden defects, the Purchaser loses the right to dispute Products and claim any damage due to defective Products, if it fails to notify to Marangoni any of such issues by registered mail, with return receipt, or by formally communicating the same to Marangoni’s agent or representatives for the area, no more than 8 (eight) days from discovery of the hidden defect, after which time the right is forfeited.

4.4 The Purchaser must keep any disputed Products available for inspection by Marangoni. Marangoni will not accept the return of Products if not previously authorised in writing. Returns will only be accepted carriage paid.

4.5 Any claims made by the Purchaser, even within the specified terms, do not give the Purchaser the right to suspend or in any way delay payment of the price of the disputed Products nor to refuse collection of the Products, nor to suspend or in any way delay payment for Sales prior or subsequent to such claim.

4.6 Claims will not be accepted in relation to the quality of Products that have been tampered with or repaired by third parties.

5.   Limitation of Liability

5.1 In the event of proved flawed and/or defective Products, Marangoni is only obliged, at its sole discretion, to repair or replace such Products or to reimburse the cost of the same. The Products which have shown to be defective and thus repaired or replaced under the warranty will be submitted to a guarantee, having the same strength,  for a period of 5 years starting from the date of repair or replacement. Within the limits allowed by law, Marangoni expressly waives all other liability.

6.   Ownership rights

6.1 Marangoni shall retain ownership of the Products until the Purchaser has completed payment:

(A) of the Price in full (including VAT if applicable);

(B) of any other sum owed by the Purchaser to Marangoni for any other transaction.

6.2 Until the transfer of ownership of the Products from Marangoni to the Purchaser pursuant to point 6.1 above, the Purchaser, up until the Products are under its control, at no expense to Marangoni, shall:

(A) store the Products separately from other products in its possession and mark them as the property of Marangoni;

(B) not borrow against security nor offer guarantees of any type on the Products owned by Marangoni;

(C) insure the Products against any risks for their full Price;

(D) fulfil all obligations required by legislation in the country where the Products will be used, such as to counter any claims to ownership by third parties, pursuant to point 6.1.

6.3                 The reservation of title is extended to the Products sold by the Buyer to third parties and to the price of such sales, within the maximum limits set forth by the laws of the country of the Buyer which regulate the present clause.

6.4 Without prejudice to all other rights of Marangoni, the failure by the Purchaser to comply with the requirements of points 6.2(A) and/or 6.2(B) and/or 6.2(C) and/or 6.2(D) above will lead to the Purchaser forfeiting the right to exploit the terms of payment granted for any sums owed by the Purchaser to Marangoni for any reason.

6.5 In any circumstances where the contract of sale for the Products is cancelled due to failure by the Purchaser to pay the sums owing, Marangoni will be able to claim ownership of the Products, and the Purchaser shall return the Products to Marangoni upon first request. The Products must be returned at the Purchaser’s risk and expense, and Marangoni will be able to retain any part payments already received as a penalty.

II. GENERAL RETREADING SERVICE CONDITIONS

7.   Applicability of these General Retreading Service Conditions

7.1 These General Retreading Service Conditions (“GRC”), with the exclusion of any exemptions, either total or partial, agreed upon in writing, govern the retreading service (“Service”) provided by Marangoni Group company’s (“Marangoni”), within Europe, to the Purchaser on tyre casings (“Casings”) owned by the Purchaser, and will have precedence over the Purchaser’s general purchase conditions.

8.   Orders

8.1 All orders coming directly from the Purchaser and received by Marangoni representatives, will be effective as Service provision proposals and will be irrevocable for a period of 30 (thirty) days from the receipt of such by Marangoni (“Order”).

8.2 Marangoni has the right to accept the order in part or under different conditions from those specified herein by apposite notification to the Purchaser who will have the right to cancel the relative order within five days from the receipt of the Acceptance with Modifications.

8.3 The service contract is deemed concluded when the Casing arrive at Marangoni premises, if transportation is organized by the Purchaser, while with the handing of Casing to the first carrier, if transportation is organized by Marangoni.

The Service provision contract is in any case deemed concluded at Marangoni’s registered office.

8.4 if the Casing relating to an order arrive or are handed to in different moments, the service contract is deemed concluded, progressively, only for the Casing effectively received by Marangoni or by the first carrier, as the case may be.

8.5                 Marangoni will verify, at its own discretion, the suitably of the Casings for the retreading process and does not guarantee in any way the retreading of all the Casings as received, in the percentage of disposed and retreaded.

9.   Delivery of the Casings

9.1 Marangoni will receive the Casings for processing, and the Purchaser will retain ownership of such.

9.2 Marangoni will verify, at its own discretion, the suitably of the Casings for the retreading process required.

9.3 The Casings deemed – at Marangoni’s sole discretion - to be unsuitable will be disposed of by Marangoni or, if required by the Purchaser, will be returned to him at Purchaser’s expense.

9.4 If during the retreading process, defects emerge whereby the use of the Tyres according to the specifications marked on the Casing cannot be guaranteed (the term Tyres and or Product refers to the tyres resulting from the retreading process), as an alternative to point 9.3 above, Marangoni will downgrade the Tyres if so agreed in the SRC. Consequently, the original ratings no longer be considered suitable will be removed from the Casing, and the side of the Tyres will be indelibly marked with the new ratings and corresponding operating limits.

10.                Delivery of the Tyres

10.1               The Prices are indicated and the Products delivered by Marangoni CPT “Carriage paid to” agreed destination (CPT: INCOTERMS 2010).

10.2 Parties might agree upon different delivery conditions (INCOTERMS 2010) in the Special Retreading Conditions (“SRC”).

10.3               if specified in the SRC prices might be inclusive of collection of the Casings. In such case this additional service shall be done at the Purchaser sole risk.

10.4               The delivery terms notified by Marangoni are approximate. Marangoni is not liable for any direct and/or indirect damage suffered by the Purchaser due to delayed or failed delivery of the Products.

10.5               Failure to collect the Products (if applicable for INCOTERM as chosen by the parties in the SRC) by the Purchaser does not exempt the Purchaser from its obligation to pay the specified Price. In this case, Marangoni has the right to store the Tyres at the Purchaser’s expense and risk.

11.                Tyre Warranty – Claims

11.1               The warranty offered by Marangoni on the Tyres is 5 years from manufacturing.

11.2               Upon delivery the Purchaser must check the conditions of the Tyres, and verify the conformity of the same to the Order confirmation and the invoice. The Purchaser loses the right to dispute any discrepancies in the number of Tyres and claim any evident damage to the Tyres, if it fails to note such problems either by registered mail addressed to Marangoni or by formal communication to Marangoni agents or area managers, no more than 8 (eight) days from receipt of the Tyres, after which time the right is forfeited. Moreover, Purchaser forfeits its right to claim hidden vices of Products, if those vices were unknown and not easily detectable by the Purchaser, if within 8 (eight) days from discovery of hidden vices of the Tyres, Purchaser does not notify such problems either by registered mail addressed to Marangoni or by formal communication to Marangoni agents or area managers.

11.3               The Purchaser must keep the disputed Tyres available for inspection by Marangoni. Marangoni will not accept the return of Tyres if not previously authorised in writing. Returns will only be accepted carriage paid.

11.4               Any claims made by the Purchaser, even within the specified terms, do not give the Purchaser the right to suspend or in any way delay payment of the price of the Services nor to refuse collection of the Tyres, nor to suspend or in any way delay payment for Services prior or subsequent to such claim.

12.                Limitation of Liability

12.1               In the event of proved  flawed and/or defective Products, Marangoni is only obliged, at its sole discretion, to  repair or replace such Products or to reimburse cost of the same. The Products which have shown to be defective and thus repaired or replaced under the warranty will be submitted to a guarantee, having the same strength,  for a period of 5 years starting from the date of repair or replacement. Within the limits allowed by law, Marangoni expressly waives all other liability.

13.                Ownership rights

13.1               On the basis of the right of ownership acquired following the retreading process, Marangoni will become the exclusive owner of the Tyres and will retain such ownership until the Purchaser has completed payment:

(A) of the Price in full (including VAT);

(B) of any other sum owed by the Purchaser to Marangoni for any other transaction.

13.2               Until the transfer of ownership of the Products from Marangoni to the Purchaser pursuant to point 6.1 above, the Purchaser, up until the Products are under its control, at no expense to Marangoni, shall:

(A) store the Products separately from other products in its possession and mark them as the property of Marangoni;

(B) not borrow against security nor offer guarantees of any type on the Products owned by Marangoni;

(C) insure the Products against any risks for their full Price;

(D) fulfil all obligations required by legislation in the country where the Products will be used, such as to counter any claims to ownership by third parties, pursuant to point 6.1.

13.3               The reservation of title is extended to the Products sold by the Buyer to third parties and to the price of such sales, within the maximum limits set forth by the laws of the country of the Buyer which regulate the present clause.

13.4               Without prejudice to all other rights of Marangoni, the failure by the Purchaser to comply with the requirements of points 6.2(A) and/or 6.2(B) and/or 6.2(C) and/or 6.2(D) above will lead to the Purchaser forfeiting the right to exploit the terms of payment granted for any sums owed by the Purchaser to Marangoni for any reason.

13.5               In any circumstances where the contract of sale for the Products is cancelled due to failure by the Purchaser to pay the sums owing, Marangoni will be able to claim ownership of the Products, and the Purchaser shall return the Products to Marangoni upon first request. The Products must be returned at the Purchaser’s risk and expense, and Marangoni will be able to retain any part payments already received as a penalty.

III. CLAUSES COMMON TO THE GSC AND GRC

14.                Suspension of Orders received

14.1               Marangoni has the right to suspend the execution of any Order, even when already confirmed, if the Purchaser:

(A) fails to fulfil any of its obligations towards Marangoni, or

(B) at Marangoni’s sole discretion, cannot suitably guarantee solvency.

15.                Price, discounts, rebates

15.1               The price of the Products sold or Service provided to the Purchaser is based on the Special Sales or Service Conditions reserved for the Purchaser (hereinafter: “SSC” - “SRC”), or alternatively, in absence of these, based on the Marangoni price lists in force on the date the Order was received (“Price”). The Price is net of VAT and the costs of packaging and shipment.

15.2               Marangoni reserves the right to amend the price lists and/or the SSC at any time, by written notification to the Purchaser in the method considered most appropriate.

15.3               For Products sold by weight, the Price will be calculated on the net weight.

15.4               Any discounts and/or rebates and/or special promotions are established by Marangoni and are notified in writing to the Purchaser throughout the method considered most appropriate. Upon issuing the Order, the Purchaser must make explicit reference to the rebate and/or discount and/or special promotion it is eligible for, in order to be able to enjoy such benefit. Under no circumstances will rebates be recognised to the Purchaser in the event of any outstanding payments due.

16.                Method of payment

16.1               The price of the Products or Service, specified under “invoice total” part of the invoice, must be paid:

(A) directly by wire transfer within 60 (sixty) days from the end of month of the invoice date, unless otherwise agreed on with the Purchaser in the SSC/SRC;

(B) If the parties have agreed on payment in advance, the advance payment must be credited to the Marangoni's account at least 15 days before the agreed date of delivery;

(C) If the parties have agreed on payment by documentary credit, the Purchaser must take the necessary steps in order to have an irrevocable documentary credit, to be issued in accordance with the ICC Uniform Customs and Practice for Documentary Credits (Publication n. 500), notified to the Seller at least 30 days before the agreed date of delivery. The documentary credit shall be confirmed by an Italian bank agreeable to Marangoni  and will be payable for sight.

in any case net of all expenses and/or bank charges.

16.2               The Purchaser may not offset any credits due from Marangoni without the prior written authorisation of the latter.

16.3               In the event of delayed payments, default interest will be charged pursuant to articles 4 and 5 of Italian decree no. 231 of 9 October 2002, in addition to compensation for any greater damages.

16.4               If failing to comply with the terms of payment, the Purchaser will forfeit the right to any discounts already accrued.

16.5               In the event where the Price of the Products or Service is paid in instalments, failure by the Purchaser to pay even one of the instalments whose value exceeds 1/8 of the Price will lead to the cancellation of such option.

17.                Products and Services

17.1               The quantity and type of Products relating to the Sale are those indicated on the Order confirmation or the invoice. The quantity and type of Services are those indicated in the notification described in points 2 and/or 8. The technical and quality specifications of the Products, the Services and the Tyres are those indicated by Marangoni in its catalogues and price lists.

17.2               The Seller may make any change to the Products which, without altering their essential features, appear to be necessary or suitable.

18.                Procedures - Tolerance

18.1               The following shall not be deemed to be a waiver of Marangoni’s rights relating to breach of contract nor to its right to demand complete compliance:

(A) tolerance by Marangoni in accepting behaviour of the Purchaser in infringement of the provisions specified in these General Conditions;

(B) the adoption of different procedures than those described in these General Conditions.

19.                Privacy

19.1               By signing these General Conditions, Marangoni declares that:

(A) personal data will be processed exclusively for the following purposes:

(i)  to allow correct fulfilment of this Contract (including, for example, the acquisition of information prior to the conclusion of the Contract, the fulfilment of obligations specified in the Contract, any debt collection activities, etc.);

(ii) to allow fulfilment of the obligations required by European Union laws, rules and standards, or regulations issued by legally appointed authorities and law enforcement agencies;

(iii)                to perform statistical and market research, including with reference to the reliability and/or promptness of the Purchaser in making payments;

(B) the data will be processed on paper or magnetic media, or where necessary organised into databases or archives, and may be transmitted via post, telephone or electronic networks, whenever this is requested;

(C) the personal data will be available to the Marangoni’s and/or outside party personnel, for the aim of fulfilling the purposes specified above;

(D) the personal data described in paragraph iii) may be communicated to databases managed by outside parties and thus may be accessed by several subjects in order to assess the financial situation and credit worthiness of the Purchaser or its reliability and promptness in making payments.

19.2               The Purchaser:

(A) declares it has received the information pursuant to section 13 of Italian decree 196/2003, and specifically that it understands the purpose and the methods of data processing, as well as the need to grant Marangoni authorisation to process its data for the purpose of fulfilling this Contract and any future contracts for the sale of Products or provision of Services;

(B) declares it understands that its data, expressly including that relating to its reliability / promptness in making payments, may be sold to databases managed by outside parties;

(C) expressly authorises Marangoni, pursuant to section 23 of Italian decree 196/2003, to disclose data on its reliability / promptness in making payments to the outside bodies specified above.

20. Trademarks.

20.1 The GENERAL CONDITIONS of USE of MARANGONI GROUP’s trademarks is to be found on the website www.marangoni.com. The Purchaser declare to have read, understood and accepted the entire content.    

21. Force majeure

21.1 Neither of the parties shall be held liable for breach of contract if the party is prevented or delayed from performing its obligations for reason of force majeure that is when the performance becomes impossible or unduly burdensome because of unforeseeable events beyond his control, such as strikes, boycotts, lock-outs, fires, war (either declared or not), civil war, riots, revolutions, requisitions, embargo, energy black-outs, delay in delivery of components or raw materials. The party wishing to make use of the present clause must promptly communicate in writing to the other party the occurrence and the end of such force majeure circumstances.

22.                Applicable law and Jurisdiction

22.1               These General Conditions, the Sale of Products and the Provision of Services are governed by Italian law, with the express exception of application of the 1980 Vienna Convention on the international sale of goods.

22.2               Any disputes relating to or deriving from these General Conditions, from the Sale of Products and the provision of Services, will be heard exclusively by the Court of Rovereto (TN) Italy.

 

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The Purchaser expressly declares its acknowledgement and acceptance of the following points:

2.1 (Irrevocability of the order); 2.2 (Conclusion of the contract - acceptance of the Order in part or under different conditions from those specified herein); 2.3 (Dispute of Order confirmation - forfeiture of rights); 2.4 (Cancellation, amendment of Sale); 3.1 (Delivery of the Products); 3.3 (Approximative nature of delivery terms - Marangoni’s exemption from liability); 3.4 (Failure to collect); 4.1 (Product Warranty); 4.2 (Claims - forfeiture of rights); 4.4 (No exception); 4.5 (Limits to acceptance of claims); 5 (Limitation of Liability); 6 (Ownership rights and penalty clause); 8.1 (Irrevocability of the order); 8.2 (Acceptance of the order under different conditions from those specified herein); 8.3 and 8.4 (Conclusion of the contract); 8.5 (Cancellation, amendment, suspension of Orders); 10.1 (Delivery of the Tyres); 10.3 (Responsibility of the Purchaser for collection of Products) 10.4 (Approximative nature of delivery terms - Marangoni’s exemption from liability); 10.5 (Failure to collect); 11.1 (Tyre Warranty); 11.2 (Claims - forfeiture of rights); 11.4 (No exception); 12 (Limitation of Liability); 13 (Tyre ownership rights and penalty clause); 14 (Marangoni’s right to suspend Orders);15.2 (Changes to price lists); 15.3 (Method for calculating the Price of Products sold by weight); 16.4 (Forfeiture of right to discounts); 16.5 (Forfeiture of instalment option); 17.2 (Changes to technical and/or quality specifications of Products, Services and Tyres); 18 (Procedures – Tolerance); 19 (Privacy); 22 (Applicable law and Jurisdiction).