1)  Definitions

1.1 In these general conditions of sale (hereinafter referred to as “Conditions of Sale”), the following terms shall have the following meanings:

“ABS Food”: ABS Food Srl with registered office in Via Spagna n. 22, 35010 Vigonza (PD) Italy;

“Customer”: any company, institution or legal entity purchasing ABS Food Products from ABS Food;

“Products”: any goods manufactured, assembled and/or sold by ABS Food;

“Offer(s)”: any quote or offer submitted by ABS Food to the Customer in relation to the Products.

“Sale(s)”: each sales contract concluded between ABS Food and the Customer;

“Trademarks”: all the trademarks of which ABS Food is the owner or a licensee;

“Intellectual Property Rights”: all intellectual and industrial property rights of ABS Food, including, without limitation, the rights relating to: patents for inventions, drawings or models, utility models, Trademarks, know-how, technical specifications, data, whether registered or not, as well as any request or registration relating to such rights and any other right or type of protection of a similar nature or having equivalent effect.

 

2) Validity of the Conditions of Sale

2.1 These Conditions of Sale apply to all Product Sales, with the exception of Online Sales on www.absbrew.com. In the event of any inconsistency between the terms and conditions set out herein and the terms and conditions agreed upon from time to time in an individual Sale, the latter shall prevail. ABS Food shall not be bound to the Customer’s general conditions of purchase (hereinafter, “GCP”), even when they are mentioned or contained in the orders or in any other documentation of origin of the Customer, without ABS Food’s prior written consent. The GCP will not be binding on ABS Food even as a result of tacit consent.

2.2 ABS Food reserves the right to add, modify or delete any provision of these Conditions of Sale; any such additions, modifications or cancellations will apply to all Sales concluded from the thirtieth day following notification of the new Conditions of Sale.

2.3 By accepting ABS Food purchase proposals and, in general, by concluding a sales contract with ABS Food, regardless of the way of acceptance, the Customer will unconditionally accept and undertake to comply with the general conditions in its relationship with ABS Food by acknowledging reading and accepting all the information provided and taking notice of the fact that ABS Food does not consider itself bound to different conditions unless previously agreed in writing.

2.4 These General Conditions apply, insofar as they are compatible, to all commercial agreements entered into by ABS Food, regardless of their legal classification.

 

3) Conclusion of the Contract of Sale

3.1 A Sale shall be deemed concluded as soon as ABS Food sends the Customer a written order confirmation by e-mail, fax or telematic means in accordance with the terms and conditions of the Offer accepted by the Customer.

3.2 Sales cannot be cancelled or modified by the customer without ABS Food’s written consent.

3.3 The changes or modifications made by the Customer to the Offers are not valid and binding on ABS Food if (a) they are not expressly highlighted in the text of the Offer and (b) they are not expressly and individually accepted by ABS Food in writing.

3.4 The changes or modifications made by ABS Food to the Offer accepted by the Customer in the Sale(s) shall be deemed accept by the Customer if not notified in writing to ABS food within 3 working days from the receipt.

 

4) Delivery Deadlines

4.1. Delivery deadlines are approximate and not essential terms under section 1457 of the Civil Code.

4.2 Without prejudice to section 4.1, ABS Food shall not be held responsible for any delays or non-deliveries caused by circumstances beyond its control, such as, by way of example and without limitation:

  1. a) inadequate technical data or inaccurate or late provision by the Customer to ABS Food of the information or data necessary for shipping the Products;
  2. b) difficulty in obtaining raw materials;
  3. c) problems with production or order planning;
  4. d) partial or total strikes, lack of electricity, natural disasters, measures imposed by public authorities, difficulties in transportation, force majeure events, unrest, terrorist attacks and any other force majeure events;
  5. e) transport difficulties;

4.3 Occurrence of any of the events listed above will not entitle the Customer to seek compensation for damages or any compensation whatsoever.

4.4 The production and delivery of the Products may be suspended if the customer’s financial situation changes (section 1461 of the Civil Code).

4.5 The Customer must accept the deliveries, make sure in advance that the means of transport can access the place of delivery, guarantee access or obtain permits to enter and unload the supplies, and prepare a suitable area where the Products will be placed.

4.6 In any case where the Customer refuses or requests a time extension or does not make itself available to accept a delivery or does not make a delivery physically possible in accordance with section 4.5, without prejudice to any greater damage compensation, the Customer must pay penalty amounting to 5% of the price of the Products for every week of delay to the initially scheduled delivery date. In such case, the risk of loss shall be borne exclusively by the Customer. Should the Customer’s delay in accepting the Products exceed two months, ABS Food shall have the right to terminate the contract without having to notify the breach.

4.7 ABS Food reserves the right to make partial deliveries.

4.8 In any other case of delay of delivery greater than 30 days the Customer shall notify a written notice to ABS Food, giving ABS Food at least a 30 days deadline to deliver the Products.

4.9 Except in the case of willful misconduct or gross negligence, ABS Food shall not be held liable for any damage deriving from and/or connected to the delay of delivery of the Products. In no case shall ABS Food be held liable for any indirect or consequential damages whatsoever, such as, for example, losses deriving from the Customer’s inactivity or loss of profit.

 

5) Delivery Terms

5.1 The Customer’s and ABS Food’s duties and risks connected to the sales contracts will be determined by the FCA Incoterm, without prejudice to ABS Food’s right to specify a different term in the Offer and in the order confirmation. The place of delivery associated with the chosen Incoterms shall be specified in the Offer and in the order confirmation.

 

6) Price and Payment Terms

6.1 Unless otherwise specified, prices will be quoted according by last published Price List.

6.2 Unless otherwise specified, prices do not include VAT or any taxes of any kind and nature, which must be borne by the Buyer according to the chosen Incoterms.

6.3 Unless otherwise agreed, payments must be made in Euros according to the payment terms indicated in the individual contracts. In the absence of any express indication, all the sums that are specified and due shall be regarded as immediately payable. Unless otherwise specified, payment terms are essential terms.

6.4 Failure to pay within the agreed deadline will entitle ABS Food to ask the Customer for payment of the overdue interests calculated at the official reference rate of the European Central Bank increased by 8 (eight) points.

6.5 Failure to pay within the agreed deadline will entitle ABS Food to suspend the delivery of the Products and terminate every single Sale concluded.

6.6 In no case shall the Customer suspend or delay payment pursuant to section 1462 of the Civil Code.

6.7 A temporary impossibility of performance by ABS Food does not operate to suspend the payment terms imposed on the Customer.

6.8 The Buyer shall have no right to make any netting of payments.

6.9 Where requested by ABS Food, payment of the price shall be made by an irrevocable and confirmed letter of credit according to the text that will be attached to the Offer.

 

7) Incoterms, Retention of Title and Transfer of Risks from ABS Food to the Customer.

7.1 Any reference to any commercial terms shall be deemed made to the Incoterms of the International Chamber of Commerce in force at the time of the conclusion of the sales contract.

7.2 Unless otherwise agreed, even notwithstanding the Incoterm chosen in the contract, the following rules shall apply. The ownership of the Products shall be transferred from ABS Food to the Customer upon full payment of the amounts specified in the contract. In case of split delivery and payment, ownership of the individual Products will be transferred to the Customer only upon full payment of the whole supply. ABS Food will remain the owner of the Products until full payment of the supply, and the Customer will not be entitled to sell or otherwise alienate the products until full payment of the supply.

7.3 In the event of contract termination, ABS Food may claim and take back the Products at any time and wherever they are.

 

8) Verification of the Quantity and Type of Products

8.1 Any difference in terms of type and quantity between the Products delivered and those agreed in the Sale must be notified in writing to ABS Food within eight days of the delivery date. Failure to make a complaint within the said term will result in the Products delivered being regarded as compliant with the purchase order, as it constitutes a waiver of any action aimed at refusing the supply, also pursuant to section 1665 of the civil code.

 

9) Warranty

9.1 ABS Food warrants the Products for the shelf-life period as specified in the Sale.

ABS Food represents and warrants that each Product sold under this Agreement free of defects and shall be fit for purpose agreed in the Sale with the exceptions of section 10.

9.2 The warranty will not apply to those Products whose defects are due to (I) damage caused during transport; (II) negligent or improper use.

9.3 Provided that the Customer’s complaint is covered by the warranty and notified within the terms set out in this section, ABS Food shall replace only the exact quantity of defective Products. Alternatively, ABS Food may reimburse the Customer or grant it a discount not exceeding the list price of the quantity of defective Product.

9.4 The Customer must notify in writing to ABS Food the presence of any obvious defects within 8 days from the delivery of the Products, and the presence of any hidden defects or defects that cannot be detected by a reasonably thorough inspection within 8 days from discovery, but in any case not later than the shelf life period and before processing the Product in his production.

9.5 The allegedly defective Products mentioned in the complaint must be shipped immediately to the ABS Food factory or to any other place that ABS Food will from time to time indicate at the sole expenses of the Customer, unless otherwise agreed between the parties, in order to allow ABS Food to carry out the necessary checks.

9.6 In any case, the Customer will not be entitled to enforce its warranty rights against ABS Food if the price of the Products has not been paid under the agreed terms and conditions, even if failure to pay the price under the agreed terms and conditions refers to Products other than those for which the Customer intends to enforce its warranty rights.

9.7 Without prejudice to section 9.3 and except in the case of willful misconduct or gross negligence, ABS Food shall not be held liable for any damage deriving from and/or connected to the defects of the Products. In no case shall ABS Food be held liable for any indirect or consequential damages whatsoever, such as, for example, losses deriving from the Customer’s inactivity or loss of profit.

9.8 In any case the Customer’s right to compensation for damages shall be limited to an amount that cannot exceed the value of the defective Products.

 

10) Legal Disclaimer

10.1 Products’ samples are not included in Sales and will not be provided unless otherwise agreed with ABS Food.

10.2 In case of production requirements, ABS Food reserves the right to change the formulation of any Product at any time without notice. Such change to the formulation of a Product shall mean neither that the Product shall be considered as a new Product for the purposes of this Agreement, nor as a defective/deficient Product.

10.3 If not expressly specified in the Sale, all information about Products given by ABS Food as, for example, project proposals, information relating to processing, laboratory tests, industrial tests and any other production tests, interaction with other ingredients, recipes, indications for use, dosages and other data appearing in catalogues, advertisements, illustrations, price lists, on its website or in other illustrative documents of ABS Food , as well as the characteristics of the samples sent from ABS Food to the Customer will not be binding and do not contain any promise of quality in relation to the Products; in any case ABS Food shall be liable for the results of the processing phases in which the Products will be involved.

10.4 ABS Food never warrants or guarantees Products’ compliance with: (i) any law different from Italian law; (ii) any special use; (iii) use of destination Country.

10.5 If not expressly specified in the Sale, Products are not guaranteed for processing goods in the food allergies and intolerances products market. ABS Food will not be liable for presence of allergens or substances that can cause intolerance.

10.6 If not expressly specified in the Sale, Gluten Free Product shall mean an absence of contamination greater than 20 mg/kg.

 

11) Intellectual Property

11.1 In addition to the provisions of section 10, the Customer acknowledges that the trademark and/or other trademarks displayed on the Products or linked to the Products supplied, and/or distinctive names and signs, as well as the models, the drawings relating to the products and all the other technical documents relating to them are the exclusive property of ABS Food or of any third-party licensors.

11.2 Unauthorized use of the trademarks displayed on the products or linked to the products supplied, and/or of the distinctive names and signs, and/or of the models and drawings relating to the products and/or of other technical documents relating to them is prohibited. In particular, the Customer must not reproduce in whole or in part any models or drawings relating to the products purchased or viewed, or use the technical information relating to them for purposes not directly related to their supply. Furthermore, the Customer must not disclose any technical information that could make the reproduction of the Products possible.

The Customer must not erase or alter the trademarks or other distinctive signs displayed on the Products.

 

12) Express Termination Clause

12.1 Pursuant to section 1456 of the Civil Code, ABS Food will have the right to terminate individual Sales at any time by sending written notice to the Customer in the event of non-fulfilment of the obligations set out in sections 4.5, 6.2, 6.3. 6.4.

 

13) Assignment

This Agreement, each Sale and any related right or obligation shall not be assigned by the Customer. ABS Food may assign any or all of their credits under this Agreement or Sale without the prior written consent of the other party.

 

14) Notices

All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given or made to ABS Food only by certified e-mail or by fax to the following addresses:

ABS FOOD S.R.L. absfood@pec.it – fax +39 049 8936850.

15) Legal Domicile, Venue, Applicable Law

13.1 ABS Food’s legal domicile is its registered office.

13.2 Any disputes arising out of this contract, including those of non-contractual nature, related to or connected to it, will exclusively be submitted to the Court of Padova – Italy.

13.4 These Conditions of Sale and each Sale shall be governed by Italian law, notwithstanding the Vienna Convention on the Sale of goods and any international private law rules identifying an applicable law other than the Italian one.