1. General information and subject
1.1. The offer and sale of products on the websites progold.com and xbrax.com are solely regulated by these general terms of sale. Any of the Customer's own general terms of purchase will not be applied.
1.2. The Products listed/displayed on the websites progold.com and xbrax.com are sold exclusively by the company Progold S.p.a., based in Italy, Via Postale Vecchia no. 26/a – 36070 Trissino (VI) Tax Code and VAT No. 02623140247, registered at the Companies Register of Vicenza no. 261346 (hereafter known as “PROGOLD”).
1.3. Sales of PROGOLD's Products indicated on the websites progold.com and xbrax.com are aimed exclusively at Customers qualified as “professionals” and not “consumers” in accordance with and for the effects of Art. 3 of Italian Legislative Decree no. 206/2005, as amended.
1.4. The Product information and descriptions shown on the websites progold.com and xbrax.com are merely informative and do not constitute a contractual proposal by PROGOLD or an offer to the public in accordance with and for the effects of Art. 1336 of the Italian Civil Code. They shall not be considered binding for PROGOLD for any commercial relationship.
2. Finalisation of contract
2.1. The Customer, in order to purchase the products, must register on the websites progold.com and xbrax.com.
2.2. During registration, the Customer will declare, under its own exclusive liability, that it operates as a professional in accordance with and for the effects of Art. 3 of Italian Legislative Decree no. 206/2005, as amended, and that all purchases will thus be made for entrepreneurial, craftsmanship or professional activity. When completing the registration process, the Customer will declare to accept these general terms of sale.
2.3. The Customer undertakes to read these general terms of sale carefully, before sending purchase offers and completing the process on the websites progold.com and xbrax.com, it being understood that by sending the purchase offer, the Customer accepts these general terms of sale.
The Parties agree that pointing and clicking the acceptance icon equates to written approval in accordance with and for the effects of Art. 1341 of the Italian Civil Code
2.4. After having registered, the Customer may access the reserved section of the websites progold.com and xbrax.com and access the shopping area, to make purchases.
The purchasing methods can be consulted at the following link: TUTORIAL
2.5. Any purchase offer sent is irrevocable and binding for the Customer until the expiry of the deadline for acceptance of the same by PROGOLD and it may only be changed by increasing the quantities. If, within ten business days from sending the purchase offer, Progold has not accepted the same by way of the Order Confirmation, Progold is understood to have rejected the purchase offer.
2.6. When the purchase offer is transmitted, PROGOLD sends an order summary to the e-mail address indicated by the Customer upon registration; that summary does not constitute acceptance of the purchase offer. The purchase offer is only accepted when PROGOLD sends an acceptance and confirmation e-mail to the Customer (“Order Confirmation”) for the order received from the Customer, or its rejection, to the e-mail address communicated by the Customer upon registering. The Order Confirmation will contain information relating to the purchased Products, a detailed indication of the price, shipping costs, taxes applied, chosen payment method and a reference to the applicable general terms of sale.
For orders involving advance payment, PROGOLD will send to the Customer an e-mail confirming receipt of the order, containing a summary of the same, notwithstanding that the order will only be binding for PROGOLD after receiving payment from the Customer and sending the Order Confirmation to the latter.
The Order Confirmation can be consulted in the Customer's reserved area and will be archived and retained for the period of time necessary to process the purchase request and in any case within legal timescales for contractual and tax fulfilments.
2.7. These general terms and the special terms of sale indicated in the Order Confirmation may not be derogated by the parties except in writing. They cancel and replace any previous agreement made between PROGOLD and the Customer.
3. Delivery location
3.1. The place of implementation of the obligation to deliver the Products is Progold Spa's warehouse at its registered office in Trissino, Via Postale Vecchia no. 26/a Italy. The delivery obligation is understood to be executed when PROGOLD makes the goods available to the Customer at its warehouses, ready for shipment.
3.2. Any delivery terms (known as INCOTERMS) agreed by the parties will exclusively regulate the obligations accepted by the parties in relation to the chosen shipment methods but they will not alter PROGOLD's place of performance, which is the warehouse at its registered office.
4.1. Notwithstanding that the place of delivery of the Products is Progold's registered office, the parties may agree delivery terms with reference to the so-called INCOTERMS published by the ICC of Paris which will exclusively regulate the obligations accepted by each party in managing the shipment.
4.2. Whatever delivery terms are agreed by the parties, PROGOLD is released from the risk, at the latest, when the first carrier collects or accepts the Products.
4.3 In the absence of specific indications, the delivery terms are understood to be EX WORKS at the registered office of PROGOLD at Via Postale Vecchia no. 26/a – 36070 Trissino (VI)
4.4 Unless otherwise agreed, any insurance of the goods during transportation, customs clearance of the products and any other accessory operation connected thereto, in addition to payment of customs charges and taxes, are paid for by the Customer.
5. Packaging of Products
5.1. PROGOLD completes the packaging for delivery or shipment of the Products in the standard form [usual for those Products]. If the Customer requests special packaging or if the shipment method requires the same, in PROGOLD's opinion, any higher costs will be charged to the Customer.
5.2. PROGOLD is not in any case liable for damage, breakages, tampering or shortages that may occur after the goods leave the warehouses.
6. Delivery date
6.1. The delivery date is indicated in the Order Confirmation and is purely indicative and not binding for PROGOLD. Any delays in delivery, shipment or transportation will not give rise to penalties or compensation for damages, payment of interest or termination, even partial, of the contract, against PROGOLD.
6.2. If PROGOLD foresees that it will be unable to deliver the Products on the date indicated in the Order Confirmation, PROGOLD will inform the Customer and extend the delivery terms as a result.
6.3. In any case, a delivery delay due to the following cases may not be considered attributable to PROGOLD:
a) causes for force majeure, such as: strikes, lack or insufficiency of energy, fire in all or part of PROGOLD's headquarters, insurrections, riots, civil war, war (declared or otherwise);
b) delays and/or difficulties in procuring components or raw materials;
c) acts or omissions by the Customer (such as any changes to the order after the contract has been finalised, even if accepted by PROGOLD, failure to communicate the necessary instructions for the supply of the Products …)
Those circumstances of delay not attributable to PROGOLD constitute an autonomous cause to extend the delivery terms.
6.4. The Customer undertakes to accept delivery of the Products, even if partial or early or late compared to the deadline indicated in the Order Confirmation.
7. Obligations of verification upon receipt of goods
7.1. The Customer is required to examine the Products, without delay, upon receipt.
7.2. If the Products or the respective packaging are found to be damaged, or if there are missing goods, the Customer must make the appropriate reserves to the transporter, in accordance with the forms provided for the means of transport used.
7.3. In any case, any complaints relating to the condition of the packaging, quantity and number of Products must also be reported to PROGOLD in writing, under penalty of forfeiture, by way of certified e-mail or using the specific complaints form on the website progold.com by the third business day after receipt of the goods, following the procedure set out in Art.9 (complaints).
7.4. PROGOLD may not in any case be held liable in the case of loss or damage or tampering of the Products that occurs during or is caused by the transportation, even if it has chosen the carrier or shipping agent itself.
8. Product defects and guarantees
8.1. PROGOLD exclusively guarantees that the Products are compliant with the indications and technical specifications identified on the websites progold.com and xbrax.com, with the express exclusion of any other implicit or explicit guarantee.
8.2. The validity of the guarantee commences from the delivery date of the Products and remains in force for 12 months under the terms and conditions set out in these general terms of sale.
8.3. If the Products are acknowledged to be defective, within one month from the outcome of the verification of the complaint, or in the different timescale indicated by Progold and required for the verifications, PROGOLD, at its discretion, will replace those Products, within the limits of stock availability, or will credit to the Customer the price of the delivered goods acknowledged to be non-compliant. If the Products are replaced, the costs of delivery to the Customer will be borne by Progold.
8.4. The parties agree that the guarantee does not cover: damages caused by transportation, parts of the Products subject to normal wear and/or deterioration, defects resulting from inadequate environmental storage conditions and/or improper use of the Products or use that deviates from their intended use in accordance with the indications and technical specifications and/or alterations made by the Customer and/or by third parties without prior written consent from PROGOLD.
9.1. Any lack of conformity, defect and/or deformity of the Products must be communicated in writing using the specific guided form on the website progold.com or in another written form, under penalty of forfeiture, by and not beyond:
a) 15 days from receipt of the Products by the Customer in the case of apparent defects (i.e. those that should have been discovered by a diligent Customer);
b) 15 days from the date of discovery of the defects, for hidden defects, or in any case not beyond twelve months from receipt of the Products.
9.2. Complaints made by the Customer must indicate all information and documentation required to identify the problem and also:
a) all details relating to the order
b) PROGOLD's invoice number
c) the date of shipment and receipt of the Products
d) the defects identified compared to the Product's technical data sheet
e) the production batch number indicated on the Product packaging
f) the name and address of the person to be contacted by Progold
g) any photos and/or documentary evidence of the alleged non-conformity.
9.3. PROGOLD reserves the right to examine the Products subject to complaints and the merits of the same at its operational headquarters located in Italy, Trissino, Via Postale Vecchia no. 26/a and thus the Products whose defective nature is disputed must be made available to PROGOLD, or the person appointed by it, to be examined at Progold's office.
9.4. Returns are not permitted, subject to prior written authorisation from PROGOLD. Any shipments of returns authorised by PROGOLD must be accompanied by a document authorising the return which may also be constituted by PROGOLD's communication in which the return is accepted.
9.5. Complaints or disputes do not in any case attribute the right to the Customer to delay or suspend payments for the Products subject to the complaint or those of other supplies.
9.6. All transportation costs are borne by the Customer and, if the complaints are found to be groundless, PROGOLD may also charge the inspection costs to the Customer.
9.7 In any case, the Customer's right to compensation for damages, reimbursement of costs of any nature or termination of the contract is excluded.
10. Limitation of liability
10.1. Except in the case of wilful misconduct or gross negligence, PROGOLD will not be liable for damages deriving from or connected to lack of conformity (defects or deformities) of the Products or delays in delivery.
10.2. In any case, PROGOLD's liability for defects and deformities of the Products may not exceed the value of the product amounting to the EX WORKS price paid by the Customer.
10.3. It is expressly agreed that any failure by the Customer to respect the terms and conditions indicated in clause 9 (complaints) will involve the automatic forfeiture of the guarantee.
10.4. Notwithstanding that PROGOLD's liability for any defect or non-conformity of the Products is limited to the obligations accepted in these general terms of sale, the Customer expressly declares to waive any action of recourse against Progold connected to the resale of the Products to third parties. The Customer therefore undertakes to keep PROGOLD indemnified from any compensation action brought by subsequent sellers in the distribution chain.
10.5. The guarantee and remedies provided in these general terms of sale (i.e. replacement or credit of the Products) are substitutive of any other legal guarantee or remedy provided by law in favour of the Customer. As a consequence, the parties agree that, except in the case of Progold's wilful misconduct or gross negligence, any other liability for Progold (both contractual and non-contractual) that may derive from the Products supplied or from their resale (including, by way of example, damages or indemnity, loss of earnings, etc…) is expressly excluded.
11.1. The price of the Products, for the purposes of these general terms, is that expressly indicated on the web page at the time of the order and confirmed in the Order Confirmation sent by PROGOLD to the Customer, and, unless otherwise indicated, it is an EX WORKS price.
11.2. The price will only include any transportation or insurance or other costs if expressly indicated by Progold in the Order Confirmation.
11.3. The costs of transportation and shipment, of insuring the goods during transportation, customs clearance of the products or any other accessory operation connected thereto, along with customs charges and taxes, are always borne by the Customer.
12.1. The price must be paid strictly within the terms and by the methods indicated in the Order Confirmation.
12.2. The payment will only be deemed valid if made in Euro, directly to PROGOLD, by the methods indicated in the “Order Confirmation” and that payment is only considered to be made when the entire agreed sum (including costs and charges, where appropriate) is made irrevocably available to PROGOLD at its bank in Italy.
12.3. Unless otherwise indicated, the price shall be paid in full, in advance and by bank transfer.
12.4. In any case, all payment costs and commissions, including those of any negotiation or confirmation of documentary credits or guarantees of any nature, are borne by the Customer.
12.5. If the payment is to be accompanied by a bank surety, the Customer will provide to PROGOLD, at least 8 days before the delivery date to the shipping agent or the supply of the Products, a bank guarantee at first demand, issued and confirmed by a major Italian bank in compliance with the ICC's Uniform Rules for Demand Guarantees, payable against PROGOLD's simple declaration of not having received payment by the agreed deadlines.
12.6. In the event of delayed payment of any sum due to PROGOLD, in addition to default interest, at the rate fixed by the relevant authorities, in accordance with Italian Legislative Decree 231/2002 and Directive 2000/35/EC of the European Parliament and Council, the Customer shall pay to PROGOLD the reimbursement of the costs for any credit recovery (including, by way of example, legal costs, bank charges, etc.).
12.7. The Customer is not authorised to make any deduction of the agreed price or of any supply subject to complaint or any other supply (merely by way of example for alleged or claimed defects of Products; for advance payment).
12.8. The Customer may not refuse or suspend the payment, unless authorised in advance in writing by PROGOLD. The Customer may not offset the payment with any credit claimed from PROGOLD.
13. Reserve of ownership
13.1. It is agreed that the delivered Products remain under the ownership of PROGOLD until the latter has received full payment for the same.
13.2. The reserve of ownership is extended to Products sold by the Customer to third parties and to the price of those sales within the maximum limits provided by the law in the Customer's country, which regulates this clause.
14. Breach by Customer
14.1. If the Customer is in breach or has become insolvent or there is reason to believe that the same will be unable to fulfil its contractual obligations, PROGOLD, at its sole discretion, may invoke, inter alia, one or more of the following remedies and/or rights, cumulatively or alternatively:
a) consider the Customer having forfeited the benefit of any terms agreed in favour of the latter;
b) request the issuance of suitable bank guarantees (surety or bank guarantee at first demand);
c) demand the fulfilment, in accordance with Article 1453 of the Italian Civil Code, without prejudice to the right to compensation for damages;
d) suspend the implementation of the contract in progress until the Customer has paid all its dues in full, even if relating to previous supplies.
14.2. In any case, all remedies granted here in favour of PROGOLD will be considered cumulative and not exclusive of any other remedy granted by this Contract or by law; the exercise of any available remedy will not preclude the exercise of any other remedy.
14.3. In the event of a breach by the Customer, Progold will be entitled to the payment of a penalty in the sum of 30% of the sale price, without prejudice in any case to compensation for greater damages.
14.4 Progold is in any case entitled to retain the price received, on account of its greater damage.
15. Express termination clause
15.1. In addition to any remedy provided by law or by these general terms of sale, Progold is entitled to terminate any sale contract, in accordance with and for the effects of Art. 1456 of the Italian Civil Code, by written communication to the Customer by recorded delivery with notice of receipt or by another equivalent means that proves receipt of the communication (e.g.: public certified e-mail, courier…), if the Customer:
a) fails to make full payment of the sale price by the agreed deadline; or
b) does not issue the requested guarantees or promises or
c) fails to fulfil its obligation to collect the products by the agreed deadline.
This is without prejudice to PROGOLD's right to receive payment of the penalty referred to in Art. 14 and subject to compensation for greater damages.
16. Confidentiality obligations
16.1. All information relating to the know-how of which PROGOLD is the owner, as well as all corporate and commercial information, of which the Customer becomes aware during the negotiation and implementation of the contract (the Confidential Information) shall be understood to be confidential and may not be disclosed to third parties. The Confidential Information may be used exclusively to the extent necessary to implement the contract correctly and to use the Products.
16.2. For the purposes of these general terms, Confidential Information is considered to be all information regarding production processes, formulae, technical information and know-how, company policies, economic policies, marketing and financial strategies, Progold's customer and supplier lists and any other information of confidential nature and it is thus confidential, private and may not be disclosed. The “Confidential Information” does not include information that is already in the public domain and belongs to the state of the art or that becomes so due to causes not attributable to any breach by the Customer of the confidentiality obligation or information that the Customer is required to communicate by virtue of rules of law or directives issued by any Public Authority.
16.3. The Customer undertakes to apply all necessary measures to ensure that the confidentiality of the documents and information received from PROGOLD is adequately protected and to ensure that that confidentiality obligation is also observed by its employees or collaborators or consultants who, by reason of their assignment, become aware of that Confidential Information.
16.4. The Customer is liable towards PROGOLD for any commercial damages and damage to image deriving from the failure to comply with the provisions of this article.
16.5. The confidentiality obligation remains valid and binding for the Customer until the Confidential Information has entered the public domain for reasons extraneous to any breach by the Customer of the confidentiality obligations accepted here.
17. Industrial property rights
17.1. The Customer undertakes not to reveal, publish or disclose, copy, imitate or use in any way any part of the patents and/or compositions and/or trademarks and/or technical know-how owned by PROGOLD.
17.2. The Customer is liable for all costs, damages, expenses and losses suffered by PROGOLD as a consequence of any damage to the patent and/or trademark rights and/or rights over models and designs or as a consequence of the improper disclosure of know-how, connected to this contract or the use of the Products.
17.3. The Customer is required to communicate to PROGOLD, without delay, any information or fact of which it becomes aware and which may be relevant for the purposes of protecting the patent and/or trademark rights and/or rights over models and designs and know-how.
17.4. The Customer, in addition, exonerates PROGOLD from liability for any claims made by third parties and based upon alleged violations of intellectual or industrial property rights occurring during the supply of the Products and their use by the Client.
17.5. For Products created on specifications provided by the Customer, the Customer declares that those specifications do not violate the industrial property rights or confidential information of third parties and in any case it exonerates PROGOLD from liability for any claims made by third parties based upon the alleged violation of intellectual or industrial property rights or confidential information occurring during the supply of the Products and their use by the Customer, undertaking to indemnify Progold from any such claims.
18.1. These general terms of sale have been prepared in Italian; therefore, even if translations are published on the websites progold.com and xbrax.com, in the event of discrepancies, the Italian version will be considered prevalent as the authentic text.
19. Applicable law and Court with jurisdiction
19.1. These general terms of sale and the contracts signed with Progold are regulated by Italian law, with the exclusion of rules that regulate the conflict between laws of different legal systems.
19.2. Any reference to contractual terms (such as EXW etc.) is understood to be a reference to the Incoterms of the International Chamber of Commerce of Paris in the text in force at the date of signature of the contract.
19.3. For any dispute deriving from or connected to these general terms or the contracts signed by PROGOLD, the Court of the headquarters of PROGOLD will have exclusive jurisdiction.
19.4. However, in derogation of what is established above, only PROGOLD is entitled to take the dispute before the judicial authority of the location in which the Customer is based, subject to the exclusive applicability of Italian law.
20. Personal data processing
20.1 Personal data is collected for the purpose of registering the Customer and activating for it the procedures for implementing this contract and the respective necessary communications.
20.2 That data is processed electronically in respect of the laws in force on personal data and privacy and may be produced only at the express request of the judicial authority or other authorities authorised by law for that purpose.
20.3 The personal data will be communicated to entities delegated to perform the activities necessary to implement the signed contract and is disseminated exclusively for those purposes. Progold pays great attention to the security and confidentiality of the Customer's data; information relating to the individual, company/firm, orders and purchases made is strictly confidential and Progold undertakes not to disseminate and not to sell the information in its possession to external companies for promotional purposes.
20.4 The data will be used exclusively for the purposes of sending newsletters, communicating promotional news, communicating the release of a new product or offers of new products, unless any wishes to the contrary are expressed upon registering or later, via the removal link found in the communications received.
20.5 The Customer, by approving these general terms of sale, declares to have been informed of all elements required by Art. 13 of Italian Legislative Decree 30 June 2003 no. 196 and provides consent, in accordance with Art. 23 of the cited decree, for its personal and company data to be processed in accordance with the law and possibly communicated to third parties and (or transferred to countries within the European Union or third countries in accordance with Art. 42 and 43 of the decree, in particular to foreign entities, even non-EU), whose collaboration may become necessary.
20.6 PROGOLD is authorised, if it deems it appropriate, to indicate the name of the Customer, the references and characteristics of the products purchased, within its advertising material, press releases, publications, books, catalogues, magazines, newspaper articles, television programmes, webzine, newsletters, internet websites, etc.
21.1. If one or more of these general terms of sale is deemed to be invalid, cancelled or null by the relevant Judicial Authority, in no case will that invalidity, cancellation or nullity have effect on the other clauses of the agreement, and the aforementioned invalid, cancelled or null clauses must be understood to be amended to the extent and in the sense required for the relevant Judicial Authority to deem them perfectly valid and effective so as to achieve a purpose coherent with the intention for which those clauses were originally drafted.
21.2. In no case may PROGOLD's failure to exercise a right arising from these general terms of sale or from the sale contract or any tolerance by PROGOLD of any violation thereof by the Customer be understood as a waiver or implicit amendment by PROGOLD of the provisions or remedies provided by them.