General terms and conditions of sale

 

1) SCOPE OF APPLICATION

1.1 The following terms and conditions (the “General Conditions or” GCS “) regulate the sale of various models of stainless steel and ceramic outdoor kitchens (the “Products“) between OUTDOOR KITCHEN SRL (“OUTDOOR KITCHEN” or “SELLER” ), with headquarters in Strada Monteluro 17, Tavullia (PU) ZIP code 61010 (” CUSTOMER “);

1.2 Any agreement that differs from these GCS will be effective only if explicitly accepted by OUTDOOR KITCHEN in writing.

1.3 OUTDOOR KITCHEN shall in no event be bound by any general contract conditions of the CUSTOMER.

1.4 These GCS and the conditions included in the Contract (as defined below) represent the entire agreement between the parties in relation to what is agreed therein and they cancel and supersede any previous agreement, understanding, communication and warranty, oral or written between the parties.

Any representations and warranty or further conditions will not be valid and binding between the parties unless included in the contract and / or in these GCS.

2) OFFERS AND PROPOSALS

2.1 The offers made by agents, representatives and commercial staff of the Seller are not binding on the Seller until they are confirmed in writing and signed by the Seller.

2.2 Price lists or descriptive material of the Products which do not expressly bear the wording “offer” “estimate”, or other equivalent, cannot be considered as an offer. The terms “without obligation”, “subject to availability” and other similar wording, included by the Seller in an offer do not bind the seller to the terms of the offer even in the event of acceptance of the offer by the customer, unless there is subsequent written confirmation or implementation by the Seller. The seller’s offer is considered firm or irrevocable only if it is qualified as such in writing and a term of validity of the clause is specified.

3) CONCLUSION AND EXECUTION OF THE CONTRACT – MEASURES AND TOLERANCES – RIGHT TO SUSPEND PERFORMANCE

3.1 The order assumes full validity and effectiveness from the moment in which it is received by OUTDOOR KITCHEN, directly from the CUSTOMER, or by means of agents or sellers of OUTDOOR KITCHEN; or following the electronic transmission of the acceptance and confirmation of the OUTDOOR KITCHEN estimate / offer (“Order Confirmation” or “Contract”).

The acceptance of an offer from OUTDOOR KITCHEN, the forwarding of an order, or the stipulation, in any form and also effective implementation of a contract by the Customer, implies adherence to these general conditions in their most recent and updated version.

OUTDOOR KITCHEN has the right to request changes and / or adjustments within 15 (thirty) days from the date of receipt of the Order.

3.2 Execution of the supply may be suspended at any time at the exclusive discretion of OUTDOOR KITCHEN, if pursuant to and for the purposes of art. 1461 of the Italian Civil Code, there is a change in the financial conditions of the CUSTOMER relevant to the purpose of guaranteeing payment for the supply changes.

4) PRODUCTS – MODIFICATIONS – TOLERANCES

4.1 Products will comply with the description and characteristics included in the Order Confirmation or in a possible executive project drawn up by OUTDOOR KITCHEN.

4.2 Although OUTDOOR KITCHEN constantly adopts measures to ensure that the photographs shown on the website and / or other advertising material are faithful reproductions of the original products, including the adoption of every possible technological solution to minimize inaccuracies, variations may occur due to the technical specifications and color resolution characteristics of the computer used by the customer. Consequently, OUTDOOR KITCHEN will not be responsible for any inadequacy of the graphic representations of OUTDOOR KITCHEN products shown on the website or other advertising material due to the above reasons.

4.3 The Products as well as the accessories supplied are fully in compliance with EU applicable norms and regulations. In the event that the CUSTOMER intends to use the Products outside the European Union, it shall notify OUTDOOR KITCHEN at the time of the supply request referred to in Article 2.1, of any diverging rules and provisions in force in the country where the Products are to be imported and / or used. Failing this, OUTDOOR KITCHEN will not be held liable for any non-compliance of the Products with the legislation of the country in question.

5) PRICES AND TERMS OF PAYMENT

5.1 All the prices indicated in the Contract (“Prices“) are in Euros, excluding VAT and for shipments made in compliance with the Incoterms ^® 2010 ICC EXWorks rule – OUTDOOR KITCHEN plant, Italy Via Galvani, 15 Ca’ Gallo di Montecalvo in Foglia (PU) CAP 61020. Therefore, in the event that a different shipment term is agreed with repect to shipment of the Products, the invoice amount will be modified accordingly.

5.2 The Purchase Price must be paid in accordance with the payment conditions agreed in the Contract. The CUSTOMER shall be responsible for any expenses or accessory costs of any kind, deductions and expenses relating to letters of credit, bank guarantees, collection fees, drawing up necessary documentation. The payment terms must be respected even if repairs are required to be made on the Products such that do not render use of the Products impossible.

5.3 Payments will be considered to have been made by the CUSTOMER only when the relative amount has been credited to the OUTDOOR KITCHEN current account.

5.4 In the event that the payments to be made by the CUSTOMER are overdue, interest for late payment pursuant to applicable laws shall be paid on the overdue amounts even if no formal warning is given by OUTDOOR KITCHEN. OUTDOOR KITCHEN is also exonerated from fulfilling its obligations until the agreed payments are received.

5.5 The delay in payment automatically causes the immediate collectability of all other credits owed by the CUSTOMER to OUTDOOR KITCHEN, even if not yet due for payment. In the event of a substantial worsening of the CUSTOMER’s economic situation, OUTDOOR KITCHEN has the right to suspend all activities, request advance payment of the entire amount or part of it, call in guarantee and / or terminate the relative Contract.

5.6 Advance payments made do not accrue interest and are not to be considered as penalty payments which allow the CUSTOMER to withdraw from the Contract.

6) RETENTION OF TITLE

6.1 In the event that the payment is to be made – in whole or in part – following delivery, the Products will remain the property of OUTDOOR KITCHEN until such time as full payment of the Price (that is payment of the last installment) is received, pursuant to articles 1523 and following of the Italian Civil Code without prejudice to the passage of risk pursuant to the previous article 5.

6.2 In the event of termination for reasons attributable to the CUSTOMER, OUTDOOR KITCHEN will have the right to obtain the immediate return of the Products delivered and to withhold, by way of indemnity, the installments and advance payments or deposits already received, without prejudice to the right to obtain compensation for further damage.

6.3 The CUSTOMER undertakes to fulfill all the necessary formalities (e.g registering title on the Products, annotation of the retention of title agreement in the appropriate register held by the Court of the place where the Products are located, registration of the Agreement where necessary, obligation not to transfer the Products to a place other than that of delivery, etc.) in order to make the retention of title in favor of OUTDOOR KITCHEN enforceable against third parties.

7) SHIPMENT OF PRODUCTS

7.1 The Products will be packed and ready for shipment using the packaging systems generally adopted by OUTDOOR KITCHEN in consideration of the agreed modes of transport and the place of destination. If the CUSTOMER deems it necessary to use special packaging or additional protection, it must make an express request to OUTDOOR KITCHEN to this effect, it being understood that, in this case, the relative costs will be borne by the CUSTOMER.

7.2 Unless otherwise provided in the Contract, the Products will be delivered in accordance with the Ex-Works Incoterms ® 2020 rule. In the event that, pursuant to the Contract, shipment is to be handled by the CUSTOMER, the CUSTOMER authorizes OUTDOOR KITCHEN to sign, in the name and on behalf of the CUSTOMER, all the documents that must be signed at the time of taking charge of the Products at the OUTDOOR KITCHEN production site.

7.3 OUTDOOR KITCHEN will deliver the Products within the times established in the specific conditions of the Contract, even through partial deliveries. Except in cases of willful misconduct or gross negligence, in no case shall the Seller be liable for compensation for direct or indirect damages of any nature deriving from the delayed deliveries. The CUSTOMER shall not have the right to terminate the Contract in the event of late shipment. If the shipment is delayed for reasons attributable to the CUSTOMER, the latter is also required to make payments in accordance with the original delivery date, except as otherwise provided in these GCS.

7.4 The Products delivered must be accepted by the Customer without prejudice to any warranty rights. The CUSTOMER is required to check the packaging, test the products and immediately notify OUTDOOR KITCHEN in writing of any discernible defects. In default, the supply is considered accepted both as to its quality as well as quantity.

7.5 Should the Products remain deposited at the OUTDOOR KITCHEN premises for a period of more than 15 (fifteen) days from the communication referred to in the previous article 7.1, OUTDOOR KITCHEN is authorized to store the Products at the CUSTOMER’s expense that is € 200 (two hundred Euro) for each day of delay and / or to charge the CUSTOMER the additional costs deriving from the delay (e.g. reorganization costs, overtime hours, etc.) without prejudice to the right to compensation for any further damages.

8. WARRANTY

8.1 The warranty on products sold by OUTDOOR KITCHEN differs according to whether the buyer is a “consumer” or a “professional” pursuant to EU Directive 1999/44 / governing certain aspects of the sale of consumer goods and associated guarantees”.

If the CUSTOMER purchases as a “consumer”, it will benefit from the legal guarantee of conformity to which the seller in bound by law on all goods sold (“Legal Guarantee”). The Legal Guarantee – to which OUTDOOR KITCHEN is held as a seller – guarantees the goods against defects of conformity in respect of the sales contract.

In case of applicability of the Legal Guarantee, the Consumer will have the right to have the good restored to compliance by repair or replacement free of charge or, if this is not possible, to a reduction of the purchase price or to the termination of the contract. OUTDOOR KITCHEN shall be liable for defects of compliance if these occur within two years from the delivery date of the goods. However, the Customer is bound to report defects in conformity within a period of one month from their discovery.

8.3 In order for the guarantee to apply, proof of purchase is required and the Product defect reported by the CUSTOMER will be verified by persons appointed by OUTDOOR KITCHEN. Defects deriving from normal wear and tear, misuse or accident caused by an external element or through a modification neither foreseen nor authorized by OUTDOOR KITCHEN, are excluded from this guarantee. It is agreed that any dispute or request for assistance on household appliances, mixers or other components, having a guarantee issued directly by their manufacturer, must be communicated directly to the manufacturer.

8.4 To the extent permitted by law, OUTDOOR KITCHEN declines all responsibility in the event of delay in the delivery of the PRODUCTS due to unforeseeable events, acts, facts and circumstances at the time of the conclusion of the individual purchase contracts, unavoidable and also beyond the control of OUTDOOR KITCHEN (by way of example: strikes, riots, natural disasters, etc.). In such situations OUTDOOR KITCHEN will promptly communicate to the CUSTOMER a new deadline within which it will fulfill the delivery and will make every effort to fulfill all its obligations as provided for in the purchase contract.

8.5 OUTDOOR KITCHEN is also held harmless with respect to insubstantial differences between the PRODUCTS purchased and their illustrative images and text descriptions published on the web site. Differences or dystonias in color with respect to the illustration, due to the use of technological means, are considered tolerable. PRODUCTS are intended for home use and not for professional use.

8.6 In the event of apparent defects, it will be the CUSTOMER’s responsibility to check the PRODUCTS upon delivery and in particular the absence of such apparent anomalies (eg scratches / stains / dents). Such defects are to be reported to OUTDOOR KITCHEN before assembly. The CUSTOMER must refrain from intervening directly or through third parties for the removal of any anomalies found. Failing this, expenses incurred will not be reimbursed.

8.7 The CUSTOMER shall forfeit its rights if Products purchased are installed in a location which does not have the correct measurements/dimensions for the installation of the Products.

9. CONFIDENTIALITY – INDUSTRIAL PROPERTY RIGHTS

The Customer is obliged to keep confidential all information of a technical nature (eg: drawings, technical prospectuses, documentation, and correspondence in general) received by OUTDOOR KITCHEN and in any case obtained in the execution of the Contract. This obligation will remain valid for a period of three years from the date of delivery to the CUSTOMER of the last batch of Products sold. Any industrial or intellectual property right relating to the Products sold will remain the exclusive property of OUTDOOR KITCHEN.

10. FORCE MAJEURE

“Force Majeure” means the occurrence of an event or circumstance (“Force Majeure Event”) that prevents or impedes a party from performing one or more of its contractual obligations under the contract, if and to the extent that the party affected by the impediment proves:

[a] that such impediment is beyond its reasonable control; And

[b] that the event could not reasonably have been foreseen at the time the contract was concluded; And

[c] that the effects of the impediment could not reasonably have been avoided or overcome by the Interested Party.

10.2 In the absence of evidence to the contrary, the following events suffered by a party are presumed to satisfy the conditions (a) and (b) of paragraph 1 of this clause: (i) war (declared or not), hostility, invasion, acts of a foreign enemy, extensive military mobilization; (ii) civil war, riot, rebellion, revolution, military force or usurpation of power, insurrection, acts of terrorism, sabotage or piracy; (iii) currency or trade restrictions, embargoes, sanctions; (iv) acts of authority, legitimate or illegitimate, compliance with laws or government orders, regulations, expropriation, confiscation of assets, requisition, nationalization; (v) plague, epidemic, natural disasters or extreme natural events; (vi) explosion, fire, destruction of equipment, prolonged suspension of transportation, telecommunications or energy; (vii) generalized social conflicts, such as in particular boycott, strike and lockout, white strike, occupation of factories and buildings.

The party which successfully invokes this clause is exempted from the obligation to fulfill its contractual obligations, from any liability for damages or other contractual remedy for non-fulfillment, starting from the moment in which the event inhibits the fulfillment of contractual obligations, provided that the same has been notified without delay.

If notice of the event has not been given promptly, the exemption will take effect from the moment in which the communication reaches the other party. The counterparty may suspend the fulfillment of its obligations, if any, from the date of the notice. Where the effect of the impediment or event is temporary, the consequences referred to in the preceding paragraph will arise only to the extent that and until the invoked impediment or event prevents the party concerned from fulfilling its contractual obligations. The interested party must inform the other party as soon as the impediment ceases to prevent the fulfillment of its contractual obligations.

If the duration of the impediment invoked has the effect of substantially depriving one or both contracting parties of what they could reasonably expect under the contract, each party shall have the right to terminate the contract by notifying the other party within a reasonable period of time. The parties agree that, in the absence of a different agreement, the contract may be terminated by each of them if the duration of the impediment exceeds 120 days.

11. APPLICABLE LAW

This contract shall be governed by Italian law.

12. DISPUTE RESOLUTION

All disputes, claims or legal action deriving from this Agreement or relating to it or connected thereto, will be resolved exclusively by the court of the place where the Supplier has its headquarters in Italy. As a partial exception to the foregoing, the Seller may take legal action in relation to each of its rights or prerogatives under this Agreement, before any judicial authority having jurisdiction in relation to the Customer.

Version 01.02.2022