1.1 For the purposes of these general terms and conditions of sale (hereinafter referred to as “General Terms and Conditions of Sale” or “GTCS”), the terms below have the following meaning:
̶ “J Pack”: J Pack Srl.;
̶ “Customer”: any company, entity or legal entity that purchases J Pack Products;
̶ “Products”: the goods produced, assembled and/or sold by J Pack;
̶ “Order(s)”: each proposal of purchase of the Products sent by the Customer to J Pack by fax, e-mail;
̶ “Sale(s)”: each sale contract concluded between J Pack and the Customer following receipt by the Customer of the written acceptance of the Order by J Pack;
̶ “Brands”: all brands of which J Pack is the owner or licensee.
2.1 These Terms and Conditions of Sale apply to all Product Sales. In the event of conflict, the provisions of these GTCS shall prevail except for any particular conditions included on order confirmations.
2.2 J Pack shall not be bound by the general conditions of purchase of the Customer (hereinafter, “GCP”), even in case they are referred to or contained in the orders or in any other documentation of the Customer, without the prior written consent of J Pack. The GCP shall not be binding on J Pack, not even due to tacit consent.
2.3 J Pack reserves the right to add, modify or delete any of these Terms and Conditions of Sale, it being understood that such additions, modifications or deletions shall apply to all Sales concluded from the tenth day following notification to the Customer of the new Terms and Conditions of Sale.
3. Offers, Orders and Sales
3.1 J Pack offers are to be considered indicative and not binding. J Pack has the right to change and modify price lists, rates and offers which are for information purposes only and do not constitute an offer to purchase. J Pack also reserves the right to make any improved and/or supplementary technical modifications to the Products.
3.2 The Customer shall submit to J Pack specific Orders containing the description of the Products, the quantity requested, the price and the terms required for delivery.
3.3 The Sale shall be considered completed in the following cases:
a) when the Customer receives a written confirmation from J Pack (such confirmation may be sent by e-mail, fax or electronic means) in accordance with the terms and conditions of the Order;
b) in the event that the Customer receives a written confirmation from J Pack containing terms different from those contained in the Order, and within two working days from the date of receipt of the confirmation containing non-conforming terms J Pack does not receive, in the aforementioned period, a written complaint from the Customer;
c) in the absence of written confirmation by J Pack, when the Products are delivered to the Customer.
3.4 By confirming an Order, the Customer declares to have read, approved and accepted the GTCS, unless otherwise agreed between the parties.
4. Order Cancellation
4.1 Orders regularly accepted by J Pack cannot be cancelled by the Customer without J Pack’s written consent.
4.2 If the Customer decides to cancel the Order – in whole or in part – J Pack reserves the right to take any legal action in this regard. In this case the supply provided shall remain available for J Pack and any advance payments made shall be retained as compensation for the damage suffered. In any case, J Pack retains the right to compensation for further damages.
4.3 In case of failure to collect orders already processed, J Pack also reserves the right to apply to the Customer a penalty equal to 30% of the amount agreed.
5. Price of Products
5.1 The prices of the Products shall be those indicated in J Pack price list in force at the time the Order is placed by the Customer or – if the Product is not included in the price list or the price list is not available – those confirmed in writing by J Pack at the time of acceptance of the Order. Unless otherwise agreed in writing between the parties, the aforementioned prices shall be calculated Ex Works, net of VAT and discounts. These prices do not include the costs for packaging, shipping and transport from J Pack premises to those of the Customer. These costs shall be borne separately by the Customer.
5.2 J Pack reserves the right to unilaterally change – without prior notice and with immediate effect – the prices listed in the price list in cases where the adjustment is due to circumstances beyond the control of J Pack (including, but not limited to: an increase in the price of raw materials and labour costs or changes in exchange rates). In all other cases, the change shall be communicated to the Customer and shall have effect on all Orders received by J Pack from the tenth day after the date on which the changes were notified to the Customer.
6. Terms of Delivery
6.1 Unless otherwise agreed in writing between the parties, J Pack shall deliver the products ex works to its own facilities, as defined in the INCOTERMS published by the International Chamber of Commerce in their most up-to-date version, in force at the time of delivery (EXWORKS). If requested, J Pack will transport the Products at the Customer’s risk, costs and expenses.
6.2 Delivery shall take place within the deadline indicated in the Order as accepted in the order confirmation. Delivery terms are indicative and are not essential terms pursuant to art. 1457 of the Italian Civil Code and, in any case, do not include transport times. J Pack is deemed to be exempt from any liability arising from any delays in delivery, the timing of which is purely approximate.
6.3 Except as provided for by art. 6.3 above, J Pack shall not be held responsible for delays or non-delivery due to circumstances beyond its control, such as but not limited to, and without claiming to be exhaustive:
a) inadequate technical data or inaccuracies or delays of the Customer in the transmission to J Pack of information or data necessary for the shipment of the Products;
b) difficulties in obtaining supplies of raw materials or lack of supplies from third parties;
c) problems related to production or order planning;
d) administrative provisions;
e) partial or total strikes, lack of electricity, natural disasters, measures imposed by public authorities, difficulties in transport, force majeure, civil unrest, terrorist attacks and all other force majeure events;
f) delays by the freight forwarder.
6.4 The occurrence of any of the events listed above shall not entitle the Customer to claim compensation for any damages or compensation of any kind and exempts J Pack from the obligation to fulfil its duties and authorizes it to extend delivery terms for the duration of the impediment.
7.1 Unless otherwise agreed in writing between the parties, transport shall always be at the expense and risk of the Customer. In the event that, pursuant to art. 6.1, J Pack is required to take care of the transport of the Products, J Pack will choose the means of transport it deems most appropriate in the absence of specific instructions from the Customer.
8.1 Unless otherwise agreed in writing between the parties, J Pack, at its discretion, shall issue the invoices upon acceptance of the Order or delivery of the Products.
8.2 Payments shall be made in Euro, in accordance with the agreed methods.
8.3 Failure to pay within the agreed term shall entitle J Pack to request the Customer to pay the overdue interest at the rate established by Italian Legislative Decree no. 231/02.
8.4 Failure to pay or payments delay shall give J Pack the right to suspend delivery of the Products and resolve any individual Sale signed and also to demand immediate and full payment of all the ordered material. Suspension of delivery of the Products or the termination of the Sales shall not entitle the Customer to claim damages.
8.5 Any claim relating to the Products and/or delivery of the Products shall under no circumstances justify suspension or delay in payment.
9.1 Any discrepancy of the Products delivered to the Customer with respect to the type and quantity indicated in the Order must be reported in writing to J Pack within eight days from delivery date. If the complaint is not communicated within the aforementioned term, the Products delivered will be considered as compliant with those ordered by the Customer.
10.1 Unless otherwise agreed in writing between the parties, J Pack warrants that the Products are free from any faults/defects (excluding those parts of the Products that are not produced by J Pack) for a period of twelve consecutive months starting from the date of delivery of the Products to the Customer.
10.2 The warranty shall not apply to those Products whose defects are due to damage caused during transport; by negligent or improper use of the Products; by failure to comply with J Pack instructions regarding the operation, maintenance and storage of the Products; by repairs or modifications made by the Customer or by third parties without the prior written authorization of J Pack
10.3 Provided that the Customer’s claim is covered by the warranty and notified under the terms set forth in this article, J Pack shall undertake – at its discretion – to replace or repair any Product or parts of it that present defects or faults. The Customer shall report in writing to J Pack any faults or defects within 8 days from delivery of the Products.
10.4 The Products object of a complaint shall be immediately sent to the J Pack factory, or to any other place that the latter will indicate from time to time, at the Customer costs and expenses unless otherwise agreed between the parties, in order to allow J Pack to perform all necessary checks. If repairs or replacements are carried out at the customer’s premises, the customer shall be required to pay travel and labour expenses. The warranty does not cover damages and/or defects of the Products deriving from anomalies caused by, or connected to, parts assembled/added directly by the Customer or by the final consumer.
10.5 The warranty does not cover the complete replacement of the delivered Products. Repair and/or replacement of the original parts does not imply any extension of the warranty terms.
10.6 In any case, the Customer shall not be entitled to enforce warranty rights towards J Pack if the price of the Products has not been paid according to the terms and conditions agreed, even if the failure to pay the price at the agreed terms and conditions refers to Products other than those for which the Customer intends to assert the warranty.
10.7 J Pack disclaims any warranty regarding the conformity of the Products with the rules and regulations of Countries that are not part of or do not belong to the European Union. No other warranties – expressed or implied – such as, but not limited to, warranties of proper operation or suitability for a specific purpose, is granted with reference to the Products.
10.8 The warranty on the availability of spare parts is limited to the maximum warranty periods established by this GTCS.
11. Limitation of Liability
11.1 Without prejudice to the provisions set forth in art. 10.3 and 10.4 and except in cases of wilful misconduct or gross negligence, J Pack shall not be liable for any damages deriving from and/connected to the defects of the Products. In any case, J Pack shall not be held responsible for indirect or consequential damages of any kind, such as, but not limited to, losses deriving from the Customer’s inactivity or loss of profit.
11.2 J Pack shall use due diligence in fulfilling contractual obligations. Under no circumstances can it be held liable for damages directly or indirectly caused by the delayed performance of a contract or the delayed delivery of the products.
11.3 Catalogues, price lists or other promotional material of J Pack are merely indicative of the type of Products and prices. The indications contained therein are not binding for J Pack, which reserves the right to make the necessary changes and updates. J Pack assumes no responsibility for errors or omissions contained in price lists or promotional material.
11.4 In no case J Pack’s liability for damages shall exceed the price paid by the Customer for the products purchased.
12. Retention of Title and Withdrawal of J Pack
12.1 The Products remain the full property of J Pack until the date on which the Customer has not paid the full price and all sums due to J Pack pursuant to and in accordance with art. 1523 of the Italian Civil Code. Until such time, the Customer may not assign the products or the rights over them to third parties, the risks related to the Products or the rights over them to third parties. The risks related to the Products remain entirely borne by the Customer and the latter has the obligation to keep the Products properly stored, protected and insured.
12.2 If the termination of the contract is due to default of the Customer, it is agreed that the sums collected for any reason remain acquired by J Pack as compensation and the Products already delivered must be returned to J Pack at the expense of the Customer.
12.3 The Customer shall fulfil all the obligations required by local laws in order to make valid and enforceable to all third parties this clause of retention of title, even by making the registration in each specific register, where locally required.
13. Intellectual and Industrial Property Rights
13.1 Every technology, project, invention, drawing, procedure, know-how, logo, distinctive sign, software, patent, calculation, method, solution, idea, improvement, modification, contribution and in general all information or associated documentation, developed by the Customer or provided by J Pack for the offer or the performance of the contract or incorporated in the design or operation of the Products, which implies industrial or intellectual property, is the exclusive property of J Pack.
13.2 Intellectual and Industrial Property Rights are the sole property of J Pack and their communication or use within the scope of these Terms and Conditions of Sale does not create, in relation to them, any right or claim by the Customer. The Customer undertakes not to perform any act incompatible with the ownership of Intellectual and Industrial Property Rights.
13.3 Any use of the Intellectual and Industrial Property of J Pack by the Customer for purposes other than those permitted by the contract, operation and maintenance of the Products, unless expressly authorized in writing by J Pack, is in violation of J Pack’s exclusive rights, which shall be entitled to precautionary, remedial, compensatory measures and any other remedies provided by the laws in force.
13.4 The Customer undertakes not to reproduce, not to disclose to third parties and also to take appropriate precautions towards its own personnel in order to guarantee the protection of the Industrial and Intellectual Property of J Pack.
13.5 The Customer declares that J Pack is the exclusive owner of the Brands. It shall refrain from using and registering brands that are similar and/or which may be confused with the Brands. It shall use the Brands exclusively in accordance with J Pack instructions and exclusively for the purposes set forth in these Terms and Conditions of Sale.
14.1 All information accessible by the Customer in the performance of the contract, including the terms of the contract, are confidential, except in case where the information is in the public domain, and shall not be disclosed to third parties or used directly or indirectly for purposes other than those set out in the contract.
14.2 The confidentiality obligation shall remain in force for at least five (5) years after the full payment of the price and the fulfilment of all obligations arising from the contract between the Parties.
15. Express Termination Clause
15.1 J Pack shall have the right to terminate – pursuant to and in accordance with art. 1456 of the Italian Civil Code, at any time by means of a written notice to be sent to the Customer – the individual Sale in the event of failure to comply with the obligations provided for in the following articles: 5 (Price of Products); 8 (Payments); 13 (Intellectual and Industrial Property Rights); 14 (Confidentiality).
15.2 Events intended as force majeure, alteration of the economic conditions and changes in the content of the services that have a significant influence on contractual obligations entitle J Pack to withdraw, in whole or in part, from the contract by means of written notice, without any right to compensation from the Customer.
16. Change in the Financial Conditions of the Customer
16.1 J Pack shall have the right to suspend the fulfilment of the obligations deriving from the Sale of the products, according to art. 1461 of the Italian Civil Code, in the event that the customer’s financial conditions become such as to place in serious danger the achievement of the valuable consideration, unless a suitable warranty is given.
17. Legal Domicile, Applicable Law and Jurisdiction
17.1 The legal domicile of J Pack is at its head office.
17.2 The Terms and Conditions of Sale and each individual Sale shall be regulated and interpreted in accordance with the Italian law, with the exclusion of the 1980 Vienna Convention on Contracts for the International Sale of Goods.
17.3 All disputes arising from or connected to these Terms and Conditions of Sale and/or to any Sale shall be subject to the exclusive jurisdiction of the Court of Bergamo (Italy).
17.4 Except as agreed in the previous art. 17.3, J Pack reserves the right, when taking a legal action as plaintiff, to take such action in the place of residence of the Client, in Italy or abroad.
18. Final Provisions
18.1 The regulatory and prevailing language – in the event of any disputes regarding the interpretation of the GTCS – is the Italian language, notwithstanding the translation into any other language.