GENERAL CONDITIONS OF SALE FOR AGL RETAILERS
The person, business owner or company (the “Purchaser”) placing an order with Attilio Giusti Leombruni S.p.A. (the “Supplier”) for the Supplier’s products (the “Products”) acknowledges and confirms that the following general conditions of sale (the “GCS”) shall regulate the order so placed and together with the order form part of the entire agreement entered into between the Purchaser and the Supplier in respect of the sale of the Products (the “Agreement”). These GCS shall prevail over any terms and conditions proposed by the Purchaser in respect of the sale of Products, unless such terms and conditions are accepted by the Supplier in writing. In the event of any discrepancy between these GCS and the terms and conditions of the order confirmed by the Supplier, the latter shall prevail. The Supplier reserves the right to modify these GCS, it being understood and agreed that any so modified GCS shall be notified to the Purchaser and take effect 7 (seven) days after being so notified, unless the Purchaser objects to the modified terms and conditions by sending notice in writing to the Supplier. 1. Conclusion of the agreement. Any order placed by the Purchaser shall be regarded as an irrevocable proposal to the Supplier for a period of 30 (thirty) days from the date of receipt of the order by the Supplier and the Supplier shall have the right to confirm or refuse the order in its sole discretion. Orders placed by the Purchaser shall not be regarded as confirmed by the Supplier and the Agreement between the Purchaser and the Supplier shall not be concluded unless and until (i) the Purchaser receives a written confirmation of the order by the Supplier; or (ii) the Purchaser receives a written confirmation of the order by the Supplier containing modified terms and conditions, in which event the agreement shall be deemed concluded unless within 7 (seven) days from receipt of said confirmation the Purchaser objects to the modified terms and conditions by sending notice in writing to the Supplier; or (iii) notwithstanding failure by the Supplier to notify the Purchaser a written confirmation or refusal of the order, ordered Products (or any portion thereof) are delivered to the Purchaser pursuant to the delivery terms indicated in the order placed by the Purchaser. In the event the Supplier notifies the Purchaser that an order is refused, no Agreement shall be concluded between the Purchaser and the Supplier and either party shall be released from any claim the other party may have in connection therewith. Once the Agreement between the Supplier and the Purchaser is concluded, any modification to its specific terms and conditions shall not be effective unless approved in writing by the Supplier and the Purchaser (without prejudice to the provisions of article 1 above in respect of modified GCS). 2. Governing laws and jurisdiction. The parties expressly agree that the Agreement between the Supplier and the Purchaser shall be governed by and construed in accordance with the laws of Italy and that any dispute between the Supplier and the Purchaser arising out of or connected with the Agreement other than a dispute connected to the Brand (as hereinafter defined) and/or the intellectual property of the Supplier shall be submitted to the exclusive jurisdiction and competence of the courts of Munich, Germany. Any dispute between the Supplier and the Purchaser that is connected to the Brand (as hereinafter defined) and/or the intellectual property of the Supplier shall be submitted to the exclusive jurisdiction and competence of the courts of Ancona, Italy. The provisions of this clause 2 shall be without prejudice to the right of the Supplier to apply to the courts of any State for provisional and/or protective measures as available in that State. 3. Delivery terms. Unless otherwise agreed, the Products shall be delivered to the Purchaser pursuant to the delivery terms indicated in the final order confirmed by the Supplier. Any delivery date is to be considered as approximate. The Supplier may in its sole discretion and without liability to Purchaser make partial shipments of the Products indicated in an order. The Supplier shall assume no liability and the Purchaser shall not be entitled to any compensation for any damages for any failed or delayed delivery (or more generally performance of Supplier’s obligations) due to a force majeure event, including without limitation by reason of fire, flood, riot, pandemic, strikes, telecommunications disruptions, acts of God, terrorism, war or civil disturbances, failures of machines and tools, lack or delay of raw materials, or any other event hindering or prohibiting performance of the Supplier’s obligations, to the extent that any of the foregoing is beyond the Supplier’s control. In the event of delayed delivery the Purchaser shall have no right to terminate the Agreement entered into with Supplier and shall not be entitled to any compensation for any damages, unless the Purchaser notified the Supplier in writing of the delay in delivery and the Supplier failed to deliver the Products within 20 (twenty) working days from receipt of such notice. 4. Territory. Unless otherwise agreed in writing with the Supplier, the Purchaser undertakes not to actively sell the Products, whether off-line or on-line, outside the city of delivery address indicated in the order confirmed by the Supplier (the “Territory”) nor to other resellers. Without prejudice to the foregoing, tThe Purchaser established in the European Union undertakes not to passively sell the Products, whether off-line or on-line, to other resellers established outside the European Union, whilst. tThe Purchaser established outside the European Union undertakes not to passively sell the Products, whether off-line or on-line, outside the Territory nor to other resellers. Without limiting the foregoing, on-line display, promotion and sale of Products via Purchaser’s web or mobile sites and/or third party’s web or mobile sites upon authorization by Purchaser shall be subject to such web and mobile sites being in compliance with Supplier’s guidelines on the Brand (as hereinafter defined), the Products, the Materials (as hereinafter defined) and the minimum quality standards for web and mobile sites via which Products may be displayed, promoted and sold (the “Guidelines”), such compliance to be verified and pre-approved in writing by Supplier. Purchaser acknowledges and confirms to have read the Guidelines, a hard copy of which was handed to Purchaser and/or are accessible on the Site (as hereinafter defined) and which are incorporated in these GCS by this reference. 5. Risk and retention of title. Risk of loss and/or damages of the Products shall pass to the Purchaser as soon as the Products are delivered to Purchaser pursuant to the delivery terms indicated in the order. Title, including property rights, in the Products shall remain vested in the Supplier unless and until payment of the agreed price is made in full by the Purchaser at the dates indicated in the order or otherwise agreed in writing with the Supplier. Until such payment in full, the Purchaser shall be regarded as holding the Products in trust for the benefit of the Supplier, with a duty to properly store, protect and insure the Products. In the event that, pursuant to applicable laws in the country where the Purchaser is established, the Supplier’s retention of title in the Products under these CGS is subject to registration or other formalities, the Purchaser shall cooperate with the Supplier and do all necessary acts and execute all necessary or appropriate documents to comply with such formal requirements to effectuate the Supplier’s retention of title in the Products. 6. Claims and liability. Upon arrival of the Products at the agreed delivery location, the Purchaser shall immediately examine all packages and shipping documents to check that no package is damaged and that the Products delivered are those indicated in the order in terms of quantity and description. Any relevant claim or reserve shall be placed by Purchaser with the shipping agent on the shipping agent’s appropriate shipping/delivery forms. Within 7 (seven) days from delivery of the Products, the Purchaser shall examine the Products to verify their conformity, including in terms of agreed quality and fitness for purpose. Any claim for lack of conformity of the Products shall be notified by registered post with return receipt to the Supplier within 8 (eight) days from the date at which the Purchaser discovered and/or ought to have discovered such lack of conformity, it being understood and agreed that the Supplier shall not accept nor be liable in connection with claims for lack of conformity of the Products that are notified to the Supplier after the expiry of a period of 6 (six) months from the date of delivery of the Products. The notice to the Supplier shall include a document issued by the shipping agent indicating the date of delivery of the Products at the agreed delivery location. The Purchaser shall be responsible for any customer service provided to its customers, including acceptance by the Purchaser of Product returns by such customers. In the event the Purchaser accepts Product returns from its customers, the Purchaser agrees that the Supplier shall not be liable in connection with such Product returns unless Products are returned by reason of manufacturing defects and the customer’s claim is placed with the Purchaser on or before the expiry of a period of 6 (six) months from the date of delivery by the Supplier to the Purchaser of the so returned Products. The Purchaser agrees that, to the maximum extent permitted by applicable laws, its sole remedy against the Supplier for lack of conformity of the Products delivered under these GCS shall be a credit to the Purchaser’s account at the price of the Products listed in the relevant order for non-conforming Products returned to the Supplier in accordance with the provisions of these GCS. 7. Sales returns. All Product returns shall be subject to the Supplier’s prior approval in writing. If so approved and unless otherwise agreed, Product returns shall be free delivered back to the Supplier at the Purchaser’s risk. The Purchaser acknowledges that the Supplier’s shipping agent is not authorized by the Supplier to collect any Product returns from the Purchaser. 8. Conditions of payment. Unless otherwise specified in an order, the Supplier’s invoices shall be paid by the Purchaser within 60 (sixty) days from the date of the invoice. Notwithstanding any of the provisions of these CGS, the Supplier shall have the right to suspend or postpone the date of any delivery of any order in the event of the Purchaser’s failure or delay in paying ordered Products at agreed payment dates. The Supplier may require the Purchaser to pay interest at the rate of 1% per month or the highest legally permissible rate, whichever is lower, on all amounts not paid when due and until all such amounts are paid in full. The Purchaser will not offset or take deductions of any kind against any invoice without the Supplier’s prior written consent. 9. Sales representatives. The Purchaser acknowledges that the Supplier’s sales representatives are entitled to receive orders for Products, which orders shall remain subject to the Supplier’s acceptance pursuant to these CGS. The Supplier’s sales representatives are not authorized to confirm or modify orders received, nor assess claims or collect money without the prior written authorization of Supplier. 10. Supplier’s Brand and Intellectual Property. The Purchaser acknowledges and confirms that the Supplier is the sole and exclusive owner of (i) any and all trademarks, trade names, company names, logos, domain names, distinctive signs identifying the Products and/or the Supplier’s business, including without limitation the “AGL” and “Attilio Giusti Leombruni” marks and related logos, all of which are registered for several classes of goods and/or services at Italian, European Union and International level (the “Brand”), as well as (ii) any and all intellectual and/or industrial property rights, including without limitation registered or unregistered design rights, in and to the Products. The Purchaser further acknowledges and confirms that the Supplier is the exclusive owner of, and/or has otherwise acquired on an exclusive basis, (iii) any and all necessary rights of economic exploitation in and to the Supplier’s web and mobile sites and any and all of its content, accessible at url addresses containing the Brand, including without limitation the url address www.attiliogiustileombruni.com and www.agl.com (the “WebsSite”) and/or any of Supplier’s pages on social media and any of Supplier’s content thereof (iv) any and all necessary rights of exploitation in and to any and all promotional and/or marketing materials for the Products (the “Materials”), such Materials including without limitation images or photographs depicting models wearing the Products and still life images or photographs of the Products, in tangible or digital form and whether or not embodied in the Supplier’s look books, catalogues, WebSsite pages on social media or other media and materials. The Purchaser shall refrain from registering and/or using and/or authorizing any third party to register and/or use any intellectual or industrial property title or right in connection with the Brand, the WebsSite, the Supplier’s pages on social media, Materials and the Products, including without limitation any trademark, trade name, company name, domain name, subdomain, distinctive sign that contains or is otherwise identical or similar to the Brand and any Material and/or image of the Products without the prior written approval of the Supplier. Without limiting the generality of the foregoing, the Purchaser agrees that approval by the Supplier shall be sought in respect of, and the Supplier shall have the right to approve, in its sole discretion, the type, time and territorial extension, form, purpose, size, position of any proposed use of the Brand, the Materials and the images of the Products by the Purchaser and/or third parties authorized by the Purchaser and that any such use of the Brand, the Materials and the images of the Products shall in no event alter or adapt or remove the Brand, the Materials or the images of the Products as approved by the Supplier nor prejudice the image and/or reputation of the Brand, the Materials, the Products and the Supplier. 11. Termination. Without prejudice to any other remedy available at law or otherwise, the Supplier shall have the right to terminate an Agreement in the event of failure by the Purchaser to pay the price of ordered Products at agreed payment dates or breach by the Purchaser of its obligations under article 10 of these GCS. 12. Miscellanea. If any court of competent jurisdiction holds that any provision of these GCS is invalid or unenforceable, the remaining portions of these GCS will remain in full force and effect, and the parties will replace the invalid or unenforceable provision with a valid and enforceable provision that achieves the original intent of the parties and economic effect of these GCS.